The Queen v Kahu-Leedie

[2022] NTCCA 4

CITATION:The Queen v Kahu-Leedie [2022] NTCCA 4

PARTIES:THE QUEEN

v

KAHU-LEEDIE, Steven

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

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 12 of 2021 (22027585)

DELIVERED:  25 February 2022

HEARING DATE:  8 February 2022

JUDGMENT OF:  Kelly, Blokland and Brownhill JJ

CATCHWORDS:

CROWN APPEAL – respondent pleaded guilty to two counts of sexual intercourse without consent – each count involved two acts of sexual intercourse – late plea – victim suffered significant internal injuries which bled profusely – following intercourse respondent forcibly removed victim from vehicle and left her naked from the waist down and bleeding in a carpark at night with no phone – respondent sentenced to eight years and six months imprisonment with a non-parole period of six years – held sentence manifestly inadequate – appeal allowed

CROWN APPEAL – whether the Court should exercise the residual discretion not to resentence the respondent – Crown has established that the respondent ought to be resentenced to avoid injustice in the form of a manifestly inadequate sentence – no countervailing reasons for exercising the discretion – respondent resentenced to imprisonment for 11 years with a non-parole period of seven years and nine months

Criminal Appeal Act 1912 (NSW) s 5D, s 5D(1)
Criminal CodeAct 1983 (NT) s 192(3), s 411(4), s 414, s 414(1A), s 417
Sentencing Act1995 (NT) s 6A(b), s 52(3), s 55

Arnott v Blitner [2020] NTSC 63; Carroll v The Queen [2011] NTCCA 6; CMB v Attorney-General of New South Wales (2015) 256 CLR 346; Everett v The Queen [1994] HCA 49; 181 CLR 295; Forrest v The Queen [2017] NTCCA 5; Green v The Queen (2011) 244 CLR 462; Griffiths v The Queen [1977] HCA 44; 137 CLR 293; House v The King [1936] HCA 40; 55 CLR 499; Keeley R [2014] NSWCCA 139; Lo Castro v The Queen [2011] NTCCA 1; McKay v R [2001] NTCCA 3; R v BJW [2000] NSWCCA 60; 112 A Crim R 1; R v Osenkowski (1982) 30 SASR 212; R v Riley (2006) 161 A Crim R 414; R v Stoupe [2015] NSWCCA 175; Stephens v R [2010] NSWCCA 93; The Queen v Mossman [2017] NTCCA 6; The Queen v Pham [2015] HCA 39; [2015] 256 CLR 550; The Queen v Roe [2017] NTCCA 7; R v Simmons [2019] NSWCCA 20; The Queen v Simpson [2020] NTCCA 9; The Queen v Wilson (2011) 30 NTLR 51; Whitlock v The Queen [2018] NTCCA 7, referred to

REPRESENTATION:

Counsel:

Appellant:V Engel

Respondent:  M Thomas

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    B

Number of pages:  32

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

The Queen v Kahu-Leedie [2022] NTCCA 4

No. CA 12 of 2021 (22027585)

BETWEEN:

THE QUEEN

Appellant

AND:

STEVEN KAHU-LEEDIE

Respondent

CORAM:    KELLY, BLOKLAND AND BROWNHILL JJ

REASONS FOR JUDGMENT

(Delivered 25 February 2022)

THE COURT:

1. This is a Crown appeal against sentence.  On 16 August 2021, the respondent pleaded guilty in the Supreme Court to two counts of sexual intercourse without consent with the victim CG.  The maximum penalty for each count was imprisonment for life.  It was a late plea.  The matter was listed for trial beginning on Monday 16 August 2021.  The respondent indicated that he would plead guilty on Friday 13 August 2021.  He was sentenced to a total effective sentence of imprisonment for eight years and six months (reduced from 10 years for the guilty plea) with a non-parole period of six years.  The starting point for each count was nine years and the sentencing judge ordered one year’s accumulation between the two counts before applying a reduction of 15%.

   Facts

2. At about 5.00 pm on Friday 28 August 2020, the respondent went to the Karama Tavern in his employer’s utility.  While he was there he was introduced to the victim, CG.  At about 6.15 pm, he asked CG to go for a drive with him and she agreed.  He drove with CG to the Malak supermarket where the respondent bought 10 cans of whiskey and cola and a packet of cigarettes.  Then he drove with her to Lee Point and on to Casuarina Beach car park in Brinkin.

3. The respondent and CG sat in the truck for a short while drinking cans of Jack Daniels and Cola.  Then the respondent got out of the truck, went to the passenger side, opened the door and forcibly removed CG’s shorts and underwear, spread her legs and engaged in non-consensual digital-vaginal, penile-vaginal, digital-anal and penile-anal intercourse in the passenger seat of the truck.  In doing so, the respondent caused significant internal injuries to CG’s genitals which bled profusely.  At the conclusion of the intercourse, the respondent ejaculated into CG’s vagina.  Then he closed the door and got back into the driver’s seat.

