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R v JABALTJARI
Court of Criminal Appeal of the Northern Territory of Australia

Asche CJ, Martin & Angel JJ

Dates 14 Aup;ust 1989 and 3 Nover'lber 1989 at Darwin

CRIMINAL LAW - Sentence - plea of guilty - saving of public expense and administrative inconvenience - whether appropriate basis for mitigation

CRIMINAL LAW - Sentence - consideration and discussion of mitigatory basis of plea of guilty

CRIMINAL LAW - Sentence - discount for plea of gulty - request for judicial guidelines and policy - sentencing discretion - individual nature of sentencing process

CRIMINAL LAW - Sentence "Rape" - establishment of higher "benchmark" - no evidence of prevalence - whether appropriate for court to set new "benchmark" - NT Criminal Code S.192(1), (4)

CRIMINAL LAW - Sentence - plea of guilty - mitigation of sentence - whether mitigation dependent upon plea indicating genuine remorse

Statutes
NT Criminal Code
Parole of Prisoners Act Penalties & Sentences Act 1985

Cases referred to:

Australian Coal & Shale Employers' Federation v The Commonwealth & Ors (1953) 94 CLR 621
Davis (1980) 2 CAR(S) 168
De Haan (1967) 52 CAR 25
DPP v Ottewell (1970) AC 642
Griffiths v R (1977) 137 CLR 293
Harris v R (1967) SASR 316
Kear (1978) 2 Crim L J 40
Liritern (unreported decision of NT Court of Criminal Appeal - 2 March 1988)

Morton (1986) 23 ACR 433
Nicholls v Bushby (unreported decision of New South Wales Supreme Court - 1978)
Poyner V R (1986) 66 ALR 264
R v Anzac (1987) 50 NTR 6
R v Cox (1972) Qld R 125
R v Holder (1983) 3 NSWLR 245
R v Holder & Johnston (1983) 13 A Crim R 375 R v Ireland (1978) 49 NTR 10
R v Lawrence & Ors (1980) 32 ALR 72
R v Page (unreported Victorian Court of Criminal Appeal quoted Willis in ANZ Journal of Criminology September 1985)
R v Tait (1979) 24 ALR 473
Ross (1983) 5 CAR(S) 318
Scanlon (unreported decision of NT Court of Criminal Appeal - 20 November 1989)
Schumacher v R (1981) 3 A Crim R 441
Yardley v Betts (1979) 22 SASR 108

Cases distinguished:
R v Gray (1977) VR 225
R v Shannon (1979) 21 SASR 442

Cases not followed:
R v Harman (1989) 1 Qd R 414
R v Pickett (1986) 2 Qd R 441

Counsel for the Appellant Solicitors for the Respondent

Counsel for the Respondent Solicitors for the Respondent

jasc890017a

W.J. Karczewski Solicitor for the
Northern Territory

S. Cox

North Australian Aboriginal Legal Aid Service

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jasc890017

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

No. CA 4 of 1989		ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

sec No. 12 of 1988 BETWEEN:
THE QUEEN
Appellant

AND:

DAVID DIXON JABALTJARI

Respondent

CORAM:	ASCHE CJ, MARTIN & ANGEL JJ

REASONS FOR JUDGMENT
(Delivered the 3rd day of November 1989)

ASCHE CJ:	This is an appeal by the Crown on the grounds that both the head sentence and the non-parole period imposed by the learned trial judge were manifestly inadequate.

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The respondent pleaded guilty to one count of what I will refer to for convenience as rape, for that is what it is, although the offence is not known by that name in the Criminal Code of the Northern Territory.		By s.192(1) a person who assaults another with intent to have carnal knowledge is guilty of a crime and is liable to imprisonment for 7 years.	By s.192(4) if he thereby has carnal knowledge he is liable to be imprisoned for life.	The respondent's plea was to the charge that on 16 January 1988 at Alice Springs he unlawfully assaulted the prosecutrix with intent to have carnal knowledge and thereby had carnal knowledge of her.

The sentence of the Court was that the respondent be imprisoned for 4 years and 9 months with a non-parole period of 2 years.

The facts as found by the learned trial judge were that on the 16th day of January 1988 the respondent, who had been drinking, approached the victim with a request that she drive him to an Aboriginal camp.	She agreed to do so but when she reached the Stuart Highway the respondent on various pretexts directed her to certain dirt roads off the highway.	The victim at first complied, but became apprehensive at these changes from his original request, and finally told him she was not prepared to drive him any further.	She alighted from her vehicle to engage the front

hubs on her four-wheel drive Toyota as there were some sandy areas in the vicinity.	The respondent then approached her from behind, grabbed her and dragged her a number of metres from the vehicle.	A struggle ensued during which she lost her shoes and sunglasses.	She tried to attract the attention of the occupants in a car which happened to pass by and she screamed hysterically to no avail.	The presence of the other vehicle did, however, distract the respondent's attention momentarily, and the prosecutrix managed to break free and run towards her vehicle.	The respondent ran after her and there was a further struggle, in the course of which the respondent pulled the ignition keys from the vehicle and discarded them in a creek bed.	He then forced her to the ground, forceably removed her briefs, raised up her dress and had sexual intercourse with her against her will.
During the assault the victim was screaming and struggling and the respondent punched her twice in the mouth, twice in the sides of her face and once in the chest.	Her efforts to attract the attention of passing trail bike riders were unsuccessful, but shortly after the rape, three adults in a four wheel drive vehicle came by, and the victim ran to them and immediately complained of the rape.	The respondent ran from the scene.	The people in the vehicle took the victim to the Alice Springs Police Station where she reported the matter.	The respondent was interviewed the following day and made full and frank admissions in relation to the offence.

As a result of the assault the victim suffered a swollen and bruised top lip, a swollen face, sore jaw and scratchings and abrasions to various parts of her body.	As so often in these cases, however, her physical injuries were relatively minor compared to the grave psychological damage inflicted upon her.	She was a 38 year old single woman who has since suffered a range of psychological symptoms including chronic insomnia, depression, nightmares and a considerable level of mental and emotional distress.	There has, apparently, been some abatement of these symptoms, but it would be surprising if she has yet fully recovered.
Certainly her career prospects were jeopardised to some extent, since part of her duties involved taking field trips throughout parts of the Territory, and one can well understand that she no longer felt confident to do this.
However, the Crown Prosecutor informed the learned trial Judge, and he accepted, that she was now going on field trips in the Darwin area where she is presently based.

The learned trial Judge noted that the respondent had two prior convictions (both in 1987) for exceeding .08%. I note that the blood alcohol level on both these occasions was very high (.25% on the first and .3% on the second).	He noted, further, that in January 1986 the respondent had been convicted of an aggravated assault and sentenced to 6 months imprisonment, to be released after 2 months on entering into a bond to be of good behaviour for 12 months.

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Counsel on behalf of the respondent adduced evidence from a psychiatrist who had examined the respondent and who, in the course of his evidence, referred to a report from the Alice Springs Hospital and to a report from a consulting psychologist who had undertaken a psychological assessment of the respondent.	These reports were admitted without objection from the Crown.

The Hospital report noted that the respondent had been admitted to the hospital in November 1986 complaining of disorientation, sore eyes and a belief that someone was trying to kill him.	A past history of heavy alcohol consumption and petrol sniffing was noted (although the latter seems to have ceased a long time ago - probably about 1971 - see psychologist report).	He was treated for alcoholic hallucinations and bronchitis and remained for three days.		A few days later he returned to the hospital and was treated initially for psychoses but was later placed on anti-depressant tablets with some success.	He became increasingly anxious to leave and physically threatening to the staff.	He was discharged on 1 December 1986.

An earlier incident in September 1986 was noted when he was brought to the Outpatients reception by the Police.	He was found to be hyperventilating but physically well, apart from a wound on his forearm.	He was sedated on this occasion and taken back to the Police Station.

The conclusions in the psychological report were reached after various tests were administered and the conclusions are these:-

CONCLUSIONS

"The test and interview data suggests that while David Dixon (Jabaltjari) has a history of alcohol and substance abuse and a report of recent head injury, there are no signs of organic damage to be found now.

There are also past reports of associated bizarre behaviour and possible hallucinations which, at the time were thought to be psychotic.	Such experiences are common in chronic alcohol abusers and may have been of that type.

His test performance was sound but not fast and indicated that he is probably below average for his age group on measured intelligence.

Since being charged with this offence, he seems to have changed his ways and says he is not drinking alcohol at all.	He expressed sincere affection for his wife and daughters and says that he has to stop all that 'stupid behaviour' because he has 'family responsibilities'.
He reports he is now living with his wife and her family which would no doubt provide him with greater restraints and control.

If he maintains his alcohol-free lifestyle, he should be able to steer clear of this sort of trouble again as it was clearly carried out in a state of disinhibition brought about by excessive intake of alcohol."

The psychologist also noted what I think can be fairly described as signs of remorse, and that "he seemed to be genuine in his desire to mend his ways".	The psychologist reported the respondent's understanding that he

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committed the offence while he was drunk and would not have done it had he not been drunk.	The respondent subsequently told the psychiatrist that he desired to give up drink and return to his family.

The psychiatrist confirmed that the respondent seemed deeply ashamed of what he had done.	He was asked whether a combination of impaired intellectual facilities together with the ingestion of a lot of alcohol contributed to the offence.	He said, "I'm not sure that represents a total explanation for the cccurrence of the offence, but I would certainly say that those factors made a contribution". The psychiatrist expressed the opinion "I would not describe him as being actually retarded, but he's close to it".	He could not see signs of psychiatric disorder, although "he gives a convincing description of grog shakes and accompanying hallucinations ... but that passes off relatively quickly".

In sentencing the respondent the learned trial Judge set out the details of the offence and noted that the respondent had, on the day after the offence, given a record of interview in which had made "full and frank admissions".

His Honour continued:-

"The record of interview indicates a clear account of the events in which you were involved and it accords with the general allegations made against

you.	The significance of this is whatever liquor you may have consumed previously, was not sufficient to blur out your recollection of these events because it is apparent from the record of interview that you had a complete comprehension of the events and a recollection of them.

In short, you simply assaulted and raped your victim in response to her preparedness to do you a good turn by agreeing to take you to your vehicle. This may or may not have been a pretext on your part, but the fact remains is that by your telling her to go along a dirt track in a relatively isolated spot in the bush, you did rely upon some sort of pretext to give effect to your lustful desires.

