Welsh v The Queen

[2006] HCATrans 533

[2006] HCATrans 533

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M12 of 2006

B e t w e e n -

ANTONY ROSS WELSH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 SEPTEMBER 2006, AT 10.15 AM

Copyright in the High Court of Australia

MR D.J. ROSS, QC:   If your Honours please, I appear with my learned friend, MR W. DOOGUE, for the applicant.  (instructed by Doogue & O’Brien)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear on behalf of the respondent.  (instructed by Solicitor for Public Prosecutions)

KIRBY J:   Now, there was just a matter that some members of the Court thought it might be helpful for you to be cogitating on whilst we are dealing with the first matter.  This is, of course, raised purely tentatively at this stage and does not represent any concluded view, but it was thought that maybe if you focus on the matters that I am going to now hand down to you that might make more efficient the presentation of the arguments in your application.  So I hand you down some possible more specific grounds of appeal and if you would have a look at those and then come back when your turn has come and you can make submissions which are focused with some particularity, amongst other things, to those points.

AT 10.17 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.07 AM:

KIRBY J:   Yes, Mr Ross.

MR ROSS:   If your Honours please.  Your Honour, I am grateful for the suggestion that your Honours made about the ‑ ‑ ‑

KIRBY J:   Do not assume that in comes in bounty from the Court.  It is just something that might help to focus the application.

MR ROSS:   Yes.

KIRBY J:   As the respondent pointed out, it is very rare indeed for this Court to grant special leave on a general attack on the size of a sentence.

MR ROSS:   Yes. It would be in ordinary circumstances, we would submit, your Honours, but one of the lacks in the judgment of the Court of Appeal and the learned trial judge was that they failed to pay any regard to the ordinary provisions of all the Sentencing Acts in Australia to say that – I think I referred to it as section 1(a) of the Sentencing Act (Vic) that says:

to promote consistency of approach in the sentencing of offenders –

and section 5(2):

In sentencing an offender a court must have regard to –

. . . 

(b)      current sentencing practices –

neither of which they did, neither of which was done by the learned sentencing judge or the Court of Appeal.

KIRBY J:   They did deal with certain particular aspects of sentencing practice.  For example, the sentencing judge did specifically refer to the fact that by the plea of guilty the applicant had relieved the complainant of having to give evidence in court.  So there were some particular matters in which general sentencing practices were dealt with by the experienced sentencing judge.

MR ROSS:   Yes, that is right, your Honour, but not the sentencing aspects that I have referred to.  They are in other parts of ordinary sentencing practice and as part of other parts of the Sentencing Act and those ‑ ‑ ‑

HAYNE J:   What particularly was omitted, Mr Ross?  That is, do you seek to make a case of specific error or is this manifest excess?

MR ROSS:   No, it is specific error, your Honour, because what we say about it is this, that they have upped the ante without saying, “We are upping the ante”, and they did so without saying, “There is going to be a consistency of approach now and this is the new consistency”, or, “This is going to be the current sentencing practice”.  Perhaps I can hand a copy of those sections to the Court.

CALLINAN J:   How was it inconsistent?  It was a worst case rape, was it not?

MR ROSS:   No.

CALLINAN J:   It was not?

MR ROSS:   No.

HAYNE J:   I thought both the trial judge and the Court of Appeal said that this fell into the worst category of cases.

MR ROSS:   Yes, they did say that.

CALLINAN J:   And that no submission was made to the contrary.

MR ROSS:   That is the submission that is made by the respondent, that that was said down below ‑ ‑ ‑

CALLINAN J:   Look, I do not want to go into the details of the facts, and I am not going to, but I would need a lot of persuasion that it would be easy to find a worse set of facts in a rape case.  I mean, I know imagination is such that you could think of worse situations, but I have never read or heard of a worse rape case.

MR ROSS:   Have you not?

CALLINAN J:   No.

KIRBY J:   I must admit in the Court of Criminal Appeal of New South Wales I have heard worse rape cases and they generally ended up with the murder of the victim.

CALLINAN J:   Well, that is the point.  If I could be satisfied that there was no proper differentiation between the penalty that would have been attracted for murder and the penalty that was attracted here, then I might have a different view.

