The King v CH

[2024] NTCCA 10

CITATION:The King v CH [2024] NTCCA 10

PARTIES:THE KING

v

CH

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

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 7 of 2023 (22127604)

DELIVERED:  8 November 2024

HEARING DATE:                   14 November 2023

JUDGMENT OF:  Grant CJ, Barr & Huntingford JJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy

Whether appeal incompetent – Statutory framework does not preclude appeal against ‘total effective sentence’ – Adequate particulars of sentences challenged in notice of appeal – Aggravated unlawful entry and rape involving youth offender and child victim – Whether sentence manifestly inadequate – Whether failure to take into account particular aspects of respondent’s criminal history – Whether failure to take into account relevant circumstances of offending – Sentence manifestly inadequate – Appeal allowed and respondent resentenced.

Criminal Code 1983 (NT) s 192, s 213, s 414

Supreme Court Rules 1987 (NT) r 82.05

Carroll v The Queen (2011) 29 NTLR 106, Craft v The Queen [2021] VSCA 66, DPP v Jones (2013) 40VR 267, DPP v Kazarisis (2010) 31 VR 636, DPP v Keller (a pseudonym) [2021] VSCA 334, Everett v The Queen (1994) 181 CLR 295, Forrest v The Queen (2017) 267 A Crim R 494, Gilligan v The Queen [2007] NTCCA 8, Griffiths v The Queen (1977) 137 CLR 293, House v The King (1936) 55 CLR 499, Kochai v R [2023] NSWCCA 116, Ludeman v The Queen (2010) 31 VR 606, Markarian v The Queen (2005) 228 CLR 357, Nguyen v The Queen (2006) 261 A Crim R 1, Noakes v The Queen [2015] NTCCA 7, R v Cage [2006] NSWCCA 304, R v Pham & Ly (1991) 55 A Crim R 128, R v Tennyson [2013] NTCCA 2, R v Walker [2023] NSWCCA 219, R & P Boland Nominees Pty Ltd v Hobbs [2013] VSCA 66, Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107, The King v Benning [2022] NTCCA 15, The Queen v Gurruwiwi [2019] NTCCA 23, The Queen v Kahu-Leedie [2022] NTCCA 4, The Queen v Mossman (2017) 40 NTLR 144, The Queen v Nabegeyo (2014) 34 NTLR 154, The Queen v Roe (2017) 40 NTLR 187, TM v R [2023] NSWCCA 185, Yeung v R [2018] NSWCCA 52, referred to.

REPRESENTATION:

Counsel
  Appellant:                    V Engel SC with D Jones
  Respondent:                 J Murphy with E Henke

Solicitors
  Appellant:                    Office of the Director of Public Prosecutions
  Respondent:                 North Australian Aboriginal Justice Agency

Judgment category classification:      B
Number of pages:     49

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

The King v CH [2024] NTCCA 10
CA 7 of 2023 (22127604)

BETWEEN:

THE KING
  Appellant

AND:

CH
  Respondent

CORAM:      GRANT CJ, BARR & HUNTINGFORD JJ

REASONS FOR JUDGMENT

(Delivered 8 November 2024)

THE COURT:

1. On 19 June 2023, the respondent was sentenced for one count of aggravated unlawful entry of a dwelling contrary to s 213(1), (4) and (5) of the Criminal Code 1983 (NT) (Count 1), and one count of sexual intercourse without consent contrary to s 192(3) of the Criminal Code (Count 2). This is an appeal against that sentence.

2. The maximum penalty applicable to the offence in Count 1 was imprisonment for 20 years, and that applicable to the offence in Count 2 was life imprisonment. After a discount of 25 percent was allowed in recognition of the respondent’s pleas of guilty, he was sentenced to 15 months’ imprisonment on Count 1 and three years’ imprisonment on Count 2. The sentence imposed in respect of Count 1 was ordered to be served cumulatively as to six months on the sentence imposed in respect of Count 2, such that the total sentence imposed was imprisonment for three years and six months. A non-parole period of 22 months was fixed. The accumulated sentences and the non-parole period were backdated to commence on 9 September 2021 to take into account time served prior to sentencing.

3. The non-parole period expired on 8 July 2023. The respondent was granted parole shortly after the hearing of this appeal and has been on conditional liberty since 27 December 2023, which was the day before his 18^th birthday. As a consequence of the grant of parole, he has not to this point in time spent any period in adult prison.

   Grounds of appeal

4. The Crown has appealed against the sentences imposed on the following grounds:

   (a)the learned sentencing judge erred in imposing an overall sentence that was manifestly inadequate, in terms of the individual sentences imposed, the total sentence and the non-parole period;

   (b)the learned sentencing judge erred in failing to take into account particular aspects of the respondent’s criminal history which were relevant to the sentencing exercise; and

   (c)the learned sentencing judge erred in failing to take into account relevant circumstances of the offending.

5. The Crown seeks orders that this Court quash the sentences imposed by the sentencing judge and impose such sentence as this Court considers warranted in law and which should have been passed at first instance.

   The competency of the appeal

6. The respondent has raised a preliminary issue in relation to the competency of the appeal. In reliance on a number of Victorian authorities, the respondent asserts that in order to exercise the right of appeal an appellant must commence proceedings in respect of an identified sentence. The respondent submits that the appellant has failed to identify the sentence (or sentences) that are subject to challenge, and has instead purported to be brought in respect of the ‘total effective sentence’, with the consequence that the appeal is incompetent.

7. In Ludeman v The Queen,[1] the court was concerned with applications by three offenders for leave to appeal against total effective sentences which had been derived by the fixing of individual sentences for two different offences with an order for cumulation. The statutory context involved a requirement for leave to appeal imposed by s 278 of the Criminal Procedure Act 2009 (Vic) in the following terms:

   A person sentenced for an offence by an originating court may appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gives the person leave to appeal.

8. Section 280 of the Criminal Procedure Act then provided that an application for leave to appeal under s 278 may be refused in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence. The term ‘sentence’ was defined by reference to orders made under Parts 3, 3A, 4 or 5 of the Sentencing Act 1991 (Vic), none of which comprehended the ‘total effective sentence’ or ‘head sentence’. The court concluded that this statutory structure strongly contraindicated the term ‘sentence’ being read to include a ‘total effective sentence’. Accordingly, the court found that the term ‘sentence’ in ss 278 and 280 of the Criminal Procedure Act extended to each individual sentence imposed and any consequential orders for cumulation or concurrency, together with any non-parole period fixed, but not what is commonly referred to as the ‘total effective sentence’.