4. He drove the truck for a short distance – about 50 metres – then he stopped, again walked around to the passenger side, opened the door and forcibly pulled CG out of the truck.  Then he got back into the driver’s seat and drove away.  CG was left sitting in the unlit car park without pants or underwear or mobile phone, and with blood running from her genital area.

5. CG was in tremendous pain in her groin area.  She collapsed to the ground, unable to walk.  Sometime later she managed to get to her feet and make her way out of the carpark and onto Daribah Road.  She lay down, injured, on the road.

6. About a half an hour later, someone (LX) driving past found her there.  At first LX thought she was a dead animal on the road but when he realised CG needed help he stopped to help her.  He noticed that her anus was bleeding.  CG eventually managed to tell LX she had been raped.  LX’s partner called 000 and shortly after that St John Paramedics arrived.

7. CG was taken by ambulance to Royal Darwin Hospital and admitted.  The next day there was still vaginal bleeding and anal pain.  The nurse who examined her found that she had three linear abrasions to the right side of her labia minora, blood on her sphincter, some minor abrasions to her legs, an occipital haematoma (ie a collection of blood under the skin at the back of the head) and a large gaping hole in her vaginal canal.  CG underwent surgery that day and the surgeon observed that she had a deep vaginal wall laceration/tear starting at the hymenal remnant extending upwards deep in the support tissue around the rectum for about five cm.  This was treated with sutures.  She also had a contusion (bruise and swelling) in the anus and likely a laceration but no evidence of perforation.

8. Those injuries were consistent with blunt force trauma.  They carried the risk of ongoing bleeding for weeks to months, pain at the site of the vaginal trauma, and the risk of long term painful sexual intercourse for years.  As a result of her injuries, CG received numerous stitches to her vaginal wall, and experienced pain and discomfort.  She was given pain relief medication and antibiotics.

9. The respondent was identified through CCTV and arrested.  On 29 August 2020, a search warrant was executed at the respondent’s home and his truck was seized.  An examination of the truck found CG’s DNA and blood in various parts of the truck.  This included blood stains on the front passenger seat, which appeared to have been cleaned, and large amounts of blood underneath the front passenger seat.  Work boots with CG’s blood on them were also found in the truck.

10. The respondent took part in an electronically recorded interview with police.  He told them that he and CG had kissed, that he had had consensual penile-vaginal intercourse with CG in the front passenger seat and ejaculated in her vagina.  He also said he told her he wanted to have sex on the side of the truck tray and when she got out of the truck he shut the door, climbed back into the driver’s seat and drove away.  He said he wasn’t sure if CG had been injured; he noticed a spot, or a few spots of blood in the truck the next morning but thought this was from her period.  He later admitted that he had cleaned CG’s blood from the passenger seat but maintained that he had had consensual intercourse with her.

11. CG made a victim impact statement in which she said:

    I had cuts inside and outside my private area.  I had to have surgery to fix this.  It was so painful they gave me morphine in hospital.  It felt like everything got shoved in by him.  That pain stayed for weeks.  I had open wounds on my legs from the road where he grabbed me.  I have scars on my leg.  I couldn’t poo because it was so painful as well.  I had stiches [sic] inside me that stung and I had to have a catheter.  I had a swollen head from hitting the gearstick.  I almost fainted when it happened but I just had to take it.  It went on for so long and it made me feel very sore.

12. CG described the emotional effect of the rapes in the following terms.

    I didn’t know this was going to happen.  I did trust him.  I wasn’t expecting anything like this.  I feel really bad, like anxiety and depression when I think about it.  When I drink and think about it I feel like suicide but I remember my kids so I keep going.  I have to live with this every day of my life.  I can’t tell my family what happened because it’s too painful.  I have to keep it inside.  No-one really understands what I’m going through.  It’s stopped me eating properly.  I just end up watching TV so I don’t think.  There’s times where I’m feeling OK, but times when I’m just depressed.  I have to grow old with this in my life.  I don’t want to meet another man again.  I don’t want to have anything to do with any men because I’m scared.  I have nightmares and get flashbacks about that night at Casuarina.

13. The sentencing judge said, “Clearly your conduct has had a significant and ongoing detrimental impact upon the life of your victim.”

    The respondent

14. The respondent had a reasonably lengthy criminal history which, as well as numerous driving offences, includes convictions for stealing, unlawful entry, property damage and six convictions for aggravated assault, one of which was against his former partner, as well as two breaches of Domestic Violence Orders and five breaches of other court orders.