MR ROSS:   Can I just take your Honour to one of the cases that we referred to in the list of comparable sentences that we put before the Court of Appeal and this Court and take your Honours to a case called Empey, which is the third one on the list, in paragraph 2.  Your Honours can see that?

KIRBY J:   Yes, go ahead.

CALLINAN J:   I do not have that.

KIRBY J:   I do not have that but ‑ ‑ ‑

HAYNE J:   I do not have the appellant’s authorities.

MR ROSS:   I am sorry, it is on page 157 of the application book.  Can you see a case called Empey which is the third down?

HAYNE J:   Yes.

KIRBY J:   Yes, we do not have it here.  What do we make out of it?

MR ROSS:   That man got 16 with a 12 and he punched the victim in the vagina so seriously that it split the difference between the vagina and the anus and did so in such a way that he then had intercourse with her, and at paragraph [25] the Court of Appeal said:

The actions of the appellant which gave rise to the count of rape are as serious an example of a single instance of that crime as one could imagine.

And he got 16 with a 12.  Now, admittedly, it is only one instance of penetration.

CALLINAN J:   This unfortunate woman could have died of an asthmatic attack.

MR ROSS:   Yes, there is that but, with respect, that was not intended.

CALLINAN J:   All the videoing and everything that went on, the repetition, the humility.

MR ROSS:   Yes.

HAYNE J:   Is not the relevant comparator to be found in Camilleri and Beckett, namely, Beckett, who pleaded guilty to the murder, preceded, as it was, by the serial sexually offending against the victims, got life with 35.  That is the base, is it not?

MR ROSS:   Yes, that may be it but, with respect ‑ ‑ ‑

HAYNE J:   And Camilleri, who stood his trial, got life without a minimum set.

MR ROSS:   Yes.  That may be so, with respect, your Honour, but if the position be this, that whether death resulted to the victim either deliberately or by accident ‑ if it were by accident, it would be run under what used to be the felony murder rule which is now incorporated in our Crimes Act ‑ I would only be guessing about what such a position was worth, what such a sentence would be, but my suspicion is that were the applicant to have done that and then rang the police and said, “I have done something terrible”, whatever it be, he would have got 20 with a 16.

HAYNE J:   Let us cut to the chase a bit, Mr Ross.  Let it be assumed you got leave.  What would you have this Court say to the Court of Appeal?  You would begin by having a say, I take it, too much?

MR ROSS:   Yes.

HAYNE J:   What then?  Would you have us say that the construction of the sentence was wrong?

MR ROSS:   Yes.

HAYNE J:   In the sense of cumulation was wrong?

MR ROSS:   Yes.

HAYNE J:   How do we say that in the face of the statute, where the statute says for the subsequent counts make cumulative not concurrent?

MR ROSS:   Yes, and we would also invite the Court to say that where in fact there is a mechanism for increasing the tariff then it must be deliberately done because, with respect, you cannot say as a result of Empey’s Case that if the going rate for a wicked assault of that sort followed by a rape is worth what it was – 16 with a 12, I think it was – then this one, which they say, this is also the worst of its sort, is worth 26 with a 20.  The position is this, that adopting what was suggested respectfully by the Court as being one possible ground of appeal, that this was a single issue, single event ‑ ‑ ‑

KIRBY J:   That was put before you and the respondent for consideration in light of what Justice Wells said in the Attorney‑General v Tichy, I think it is, in South Australia.

MR ROSS:   Yes, and in Western Australia there has been talk of a single transaction, whether that be so or not.

KIRBY J:   There is power, even where a person is designated a serious sexual offender, for the court to direct, notwithstanding that, that the sentences be wholly or in part served concurrently.  That is under section 6E, I think it is.

MR ROSS:   Yes.

KIRBY J:   So that there is the power and the question would be:  was this a case, having regard to the facts and circumstances and to the duration of the ordeal of the victim, that enlivened that power to direct or not?  Now, the difficulty you have is that that issue was not urged either on the sentencing judge or on the Court of Appeal.  We would be asked to deal with it, effectively, for the first time as a Court without the benefit of the consideration of the matter by the intermediate court.