9. The consequence of the particular statutory framework under consideration was that in an application for leave to appeal against sentence in a matter involving multiple offences, leave should only be granted in respect of any individual sentence which is arguably erroneous, together with any consequential order for cumulation or concurrency and any non-parole period.[2] That conclusion was drawn on the basis that the Criminal Procedure Act effectively required that any complaint about totality should be framed by reference to the individual sentences and any order for cumulation sought to be impugned. That was to afford any proposed ground of appeal a sufficient degree of specificity to better enable the judge to determine whether there was any reasonable prospect that a less severe sentence would be imposed, and thus whether leave should be granted.[3]

10. The practical implication of the distinction drawn in that case was that because as a matter of construction ‘the sentence’ did not extend to include the total effective sentence, the Court of Appeal was precluded from refusing leave to appeal even if it was of the view that no less severe total effective sentence would be imposed on appeal, notwithstanding that error was demonstrated in an individual sentence. Section 280 of the Criminal Procedure Act was subsequently amended to provide that the Court of Appeal may refuse an application for leave to appeal under s 278 in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence or reduce the ‘total effective sentence’.

11. The decision in Ludeman v The Queen was followed by DPP v Jones,[4] which concerned a Crown appeal on the ground of manifest inadequacy against a total effective sentence imposed across 16 counts of sexual offending. Counsel for the offender sought to raise the same preliminary point raised by the respondent in the present case concerning the competence of the appeal. The contention was that an appeal could only be made in relation to the individual sentences passed on each charge such that an appeal against the total effective sentence and orders for cumulation and concurrency was incompetent. The statutory context involved a Crown appeal by right conferred by s 287 of the Criminal Procedure Act ‘against a sentence imposed by an originating court … if the DPP considers that there is an error in the sentence imposed and that a different sentence should be imposed’.

12. The majority dismissed that objection to competency, allowed the appeal and resentenced the offender. In so doing, the court observed that although the term ‘total effective sentence’ remained conspicuously absent from Parts 3, 3A, 4 or 5 of the Sentencing Act, the term had always been used as a convenient description of the product of the individual sentences and orders for cumulation which a sentencing judge was by law authorised to order.[5] Although following the amendment to s 280 of the Criminal Procedure Act the term ‘sentence’ arguably included the ‘total effective sentence’, regardless of whether it did or not, an appeal against what was described as the ‘total effective sentence’ would not be incompetent so long as the individual sentences the subject of appeal were particularised.

13. That established practice was necessary in order to identify which sentences were sought to be impugned, and in order for the appellate court to understand whether it was error in the imposition of the individual sentences or the orders for cumulation or both which were the subject of the appeal against the ‘total effective sentence’.[6] In that particular case, the grounds of appeal were adequately particularised so as to make it clear that it was only the orders for cumulation which were challenged as producing a manifestly inadequate total sentence.[7]

14. Those cases were followed by the decision in DPP v Keller (a pseudonym),[8] which also involved a Crown appeal pursuant to s 287 of the Criminal Procedure Act on the ground of manifest inadequacy. The respondent challenged the competency of the appeal on the basis that the notice failed to identify the particulars sentence or sentences which were the subject of the appeal. The sentencing disposition under challenge in this case contained three separate sentences in respect of two individual counts and two counts which were dealt with by way of aggregate sentence. The notice of appeal made reference only to ‘the sentence’, and entirely failed to make any reference to the individual sentences or the orders for cumulation. For that reason, the formulation of the notice of appeal was held by the court to constitute a significant departure from the procedure prescribed by the relevant provisions of the Criminal Procedure Act for the filing of a notice of appeal by the Crown against sentence. It followed that the notice of appeal was invalid and the appeal was incompetent.[9]

15. Turning then to the present case and statutory context, s 414(1)(c) of the Criminal Code confers the relevant right of and power on appeal in the following terms:

    A Crown Law Officer may appeal to the Court … against any sentence with respect to an indictable offence … and the Court may, in its discretion … vary the sentence and impose such sentence … as the court thinks proper.

16. It is important to read that provision with reference to the definition of ‘sentence’ appearing in s 406 of the Criminal Code. It provides that for the purpose of the relevant Division:

    sentence includes any order made by the court of trial on a finding of guilt with reference to the person found guilty or his property.

17. Unlike the Victorian Criminal Procedure Act, the term ‘sentence’ is not defined by reference to limited or specific forms of order. In the Northern Territory provision there is no textual contraindication to reading the term ‘sentence’ to include a ‘total effective sentence’ or ‘head sentence’. Moreover, subrule 82.05(2)(e) of the Supreme Court Rules 1987 (NT) expressly contemplates that an appeal under s 414(1) of the Criminal Code may be brought from the whole or part only of the decision. Even were that not so, the Notice of Appeal in the present case includes the following relevant particulars:

    (a)‘The appellant appeals against the whole of the sentence imposed … whereby the respondent was convicted of’ aggravated unlawful entry of a dwelling and sexual intercourse without consent.

    (b)‘The respondent was sentenced to a total effective period of detention of 3 years and 6 months, with a non-parole period of 22 months.’

    (c)‘The learned sentencing judge erred in imposing an overall sentence that was manifestly inadequate, in terms of the individual sentences imposed, the total sentence and the non-parole period.’

    (d)‘That the Court quash the sentences and substitute such sentences which in the opinion of the Court are warranted in law and should have been passed.’

18. The respondent’s contention in relation to the incompetence of the appeal is entirely without merit. First, s 414(1)(c) of the Criminal Code permits an appeal ‘against any sentence with respect to an indictable offence’ whether in respect of the whole or part only of the sentence, and there is no requirement by either express words or necessary implication that an appeal be framed by reference to individual sentences where the sentencing exercise covers multiple counts. Second, and even were that not so, the notice of appeal particularises that the challenge is brought in respect of each individual sentence, the total sentence after cumulation and the non-parole period.

    The objective circumstances of the offending

19. The facts of the offending are set out in the sentencing remarks of the sentencing judge as follows:[10]

    On the evening of Wednesday 8 September 2021 the victim, AD, then aged 8 years and 8 months, was at home with her mother, HB, and her younger sister, SD, then aged 5 years at their home [redacted] in Woodroffe. The house is a ground floor single level three-bedroom house. The victim's bedroom is closest to both the front and back doors. Both the victim and her younger sister went to bed at about 9:30 pm, with the victim going to sleep in her own room, while the younger sister went to sleep in her mother's room. HB went to bed at about 1:30 am on 9 September 2021, placing her mobile phone on the left of where she slept on the bed next to her pillow. She left her bedroom door open and the laundry light on before falling asleep. HB routinely left her bedroom door open, as the victim would sometimes come in during the night to sleep with her.

    At about 3 am on 9 September 2021 you unlawfully entered the victim's home by unlocking the rear security door leading into the laundry. You were aged 15 years and 8 months at the time. You lived on the same street as the victim and her family but you were unknown to them.

    Once inside, you entered the room of HB, where she and her youngest daughter were sleeping. You began to search the room before locating HB’s mobile phone next to her pillow. You left the room with the phone, closing the bedroom door behind you. HB and her youngest daughter remained asleep.

    You proceeded to the victim's bedroom, where she was sleeping alone. The victim woke to you in the doorway of her bedroom, noticing the shadow. Believing it to be her mother, she tried to go back to sleep. You put your mobile phone and HB’s mobile phone on the floor next to the victim's bed before removing your pants, placing them on the floor and climbing into the victim's bed. The victim initially woke to you by her bedside, noticing a figure wearing a baseball cap and standing over her head. She again believed that this was her mother, although she did think that this was a bit strange, and closed her eyes again.