15. The sentencing judge noted that the respondent was 30 years old and was 29 at the time of the offending.  He was raised in Darwin and completed year 11 at a local high school.  He had a very good work history, working for the last 10 years as a fencer, six of those for the same employer who was willing to take him back when he finished his sentence.  His Honour said, “That is very much to your credit.”

16. The sentencing judge spoke about the respondent’s family circumstances.  He had a relationship that was over and two sons aged five and 13.  He also had a supportive extended family, members of whom were in Court to support him.  Two of them wrote character references.

17. The respondent pleaded guilty on the morning the trial was due to commence, having indicated a plea several days beforehand.  The sentencing judge said:

    There has been no genuine expression of remorse for your conduct.  You may feel that you have let your family down, but there has been nothing put to me which would lead me to the conclusion that you feel any genuine concern for your victim and what you did to her.

    Given the nature of the offending to which you have admitted, your very late acceptance of responsibility for your conduct, your previous criminal history and the lack of remorse, I regard your prospects for rehabilitation as moderate at best.

18. The sentencing judge said this about the seriousness of the offending:

    The offending was objectively serious.  It was a violent attack upon a woman who, in the circumstances was, effectively defenceless.  There was an element of planning to your conduct, in that you lured her into your vehicle and drove to two separate and relatively remote locations.  However, I accept, of course that such conduct may be consistent with a desire to have consensual intercourse, as well as the offences to which you have now pleaded guilty.

    Nevertheless, your subsequent conduct was not in any sense consensual.  She was alone.  While the attack was not prolonged, it went on for some time and may be described as moderate in length.  Although you did not use a weapon and it is not suggested that you used any additional gratuitous violence beyond that involved in the sexual intercourse, your attack upon her was very rough, resulting in injuries to which I have already made reference.

    You penetrated her vagina and her anus in circumstances where it must have been obvious to you that she was not consenting.  As I have mentioned, she was heard to call out, “Don’t rape me.”[1]  This was not a case of recklessness as to whether she was consenting.

    After having assaulted her in this dreadful manner, you then forcibly removed her from the vehicle and callously drove away, leaving her alone and vulnerable in the unlit car park.  Your conduct was seriously degrading of your victim.

19. His Honour then spoke of the prevalence of violent sexual offending in the Territory and the need for general and personal deterrence, protection of the community, punishment and denunciation and imposed the sentence referred to in paragraph [1] above.

    The appeal

20. The Crown has appealed against the sentence on the ground that the learned sentencing judge erred in imposing an overall sentence that was manifestly inadequate.  To support that single ground of appeal, the Crown relied on a number of particulars, namely that:

    (i)the learned sentencing judge failed to have sufficient regard to the extreme nature of the injuries inflicted to the victim’s genitals as a result of the offending;

    (ii)the learned sentencing judge failed to have sufficient regard to the fact that each count related to two forms of intercourse, and the related need for greater accumulation; and

    (iii)the learned sentencing judge failed to impose a sentence that reflected the gravity of the offending.

    Principles

21. The principles governing Crown appeals against sentence are not in dispute.[2]

    (a)Crown appeals against sentence should be a rarity brought only to establish some matter of principle.[3]

    (b)Manifest inadequacy in a sentence amounts to such an error of principle which the Crown is entitled to have the appeal court correct.[4]

    (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.[5]

    (d)The principles in House v The King[6] remain applicable to the determination of manifest inadequacy:

    It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

    (e)The principle expressed by King CJ in R v Osenkowski, also remains applicable:[7]

    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.[8]

    (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.[9]

    Particular (1) – the extreme nature of the injuries

22. The appellant contends that the injuries inflicted on CG’s genitals can aptly be described as ‘horrific’.  They include substantial injuries to both her vagina and anus including abrasions, lacerations and a large gaping hole in her vaginal canal.  She required surgery and multiple sutures to repair the injuries.  The injuries carried serious long term risks.  In addition she suffered serious, long lasting emotional trauma.

23. In written submissions, the appellant noted that the sentencing judge did not repeat the descriptions of the injuries given by the gynaecologist when assessing the seriousness of the offending, although his Honour did refer to the fact that the injuries were thought to be consistent with blunt force trauma and referred to some of the treatment required.

24. The appellant contends that the injuries to the victim’s genitals and treatment required were so serious that they warranted careful attention in assessing the seriousness of the offending and that those injuries placed this matter well above what might be regarded as the base level for offending of this kind, noting that many sexual offences do not occasion injuries to the genitals of the victims.  Further, the kind of injuries sustained fell above the type of genital injuries occasionally seen in offences of this kind such as erythema (redness of the skin) and minor lacerations.

