Underwood (a Pseudonym) v The Queen [No 2]
[2018] VSCA 87
•9 April 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0129
| ZACHARY UNDERWOOD (A PSEUDONYM) (No 2)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | PRIEST and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 April 2018 |
| DATE OF JUDGMENT: | 9 April 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 87 |
| JUDGMENT APPEALED FROM: | DPP v [Underwood] (Unreported, County Court of Victoria, Judge Dyer, 26 May 2017) |
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CRIMINAL LAW — Appeal — Sentence — Rape and indecent assault — Multiple offences in the course of single transaction — Whether sentences should be concurrent or cumulative — Whether orders for cumulation manifestly excessive — Relevance of appellant spending two years in immigration detention between arrest and sentence — Effect of delay — Appeal allowed — Appellant resentenced — R v Renzella [1997] 2 VR 88 discussed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Turnbull Lawyers |
| For the Respondent | Mr B Sonnet | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
McLEISH JA:
Introduction
Pursuant to leave granted by Santamaria JA on 3 October 2017,[2] the appellant appeals against a total effective sentence of eight years and two months’ imprisonment, with a non-parole period of five years and eight months, imposed upon him in the County Court on 26 May 2017 for rape[3] and indecent assault.[4]
[2]Underwood (a pseudonym) v The Queen [2017] VSCA 282 (‘Leave Reasons’).
[3]Crimes Act 1958, s 38(1). The maximum sentence is 25 years’ imprisonment.
[4]Crimes Act 1958, s 39(1). The maximum sentence is 10 years’ imprisonment.
It is convenient to set out the sentence in tabular form:
Charge Offence Sentence Cumulation 1 Indecent assault 6 months 2 months 2 Rape [lingual/vaginal] 5 years 18 months 3 Rape [penile/vaginal][5] 5 years Base 4 Rape [penile/vaginal] 5 years 18 months Total effective sentence 8 years and 2 months’ imprisonment Non-parole period 5 years and 8 months Pre-sentence detention 52 days Other orders Sentenced as a serious sexual offender on charges 3 and 4 [5]The judge declared that, pursuant to s 6F of the Sentencing Act 1991, the appellant was sentenced as a serious sexual offender upon his conviction on charge 3.
There is a single ground of appeal, formulated as follows:
1. The sentences imposed on the charges of rape, the orders for cumulation, non-parole period and total effective sentence:
(i) are manifestly excessive; and
(ii)outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(iii)inconsistent with current sentencing practices for rape; and
(iv)resulted in a total effective sentence and non-parole period that was manifestly excessive.
It should be noted, however, that Santamaria JA refused leave ‘on the ground that the individual sentence imposed in respect of each of the three convictions for rape is manifestly excessive’, granting leave to appeal ‘on the ground that the orders for cumulation are manifestly excessive and that the total effective sentence infringed the principle of totality’.[6]
[6]Leave Reasons [36]–[37].
For the reasons that follow, we would allow the appeal and resentence the appellant so as to produce a total effective sentence of six years and six months’ imprisonment, upon which we would fix a non-parole period of four years and three months.
The offending
The appellant was convicted by majority verdict following a trial in which the principal issue was consent.
‘CC’, the complainant, was aged 19 years. She was the younger sister of the appellant’s girlfriend, who was pregnant with the appellant’s child.
On 27 June 2015, the appellant picked up CC from her premises in Lalor and drove her to the premises he shared with CC’s sister in Kings Park. CC’s sister was absent, visiting a relative.
Soon after arriving at the premises, the complainant sat on the couch and began to watch a movie, while the appellant went to have a shower.
The appellant came out of the bathroom and sat on the couch with CC. He began to make sexually suggestive remarks to her, including that he was ‘horny’. CC asked the appellant to stop telling her that he was horny, and suggested that he call her elder sister.
Shortly afterwards, the appellant mixed alcoholic drinks for himself and the complainant. CC sipped her drink as she watched the movie. The appellant then went to get some snacks, slapping CC on the thigh as he went. When he returned, the appellant sat closer to the complainant. He urged her to drink more quickly. She told him that she would take her time.
Having consumed two drinks, the appellant again told CC that he was horny. She told him that ‘nothing is going to happen’. The appellant pleaded with her, however, asking for ‘just two minutes’. CC refused and threatened to send a text message to her sister. The appellant again asked the complainant to have sex with him.