    Once inside of the victim's bed, you rolled the victim onto her back and removed her shorts and underpants before placing them onto the floor next to the bed. You then pulled the victim's legs apart, holding them wide before you started rubbing your penis on her vagina and anus. You then engaged in cunnilingus and penile-vaginal intercourse, as well as penile-anal intercourse with the victim. The victim eventually kicked out at you, striking you in the jaw. She saw what appeared to be blood on your teeth and mouth, a drop of what appeared to be blood fell on her leg. She wiped the blood off her leg with her shirt and then got off the bed completely.

    You jumped off the bed before grabbing your shorts from the floor. The victim called out to her mother. She then turned the bedroom light on and saw you covering your genitals with your clothes. The victim said to you, “You gotta not do that again to me. That's inappropriate.” You ran out the rear door and the victim went in to alert her mother. The victim attempted to put her shorts back on, and she told her mother that it was an emergency and explained what you had done. HB called the police and located your mobile phone, together with her mobile phone on the floor of the victim's bedroom.

    Police later spoke to you, and you lied to them, telling them that you had lost your phone approximately two days earlier. An examination of the phone showed that your then-girlfriend had spoken to you on that phone at 2:21 am on the morning of the offending. It is abundantly clear that you were in possession of the phone shortly before these offences occurred. You telephoned your then-girlfriend using your mother's phone at about 3:15 am on the morning of the offending, telling her in a recorded message that you had lost your own mobile phone.

    Forensic analysis of the underpants of the victim revealed a match to you. Your DNA was located on the inside crotch, inside right side of the waistband and inside left side of the waistband of the complainant's underpants. You were arrested on 9 September 2021 and declined to participate in a record of interview.

20. The sentencing judge found that the offending conduct had a deleterious effects on both the victim and her mother. The victim was frightened and nauseous throughout the incident and in its aftermath. The family moved from their home because of the incident. At the time of sentencing, the victim remained scared to sleep by herself and slept in the same room as her mother. The victim had become socially withdrawn, was reluctant to attend school and felt frightened when in the presence of boys.

    The subjective circumstances of the offender

21. The sentencing remarks deal at some length with the respondent’s personal circumstances, including his medical history and various psychological assessments. The respondent had an upbringing which was characterised by dysfunction and disadvantage. He was one of four children and was the subject of many child protection notifications commencing from when he was five years of age. Those notifications related to such matters as exposure to domestic violence, physical abuse by his parents, exposure to his parents' substance abuse, neglect, personal substance abuse and exploitation by his family to sell drugs on their behalf from an early age.[11] A number of those reports were substantiated, and as a consequence the respondent was removed from his parents and placed into care for two periods in 2011/2012 and 2015/16. During those periods the respondent frequently absconded from his foster care placements. The sentencing judge also noted that the respondent had not engaged well with education and had a poor attendance record prior to his incarceration for the subject offending.[12]

1. So far as the respondent’s medical history is concerned, he was diagnosed at the age of 11 with Conduct Disorder and Oppositional Defiance Disorder. He was diagnosed at the age of 12 with Foetal Alcohol Spectrum Disorder, with significant impairments in areas of language, executive function and brain structure. As a consequence of those conditions, the respondent experienced communication difficulties in childhood which were described by a speech pathologist as ‘severely unintelligible speech, some delay in receptive language skills and significantly delayed expressive language and phonological awareness skills’. The severity of that condition was such as to impact adversely on the respondent’s ability to interact with others and to cope with a classroom environment. In 2022, the respondent was assessed as having a moderate to severe impairment in his receptive, expressive and social language abilities.[13]

2. During the course of the sentencing proceedings, the court at first instance received a neuropsychological assessment report in relation to the respondent. During the course of the assessment which formed the basis of that report, the respondent claimed to have no memory of the offending conduct and attributed his lack of memory to intoxication by alcohol and cannabis. The sentencing judge gave these assertions little weight, as there was no evidence supporting the proposition that the respondent was significantly affected by alcohol or cannabis at the time of the offences.[14]

3. The sentencing judge noted that although the respondent had reported that he ‘felt bad about the offences’, the neuropsychologist was of the view that the respondents ‘feelings of remorse were limited, superficial and inwardly focused’, which was likely to be ‘a reflection of [the respondent’s] limited insight and low cognitive functioning’. The sentencing judge accepted that as a result of the respondent’s intellectual deficits he was probably incapable of fully feeling and expressing remorse for his actions.[15]

4. The sentencing judge noted the neuropsychologist’s findings and opinion that the respondent's Foetal Alcohol Spectrum Disorder significantly impaired his ability to engage in effective information processing, reasoning and judgement. The respondent was also less able to think through his decision-making processes and engage in self-regulation, and had an impaired ability to think in abstract terms and consider the consequences of his actions. The respondent also had a limited social intelligence, making it difficult for him to understand the intentions, emotions, feelings and motivations of others, and leaving him vulnerable to social exploitation and limiting his understanding of ethical and moral issues related to his offending behaviours.[16]

5. The sentencing judge accepted that the respondent’s history of emotional and behavioral dysregulation since childhood had led to unstable attachments and connections with antisocial peers. The exposure to violence and substance abuse had normalized the respondent’s offending behaviours in his own conception, and desensitized him to the antisocial nature of his crimes.[17] Those matters went some way to explaining the respondent’s criminal history, which included previous findings of guilt for offences of dishonesty, possession of a trafficable quantity of dangerous drugs and failing to comply with court orders. His youth notwithstanding, that history was found by the sentencing judge to disentitle the respondent to any leniency in sentencing for the subject offences.[18]

6. When taken together with the subject offending, that history also operated to elevate the importance of community protection in the sentencing exercise. The sentencing judge balanced that purpose of community protection against the mitigating effect of the respondent’s disadvantaged and dysfunctional circumstances in the following terms:[19]

   There can be no doubt that your history of exposure to neglect, violence and substance abuse, as well as the instability which characterised your developmental years, significantly reduces your moral culpability for the present offences. In addition, your [Foetal Alcohol Spectrum Disorder] also reduces your moral culpability. These factors warrant the reduction of general deterrence as a sentencing consideration and also warrant the moderation of specific deterrence. On the other hand, your current disabilities and deficits mean that you present as a significant risk to the community, and you are likely to continue to be a risk to the community into the foreseeable future. It is yet to be demonstrated that you are willing to accept the necessary changes to your life, spoken of by [the neuropsychologist], particularly outside the custodial environment.

7. In striking the appropriate balance, the sentencing judge determined that the respondent’s prospects of rehabilitation and transition back into the community were better facilitated in a custodial setting and by the imposition of a non-parole period. For that reason, the sentencing judge concluded that although it ‘would be undesirable for [the respondent] to have to serve a period in an adult prison … it is equally undesirable that [the respondent] be released without the appropriate measures being put in place to ensure the safety of the community’.[20] That observation reflected the fact that the term of the head sentence fixed extended beyond the respondent’s 18^th birthday.