25. The appellant contends that the nature of the injuries not only elevated the effect on the victim, but also the culpability of the offender who perpetrated this assault on a woman who so clearly must have been in significant pain and distress.  We agree.

26. We do not agree that it was necessary for the sentencing judge to repeat in detail the nature of the injuries suffered by CG when assessing the objective seriousness of the offending.  However, we do agree with the conclusion reached by the appellant in written submissions that “[t]he particular cruelty in having injuries inflicted to her genital regions and the risk and associated anxiety arising from that, combined with the trauma of the sexual assault offences, was not adequately reflected in the sentence imposed.”

    Particular (ii) – the need for greater accumulation

27. The appellant contends that the sentencing judge did not have sufficient regard to the fact that each count related to two forms of intercourse, digital-vaginal and penile-vaginal (count 1) and digital-anal and penile-anal (count 2), which clearly makes each count more serious than if it had consisted of one act of intercourse only.  The appellant contends that as the offending conduct involved four separate acts of intercourse without consent rolled into two counts on the indictment that should have significantly affected the sentencing judge’s assessment of the seriousness of each count and the level of concurrency between the counts.

1. The appellant relied on Carroll v The Queen[10] in which this Court acknowledged that the application of the principal of totality to “sexual offending is often difficult because the essence of a lot of sexual offending is to be found in the commission of numerous sequential acts of a violent, degrading or humiliating kind, each of which constitutes a further invasion of the rights and wellbeing of the victim” and “each offence may involve an additional violation of the victim and supply a significant individual contribution to the aggregate trauma and debasement of the victim.”

2. The appellant submitted that “the two offences each incorporated two distinct types of intercourse, each count resulted in injuries to the victim’s genitals, and each were distinct and serious violations of her body.  The modest accumulation imposed by the learned trial judge (of one year) was insufficient to reflect the criminality of each count, and the total criminality involved.”  We agree.  Quite apart from the inadequacy of the sentences imposed for each count, ordering only one year of accumulation effectively left the offending for the two separate acts of sexual intercourse without consent in count 2 with minimal and disproportionate consequences.

   Particular (iii) – failure to impose a sentence that reflected the gravity of the offending

3. This “particular” is really the argument for the substantive ground of appeal.  The appellant contends that this offending was elevated by virtue of a number of factors including:

   (a)that the respondent had actual knowledge (as opposed to recklessness) of the victim’s lack of consent;

   (b)the respondent’s callous disregard for the victim’s pleas of, “Don’t rape me,” during the assault;

   (c)that as the respondent didn’t wear protection, both counts carried the risk of disease and count 1 carried the additional risk of pregnancy;

   (d)that the respondent left the victim in a degrading and vulnerable position after the sexual assaults;

   (e)that the respondent’s conduct has had a significant and ongoing detrimental effect on the life of the victim;

   (f)the vulnerability of the victim;

   (g)the nature of the injuries inflicted; and

   (h)that the offending related to four types of sexual intercourse without consent.

4. We agree that the offending was elevated by virtue of these factors.  We would add that the respondent’s conduct in leaving the victim alone, at night, in a car park in an isolated location, whilst bleeding and in pain from her injuries, with no means of calling for help, was dangerous conduct raising the clear risks of a deterioration in her medical condition and/or further harm from being struck by a vehicle.

5. In contrast, the appellant submitted that there was very little by way of mitigation in the respondent’s favour.  He was not a young offender; he did not experience the social, educational and other disadvantages in childhood and upbringing all too often seen in this Court; he was found not to be genuinely remorseful; the sentencing judge found that his prospects of rehabilitation were “moderate at best”; and he had a history of prior violent offending against women (albeit no prior sexual offences).

6. The respondent contended that the objective seriousness of the offending was qualified by nine factors:

   (1)The assault was not prolonged and was characterised by the sentencing judge as “moderate” in length.  It was not committed in the context of continuing emotional/physical abuse over an extended period of time (as in Lo Castro v The Queen).[11]

   (2)The initial trip to the remote location where the crime was committed was equally consistent with a desire to have consensual sexual intercourse.

   (3)The offences were not committed in the course of an abduction.

   (4)There was no use of a weapon.

   (5)There was no gratuitous violence employed above that involved in the sexual intercourse.

   (6)There was no evidence of planning in relation to the offences, albeit that the sentencing judge found an element of planning in “luring” the victim into the truck and driving to the remote locations.

   (7)The respondent was heavily intoxicated at the time of the offending.

   (8)The respondent was not in a position of trust to the victim.

   (9)The respondent did not engage in any emotional manipulation of the victim of threats to her to avoid detection.