Your conduct was a combination of low cunning and deliberation, and a total disregard for the person you assaulted and raped."

His Honour then referred to the injuries both physical and psychological inflicted on the victim.	He referred to the respondent's past convictions noting that his background history included a previous conviction for assault for which he had been sentenced to a term of imprisonment.

His Honour referred to the medical background of the respondent setting out in detail the matters I have already referred to.

His Honour also said this:-

"I take into account that you co-operated with the police, that you have a fairly lucid account of your involvement in this offence and made complete admissions when spoken to by them.	I also take into account your demonstration of remorse which is associated both with your pleas - plea of guilty

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and the shame which you have demonstrated particularly in your inability to associate now properly in your family relationship and to use the words submitted to me 'I can't look at my family'."

Finally, after referring again to the evidence of the psychiatrist, His Honour said:-

"I add to that of course the fact that was urged upon me by your counsel that shame still persists in you and you have a recognition of the dreadful offence - the crime you have committed.	I take into account that you are intellectually impaired and the other matters referred to in the evidence of Dr Walton.	I was asked to take into account that there was no very serious physical violence carried out and to the extent that by some standards it is perhaps on the lower end of the scale, nonetheless, you resorted to actual violence which caused physical injury to your victim and I do not overlook that, but at the same time I do regard the assault as being in the lower category rather than the higher.	I also have regard to that fact that fortunately the victim has made a relatively good recovery from her ordeal, although there is evidence of persisting symptoms considering that this offence took place about a year ago.

In any event the invasion of a woman's body by unsolicited actions on the part of any person must be protected by this court.	I would have been inclined but for your plea of guilty and matters personal to you to have imposed a penalty in the vicinity of 7 years.	I mention that in order to give full weight to the discount of the factors which I've taken into account.	The sentence of the court is that you be imprisoned for a period of 4 years and 9 months having taken into account the period you have been in custody and I fix a
non-parole period of 2 years, sentenced accordingly."

The Significance of the Plea of Guilty

In the course of his submissions the learned Solicitor-General invited this court to give guidance on what, if any, discount should be given from any otherwise proper sentence for a plea of guilty.	If he is asking that the Court establish quantitative guidelines to be applied as some sort of formula in every case I would not be disposed to do so.	As was said by Mcinerney and Crockett JJ	in
R v Gray (1977) VR 225 at 232:

"The sentencing judge possesses a discretion of great width.	It would be improper to seek to define or prescribe the area in which that discretion is to operate.	It is for the judge to interpret the quality and implications of the plea."

But the question that the learned Solicitor-General was posing was more aligned to the significance which should be given to a plea of guilty per se i.e., in the absence of anything which the Court may take as a sign of remorse or contrition.

It is beyond question that contrition or remorse are factors which will usually operate in the accused's favour; but not always.	The present of remorse may be no guarantee that the prisoner will not repeat his conduct; alternatively the factor of remorse may, in some case, be outweighed by other factors such as the enormity of the crime or the need for retribution in the sense adopted by

Thomas - "The English Sentencing System" - 3rd Edition -
p.202 of "giving wrongdoers their deserts".

But there are many cases in which the plea is made not necessarily	out of contrition or remorse.	There has been much discussion in Australia about this question and the various decided cases are somewhat in the balance.	The matter has been discussed at length in Courts of Criminal Appeal in New South Wales, Victoria, South Australia and Queensland.	The best starting point is R v Shannon (1979)
21 SASR 442 because there a Full Bench of five Judges was assembled for the express purposes of giving a definitive ruling.	(See pp.242-3).	The leading judgment was delivered by King C.J.	His conclusions were supported by Mohr J. Wells J., with whom Zelling J. agreed, also announced his support for the conclusions of the learned Chief Justice (see p.445), but nevertheless set forward his own conclusions which, on a careful analysis, may not be precisely on all fours with what was said by the learned Chief Justice.	Cox J. was in dissent on certain  basic issues.

At p.453 King CJ said:-

"In my opinion this court sh_ould now lay down the following propositions -

A plea of guilty may be taken into account in mitigation of sentence where -

it results from genuine remorse, repentance or contrition, or

it results from a willingness to co-operate in the administration· of justice by saving the expense and inconvenience of a trial, or the
necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency,

and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing judge is seeking to achieve

A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.

In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.

In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.

The above propositions are not to be taken as weakening in any way the principle that there may be no increase in the sentence which is appropriate to the crime because the offender has contested the charge."

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The basis for proposition (4) and l(b) (insofar as it correlates with (4)), is set out more fully in His Honour's reasons at pp.447 to 450.	His Honour refers to
R v Gray and draws from it the interpretation that the case "condemns the proposition that a judge make a reduction in the sentence otherwise appropriate by reason of a plea of guilty but affirms that he may do so.	It condemns the proposition that a plea of guilty is a mitigating factor only insofar as it is evidence of genuine remorse and affirms that a reduction is justified by facts other than remorse	"that operate in the public interest", such as saving a prosecutrix the ordeal of giving evidence and saving the State a lengthy and expensive trial".

One would have no quarrel in taking into account the factor of saving the prosecutrix the ordeal of giving evidence.	But I would not be prepared to take into account, in the accused's favour, the mere fact that his plea saved the expense of a public trial.	Their Honours Mcinerney and Crockett JJ		in R v Gray did not, in my view, say this so baldly; although they seem, with respect, to have been a little ambiguous.	At p. 232 they say:

"There may be cases in which the only sorrow felt by him is in the fact that he has been detected. But, having been detected, he has had to do the best he can for himself.	Weighing the strength of a possible defence against the likely penalty upon conviction he may elect deliberately to adopt a course which involves a measure of public utility in the belief that his own ultimate interest is best served by doing so.	The judge may (not shall)

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take such circumstance into account in the accused's favour.	If such action be tainted over much by self-interest it probably will not avail the accused.	Professor Sir Rupert Cross in his book The English Sentencing System (1971), p.153 suggests that it is in the interest of the present judicial system that provided they are in fact guilty, accused persons should plead guilty.	No doubt great cost to the community in time, convenience and money is thereby saved.	However expedient this may be from the point of view of the executive, it is not a matter which requires the sentencing judge to reduce the sentence below that which he otherwise believes to be proper in the circumstances."

Just how the Court can determine whether a plea is or is not "tainted over much by self interest" would, in my respectful view, be difficult to establish, where the plea is not to be regarded as evidencing remorse.	There would seem to be a heavy element of self interest in any such situation.

King CJ also referred to a passage in "Cross - The English Sentencing System", 2nd Edition (1975) at p.105 and I note that what is said there includes this passage:

"From time to time suggestions are made that our system of criminal trials would break down if everyone charged with an offence in the Crown court would plead not guilty, and, in any event, the beneficial effect of saving the expense and inconvenience of a protracted and unnecessary trial is something which cannot be ignored.	Provided it is clearly understood to refer only to those who are guilty, moderate encouragement to plead is, as the Court of Appeal put it in de Haan, "clearly in the public interest."

King CJ comments on this passage at p.448 in Shannon:

"The public interest in saving the expense of trial has been increased by the pressures on the legal aid system.	The resources available for legal aid are severely strained by the number and length of criminal trials.	In many cases these trials and the consequent depletion of legal aid funds are brought about by guilty persons contesting their guilt by means of false stories.	The volume of criminal business has placed the court system under stress and has resulted in unfortunate delays in bringing accused persons to trial.		Congestion is greatly contributed to by offenders who put forward false stories and make use of legal aid in an effort to escape conviction.	The growth in the importance of these factors points, in my opinion, to the desirability of providing some encouragement to guilty persons to admit their guilt."

With respect I would agree with the comments made by Cox J. in Shannon.	He was of the view that "the notion that a defendant should, or may, gain credit from a plea of guilty merely because he will thereby be saving the authorities the trouble and expense of a trial and relieving some pressure on the Court's time", ran contrary to directions previously propounded by the South Australian Courts in Harris (1967) SASR 316; Tiddy (1969) SASR 328; and Rowland (1971) SASR
392.	Cox J. then observed (at p.457 in Shannon),

"Two principles relevant to this subject are well established.	First, a convicted person is not to be given a longer sentence merely because he pleaded not guilty.	There are sound policy reasons for that rule, and no one suggests that it should be disturbed.		Secondly, the court may take into account contrition or remorse shown by a defendant and manifested, perhaps, by his plea of guilty.	To take that principle further, on grounds of sheer expediency, is, in my opinion, undesirable.	No doubt it would be convenient, and save money, if all those who are guilty were to say so.	However, the considerations relevant to the question of the proper punishment of an offender do not include

matters which have nothing to do with the nature or effect of his offence, or the character or antecedents or disposition of the offender, but relate solely to the machinery by which his offence is tried."

Wells J. (with whom Zelling J. agreed) announced his support for the conclusions of the Chief Justice.
Nevertheless (if I may say so with respect) it seems to be a somewhat guarded support, in the light of his own summary of his own views which appears at pp.454-5.	Furthermore, His Honour Wells J. goes on to make this comment with respect to proposition l(b) of King C.J.'s summary:-

"It may, however, be useful to emphasise with respect of sub-par. (b) of par. 1 of those conclusions, that the willingness referred to that sub-paragraph may be permitted to have a mitigating effect, not where it stands in isolation, but only where, in all the circumstances in which it is found, to give it that effect would advance the public purpose or purposes that the sentencing judge is seeking to achieve."	(Emphasis added).

His Honour's reference to "public purposes" seem equated (p.455) to the "public purposes" which His Honour had previously discussed in an earlier case of Kear (1978) 2 Crim. L.J. 40.	In that case, however, His Honour was discussing no more than the classical philosophies of punishment, namely deterrence, prevention, rehabilitation and retribution.		If His Honour is rejecting any mitigatory effect of the plea in isolation it would be difficult, in my

respectful opinion, to fit it into one or more of those categories in the absence of contrition.	Furthermore, when His Honour says, at p.455, that, "A plea of guilty traditionally is taken into account and prima facie should incline a judge to look for grounds for leniency", r take him as referring to grounds for leniency vis-a-vis the
prisoner rather than some more generalised administrative advantages.	I do not therefore (and again with great respect) understand him to be fully adopting paragraph 4 of King C.J.'s propositions.

