The King v Benning - [2022] NTCCA 15

CITATION:The King v Benning [2022] NTCCA 15
PARTIES:THE KING
v

BENNING, Troy

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 2 of 2022 (22011379)
DELIVERED:  21 September 2022
HEARING DATE:  2 June 2022
JUDGMENT OF:  Southwood, Kelly and Barr JJ

CATCHWORDS:
CRIME – Appeals – Crown appeal against sentence – whether sentence was manifestly inadequate – whether sentencing Judge erred in assessment of the objective seriousness of the offending – whether sentencing Judge failed to have sufficient regard to the need for greater accumulation – whether the overall sentence imposed failed to reflect the gravity of the offending – appeal allowed – respondent resentenced
Criminal Code Act 1983 (NT), s 414(1)(c)
Arnott v Blitner [2020] NTSC 63; Carroll v The Queen (2011) 29 NTLR 106; Director of Public Prosecutions (Vic) v Hermann (2021) 290 A Crim R 110; Everett v The Queen [1994] HCA 49, 181 CLR 295; Forrest v The Queen [2017] NTCCA 5, Griffiths v The Queen [1977] HCA 44, 137 CLR 293; House v The King [1936] HCA 40, 55 CLR 499; Muldrock v The Queen [2011] HCA 39, 244 CLR 120; The Queen v BJW [2000] NSWCCA 60, 112 A Crim R 1; The Queen v EG [2022] NTCCA 10; The Queen v Hitanaya [2010] NTCCA 3; The Queen vKahu-Leedie [2022] NTCCA 4; The Queen v Mossman [2017] NTCCA 6; The Queen v O’Connor [2014] NSWCCA 53, 239 A Crim R 487; The Queen v Osenkowski (1982) 30 SASR 212; The Queen v Pham (2015) 256 CLR 550; The Queen v Riley [2006] NTCCA 10, 161 A Crim R 414; The Queen v Roe [2017] NTCCA 7; The Queen v Simpson [2020] NTCCA 9; The Queen v Tuuta [2014] NSWCCA 40; The Queen v Verdins (2007) 16 VR 269; The Queen v Wilson [2011] NTCCA 9; Whitlock v The Queen [2018] NTCCA 7, referred to
REPRESENTATION:
Counsel:
Appellant:V Engel
Respondent:  A Abayasekara
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Number of pages:  64

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Benning [2022] NTCCA 15

No. CA 2 of 2022 (22011379)

BETWEEN:

THE KING

Appellant

AND:

TROY BENNING

Respondent

CORAM: SOUTHWOOD, KELLY and BARR JJ
REASONS FOR JUDGMENT
(Delivered 21 September 2022)
SOUTHWOOD J:
Introduction