7. These features can best be characterised as the absence of further aggravating features of the offending, and the absence of an aggravating feature is not a mitigating feature.  We agree with the appellant’s submission that the absence of other extremely serious factors, such as detaining the victim or threatening to kill her (which may themselves have amounted to separate offences), do not mitigate the seriousness of the subject offending.  Not every horrific factor or combination of factors imaginable must be present for the offending to be regarded as extremely serious and in the high or very high range of seriousness for this kind of offending.

8. The respondent emphasised the fact that no weapon was used and no additional gratuitous violence was used above that involved in the sexual intercourse and made reference to cases in which similar sentences to the instant case were imposed in cases in which the offender had used a weapon and additional violence.  However, the violence that was used in the sexual intercourse was significant – sufficient to cause serious injuries to the victim’s genitals and a haematoma at the back of the head from the impact of her head against the gear stick of the truck.  Further, despite the finding of the sentencing judge that there was no additional gratuitous violence, there was some additional violence inflicted on the victim when the respondent forcibly removed her from the truck after the assault, upon which she collapsed to the ground and in the course of which she sustained abrasions on her legs.

9. Use of a weapon is listed as an aggravating feature in s 6A(b) of the Sentencing Act1995 (NT) (“Sentencing Act”) but that does not mean that every rape case in which a weapon was used must automatically be considered to be more serious than every case in which a weapon was not used.

10. The objective seriousness of the offending must be assessed in each case considering all of the circumstances.  Here, the seriousness of the injuries, the degree of force that must have been necessary to inflict those injuries in what can only be described as a brutal attack, the callous treatment of the victim by the respondent both during and after the attack, and the fact that there were four acts of sexual intercourse without consent make this offending extremely serious.

11. The respondent relied on a number of comparative sentences, R v Wilfred Thomas,[12] R v Massilas Ganambarr aka Rogers,[13] R v Lloyd Ashley,[14] R v ZP,[15] R v Jonas Finlay,[16] R v Clancy Ryan,[17] R v Preston Andy,[18] and R v Hyuntae Kim,[19] all of which are referred to and summarised in Forrest v The Queen.[20]

12. The respondent contended that these comparative sentences demonstrated that, in the past, comparable sentences to the one in the instant case had been given for offences that were more serious than the instant offence: thus the sentence imposed on the respondent could not be manifestly inadequate.

13. Several things can be said about that contention.  The first is that it is notoriously difficult to definitively categorise different examples of the offence of sexual intercourse without consent as more or less serious than other offences given that:

    (a)each had to be assessed taking into account all of the relevant circumstances of the offence which are infinitely variable; and

    (b)certain aggravating features may be present in one offence and different aggravating features in another.

    Further, the sentence imposed must then have taken into account the subjective circumstances of each individual offender which may be as variable again.  As this Court said in Forrest v The Queen:[21]

    It is not possible to identify with such specificity a range or standard for offending involving adult victims.  ...  Matters which might be broadly described as “rape” cases are particularly fact-sensitive, such that the determination whether a sentence falls within or without the relevant “range” is often fraught with difficulty.

14. Second, to the extent that one can roughly categorise the offences in the cases relied upon by the respondent as more or less serious than the instant offences, the cases do not support the contention of the respondent that similar sentences have been imposed for more serious offences.  The appropriate point of comparison between comparative cases is the starting point, rather than the sentences actually imposed because different sentences have been adjusted by different amounts (or not at all) depending on whether there has been a verdict at trial or a guilty plea, and in the latter case whether the plea was early or late and whether or not it was indicative of genuine remorse.[22]

15. The starting points in the cases relied upon by the respondent were:

    ·Thomas -12 years

    ·Rogers – 13 years 4 months

    ·Ashley – 7 years

    ·ZP – 11 years

    ·Finlay – 11 years

    ·Ryan – 9 years

    ·Andy – 10 years

    ·Kim – 11 years

16. All had higher starting points than the present case except Ryan which had the same starting point and Ashley which had a lower starting point.  In both of those cases, the objective seriousness of the offending would have to be assessed as lower than the instant case: in neither case did the victim suffer any significant injuries.  Further, in Ryan, the offender was 22 years old at the time of the offending.  His relative youth was taken into consideration, as was the fact that he was a relatively unsophisticated person without high intelligence.