   Principles relating to Crown appeals

8. The principles which govern Crown appeals against sentence are well established. Such appeals should be brought only to establish some matter of principle and to afford the Court of Criminal Appeal an opportunity to lay down principles for the guidance of courts in sentencing offenders.[21] 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.[22]

9. A Crown appeal against sentence is governed by the principles enunciated in House v The King.[23] In the event that some error has been made in the exercise of the discretion, such as acting on a wrong principle, taking irrelevant matters into account, acting on a mistaken understanding of the facts or failing to take into account some material consideration, the appellate court may exercise its own discretion in substitution. In circumstances where no specific error is evident, but the sentence imposed is unreasonable or plainly unjust, the appellate court may infer that the sentencing discretion has miscarried even in the absence of discernible error. However, in such a case it must be shown that the sentence was clearly and obviously, and not just arguably, inadequate. It must be shown that the sentence is so disproportionate to the seriousness of the offending as to demonstrate error in principle.[24]

10. Even where manifest inadequacy is found, the appellate court retains a residual discretion as to whether the appeal should be allowed and the respondent resentenced. In the exercise of the residual discretion the Court must not take into account any element of double jeopardy in making the decision whether to allow the appeal or impose another sentence.[25]

    Failure to take into account relevant considerations

11. It is convenient to deal first with the second and third grounds of appeal, which are that the sentencing judge failed to take into account particular aspects of the respondent’s criminal history which were relevant to the sentencing exercise; and that the sentencing judge erred in failing to take into account relevant circumstances of the offending.

12. The sentencing judge’s reference to the respondent’s criminal history was in the following terms:[26]

    You have a criminal history which disentitles you to any leniency in sentencing for the present offences. You are recorded for offences of dishonesty, possession of a trafficable quantity of dangerous drugs and failing to comply with court orders.

13. In its full scope, the respondent’s prior criminal history[27] included findings of guilt for 22 counts of stealing, 20 counts of property damage, 20 counts of aggravated unlawful entry, five counts of breach of bail, three counts of trespassing on prescribed or enclosed premises, aggravated assault, assaulting a police officer, receiving stolen property, unlawfully possessing property and possessing less than a trafficable quantity of cannabis. Those offences had been committed with obvious repetition and regularity over a three-year period between June 2018 and May 2021, and almost all were committed while the respondent was on various forms of orders suspending sentence and notionally subject to supervision.

14. The appellant asserts that no reference was made in the sentencing remarks to the respondent’s appalling history of prior offending for aggravated unlawful entries in circumstances where he stood to be sentenced for yet another aggravated unlawful entry which was attended by a serious escalation in this criminal conduct. The Crown had made sentencing submissions in relation to the risk presented by the respondent’s entirely unregulated course of offending, and the appellant submits that those submissions were ignored and that the risk of recidivism was not properly taken into account in the sentencing exercise, thereby constituting error.[28]

15. In the appellant’s submission, the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders should necessarily be moderated where, as in this case, the offender has conducted him or herself in the way an adult might and has committed a crime of violence and considerable gravity.[29] As Lee CJ at CL observed in R v Pham & Ly:[30]

    It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. … [N]otwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.

16. In the appellant’s submission, the respondent’s previous history of aggravated unlawful entries, when taken together with the subject offending, necessitated a sentence which gave primacy to the sentencing purposes of punishment, deterrence and community protection, and which recognized that his rehabilitation was not the paramount sentencing purpose. Although the appellant recognized and conceded that rehabilitation remained an important consideration in the sentencing exercise, it submitted that the failure to make meaningful reference to the respondent’s criminal history in the sentencing remarks, when taken together with the leniency of the sentence that was imposed, indicates a failure to take that criminal history into account.

17. In the ground asserting that the sentencing judge failed to take into account relevant circumstances of the offending, the appellant draws attention to the brief assessment of the seriousness of the offence set out at the end of the sentencing remarks, and to what is said to be the sentencing judge’s partial recitation of the agreed facts.[31] The sentencing judge’s summary of the facts of the offending has already been extracted above. In terms of the assessment of seriousness, the sentencing judge said only:[32]

    The present offences call for significant periods of imprisonment. In particular, the offence of sexual intercourse without consent was a particularly serious offence of that type.

    …

    The seriousness of the present offences justifies the imposition of convictions.

18. Those parts of the Agreed Facts which the respondent says were excluded from consideration, or at least excluded from the recitation of facts in the sentencing remarks, were as follows:[33]

    The [respondent] then pulled the victim’s legs apart, holding them out wide before he started rubbing his penis on her vagina and anus which made her feel “weird”.

    The [respondent] manoeuvred the victim’s body and she felt like something was going in, and like he was licking her. He licked her on both the outside and inside of her vagina. It felt “unappropriate (sic)” and “weird” to the victim.

    The [respondent] then inserted his penis into the victim’s vagina and after a little while she attempted to roll onto her side, away from him. The victim felt the [respondent’s] penis go “deep” inside her vagina. She described it as him putting his doodle into her “wee wee part”, and that it felt “really weird” in her vagina when the [respondent] would insert his penis inside it.

    The [respondent] then rolled the victim over so that she was lying face down on her bed. He lifted her bottom in the air so he was able to insert his penis into her anus. The [respondent] moved his penis in and out of the victim’s anus, which felt to the victim like a “wiggly” motion in and out, and that he was in the “middle” of her bum. Each time the victim would try to roll away from the [respondent] to resist, he would roll her body back onto the bed, keep her on the bed and continue to insert his penis into her anus. The victim did not like what the [respondent] was doing to her and she felt weird and gross.

19. That sequence of events described in the Agreed Facts, which the appellant says were integral to the nature and seriousness of the sexual offending, were summarised in the sentencing remarks in the following terms:[34]

    You then engaged in cunnilingus and penile-vaginal intercourse, as well as penile-anal intercourse with the victim.

20. The appellant says that describing the offending conduct in such reductive terms made it unclear if the sentencing judge took into account highly relevant features of the offending, such as the immediate impact on the victim, her active resistance, the respondent’s continued persistence and other aggravating factors which properly affected the court’s assessment of the objective seriousness of the offending. In the appellant’s submission, the sentencing judge was obliged to identify all the factors which were relevant to the sentence, discuss their significance and make a value judgement as to the appropriate sentence given all the factors of the case.[35] The sentencing remarks which record that process should possess the transparency that would allow the parties, the general community and an appellate court to understand how it was that the sentencing judge arrived at the final result.[36]

21. In the assessment of these contentions there is a necessary distinction to be drawn between a failure to take a relevant consideration into account and a complaint that certain matters were underplayed or accorded insufficient weight in the sentencing calculus. By way of example, the appellant’s contention in relation to the relevant circumstances of the offending requires the appellate court to draw an inference that the facts and circumstances described in the three paragraphs from the Agreed Facts which are extracted above were not taken into account. One competing inference is that the Agreed Facts had been received into evidence, the content of those paragraphs clearly formed the objective circumstances of the offending for sentencing purposes, and the sentencing judge approached the delivery of the sentencing remarks with a degree of circumspection given the graphic nature of the conduct described in those paragraphs.