On 23 February 2021, the respondent pleaded guilty to the following 10 counts on an indictment dated 22 February 2021.
Count 1:Aggravated unlawful entry of a dwelling house at night-time while armed with an offensive weapon with the intention of committing a robbery therein contrary to s 213(1), (3), (4), (5) and (6) of the Criminal Code 1983 (NT). The maximum penalty for this offence being imprisonment for life.
Count 2:Aggravated assault on a female who suffered harm, was unable to effectually defend herself and was threatened with a pair of scissors and a picture frame contrary to s 188(1), and (2)(a), (b), (k) and (m) of the Criminal Code. The maximum penalty for this offence being imprisonment for 5 years.
Count 3:Attempted sexual intercourse (penile/vaginal) without consent while knowing about or being reckless as to the lack of consent contrary to s 192(3) and (5) of the Criminal Code. The maximum penalty for this offence being imprisonment for 7 years.
Count 4:Sexual intercourse (digital/vaginal) without consent contrary to s 192(3) of the Criminal Code. The maximum penalty for this offence being imprisonment for life.
Count 5:Aggravated attempted sexual intercourse without consent while knowing about or being reckless as to the lack of consent and causing harm contrary to s 192(3), (5) and (7) of the Criminal Code. The maximum penalty for this offence being imprisonment for 14 years.
Count 6:Sexual intercourse (fellatio) without consent contrary to s 192(3) of the Criminal Code. The maximum penalty for this offence being imprisonment for life.
Count 7:Deprived the victim of her personal liberty against her will in her home contrary to s 196(1) of the Criminal Code. The maximum penalty for this offence being imprisonment for 7 years.
Count 8:With intent to cause fear, made a threat to kill the victim, which threat was of such a nature as to cause fear to any person of reasonable firmness and courage contrary to s 166(1) of the Criminal Code. The maximum penalty for this offence being imprisonment for 7 years.
Count 9:Stole a wooden stool, shorts and underwear, having a total value of $70.00, the property of the victim contrary to s 210(1) of the Criminal Code. The maximum penalty for this offence being imprisonment for 7 years.
Count 10:Unlawfully caused serious harm to the victim contrary to s 181 of the Criminal Code. The maximum penalty for this offence being imprisonment for 14 years.
The sentencing Judge sentenced the respondent to the following terms of imprisonment.
Count 1:       2 years.
Count 2:       12 months.
Count 3:       2 years and 5 months.
Count 4:       3 years and 7 months.
Count 5:       2 years and 10 months.
Count 6:       3 years and 7 months.
Count 7:       1 year and 2 months.
Count 8:       1 year and 2 months.
Count 9:       6 months.
Count 10:     2 years and 5 months.
The sentencing Judge ordered that the sentences for counts 1 (unlawful entry), 2 (assault), 3 (attempted sexual intercourse without consent) and 4 (sexual intercourse without consent) be served concurrently, eight months of the sentence imposed for count 5 be served cumulatively on the sentence imposed for count 4, 9 months of the sentence imposed for count 6 be served cumulatively on the sentence imposed for count 5, 9 months of the sentence imposed for count 7 be served cumulatively on the sentence imposed for count 6, three months of the sentence imposed for count 8 be served cumulatively on the sentence imposed for count 7, the sentence imposed for count 9 be served wholly concurrently with the sentence imposed for count 8, and 1 year of the sentence imposed for count 10 be served cumulatively on the sentence imposed for count 8. The total amount of accumulation of the sentences was 3 years and 5 months.
The total sentence imposed on the respondent was 7 years. The sentencing Judge fixed a non-parole period of 4 years.
The Crown has appealed against the sentences imposed on the respondent on the sole ground that the sentencing Judge erred in imposing an overall sentence that was manifestly inadequate.
In support of the sole ground of appeal, the Crown relies on the following particulars:
(i)the learned sentencing Judge erred in her assessment of the objective seriousness of the offending;
(ii)the learned sentencing Judge failed to have sufficient regard to the need for greater accumulation; and
(iii)the overall sentence imposed (including the non-parole period) failed to reflect the gravity of the offending.
Principles governing Crown appeals against sentence
The principles governing Crown appeals against sentence are not in dispute.[1] They are as follows.[2]
(a)Crown appeals against sentence should be a rarity brought only to
establish some matter of principle.[3]
(b)Manifest inadequacy in a sentence amounts to such an error of principle which the Crown is entitled to have an appeal court correct.[4]
(c)The presumption is that there is no error in any sentence passed by the court below. It is incumbent upon the Crown to show that the sentence was clearly and obviously, and not just arguably, inadequate; that is, it must be shown that the sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.[5]
(d)The principles in House v The King[6] remain applicable to the determination of manifest inadequacy:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[7]
(e)Manifest inadequacy can be established where there is a significant and irreconcilable displacement between the findings of the sentencing judge and the sentence imposed.[8]
(f)Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be resentenced.[9]
What reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence.[10]
The facts
The respondent is a 26-year-old male. He was 25 when he committed the offences that are the subject of this appeal. The victim is a 39-year-old female. The respondent and the victim were unknown to each other.
Prior to committing the counts on the indictment, the respondent consumed methamphetamine.
The victim resided at [redacted] with her two children who were aged 10 and 4 respectively. Her unit is located on the first level of the block of units.
The respondent was armed with a pair of scissors and carried a Woolworths shopping bag with two eyeholes cut in it. He gained access to a secure courtyard attached to the block of units and he saw the victim inside her unit. She was in the kitchen baking food that was to be sold at the markets. Her two children were asleep in the victim’s bedroom.
The respondent formed the intention to unlawfully enter the victim’s unit and rob her. He climbed a downpipe leading to the balcony of her unit and entered the unit through the unlocked balcony door. Before entering the unit, he placed the Woolworths bag over his head and held the scissors in one of his hands.
The victim was cracking eggs into a mixer and she turned to discover the respondent in her home. She asked the respondent what he was doing in her unit.
The respondent took the bag off his head and began pushing the victim in the direction of her bathroom. He asked her where her money was and who was in the unit. The victim said that she did not have any money and just her and her two children were in the unit.
The respondent began pushing the victim towards a bedroom and asked how old her children were. The victim asked the respondent what he wanted. He did not respond.
A short time later, the respondent asked the victim to take off her pants. She refused. He then pushed her down the hallway by wrapping his arms around her while still holding the scissors and forcefully moving her to the entry to her daughter’s bedroom.
The victim tried to punch the respondent. He forced her to the ground in her daughter’s bedroom and she struck him with a pink stool. The respondent smashed a glass picture frame over the victim’s head and kicked her in the nose. The victim’s nose bled and she felt immediate pain. The respondent also punched the victim in the head several times, as she continued to struggle with him.
The victim was able to get to her feet and she begged for her life. The respondent pushed her backwards onto the bed in her daughter’s bedroom and told her to take off her pants. The victim lay on the bed dizzy from the assault. She said no.
The respondent used the scissors he held to cut through the left side of the victim’s shorts before he pulled them and her underwear off. He pushed her legs apart and told her to open her legs. He removed parts of his clothing and exposed his penis. The respondent then used the scissors to cut off a piece of the Woolworths bag, which he wrapped around his penis. He then attempted to push his penis into the victim’s vagina. However, his penis was not erect and he was unable to insert his penis into her vagina.
The respondent then used two fingers to penetrate the victim’s vagina digitally for less than 30 seconds. The respondent then removed his fingers. There was blood on his fingers and he said, “Shit you are bleeding”.
The respondent then rewrapped his penis in the piece of plastic from the Woolworths bag and again tried to force his penis into the victim’s vagina, but was again unable to do so.
The victim then tried to get up but the respondent punched her in the mouth and said, “Suck my dick”. The victim took hold of the respondent’s non-erect penis with one of her hands and put it in her mouth for about 20 seconds.
The respondent grabbed the victim’s head and tried to pull her hair up. The victim kneed him in the groin as hard as she could and tried to run out the bedroom door. As she did, some of her hair came out in the respondent’s hand.
The respondent grabbed the bedroom door and tried to slam it, hitting the victim’s right arm. The victim felt immediate pain in her shoulder.
The victim screamed out to her 10-year-old daughter for help and the respondent grabbed the victim’s shorts and underwear, the stool she had struck him with, the piece of plastic he had cut from the Woolworths bag and his scissors. Before he ran out the door of the unit, he threatened the victim by saying, “If you call the police, I will come back to kill you”. The victim believed the respondent could and would execute the threat to her life.
The respondent went to [redacted] and placed most of the items he was carrying in a wheelie bin at the rear of the property, threw the scissors on a grassed area and ran away. He was arrested on 2 April 2020.
As a result of the assault upon her, the victim suffered extensive bruising to her face and her right and left temples, as well as her right ear and posterior to the right ear, upper lip and lower lip, right humerus circumferential bruising, right wrist, left humerus circumferential bruising, left scapula region, and sternum. In addition, she suffered left supraorbital swelling, abrasions to her neck, right wrist, right forearm, right thumb and left forearm, a tooth fracture, concussion, and a ligamentous right wrist injury. As a result of the home invasion and the assaults upon her, the victim exhibited symptoms of post-traumatic stress disorder.
As a result of being struck with the door, the victim suffered a right rotator cuff tear with associated subacromial bursitis, bruising to her right collarbone, right cheek swelling, and facial cellulitis. Without medical intervention, the facial cellulitis could have led to sepsis and facial deformity, and the rotator cuff injury could have led to reduced movement of her right shoulder.
A physiotherapist reported to the Court below that the victim had approximately 75 percent of normal shoulder active range of movement, but continued to experience discomfort when increasing demand was placed on her right shoulder. An occupational therapist reported to the Court that the victim had to have her wrist and thumb in a hard splint for three weeks, then a soft splint, then taped to alleviate pain.
In her victim impact statement dated 10 December 2020 (almost 10 months after the incident), the victim stated that she still had pain in her shoulder and right hand some eight months after the incident. She said that the experience was terrifying. She was terrified for her own life and the safety of her two children. She was afraid to leave the hospital and terrified of all men she did not know. She wakes to the slightest noise, cannot live her normal life and did not feel safe in her own home. Her daughter had nightmares and was too scared to go out in public for months. She and her daughter were having counselling.
Gravity of the offending
All of the offending is serious. I have considered the seriousness of the individual offences at [62] to [79] below.
The respondent’s subjective circumstances
In her sentencing remarks, the sentencing Judge made the following findings about the respondent’s subjective circumstances.
The respondent was 25 years old at the time of the offending. He was born in Kununurra where he spent most of his life until 2016. His mother consumed significant amounts of alcohol when she was pregnant with the respondent. Both his parents were violent alcoholics. The respondent’s mother was killed by a violent assault when he was in detention at the age of 17 years. His grandmother who lives in Western Australia raised the respondent.
The respondent spent most of the period between the ages of 12 and 18 in detention. He went to school in Kununurra but did not do much schooling in detention. He found school difficult because he could not concentrate. When the respondent was 15 years old, he worked briefly for an uncle doing landscaping and construction work.
The respondent abused alcohol between the ages of 14 and 16. He began using methamphetamines around 14 years of age. When he was not in detention or prison and could get the dangerous drug, he used it about every two days.
The respondent has a criminal record in Western Australia and the Northern Territory. His offending includes:
·     some charges of violence and 24 charges of burglary;
·     a conviction for aggravated assault (male on female, causing harm) committed in August 2018, for which he received a sentence of 15 months’ imprisonment, suspended after 10 months;
·     a conviction for aggravated assault (male on female, and the female was defenceless) committed in June 2017, for which he received a sentence of 2 months’ imprisonment;
·     two convictions for aggravated assault (causing harm) committed in 2014 in Western Australia, for which he received a community based order; and
·     four instances as an adult of breaching the conditions of court orders, such as bail.
The respondent suffers from neurocognitive impairment, personality disorder and substance abuse disorder. The sentencing Judge found that the respondent did not suffer from FASD. However, her Honour found that the respondent’s impaired mental functioning was a causal factor in the offending along with his methamphetamine intoxication and his anger at his partner.
In accordance with the principles in The Queen v Verdins,[11] the sentencing Judge found that the respondent’s mental impairments impacted upon his ability to exercise appropriate judgment and to make calm, rational choices, and that they contributed causally to the commission of the offences to a significant degree. Consequently, the sentencing Judge found that the neurocognitive deficits, mental health disorders and difficulties in understanding consequences and learning from past behaviours mitigated the respondent’s moral culpability for the offending, particularly his ability to be accountable for it, and consequently reduced the weight attributable to general deterrence, moderated the weight attributable to specific deterrence, and impacted on the balancing exercise between the respondent’s needs, the rights of the victim and the interests of the community. Mitigation was found to be significant but not substantial.
The respondent also comes from a deprived and disadvantaged background during which he was exposed to traumatic events, notably alcohol fuelled violence.
The Crown’s submissions
Particular (i) – erred in the assessment of objective seriousness
The Crown submitted that the sentencing Judge’s categorisation of counts 1 (2 years’ imprisonment) and 2 (12 months’ imprisonment) as mid-range offences, and the categorisation of counts 3 (2 years and 5 months’ imprisonment), 4 (3 years and 7 months’ imprisonment), 5 (2 years and 10 months’ imprisonment), and 6 (3 years and 7 months’ imprisonment) as low-mid range offences was not open. Various factors elevated the objective seriousness of these offences.