The appellant began touching CC. Eventually, he pulled her tights down from behind. CC reminded the appellant that he had a child on the way — referring to her pregnant sister — but the appellant pleaded to have sex with her for two minutes. The appellant then pulled down the complainant’s underwear to her ankles. She sat up so as to pull her underwear back up, but the appellant pushed her back down and pulled her underwear off, CC protesting the whole time.
What then occurred formed the basis of charge 1, indecent assault. In her evidence-in-chief, CC said that she had sent her sister a text message. Her evidence continued:
Right and what did you say to her?---I said ‘I hate him’.
And did she send a text back to you?---Yeah, she said ‘Why?’.
And were you able to reply to that?---No. I was unable to reply.
And why was that?---Because [the appellant] had already lifted up my bra under my shirt. I don’t know if he saw that I had my phone in my hand – like, up my shirt, and he was already on my right breast. … He was on my right breast.
All right, when you say on your right breast, what do you mean?---He was sucking my breast.
…
Is it left or right breast?---It was my right.
CC then described the circumstances of the lingual rape, charge 2:
And then what happened?---Um, … he tried opening my legs but I was able to close them.
Yes?---And then he opened again and then he’s obviously stuck his – his arms in between my legs to hold them open so I … wasn’t able to shut them again.
Yes?---And, um, he – forced his head in between my legs and – yeah.
…
And what did he do?---Um, he started licking me and he stuck his, his tongue inside me.
And were you physically doing anything at that stage or saying anything to him while he was doing that to you?---I was trying to get him off me by pushing his head away.
Were you able to succeed in doing that?---Unsuccessful.
Did you say anything to him while he was doing that to you?---I would have told him to stop.
And are you able to say how long that went for?---Approximately five minutes …
The complainant then went on to describe the first penile-vaginal rape, charge 3, in the following terms:
So, after he had done what you have been describing for the jury, what did happen next?---He did stick his penis inside of me.
And were you still on the couch when that happened?---Yes.
…
So, when you were lying down, where were you lying down?---I was sitting up first while he was, um, in between my legs.
Yes?---After that I would have somehow, I don’t know exactly how but then I ended up lying down on the couch.
Where was the [appellant]?---He was still there.
And where was he in relation to you though?---When I was lying down he was on top of me.
Where was his penis?---Inside me.
Were you saying or doing anything towards him while this was occurring?---I kept saying, ‘Stop. Stop. Please stop’.
CC went on to describe the second penile-vaginal rape, charge 4:
How long did he penetrate you for, when you were lying down?---I’m not - I don’t know.
Did you move from that position?---Yes.
Describe to the jury where you moved, or where he moved?---Well he – he was trying to get me up off the couch to move me to a different position … because he grabbed my hands, he grabbed me by my arms, by my wrists and he forced me around facing the TV, so I was facing the TV and I was upright on the couch and my back was upright on the couch behind me. And the couch was obviously wooden, so my – he pushed me up on my back towards the couch.
So where he pushed you, your back was facing the backrest of the couch, or was it facing the television?---I was facing the – my front of my body was facing the television.
…
What happened when you were in that position?---Obviously when he moved me, it was a forcible push with my arms. Um, um, my back hit the couch and my arms were then above my head and um I couldn’t move and um, my knees were on the couch and my legs were like underneath my bum sort of – that sort of way, so like, you know when you kneel down on your knees? … And you – yeah, it was like that on the couch, but my back was upright.
So, you’re effectively kneeling on the couch, facing the TV set, is that right?---Yes.
Then what did he do when you were in that position?---Um, he pushed my back onto the back of the couch, which hurt. Um, but I didn’t think anything of that at the time. … Because it didn’t – at that time, it didn’t hurt so much. Um, and then he then again um pushed my hands above my head and was leaning his body on me, which to me, ‘cause of how tall he is, it felt like a – not a hug, but like it was like a hugging sort of thing, because of how big and wide he is compared to me.
Was he facing you at that point?---Yes. … And then for the second time, he – he inserted his penis again. Um, but every time I tried pushing him and trying to get him off me, it’s like he was enjoying it and then he whispered in my ear at – on – when I was kneeling on the couch, he was – he whispered something in my ear.
What did he whisper in your ear?---He whispered to me, this is the first time he’s ever raped someone.
The appellant then stopped and removed himself from the complainant. He tried to touch her thigh with his hand. CC told him not to touch her. The appellant asked, ‘What’s wrong?’. CC then got up from the couch, grabbed her clothes and phone and ran to the bathroom. The appellant twice told the complainant not to tell her sister what had happened: once in the bathroom while the complainant was showering and again by text message that evening. CC sent text messages to her sister and her partner. She spoke to her sister over the phone and reported the incident to police. By the time that police arrived, the appellant was absent.