MR ROSS:   Yes.  Still, with respect, they came to the conclusion that it was the worst case of its sort that they could imagine and while it is ‑ ‑ ‑

KIRBY J:   Did your side put the case of Empey before the sentencing judge or the Court of Appeal?

MR ROSS:   Yes, it was in my submissions to the Court of Appeal.  The same documentation that is the list of comparative sentences comes from the appendix that I gave to the Court of Appeal, and you understand that it is no part of mine to excuse the severity of the offence, not on this application, and it was not on the Court of Appeal, but the position is this, that while it seems a curious thing that the occasion for the offence was revenge, still the acts could not have taken place if there had not been an attraction by the applicant to the victim and so that ‑ ‑ ‑

HAYNE J:   What is the submission, Mr Ross?

MR ROSS:   I will say it again, your Honour.  One of the things that the Court of Appeal and the sentencing judge took into account was that occasion for the acts was revenge and what I ‑ ‑ ‑

HAYNE J:   These were offences of violence.

MR ROSS:   Well, they were rapes.

HAYNE J:   They were offences of violence.

MR ROSS:   Yes.

KIRBY J:   And there was a suggestion that the victim owed your client money and that was the suggestion that lay behind the idea of revenge.

MR ROSS:   That is right, that was it.  That caused me a problem before the Court of Appeal in this sense ‑ ‑ ‑

KIRBY J:   It seems a bit of a red herring, I mean, for the revenge issue to be explained.  This sort of conduct is a very thin argument.  I mean, that is not the sort of thing that the High Court of Australia is going to get involved in.  The only issues we would get involved in is if you show that there is some error of principle that is likely to attract our attention.

MR ROSS:   Yes.  What I say about it is this, your Honour, just to complete that matter that I did not make clear to Justice Hayne ‑ ‑ ‑

KIRBY J:   Nor to me.

MR ROSS:   ‑ ‑ ‑ was that not withstanding the occasion for it was revenge, the offence could not have taken place if there had not been some attraction by the victim ‑ ‑ ‑

KIRBY J:   That sounds awfully like she had it coming to her, and that is not the law.

MR ROSS:   No, I am not suggesting that at all.

KIRBY J:   It sounded like it to me.

MR ROSS:   No, I was not intending to suggest it and ‑ ‑ ‑

KIRBY J:   I think you have really diverted yourself from what are possibly the real issues in the matter.

MR ROSS:   Yes.  Well, I say that the real issues are these.  Can a Court of Appeal simply increase the going rate for a sentence by probably at least 50 per cent?  Is there a mechanism for increasing a tariff without saying that it was so, when you compare it with Empey’s Case, and, with respect ‑ ‑ ‑

KIRBY J:   The Court of Appeal did not increase the sentence of the applicant.  The Court of Appeal simply dismissed the application for leave to appeal from the sentence of the experienced sentencing judge.

MR ROSS:   That is right.

KIRBY J:   But is it your point that by not disturbing they effectively increased the tariff that will be applied in Victoria in these cases?

MR ROSS:   Yes.

KIRBY J:   Tariffs are not the sort of thing the High Court will normally get involved in.  That really has to be left to the intermediate courts.

MR ROSS:   Yes, I understand that.

KIRBY J:   So that you really have, I think, not to complain generally about the size of the sentence but to point to some error of principle.  That is why those three points were handed down to you to give some thought to whether you embrace them or not.

MR ROSS:   Yes.

KIRBY J:   Would you be seeking, if you were granted special leave, to add those points to your grounds of appeal?

MR ROSS:   Yes, your Honour.

KIRBY J:   Do you want to say anything about any of them?

MR ROSS:   With respect, your Honour, I hoped that I had addressed them already.

KIRBY J:   You have not addressed the last one, the plea of guilty.  The sentencing judge did refer to the fact that the victim had been spared the ordeal of having to give evidence, but I got a bit of an impression – and this is subject to what the respondent says – that his Honour did not really make allowance for the public costs of trial and the public’s interest in having pleas of guilty to save the humiliation of victims, the inconvenience to the public and the expense to the public.  Now, is that a correct impression of what the sentencing judge did or a wrong impression?