The Crown submitted that count 1 (aggravated unlawful entry) was a home invasion that occurred at night while the dwelling was occupied by an adult and two children. The respondent saw the victim prior to entering the victim’s unit and deliberately targeted her. The crime was committed with the serious intent to rob the victim. The respondent was armed with scissors, and disguised with a Woolworths shopping bag. The respondent’s appearance terrified the victim. The Crown submitted that this offence was well above the mid-range of objective seriousness.
As to count 2 (aggravated assault), the Crown submitted that this offence was a prolonged and serious assault that occurred in the victim’s home. Consequently, it was well above the mid-range of objective seriousness.
As to counts 3, 4, 5 and 6 (sexual offences), the Crown submitted that the objective seriousness of these offences was above the low-mid range of objective seriousness. The objective seriousness of these offences was elevated by the following factors:
(a)They were committed in the victim’s home while her infant children were asleep in her bedroom and the respondent was aware of the presence of the children.
(b)The victim was deprived of her liberty.
(c)The respondent was armed with a pair of scissors.
(d)The respondent violently assaulted the victim to overcome her resistance and prevent her from escaping.
(e)The attempts at penile/vaginal sexual intercourse were particularly demeaning and degrading, and the respondent continued to sexually assault the victim despite observing that she had vaginal bleeding.
(f)The acts in question were part of a prolonged and sustained attack.
(g)The respondent threatened to kill the victim if she called the police.
(h)The respondent’s conduct had a significant and ongoing detrimental impact on the victim and her children.
(i)The victim was vulnerable.
Many of the above factors raised by the Crown constitute some of the other offences charged on the indictment. Consequently, great care must be exercised when determining what weight they are to be given in assessing the objective seriousness of counts 3, 4, 5, and 6. Otherwise, there could be impermissible double or multiple weighing of the various factors. If they were considered when assessing the objective seriousness of each of the sexual assaults, there would need to be a high level of concurrency in the various sentences imposed on the respondent.
In addition, the Crown submitted that the sentencing Judge relied on a number of matters in mitigation that her Honour could not rely on in such a way. During her sentencing remarks, the sentencing Judge stated:
In mitigation, you were holding the scissors, but did not use them as a weapon or inflict harm on the victim. The sexual offending did not involve ejaculation into or on the victim, and the sexual offending was impulsive and unsophisticated. It did not involve any significant planning on the respondent’s part. I also note that the physical harm suffered by the victim was not life threatening and that the property stolen had a value of $70.
As the Court noted in The Queen v Kahu-Leedie,[12] the absence of an aggravating feature is not a mitigating feature. Further, not every horrific factor or combination of factors must be present for offending to fall into a high range of seriousness.[13]
In addition, I note the following:
· The fact that the respondent was holding the scissors while he was assaulting the victim constitutes the use of the scissors as a weapon. The victim must have found the respondent’s possession of the scissors very threatening and, obviously, that was his intention.
· It is most likely that the respondent’s possession of the scissors and the use of the scissors to cut the victim’s shorts before he took them off contributed to the psychological harm she suffered.
Particular (ii) – failed to have sufficient regard to the need for greater cumulation
The Crown submitted that the sentencing Judge erred in the level of concurrency imposed, particularly on the sentences imposed for counts 1, 2, 3 and 4 on the indictment, which her Honour made totally concurrent with each other. The net effect of this was that the sentences for counts 1, 2, 3 and 4 resulted in an aggregate sentence of only 3 years and 7 months. Such an aggregate sentence fails to reflect the criminality in each of the four counts and the total criminal conduct engaged in by the respondent.
Particular (iii) – the overall sentence imposed failed to reflect the gravity of the offending
The Crown submitted that when considering the need to protect the community from such offending (the countervailing consideration to the cognitive and personality difficulties faced by the respondent), the total sentence imposed on the respondent was manifestly inadequate even after full and appropriate weight is given to the matters considered by the Court in mitigation of sentence. The sentence imposed for this offending was so disproportionate to the objective seriousness of the offending as to shock the public conscience and demonstrate error in a point of principle.
In support of this contention, the Crown referred the Court to various sentences considered by the New South Wales Court of Criminal Appeal in a number of cases. The Crown did so in reliance upon the following statement of the plurality of members of the High Court in The Queen v Pham:[14]
It is settled that, in the absence of binding authority from this Court, an intermediate appellate court must follow a statement of legal principle by another intermediate appellate court unless persuaded that it is plainly wrong. It is also settled that “a sentence itself gives rise to no binding precedent”. Where, however, decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to the sentencing decisions of other intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate (although not define) the possible range of sentences available. A court must have regard to such a decision in this way unless there is a compelling reason not to do so, which might include where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant, or where the court is persuaded that the outcome itself in the other court was manifestly excessive or inadequate.[15]
While the remarks refer to important general principles, they are qualified remarks. It is to be noted that: (i) a sentence itself gives rise to no binding precedent; (ii) the decisions of other intermediate appellate courts may serve to illustrate the possible range of sentences available; and (iii) there may be compelling reasons why regard should not be had to the sentencing decisions of other intermediate appellate courts.
The remarks in Pham are also subject to any differences in the criminal and sentencing laws of each State and Territory, which may differ significantly. The Legislatures in Australian States and Territories fix different maximum penalties for various offences. There may be mandatory minimum penalties in some States and Territories and not in others. Certain factors may be aggravating factors in some States and Territories, and not in others. The relevant legislation in some States and Territories may provide for standard non-parole periods for certain offences when legislation in other States and Territories does not. For example, in New South Wales, the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for standard non-parole periods, which are set out in the Table to Division 1A Part 4 of the Act. For an aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW), the standard non-parole period is 10 years. The standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness. Section 54B(2) of the Act provides that when determining the sentence for an offence [listed in the Table], the Court is to set the standard non-parole period as the non-parole period unless the Court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. The reasons for which a court may fix a longer or shorter non-parole period are set out in s 21A(1) of the Act. Section 21A permits a sentencing court to take into account all the factors that, under the common law, are relevant to the determination of sentence. Up until the High Court’s decision in Muldrock v The Queen,[16] the provision of standard non-parole periods for various Division 1A offences distorted the exercise of the sentencing discretion.
In accordance with the remarks of the plurality in Pham, the Crown referred the Court to a number of New South Wales sentencing decisions, some of which predated Muldrock. The total sentences in the New South Wales cases, for what the Crown said was similar offending, ranged from 13 years’ imprisonment with a non-parole period of 9 years, to 18 years’ imprisonment with a non-parole period of 12 years.
Subject to what I have stated above, I have considered the New South Wales cases.
The respondent’s submissions
Counsel for the respondent submitted that this was a complex sentencing exercise which involved objectively serious offending by a relatively young man who had a history of offending, but not sexual offending, and which needed to be considered alongside three expert reports, which engaged both Verdins and Bugmy principles. The sentencing Judge carefully considered all of the relevant matters and sought to strike a balance in the “instinctive synthesis”. Crown appeals should not be allowed to circumscribe unduly the sentencing discretion of judges; and there must always be a place for leniency and the exercise of mercy where a judge’s sympathies are reasonably excited. The sentences imposed by the sentencing Judge were not so far outside the range of a reasonable discretionary judgment as to themselves bespeak error.
Counsel for the respondent further submitted that the sentencing Judge’s description of the objective seriousness of the overall offending indicates a correct assessment of the objective seriousness of the respondent’s conduct. Her Honour’s remarks included express statements that:
(a)the victim was in her own home where she was entitled to feel safe and free from intrusion and attack;
(b)the offending in count 1 was premeditated and deliberate, and involved the use of a weapon;
(c)the offending involved the respondent physically overpowering the victim, knowing that she was resisting;
(d)the victim’s will was overborne and any apparent submission in relation to count 6 was out of fear rather than submission;
(e)the acts of penetration were degrading and demeaning;
(f)the acts of violence were sustained, brutal and terrifying and, in the end, led the victim to call for help from her 10-year-old daughter;
(g)the threat to kill was terrifying and real to the victim; and
(h)the victim suffered numerous physical injuries and she continued to require physical therapy, occupational therapy and trauma counselling.
Counsel for the respondent accepted that it was incorrect for the sentencing Judge to refer to some matters as being “in mitigation”, but submitted that they were matters that qualified the objective seriousness of the offending and were properly taken into account as relevant to the assessment of where the respondent’s offences lay on the scale of offending.
Counsel for the respondent submitted that a fair reading of the sentencing remarks indicates that the learned sentencing Judge did not err in her assessment of the objective seriousness of the offending.
As to the need for accumulation, counsel for the respondent submitted that the crimes that the respondent committed were closely interrelated and called for a substantial degree of concurrency.
As to whether the total sentence imposed by the sentencing Judge reflected the gravity of the whole of the respondent’s offending conduct, counsel for the respondent submitted that the sentencing Judge found that the Verdins and Bugmy issues that arise in this case mitigated the respondent’s moral culpability. Consequently, her Honour significantly reduced the weight attributable to general and specific deterrence. While protection of the community was an important consideration, this is a case where the aim of protection of the community could be achieved by the imposition of a sentence that encouraged the rehabilitation of the respondent in a way that specifically addressed his criminogenic needs. Consideration of all of the factors does not lead to the conclusion that the sentence imposed was manifestly inadequate.
Consideration
As to particular (i) of the appeal, I am satisfied that the individual sentences imposed for counts 1, 2, 4, 6, 7, 8, and 9 were manifestly inadequate. The sentences imposed for counts 3, 5 and 10 are appropriate and proportionate sentences.
Count 1 is a particularly serious example of unlawful entry. The respondent’s moral culpability for this crime is high. It is so despite the application of the Verdins principles in this case. The offending was premeditated. The respondent set out on the night in question with the intention of unlawfully entering a dwelling house to obtain money. He armed himself with scissors, which are a very dangerous weapon, and cut eyeholes in a Woolworths bag so he could disguise himself. After the respondent entered the secure courtyard, he saw the victim, who is a small woman, and deliberately chose her to be the target of a robbery. Robbery is a serious crime. It involves the use or threats to use violence to any person in order to obtain the thing stolen, to prevent or overcome resistance to its being stolen or to prevent or hinder pursuit. At the time the respondent entered the victim’s unit, he had formed the intention to use or threaten to use violence against her to obtain what he was going to steal and to prevent pursuit. If a robber is armed with a dangerous weapon, he is liable to imprisonment for life. In her victim impact statement, the victim stated that she is a size 6, weighs 50 kilograms and is only 160 cm tall. The victim was especially vulnerable and the respondent was aware of her vulnerability. Before he entered the victim’s dwelling, the respondent placed the Woolworths bag over his head and he held the scissors in one of his hands. He deliberately chose to enter the room the victim occupied. Such offences cause great alarm in the community. This crime must have contributed to the emotional and psychological harm suffered by the victim. In her victim impact statement, she made the following remarks:
It has been my nightmare ever since.
I was scared to go to a place to call home.
I tried my hardest to find another place for me and kids to move but there was no luck during that time.
I wake up to any slightest noise.
I needed to relocate my house, even just try to feel safe again.
We needed to close our blinds and lock the house at 6 pm every day. It feels like he had taken our freedom away.
All I ever want from a mother point of view are my kids to be safe. I want to be safe. I have every right to feel comfortable and safe in my own home.
I am scared that he will come back and hurt me again...
The maximum penalty for count 1 and for the crime of robbery that the respondent intended to commit inside the victim’s unit is imprisonment for life. The respondent has a long history of committing burglaries and he has committed five crimes of violence against women. Consequently, the respondent has lost the entitlement to significant leniency.
Count 1 involved forethought. The decision to enter the victim’s dwelling house to rob her was not spontaneous or impulsive. The respondent deliberately targeted the victim. Taking into account the respondent’s significant history of committing burglaries, count 1 is not an offence for which a sentencing court must give significant weight to the Verdins and Bugmy principles. Significant weight must be given to the protection of the community and specific deterrence. It is well recognised that mental impairment is not a solely mitigatory factor. Mental impairment may require less weight to be given to deterrence, but it may also require that additional weight be given to protection of the public.
The sentencing Judge assessed the respondent’s prospects of rehabilitation as poor. Her Honour stated:
In light of your age, your criminal history, including your history of non-compliance with conditions of bail, and your cognitive impairments and mental health disorders, I have considerable concerns about your prospects of rehabilitation, which can only be assessed as poor at this stage, but I accept they are not exhausted.
I find that the sentence of 2 years’ imprisonment imposed for count 1 is clearly and obviously inadequate. It is so disproportionate to the seriousness of the offending as to demonstrate error in principle. The sentence is not reflective of a mid-range offence for a sentence that carries a maximum penalty of imprisonment for life.
Count 2 concerns a serious and prolonged assault on a female victim who was incapable of defending herself despite her best efforts to do so. It comprises all of the force and violence inflicted on the victim, other than the slamming of the door that caused serious harm. The crime was committed at night in the victim’s unit. It commenced immediately before the respondent asked the victim where her money was, which is consistent with the respondent’s intention to rob her. While holding the scissors, the respondent pushed the victim backwards in the direction of her bathroom before he asked her where her money was. To that extent, the assault was not spontaneous or impulsive. It was part of the respondent’s original plan. It was only after the victim told the respondent that she did not have any money that he began pushing her towards a bedroom and asked her to take off her pants. The victim refused to do so. The respondent then pushed the victim down the hallway, forced her to the ground in her daughter’s bedroom, smashed a glass picture frame over the top of her head, kicked her in the nose and punched her in the head several times. He then continued to assault her violently during the sexual assaults he committed.
The victim suffered the following injuries from the assault upon her:
(a)Extensive bruising to: her face on the right and left temple, right ear and posterior to the right ear, upper lip, lower lip, right humerus (circumferential), left humerus (circumferential), left scapula region and sternum.
(b)Left supraorbital swelling.
(c)Abrasions to her neck, right wrist, right forearm, right thumb, and left forearm.
(d)A fractured tooth.
(e)Concussion.
(f)A ligamentous right wrist injury.
(g)Emotional and psychological harm requiring counselling.
The respondent committed the balance of the assault on the victim so he could overcome her resistance, subdue her, and then engage in sexual intercourse with her. The assault was a prolonged and vicious attack upon a vulnerable victim in her home, which was also occupied by her two young children.
I find that the sentence of 12 months’ imprisonment for count 2 is clearly and obviously inadequate. It is so disproportionate to the seriousness of the offending as to demonstrate error in principle. The sentence of 12 months’ imprisonment is not reflective of a mid-range offence for a sentence that carries a maximum penalty of 5 years’ imprisonment. Such a sentence is more applicable to an offence with objective seriousness that falls towards the bottom of low mid-range offences of this kind.

