The King v Wilson

CITATION:The King v Wilson [2024] NTCCA 14
PARTIES:THE KING
v

WILSON, Alphonse

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 4 of 2024 (22202876)
DELIVERED:  18 December 2024
HEARING DATE:  21 August 2024
JUDGMENT OF:  Kelly, Huntingford and Burns JJ

CATCHWORDS:
CRIMINAL LAW – Appeal – Crown appeal against sentence – sexual intercourse without consent – notice of contention – whether sentencing judge impermissibly took into account findings in relation to uncharged acts – whether sentence manifestly inadequate – whether sentencing judge failed to have proper regard to the maximum sentence – sentence so disproportionate to objective seriousness as to shock public conscience – error in principle – insufficient accumulation made sentence manifestly inadequate – appeal allowed – resentenced
Criminal Code 1983 (NT), s 414(1)(c), Schedule 1
Sentencing Act 1995 (NT), s 5(2)(b), s 5(2)(c), s 5(2)(f), s 52, s 104(1)
Arnott v Blitner [2020] NTSC 63; Edmonds v The Queen (2019) NTCCA 1; Everett v The Queen [1994] HCA 49; 181 CLR 295; Forrest v The Queen [2017] NTCCA 5; Gahani v The Queen [2022] NTCCA 13; Griffiths v The Queen [1977] HCA 44; 137 CLR 293; House v The King [1936] HCA 40; 55 CLR 499; JB v Northern Territory (2019) 343 FLR 41; Lawrence v The Queen (2007) 1 ACTLR 158; McKay v The Queen (2001) NTLR 14; Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; Nguyen v The Queen (2016) 256 CLR 656; R v Austin (1985) 121 LSJS 181; R v BJW [2000] NSWCCA 60; 112 A Crim R 1; R v De Simoni (1981) 147 CLR 383; R v Huchison [1972] 1 WLR 398; R v Osenkowski (1982) 30 SASR 212; R v Syrch & Burns [2006] NTCCA 20; R v Teremoana (1990) 54 SASR 30; The Queen v Kahu-Leedie [2022] NTCCA 4; The Queen v Mossman [2017] NTCCA 6; The Queen v Nabegeyo [2014] NTCCA 4; 34 NTLR 154; The Queen v Roe [2017] NTCCA 7; The Queen v Simpson [2020] NTCCA 9; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Weininger v The Queen (2003) 212 CLR 629; Whitlock v The Queen [2018] NTCCA 7, referred to.
REPRESENTATION:
Counsel:
Appellant:L Babb SC with J Moore
Respondent:  A Abayasekara with D Gorry
Solicitors:
Appellant:Office of the Director of Public Prosecution
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Number of pages:  34

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Wilson [2024] NTCCA 14

No. CA 4 of 2024 (22202876)

BETWEEN:

THE KING

Appellant

AND:

ALPHONSE WILSON

Respondent

CORAM: KELLY, HUNTINGFORD and BURNS JJ
REASONS FOR JUDGMENT
(Delivered 18 December 2024)
THE COURT:

This is a Crown appeal against sentence. Mr Alphonse Wilson (“the respondent”) was charged with five offences committed during the period 17 to 21 January 2022. The indictable offences were sexual intercourse without consent (counts 1 and 3), property damage (count 2), and aggravated assault (count 4). There was also a summary charge of breaching a domestic violence order. The maximum penalties for those offences were life imprisonment (counts 1 and 3), imprisonment for 14 years (count 2), imprisonment for five years (count 4), and imprisonment for two years (breach domestic violence order).
On 15 May 2023, the first day of the trial, the respondent pleaded guilty to counts 2 and 4, and entered pleas of not guilty to counts 1 and 3. The trial proceeded before a jury and on 19 May 2023, the jury returned guilty verdicts on both counts 1 and 3.
On 20 February 2024, the trial judge sentenced the respondent to a total effective sentence of imprisonment for nine years and two months, with a non-parole period of six years and five months, backdated to commence on 27 January 2022 to account for the respondent's time in custody. For each of counts 1 and 3, the Court imposed sentences of imprisonment for eight years, and ordered that the sentences be served cumulatively to the extent of one year.
The appeal
By notice of appeal filed 19 March 2024, pursuant to s 414(1)(c) of the Criminal Code Act 1983 (NT), Schedule 1 (“the Criminal Code”), the appellant appeals against the sentence on two grounds:
(a)Ground 1: The individual sentences imposed for counts 1 and 3 are manifestly inadequate in all the circumstances.
(b)Ground 2: The total effective sentence and non-parole period imposed are manifestly inadequate in all the circumstances. (The Crown does not quarrel with the fact that the non-parole period is 70% of the sentence. The non-parole period is said to be inadequate only as a consequence of the inadequacy of the total effective sentence.)
The sentencing remarks
The sentencing judge set out the agreed facts and then made findings as to contested facts that he found to have been established beyond reasonable doubt.
The facts, as found by the sentencing judge were as follows. The respondent was the victim’s former domestic partner. They were in an on‑and‑off relationship for about six years. That relationship was marred by domestic violence, sexual violence and coercive control. The main object of the respondent’s violent, controlling behaviour towards the victim was his own sexual gratification.
The respondent would regularly make threats to harm the victim and her family. The victim lived in constant fear for her life due to the ongoing threats made by the respondent. Throughout their relationship the respondent regularly threatened to inflict violence on the victim, and regularly inflicted physical violence on her. The victim was aware of a domestic violence incident involving the respondent and his former domestic partner that occurred in 2008 and the respondent made threats to the victim that she would end up like that former partner if she did not do what the respondent said. (In 2008 the respondent was convicted of manslaughter of his former domestic partner by beating her to death with a digeridoo after she said she did not want to have sex with him and sentenced to 5 years and 10 months’ imprisonment.)
On 21 December 2021, an interim full non‑contact domestic violence order was granted in the Alice Springs Local Court. It was served on the respondent on 5 January 2022. Between 5 January 2022 and 13 January 2022, the respondent committed multiple breaches of that domestic violence order. Those breaches were predominantly characterised by repeated abusive text messages and phone calls in which the respondent regularly called the victim a “dog”, a “fucken dog”, a “slut” and “a cunt”. He also told her to take steps to remove the domestic violence order and made threats to her that she would be harmed if she did not do what he said.
The victim was staying at a women’s shelter in Alice Springs because she wanted to be safe and protected from the respondent. She was being assisted by the Central Australian Women’s Legal Service in her capacity as a protected person under the domestic violence order.
Late in the evening of 15 January 2022, (two days before the respondent committed count 1 on 17 January), the respondent was outside the women’s shelter. He contacted the victim on her mobile phone and told her to get into his car and she did so out of fear. He took the victim to a house at Ilparpa Camp and once they arrived at that house, he told her she could not go outside the house. He forced her to stay there. She spent the night at that house against her will and, during the night, he had sexual intercourse with the victim without her consent. She told the respondent that she did not want to have sex with him on that occasion, however she felt that she had no choice but to do so because, if she resisted, the respondent would get angry and would start throwing and smashing things. During this encounter, he threw a bottle of mustard at the wall when she said she did not want to have sex with him.
The facts on count 1, sexual intercourse without consent on 17 January 2022 were as follows. On 17 January 2022, the victim was staying at the women’s shelter. She received some text messages and calls from the respondent about reimbursing her $150 that he had earlier withdrawn from her bank account. The respondent told her to catch a taxi and go to a house at Ilparpa Camp, and he would repay her the $150. The victim said that she did not want to do that, but the respondent told her she would not receive her money unless she did. Because she was afraid of the respondent, the victim said she would stay in the taxi when she arrived at the house, get the money from the respondent and then return to the women’s shelter and the respondent agreed.
However, when she arrived at the house, the respondent paid the driver and told the victim to get out of the taxi. The respondent forced the victim to follow him into a house at Ilparpa Camp after he paid the taxi and she complied with his demands because she was scared of him.
Once inside the house, he produced a syringe filled with crystal methamphetamine (“ice”). He told the victim to take the ice, but she refused, repeatedly saying, “No.” The respondent told the victim that the drug would “take the pain away”. Ignoring her protests, he forcibly injected the drug into her arm. After that, the victim said she felt “weird”.