17. In none of the other comparative cases relied on by the respondent can it be said that the objective seriousness of the offending (or the appropriate sentence having regard to all the circumstances) was unequivocally greater than in the instant case.  Each was marked by different aggravating features, and there were a range of different subjective circumstances.  For example, Rogers was a particularly serious offence with a number of aggravating features.  It was a prolonged attack, in the victim’s home, with multiple penetrations including digital, penile-vaginal and penile-anal.  There was a violent struggle and the victim suffered a fractured collar-bone, numerous abrasions and bruises and haematomas to the area around her anus.  However, it lacked some of the aggravating features of the present offending such as the callous, degrading and dangerous treatment of the victim after the sexual assault.  Further, the subjective circumstances of the offender were more favourable.  He was 18 years old, from a family of non-drinkers and his prospects of rehabilitation were described as good.  The night of the offence was the first occasion in which he had been heavily intoxicated and he felt “deep shame” at his actions.

18. The appellant referred to three comparative sentences from the New South Wales Court of Criminal Appeal, R v Simmons[23] and Keeley R[24] in both of which the offenders received sentences of 15 years imprisonment after application of a 25% discount for serious sexual offending involving multiple incidents of sexual intercourse; and Stephens v R[25] in which the offender was initially sentenced, following a guilty plea, to imprisonment for 20 years with a non-parole period of 14 years for three offences of aggravated sexual intercourse without consent and one offence of aggravated “detain for advantage”.  On appeal the sentence in Stephens was reduced to 18 years with a non-parole period of 12 years.  Counsel for the appellant conceded that the New South Wales cases were of limited relevance but contended that they were of use in allowing the Court to develop a feeling for how such cases are dealt with in other jurisdictions.

19. In The Queen v Pham,[26] French CJ, Keane and Nettle JJ said:

    It is settled that, in the absence of binding authority from this Court, an intermediate appellate court must follow a statement of legal principle by another intermediate appellate court unless persuaded that it is plainly wrong.  It is also settled that a “sentence itself gives rise to no binding precedent”.  Where, however, decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate (although not define) the possible range of sentences available.  A court must have regard to such a decision in this way unless there is a compelling reason not to do so, which might include where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant, or where the court is persuaded that the outcome itself in the other court was manifestly excessive or inadequate.

20. The appellant also relied on the Northern Territory case of McKay v R[27] in which the offender received a sentence of 14 years imprisonment after being found guilty at trial for two counts of sexual intercourse without consent.  In that case the victim was an outreach worker who went to the offender’s residence to provide care for the offender who had a psychiatric disability.  The offender lured the victim into the bedroom, pushed her backwards onto the bed and engaged in penile-vaginal intercourse without consent.  At one point the victim believed the offender had ceased and tried to get up but he struck her down again and she lost consciousness.  When she came to he was engaging in penile-anal intercourse.  The sentences were eight years for count 1 (penile-vaginal intercourse) and 10 years for count 2 (penile-anal intercourse) with six years to be served cumulatively.  The appellant contended that the offence was more prolonged than in the present case but the harm occasioned to the victim in the instant case was more severe, making the case comparable.

21. Considering the sentences imposed in the cases referred to above as ‘yardsticks’, and all of the other matters referred to above, in our view, this is a case where the sentence imposed is plainly disproportionate to the seriousness of the offending.  It is so disproportionate as to be plainly unjust, and this Court can infer that in some way there has been a failure properly to exercise the sentencing discretion.  The appeal will be allowed.

    The residual discretion

22. Where a sentence has been found to be manifestly inadequate, this Court retains a residual discretion as to whether the respondent should be resentenced.  In The Queen v Mossman,[28] this Court cited with approval from The Queen v Wilson,[29] where the Court held that the Court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed, and that factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.

23. The respondent made a number of submissions to the effect that the residual discretion should be exercised so as not to vary the sentence.  The first three of these were effectively submissions that the appeal should not be allowed.

24. The fourth submission was that the Crown’s appeal had been brought with “delay”. The sentence was imposed on 24 August 2021 and the Notice of Appeal was filed on 24 September 2021, 31 days later. [When this decision was handed down, Counsel for the respondent advised that the Notice of Appeal was in fact filed on 27 September, 34 days after the respondent was sentenced.] Counsel for the respondent initially emailed counsel for the appellant contending that the appeal was incompetent as outside the 28 day time limit and not accompanied by an application for leave to appeal out of time. Counsel for the appellant pointed out that the time limit of 28 days within which to appeal in s 417 of the Criminal Code Act 1983 (NT) (“Criminal Code”) applies only to “a person found guilty desiring to appeal to the Court”, and there is no time limit for a Crown appeal under s 414 of the Criminal Code.

25. Counsel for the respondent nevertheless persisted in contending that the Court should exercise the residual discretion not to resentence the respondent on account of delay on the part of the Crown.  When pressed as to what the respondent contended was the length of the delay counsel answered, alternatively “at least 3 days” (as though there actually was a 28 day time limit on Crown appeals) and “at least 31 days” (as though there was a duty on the Crown to file an appeal against sentence at the time, or even before, the sentence was handed down).  Counsel could not point to a case in which the residual discretion had been exercised on the ground that the appeal had been filed 31 days after the sentence was handed down – or indeed on the sole ground of delay at all.[30]

26. We do not accept that there has been any relevant delay between sentencing of the respondent and the filing of the Notice of Appeal in this case.