Count 4 is a serious sex offence. The offence carries a maximum sentence of imprisonment for life. It was committed in the victim’s home after the respondent had subdued the victim by violently assaulting her and had unsuccessfully attempted to have penile/vaginal sexual intercourse with her without her consent. The respondent, who was a complete stranger and had unlawfully entered the victim’s home, forced the victim to remain on her back on her daughter’s bed. The victim had made it very clear that she did not wish to have sexual intercourse with the respondent. In her victim impact statement, the victim stated that the respondent “jammed his fingers in my vagina”. It is unclear whether the manner in which the respondent attempted to have penile/vaginal sexual intercourse with the victim or inserted his fingers into her vagina caused her vagina to bleed. After the respondent removed his fingers from the victim’s vagina, he said, “Shit you are bleeding”. Victims of sexual assaults are likely to suffer significant future psychological harm and sentencing courts must consider such potential psychological harm.
I find that the sentence of 3 years and 7 months’ imprisonment for count 4 is clearly and obviously inadequate. It is so disproportionate to the seriousness of the offending as to demonstrate error in principle.
Likewise, count 6 is a serious sexual offence. It occurred in the victim’s home after the respondent had unsuccessfully attempted to have penile/vaginal sexual intercourse with the victim twice and after he had digital/vaginal sexual intercourse with her without her consent. After the respondent’s second failed attempt at penile/vaginal sexual intercourse, the victim attempted to get up off the bed. The respondent punched her in the mouth and said, “Suck my dick”. The victim then performed fellatio on him.
I find that the sentence of 3 years and 7 months’ imprisonment for count 6 is clearly and obviously inadequate. It is so disproportionate to the seriousness of the offending as to demonstrate error in principle.
I also find that the sentences imposed for counts 7, 8 and 9 are clearly and obviously inadequate. Each sentence is so disproportionate to the seriousness of each offence as to demonstrate error in principle.
Count 7, the crime of deprivation of liberty, consists of the respondent’s conduct in detaining the victim in her daughter’s bedroom. The victim was deprived of her liberty for a sustained period during which she was brutally physically assaulted, sexually assaulted on 4 occasions in a degrading and humiliating manner, and suffered serious harm. The victim was deprived of her liberty so the respondent could sexually assault her.
Count 8, the threat to kill, was committed in circumstances where the respondent had invaded the victim’s unit, knew she had children, knew where she lived and had violently and sexually assaulted her while armed with a pair of scissors.
While the value of the goods stolen was small, the respondent’s moral culpability for count 9, the count of stealing, was high. Once again, it is so despite the application of the Verdins and Bugmy principles in this case. The respondent committed count 9 to remove from the victim’s unit any items that may have contained material such as DNA and fingerprints that would confirm the respondent’s presence in the unit. The respondent committed the crime in an attempt to avoid detection and conviction for the crimes he committed. The stealing involved considerable forethought.
Further, the total sentence imposed by the sentencing Judge of 7 years with a non-parole period of 4 years did not reflect the totality of the respondent’s criminal conduct, which involved a violent home invasion during which the respondent committed 10 serious criminal offences.
As to the individual sentences imposed for counts 1, 2, 4, 6, 7, 8 and 9, there is a significant and irreconcilable displacement between the findings of the sentencing Judge about the objective seriousness of the offending and the individual, and the total sentences imposed on the respondent. It is difficult to know whether this was the result of the sentencing Judge mitigating the sentences for factors that were not mitigatory, or giving too much weight to the Verdins and Bugmy principles, or a failure to accurately assess the level of seriousness of the offending after making allowance for those principles.
As to particular (ii), I am satisfied that the sentencing Judge erred by ordering that the sentences imposed for counts 1, 2, 3, and 4 be served wholly concurrently. Although count 1, the armed home invasion at night, formed part of a series of offences committed on the same occasion, it had very little to do with the sexual assaults that the respondent committed once he was informed by the victim that she had no money. I agree with their Honours Kelly and Barr JJ, that count 1 is a separate offence that was differently motivated to the sexual offending and is intrinsically serious in its own right. Part of count 2 involved an attempt to rob the victim; and part of count 2 involved the subjugation of the victim prior to the commission of the sexual assaults upon her. Multiple acts of sexual offending may also justify a level of accumulation. A sentence of 3 years and 7 months’ imprisonment is unjustly disproportionate to the crimes of aggravated unlawful entry, aggravated assault, attempted penile/vaginal sexual intercourse and digital/vaginal sexual intercourse committed by the respondent. It is so disproportionate as to bespeak error in principle.
As to particular (iii), I am satisfied that the total sentence of 7 years’ imprisonment with a non-parole period of 4 years is so plainly and clearly disproportionate to the totality of the respondent’s criminal conduct as to bespeak error in principle. I have had the advantage of reading a draft of the Reasons for Decision of their Honours Kelly and Barr JJ. I agree with their Honours that this is partly due to a mischaracterisation of the level of seriousness of the individual offences, partly due to a mischaracterisation of the offending as a whole, and partly due to an undue degree of concurrency in the individual sentences that were imposed for counts 1, 2, 3 and 4 on the indictment.
Residual discretion
I agree with their Honours Kelly and Barr JJ that there is nothing in the appeal to cause the Court to exercise its residual discretion and dismiss the appeal.
Conclusion
I would allow the appeal, quash the sentences imposed for counts 1, 2, 4, 6, 7, 8 and 9 and resentence the respondent. I would confirm the sentences imposed by the sentencing Judge for counts 3, 5 and 10.
KELLY AND BARR JJ:
This is a Crown appeal against sentence. On 23 February 2022, the respondent was sentenced to a total effective sentence of imprisonment for seven years, with a non-parole period of four years for ten offences:
(a)two offences of sexual intercourse without consent;
(b)two offences of attempted sexual intercourse without consent (one aggravated);
(c)one offence of aggravated unlawful entry of a dwelling at night, armed, with intent to commit a robbery;
(d)one offence of aggravated assault in which the female victim suffered harm, was unable to effectively defend herself and was threatened with an offensive weapon;
(e)one offence of deprivation of liberty;
(f)one offence of making a threat to kill;
(g)one offence of unlawfully causing serious harm; and
(h)one offence of stealing.
Facts of the offending:
Count 1 (unlawful entry):
At about 12.20 am on 1 April 2020, the respondent gained access to the secure courtyard of the unit complex in Parap where the victim lived. The victim was up late, baking for her stall at the markets. Her two children (aged 10 and 4) were sleeping in her bedroom.
The respondent saw the victim and formed the intention to unlawfully enter her unit and rob her.
The respondent gained access to the victim’s unit by climbing up a drain pipe onto her balcony. He entered her home armed with scissors, wearing a plastic bag over his head with eyeholes cut into it.[17]
Count 2 (aggravated assault):
The victim turned to be confronted by the respondent. He pushed her backwards towards the bathroom and asked her where her money was and who else was in the house. The victim told the respondent that she didn’t have any money, and that it was only her and her children in the house.[18]
The respondent then pushed the victim and asked her to take off her pants. She refused. The respondent pushed the victim by wrapping his arms around her body and forcefully moving her into the bedroom usually occupied by the victim’s young daughter (who was asleep nearby in the main bedroom). He was still holding the scissors.
The victim tried to punch the respondent but he forced her to the ground in the bedroom. He was carrying scissors in one hand and the plastic Woolworths bag in the other.
The victim tried to hit the respondent with a wooden stool in order to resist him. He then smashed a glass picture frame over the victim’s head, kicked her in the nose and punched her around the head several times with his fist, causing her pain and bleeding.
The victim struggled and begged for her life. She managed to get to her feet and the respondent pushed her backwards onto the bed.
Count 3 (attempted sexual intercourse without consent):
The victim lay on the bed dizzy from the assault. The respondent told the victim take her pants off, and she said, “No”.
The respondent then used the scissors to cut the victim’s shorts and removed her shorts and underwear. He pushed at her legs and said, “Open your legs.” Then he took off some of his clothes and exposed his penis.
He cut out a section of the plastic bag, wrapped the plastic around his penis and tried to push his penis into the victim’s vagina. He could not do so as his penis was not erect.
Count 4 (sexual intercourse without consent):
The respondent then used two fingers to digitally penetrate the victim’s vagina for less than 30 seconds. Then he removed his fingers and said, “Shit, you’re bleeding.”
Count 5 (attempted sexual intercourse without consent):
The respondent re-wrapped his penis with the plastic and again tried to insert his penis into the victim’s vagina, but he was again unsuccessful.
Count 6 (sexual intercourse without consent):
The victim tried to get up, but the respondent punched her in the mouth and said, “Suck my dick”. The victim held the respondent’s non-erect penis and put it into her mouth for about 20 seconds. She was thinking, “How am I going to survive this?”
Counts 2 and 7 (assault and deprivation of liberty):
The respondent grabbed the victim’s head and tried to pull her hair up. Some of her hair came away in his hand. The victim kneed the respondent in the groin as hard as she could and tried to run out the door.
Count 10 (serious harm):
As the victim tried to escape, the respondent grabbed the bedroom door and slammed it into the victim hitting her arm (causing serious harm). The victim screamed out to her 10 year old daughter for help.
Count 9 (stealing):
The respondent grabbed the victim’s shorts and underwear, the stool he had been hit with, and the cut-off piece of the plastic bag and scissors and ran out of the unit door with them.
Count 8 (threat to kill):
Before he left, the respondent threatened the victim, saying that he would come back and kill her if she called the police.
Count 2 (the assault) consists of all of the force and violence inflicted on the victim other than the slamming of the door which caused serious harm. Count 7 (deprivation of liberty) consists of the respondent’s conduct in detaining the victim in the bedroom throughout the assaults and sexual assaults.
After the respondent fled, the victim’s young daughter came out of the bedroom. She had been woken during the assault and heard the shouting, crying and screaming, but had remained in the room until she heard the front door of the unit shut. She discovered her mother with no pants or underwear on, and bleeding. The victim remained on the floor as she instructed her daughter how to call the police. Police and ambulance services attended soon after.
The respondent was arrested the next day.[19]
As a result of the attack, the victim suffered extensive injuries, including:
(a)a tooth fracture;
(b)facial cellulitis (which could have led to sepsis and facial deformity);
(c)a concussion;
(d)a ligamentous right wrist injury;
(e)extensive bruising to her right and left temple, right ear, upper and lower lip, right and left humerus, right wrist, sternum and right sub-clavicular (below the collarbone);
(f)right cheek swelling and left supra-orbital swelling (swelling around the eyesocket);
(g)multiple areas of abrasions including the neck, right wrist and forearm, right thumb and left forearm;
(h)a right rotator cuff tear with associated sub-acromial bursitis (severe shoulder pain cause by inflammation of the rotator cuff tendons), which could have led to reduced movement of the shoulder; and
(i)post-traumatic stress disorder.
In her victim impact statement, the victim explained that she had been terrified of the stranger who had tried to rape her and threatened to kill her if she reported him to the police; that she had been terrified that he would rape her daughter or hurt her son if she passed out; and that she was scared that he will come back and hurt her again. The physical injuries she sustained amounted to serious harm. (The serious harm consisted of the facial cellulitis and the right rotator cuff tear.)
The appeal
On 10 March 2022 the then Acting Director of Public Prosecutions filed a notice of appeal against the sentence imposed on the respondent. The appeal is brought as of right pursuant to s 414(1)(c) of the Criminal Code Act 1983 (NT) (“Criminal Code”).
The sole ground of appeal in this matter is that the sentence imposed by the learned sentencing judge was manifestly inadequate in all the circumstances. To support this ground of appeal, the appellant relied on a number of particulars, namely:
(a)Particular (i): the learned sentencing judge erred in her assessment of the objective seriousness of the offending;
(b)Particular (ii): the learned sentencing judge failed to have sufficient regard to the need for greater accumulation; and
(c)Particular (iii): the overall sentence imposed (including the non-parole period) failed to reflect the gravity of the offending.
Principles governing Crown appeals against sentence
The principles governing Crown appeals against sentence are not in dispute.[20]
(a)Crown appeals against sentence should be a rarity brought only to establish some matter of principle.[21]
(b)Manifest inadequacy in a sentence amounts to such an error of principle which the Crown is entitled to have the appeal court correct.[22]
(c)The presumption is that there is no error in any sentence passed by the court below. It is incumbent upon the Crown to show that the sentence was clearly and obviously, and not just arguably, inadequate; that is to say, it must be shown that the sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.[23]
(d)The principles in House v The King[24] remain applicable to the determination of manifest inadequacy:
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[25]
(e)The principle expressed by King CJ in The Queen v Osenkowski,[26] also remains applicable:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[27]
(f)Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be resentenced.[28]
(g)However, in exercising its discretion on an appeal against sentence with respect to an indictable offence, the Court must not take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence.[29]
The sentencing remarks
After reciting a summary of the facts, the sentencing Judge spoke about the respondent’s personal background, noting that he was born in Kununurra and spent most of his life there until 2016. His mother is reported to have consumed significant amounts of alcohol when pregnant with him and while he was an infant. His parents were violent alcoholics. His father spent time in custody. His mother was violently killed when he was in custody at the age of 17. The respondent spent the bulk of the period between the ages of 12 to 18 in detention, spending only short periods of time in the community, generally before re-offending and returning to detention. He abused alcohol between the ages of 14 and about 15 or 16 and began using methamphetamine at around age 14.
.Her Honour then spoke about the matters in mitigation and the objective seriousness of the offending:
In mitigation, you were holding the scissors, but did not use them as a weapon or to inflict harm on the victim. The sexual offending did not involve ejaculation into or on the victim, and the sexual offending was impulsive and unsophisticated. It did not involve any significant planning on your part. I also note that the physical harm suffered by the victim was not life‑threatening and that the property stolen had a value of $70.
In terms of seriousness, I consider the offending in counts 1, 2, 7, 8 and 10 falls at the mid‑range, the offending in counts 3, 4, 5 and 6 falls at the lower end of the mid‑range, and the offending in count 9 falls at the lower end for each kind of offending.[30]