The respondent forced the victim to suck his penis and then had forcible penile‑vaginal sexual intercourse with her. While that was happening, the victim repeatedly told the respondent that she did not want to have sex with him, and she was crying.
When the victim said she did not want to have sex with the respondent, he had an angry look on his face and he told her that if she did not have sex with him, she would end up like his ex‑partner.
Despite her protests, the respondent continued to have sex with the victim. When she said, “No,” he punched her in the head and told her to be quiet. He knew that the victim did not consent to having sexual intercourse with him. He did not wear a condom and he ejaculated inside her vagina.
The facts on count 2, damaging the victim’s property, namely her mobile phone, are as follows. Throughout the period between Monday, 17 January 2022 and Friday, 21 January 2022 the victim was at the house at Ilparpa Camp with the respondent. During that time she was trying to contact Detective Senior Constable Christopher Ship by mobile phone because she was frightened. (Detective Senior Constable Ship had played a central role in obtaining the domestic violence order against the respondent and helping her to get to the women’s shelter.) The respondent kept taking the victim’s mobile phone over this period and did not let her make or answer calls. In one particular instance on about 19 January 2022, the respondent saw from the victim’s mobile phone that Detective Senior Constable Ship was calling her. He was angry that Detective Senior Constable Ship and the victim had been trying to get in contact with each other. He was aware of Detective Senior Constable Ship’s role in the investigation and the fact that he was responsible for the imposition of the domestic violence order.
Detective Senior Constable Ship returned the victim’s calls a number of times but he could not reach her. It was in this context that on or about 19 January 2022 the respondent smashed the victim’s mobile phone, cracking its screen and rendering it unusable.
After committing the offence in count 1 on 17 January 2022, the respondent left Ilparpa Camp. He took the victim in a taxi to a house in Erumba Street, Braitling in Alice Springs. At that house, he went upstairs with the victim and again had sexual intercourse with her without her consent. Any acquiescence on the victim’s part to that sexual intercourse was due to the ongoing threats of violence and her fear of the respondent harming her if she did not acquiesce.
Between Monday 17 January 2022, when he committed count 1, and Friday 21 January 2022, when he committed count 3, while staying at another address in Madigan Street, Braitling, the respondent again forced the victim to have sexual intercourse with him, without her free and voluntary consent, on a number of occasions and, again, to the extent that there was acquiescence or compliance on her part, it was out of fear, stemming from the threatened and actual violence that the respondent inflicted on her during that period. There was an axe in the bedroom at Madigan Street, and the victim was scared that the respondent was planning to do something to her with it, particularly in light of his threats that she would end up like the respondent’s ex-partner. Between 15 and 21 January 2022 the respondent was having sexual intercourse with the victim without her consent, in her words, “all the time”. On each occasion the respondent had actual knowledge of lack of consent because the victim told him that she did not want to have sex with him.
On count 3, sexual intercourse without consent on 21 January 2022, the facts were as follows. On 21 January 2022, the respondent and the victim were in a house in Alice Springs. At about 6 am on that day, the respondent woke the victim in order to have sexual intercourse with her. She did not want to do that and told the respondent that she was too tired.
The respondent then took off his clothes and told the victim to take off her panties. He threatened to rip them if she did not comply. He also threatened to hit her with a steel fan and to hurt her if she did not acquiesce; and he threatened to kill her. She said, “Please don’t,” and the respondent became angry. She was scared and took off her clothes. The respondent forced his penis into her mouth, and then had penile‑vaginal sexual intercourse with her without her consent. He knew that she did not consent; he did not wear a condom and he ejaculated inside her vagina.
Later on the same day of the incident the subject of count 3, on 21 January 2022 the respondent again had sexual intercourse with the victim without her consent.
On count 4, aggravated assault on 21 January 2022, the facts are as follows. During the afternoon of 21 January 2022, the respondent and the victim were in the back bedroom of the house in Alice Springs. The respondent forced the victim to smoke some marijuana that he had with him and, while she did not want to, she complied out of fear because the respondent was angry.
The respondent tried to hit the victim. In an attempt to escape, she ran out of the bedroom into the lounge room and the respondent threw a lighter and a pair of scissors at her. The lighter hit her, causing her bruising to her back. The respondent then chased her into the lounge room. The respondent had a bottle of Jim Beam which he put to the victim’s mouth and forced her to drink and then deliberately poured some alcohol from the bottle of Jim Beam over her. He then wrestled the victim to the ground and started stomping on her. The victim rolled around on the floor trying to defend herself, and she grabbed the respondent’s testicles. In response, the respondent held her ankles and forcibly slammed them into the ground a number of times with so much force that she felt he was trying to break her legs and arms.
Following the offending, someone who was present at the house during the aggravated assault ran across the road to a neighbour’s and they called the police. When the respondent was told that the police had been called, he left the house and went to another house. The victim followed him because she believed that he had her mobile phone and SIM card.