22. It is well-established that the mere failure to mention a specific matter in sentencing reasons does not of itself imply that it has been overlooked or disregarded in error.[37] That is because sentencing remarks must be given with dispatch and as briefly as possible, with the dual consequence that they are often not as robustly structured or precise as written reasons and are not to be parsed and analysed with undue rigour.[38] A sentencing judge is not obliged to advert specifically to every matter considered in composing a sentence, and matters which are obvious may not need to be restated.[39] Facts which have been agreed between the parties may, depending upon the circumstances, fall into that latter category. In the present case, it may be that the sentencing judge did not review the objective circumstances of the offending or the respondent’s criminal history in detail because those matters were uncontroversial in the sense that the respondent had pleaded guilty to the offending on the basis of those facts and accepting the accuracy of the criminal history disclosed in the Information for Courts.

23. It may be accepted that a bare recitation of the facts constituting the offences and a reference to the objective features of the offending does not satisfy the requirements of sentencing. While it is not necessary to undertake a mathematical or prescriptive approach to sentencing, a sentencing judge must make an assessment of the objective gravity of the offences. One of the reasons for that requirement is to ensure that the offender is adequately punished for the offence.[40] However, in undertaking that task it is unnecessary for a sentencing judge to attach a specific label to the objective seriousness of the offence in terms of where it might sit on a range of the scale.[41] Although brief, the sentencing judge’s finding that this was a particularly serious offence of sexual intercourse without consent, and that the seriousness of the offending required the imposition of convictions, was sufficient to satisfy that requirement. There was no particular dispute between the parties concerning the objective seriousness of the offending which required more.[42]

24. Although the sentencing judge’s reference to ‘past dishonesty offending’ was a very short hand description of the offender’s history of aggravated unlawful entry and stealing, it is difficult to conclude on that basis alone that the sentencing judge failed to take into account the scope and extent of that offending. To the contrary, the finding that the respondent’s prior criminal history ‘disentitled [him] to any leniency in sentencing’, in the context of a sentencing exercise involving a 15 year-old offender, suggests that the sentencing judge was well aware of both the extent of the offending and its consequences. For that reason, the appellant’s complaint in that respect can only be that the sentencing judge did not attribute sufficient weight to that prior criminal history, or that its significance was obscured by the attribution of inordinate weight to the respondent’s subjective personal circumstances.

25. Both of these grounds of appeal resolve to the contention that the sentencing judge failed to give sufficient weight to a number of matters (and perhaps gave excessive weight to others). As this Court has previously observed, any contention that the sentencing court has accorded inadequate or excessive weight to a factor is properly viewed as a particular of the assertion of manifest inadequacy (or excess as the case may be).[43] Beyond any inferences which might be drawn from the ultimate determination of whether the sentence was either within or without the available range, it is neither possible nor necessary for an appeal court to reach any particular conclusion concerning the allocation of weight to a factor. 

    Manifest inadequacy

26. For those reasons, the operative ground of appeal is that the sentence was manifestly inadequate in terms of the individual sentences imposed, the total sentence and the non-parole period. The appellant’s contentions in that respect are largely encompassed in the preceding discussion concerning the subsidiary grounds of appeal. The central contention is that both sentences and the non-parole period fixed were manifestly inadequate having regard to:

    (a)the respondent’s criminal history and risk of recidivism;

    (b)the aggravating circumstances of the offending in count 1;

    (c)the number of victims present in the dwelling house and affected by the offending in count 1;

    (d)the prevalence of that category of offending involving aggravated unlawful entry to dwellings at night-time, into which the offending in count 1 fell;

    (e)the circumstances of the offending in count 2, and in particular the nature of the intercourse described in the Agreed Facts;

    (f)the fact that the victim of the offending in count 2 was a child and especially vulnerable;

    (g)the offending in count 2 involved a degree of deprivation of liberty;

    (h)the impact of the offending conduct in count 2 on the victim, her mother and her sister;

    (i)the risk of disease to which the offending conduct in count 2 gave rise; and

    (j)the fact that the offending was committed by the respondent while he was on conditional liberty.

1. The appellant submits that having regard to those features of the offending, the protective function of the sentencing court required denunciation, general deterrence and retribution to be given greater effect, even in light of the respondent’s youth, straitened circumstances and psychological profile. The seriousness of the crimes and their impact on the victims was such as to take precedence over those mitigating factors.

2. The sentence imposed for the charge of sexual intercourse without consent was imprisonment for three years, which indicated a starting point of imprisonment for four years before the application of the discount for the plea of guilty. The sentence imposed for the charge of aggravated unlawful entry was imprisonment for 15 months, which indicated a starting point of imprisonment for 20 months before discount. The total effective sentence of imprisonment for three years and six months was derived by an order for the accumulation of six months between the individual sentences.

3. In addressing that order for accumulation, the appellant contends that the different elements and motivations underlying each offence rendered them quite separate, which should have been reflected in a greater degree of accumulation between the sentences imposed for the individual offences. That submission was made with particular reference to the decision of this Court in The King v Benning, in which the court held that although the offences were committed during the course of what might be described as a single episode of offending, an armed home invasion at night with the intent to steal should not have been made wholly concurrent with the sentences for sexual offending, which were separate and differently motivated.[44]

4. Ranged against those considerations, the respondent draws attention to the threshold the appellant must reach in order to establish manifest inadequacy. In particular, the benchmark for manifest inadequacy is a ‘stringent one, difficult to make good’ and an appellate court will ‘be astute to enforce the stringency of these tests’.[45] That is because of the need to preserve the broad discretion of sentencing judges in recognition of the difficulty of having to balance ‘incommensurable factors bearing on the exercise of the sentencing discretion, [with] those factors ... pulling in different, conflicting and contradictory directions’.[46] The ultimate contention made by the respondent is that neither the sentences, the manner in which they were accumulated or the non-parole period were wholly outside the sentencing range having regard to the respondent’s youth, childhood deprivation, psychological and cognitive deficits attracting the Verdins principle, pleas of guilty, remorse and efforts at rehabilitation while in custody.

5. A survey of the comparative sentences for the offence of rape was conducted by this Court in the matter of Gilligan.[47] That survey suggested a starting point of nine years' imprisonment before any discount for a guilty plea is within the range of sentences imposed for offences against s 192(3) of the Criminal Code in circumstances where the assault is accompanied by violence and degradation beyond the minimum which might be expected in the commission of that offence. Approximately a decade after that review, in 2017, this Court conducted a further review of comparative sentences for rape in the matter of Forrest.[48]  Although a consideration of average sentences for an offence obviously has limited utility, that review disclosed that since the survey had been conducted in Gilligan in 2007, the average head sentence imposed for an offence against s 192(3) of the Criminal Code involving an adult offender and an adult victim, after excluding the most serious of cases, had been six years and five months. That average is broadly consistent with the observation made in the 2014 case of Nabegeyo[49] to the effect that most of the comparative sentences referred to the court on that occasion involved a starting point of six years or higher for the offence of rape.