The sentencing Judge then spoke about the respondent’s criminal history and the need to protect the community saying:
You have a significant criminal history, which includes unlawful entry offending and acts of violence, however, the sexual offending constitutes an escalation in your offending history. You are not entitled to lenience as a first offender, and your history shows that you have not learned from the leniency and the punishments given to you in the past. I will address these matters further when I refer to the expert reports I have received.
I also need to take into account the need to protect the Territory community from your actions and the risk that you might reoffend in a violent way in the future.[31] [emphasis added]

The sentencing Judge then referred to a neuropsychological report and psychiatric report. Her Honour accepted Associate Professor Carroll’s opinions that the respondent does not have Foetal Alcohol Syndrome Disorder (FASD), but does have neurocognitive impairments, a personality disorder, and a substance abuse disorder, which all contributed to his impaired mental functioning that was a causal factor in the offending. Her Honour referred to Verdins and found that the respondent’s mental impairments affected his ability to exercise appropriate judgement and contributed causally to the commission of the offences to a significant degree.
In relation to the matters of mitigation, her Honour came to the conclusion that mitigation was significant but not substantial:
… I accept that the neurocognitive deficits and mental health disorders I have referred to mitigate your moral culpability for the offending, particularly your ability to be held accountable for it, and consequently reduce the weight attributable to general deterrence, moderate the weight attributable to specific deterrence, given your difficulties understanding consequences and to learn from past behaviours, and impact the balancing exercise as between your needs, the rights of the victim and the interests of the community. In my view, that mitigation is significant but not substantial.[32] [emphasis added]
The sentencing Judge assessed the respondent’s prospects of rehabilitation as being poor.
As to your prospects of rehabilitation, Dr Fitzgerald said that you will be highly unlikely to comply with a non‑custodial sentence which requires reporting and conditions without significant support. She also said you do not have the capacity to truly reflect on the impact of your actions on the victim and the community, so rehabilitation in the form of attitudinal reform is not likely to be successful. The report refers to the need for an environment and supports on release “to act as your frontal lobes to compensate for your compromised brain function”.
At 26, you are a relatively young man, which enhances your prospects of rehabilitation. However, your criminal history, cognitive impairments and mental health disorders, and the consequent substantial support you would require on release mean that the Parole Board will be in a better position to assess your prospects of rehabilitation after you have served the minimum appropriate term of imprisonment.
It was put to me that you are unlikely to be released on parole because you will be unable to show the board that you can do the things necessary for your release, at least without substantial NDIS‑funded support. If you are not legally assisted, that may be accepted, but the expectation is that you would be legally assisted to apply for parole, and the hope is that such supports can be sought and obtained on your behalf.
In light of your age, your criminal history, including your history of non‑compliance with conditions of bail, and your cognitive impairments and mental health disorders, I have considerable concerns about your prospects of rehabilitation, which can only be assessed as poor at this stage, but I accept that they are not exhausted.[33] [emphasis added]
Her Honour then imposed the following sentences:
Count 1 (aggravated unlawful entry) - 2 years;
Count 2 (aggravated assault) 12 months wholly concurrent with the sentence on count 1;
(sub-total 2 years)
Count 3 (attempted sexual intercourse without consent) - 2 years and 5 months wholly concurrent with the sentences on counts 1 and 2;
(sub-total 2 years and 5 months)
Count 4 (sexual intercourse without consent) - 3 years and 7 months wholly concurrent with the sentences on counts 1, 2 and 3;
(sub-total 3 years and 7 months)
Count 5 (aggravated attempted sexual intercourse without consent) - 2 years and 10 months, eight months of which is cumulative on the sentence on count 4
(sub-total 4 years and 3 months)
Count 6 (sexual intercourse without consent (fellatio)) - 3 years and 7 months, nine months cumulative with the sentence on count 6
(sub-total 5 years)
Count 7 (deprivation of liberty) - 1 year and 2 months, nine months cumulative on count 6
(sub-total 5 years and 9 months)
Count 8 (make a threat to kill) - 1 year and 2 months, 3 months cumulative on count 7
(sub-total 6 years)
Count 9 (stealing) 6 months wholly concurrent with the sentence on count 8
(sub-total 6 years)
Count 10 (unlawfully cause serious harm) - 2 years and 5 months, 1 year cumulative on count 8
(total 7 years)
Her Honour fixed a non-parole period of 4 years.
Submissions
Particular (i): The learned sentencing judge erred in her assessment of the objective seriousness of the offending.
The learned sentencing judge made the following findings of where, in the scale of seriousness, the offences fell.[34]
·     Count 1: mid-range
·     Count 2: mid-range
·     Count 3: low-mid range
·     Count 4: low-mid range
·     Count 5: low mid-range
·     Count 6: low mid-range
·     Count 7: mid-range
·     Count 8: mid- range
·     Count 9: low
·     Count 10: mid-range
The appellant takes issue with the findings made in respect of counts 1, 2, 3, 4, 5 and 6 as not being open to her Honour in light of the various factors which elevated the seriousness for each of the nominated counts.
Count 1 was a home invasion which occurred at night. The respondent knew there was a woman present inside: he saw the victim prior to entering her home.[35] The respondent went into the unit with the serious intention of robbing the occupant or occupants and, while inside, developed and carried out the serious intention of sexually assaulting the victim. The respondent was armed, and the offending inside the unit involved serious acts of violence. There were children at home at the time, one of whom was exposed to the trauma of hearing and seeing her mother, without pants on, bleeding and in distress. The offending was not short in duration. The victim was startled by a man in her house who was armed and concealing his face, which was a terrifying experience for her. Such fear was well placed given what the respondent went on to do to her. The respondent’s entering of the house at night time was planned and intentional, as conceded in the agreed facts. The appellant submits that the offending for count 1 fell well above the mid-range for this type of offence. The presence of so many aggravating features, and the sheer gravity of what occurred, is not consistent with a finding that the offence fell within the mid-range. The appellant makes the same submission in respect of count 2, the aggravated assault, which was prolonged and serious, and occurred in the victim’s home.
In respect of counts 3, 4, 5 and 6, the appellant submits that the finding by the trial judge that the offending fell within the low mid-range of such offending, was not open to her Honour on the facts. The offending in these four counts was elevated by virtue of a number of factors including that:
(a)the offending occurred inside the victim’s home, while her infant children were asleep nearby;
(b)the victim had no warning of the horrific events that were about to occur;
(c)the victim was deprived of her liberty in her home throughout the ordeal;
(d)the offending occurred whilst the respondent was armed;
(e)the respondent assaulted the victim both before and after he engaged in the various acts of sexual intercourse/attempted sexual intercourse with her, doing so every time she tried to resist him or escape him during the sexual assault;
(f)the respondent had actual knowledge (as opposed to recklessness) of the victim’s lack of consent to sexual intercourse;
(g)the acts inflicted on the victim were demeaning in nature; (On the attempt sexual intercourse charges the respondent wrapped his penis in part of a Woolworth’s plastic bag before he attempted to penetrate the victim’s vagina. On the digital penetration charge, the respondent continued to assault the victim despite observing that she was bleeding. On the charge of fellatio, the respondent forcefully held the victim’s head after demanding, “Suck my dick.”)
(h)the acts in question were not fleeting, but were part of a prolonged and sustained attack;
(i)the respondent left the victim in a degrading position after the sexual assaults;
(j)the respondent threatened to kill the victim if she contacted police before leaving her home;
(k)the respondent’s conduct has had a significant and ongoing detrimental impact on the life of the victim and her young children;
(l)the victim was vulnerable, in her own home and with her children asleep nearby; (She was placed in an unimaginable situation of having to decide whether to seek her children’s help and potentially expose them to violence and the trauma of seeing her in that state.) and
(m)the injuries occasioned were significant.
The learned sentencing judge[36] relied on a number of matters in mitigation of the offending, such as that the respondent did not use the scissors to inflict harm on the victim and further that he did not use them as a weapon,[37] and that the physical harm was not life-threatening. As this Court found in The Queen v Kahu-Leedie, the absence of an aggravating feature is not a mitigating feature.[38]