When police arrived at the second house, the victim was hysterical. She made an immediate complaint about the respondent, and she was taken to the Alice Springs Police Station to participate in a recorded interview. In the meantime, the respondent had left the second house and police could not find him.
On 23 January 2022 the respondent went to the women’s shelter with another woman. He coerced the other woman into entering the shelter and persuading the victim to come outside. When she did, the respondent told her to get into the car and she complied with his demands out of fear. The respondent then drove to Ilparpa Camp. However, when the respondent arrived at Ilparpa Camp he saw a number of police officers and vehicles, so he drove away.
On 27 January 2022, the respondent presented himself to the Alice Springs Police Station front counter and was placed under arrest. He declined to participate in a recorded interview.
In sentencing the respondent, the sentencing judge said:
I will not be punishing you for acts for which you have not been found guilty by the jury or to which you have not pleaded guilty. That includes acts such as forcing [the victim] to suck your penis prior to committing the offences in counts 1 and 3 and your various acts of sexual intercourse with [the victim] without her consent between 15 January and 21 January 2022.
Instead, I will have regard to those facts that I have found to be established beyond reasonable doubt for these limited purposes.
First, for the limited purpose of placing your offending in context to rebut any suggestion that it was out of character or involved an isolated act or acts. This includes the acts I have just mentioned insofar as the offences described in counts 1 and 3 are concerned.
With respect to the offences described in counts 2 and 4, it also variously includes the constant threats of violence you directed to [the victim], the actual physical and sexual violence you inflicted on her and your controlling, coercive behaviour with respect to her.
Secondly, I will have regard to those facts for the limited purpose of assessing the gravity of your offending and your moral culpability for it. This includes your sexually and physically violent and controlling relationship with [the victim] and your resultant knowledge that her consent to sexual relations with you was coerced.[1]
His Honour re-iterated twice during the sentencing remarks the limited purpose for which he was taking the uncharged acts into account.
The sentencing judge referred to the victim impact statement made by the victim quoting her as saying, among other things:
I still feel very sad every day because of what Alphonse did to me. I feel emptiness. I feel like I cannot trust anyone because of Alphonse. I cannot even trust my female friends or other male friends that are trying [sic] help me. I sometimes feel suicidal because of what Alphonse did to me. Sometimes I cry myself to sleep, and that helps a little bit. I try and block everyone out when they are trying to help me, because it feels like Alphonse is haunting me.
I am worried that when Alphonse gets out of gaol, he might do what he did to me to other women, because other women may not know what he did to me. I don’t want him to hurt anyone else and I don’t want any other women to feel like this because of what Alphonse has done. I don’t want Alphonse around me ever again. I want Alphonse to stay in gaol for a long time to pay for what he did to me.[2]
His Honour added:
It is worth adding that the mental or psychological effects of your reign of terror on [the victim] that she describes in this statement are entirely consistent with the extreme state of hysteria that she displayed in Senior Constable Ship’s body‑worn camera taken immediately after the 21 January 2022 incident that was played during your trial.[3]
The sentencing judge went on to assess the objective seriousness of the offending on counts 1 and 3 in the following terms.
On these two counts, the prosecutor pointed to several factors to contend that your offending fell into the high range of seriousness for offences of this kind. They were as follows.
First, that they occurred in a relationship of longstanding domestic violence, which created a significant power disparity between you and [the victim]. In addition, they were both occasioned by actual and threatened violence, which placed [the victim] in a heightened state of fear and compliance. Consequently, the control you had over [the victim] created a situation where you were able to pursue your sexual offending without fear of detection by the authorities.
As well, your moral culpability for these offences was high, because you were well‑aware from the circumstances that [the victim] did not consent to having sexual intercourse with you on either occasion.
Further, both offending events were relatively prolonged and, as I have already mentioned, occurred in the context of your serious threats of violence, for example, threatening to kill her like you had your former partner, and by actual acts of violence, for example, forcing her to suck your penis and punching her.
Further still, prior to the offence you committed on 17 January 2022, you used the $150 that you owed her as a pretext to lure her to the Ilparpa Camp, and you administered a drug to [the victim] to facilitate that offending. And prior to the offence you committed on 21 January, you forced [the victim] to stay overnight with you in that Ilparpa Camp.
Finally, on both occasions, you did not wear a condom and you ejaculated inside [the victim], thus exposing her to the risks of disease and pregnancy.
On the other hand, while your lawyer conceded the threats and the violence involved and also that you had administered a drug to [the victim] on the first occasion, she contended that your offending was not the most serious example of this type of offending. I do not agree.
In my view, the facts of this offending, that I reviewed earlier, and the factors to which the prosecutor adverted, firmly place your offending on both of these offences in the higher range for offences of this kind. In reaching this conclusion, I have had particular regard to the longstanding violent domestic context in which both offences took place, to your heightened moral culpability for them and to the significant psychological injuries that [the victim] suffered and is likely to continue suffering as a consequence, as demonstrated by the content of her victim impact statement that I read earlier.[4]