Not only in South Australia but in Queensland statements have been made to the effect that a guilty plea may justify mitigation on the basis that public cost has been saved.	For instance, in R v Pickett (1986) 2 QdR 441 at p.444 de Jersey J. says:-

"For my part, I consider it important, with the increasing length, complexity and cost to the public of criminal trials, that guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time."

The matter was discussed by the Queensland Court of Criminal Appeal in R v Harmon (1989) 1 Qd R 414, when their Honours commented on certain remarks of the trial Judge in that case.	Those remarks (which are set out in p.417) were as follows:-

"My concern  arises from the following factors. Once it is realised that a person who pleads guilty will be more leniently treated than one who unsuccessfully pleads not guilty, an accused person will know that he faces more severe punishment upon conviction on a not guilty plea than on a guilty plea.	It is no answer to say that no-one gets any more but some get less.		It is the contrast between the two, and the existence of a relativity, designed to provide an incentive to plead guilty, that creates a danger.	If the difference becomes sufficiently marked some people who do not know whether they are guilty or not will end up pleading guilty."

In that case the trial Judge said that he did not propose to make any discount for what had been described as a "timely plea of guilty".	He observed that he did not think that the accused was remorseful in the true sense.

The appellant appealed against severity of sentence.	The Court of Criminal Appeal held that the learned trial Judge could not be shown to have wrongly applied his discretion and dismissed the appeal.	However de Jersey J., with whom McPherson J. agreed, took issue particularly with the trial Judge's comment that "there is
certainly a growing view that an identifiable discount ought to be allowed for an early plea of guilty".	To that His Honour de Jersey J. commented:

"To	my knowledge there is no trend in this State to allow or specify an 'identifiable discount' in respect of such matters.	That is not to say that such features as early pleas of guilty are not generally recognised as being relevant to the sentencing process, and in an appropriate case, as justifying moderation for reasons such as those

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discussed in Pickett.	I consider however that the concept of identifiable discounts is wholly inappropriate."

While, de Jersey J., therefore, rejects the view that there should be some identifiable discount he otherwise adheres to the view he had stated in Pickett, and he had the support of McPherson J. in that respect.	Andrews CJ was somewhat more circumspect.	At p.419 he says:-

"I would add that I can see no reason why sentencing authorities should not emphasize that there is relevance in timely co-operation by persons guilty of offences provided that care in expression is taken to ensure the understanding that there is no system of discounting whether precise or otherwise in force, and that there are numerous circumstances to be taken into account in the exercise of what is, after all, a necessarily wide discretion."

In Victoria (until the enactment of the Penalties & Sentences Act (1985) and in New South Wales there seems to have been a rejection of any view that mitigation can be based on some pragmatic approach that a plea of guilty saves public expense.	In New South Wales it seems open to the Court to give a wide and generous interpretation to the concept of contrition, often by accepting the plea of guilty itself as evidence of contrition.	Without being overly cynical, it is probably fair to say that there is far less real contrition than Judges would persuade themselves of; and I have no doubt that Judges know this, but err on the side of generosity.	The difference between being sorry for

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what one has done and sorry for being caught is a difference which Judges may not always wish to investigate too thoroughly.	In R v Holder (1983) 3 NSWLR 245 at 258 Street CJ says:

"It has been said repeatedly in judgments of this court that guilty persons are to be encouraged to plead guilty and courts will not be slow to identify elements of contrition as inhering in the proffering of a plea of guilty.	All accused persons can ordinarily expect to receive the benefit of some credit in the matter of sentence (and for that matter in the non-parole period also) when proffering a plea of guilty.	In  order, however, that the criminal law may not present the appearance of dealing more harshly than would properly be the case with a person who, after pleading not guilty, is convicted by a jury, the relevance of a plea of guilty as a factor pointing towards leniency in sentence is subsumed under the general category of contrition."

However, His Honour does go on to say that:-

"In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complex of the facts before the court."

In R v Lawrence (1980) 32 ALR 72 at 107-8
Moffitt P, while emphasizing that "a less sentence cannot be brought by a plea of guilty", went on to say that:-

"In some cases contrition may be seen from confessing as a desire to mitigate the crime and not subject the State to the expense of a trial and from making a full revelation of what has happened and doing what can be done to right the crime."

I do not take His Honour as suggesting there that a plea of guilty can mitigate merely because it saves expense and time, but only if accompanied by some circumstances of contrition or, as His Honour says, earlier:

"A plea of guilty may result in a less sentence but this is only by reason of what may be inferred in all the circumstances concerning the prisoner's subjective intention and reaction to the crime he has committed."

In R v Page (an unreported decision of the Victorian Court of Criminal Appeal quoted by Willis in ANZ Journal of Criminology, September 1985, p.131) Young CJ delivering the judgment of the Court said:

"The only real relevance in my view of a plea of guilty is if it is indicative of remorse, although I am aware that the court has from time to time said that there may also be taken into account that it may save the community substantial time and money by avoiding a lengthy trial".

As Willis points out the judgment in Page was decided after the judgment in Gray.

However, in Victoria, the position has now been changed by the Penalties &   Sentences Act 1985.	S.4(1) of that Act provides that:

"A court in passing sentence for an offence on a person who pleaded guilty to the offence may take into account in fixing the sentence the fact that the person pleaded guilty."

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In Morton (1986) 23 A.C.R. 433 at 437 the Victorian Court of Criminal Appeal interpreted s.4 as meaning that:

"A court may always take a plea of guilty into account in mitigation of sentence even though it is solely motivated by self interest •..	11

and observed at p.438 that Parliament had by this legislation indicated that "encouragement is to be given to pleas of guilty".

Some Judges would limit the enquiry to determining whether genuine remorse was shown.	See, for instance, the remarks of Hanger CJ (with whom Skerman and Hart JJ agreed), in R v Cox (1972) Qd.R.125-6 where His Honour says:-

''I think that it is the indication of genuine  remorse which is the substance of the matter.	This is not always necessarily  shown  by a plea of guilty."

For those who would wish to go somewhat further than accepting only ''genuine" remorse, the schools divide between those who would still concentrate on the question of remorse but are prepared to treat the plea of guilty as at least prima facie evidence of that; and those taking the more pragmatic view that, normally some encouragement should be given to saving the community time and expense.	Neither approach is satisfactory in strict logic.	One is procrustean semantics; the other is administrative opportunism.

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Of course, it is not suggested (at least in Australia) that a Judge is bound to mitigate for a plea of guilty.	See Schumacher (1981) 3 A.C.R. 441, where Blackburn J., while adopting the views of King CJ in Shannon, comments that all the judgments there included "a rejection of the view that a plea of guilty entails, or invariably requires, a reduction in the severity of the sentence".

The Sentencing Dilemma

Several judges, notably King C.J. in Shannon, have grappled with the problem that if a person whom the law presumes innocent, exercises his undoubted right to test the prosecution's case by pleading not guilty, should he be in any worse position, at the conclusion of the trial, if he is found guilty, than if he had pleaded guilty at a much earlier stage?	Or, to put it in a cruder form, can the court differentiate between an "honest" plea of "Not Guilty", and a "dishonest" one; and, if so, how?

This difficulty has been commented upon by writers on the subject.	For instance Willis in "The Sentencing Discount for Guilty Pleas" ANZ Journal of Criminology (September 1985) pp.131-146 says at p.137:

"This reluctance to make clear pronouncements on such an important issue, no doubt stems in large measure from the difficulties appellate courts have

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felt in reconciling the essentially pragmatic convenience of allowing discounts for guilty pleas with such basic and traditional principles as the presumption of innocence, the right to trial and requirement that the defendant's plea be voluntary.

Ballmann in "The Guilty Plea as an Element in Sentencing" 1980 54 LIJ 105-112, 185-189, illustrates the differing view points by reference to two letters in The Times newspaper written in February 1976.	In the first Professor Glanville Williams writes:

"Although the courts say that they give the discount for the plea, and do not increase the sentence because the defendant fights the case, this is only a verbal point: tpe substance is that an offender gets a steeper sentence merely because he defends himself - yet the discount is a necessity, because offenders who have no defence must be persuaded not to waste the time of the court and public money."

In reply Professor Gordon Trasler pointed to the:-

"central principle of our system of criminal trials that an accused person is entitled to challenge the coherence of the case laid against him ... in entering this plea the accused is not claiming innocence; he is calling in question the adequacy of the evidence, and it is clearly in the general interest that he should do so ...	to the people at large ... may be content to pay a price for the assurance that others will not be convicted upon inadequate evidence."

Ballman comments that:

"The courts are, perhaps understandably, very reticent to make a clear statement on the issue. They are prepared to say that a not guilty plea

should not involve a harsher sentence than would otherwise be justified, but they are not prepared to be explicit by taking the further logical step of saying that there is a difference for sentencing purposes between the two types of plea.	It may well be that they are not prepared to take this further step because to do so involves running headlong into the cherished principle of a free and open choice of plea."

A Canadian writer, Clayton C. Ruby in "Sentencing", 3rd Edition (1987) at p.176 finds the same difficulties prevailing in Canada, and takes the rather gloomy view that "the problem, perhaps, remains insoluble".

Nevertheless, I would reject the pragmatic view that a plea of guilty can justify mitigation on the sole basis that there is a saving of court time and public expense.	If adopted at all, this would seem to become no more than a disguised form of plea bargaining, with undue pressure put upon the accused to plead guilty.		Furthermore it seems to be a counsel of despair brought about by circumstances  not relevant to the individual.	In an article "Court Involvement in Pre-Trial Procedures" (1987) 61 ALJ
471 at 477, Pincus J., commenting on the growth of legal  aid, takes the view that the congestion in the court system does not stern from a bad cause but rather from a good one. That is, that the availability of legal aid allows more persons to exercise that right which the law gives them to insist upon their right to trial and to insist upon the prosecution proving its case against them.	The evil is not,

therefore, in the growth of legal aid, but rather in the inadequacy of court resources to meet that growth.	His Honour was concerned about what he saw as "the evolving rule as to rewards for pleading guilty in criminal cases."	His Honour went on to say:

"What has happened in consequence has been a rather disturbing development.	In my respectful opinion, people are being punished for insisting on a trial, at least in the sense that they may receive a longer sentence if they plead not guilty than they would if they pleaded guilty.	It is true that the cases which justify this practice put it the other way around: they say the convicted person may serve less time if he pleads guilty, but of course it comes to the same thing.		That 'fundamental ... bulwark of liberty', the privilege against self incrimination, looks a little less solid if the law is that one may be encouraged to admit guilt by the possibility of spending more time in gaol as a punishment for failing to do so."