27. The fifth submission was simply that “the Crown must negate any reason why the residual discretion of the Court not to interfere should not be exercised”, citing CMB v Attorney-General of New South Wales.[31]

28. CMB concerned the interpretation of s 5D(1) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”) which provides:

    (1)   The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.

29. The New South Wales Court of Criminal Appeal had held that the onus was on the respondent to a successful Crown appeal to show why “the residual discretion” should not be exercised to decline to impose a higher sentence.  The High Court determined that this was an error.  The plurality said:[32]

    Discretion

    Section 5D of the Criminal Appeal Act serves the dual function of conferring capacity on the Attorney General or the DPP to appeal against a sentence pronounced by a court of trial in proceedings to which the Crown in right of New South Wales was a party, and of conferring power on the Court of Criminal Appeal in such an appeal to impose a different sentence. That power is conferred by the concluding words of s 5D(1) in terms that “the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”.

    Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as “residual” ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised.

    Accordingly, as Heydon JA succinctly put it in R v Hernando:[33]

    if [the Court of Criminal Appeal] is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.

    The Court of Criminal Appeal, in this case and in R v Smith, was wrong to depart from that statement of the law.

    The second of the two hurdles to which Heydon JA referred in R v Hernando has a statutory foundation and a systemic significance. Before s 5D of the Criminal Appeal Act was amended to add reference to the DPP, Barwick CJ said in Griffiths v The Queen:

    On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

    With the clarification that the reference to “matter of principle” by Barwick CJ “must be understood as encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards”, his Honour’s explanation of the nature of an appeal under s 5D has since been said to represent “general and authoritative guidance to the Courts of Criminal Appeal of this country”. It expresses the “limiting purpose” of an appeal under s 5D, and in so doing provides “a framework within which to assess the significance of factors relevant to the exercise of the discretion”.  [emphasis by underlining added]

1. Section 411(4) of the Criminal Code is worded differently from s 5D of the Criminal Appeal Act. Section 411(4) provides:

   On an appeal against a sentence, the Court must:

   (a)     if it is of the opinion that another sentence, whether more or less severe, is warranted and should have been passed – quash the sentence and either:

   (i)impose another sentence; or

   (ii)  remit the matter to the court of trial; or

   (b)     in any other case – dismiss the appeal.

2. Despite the difference in wording, it is plain that s 411(4) contains the same discretion in the Court of Criminal Appeal to impose another sentence as s 5D of the Criminal Appeal Act.  That discretion may be exercised if the Court is of the opinion that another sentence is warranted and should have been passed.  It is a “residual discretion” in that it can only be exercised after a finding that another sentence is warranted on the ground that the sentence imposed at first instance was manifestly inadequate, or as this Court said in The Queen v Mossman:[34] “Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be re-sentenced.”

3. In Green v The Queen[35] the plurality of the High Court stated:

   A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”

4. The appellant in this case has identified the “matter of principle” which warranted this Court resentencing the respondent as being that referred to in the above passage from CMB, namely “to avoid ... manifest inadequacy or inconsistency in sentencing standards and to provide guidance to sentencing courts sentencing offenders for serious sexual offences,” and also to maintain confidence in the due administration of justice.

5. As this Court said in The Queen v Mossman:[36]

   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.[37]

   As to what will constitute an error in point of principle, in R v Riley this Court stated:[38]

   In R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638 delivered 24 February 1997), Hunt CJ at CL, with whom the other members of the Court agreed, pointed out that the passage from the judgment in Everett cited by Thomas J was not limited to laying down some new point of principle.  His Honour said:

   It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards, constitute error in point of principle which the Crown is entitled to have this Court correct.

6. Counsel for the respondent contended that the reference by the appellant to maintaining confidence in the administration of justice “does not accord with the many cases in this area which refer to the key principle as being whether laying down principles for the guidance of sentencing courts was required” and that the case relied on by the appellant on this point “does not accord with long established authority”.  This submission cannot be accepted.  In Everett v The Queen,[39] McHugh J said:

   Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.

7. This passage was cited by the New South Wales Court of Appeal in R v Stoupe[40] (one of the cases relied upon by the appellant) and Johnson J (with whom Hoeben CJ at CL Beech-Jones J agreed), added:[41]

   It is in the public interest that an appropriate sentence be imposed upon the Respondent, given the clearly erroneous sentence imposed at first instance. An important part of the jurisdiction to hear Crown appeals is to ensure that there will be uniformity of sentencing, which is of great importance in maintaining public confidence in the administration of justice.