The sentencing judge noted that the respondent had an extensive criminal history in both Western Australia and the Northern Territory dating back approximately 38 years having committed more than 90 offences in Western Australia and approximately 80 in the Northern Territory. The offending in Western Australia ranged from traffic offences and other summary offences to several quite serious offences, including seven convictions for crimes of violence: assaulting a police officer in January 1997 and again in August 2002, common assault in June 2007, common assault and also threatening to injure, endanger or harm a person in January 2008, and manslaughter of his then domestic partner in December 2008 which resulted in his being imprisoned for 5 years and 10 months. He also had four convictions for damaging property, and two convictions for breaching a domestic violence order, one in July 2008 and the second in December 2009.
In the Northern Territory also, the respondent had convictions for driving and various summary offences as well as for more serious offences including stealing, escaping custody and property damage. Notably, he also had several convictions for crimes of violence: assaulting a female in February 1989; two aggravated assaults with a weapon in November 1995; assaulting a police officer in January 1996; two aggravated assaults on a female with a weapon in June 2002; and assaulting a police officer in August 2015.
The sentencing judge outlined the respondent’s subjective circumstances in the following terms.
You were born in April 1975, so you were 47 years of age at the time of your offending, and you are presently 48 years of age. You are a Miriwoong/Pitjantjatjara man. You grew up in Kununurra in Western Australia, where you were primarily raised by your grandmother.
While you knew your parents, they did not have any meaningful involvement in your life; both of them were drinkers, and when you did see them, you often witnessed your father assaulting your mother. As a result, you did not have any adult male role models as a child, and your grandmother was unable to control you.
You had two brothers and three sisters, one of whom died from suicide at a young age. You attended school until year 4 or 5. You did not embark on any high school education. You spent the majority of your childhood in the juvenile justice system. As I have already mentioned, your first court appearance occurred when you were 9 years of age.
You learnt to read and write when you were detained at the Riverbank Detention Centre in Western Australia. You commenced drinking alcohol and smoking cannabis at the age of 11 years. You moved to Darwin in 1988 and continued your juvenile criminal activities. That resulted in you being placed in custody at the Don Dale Detention Centre.
You have seven children, all of whom are now adults. You also have seven grandchildren.
You have held two significant jobs in your lifetime, one as a house parent at the Nyangatjatjara College at Yulara and one in the construction industry, working for the Tangentyere Council, painting houses. Both of those in Alice Springs.
At the age of 40, after you commenced your relationship with [the victim], you began recreational use of the drug ice. You are keen to return to your country upon your release from prison.[5]
The sentencing judge assessed the respondent’s prospects of rehabilitation as very poor and found that he was likely to reoffend. His Honour noted that, at 48 years of age, the respondent was a mature adult and not entitled to any leniency on the grounds of youth; that he had previously been convicted of offences that were the same or similar to the instant offences indicating that he had not learnt from the punishments that had been imposed on him in the past; and that he had previously breached suspended sentences, court bonds and bail, and breached the terms of a domestic violence order.
His Honour found that the respondent showed no remorse and had no insight into his offending. He did not allow any discount for the pleas of guilty on counts 2 and 4 because those pleas of guilty held “negligible” utilitarian value: they were entered on the first day of the trial and the victim was subjected to the stress of giving evidence at the trial concerning the events of January 2022, to which all of the counts in the indictment related, in the course of the trial on counts 1 and 3.
His Honour then convicted the respondent and imposed the following sentences:
·     Count 1 (sexual intercourse without consent on 17 January) – imprisonment for 8 years;
·     Count 2 (property damage to mobile phone) – imprisonment for 3 months, to be served be served concurrently with the sentence for count 1.
·     Count 3 (sexual intercourse without consent on 21 January) – imprisonment for 8 years, to be served concurrently with the sentence for count 1 as to 7 years;
·     Count 4 (aggravated assault) – imprisonment for 9 months to be served concurrently with the sentence for count 1; and
·     Breaching the DVO – imprisonment for 2 months to be served cumulatively on the other sentences.
His Honour stated that having regard to the principle of totality and concurrency, he considered the just and appropriate sentence for the respondent’s offending would be 9 years and 2 months’ imprisonment, backdated to 27 January 2022, and fixed a non‑parole period of 6 years which was 70 percent of the head sentence.[6]
Issues on the appeal
The Crown has appealed against this sentence contending that the sentences imposed for each of counts 1 and 3 were manifestly inadequate and that there was insufficient accumulation of the sentences for those two counts resulting in a total effective sentence that was manifestly inadequate. No complaint is made about the sentences for counts 2 and 4.
The respondent has filed a notice of contention in which he claims that the sentencing judge impermissibly made factual findings in relation to uncharged acts and impermissibly took those findings into account in assessing the objective seriousness of the offending. Defence counsel fairly and properly conceded that if this contention succeeded, but the Court nevertheless concluded that even without taking those matters into account the sentence was manifestly inadequate, the appeal must be allowed.
The notice of contention
It is appropriate to deal first with the issues raised in the notice of contention. The respondent contends that the trial judge should not have made factual findings in relation to and taken into account on sentencing:
(a)the alleged administration of methamphetamine without the victim’s consent before the conduct the subject of count 1; and
(b)each of the three alleged acts of sexual intercourse without consent on 15 January, 17 January and 21 January 2022 that were not the subject of any charges.
Relevant principles
The respondent relies on the following principles.
The respondent acknowledges the principle that a sentence imposed on an offender should take into account all of the circumstances of the offence and that in the Northern Territory a sentencing court is required by statute to consider a number of matters including the nature and seriousness of the offence,[7] the moral culpability of the offender[8] and any aggravating or mitigating factor of an offender[9] and in order to impose a sentence may receive such information as it sees fit.[10] The latter provision indicates that there is a wide discretion to consider relevant matters but one that, nevertheless, must be exercised judicially and is subject to legal principle.
There are restrictions on the use of available factual circumstances when sentencing.[11] In De Simoni, a majority of the High Court held that the Court of Criminal Appeal of Western Australia was right to conclude that a judge, when sentencing an offender, could not have regard to a circumstance of aggravation that could have been but had not been charged on the indictment and by reason of it inflict a penalty more severe than he otherwise would have imposed. The respondent contends that this principle applies notwithstanding that it may be found by a judge that such a circumstance did exist and even when such a finding is based upon an unchallenged statement of facts made by the prosecutor after an offender has pleaded guilty.[12]
The respondent contends further that what has come to be described as the De Simoni principle is simply one aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted.[13] In De Simoni, Gibbs CJ (with whom Mason and Murphy J agreed) expressed the resolution of competing principles in sentencing in the following way.[14]
However, the general principle that the sentence imposed on an offender should take account all of the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.
In his judgment in De Simoni, Gibbs CJ[15] endorsed R v Huchison[16] in which the Court of Criminal Appeal of England and Wales held that it was not right for the judge, in imposing sentence on a charge of incest, to take into account other related acts of incest with which the defendant had not been charged, since to do so would in effect, deprive the defendant of his right to trial by jury in respect of those alleged offences. The respondent contends that that principle applies in the Northern Territory, where an accused person faced with a charge on indictment has a right to be tried by a jury.[17]