6. Those reviews were all directed to cases involving adult victims. Depending on the circumstances, different considerations will almost invariably arise in a matter involving a child victim and the sentencing range is quite different. As this Court said in Forrest:[50]

   In cases involving child victims of sexual intercourse without consent this Court has observed that the starting point will generally be somewhere between 12 and 16 years.

7. That was a reference to the earlier decision of Tennyson, in which the plurality stated (citations omitted):[51]

   In Rindjarra, the Court accepted that decisions of this Court in Green v The Queen, R v Inkamala and R v Riley provide empirical standards of comparison for very serious examples of digital/vaginal sexual intercourse with a child without consent and provided a valid indication of the prevailing range of sentences for comparative conduct. To those decisions might be added Melpi v The Queen. These cases demonstrate that, although there is no fixed range or tariff, this Court has set a standard for this kind of offending where the starting point at first instance is usually somewhere between 12 years and 16 years. 

8. As this Court observed in the later case of Gurruwiwi, that 12 to 16 year range is derived from cases which involved the egregious sexual abuse of infants and young children by adult offenders usually involving serious injury.[52] Even allowing for that qualification, the sentences for rape involving child victims must properly take into account the age and vulnerability of the victim, are not properly framed by reference to the sentencing standard for adult victims, and must sufficiently reflect the sentencing objectives of punishment, denunciation and general deterrence.

9. What is ultimately disclosed in those reviews is that there is no fixed sentencing range for the offence of sexual intercourse without consent. It is an offence which is very fact‑sensitive in terms of both the objective seriousness of the offending and the subjective circumstances of the offender. Although the sentence imposed in this case fell below the average and usual dispositions for adult offenders identified in those reviews, the determination of inadequacy or excess will always turn on the circumstances of the individual case. This particular sentencing exercise was complicated by the fact that it involved a youth offender of diminished responsibility and a child victim. In fact, cases with these particular features are relatively rare and always very fact-sensitive. As a result, the outcomes will vary widely and no case will be on all fours with another. So much is apparent from a cursory review of the more recent comparative sentences.

10. In the 2023 case of FM, the offender was 15 years of age. The offence was constituted by him performing penile-vaginal intercourse on his female cousin, who was of similar age, in a home which they shared. There was no active resistance or protest by the victim and no application of force. The offender had no prior criminal history and the sentencing court accepted that he was genuinely remorseful. The sentencing court adopted a starting point of detention for three years which was reduced by six months to take account of the plea of guilty.

11. In the 2022 case of Rowe, the offender was sentenced to imprisonment for four years each for two offences of performing penile-anal intercourse on a female relative without her consent. At the time of the offending the victim was seven or eight years of age and the offender was 14 or 15 years of age. The charges were brought almost 25 years after the incidents took place, and the offender was found guilty following a trial by jury. In the interim period, the offender had substantially rehabilitated himself and had an otherwise unblemished record. The sentences were ordered to be served concurrently, but in circumstances where the two offences were relatively indistinguishable in both time and circumstance and in the context of a sentencing exercise in which the offender stood to be sentenced for six offences against the same victim.

12. In the 2021 case of GJ, the offender was 17 years of age and the victim was the four-year-old female child of family friends. The offender attempted to have penile-vaginal intercourse, and then penile-anal intercourse, with the victim but was unable to do so. He then placed his penis in her mouth. The offender was charged with the one count of sexual intercourse without consent. After allowing a reduction of 25 percent for the offender’s plea of guilty, he was sentenced to imprisonment for four years.

13. In the 2020 case of LP, the offender was 15 years of age with a diagnosis of Foetal Alcohol Syndrome Disorder. He had a limited criminal history, but at the time of the offending he was on a bond which had been ordered by the Youth Justice Court for previous offences of unlawful entry, stealing and property damage. The victim was a 38-year-old female. The offender unlawfully entered the victim’s home at night time. The offender then overpowered the victim and forced her to perform fellatio on him. He pleaded guilty to both charges and was sentenced to five years’ detention for the sexual intercourse without consent and three years’ detention for the unlawful entry. Those sentences were accumulated so that the total period of detention was six years. A non-parole period of three years was fixed.

14. In the 2019 case of RH, the offender was 15 years of age and the victim was a 13 year old female who was unknown to him. The offender intercepted the victim while she was walking alone along a concrete footpath, and by a combination of psychological duress and threats of violence took her to an isolated location and performed rough penile-vaginal sexual intercourse on her without her consent. The sentencing judge imposed a sentence of four years and six month’s imprisonment after a reduction of 25 percent to take account of the offender’s guilty plea.

15. In the 2018 case of SN, the offender was 17 years of age and the victim was a 35-year-old female who was unknown to him. The offender intercepted the victim while she was walking in an isolated location and had penile vaginal intercourse with her without her consent while a number of co-offenders restrained her. He had a criminal history which involved one incident of indecently assaulting a 52-year-old woman and another incident of indecently assaulting three female children in a pool when he was only 12 years of age. He was sentenced to imprisonment for six years with a non-parole period of four years.

16. In the 2017 case of DA, the offender was 16 years old and the victim was a 32-year-old female. The offence occurred on a remote community where the victim was working as a nurse. In the early hours of the morning, the offender unlawfully entered the victim’s house and forcibly had penile-vaginal intercourse without her consent. He was sentenced to imprisonment for six years for the rape and to imprisonment for nine months for the unlawful entry. Those sentences were ordered to be served wholly concurrently and a non-parole period of three years was fixed. A rape involving similar circumstances in the 2015 case of DD also attracted a sentence of imprisonment for six years after discount, where it was accepted that the offender suffered from cognitive deficits.

17. In the 2014 case of Anderson, the offender was 17 years of age and the victim was his eight-year-old female cousin. The offender took the child into the laundry area of a unit, removed her clothes and pushed his erect penis hard against her anus penetrating her to a small degree. This caused the victim pain and the offender desisted. The offender was sentenced to imprisonment for a period of six years and four months after discount and a non-parole period of four years and six months was fixed.

18. In the 2015 case of Campbell, the offender was 17 years of age and the victim was a 16 year old female. The offender and the victim were unknown to each other. The victim was sleeping in a tent set up in the front yard of her sister’s home. The offender entered that tent in the early hours of the morning while the victim was asleep, removed her underwear and engaged in a non-consensual act of penile-vaginal intercourse. The offender had no relevant criminal history, pleaded guilty and was sentenced to imprisonment for five years and six months after discount with a non-parole period of three years.

19. In the 2009 case of MB, the offender was 16 years of age and the victim was his 12-year-old female cousin. The offender plied the victim with alcohol and then had penile-vaginal intercourse with her without her consent. The offender had no prior criminal history and reasonable prospects of rehabilitation. He pleaded guilty to the alternative charge of indecently dealing with a child, but was found guilty of rape at trial. He was sentenced to imprisonment for four years with a non-parole period of two years.