Willis, in the article already referred to, mentions the "ironic but telling comment" of Cox J. in Shannon at pp.458-9 that

"He (the defendant pleading not guilty but found guilty) will need a very subtle mind, unusually sympathetic to the way of the law, if he is to understand that he is going to prison for a longer term, not because he pleaded not guilty, but because he failed to plead guilty."

It is interesting to note the robust approach of the English courts which seem to have happily solved the philosophical problem by ignoring it.	This seems to stem from De Haan (1967) 52 C.A.R. 25 at 27 where Edmund

Davies LJ, delivering the judgment of the Court of Appeal (Criminal Division) says simply:-

"If, as is undoubtedly right, a confession guilty should tell in favour of an accused that is clearly in the public interest."

of person,

That statement is somewhat qualified by Lawton LJ delivering the judgment of the Court in Davis (1980)
2 C.A.R.(S) 168 at 170:-

"It is a principle of sentencing that whenever possible the court should take into account as a mitigating factor the fact that the accused have pleaded guilty.	The extent to which it is a mitigating factor must depend on the facts of each  c a s e . 11

Those remarks were adopted and given significant effect in Ross (1983) 5 C.A.R.(S) 318 where the Court, consisting of May L.J. and Park and Peter Pain JJ., in circumstances where one accused had pleaded guilty and the other not guilty but had been convicted, and where both had received a 15 months sentence, reduced the sentence of the accused who had pleaded guilty to 9 months.

The position in England, indeed, seems to have been now accepted to the extent that Thomas - Principles of Sentencing (2nd Edition) p.52 can say:-

"These cases suggest that a mere plea of guilty without any further mitigation may justify a reduction of sentence of between one quarter and

one third of the nett figures established by reference to the facts of the offence."

See also the commentary on Ross in (1984) Crim.
L.R. 53 that "the discount was more generous than usual at
40 per cent".

This approach has not found favour with the more logical Scots. C.G.B. Nicholson - "The Law & Practice of Sentencing in Scotland" (quoted in 1983 Crim. L.R. 298) comments disapprovingly:-

"	in England there appears to be a well established practice approved by the Court of Appeal, of allowing, where there is a plea of guilty, a discount from what would otherwise be an appropriate sentence ..• (in Scotland) if any mitigation is to be found in cases where a plea of guilty is tendered, it must be found in factors which are mitigating in themselves and not in the mere fact of a plea of guilty ... it would be quite unacceptable that, in a legal system which presumes innocence and which permits every person to go to trial, a person who was found guilty after trial should be punished more severely simply because he had not pled guilty."

Despite the temptation to adopt the deceptively simple English approach, I consider that this Court cannot avoid the problem in this way, now that it is being increasingly recognised in Australia.	While there is probably no perfect solution I am convinced that no argument based on administrative convenience should be acceptable and the emphasis should remain on factors "mitigating in

themselves", or to use the expression employed by their

Honours in R v Lawrence (1980) 32 A.L.R. 72 at 108 and 147, factors "subjective to the prisoner".

In this context it may be that a substantial factor persuading a court to mitigate a sentence on a plea of guilty has not been fully explored, though it has obviously had a considerable influence in many cases.	This is a factor which Cross J. of the Supreme Court of New South Wales in an unreported decision of Nicholls v Bushby (1978) (referred to by Moffitt P. in R v Lawrence (1980) 32 A.L.R.
72 at 108) has called "rescipiscence", which the Oxford English Dictionary translates as "recognition of errors committed". The remarks of Cross J. are these:-

"Though of course an increase in an otherwise appropriate penalty can never be justified on the basis that the prisoner has pleaded not guilty (see R v Regan (1959) Crim LR 529; R v Harper (1968) Cr.App.R 21), it is trite law that an otherwise appropriate sentence may justifiably be reduced by a plea of guilty insofar as that plea demonstrates rescipiscence, saves the State the cost of a lengthy trial or avoids subjecting the victim - particularly children and women who have been the subject of sexual assaults - from the embarrassment and humiliation of giving evidence in open court (see R v de Haan (1968) Cr.App.R 25)."

Cross J., of course, puts rescipiscence as only one of the factors, but it is worth looking at in isolation.
Should not some favourable consideration be given to a person who, while not showing remorse, at least shows

sufficient maturity to acknowledge that he has done wrong and acknowledge that he should be punished.	From a rehabilitation point of view it could be argued that a person showing that degree of realism may be some steps along the road, if not to repentance, at least to a degree of self control which may argue a more disciplined attitude in the future.	Conversely, it could be suggested that considerable harm would be done if it were known that this sort of realistic self appraisal would gain no consideration from the court.

Of course, one could not push this concept too far.
Obviously there will be cases where the prior history and attitude of the offender, and the circumstances of the offence will indicate no real prospect of rehabilitation. One is reminded of Saki's story "Canossa" where the accused, a popular anarchist,

"not only pleaded guilty (to burning down the Albert Hall) but expressed his intention of repeating his escapade as soon as circumstances permitted; throughout the trial he was busy examining a small model of the Free Trade Hall in Manchester."

But a candid recognition of wrongdoing and a preparedness to face the consequences, absent mere bravado or hypocrisy, seems to be well within the meaning of the phrase used by  de Jersey J., "an honest plea of guilty".

The rationale for taking into account a plea of guilty should therefore concentrate upon the individual and, unless outweighed by other factors, should operate favourably to the individual if true remorse is shown, or circumstances from which, from a realistic point of view, remorse may be inferred; or because the plea represents a realistic appraisal by the accused that he knows that he has done wrong and must be punished, and therefore exhibits prospects of rehabilitation through self knowledge, i.e., "an honest plea of guilty".	In my view most pleas of guilty could be placed in one or other of these categories (and often in both) and it is neither necessary nor desirable to accept that a plea of guilty will lead to mitigation if that mitigation is only on the basis that the courts will be spared expense and will function more efficiently.	The fact that witnesses, particularly witnesses in sexual cases, may be spared the humiliation of giving evidence can, I think, be placed under the broad category of contrition, as a recognition that suffering has already been caused and should not be continued.

It is this concentration on the individual which can then rationally explain why a person who pleads "not guilty", but is found guilty, may very well face a sentence greater than that imposed upon a person who pleads guilty to the same offence but who can demonstrate, by his plea, remorse or self-realisation or both.	I see no reason why

this should not be said quite plainly.	When it is said that there should be no increase in the penalty when a person who pleads "not guilty" is convicted, it should be made quite clear that what will not be increased is the "objective" sentence (as to which see R v Ireland (1978) 49 NTR 10 at p.22-23 per Nader J.).	I can see no reason why a person who chooses to plead "not guilty'' should not clearly understand that he runs a risk, if found guilty, that he may be deprived of certain mitigating factors upon which he could have relied if he pleaded guilty.	Nor do I see any injustice or unfairness in the position.		If his defence involves a complete denial of the offence for which he is charged, and if nevertheless it is established beyond reasonable doubt that he committed it, the obvious comment would normally be that he has shown no remorse or
self-realisation and he should get no consideration for those factors; though the objective sentence will not be increased.	Of course his defence may not be of that nature. It may be based on a question of interpretation or a submission of lack of evidence.	If that fails there may still be room for the Court to find mitigating circumstances.	Even in a case fully contested on its merits, some circumstances of mitigation may appear; but they will not normally be based on contrition or rescipiscence.	The point is that, however he pleads, the Court's attention ultimately must focus on the factors personal to him in determining whether to mitigate the

objective sentence.	It should not focus on whether he has or has not saved the community trouble or expense.

No doubt it may be said that this is mere casuistry and does not meet the objection that a person who has or believes he has a good defence may still feel under pressure to plead guilty.	All that one can answer is that no system yet devised can prevent that, and it is unrealistic and hypocritical to deny that this sort of pressure occurs.	But at least the pressure is not increased by suggesting possible rewards for contributing to administrative efficiency.

The question asked by the learned Solicitor-General as to what, if any, discount should be given from an otherwise proper sentence for a plea of guilty cannot therefore, and in my view should not, be answered other than in general terms.	However, insofar as guidelines rather than formulae are sought, (as to which see the remarks of Mason and Deane JJ. in Norbis v Norbis (1986) 161 C.L.R. 513 at 519), I see no difficulty in stating that, provided the sort of factors already mentioned exist which may legitimately be taken into account on a plea of guilty, there will usually be some and often a substantial reduction from the objective sentence.	But because the circumstances vary widely it would be wrong and unduly restrictive of a sentencing judge's discretion to fix on any specific

percentage reduction even as an average; nor has any other State or Federal Court attempted such an exercise.

Should there be a higher "Benchmark" for this offence?

We have also been invited by the learned
Solicitor-General to establish "a higher benchmark for this serious and prevalent offence".	No-one doubts the seriousness of the offence.	But no evidence has been placed before us as to how prevalent it now is, compared to, say, 5, 10 or 20 years ago; or whether, if an increase in reported rapes or sexual offences is shown, that demonstrates a real increase in the incidence of such offences rather than an increase in reporting of such offences brought about by the greater encouragement of victims to come forward; or whether an "across the board" imposition of higher penalties for all these types of offences will decrease their incidence.	This court should not take such a drastic step as that suggested, which might improperly bind the sentencing discretion of judges or magistrates, without much more convincing proof of its desirability; and certainly not on an unsupported generalised statement that a particular offence is prevalent.	Indeed there is much to be said for the argument that an overall increase in penalty for a particular type of offence is a matter for the legislature rather than the courts.

• • >

In fixing maximum rather than minimum penalties for various offences the legislature properly recognise the vast range of criminality involved extending from the most extenuating circumstances to the most callous and reprehensible actions; and leaves it to the courts to find the punishment to fit the crime.	It is not for appeal courts, therefore, to indulge in self-denying ordinances which overly inhibit the broad discretion given by the legislature.	That is not to say that appeal courts will not adjust sentences which are out of phase with sentences normally given in similar circumstances.	That is to prevent injustice either to the accused or the community caused by a misapplication of the discretion invested in an individual judge or magistrate.		Reference to "tariffs" is designed to allow some reasonable continuity and predictability in the sentencing process.	But appeal courts have always been careful to emphasise that the system should not be applied too rigidly and should allow for the exceptional case.	No doubt, as precedent builds on precedent, and new factors  come to be recognised as having a bearing on a particular offence or the circumstances in which it is committed, the "tariff" for that offence or those circumstances will gradually change either upwards or downwards; and an appeal court may be asked to recognise the change and give appropriate rulings.		But this is a very different thing from asking an appeal court in an individual case to disturb existing guidelines on a dubiously ad hoe basis.