Brennan J, took a narrower view than the majority in De Simoni, drawing a distinction between the approach in cases in which the uncharged acts were admitted on a plea of guilty (as was the case in De Simoni) and where they were contested, but affirmed the principle in Huchison:[18]
It is a rule of sentencing practice that an allegation made but not admitted or otherwise proved against an offender cannot be taken into account in passing sentence upon him. Ordinarily, a contest upon an issue of fact is resolved by the sentencing judge after hearing evidence relating to that fact if the fact has not been determined by a jury verdict and if the fact is of sufficient importance to justify a hearing. But where statute provides that a particular issue is susceptible of resolution by the verdict of a jury, a sentencing judge cannot deny an offender his right to a jury trial of that issue, and himself assume the function of finding the facts. Where there is a contest as to a circumstance of aggravation which might have been alleged in an indictment and submitted to a jury’s determination, but which was not so determined, the judge cannot impose sentence on the footing that the circumstance of aggravation has been established. The Court of Criminal Appeal so held when it reduced the sentence in R. v. Bright. Darling J., delivering the Court’s judgment, said that a judge “must not attribute to the prisoner that he is guilty of an offence with which he has not been charged—nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation”. Where there is a contested issue of fact affecting the sentence which ought to be imposed it would be wrong to deny an offender the right to have a jury’s verdict upon the contested issue, and to sentence him as though the issue had been resolved adversely to him. But where adverse facts are admitted and no resolution of a contested issue is required the offender is denied no right and loses no safeguard if the agreed facts are taken into account in passing sentence upon him.
The respondent concedes that, in certain circumstances a sentencing judge may draw inferences from the admission of uncharged acts to show that the subject charges were not isolated instances, to place the offending in its proper context and as matters going to character,[19] but submits that that does not endorse the use of criminal acts that have not been admitted and could have been the subject of charges but were not left to the jury to determine.
The respondent also concedes that similar considerations apply when an offender is sentenced on representative counts, but this can only occur with the consent of the accused. This is not such a case.
The De Simoni principle does not always dictate that conduct of an accused which could have been the subject of a separate charge may not be taken into account for any purpose on sentencing; it is a question of fairness and a matter of degree. In R v Syrch & Burns,[20] this Court considered the De Simoni principle in the context of post-offending conduct on admitted facts on a plea of guilty to manslaughter. At first instance, the sentencing judge had declined to consider the post-offending conduct of Burns in dismembering and disposing of the deceased’s body — which could have amounted to a charge of misconduct with regard to a corpse carrying 2 years’ imprisonment — and the post-offending conduct of Syrch in making false statements about the deceased — which could have amounted to a charge of accessory after the fact to murder carrying 14 years’ imprisonment. This Court determined that fairness and the practical administration of justice dictated that both sets of conduct should not be separately charged but should be taken into account as part of the surrounding circumstances for sentencing purposes.[21]
In Syrch, Martin (BR) CJ (Southwood J and Martin AJ agreeing) referred to the ratio on De Simoni and said:
In the matter under consideration, there is no question of taking into account aggravating circumstances which would have warranted a conviction for a more serious offence or an offence carrying a greater maximum penalty. The Criminal Code does not specify any circumstances which are capable of aggravating the offence of manslaughter. There is a single maximum penalty of life imprisonment.
The appellant contends that similar considerations apply in the present case. There are no specified aggravating circumstances for an offence against s 192(3) which attract a greater maximum penalty; there is a single maximum penalty of life imprisonment.
Similarly, in R v Teremoana,[22] Cox J said:
However, it is certainly not a universal rule that the judge, when sentencing for the offence specifically charged in the information, may never have regard to relevant actions of the defendant that, strictly speaking, constituted separate offences. If they were offences of lesser gravity than the offence of which the defendant has been convicted, then it will be a matter of degree and fairness whether they may properly be taken into account as a part of the circumstances surrounding the offence charged. If a burglar is disturbed in the course of ransacking a house, and seriously assaults the victim, the assault should be separately charged and not regarded as a mere matter of aggravation of the burglary. R v Parse/I (1980) 28 SASR 369. On the other hand, relatively minor indecencies that are directly associated with an act of rape, though serious enough in themselves, are often not separately charged but are nevertheless taken into account by the sentencing judge as circumstances of aggravation. In R v Sharp [1983] 36 SASR 215 the defendant was convicted of misprision of felony. He helped to remove the body of a murder victim from the house where the murder had been committed and to bury it in a lonely spot many kilometres away. It was held that the defendant could not be sentenced on the footing that he was an accessory after the fact to murder — a more serious offence than the passive crime of misprision — but it was not suggested that his participation in the removal and burial was not a relevant circumstance of aggravation, and I do not think that the position would have been any different had it transpired, say, that burying a person on a roadside was contrary to some health regulation. As the Chief Justice said in R v Austin, it is a matter of degree.
The Court in Syrch found it necessary to identify the principle applicable to the sentencing exercise when the primary offence is accompanied by a circumstance of aggravation that could have been charged as a separate offence and agreed with the following observations of King CJ (with whom Zelling and Bollen JJ agreed) from R v Austin:[23]
It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation. Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.
If a person is to be punished for conduct which is said to be criminal, generally speaking justice requires that he be charged with it and have the opportunity of defending himself. If he is not charged with it, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime. This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree.
Applying these principles in Syrch, Martin (BR) CJ determined that the conduct of the offenders in disposing of and cleaning up the body was sufficiently linked to the murder that it formed part of the surrounding circumstances bearing on its objective seriousness. In so finding, his Honour said:
It was the duty of the sentencing judge to take into account all relevant circumstances surrounding the commission of the crimes. This duty applies to circumstances that both aggravate and mitigate the seriousness of the offending. It follows from these reasons that, in my opinion, the sentencing process was attended by error. His Honour erred in approaching sentence on the basis that the manner of disposal of the body was “not directly relevant to the offending” and that the respondents were “not to be punished” for their conduct after the commission of the crime because that conduct “would constitute a separate and serious crime” with which the respondents had not been charged. His Honour erred in restricting the use of the conduct to the assessment of remorse and prospects of rehabilitation. The conduct should have been taken into account as part of the surrounding circumstances of each crime bearing upon the objective seriousness of the crimes committed by the respondents and upon their moral culpability.
In my view, there was no error in the sentencing judge’s approach. The sentencing judge did not impermissibly take into account conduct that amounted to a separate offence which would have carried a higher maximum penalty. The maximum penalty for each of counts 1 and 3 was imprisonment for life. Nor can it be inferred that the sentencing judge took the uncharged acts into account in such a way as to punish the respondent for those uncharged acts. His Honour specifically said, several times that he was not punishing the respondent for those matters but was taking them into account for specific, very limited purposes, as explained at [30] and [31] above. Essentially, the sentencing judge took those uncharged acts into account as part of the evidence establishing the nature of the physically and sexually violent and controlling relationship.