The appellant contends that the absence of other extremely serious factors should not have mitigated the seriousness of the subject offending, particularly when attention is paid to the seriousness of those factors which are said to elevate the subject offending. Not every horrific factor or combination of factors must be present for the offending to be regarded as extremely serious or in the very high range of seriousness for this kind of offending.[39]
While conceding that the offending was “undoubtedly serious”, the respondent submits that, although there were ten individual offences, the sentencing judge correctly characterised them as forming part of a single episode of offending. In those circumstances, the respondent contends, “care must be taken as to what emphasis is placed on the learned sentencing judge’s remarks in characterising the seriousness of each individual offence”. Rather “it is the overall context and interdependence of the offences that elevates the seriousness of the offending.”
The respondent contends that the sentencing judge correctly and expressly took into account the factors that rendered the offending serious including that:
(a)the victim was in her own home where she was entitled to feel safe and free from intrusion and attack;
(b)the offending in count 1 was premeditated and deliberate and involved the use of a weapon;
(c)the offending involved the respondent physically overpowering the victim, knowing that she was resisting;
(d)the victim’s will was overborne and any apparent submission in relation to count 6 was out of fear rather than submission;
(e)the acts of penetration were degrading and demeaning;
(f)the acts of violence were “sustained, brutal and terrifying” and led the victim, in the end, to call for help from her 10 year old daughter;
(g)the threat to kill was terrifying and real to the victim; and
(h)the victim suffered numerous physical injuries and continued to require physical therapy, occupational therapy and trauma counselling.
The respondent concedes that it was incorrect for the sentencing judge to refer to some matters (such as the failure to use the knife) as “in mitigation”, but contends that they were matters which qualified the seriousness of the offending and were properly taken into account as relevant to the assessment of where on the scale the offending lies. The respondent submits that a fair reading of the sentencing remarks as a whole indicates that the sentencing judge did not err in assessing the overall seriousness of the offending.
We disagree with those submissions by the respondent. The individual offences themselves were objectively serious. Count 1 was a serious example of unlawful entry; a home invasion at night. The respondent entered the unit armed and concealing his face intending to commit the serious offence of robbery, and proceeded to commit acts of serious violence. The respondent knew there was a woman present inside the unit. Children were also present and subjected to significant trauma. However, we do not accept the appellant’s contention that the individual charge of unlawful entry was made more serious by the sexual offending that followed. That was separate offending, and we accept the appellant’s submissions about the objective seriousness of counts 3, 4, 5 and 6.
We agree with the respondent’s contention that the sentencing judge was correct to characterise the individual offences as part of a single episode of offending, and so, to that extent, the critical characterisation was the seriousness of the offending as a whole. However, the total effective sentence of 7 years imposed was so disproportionate to the seriousness of the offending as a whole as to demonstrate error in principle in the characterisation of the seriousness of that episode of offending. This is in part due to the mischaracterisation of the seriousness of the individual offences in the manner contended by the appellant.
Particular (ii): The learned sentencing judge failed to have sufficient regard to the need for greater accumulation.
The appellant submits that the learned sentencing judge erred in the level of accumulation imposed. This particular focuses on counts 1, 2, 3 and 4, which her Honour made wholly concurrent on each other. The net effect of this was that the sentences for counts 1, 2 and 3 (the aggravated unlawful entry of a dwelling at night, armed with a weapon, with intent to commit a serious indictable offence; the aggravated assault; and the first attempted sexual intercourse without consent) were wholly subsumed into the sentence for count 4 (sexual intercourse without consent), for which a sentence of 3 years and 7 months was imposed. The appellant contends that the trial judge erred in directing total concurrence of these sentences and that the sentence imposed for the four offences was manifestly inadequate.
The respondent contends that the degree to which individual sentences are made concurrent is part of the wide sentencing discretion; that reasonable minds may differ as to the appropriate degree of accumulation; and that, often, there will be no clearly correct answer. The respondent accepts that multiple acts of sexual violence in one episode may call for a greater degree of accumulation but contends that, “[c]oncurrency may be appropriate because the crimes which gave rise to the offender’s convictions are so closely related and interdependent. What is necessarily required in every case is a sound discretionary judgment as to whether there should be cumulation or concurrency.”[40]
We agree with the appellant’s submissions. A sentence of 3 years and 7 months imprisonment for counts 1, 2, 3 and 4 together, is so plainly and obviously disproportionate to the gravity of those counts as to bespeak error. That is partly due to a mischaracterisation of the level of seriousness of the individual offences, partly due to a mischaracterisation of the offending as a whole and partly due to an undue degree of concurrency of the sentences for those four offences.
In particular, count 1, the armed home invasion at night with intent to commit robbery, should not have been made wholly concurrent with the sentences for the sexual offending that followed. It was a separate offence, differently motivated and intrinsically serious in its own right.
Particular (iii): The overall sentence imposed (including the non-parole period) failed to reflect the gravity of the offending.
The appellant takes issue with the overall sentence imposed and submits that when considering the seriousness of the offending and the need to protect the community from such offending, the sentence imposed was manifestly inadequate even after the Court gave full and appropriate weight to the matters in mitigation on behalf of the respondent.
While conceding that the sentence was lenient, the respondent contends that the total effective sentence imposed by the sentencing judge reflects an appropriate weight given to the respondent’s background and other matters in mitigation including Bugmy factors and the respondent’s neurocognitive deficits and mental health disorders, none of which were within his control. The respondent contends also, that in the circumstances it was open to the sentencing judge to show mercy, in the sense outlined in Osenkowski.[41]
We agree that the total effective sentence for these ten offences was clearly and obviously, and not just arguably, inadequate, even taking into account the mitigating factors referred to by the sentencing judge including the respondent’s mental illness and cognitive impairment. The sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle. Further, there is nothing in the sentencing remarks to suggest that the sentencing judge formed the view that leniency at that particular stage of the respondent’s life might lead to reform and that it was appropriate to show mercy in the sense spoken of by King CJ in Osenkowski.[42] To the contrary, her Honour assessed the respondent’s prospects of rehabilitation as poor.
The residual discretion
The principles involved in the application of the residual discretion have been considered by this Court in The Queen v Mossman,[43] The Queen v Kahu-Leedie,[44] and The Queen v EG.[45]
In Kahu-Leedie, the Court said:
Where a sentence has been found to be manifestly inadequate, this Court retains a residual discretion as to whether the respondent should be resentenced. In The Queen v Mossman, [[2017] NTCCA 6 at [16]-[17] per Grant CJ, Southwood and Hiley JJ] this Court cited with approval from The Queen v Wilson, [(2011) 30 NTLR 51 at [27] per Riley J] where the Court held that the Court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed, and that factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.[46] [emphasis added]
[140]In EG, the Court said:
The Crown bears the burden of negating any reason why the Court should exercise the residual discretion, and factors that support the exercise of the residual discretion will not be put aside lightly. The Court will be slow to intervene if there is a factor that might warrant the exercise of the residual discretion.[47]
Consideration of the exercise of the residual discretion
The respondent did not point to any factors which the respondent contended warranted the exercise of the residual discretion.
The appellant contends that the residual discretion ought not be exercised in this case. The respondent has not been released on parole and his release is not imminent; he does not become eligible for parole until 2024. The appellant contends that the maintenance of sentencing standards is itself an important point of principle and refers to the observations of Adamson J (with whom RA Hulme and Davies JJ agreed) in The Queen v O’Connor:[48]
Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion.
Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained ...”