MR ROSS:   It is not completely correct, your Honour, because he claimed he took it into account but depreciated it because he said the indication of the plea of guilty only took place for two reasons.  First, because the co‑accused was going to give evidence against him, and the second was that the indication of the desire to plead guilty had only taken place a few days before the plea occurred, and both of those were wrong.

KIRBY J:   And I think he said that because of the strength of the prosecution case that it was virtually inevitable that he would plead guilty anyway.  Did he say that?

MR ROSS:   No, but that was the fact because he had made a clear confession to the police within a week of the events occurring.  He was charged with some 57 offences by the police, if I have got it right.  The presentment that was handed to him contained 45 counts and, we say properly so, the defence counsel did a good deal of bargaining to get it down to the 11 counts.

Now, that, as far as I know, is the defence counsel’s duty to save the difficulty of the trial judge, and there are all sorts of authorities on that, that judges do not have to sentence on 45 counts, it is too difficult, but the trouble was that they failed to take into account the fact of the early plea of guilty because they forewent the committal so the complainant would not

have to give evidence and it was just a matter of sorting out the presentment for the reasons that I have given and that was ‑ ‑ ‑

KIRBY J:   Yes, thank you, Mr Ross.  I see your time is up.  Yes, Mr Holdenson.

MR HOLDENSON:   In this case, to use the language of Mr Ross, the ante was not upped.  Reference has been made to the case of Empey.  Empey was a case concerning two offences, two counts; one count of rape, one count of causing serious injury intentionally.

KIRBY J:   That sounds like an old‑fashioned way of charging.  Now, in this case, the new style of charging with every digital and every act of humiliation and so on is the subject of an entirely separate count, and that gives an impression that may exceed the reality of what Justice Wells referred to as the one continuous circumstance.

MR HOLDENSON:   Empey was only one type of rape with respect to one orifice.  It was a two‑count presentment.  The court below held in the judgment of his Honour Justice Charles at paragraph [28]:

The sentences –

plural –

imposed by the judge were in my view clearly within range and certainly not manifestly excessive.

Sentence imposed 16 years, non‑parole period of 12, as has been indicated by Mr Ross.  In this case, each type of rape was the subject of a separate count.  No different drafting approach was taken in this case from the case of Empey.  In this case, there was an offence of assault charged, one of the early counts, as there was in the case of Empey, a separate count for the physical assault, putting aside the sexual assault.

KIRBY J:   How long did the ordeal of the victim last in Empey and how long did the ordeal of the victim last in this case?

MR HOLDENSON:   In this case, an hour and three‑quarters, and that was an accurate time that was able to be worked out with great accuracy.  In the case of Empey, as I read the judgment – I do not see any particular passage, but it occurred at around 3 o’clock and, as I read it, it was 15 or 20 minutes at most, including the protracted assault, as I read the judgment of the Court of Appeal, not the facts of the case.

Now, Devaldez, another of the cases listed by the applicant on page 157, on a Crown appeal against sentence, the offender was re‑sentenced by the court on that Crown appeal to a sentence of 16 years with a non‑parole period of 14 years.  Four discrete acts, three of rape, one of indecent assault, reflected in a four‑count presentment:  three counts of rape, one of indecent assault.  The penalty imposed on the Crown appeal against sentence for each of the counts of rape, 15 years imprisonment, entirely in accordance with and consistent with the manner in which this offender in this case was sentenced.  There is certainly, in my submission, no out‑of‑kilter about it, no upping the ante or altering the tariff.

KIRBY J:   Well, 26 years and 20 is a very heavy sentence for rape by Australian standards, a very heavy sentence, without considering the fact that, dreadful as the ordeal of the victim was, she was not killed.  Now, the problem with this sentence is that it does not, at least arguably, differentiate between the case where the victim is killed and the case where the victim is not killed, or does not differentiate sufficiently.