It should be noted that counsel for the respondent conceded that there was evidence on which the sentencing judge could have found that the relationship had been sexually and physically violent and controlling without taking into account the three acts of sexual intercourse without consent which the respondent says should have been separately charged or left out of account.
It is also noteworthy that the forcible injection of the victim with methamphetamine for the purpose of facilitating the commission of count 1, which the respondent contends could have been the subject of a separate charge under s 176 of the Criminal Code, was conceded by the respondent in written submissions on sentencing to be an aggravating factor.[24] Paragraph 23 of the respondent’s written submissions on sentence, appearing under the heading “Objective Seriousness” reads:
It is conceded that the threats, hit to the head and administering of the drug are aggravating features of this count [ie count 1].
There was some confusion as to whether this amounted to an admission that the respondent had in fact forcibly injected the victim with methamphetamine, or simply a concession that, if the sentencing judge found that he had done so, that would be an aggravating factor. For present purposes, it doesn’t matter. The sentencing judge did find beyond reasonable doubt that the conduct had occurred and there was a concession that that was an aggravating factor. No De Simoni submissions were made at the sentencing hearing. A party is generally bound by the conduct of the case in the court below. Only in exceptional circumstances will a party be permitted to raise a new argument on appeal which could have been run in the court below.[25] In JB v Northern Territory,[26] Southwood J and Graham AJ (with whom Riley AJ agreed) said:
... The appellant’s submission should also be rejected on the basis that it is elementary that a party is bound by the conduct of his or her case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him or her, to raise a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so.
This principle also applies in criminal cases. A court of criminal appeal will intervene if it is shown that there has been a miscarriage of justice,[27] but a miscarriage of justice has not here been demonstrated.
In any event, we consider that forcibly injecting the victim with ice was so directly related to that crime, occurring immediately beforehand, as to form part of the surrounding circumstances and was properly taken into account as such.
Crown appeal – relevant principles
The principles governing Crown appeals against sentence are not in dispute.[28]
(a)Crown appeals against sentence should be a rarity brought only to establish some matter of principle.[29]
(b)Manifest inadequacy in a sentence amounts to such an error of principle which the Crown is entitled to have the appeal court correct.[30]
(c)The presumption is that there is no error. It is incumbent upon the appellant 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.[31]
(d)The principles in House v The King[32] 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.
(e)The principle expressed by King CJ in R v Osenkowski, also remains applicable:[33]
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 the judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has been traditionally 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 an 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.
(f)Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be re-sentenced.[34]
(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.[35]
Individual sentences for counts 1 and 3 manifestly inadequate
The Crown referred to Forrest v The Queen[36] and the other serious cases of sexual intercourse without consent reviewed by the Court of Criminal Appeal in Forrest, in which the starting points, before any reduction for guilty pleas or remorse were 11 ½ years (Wilfred Thomas), 13 ²/₃ years (Massilas Ganambarr aka Rogers), 7 years (Lloyd Ashley), 11 years (ZP, Jonex Finlay & Hyuntae Kim), 8 years and 9 months (Clancy Ryan), and 10 years (Preston Andy).
Counsel for the respondent pointed out that the cases referred to in Forrest were of a different kind to the present case. They mostly involved strangers and the objective seriousness consisted of the infliction of additional violence and significant injury.
The appellant acknowledged that the cases referred to in Forrest were different from the present case, but contended that they nevertheless were examples of objectively serious offences of sexual intercourse without consent. The Court in Forrest observed, citing The Queen v Nabegeyo[37] that, although there is no tariff for crimes of sexual assault given the wide range of circumstances and offenders, sentencing standards or practices for this type of offence might still be discerned.[38]
The appellant contended that the sentencing judge had correctly held that this was an example of the most serious type of offence. The respondent characterised the sentencing judge’s assessment of the objective seriousness of the offending as in the higher, not the highest range. In assessing the objective seriousness of the two offences of sexual intercourse without consent, the sentencing judge made the following comments (set out in full at [34] above):
…. while your lawyer conceded the threats and the violence involved and also that you had administered a drug to [the victim] on the first occasion, she contended that your offending was not the most serious example of this type of offending. I do not agree.
In my view, the facts of this offending, that I reviewed earlier, and the factors to which the prosecutor adverted, firmly place your offending on both of these offences in the higher range for offences of this kind.
The appellant relies on the fact that the sentencing judge said he did not agree with Defence counsel’s contention that the offending “was not the most serious example of this type of offending”. The respondent relies on his Honour’s statement in the following paragraph:
In my view, the facts of this offending, that I reviewed earlier, and the factors to which the prosecutor adverted, firmly place your offending on both of these offences in the higher range for offences of this kind.
We do not think it matters whether the sentencing judge assessed the offending as an example of the most serious type of offending or as being in the higher range. It was, in our view, clearly very serious offending and the sentencing judge rightly characterised it as such for the reasons outlined in the sentencing remarks. We would place the offending as in the higher range – towards the most serious.
The appellant contends that the first error made by the sentencing judge was not to have proper regard to the maximum sentence of life imprisonment when determining the individual sentences. We agree. Given the objective seriousness of the offences at the higher end of the range, the maximum penalty of life imprisonment, the lack of any mitigating circumstances, and the respondent’s age and prior criminal history, a sentence of 8 years each for counts 1 and 3 is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.
Inadequate accumulation of sentences for counts 1 and 3
The appellant contends that an accumulation of only one year of the sentences for counts 1 and 3 fails to reflect the separate criminality involved in the two offences which occurred four days apart at different places and in different circumstances. The appellant referred to the judgment of the Court of Criminal Appeal in McKay v The Queen.[39]In that case the appellant was sentenced to an aggregate sentence of 14 years with a non-parole period of 10 years for two offences of sexual intercourse without consent, having been found guilty following a trial by jury. The appellant contended, inter alia, that the sentence was manifestly excessive and that the sentencing judge erred in imposing an aggregate sentence, which was not permitted by s 52 of the Sentencing Act.
The offending consisted of one act of vaginal intercourse without consent and one act of anal intercourse without consent committed after the applicant had locked the victim in a bedroom and continued despite her screaming and physical resistance. The offender knocked the victim unconscious before the second offence and when she screamed, placed a pillow over her head to prevent her doing so. The victim suffered severe pain and devastating long term consequences. The Court described the two offences as “very serious offences, albeit not at the top of the range”.
The Court of Criminal Appeal held that the sentence of 14 years with a non-parole period of 10 years was not manifestly excessive but allowed the appeal in part on the ground that the sentencing judge had erred in imposing an aggregate sentence. The appellant was re-sentenced to imprisonment for 8 years on the first count and 10 years on the second count and the court ordered that 6 years of the sentence on the second count be served cumulatively with the sentence on the first count bringing the total effective sentence to the same as that ordered by the sentencing judge, imprisonment for 14 years with a non-parole period of 10 years.
The appellant pointed out that the two offences in McKay were much more closely interconnected than the offences in the present case and could more appropriately be characterised as a continuing course of conduct, yet the Court of Criminal Appeal considered an accumulation of 6 years to be appropriate.
We agree that in the circumstances of the present case, where there were two separate decisions to engage in criminal conduct on two separate days, at different locations, albeit that there had been acts of physical and sexual violence and threats of violence in between, an accumulation of only one year between the two sentences failed to reflect the total criminality of the respondent’s conduct and resulted in a total effective sentence that was manifestly inadequate.
Resentence
We re-sentence the respondent to a term of imprisonment for 12 years on count 1 and imprisonment for 12 years on count 3 and direct that 4 years of the sentence for count 3 be served cumulatively with the sentence for count 1, bringing the total effective sentence to imprisonment for 16 years. We fix a non-parole period of 11 years and 3 months. The sentences for counts 2 and 4 were not appealed; nor was the sentence of two months’ imprisonment for breach of the DVO. We confirm the sentences of imprisonment for 3 months on Count 2 (property damage to mobile phone) and imprisonment for 9 months on count 4 (aggravated assault), both to be served concurrently with the sentence for count 1. We confirm the sentence of 2 months imprisonment for the breach of the DVO and direct that it be served concurrently with the sentence for counts 1 and 3.
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[1] Sentencing Remarks Reeves J, 20 February 2024, pages 12 and 13