Is the Sentence in this case manifestly inadequate?

Applying the principles discussed above to the present case it is clear that there is no difficulty here in accepting the plea of guilty as being properly based on contrition.	The learned trial judge accepted that, and there is evidence from both the psychiatrist and  psychologist to support it.	Nor does the Crown submit that His Honour should not have taken that into account.	Leaving aside the more general matters raised by the Crown and which I have already discussed, the Crown submits that in the circumstances of this particular case the head sentence of
4 years and 9months was too low.	No doubt it follows, if the head sentence is to be increased, that consideration should be given to increasing the non-parole period.

It is clear, from the passages I have earlier cited from his judgment, that the learned trial Judge cannot be shown to have acted on a wrong principle, given weight to extraneous or irrelevant matters, failed to give weight or sufficient weight to relevant considerations or made a mistake as to the facts.	Indeed, if I may say so, His Honour most carefully took all proper matters into account. It follows that the Crown must rely on the last of the tests propounded by Kitto J. in Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 C.L.R. 621 at 627 that while the nature of the error may not be discoverable

the result is so unreasonable or plainly unjust (or in this case that the sentence is so manifestly inadequate) that the appellate court may infer that there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.

Although I would be disposed to think that the sentence is very much at the lowest end of the scale of what would be adequate, I am unable to hold that the Crown has established that it is manifestly inadequate.	As I understand it, the Crown attack on the sentence is basically on the "objective sentence" of 7 years which His Honour mentions at the end of his sentencing remarks.		The Crown's submission is that in the circumstances  of this case that was too low.	I would, myself, have thought that an objective sentence of 10 years was more appropriate;  but that of course is not the test, and merely illustrates that individual differences are not sufficient to override the discretion of the trial judge.	I am unable to say that the views of the learned and experienced trial judge were so far a deviation  from an appropriate sentence that an error in his sentencing discretion has occurred.	Having fixed on the objective sentence His Honour then made appropriate adjustments downward to give effect to the mitigating circumstances personal to the respondent.		I do not think it can be seriously argued that some reduction was not appropriate having regard to the real contrition displayed

by the respondent, his immediate confession, his deprived
'
background and his very limited intellectual capacity. Indeed it may well have been the case that another judge may have fixed a somewhat higher objective sentence but with a somewhat larger reduction and achieved much the same sentence as the learned trial judge; thereby illustrating the importance of allowing a broad range of discretion in the trial judge.	Particularly in the light of the sentencing examples carefully collected by Martin J. in his judgment, I cannot conclude that in all the circumstances the sentence, including the non-parole period, was so manifestly inadequate as to point to a failure properly to apply the sentencing discretion.

I would dismiss the appeal.

'

MARTIN J:

The Attorney-General appeals against the sentence imposed upon the respondent, upon the grounds that both the head sentence and non-parole period imposed were each, in all the circumstances, manifestly inadequate.	No specific error is assigned to the learned sentencing Judge.

The respondent was convicted on 17 February 1989, upon his plea of guilty, for that on 16 January 1988 he unlawfully assaulted a woman with intent to have carnal knowledge of her, and thereby had carnal knowledge of her, contrary to section 192(1) and (4) of the Crimin&l Code.
The maximum penalty is imprisonment for life.	The
respondent was sentenced to imprisonment for a period of 4 years and 9 months, and a non-parole period of 2 years was fixed.	His Honour took into account the respondent's periods in custody in relation to the offence, prior to his being bailed, and after execution of a warrant for his arrest for failure to attend before the Court when required. In all, that period amounted to 66 days, or a little over 2 months.

On the day of the offence the respondent commenced drinking alcohol at a camp near Alice Springs.	At about
4 pm on that day the prosecutrix, an anthropologist, attended at the camp in the course of her employment, and he

'

requested her to convey him to another camp in the Charles Creek area.	The prosecutrix agreed, but at his request she diverted from the Highway leading to Charles Creek, into a more remote area.	The respondent prevailed upon her to do that by telling her that his car had broken down in the area and that a baby girl was in it.	Becoming apprehensive, the prosecutrix stopped with a view to engaging the front hubs on the four-wheel drive vehicle because of sandy conditions, and told him she was not prepared to drive him any further. He then attacked her, dragging her some metres away from the vehicle; she resisted, managed to break free, and ran towards a vehicle passing nearby.		He pursued her, removed the keys from the ignition of her vehicle and threw them away, then forced her to the ground, removed her briefs, raised her dress and proceeded to have non-consensual vaginal intercourse with her.

During the assault the prosecutrix was screaming and struggling and the respondent punched her a number of times in the head and body.	Shortly after the rape another vehicle came by, the prosecutrix ran immediately to it and made a complaint to the occupants, who then took her to the Alice Springs Police Station where she reported the matter.

The police spoke to the respondent the following day when he made full and frank admissions of his involvement.	His Honour remarked that whatever liquor he

..

may have consumed prior to committing the offence was not sufficient to blur his comprehension or recollection of the events.

In His Honour's words, the respondent simply assaulted and raped the victim in response to her preparedness to do him a good turn by agreeing to take him to his vehicle and "Your conduct was a combination of low cunning and deliberation, and a total disregard for the person you assaulted and raped."

It is plain that the respondent had no reason to think that he was being encouraged in any way by the prosecutrix.	She drove into the remote area at his request, no doubt thinking that she was doing him a good turn.

As a result of the assault, she suffered a swollen and bruised upper lip, swollen face, sore jaw and scratches and abrasions to her body.	His Honour regarded the assault, by which I take him to mean the assault preceding the act of sexual intercourse, as being in the "lower category, rather than the higher".	In addition to the bodily harm she has suffered a range of psychological trauma arising from the attack upon her, including chronic insomnia, depression, nightmares and a considerable level of mental and emotional distress.	Those symptoms had abated somewhat by the time of the conviction and sentence.		Her career prospects were

jeopardized to some extent in that she no longer felt comfortable going on field trips in Central Australia.	She had transferred to Darwin in the meantime and was engaging in that type of work in that area.

At the time of the offence the respondent was aged
23.	A psychiatrist gave evidence on his behalf to the effect that although he was not suffering from brain damage, he was intellectually impaired possibly arising from "alcohol, petrol, multiple head injuries or syphilis".	The Doctor considered hirr, to be dull, though not retarded, and recognised him to be substantially impaired in general literacy, numeracy and social abilities.	There was other evidence to support the Doctor's opinion so far as it is based upon the respondent having a history of heavy alcohol consumption, past petrol sniffing, head injury and poor educational backgrounds.

The respondent had been previously convicted for driving whilst having a blood alcohol level in excess of the prescribed limit for which he had been imprisoned, and for aggravated assault for which he was ordered to be imprisoned for 6 months, but to be released after 2 months on entering into a good behaviour bond under supervision for 12 months.

A married man with two children, it appeared that the respondent had given up alcohol after the offence and,

when not in custody, was living with them, not without some difficulty because of his shame for what he had done.

His Honour also remarked "You pleaded guilty from the very outset so far as the general conduct of the proceedings were concerned and I allow substantial discount by adopting that course from committal to the present entry of plea yesterday.	It demonstrates remorse in a practical legal sense.	I add to that of course the fact that was urged upon me by your counsel that shame still persists in you and you have a recognition of the dreadful offence - the crime you have committed."	His Honour also took into account the respondent's co-operation with the police and his admissions to them.	Concluding his remarks the learned Judge said:

"In any event the invasion of a woman's body by unsolicited actions on the part of any person must be prohibited by this Court.	I would have been inclined but for your plea of guilty and matters personal to you to have imposed a penalty in the vicinity of 7 years.	I mention that in order to give full weight to the discount of the factors which I have taken into account."

His Honour then proceeded to sentence the respondent.

The principles to be applied in appeals by the Attorney-General against sentence do not need to be repeated in detail again.	They are most usefully summarised by Muirhead A.J. in R v Ireland 49 NTR 10 at p. 27, and have

been consistently applied by this Court: "What must be established, before an appeal based on inadequacy of sentence is allowed, is not that it is lower than average, or merciful, but plainly wrong on established principles". His Honour there also drew attention to the observations of Barwick C.J. in Griffiths v R (1977) 137 CLR 293 at p. 310, when he suggested they should be rare and utilised only "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons".

The primary submission by the Solicitor-General is that "the law is not settled in Australia in general, and in the Northern Territory in particular as to what, if any, discount should be given for an otherwise proper sentence for a plea of guilty", intending thereby to convince this Court that it should lay down a principle for the governance and guidance of the Supreme Court.	He also says that the learned trial Judge fell into demonstrated error in considering that, but for the plea of guilty and matters personal to the respondent, an appropriate penalty was in the vicinity of 7 years imprisonment.	In other words, that the starting point for fixing penalty, taking into account the circumstances of the offence and the maximum penalty allowed, should be in excess of 7 years (he suggests 10 years), from which may be made allowances by way of mitigation, including for the plea.

It is more convenient to deal with the second argument first.	Obviously, a sentence commences at a point which is not often disclosed (nor do I think it need be), by arriving at a view, not necessarily precise, as to what Nader J. called in Ireland at p. 22 the "objective sentence", that is, what part of the term, if any, of the term of imprisonment specified in the Code, as that to which the offender is liable, ought to be imposed, having regard to the circumstances of the offence.	Here the offence carries a liability to imprisonment for life, the same maximum penalty prescribed by the repealed Criminal Law Consolidation Act and Ordinance for the like offence, there described as "rape".