When interviewed by police on 28 June 2015, the appellant gave ‘no comment’ responses to most of the questions asked.
Submissions of the parties
Counsel submitted that, given a number of ‘significant matters in mitigation’, and the objective circumstances of the offence, the sentences imposed on the individual charges of rape were manifestly excessive. Moreover, since the offending was effectively ‘one transaction’, the orders for cumulation were also manifestly excessive.
The ‘significant matters in mitigation’ were said to include the following:
· the appellant’s prior good character;
· the absence of any prior, or subsequent, convictions or pending matters in Australia or India;
· the appellant’s solid employment history as a long haul truck driver in Australia;
· the fact that the appellant had not previously served a term of imprisonment;
· the likelihood that, as a foreign national who cannot speak English, the appellant’s experience of imprisonment would be ‘more onerous’;
· the nearly two years served by the appellant in immigration detention that could not be reckoned as pre-sentence detention pursuant to s 18 of the Sentencing Act 1991;
· the appellant’s isolation from his remaining family members in India, including his father who is elderly and has heart problems;
· given the circumstances of the appellant, the ‘little need’ for his sentence to reflect specific deterrence or community protection; and
· the judge’s finding that the appellant’s prospects of rehabilitation are ‘relatively good’.
As to the objective circumstances of the offending, the appellant’s counsel relied on the following:
· the offending was neither extensive nor protracted;
· the offending was spontaneous, unplanned and lacking in pre-meditation, the judge accepting that the offending could be described as ‘a situation where passion overcame reason’;
· with respect to the appellant’s moral culpability, the sentencing judge found that the appellant having asked CC after the offending whether there was ‘anything wrong’, was ‘consistent with [his] lack of appreciation of the serious nature of [his] offending at the time’; and
· insofar as current sentencing practices are concerned, the sentence imposed was beyond, or in excess of, the punishment that would ordinarily be imposed for offending of this nature and quality.[7]
[7]Counsel cited Singh v The Queen [2014] VSCA 250; Hajar v The Queen [2015] VSCA 233; Anderson v The Queen (2013) 230 A Crim R 38; and Coronado v The Queen [2016] VSCA 86.
The respondent’s counsel submitted that the individual sentences imposed, orders for cumulation and non-parole period were not wholly outside the range of sentencing options reasonably available to the sentencing judge.[8] Beyond the cases relied upon by the appellant, there are many decisions of this Court, it was submitted, which demonstrate that the sentences imposed upon the appellant are consistent with current sentencing practices.[9]
[8]For the purposes of the application for leave to appeal, counsel for the respondent in written submissions had accepted ‘that as all the offences of rape occurred during a single episode against the same victim, it is reasonably arguable that the orders for cumulation are manifestly excessive’, and that ‘it is also reasonably arguable that the orders for cumulation have resulted in a total effective sentence which offends the principle of totality’.
[9]Counsel cited Mulligan (A Pseudonym) v The Queen [2017] VSCA 94; Flora v The Queen (2013) 233 A Crim R 320; Ali v The Queen [2013] VSCA 294; Bowden v The Queen (2013) 44 VR 229; Ayol v The Queen [2014] VSCA 151; Evans (a Pseudonym) v The Queen [2016] VSCA 11; Di Giorgio v The Queen [2016] VSCA 335; and DPP v Cooper (a Pseudonym) [2017] VSCA 8.
With respect to the objective gravity of the offence, the respondent relied on the following:
· ‘the attack upon the victim lasted about 30 minutes and involved multiple instances of rape’;
· although there were no injuries to the complainant, there was ‘a degree of physical force to restrain her’;
· the appellant ‘clearly ignored the protests and warnings by the victim’;
· CC was ‘particularly vulnerable’ at the time as she had fled a violent relationship, and there was also a significant age disparity between her and the appellant;
· to be raped by her sister’s partner ‘must have been humiliating and degrading’; and
· the appellant’s failure to use a condom was a circumstance of aggravation.
Further, counsel for the respondent submitted that, since the appellant was sentenced as a serious sexual offender from charge 3 onwards, the judge was bound to regard the ‘protection of the community from the offender’ as the ‘principal purpose for which the sentence is imposed’.[10]
[10]Sentencing Act1991, s 6D(a).