[2] Sentencing Remarks Reeves J, 20 February 2024, page 13

[3] Sentencing Remarks Reeves J, 20 February 2024, page 13

[4] Sentencing Remarks Reeves J, 20 February 2024, page 14

[5] Sentencing Remarks Reeves J, 20 February 2024, pages 17 and 18

[6] At the time of imposition of the sentence the minimum non-parole period was 70% of the sentences for offences against s 192 (Counts 1 and 3) and not less than 50% of the total sentence. That would have been 6 years and 3.6 months (6 years 4 months to the nearest whole month).

[7] Sentencing Act 1995 (NT) s 5(2)(b) (the “Sentencing Act”)

[8] Ibid, s 5(2)(c)

[9] Ibid, s 5(2)(f)

[10] Ibid, s 104(1)

[11] R v De Simoni (1981) 147 CLR 383 (“De Simoni”)

[12] De Simoni at 389 per Gibbs J

[13] Nguyen v The Queen (2016) 256 CLR 656 at 667, [29] per Bell and Keane JJ

[14] De Simoni at 389 per Gibbs J

[15]Supra at 390

[16][1972] 1 WLR 398 (“Huchison”)

[17]Criminal Code s 348

[18] De Simoni at 406-407 per Brennan J

[19] See Weininger v The Queen (2003) 212 CLR 629 at 640 [32]; Lawrence v The Queen (2007) 1 ACTLR 158 at 160; Edmonds v The Queen (2019) NTCCA 1 at [31]-[35]

[20] [2006] NTCCA 20 (“Syrch”)

[21] Ibid, p 144-145 at [25]-[27]

[22] (1990) 54 SASR 30

[23] (1985) 121 LSJS 181 at 183

[24] AB 780

[25] Gahani v The Queen [2022] NTCCA 13 at [141]

[26] (2019) 343 FLR 41 at [217] citing University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 at [54]; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645

[27] Gahani v The Queen [2022] NTCCA 13 at [141]

[28] The Queen v Kahu-Leedie [2022] NTCCA 4 at [21]; See also The Queen v Mossman [2017] NTCCA 6 at [8]-[18]. The following summary is taken verbatim from Arnott v Blitner [2020] NTSC 63 at [75]

[29] The Queen v Roe [2017] NTCCA 7 at [11]; See also Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310

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

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

[32][1936] HCA 40; 55 CLR 499

[33] (1982) 30 SASR 212 at 212-213

[34] See also R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [29]

[35]Criminal Code s 414(1A)

[36] [2017] NTCCA 5 (“Forrest”)

[37] [2014] NTCCA 4; 34 NTLR 154 at [23]

[38] Forrest at [76]

[39] (2001) NTLR 14 (“McKay”)

[2024] NTCCA 14

18 December 2024

Key Legal Topics

Areas of Law

Criminal Law

Statutory Interpretation

Legal Concepts

Sentencing

Charge

Consent

Procedural Fairness

Statutory Construction