20. In the 2007 case of Holmes, the offender was 15 years of age and the victim was a five-year-old boy who was a family friend. The offender took the victim into a bedroom of the house in which they were staying and had forcible penile-anal intercourse with him. The offender had no prior criminal history, pleaded guilty and demonstrated remorse. He was sentenced to imprisonment for four years and six months after discount.

21. The earlier sentences imposed on juveniles for offending with similar features disclose a similar variety in circumstance and result. There is nothing which would sustain a firm conclusion that the sentencing standard for offences with these general features might be said to have increased or decreased over time.  In fact, it might even be said that there is no discernible sentencing standard as such for juvenile offenders in these types of circumstances. There is certainly no tariff. However, it is the case that the impacts of these types of crimes are now better recognised and understood in modern times than they were in the past, and particularly the long-term effects upon victims who were children at the time of the offending.

22. In the 2002 case of Brian, the offender was 16 years of age at the time he had penile-vaginal intercourse without the 16 year old victim’s consent.  He was sentenced almost four years after the offence was committed.  He was dealt with under the Sentencing Act because the offence of rape was considered to be too serious to be dealt with under the Juvenile Justice Act.  He was sentenced to imprisonment for four years after discount for his guilty plea.  That sentence was suspended after he had served 15 months.  The Court made a point of observing that if the offender had been an adult at the time of committing the offence the starting point would have been imprisonment for eight years.

23. In the 2000 case of Dooley, the offender was aged 16 when he committed two offences of sexual intercourse without consent after breaking into the victim’s home.  He had penile-vaginal intercourse with the adult victim, who suffered from a physical incapacity, and then digitally penetrated the victim’s vagina.  He was sentenced to imprisonment for eight years for each rape.  Those sentences were ordered to be served concurrently and subject to a non-parole period.

24. In the 1999 case of Nelson, the 17-year-old offender committed sexual intercourse without consent in company with a co-offender.  The sexual intercourse involved digital penetration and the infliction of violence.  The offender was sentenced to imprisonment for five years which was suspended after he had served three years and six months.

25. In the 1998 case of Gooch, the 14 year old male offender with no prior criminal history was sentenced to imprisonment for three years for performing oral sex on the 10-year-old male victim.  Together with the sentences imposed for a number of other less serious indecent dealing offences involving different victims, the total sentence was five years’ imprisonment which was suspended after the offender had served six months.  Given the nature of the offending, the matter was dealt with under the Sentencing Act rather than the Juvenile Justice Act.

26. In the 1998 case of Cumaiya, the two male offenders were 14 years of age and the two male victims were aged 10 and 11 respectively.  The offenders had penile-anal sexual intercourse with the victims without their consent. They were both released on two year good behaviour bonds, but both had served periods in detention referable to the offending prior to the imposition of those bonds. Those sentences were imposed following a long course of community meetings and cultural engagement between the offenders’ families and the victims’ families, culminating in the payment of monies in the form of compensation by the offenders’ families to the victims’ families. The sentences were not imposed until two years after the offending took place, and were imposed having regard to those dealings.

27. In the 1997 case of Gamarrow, a 17-year-old offender was sentenced to imprisonment for four years for the penile-vaginal rape of an adult victim.  That sentence was said by the sentencing judge to be considerably less than would ordinarily be imposed for rape having regard to the offender’s youth and disadvantaged background.

28. Of course, none of these sentences gives rise to any form of binding precedent. This matter falls to be decided on its own particular facts and circumstances having regard to whatever standard may be derived from broadly comparative sentences and the generally accepted sentencing principles in matters of this type. That is, as already stated, the sentence must properly take into account the age and vulnerability of the victim and must sufficiently reflect the sentencing objectives of punishment, denunciation and general deterrence. At the same time, a balanced approach must be taken to the imposition of a sanction on a youth, which takes into account both the needs of the youth, the rights of any victim of the youth’s offences and the interests of the community.

29. There is no doubt that the respondent’s neurocognitive deficits impacted upon his ability to exercise appropriate judgment and to make rational choices, and that they contributed causally to the commission of the offences to a significant degree. Consequently, they mitigated the respondent’s moral culpability for the offending, reduced the weight attributable to general deterrence and moderated the weight attributable to specific deterrence. In addition, the respondent comes from a disadvantaged and dysfunctional environment in which he was exposed to traumatic events. However, given the egregious nature of this offending – particularly the sexual intercourse without consent – and the need to protect the community from such offending, the total sentence imposed on the respondent was manifestly inadequate even after full and appropriate weight is given to the matters in mitigation of sentence.

30. The aggravated unlawful entry was effectively a home invasion that occurred at night while the dwelling was occupied by a woman and her two young children. The offending was clearly premeditated in the sense that the respondent set out on the night in question with the intention of unlawfully entering a dwelling house with the intention of stealing from it. The offending falls into the second most serious category of aggravated unlawful entry attracting a maximum penalty of imprisonment for 20 years. The respondent had a history of at least 20 proven offences of aggravated unlawful entry in similar circumstances over the previous three years, and had not moderated his behaviours in response to previous sentences and the repeated exercise of leniency. He well knew the consequences of his conduct for both his victims and himself, and he was at the time of this offending enjoying the privilege of conditional liberty for earlier proven offending of the same type.

1. Once the respondent had entered at the dwelling house with nefarious intent, he then raped a very young child victim who was especially vulnerable and entitled to feel safe in her own home. The rape was persistent and involved three separate categories of penetration, all of which were highly invasive and committed with flagrant disregard for the victim’s tender age, vulnerability and right to personal autonomy. As already stated, the rape involved a degree of deprivation of the victim’s liberty. The psychological consequences for the principal victim and her mother have been significant and long-standing.

2. Having regard to these features, the individual sentences imposed for both offences were so disproportionate to the objective seriousness of the offending as to demonstrate error in a point of principle and shock the public conscience. That is no idle figure of speech in this case. The public would doubtless and rightly be shocked that an offender who has broken into a home in the early hours of the morning and then vaginally, anally and orally raped an eight-year-old girl in that home has received a sentence of three years’ detention for that rape, even making proper allowance for his subjective circumstances. As already noted, that represented a starting point of imprisonment for four years with a discount of 25 percent for the respondent’s plea of guilty and what the sentencing judge accepted to be his genuine remorse. Although there is no fixed reduction for a guilty plea, the 25 percent allowed equates with the full discount ordinarily afforded in this jurisdiction for a plea attended by genuine remorse and resipiscence.

3. Having regard to the survey of sentences conducted above, the appropriate starting point for this particular rape having regard to its circumstance and various incidents is imprisonment for six years. There is also an argument that the respondent should not receive the full 25 percent discount from that starting point having regard to the clear evidence that his ‘feelings of remorse were limited, superficial and inwardly focused’.[53] Although the Crown has not made specific reference to the extent of the reduction, the challenge is implicitly comprehended by the complaint that the overall sentence was manifestly inadequate, including in terms of the individual sentences imposed. In any event, once it has been determined that the sentence imposed was manifestly inadequate, the appropriate reduction to be allowed falls within the appellate discretion. Despite our reservations in that respect, we would not depart from the rate of discount adopted by the sentencing judge having regard to the respondent’s reduced psychological capacity to feel genuine remorse. Accordingly, the sentence properly imposed for the offence of sexual intercourse without consent is imprisonment for four years and six months.