   …

   The present judgment will serve to lay down or emphasise a number of sentencing principles. However, it is appropriate for the Court to proceed to resentence the Respondent. This will serve to maintain public confidence in the due administration of justice.

8. Counsel for the appellant pointed out that there were no countervailing reasons for exercising the discretion not to resentence, such as that a resentence would involve returning the respondent to prison after he had been released or that his release was imminent.

9. We agree that the Crown has established that the respondent ought to be resentenced to avoid injustice in the form of a manifestly inadequate sentence; to provide guidance to sentencing courts sentencing offenders for serious sexual offences; and to maintain confidence in the due administration of justice.

   Resentencing

10. Considering the appropriate disposition of the total effective sentence, we consider an appropriate sentence before any discount for the guilty plea would have been imprisonment for 13 years. We see no reason to interfere with the reduction of 15% allowed by the sentencing judge. Applying that percentage reduction to the starting point of 13 years gives a total effective sentence of imprisonment for 11 years. Given the restriction in s 52(3) of the Sentencing Act on imposing an aggregate sentence for offences against s 192(3) of the Criminal Code, that sentence can appropriately be structured by taking a starting point of 10 years for each of counts 1 and 2, reducing those sentences by 15% giving head sentences of eight years and six months for each count and making the sentence for count 2 cumulative upon the sentence for count 1 by two years and six months.

11. The commencement date of the sentence remains unchanged. Section 55 of the Sentencing Act requires the Court to impose a non-parole period of not less than 70% of the head sentence.  We fix a non-parole period of seven years and nine months.

12. Orders:

    (a)The appeal is allowed.

    (b)The sentence imposed on the respondent is quashed.

    (c)The respondent is resentenced to a term of imprisonment for 11 years from 29 August 2020 with a non-parole period of seven years and nine months, structured as follows:

    (i)   On count 1, the respondent is sentenced to a term of imprisonment for eight years and six months.

    (ii)  On count 2, the respondent is sentenced to a term of imprisonment for eight years and six months.

    (iii) The sentence for count 2 is to be served cumulatively upon the sentence for count 1 by two years and six months bringing the total effective sentence to a term of 11 years.

    ----------

[1]      The agreed facts contained the following: “A nearby witness, (MO), who had arrived to enjoy the area, heard the voice of a female coming from the truck and her say, “Don’t rape me,” a number of times.  The agreed facts do not state what, if anything, he did about it.

[2]      See 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].

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

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

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

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

[7]      R v Osenkowski (1982) 30 SASR 212 at 212-213

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

[9]Criminal Code s 414(1A)

[10][2011] NTCCA 6 at [43]

[11] [2011] NTCCA 1

[12]SCC 21121283, Sentencing Remarks, 24 February 2012

[13]    SCC 21563139, Sentencing Remarks, 17 August 2016

[14]    SCC 21432870, Sentencing Remarks, 13 January 2015

[15]    SCC 21400986, Sentencing Remarks, 18 July 2014

[16]SCC 21128478, Sentencing Remarks, 29 October 2012

[17]SCC 21211174, Sentencing Remarks, 29 June 2012

[18]    SCC 21043090, Sentencing Remarks, 28 March 2012

[19]    SCC 21141636, Sentencing Remarks, 12 December 2012

[20] [2017] NTCCA 5

[21]    at [102]

[22]Forrest v The Queen at [74]

[23][2019] NSWCCA 20

[24][2014] NSWCCA 139

[25] [2010] NSWCCA 93

[26] [2015] HCA 39; [2015] 256 CLR 550 at p560 para [29]

[27] [2001] NTCCA 3

[28][2017] NTCCA 6 at [16]-[17] per Grant CJ, Southwood and Hiley JJ

[29] (2011) 30 NTLR 51 at [27] per Riley J

[30]    In R v Stoupe [2015] NSWCCA 175, the Court said at [110]:

There was some delay between the sentencing of the Respondent on 28 November 2014 and the filing of the Notice of Appeal on 19 January 2015.  Given the time of year, some allowance can be made for this delay.  In my view, this is not delay of a type which operates in any significant way against the Crown on the issue of discretion.

[31](2015) 256 CLR 346 at [56] (“CMB”)

[32]    at [32] to [35]

[33](2002) 136 A Crim R 451

[34] [2017] NTCCA 6 at [13]

[35](2011) 244 CLR 462

[36]     at [8] and [9]

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

[38] (2006) 161 A Crim R 414 at [19]

[39][1994] HCA 49; 181 CLR 295 at p 306

[40] [2015] NSWCCA 175 at [116]

[41]    at [115] and [117]