The circumstances of the particular offence vary widely.	The offender may be in a position of trust in relation to the victim, such as parent, guardian or tutor; the victim's and the offender's age may be relevant considerations; the offence may have been planned or opportunistic; the victim may have given the offender some reason to think he was being encouraged into pursuing his intent; the degree of violence offered, actual or apprehended, varies greatly from threat to extreme physical brutality; there may or may not be intimidation by the use of a weapon; the offence itself may be accompanied by acts of indecency of varying degrees; the length of time during which the assault was perpetrated may be long or short; the

penetration may take place in the vagina, anus or mouth.	I do not intend these examples to be exhaustive, but simply to point to the circumstances and combinations of circumstances which may make up the crime in individual cases.	They point to the difficulties co11fronting the sentencer in clBEEifying the offence in objective terms (see R v Visconti (19£:) : NSWLR 104).	These difficulties are compounded when there is not available to the Court sufficiently comprehensive and reliable information regarding the circumstances attendant upon the sentences imposed on offenders for the same crime.

The following are brief details of the circumstances of the offence in some of the cases before this Court in the past three and one half years, and of the sentence imposed after taking into account the circumstances of the offender.

DATE OF	OFFENDER SENTENCE
9.5.86	Biddell

31.10.86	Stanley

CIRCUMSTANCES

Forcibly had sexual intercourse with his flat mate.

Defendant met the victim at a hotel.	She was with her husband.		The husband left and the victim then went with the offender.
They kissed and were walking to a vacant lot when the victim met a man known to herself and her husband and said she
was leaving.	The offender

SENTENCE

3 years to be released after
6 months on recog of $1,000 to be of good behaviour for 3 years

For rape 3 years. For causing grievous bodily harm 5 years to be served con­ currently.	Non­ parole period 2 years

28.11.86	Pope

5.12.86	Gurnbaduk
& 3 others

became enraged, raped her and stabbed her with the knife.

Offender abducted and raped the victim once at knife point.	She was a prostitute

Pack rape.		No unusual violence.	The amount needed to effect the rape was minimal.

Imprisonment for 5 years.
Non-parole period 2½ yrs
Each imprisoned to 7 years with
3 year non- parole period

8.12.88

5.12.88

Kitto

Anderson

The victim had an argument with her boyfriend  and went away with some friends to get away from him.
Whilst in their company she drank a large quantity of wine and became hopelessly drunk.	She was repeatedly raped by the boy she was with and by others.	She was under 16.

The offender entered the victim's house and made his way to a bedroom where the victim and her defacto were asleep.	He lowered his pants, rolled the victim onto her back, lay on top of her and penetrated her..

6 years imprisonment. Non­ parole period
2 years

Deferred passing sentence on entering into recognizance in the sum of
$500 to be of good behaviour for 12 months

The appellant supplied this Court with transcripts of sentencing remarks in the following matters, better details are therefor available.

DATE 26.5.89

OFFENDER
Bakewell

CIRCUMSTANCES

Offender entered the victim's flat, struggle with victim, squeezed windpipe 3 or 4 times, tied part of a sheet around victim's throat, victim struggling for

SENTENCE

10 years. Circumstances of pressure on windpipe and ligature around neck disregarded as victim died as

breath, sexual intercourse.

Cross	Victim gave offender a
lift in her car.	On lonely road offender assaulted her by striking around head and body, attempted vaginal intercourse, followed by forcible oral intercourse.

a result and those matters taken into account on additional charge of murder.

For attempt 3 yrs. and for oral intercourse 7 yrs. to be served con­ currently plus 6 months cumulative for stealing.	Non parole period 2
years 3 months. (The Attorney-General has lodged an appeal against the non­ parole period fixed, only)

The Court was also supplied with the decisions of this Court in two cases on appeal against sentence brought by the Attorney-General.

In Scanlon (unreported 20 November 1987) the offender was convicted of unlawful entry of a dwelling with intent to commit a crime, robbery whilst armed with an offensive weapon, indecent assault whilst so armed and assault with intent to have carnal knowledge and thereby having carnal knowledge.	The same woman was the victim of all of the offences which were committed at the one time.
The assaults were committed whilst the offender threatened the victim with a knife.	The sexual intercourse was oral. The sentence for rape was for 5 years.	This Court held that, in applying the law guiding Crown appeals against sentence, it had not been shown that the sentence was

manifestly inadequate.	Every member of the Court, however, considered the penalty to be lenient.

On the other hand in Lintern (unreported 2 March 1988), this Court upheld a Crown appeal against sentence when the offender had twice in the course of one night raped his 12 year old daughter under threat of violence, on the first occasion by a knife.	The sentences imposed at first instance of 6 years on the first count, and 8 years on the second count, to be served concurrently, and a non-parole period of 2 years were quashed.	The sentences were not backdated to the time the offender was taken into custody, about 6 months prior to sentence being imposed.	This Court substituted sentences of 8 years and 10 years respectively, backdated by that period, and ordered them to be served concurrently.	The sentences were effectively increased by approximately 18 months.	A non-parole period of 5 years was fixed.

A further appeal to this Court was in the case of Driver, where the offender was the appellant.	He had been sentenced to 2 years for unlawful entry into a dwelling house with intent to commit a crime and 5 years for rape. The case was complicated by arguments arising out of the application of s. 4A of the Parole of Prisoners Act which was the major issue on appeal.	Members of the Court regarded the sentence of 5 years as being lenient, but

..

possibly explicable by the complications referred to.	The Crown had not appealed, and it was not thought appropriate that the sentence should be increased by the Court's own motion.	Nader J. considered that a sentence of 7 years would have been in order, describing the circumstances of the offence as being "most serious indeed".

In this case, so far as His Honour's remarks on sentence disclose, counsel for the Cro,,:r, did not provide any guidance as to the range of sentences imposed for this offence, nor address as to seriousness of the circumstances of the offence.	Although this Court was provided with the whole of the transcript of the proceedings on sentence, our attention was not directed to any portion of it, and it might be safely assumed that those matters were not put.
This Court must always be alert to the double jeopardy in
which an offender is placed upon a Crown appeal against sentence, especially "if the Crown has not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant was unduly prejudiced in meeting for the first time on appeal the true case against him", (R v Tait 24 ALR 473 at 477).	The Crown is in the best position to assist the Court in regard to the range of sentences which have been imposed for like offences.
Afterall, it is a party to all prosecutions in the Court and necessarily has all of the relevant information available to it. Those representing an individual accused are not so

assisted.	If difficulties of proof arise that may be another question, but such considerations should not inhibit a genuine attempt to assist the Court by the proffering of such information as is available.	The Crown does so on many occasions without objection.	Indeed, in some cases where defence counsel is well experienced in the field, the Court is assisted by submissions based upon his knowledge of sentencing patterns for the particular offence under consideration.	The weight to be given to the material produced may vary depending upon its source and relevance.
This Court in R v Anzac (1987) 50 NTR 6 at 15 pointed out that in the absence of a request from the Judge the Crown is not required to provide such details, though it may choose to do so; "these comparisons are helpful, and if given, would probably assist in reducing the number of appeals."

The submissions put on behalf of the Attorney-General also urged this Court to set a higher
"benchmark for this serious and prevalent offence".		I take that to mean that the Attorney-General considers that an increase in the sentence and non-parole period in this case would provide guidance for sentencing for this offence.	I do not agree.	Each case must be considered on its own facts; the wide range of penalties previously imposed demonstrates the difficulty in fixing a benchmark.	Perhaps it was in mind that the prevailing standards of sentence for the offence being thought to be too low, that the position

should be corrected by an upward trend (rather than an abrupt increase).	In Poyner v R (1986) 66 ALR 264, a majority of the High Court said that such statements "provide useful guidance which should always be kept in mind, but they do not state a binding principle".	It may be that what their Honours there had in mind, inter alia, was the possibility of there being a dramatic increase in the prevalence of a particular offence which called for an abrupt increase in penalty rather than an upward trend.
However, notwithstanding the submission, there was no material put before His Honour, or this Court, going to the prevalence of the offence of rape.	Looking at such material as I have been able to discover, together with that which was put before this Court, I can not derive anything which indicates that convictions for this offence have been more frequent in the recent past as opposed to the overall period reviewed.	Fox and Freiberg note at p. 459 the remarks of McGarvie J. in Bateman that whilst it was proper to increase a sentence on the basis of its prevalence the "judicial response in such a situation needs to be a controlled and measured one.	This is particularly so at times when well organised and well orchestrated campaigns for heavy sentences are being conducted in the community."	With that, I agree.

For these reasons I do not accede to the appellant's submissions that this matter should be treated

in some way as being a test case.	It must be considered on its own facts, in the light of such information as is available, to determine whether or not the sentence imposed was so far lenient as to justify the intervention of this Court on an appeal against inadequacy of sentence brought by the Attorney-General.

As was said by Street C.J. in R v Holder and Johnston (1983) 13 A Crim R 375 at 384, although the approach to detection of error where the ground relied upon is manifest excess or manifest inadequacy is identical, it is frequently more difficult to detect error in the form of the latter.	At p. 383 His Honour said that an appeal court evaluates the permissible range of sentence in the light of all of the admissible considerations, and drawing upon its own accumulated knowledge and expertise.	A sentence lying outside that range will (in the case of a convicted person's appeal), or may (in the case of a Crown appeal) be corrected.

Bearing all that in mind, particularly the legal constraints to be applied in considering a Crown appeal against inadequacy of sentence, I return to this matter. The facts have been sufficiently described above.	However, to summarise, this was a case in which the offender prevailed upon the victim to do him a favour by driving him to a remote area.	When she declined to go further upon the

journey he took the opportunity of her leaving the vehicle to assault and rape her.	It is reasonable to infer that he induced the victim to go into the remote spot and waited an opportunity to rape her, which he took, when she got out of the vehicle.	He was not in any sense encouraged; he did not use a weapon; his assault prior to rape was not anything  near so serious an assault as has occurred in other cases, though undoubtedly more than sufficient to overcome the victim's will and efforts to resist his attack.	Nothing which she did, or failed t6 do, can be called in aid of the respondent in regard to the circumstances of the offence.
It was committed as a result of planning and opportunity. Taking into account these factors, it seems to me that the objective sentence of 7 years disclosed by His Honour was within the appropriate range, though in my opinion at the lower end.