We agree that the residual discretion to dismiss the appeal should not be exercised in this case. It is important that inadequate sentences are not permitted to stand that may undermine confidence in the administration of justice.[49] As this Court said in Mossman:[50]
The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.[51]
Before coming to the final conclusions expressed in our joint reasons, we considered the separate reasons to be given by Southwood J in a draft which his Honour helpfully provided. We note that our reasons and those of his Honour differ in emphasis but are very similar in material respects, and that we unanimously agree in relation to the Court’s proposed orders. Although it is not necessary to do so, we would record that we agree with the specific observations made by Southwood J at [51] – [52] of his Honour’s reasons in relation to the Crown’s reliance on the plurality decision in Pham.[52]
THE COURT:
Re-sentence
We re-sentence the respondent as follows.
·     The respondent is convicted of all 10 offences.
Unlawful entry
·     For count 1 (aggravated unlawful entry), the respondent is sentenced to 4 years’ imprisonment. The sentence is backdated to 2 April 2020 to reflect the time that the respondent has been in custody for these offences.
(Sub-total 4 years imprisonment)
Sexual offences
·     For count 4 (digital/vaginal sexual intercourse without consent), the respondent is sentenced to 5 years’ imprisonment. The sentence of imprisonment for count 4 is to be served wholly cumulatively on the sentence of imprisonment imposed for count 1.
·     For count 6 (fellatio without consent), the respondent is sentenced to 5 years’ imprisonment. Three months of the sentence imposed for count 6 is to be served cumulatively on the sentence imposed for count 4.
·     For count 5 (aggravated attempted penile/vaginal sexual intercourse), the sentence imposed by the sentencing Judge is confirmed and the respondent is sentenced to 2 years and 10 months’ imprisonment. Three months of the sentence imposed for count 5 is to be served cumulatively on the sentence imposed for count 6.
·     For count 3 (attempted penile/vaginal sexual intercourse) the sentence imposed by the sentencing Judge is confirmed and the respondent is sentenced to 2 years and 5 months’ imprisonment. The sentence imposed for count 3 is to be served wholly concurrently with the sentence imposed for count 5.
(Sub-total – 9 years and 6 months imprisonment)
Aggravated assault
·     For count 2 (aggravated assault), the respondent is sentenced to 2 years’ imprisonment. Six months of the sentence imposed for count 2 is to be served cumulatively on the sentence imposed for count 5.
(Sub-total – 10 years imprisonment)
Deprivation of liberty
·     For count 7 (deprivation of liberty), the respondent is sentenced to 1 year and 7 months’ imprisonment. Four months of the sentence imposed for count 7 is to be served cumulatively on the sentence imposed for count 2.
(Sub-total 10 years and 4 months imprisonment)
Threat to kill
·     For count 8 (threat to kill), the respondent is sentenced to 2 years’ imprisonment. Four months of the sentence imposed for count 8 is to be served cumulatively on the sentence imposed for count 7.
(Sub-total – 10 years and 8 months imprisonment)
Stealing
·     For count 9 (stealing), the respondent is sentenced to 12 months’ imprisonment. Four months of the sentence imposed for count 9 is to be served cumulatively on the sentence imposed for count 8.
(Sub-total 11 years imprisonment)
Serious harm
·     For count 10 (serious harm), the sentence imposed by the sentencing Judge is confirmed and the respondent is sentenced to 2 years and 5 months’ imprisonment. Nine months of the sentence imposed for count 10 is to be served cumulatively on the sentence imposed for count 9.
That gives a total sentence of 11 years and 9 months’ imprisonment. We fix a non-parole period of 7 years.
We have reduced each of the sentences that we otherwise would have imposed for counts 1, 2, 4, 6, 7, 8 and 9 by 20%, or thereabouts, due to the respondent’s guilty pleas.
Non-parole period
Counts 4 and 6 are subject to the 70% minimum non-parole period in s 55 of the Sentencing Act. The total effective sentence for those offences is 5 years 3 months. 70% of that = 44.1 months.
Section 54 requires a minimum non-parole period of 50% of the total sentence – ie 70.5 months. That is greater than 44.1 months.
We think that more than the minimum non-parole period is warranted. We are of the view that the minimum period of time that justice requires the respondent to serve is 7 years. We fix a non-parole period of 7 years.
ORDERS:
(1)The appeal is allowed.
(2)The respondent is resentenced to a total effective term of imprisonment for 11 years and 9 months made up as set out above with a non-parole period of 7 years.