Analysis
We consider the cumulation ordered between the sentences imposed on the individual charges to be manifestly excessive.
In our view, the acts giving rise to the discrete convictions — the indecent assault, and the three instances of penetration founding the rape charges — are so closely related and interdependent that it can reasonably be said of them that they arose out of the one transaction and do call for substantial concurrency.[11] Acknowledging that it was appropriate to allow for some cumulation of the sentences imposed on charges 2 and 4 upon the sentence imposed on charge 3 — so as to reflect the fact that they represent distinct (though closely related) penetrations — the cumulation ordered plainly was too great. In so concluding, we do not ignore the fact that the appellant fell to be sentenced as a serious sexual offender from charge 3 onwards. In the circumstances of this case, however, it would have been somewhat artificial to have sentenced the appellant on the basis that protection of the community from the appellant required the imposition of a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances[12] — indeed, no such submission was advanced by the respondent — or that substantial cumulation was necessary.[13]
[11]R v O’Rourke [1997] 1 VR 246, 253 (Winneke P, Brooking and Callaway JJA).
[12]See Sentencing Act 1991, s 6D.
[13]See Sentencing Act 1991, s 6E.
The orders for cumulation have produced a total effective sentence which, in our opinion, is manifestly excessive. Although a conclusion that a sentence is manifestly excessive is a conclusion that does not depend upon the attribution of specific error, we think it likely that the judge afforded the time that the appellant spent in immigration detention too little weight in the sentencing synthesis.
It will have been noticed that the judge declared pre-sentence detention of 52 days.[14] That reflected the period that the appellant had been ‘held in custody in relation to … proceedings for the offence’ up to the date of the plea hearing on 11 May 2017 (37 days),[15] together with a further period up to sentence on 26 May 2017 (15 days).
[14]See Sentencing Act 1991, s 18.
[15]The jury’s verdict was 4 April 2017.
Significantly, however, the appellant, an Indian national, had been in immigration detention for just under two years during the period between his arrest in 2015 and sentence in 2017,[16] having been taken into immigration detention on 7 July 2015.[17] On the plea, counsel for the appellant submitted that the judge could take immigration detention ‘into account in a Renzella-type way’,[18] since immigration detention is ‘like being in prison‘. It is, counsel submitted, ‘time effectively spent in custody, not on unrelated matters but time in custody which is relevant to [the judge’s] determination of an appropriate sentence’.
[16]When aged 28 years, the appellant came to Australia on a spousal visa and married a female who was of Indian descent. That relationship broke down in 2009, and at that point the appellant became an unlawful non-citizen, because his stay in Australia was contingent on marriage. Counsel told the judge that, between 2009 and 2015 when he was arrested, the appellant ‘effectively worked in what may be described as the cash or black economy’.
[17]The appellant was arrested on 28 June 2015. He was interviewed and released on bail; but, on 7 July 2015, was taken into immigration detention because he did not have a valid visa. On 15 July 2015, the Director of Public Prosecutions signed a ‘criminal justice stay certificate’, allowing the appellant to remain within the jurisdiction. The appellant made an application for a criminal justice visa, but that was refused. Despite being in immigration detention, however, in theory he remained on bail until the jury’s verdict on 4 April 2017. He was remanded in custody that day and transferred from immigration detention to the State prison system, where he has remained since.
[18]See R v Renzella [1997] 2 VR 88 (‘Renzella’).
Following those submissions, there was the following exchange between the sentencing judge and prosecutor:[19]
[19]Emphasis added to this and following passage.
HIS HONOUR: [Prosecutor], I think my preliminary view is that the period of Commonwealth detention would be of — would have limited impact on the sentence that I would impose, but I’ll read Renzella and I think it’s a matter that I would nevertheless have to put into the mix.
[PROSECUTOR]: I agree with Your Honour. It’s relevant in the general sense.
HIS HONOUR: Yes.
[PROSECUTOR]: It’s part of the overall factors as to the [appellant’s] position as he comes before Your Honour.
HIS HONOUR: Yes.
[PROSECUTOR]: What is his life situation? His life situation is one where he’s been in Commonwealth detention as a result of being an illegal immigrant for a period of two years.
HIS HONOUR: Yes.
[PROSECUTOR]: One can’t ignore that. It’s a relevant circumstance to take into account.
HIS HONOUR: Yes.