It is not only the circumstances of the offence which is taken into consideration, but also the circumstances of the offender.	That principle is of long standing.	Reference is made to it in Blackstone's Commentaries on the Law of England 7th Edition (1775) Book IV at p. 380.	Matters such as the age, sex, character, mental health, family and employment circumstances and general social history are examples only of the facts which may bear upon this issue.	According to Fox and Freiberg Sentencing - State and Federal Law in Victoria (from which

that list is taken), the matters which may influence a court in sentencing have been variously put by researchers at 229 and 292 (p. 442/443).	At p. 445 the authors quote from Williscroft (1975) VR 292:

"Now, ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process.	Moreover, in our view, it is profitless (as it was thought to be in Kane's Case) to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination ...	We are aware that such a conclusion rests upon what is essentially a subjective judgment largely intuitively reached by an appellate judge as to what punishment is appropriate.	Indeed, in R v Geddes (1936), 36 S.R. (N.S.W.) 554, Sir Frederick Jordan C.J., was sufficiently oppressed by the problems of seeking a rational principle for determining whether a sentence was inadequate, that he was able to find a solution only in the employment of an epigrammatic device.	After pointing out that it was easier to see when a wrong principle had been applied than to lay down rules for solving particular cases the learned Chief Justice observed that"... the only golden rule is that there is no golden rule"."

The authors go on:

''The difficulty of analysis is even further compounded by the repeatedly expressed view that the omission by the courts to mention factors in sentencing does not indicate that there has been a failure to consider them."

The remarks in Williscroft may be distilled into the quotation in Thomas - Principles of Sentencing at p. 37 that "the scales of justice are not calibrated in scruples" (meaning I think the apothecaries weight unit of 20 grains,

a very small amount), or the warning expressed by
Street C.J., referred to by Nader J. in Ireland at p. 19, about forcing sentencing into a straitjacket of computerisation, a technology which could be as well utilised to analyse the weight given to factors taken into account in the sentencing process if disclosed, as to the final result reflected in statistics as to various sentences upon conviction for the same offence.

The circumstances in which a plea of guilty is entered are not fixed, nor are the motivations for doing so. The effect on the sentence, when coupled with other relevant factors, must be as variable.	In Victoria s. 4 of the Penalties and Sentences Act provides that a court in passing sentence on a person who pleads guilty to the offence may take that fact into account, and if so shall say so.	That State's Court of Criminal Appeal in Morton 23 A Crim R 433  at p. 438, observed that the statute does not require that the amount of any reduction for a plea of guilty be stated "and although there is nothing to prohibit a court stating the amount of the reduction, it will generally be impossible or misleading to do so, unless a similar qualification is placed upon all the other elements or considerations that have led to the calculation of the sentence actually  imposed.	Indeed it would generally be highly undesirable to do so."

What then of the submission that the learned judge placed too much weight upon the respondent's plea of guilty? In reflecting upon the mitigating circumstances, His Honour took that factor into account along with others going to the personal circumstances of the offender, but he allowed "a substantial discount" for the plea.	Given that His Honour was inclined to impose a penalty in the vicinity of 7 years, but for the plea and matters personal to the respondent, and imposed a sentence of 4 years 9 months, the Crown informs this Court that the "discount is about 28%", after taking into account the period the respondent had been in custody prior to sentence.	The calculator was not able to go so far as to answer what proportion of the 28% was referable to the plea.

In R v Shannon (1979) 21 SASR 442 a court of five Judges was convened in order to provide guidance to judges and magistrates in their daily task of sentencing offenders in relation to a plea of guilty.

Concluding his observations at p. 452, King C.J. suggested that the Court should lay down the following propositions:

"In my opinion this Court should now lay down the following propositions:
A plea of guilty may be taken into account in mitigation of sentence where -

it results from genuine remorse, repentance or contrition, or
it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the
necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency,

and where to allow the plea a mitigatory effect would be conductive to the public purposes which the sentencing judge is seeking to achieve.

A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.

In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence.

In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other cases by putting forward false stories and on the basis of such false stories contesting the charges against them.

The above propositions are not to be taken as weakening in any way the principle that there must be no increase in the sentence	hich is appropriate to the crime because the offender has contested the charge."

Mohr J. concurred (p. 459).

Wells J,, with whom Zelling J. agreed, said at

p. 453, after reinforcing the sentencer's discretion:

"Whatever consequences are to be attributed to a plea of guilty in a particular case, they must be rel_ated to the broad principles of sentencing by which courts guide themselves, and must not be allowed to be dictated by considerations of expediency that owe no allegiance to those principles"

Later at p. 455, he said he supported the cOi'lclusions of the Chief Justice, but emphasized in respect of sub-paragraph
(b) of paragraph 1 of those conclusions "that the willingness referred to in that sub-paragraph may be permitted to have a mitigatory effect, not where it stands in isolation, but only where, in all the circumstances in which it is found, to give it that effect would advance the public purpose or purposes that the sentencing judge is seeking to achieve."

At p. 456 Cox J. expressed the opinion that the notion that a defendant should, or may, gain credit from a plea of guilty merely because he will thereby be saving the authorities the trouble and expense of a trial, and relieving some pressure on the Court's time, cannot stand with earlier authority, and at p. 457 "..• the considerations relevant to the question of the proper punishment of an offender do not include matters which have nothing to do with the nature or effect of his offence, or

the character or antecedents or disposition of the offender, but relate solely to the machinery by which is offence is tried."	(See also to the same effect at p. 459).

In the Court of Criminal Appeal in New South Wales, Moffit J. in R v Lawrence (1980) 32 ALR 72 at p. 108, completing a review of the relevance of a plea of guilty:

"In my view Cross Jin	R v Nicholls and Bushby (Court of Criminal Appeal of New South Wales,
21 September 1978, unreported) correctly stated the principle as follows: "... it is trite in law that an otherwise appropriate sentence may justifiably be reduced by a plea of guilty in so far as that plea demonstrates resipiscence, saves the State the cost of a lengthy trial or avoids subjecting the victim - particularly children and women who have been the subject of sexual assaults - from the embarrassment and humiliation of giving evidence in open court."	I would regard the benefits to the State and the victims as certainly relevant where it indicates, and it will usually be inferred it does, something subjective concerning the prisoner, ie that he is repentent or motivated to cause no more harm, ie his criminality by the date of trial is less or his rehabilitation is already under way. A plea of guilty by reason only of counsel's advice in order to get a less sentence is not by reason of any change of attitude to the crime committed.	As pointed out in R v Gray, supra, (at 227) there may be other reasons for pleading guilty, eg plea bargains or because defence is considered useless, which ought not attract leniency.	In some cases, eg rape, a plea of guilty may be indicative of compassion for the victim of the crime by not subjecting her to the distress of a trial upon a plea of not guilty: R v Nicholls and Bushby, supra, per Street CJ.	In some cases contrition  may  be seen from confessing as a desire to mitigate the crime and not subject the State to the expense of a trial and from making a full revelation of what has happened and doing what can be done to right the crime.	The significance of the plea of guilty must be determined in the light of all the circumstances.	Where the crime has been committed without prior planning or in unexpected circumstances as in some cases of violence, it is

somewhat easier to infer contrition in the conduct hereafter of a prisoner.	It is less easy when as in a case such as the present, the crime is of the
organized crime variety in the sense it is
deliberately planned as a calculated method of making money without being detected, and is then carried out relentlessly over a long period of time.	The reason for a plea of guilty in such cases is more likely to be due to reasons other than remorse and a desire to right a wrong."

That the weight to be given to a guilty plea is not capable of being precisely defined, absent the sentencer specifically assigning a value to it, is amply demonstrated by the following passage from the reasons of Street C.J. in Holder and Johnston at p. 387:

"It is well established that contrition is in itself a factor weighed in the matter of sentence in favour of accused persons.		This is particularly so where the contrition is manifested in a plea of guilty.	It is impossible, however, to lay down arbitrary rules regarding the weight to be attributed in any given case to the factor of contrition manifested by a plea of guilty.	In examining the extent to which a plea of guilty can take on the colour of contrition, much may depend upon the time and circumstances in which the plea was advanced.	To take a commonplace example, a man accused of a sexual offence may make a full and frank admission, coupled with expressions of contrition, to the arresting police at the very outset and, by maintaining that attitude throughout, spare the victim the ordeal both of appearing at committal proceedings and of keeping alive her recollection so that she may be able to give evidence at the trial.	Such a man's contrition will weigh more favourably than another, similarly placed so far as concerns the offence, who proffers a plea of guilty for the first time when the indictment is presented against him.
Shades of genuineness, too, can affect the extent of the favourable weight attracted by protestations of contrition coupled with a plea of guilty.

It has been said repeatedly in judgments of this Court that guilty persons are to be encouraged to

plead guilty and courts will not be slow to identify elements of contrition as inhering in the proffering of a plea of guilty.	All accused persons can ordinarily expect to receive the benefit of some credit in the matter of sentence (and, for that matter, in the non-parole period also) when proffering a plea of guilty.	In order, however, that the criminal law may not present the appearance of dealing more harshly than would properly be the case with a person who, after pleading not guilty, is convicted by a jury, the relevance of a plea of guilty as a factor pointing towards leniency in the sentence is subsumed under the general category of contrition.

It may be thought that these generalisations provide to sentencing judges little guidance upon the manner and extent to which they should take into account contrition manifested by a plea of guilty.	It would, however, in my view, be undesirable to attempt to go further either by way of indicating proportional reductions of the otherwise proper sentence or by any other precise indication.	In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complex of the facts before the court."

His Honour was not in that case called upon to consider the relevance of a guilty plea other than as evidence of contrition.

The Court of Criminal Appeal of South Australia, in Town (1987) 30 A Crim R 220 at 228, said that even a belated plea of guilty did not deprive the offender of the whole of a discount to which he would otherwise be entitled because "his plea did aid in the administration of justice and it did save his victim from the inconvenience and distress of giving evidence".	That was an attempted murder case

justifying the latter consideration, an important consideration in cases such as the present, but their Honours also referred to the "administration of justice", encompassing I think the saving of the expense and inconvenience of a trial, and perhaps to the more rapid disposition of criminal cases which may be achieved by timely pleas of guilty, considerations upheld in Shannon as being appropriate.

In Harman (1988) 35 A Crim R 447, the Court of Criminal Appeal of Queensland applied Holder and Johnston, but Andrews C.J. raised a particular concern.

At p. 453, His Honour referred to the argument as to the desirability of inducing guilty persons to plead guilty and choose to save time and expense, but acknowledging the material advantages said "we must never approach a stage where people can be induced to plead guilty expecting some precise reduction of what would otherwise be an appropriate sentence".