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[1] The Queen v Hitanaya [2010] NTCCA 3 at [78]; The Queen v Mossman [2017] NTCCA 6 (“Mossman”) at [8]-[17].

[2] The following summary is taken from Arnott v Blitner [2020] NTSC 63 at [75].

[3] The Queen v Roe [2017] NTCCA 7 at [11]; cf The Queen v Wilson [2011] NTCCA 9 at [27] (a); See also Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at p 310.

[4]See also Everett v The Queen [1994] HCA 49; 181 CLR 295 at p 300.

[5]Whitlock v The Queen [2018] NTCCA 7 at [7]; See also The Queen v Simpson [2020] NTCCA 9.

[6][1936] HCA 40; 55 CLR 499.

[7]Supra at pp 504-505 per Dixon, Evatt and McTiernan JJ.

[8] The Queen v Tuuta [2014] NSWCCA 40 at [47].

[9] See also The Queen v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [29].

[10] Hili v The Queen (2010) 242 CLR 520.

[11] [2007] VSCA 102 (“Verdins”).

[12] [2022] NTCCA 4 (“Kahu-Leedie”) at [34].

[13] Ibid.

[14] [2015] HCA 39; (2015) 256 CLR 550 (“Pham”).

[15] Supra at [29].

[16] [2011] HCA 39, 244 CLR 120 (“Muldrock”).

[17] AB158.

[18] AB24.

[19] AB26.

[20]See Mossman at [8]-[18]. The following summary is taken verbatim from Arnott v Blitner [2020] NTSC 63 at [75] reproduced in The Queen vEG [2022] NTCCA 10 at [37].

[21] The Queen v Roe [2017] NTCCA 7 at [11]; cf The Queen v Wilson [2011] NTCCA 9 at [27] (a); See also Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at p 310.

[22]See also Everett v The Queen [1994] HCA 49; 181 CLR 295 at p 300.

[23]Whitlock v The Queen [2018] NTCCA 7; See also The Queen v Simpson [2020] NTCCA 9.

[24][1936] HCA 40; 55 CLR 499.

[25]Ibid at pp 504-505 per Dixon, Evatt and McTiernan JJ.

[26] (1982) 30 SASR 212 (“Osenkowski”).

[27] Osenkowski at pp 212-213.

[28] See also The Queen v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [29].

[29]Criminal Code, s 414(1A); The Queen v Wilson [2011] NTCCA 9 at [27].

[30]AB159.

[31] AB159.

[32] AB161.

[33]AB162.

[34] These assessments are taken from a ‘sentencing matrix’ the sentencing judge handed to counsel during her Honour’s remarks on sentence (AB163).

[35]AB23.

[36] AB159.

[37] The appellant casts doubt on this finding of fact given the circumstances of the offending, and that the respondent was armed with the scissors whilst he carried out his attack, but the finding should be accepted for the purpose of the appeal.

[38] Kahu-Leedie at [34].

[39] Supra.

[40] Carroll v The Queen [2011] NTCCA 6; 29 NTLR 106 at [42] to [44].

[41] (1982) 30 SASR 212.

[42]Ibid.

[43] Mossman at [17].

[44] Kahu-Leedie at [49]-[65].

[45] [2022] NTCCA 10 (“EG”) at [138] ff.

[46]Kahu-Leedie at [49] per Kelly, Blokland and Brownhill JJ.

[47]EG at [139].

[48] [2014] NSWCCA 53; 239 A Crim R 487 at [88]–[89].

[49]Everett v The Queen [1994] HCA 49; 181 CLR 295 at p 300.

[50][2017] NTCCA 6; See also The Queen v Riley [2006] NTCCA 10; (2006) 161 A Crim R 414.

[51]Everett v The Queen [1994] HCA 49; 181 CLR 295 at p 300. Mossman at [8] per Grant CJ, Southwood and Hiley JJ; see also Kahu-Leedie at [61]-[63].

[52]Pham at [29].