MR HOLDENSON:   Well, I will deal with that in this way, just one last thing about Empey which distinguishes that case from this.  Empey was not a case where the offender fell to be sentenced under the serious offender provisions, and that leads to the point I now make in response to that question asked of me by your Honour Justice Kirby.  Certainly this sentencing judge did not proceed on the basis and did not take into account what sentence would have been imposed had the victim been killed.

To adopt such an approach, in my submission, is such as to invite error because it has the effect of inviting a court to disregard the fact that the legislature has spoken in several relevant respects.  First, the legislature has declared that the prescribed maximum penalty for the offence of rape is 25 years imprisonment.  The maximum penalty prescribed in this State for the offence of murder is life imprisonment.

As a matter of fact, a person can plead guilty to a murder and get a sentence.  Yes, certainly, indeed much less than a sentence of 26 years with a non‑parole period of 20, but one only gets to murder once a victim.  In respect of the causing of a death to a victim one can only be exposed to one maximum penalty of life imprisonment.  If one engages in multiple offences of rape upon the one victim, one is exposed to a maximum penalty of many lots of 25 years imprisonment.  Then there is, again, the serious offender provisions, Part 2A, in section 6E, to which your Honour Justice Kirby referred.

KIRBY J:   But they are not absolute, are they?

MR HOLDENSON:   No, they are not.

KIRBY J:   They do permit the giving of a direction in particular circumstances.

MR HOLDENSON:   And this judge gave the direction.  In that regard could I take your Honours to the passage in the application book at page 103 where your Honours will see how it was that this applicant was sentenced.  In the middle of page 103 there is set out the individual sentences imposed by this sentencing judge and your Honours will see in paragraph 50, in the very middle of the page, an individual sentence for count 1, then for count 2, then for count 3, then for count 4, then in paragraph 54 for each of counts 5 to 11, and then one sees at the very foot of the page in paragraph 56 the manner in which concurrency and cumulation was dealt with. 

Your Honours will note that the cumulation came from counts 1 and 2 and 3 and those sexual offences which fell within the serious sexual offender provisions resulted in only four years cumulation, that referrable to count 1 – in fact I withdraw that.  It is only two years cumulation.  The sexual offences were counts 1 and 4 thereafter and it was counts 1, 2 and 3 which led to the cumulation, almost total concurrency in this case insofar as section 6E is concerned.

No complaint, in my submission, can be made about that, at least in the context of the piece of paper that was handed down, that is, the sentencing judge failing to give any or adequate consideration to what is set out in paragraph (b), which is the concurrency which might be ordered if otherwise directed under section 6E.

HAYNE J:   Thus, as the sentence is structured, it is effectively 20 years for the various forms of rape served concurrently?

MR HOLDENSON:   Yes.

HAYNE J:   To which there is accumulated two assaults, an unlawful imprisonment and an assault in indecent circumstances?

MR HOLDENSON:   No, the accumulation comes about with respect to the first three counts.  The first count is the offence of burglary, entering the house.  The second count is count 2 which also resulted in two years cumulation.  That is the series of assaults, physical in nature only, perpetrated through the one and three‑quarter hours, and the false imprisonment, count 3, detention against will – and your Honours will recall the manner in which the complainant was detained for almost the entirety tied up for the one and three‑quarters hours but certainly under detention.

HAYNE J:   So, although I think this is not permissible, if one were to look at the total effect of sentence regardless of its components, it would be 20 years for the sexual offending plus two for the burglary, plus two for the assault, plus two for the imprisonment.  Is that the way you get to the 26?

MR HOLDENSON:   Yes, that is correct.

KIRBY J:   But is not what Justice Hayne said at the beginning exactly what this Court has said you have to do?  You have to look at the total.  You have to go to it and see whether or not what you arrive at by the mathematics is excessive and disproportional to the punishment for all the offences.  That is the principle of totality.

MR HOLDENSON:   Yes, just and appropriate is the language of cases like Johnson and Mill back quite a number of years ago.  That is what occurred in this case at the end of the day.  It was the subject of discussion on the plea.  That makes it clear.  The concern of counsel for the applicant on the plea was whether or not there would be a non‑parole period fixed, and that has well and truly been overtaken because there was.