[PROSECUTOR]: It’s different from Renzella, Your Honour. ... This is a somewhat different scenario, but it is relevant, as my friend has put it, and that Your Honour has said to him in an exchange in a limited way as part of the general circumstances of [the appellant].
Surprisingly, given the above, the judge gave the appellant’s time held in immigration detention — caused by the delay in the matter coming to trial — scant attention in his sentencing remarks. Indeed, his Honour’s sole reference to the appellant’s immigration detention was in the following passage:
Your personal circumstances are that you are now 36 years of age having been born in the Punjab region of India, initially coming to Australia on a spousal visa in 2008. That relationship apparently broke down in 2009 and since that time you continued to reside in Australia as an unlawful non-citizen. You had worked in what is described as the black economy as a truck driver between 2009 and 2015 doing largely long haul work. You had moved in with the complainant’s sister in a relationship in April 2014. You have been held in immigration detention since 2015.
The appellant was held in immigration detention for almost two years because he was an unlawful non-citizen. His detention was required due to the necessity to try him. No statutory provision required, however, that the period that the appellant was held in immigration detention be deducted from any later sentence of imprisonment imposed upon him. By way of contrast, had he been remanded in custody and held at a remand facility during that period, pursuant to
s 18(1) of the Sentencing Act 1991 he would have been entitled to have the period that he was held in custody reckoned ‘as a period of imprisonment … already served under the sentence’ of imprisonment imposed upon him (unless the court otherwise ordered).
In Heaney,[20] cited with apparent approval in Renzella,[21] Lynette Heaney had been arrested for drug trafficking on 2 February 1995. She was on remand for that offence until bailed on 5 May 1995, thereby accumulating 93 days’ pre-sentence detention. In late August 1995, she was charged with murder and remanded in custody. The following month, on 15 September 1995, she was committed for trial on the drug trafficking charge, and was again remanded in custody (she already being on remand for murder). When she was sentenced for trafficking, the judge declared the period of pre-sentence detention to be 93 days, taking the view that between 15 September 1995 and the date of sentence, 21 November 1995, she was not, so far as the trafficking offence was concerned, ‘held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason’.[22] Accordingly she was not given the benefit of the period between the date of her committal for trial for trafficking and the date of sentence for that offence. Brooking JA (with whom Winneke P and Hampel AJA agreed) observed:
The sentencing judge … declared the period of pre-sentence detention to be 93 days, taking the view that between 15 September and the date of sentence, 21 November, the applicant was not, as regards the trafficking offence, ‘held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason’: s18(1) of the Sentencing Act 1991.
Accordingly she was not given the benefit of the period of nine or ten weeks between the date of her committal for trial and the date of sentence. She has fallen between two stools, for, if the charge of murder should result in her conviction, it will then have to be said that between 15 September 1995 and the date of re-sentencing by this Court she was not held in custody in relation to proceedings for the crime of murder and for no other reason. If the applicant is now to be re-sentenced, the period between committal and sentence has grown to one of more than six months.
The judge was clearly right in holding that from 15 September on, when she was committed for trial, the applicant was not held in custody ‘for no other reason’ as required by s18(1). Her detention in custody was warranted twice over. ...
Regard must be had in re-sentencing to the period during which the applicant’s detention in custody was doubly warranted. This can be done by this Court’s adopting the declaration concerning 93 days’ pre-sentence detention already made and by this Court’s reducing by six months, to allow in a broad way for the period from September to March, the head term and the non-parole period which it would otherwise determine upon.
[20]R v Heaney (Unreported, Victorian Supreme Court of Appeal, Winneke P, Brooking JA and Hampel AJA, 7 March 1996) (‘Heaney’).
[21]Renzella, 96–7.
[22]At that time, s 18(1) of the Sentencing Act 1991 was in the following terms (emphasis added):
(1) If an offender is sentenced to a term of imprisonment in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason must, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders, be reckoned as a period of imprisonment already served under the sentence.
The facts of Heaney — and, for that matter, Renzella — are not on all fours with the present case. Heaney’s remand in custody was doubly warranted, she having been charged with murder and remanded for trial for drug trafficking. When sentencing her, however, it was held to be appropriate to allow ‘in a broad way’ for the period during which her custody was doubly warranted.
Unlike Heaney and Renzella, the appellant was not held in custody in a remand facility during the relevant two year period awaiting trial. He was, however, held in detention in another kind of facility, so that his liberty and freedom of movement were significantly curtailed.