4. The sentence imposed for the charge of aggravated unlawful entry was imprisonment for 15 months, which represented a starting point of imprisonment for 20 months before discount. This was a particularly serious form of unlawful entry because the respondent did so with the intention to commit an indictable offence by way of stealing, the building was a dwelling house and the entry was committed at night-time when householders might be expected to be at their most vulnerable. It is for those reasons that an offence with that complex of aggravating circumstances attracted a maximum penalty of imprisonment for 20 years. The seriousness of that offence in the general sense was compounded by the fact that the respondent’s criminal history already included 22 previous findings of guilt for stealing and 20 previous findings of guilt for aggravated unlawful entry. Having regard to those circumstances, the appropriate starting point for this particular aggravated unlawful entry was imprisonment for two years and eight months, which reduces to imprisonment for two years with the application of the discount for the respondent’s guilty plea.

5. The degree to which individual sentences are made concurrent is part of the sentencing discretion, and reasonable minds may differ as to the appropriate degree of accumulation. There will often be no clearly correct answer. What is necessarily required in every case is a sound discretionary judgment as to what extent there should be accumulation or concurrency.[54] In this particular case, the appellant is correct to say that the offences were separate and differently motivated such that no significant degree of concurrency was warranted. The appropriate degree of accumulation in this case is governed by totality considerations. Having regard to the periods of imprisonment fixed by the sentencing judge, the operation of that principle did not warrant the extent of concurrency which was allowed. However, given the increase in the sentences which we will be ordering, the total head sentence will be increased to the point where no greater degree of accumulation is warranted.

6. There is no ground for the exercise of the residual discretion to dismiss the appeal in this case. It is important that inadequate sentences are not permitted to stand that may undermine confidence in the administration of justice,[55] unless there is some compelling reason to do so arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown. There is no such reason in the present case. It is not express in the sentencing remarks as to whether the sentencing judge proceeded under the Sentencing Act or the Youth Justice Act. It would appear to have been under the Youth Justice Act, at least in relation to the fixing of a non-parole period, because the length of non-parole period would not otherwise have satisfied the mandatory minimum for the sexual offence. Even so, the non-parole period of 22 months was sufficient to serve the purposes of punishment, deterrence and community protection. It should not be disturbed.

7. As stated at the outset, the respondent was granted parole on 27 December 2023. A resentence involving a longer head sentence will not necessarily require his further imprisonment. Any further period of actual imprisonment will only ensue in the event that the respondent breaches the conditions of his parole, which is the position the respondent already faces. The fact that he may be required under a longer head sentence to be of good behaviour for a longer period in order to avoid any revocation of his parole should not be seen as a burden, and does not warrant the exercise of the residual discretion.

   Resentence

8. The following orders are made.

   1.The appeal is allowed.

   2.The sentence imposed on 19 June 2023 is set aside.

   3.On Count 2, the offence of sexual intercourse without consent, the offender is convicted and sentenced to imprisonment for four years and six months which is backdated to 9 September 2021.

   4.On Count 1, the offence of aggravated unlawful entry, the offender is convicted and sentenced to imprisonment for two years, six months of which is to be served cumulatively on the first sentence.

   5.The total period of imprisonment is five years, commencing on 9 September 2021.

   6.A non-parole period of 22 months is fixed, also commencing on 9 September 2021.

____________________________

[1]      Ludeman v The Queen (2010) 31 VR 606.

[2]      Ludeman v The Queen (2010) 31 VR 606 at [55].

[3]      Ludeman v The Queen (2010) 31 VR 606 at [56].

[4]      DPP v Jones (2013) 40 VR 267.

[5]      DPP v Jones (2013) 40 VR 267 at [20].

[6]      DPP v Jones (2013) 40 VR 267 at [21].

[7]      DPP v Jones (2013) 40 VR 267 at [22].

[8]      DPP v Keller (a pseudonym) [2021] VSCA 334.

[9]      DPP v Keller (a pseudonym) [2021] VSCA 334 at [58]-[71].

[10]Appeal Book ('AB') 687.

[11]AB 689.

[12]AB 690.

[13]AB 689.

[14]AB 690.

[15]AB 690.

[16]AB 690.

[17]AB 691.

[18]AB 689.

[19]AB 691.

[20]AB 692.

[21]The Queen v Mossman (2017) 40 NTLR 144 at [8] et seq; The Queen v Roe (2017) 40 NTLR 187 at [11]-[20]; Griffiths v The Queen (1977) 137 CLR 293 at 310.

[22]Everett v The Queen (1994) 181 CLR 295 at 300.

[23]     House v The King (1936) 55 CLR 499.

[24]    The Queen v Kahu-Leedie [2022] NTCCA 4 at [21].

[25]    Criminal Code, s 414(1A).

[26]AB 689.

[27]AB 242-260.

[28]Appellant's submissions at [35].

[29]    TM v R [2023] NSWCCA 185 at [25].

[30]    R v Pham & Ly (1991) 55 A Crim R 128 at 135.

[31]Appellant's submissions at [21]-[22].

[32]AB 692.

[33]    AB 239.

[34]Appellant's submissions [27]; AB 239, 688.

[35]     Markarian v The Queen (2005) 228 CLR 357 at [51]; R v Walker [2023] NSWCCA 219 at [57].

[36]     R v Cage [2006] NSWCCA 304 at [26].

[37]Nguyen v The Queen (2006) 261 A Crim R 1.

[38]Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107 at [214].

[39]    R & P Boland Nominees Pty Ltd v Hobbs [2013] VSCA 66 at [63].

[40]    Yeung v R [2018] NSWCCA 52 at [26]-[31] and the cases cited there.

[41]    Kochai v R [2023] NSWCCA 116 at [50]-[52] and the cases cited there; R v Walker [2023] NSWCCA 219 at [54]-[55].

[42]    R v Walker [2023] NSWCCA 219 at [60]-[61].

[43]     Noakes v The Queen [2015] NTCCA 7 at [15] citing Director of Public Prosecutions (DPP) (Vic) v Terrick; DPP v Marks: DPP v Stewart [2009] VSCA 220; 24 VR 457 at 459-460.

[44]The King v Benning [2022] NTCCA 15 at [134].

[45]DPP v Kazarisis (2010) 31 VR 636 at [127]-[128].

[46]    Craft v The Queen [2021] VSCA 66 at [25].

[47]    Gilligan v The Queen [2007] NTCCA 8.

[48]    Forrest v The Queen (2017) 267 A Crim R 494.

[49]    The Queen v Nabegeyo (2014) 34 NTLR 154.

[50]    Forrest v The Queen (2017) 267 A Crim R 494 at [102].

[51]    R v Tennyson [2013] NTCCA 2 at [28].

[52]    The Queen v Gurruwiwi [2019] NTCCA 23 at [18].

[53]AB 690.

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

[55]    Everett v The Queen (1994) 181 CLR 295 at 300.