This case, in my submission, that is, the sentence imposed, is entirely in accordance with and consistent with the way in which sexual offenders have been sentenced in this State for quite some years.  There is nothing out‑of‑kilter about ‑ ‑ ‑

KIRBY J:   Is there any case that is precisely comparable to this case?

MR HOLDENSON:   No.  Justice Hayne referred to Beckett ‑ ‑ ‑

KIRBY J:   How can you say it is entirely consistent if this is a special case in which the ordeal lasted short of two hours in which multiple individual offences were caused but in which the victim was not killed?

MR HOLDENSON:   I say “consistent” in this way, lesser offending results in sentences of 16 with a 12, Empey, 16 with a 14 or whatever it was in Devaldez, entirely comparable to a sentence of 26 years with a 20 for ‑ ‑ ‑

KIRBY J:   Those levels that you have mentioned in Empey and the other case are in my mind as the type of sentence that were confirmed in New South Wales for very serious rapes.

MR HOLDENSON:   I am not able to assist your Honour with very serious rapes.  The only one case identified by the applicant in this Court as to ‑ ‑ ‑

KIRBY J:   Well, 26 and 20 does not strike me as normal at all.

MR HOLDENSON:   Well, 26 with a 20 is not at all inconsistent with Devaldez, 16 with a 14, not out‑of‑kilter with a sentence in Empey of 16 with a 12.  There is a New South Wales case referred to on page 157 in Appendix B.  That is the case of Kay, a very different type of offending, albeit multiple offences.  That is identified at the foot of 157.

KIRBY J:   Would you agree that in using Justice Wells’ expression that what happened was, speaking generally, to be regarded as the one continuous set of circumstances?  Justice Wells puts that forward as the general criterion for concurrency of sentences in considering the issue of totality.

MR HOLDENSON:   Yes.  At the end of the day a sentencing judge must look at the sentence imposed and say to himself or herself, “With respect to the entirety of that offending, is the total sentence that I have imposed just and appropriate?”  That was said by his Honour Justice Wells.  The case, as I recall, was Attorney‑General v Tichy and it has been adopted in Mill in this Court and in more recent times in 2004 ‑ ‑ ‑

KIRBY J:   Yes, you are correct.  It is Tichy (1982) 30 SAR 80 at 92.

MR HOLDENSON:   Yes, and more recently in Johnson in 2004 in this Court.  That is what occurred here.  There is one other aspect of this.  This is not a case of just seven counts of rape, counts 5 to 11 – one of them got forgotten along the way, but there is 5 to 11 inclusive.  Each of those offences, albeit the applicant fell only to be sentenced for seven offences of rape, each of them was a representative count, the effect of which, by agreement – that is the only way these things can be pleaded and proceed on this basis ‑ each of those offences which fell for sentence the subject of those counts 5 to 11 is aggravated.

If at the end of the day the Court says, all right, it is all set aside because the judge did not take into account the fact that she was not killed or what sentence would have been imposed had she been killed, and the Court starts comparing it to what, I ask rhetorically.  The prosecutor in the cases to which Justice Hayne referred of Camilleri and Beckett did not mess around and complicate the trial by placing on the presentment the sexual offences.  Here, there was no murder at the end of it.  That is why this case also fits not uncomfortably with the sentences imposed in Beckett and Camilleri. 

If an offence has fell for sentence only one distinction in the course of conduct, albeit my recollection of the cases – perhaps not as good as Justice Hayne’s – my recollection of the cases is that the course of sexual

offending was not as horrific as it was in this case, that is, the course of the sexual offending.  My recollection – Justice Hayne is perhaps undoubtedly more on top of the offending than me.

HAYNE J:   Comparisons of that kind are, I think, not possible.

MR HOLDENSON:   What makes this case different from others is the fact that in this case there was present a number of aggravating factors not present in the others.  Could I just remind your Honours of some of those aggravating factors.  The offences were committed in the complainant’s home, a place in which the complainant is entitled to feel safe.  That is similar to Devaldez.  In Empey it was on the street.  The offences were committed in order to exact revenge, unlike Devaldez, unlike Empey.  Like each of the cases, the complainant in this case has suffered to a great degree. 