Furthermore, there is, in our view, a qualitative difference between the delay experienced by a person awaiting trial when the person is at liberty, and delay awaiting trial when the person is in some form of custody or detention.[23] As the authorities recognise, delay intervening between offending and the final resolution of criminal proceedings can, in recognised circumstances, be a significant factor going in mitigation of sentence.[24] In the present case, the appellant was forced to contemplate his fate whilst held in immigration detention. Fairness dictated that the sentence imposed upon him ought reflect the fact that the appellant had been kept in suspense, with charges hanging over his head for two years, in circumstances where he was deprived of his liberty during that period. In a broad and practical way, the fact of his detention needed to be reflected in the sentence imposed upon the appellant.[25] It is difficult to see that so much was indeed adequately reflected in the total effective sentence or non-parole period imposed by the sentencing judge.
[23]It was not suggested that the appellant was the cause of any of the delay. The appellant’s committal, first fixed for 8 April 2016, was adjourned for three months due to the unavailability of an appropriate interpreter. Beyond that, the proceeding seems to have progressed through the system in a conventional way.
[24]R v Cockerell (2001) 126 A Crim R 444, 447 [10]; R v Tiburcy (2006) 166 A Crim R 291, 292–3 [3]; R v Merrett, Piggot and Ferrari (2007) 14 VR 392, 400 [35]; Arthars v The Queen (2013) 39 VR 613, 620–2 [25]–[29].
[25]See Akoka v The Queen [2017] VSCA 214, [109]–[112] (Warren CJ, Kyrou and Redlich JJA). Cf R v Lovegrove [2018] NTSC 2, [46] (Southwood J).
Given these conclusions, the appeal must be allowed and the appellant must be resentenced.
We would not, however, uphold every aspect of the appellant’s case. Thus, we would not uphold the contentions embodied in the ground of appeal that the individual sentences imposed on the rape charges are ‘inconsistent with current sentencing practices for rape’, ‘manifestly excessive’ or ‘outside the range of sentences reasonably open in the circumstances of the offence and the offender’.[26] In circumstances where the sentences imposed on those charges were not ameliorated by any plea of guilty, individual sentences of five years’ imprisonment on each of those charges were proper.
[26]See [4] above.
Resentencing
In resentencing the appellant we would not interfere with the individual sentences imposed by the sentencing judge, which, as we have said, we regard as being within the appropriate range. Thus, the individual sentences on each charge will be confirmed, and the sentence on charge 3 will be the base sentence.
With respect to charges 1 and 2, there is a legislative direction that any sentence passed on them is to be concurrent with other sentences unless otherwise directed.[27] Given that the appellant is to be sentenced as a serious sexual offender from charge 3 onwards, however, there is a legislative direction that sentences passed on charges 3 and 4 are to be served cumulatively unless otherwise directed.[28] Strict compliance with the legislative regime is thus rendered moderately cumbersome. In an endeavour to be faithful to that regime, however, we would order that nine months of the sentence on charge 2 be served cumulatively with the base sentence; and that four years and three months of the sentence on charge 4 be served concurrently with the base sentence.
[27]By s 16(1) of the Sentencing Act 1991, ‘every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment … imposed on that person, whether before or at the same time as that term’.
[28]Section 6E of the Sentencing Act 1991 provides that: ‘Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
The total effective sentence is thus six years and six months’ imprisonment. We would fix a period of four years and three months before which the appellant is not to be considered eligible for release on parole. In conformity with s 18(1) of the Sentencing Act 1991, we would declare the period of 370 days (not including today) be reckoned as a period of imprisonment already served pursuant to this sentence. We would also cause to be entered in the records of the court that the appellant is sentenced as a serious sexual offender on charges 3 and 4.
For the avoidance of doubt, our overall intention is reflected in the following table:
Charge Offence Sentence Cumulation 1 Indecent assault 6 months Nil[29] 2 Rape [lingual/vaginal] 5 years 9 months 3 Rape [penile/vaginal][30] 5 years Base 4 Rape [penile/vaginal] 5 years 9 months[31] Total effective sentence 6 years and 6 months’ imprisonment Non-parole period 4 years and 3 months Pre-sentence detention 370 days Other orders Sentenced as a serious sexual offender on charges 3 and 4 [29]See footnote 27 above.
[30]The judge declared that, pursuant to s 6F of the Sentencing Act 1991, the appellant was sentenced as a serious sexual offender upon his conviction on charge 3.
[31]Effected by ordering that four years and three months’ imprisonment be served concurrently with the sentence on charge 3.
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