Again, this case has the aggravating factor which the others do not – that is Empey and Devaldez, for example – committed in company with a knife.  In Devaldez there was a knife.  The knife was used in this case.  In this case the complainant was subjected to particular acts of degradation and humiliation not present in the other cases.  I talk about, without particularising, subject to your Honours, the presence of the knife and the manner in which the knife was used, the use of the scissors and what was done with the scissors, what was done with the object which was 18 inches long after it had been used in several types of sexual penetration, the videotaping added to the ordeal, being hit about the face with that object which was 18 inches long, failing to desist when requested, the use of persistent physical force in circumstances where the complainant not only did not resist but was physically unable to resist, placing upon the complainant’s head the mask, clearly calculated to instil fear and terror, which it did.

This sentence is one in which it was most open for this sentence to be imposed, this offending.  The facts which constituted the basis of the offences, the findings of fact which were made, the characterisation or description of the offending and the application of the relevant sentencing principles, including section 6E, not always present, render at the end of the day this case one in which there can be no reduction in sentence.  In those circumstances, it is submitted that there ought be no grant of special leave.

KIRBY J:   Yes, thank you, Mr Holdenson.  Yes, Mr Ross.

MR ROSS:   If your Honour pleases, a number of matters.  I simply repeat that I do not seek to excuse what the applicant did in any way.  That was a given ‑ ‑ ‑

KIRBY J:   That is not an issue that we would expect you to seek to excuse him.

MR ROSS:   No, it is not an issue.  But we say that the important thing about the submissions of the respondent is that there is not one case that they say is within cooee of the sentence that was given to Mr Welsh.  If I can just take you to what he said in his submissions about Empey’s Case, it was clear that there must have been any number of blows to the victim in that case to have given her the injuries that she sustained.  He was charged with one offence, but the court did not say this is representative, but you cannot have the one blow which splits everything open and then say, because of that, I can do a penetration of a sort, one would think, but because it is all over in 15 minutes, the respondent says, yes, but that is different because this must have been much worse.

What we say about sentencing is it is not just a matter of mathematics; it is not just a matter of logic.  A as has recently been said in the New South Wales Court of Appeal, it really is an art form.  It is one thing for us to say, look, there are so many errors that there must have been an error because the sentence is so large ‑ one episode.  The respondent does not put a case that is higher.  We say, in combination, it is such that it would invite this Court to intervene, to set down matters of principle that should guide courts below.  If the Court pleases.

KIRBY J:   Yes, thank you, Mr Ross.  We will adjourn briefly to consider the course we take in this application.

AT 11.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.53 AM:

KIRBY J:   I would grant special leave to appeal in this matter.  However, the Court rejects the application for special leave for reasons which Justice Callinan will now express.

CALLINAN J:   The applicant was convicted of multiple counts of rape and indecent assault and of common assault, false imprisonment and burglary, the circumstances of which were horrific.  The trial judge sentenced the applicant to a total of 26 years imprisonment with a non‑parole period of 20 years.

The applicant’s principal argument was that the sentence was inconsistent with other sentences in a number of serious cases of rape.  The argument was not made out.  It is trite to say that each case depends on its own facts.  Those here were evaluated by both the sentencing judge and the Court of Appeal, both of whom were clearly of the view that the case called for the total sentence which was imposed.  There is nothing to show that such a sentence was, in the particular circumstances of it, inconsistent with other sentences for different rapes in different circumstances.  The adjustment of the total of the sentences by providing as it did for some cumulation, but significant reductions on the basis of the totality principle was orthodox. 

It is true that in one sense the offences occurred consecutively on the one, but still somewhat prolonged, occasion.  The trial judge did not overlook this.  This Court would not intervene to reach a different conclusion about such a matter.

Another issue was raised that the sentences in total blurred an important and necessary distinction between offences of murder and offences falling short of it.  This is not so.  The sentence for murder can be life imprisonment.  It has been imposed in this State.  Camilleri is an instance of that.  I would refuse the application.

HAYNE J:   I agree with Justice Callinan.

KIRBY J:   The order of the Court is the application is refused.

AT 11.55 AM THE MATTER WAS CONCLUDED