It is not possible, I think, to exhaustively formulate all of the circumstances in which a discretionary allowance should be made in favour of an offender who pleads guilty.	However, the cases to which I have referred, and the general principles of sentencing, lead me to the view that for the benefit to be available, there must be found,

or inferred from the plea, something subjective to the

offender going to his contrition or desire to cause no more harm.	Inherent in such a finding or inference, based upon
the plea or such other evidence as is available, is the notion that by the time the plea is entered or indicated the offender's rehabilitation has at least commenced, he or she having accepted responsibility for the criminality involved in the conduct making up the offence.

There is one matter referred to in Shannon and some of the other cases which I am most reluctant to follow.
That is that a benefit may be extended to an offender on the basis that the guilty plea saves time, expense and delay in the criminal justice system.	Those factors are consequential upon the plea.	It seems to me that it is what motivates the offender to plead guilty in relation to the offence which may count in his favour, not the benefits  which might flow to others unconnected with the offence.

Apart from that matter, I would not quibble with what has been said on the subject in those cases, acknowledging always that discretion must be applied to the circumstances in each case.

In this case His Honour gave "full weight" to the plea and other circumstances personal to the respondent and it was open to him to do so.	The carefully calculated

discount of 28% for all those factors is not excessive in the circumstances of this case, but it must be made clear that, so far as I am concerned, it should not be regarded as constituting a precedent.

The non-parole period is not manifestly inadequate.
Even if I was convinced that it should be increased by a matter of months, or even to say 3 years, which must be about the maximum which could be contemplated, it would be unfair to the respondent to do so upon this appeal.

All in all, the learned trial Judge extended every leniency to the respondent.	Other offenders ought not to necessarily expect the same treatment.

I would dismiss the appeal.

ANGEL J: 

This is a Crown appeal against sentence.

The circumstances of the crime are recounted in the reasons for judgment of the other members of the Court and I will not repeat them.	The offence was serious and one for which there is a maximum penalty of imprisonment for life.
It was wanton and premeditated, accomplished by a combination of trickery and violence and committed in an isolated area of the respondent's choice in circumstances obviously very frightening to the victim.	The respondent secured his opportunity by tricking the victim to take him to a remote spot and then prevented her escape by throwing away the keys to her vehicle.	He attempted to escape detection when discovered at the scene.	I regard the respondent's drinking as an aggravating factor, rather than a mitigating one.	It rendered the victim's plight the more seemingly hopeless and the commission of the offence even more unsavoury.	In my opinion, in the absence of mitigating circumstances, a longer sentence than seven years imprisonment is necessary, even in the case of a first offender of good character, in order to impress on the respondent and the community at large that such conduct will not be tolerated.		The calculated and premeditated imposition of the respondent's will on his victim by force in the face of the victim's protests, requires no less to be consistent with a due regard for the public interest.

As King C.J. said in Yardley v Betts (1979) 22 S.A.S.R.
108 at 112:

"It is necessary to keep firmly in mind the fundamental principle that the criminal law exists for the protection of the community.	This protection is achieved, in my view, primarily by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law.	The aspect of deterrence of the particular offender and of others must not be overlooked.	The courts must assume, although evidence is wanting, that the sentences which they impose have the effect of deterring at least some people from committing crime.
Deterrence possesses particular significance in cases of unprovoked violence.	The protection of the community is also contributed to by the successful rehabilitation of offenders.	This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.	If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired.	If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.

To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm.	Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes.	But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations.
They are summed up, in the aspects relevant to the present discussion, by Napier C.J. in Webb v.
O'Sullivan.
"The courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be.	Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy.	We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest."

The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so."

In the present case the degree of culpability rather than the consequences of the crime are to be stressed.	The circumstances of the present case indicate a high degree of culpability, well justifying an increase in sentence.
Consideration of compassion notwitstanding, there must be some proportionality between the degree of culpability exhibited and the punishment to be imposed.	I repeat, the maximum penalty for this offence is imprisonment for life. In my opinion, the seven year "objective" sentence in the present case (by which I mean the sentence that the learned Trial Judge would have been minded to impose but for mitigating factors) lacked proportionality and discloses error.

The learned  Solicitor-General invited  this ccurt to give a judicial warning of an intention to increase  penalties  but I cannot agree with that.	he sentencing court	as	i6e discretion  within  the broad princiFlU, c,f	Eer,ter,cinq enc 1...Le individual circumstances of e,ach crime and the circun,stances of  the offender  are to be considered.	'I·his b<=ing so, I am of the view that this court cannot lay down any "policy" or give any "warning".

It was argued that some sort of warning should be given about offences "of this type", and that their prevalence is increasing.	There was no evidence before us of the prevalence of breaches of section 192 of the Code.	Nor was any previously observed standard of penalty established.	I do not find the latter surprising.	As Lord Reid said in
D.P.P. v Ottewell [1970] A.C. 642 at 647:

"It was rather tentatively suggested by the learned Attorney-General that there is a "tariff" for each kind of offence which is varied upwards or downwards according to the circumstances of the offence and the character of the accused.	But offences of a particular kind vary so vastly in gravity that there cannot and should not be any "normal" sentence and there is no workable standard by which to judge whether any particular sentence is extended beyond what is
11 normal 11 • "

(cf. Cross, The English Sentencing System, Butterworths (U.K.), 1975, Chapter IV:	"Fixing the Length of a Prison Sentence", esp. at pp.147-154 and R v Ireland (1987) 49
N.T.R. 10 at p.17 per Nader J.	The difficulty in ascertaining a "tariff" for sexual offenders is particularly acute:	R v Visconti [1982] 2 N.S.W.L.R. 104 at 107 per Street C.J..

Whilst a degree of standardization of penalties for particular crimes in similar circumstances may be desirable, in my respectful opinion, since each case requires the application of established principles of sentencing to particular facts, it is not for this court to lay down any predetermined general practice.

It was argued before us that, the Crown having dubbed this a "test case", it would be unfair to the respondent to increase the penalty.	I do not accept that submission.
This case is to be approached on its own facts and I respectfully and emphatically concur with King C.J. in Yardley v Betts supra at pp 113, 114 when he said:

"It was argued before us that an offender who was to suffer a penalty greater than the hitherto observed norm would be justified in entertaining a sense of injustice.	I cannot accept the argument so formulated.	When a person commits a crime he renders himself liable to the punishment prescribed by law.	He suffers no injustice if the punishment imposed is within the statutory maximum and is not excessive having regard to all the circumstances.
The notion of a criminal complaining that he experiences a sense of injustice, because he committed his crime on the faith of the current practice of the courts and then got more than he bargained for, strikes me as ludicrous.	Is the same criminal justified in entertaining a sense of injustice, if the warning, although given, was not published by the media or not by the section of the media which he sees or hears?	He might perhaps have been out of the State when the warning was given.	I am firmly of the view that an offender has no cause for complaint, if he receives a sentence which is within the legal maximum and is fair and reasonable having regard to all the circumstances of the case, simply because courts have been in the habit hitherto of imposing somewhat lighter sentences."

I am not unaware of the "double jeopardy" in which a Crown appeal places the accused:

"The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence.	It was first in jeopardy before

the sentencing court." (R v Tait and Bartley (1979) 24 A.L.R. 473 at 476).

Nonetheless, the Northern Territory legislature has seen fit to grant to the Crown an appeal as of right against sentence (Criminal Code, section 414 (1) (c)) and in an appropriate case the inadequacy of the sentence originally imposed will outweigh "...the vested interest that a man has to the freedom which is his, subject to tbe sentence of the primary tribunal" (Whittaker v R (1926) 41 C.L.R. 230 at p.248 per Isaacs J).	It is not without significance that even on appeal against sentence by the prisoner the court may of its own motion increase a sentence which it considers inadequate in law (Criminal Code, section 411(4)).

The principles to be applied by Appeal Courts in these circumstances are well-established.	It is not necessary to outline them here.	Suffice it to say that I consider the seven year "objective" sentence in this case to be "...plainly wrong upon established principles"	(R v Ireland, supra, at p.27 per Muirhead A.J.) and not merely lenient.	I consider no less than a ten year sentence to be an appropriate "objective" sentence.

I turn to the question of the relevance of\the plea of guilty and in so doing I immediately record my r' ecognition of the difficulties and dangers of generalising and the

hazards involved in isolating individual features of a case in order to label and categorise them.

.,
,

As has so often been said, in any particular case the punishment must fit the crime and the offender.	It is the duty of the sentencing court to determine the punishment that is appropriate to an offender of a certain character and to the particular offence committed.

The sentencing court has regard to those circumstances of the offence and those characteristics of the offender which are relevant to the appropriateness of the particular punishment to be imposed, whether having regard to the elements of prevention, deterrence, rehabilitation, retribution or any combination of these.	Unless a factor relating to the circumstances of the offence or the character of the offender is relevant to one or more intended effect of the punishment, it simply cannot be a consideration either in aggravation or in mitigation of penalty.

It follows that a p]e2 ci gi.:ilt): 1::'"r. se IT't:Lt scner.G\·. necessarily relate to a purpose of FUI11sh eLt  ir order tc	e a mitigating factor.

No doubt the reason or reasons for a plea of guilty are many and varied and often not known or only partly known to the sentencing court.	It is only if the particular motive or motives for a plea of guilty are proven and demonstrated

to be relevant to a particular purpose of the punishment, for example it sheds light on a relevant characteristic of the offender, that a sentencing court can have regard to it. As Wells J. said in R v Shannon, (1979) 21 S.A.S.R. 442 at 453, an inviolable precept in sentencing is that

"...whatever consequences are to be attributed to a plea of guilty in a particular case they must be related to the broad principles of sentencing by which courts guide themselves, and must not be allowed to be dictated by considerations of expediency that owe no allegiance to those principles."

It is well established that a plea of guilty may evidence contrition, remorse or repentance, which are recognized mitigating factors.	The courts regard a defendant who recognises the gravity of his offence and its consequences and sincerely regrets them as requiring less deterrence than one who does not.	Of course a defendant may feel remorse because of the consequences to his victim or because of the consequences to himself, or both.	A guilty plea motivated by a desire to spare the complainant in a sexual offence the ordeal of giving evidence may involve remorse.	On the other hand there is no remorse evident by a guilty plea emanating from a "...reluctant acknowledgement that no other course is open..." (R v Shannon supra at 455 per Wells J.) or entered on advice from counsel that some mitigation in penalty may be had.	In principle I am unable to see how a plea of guilty, without more, can be a mitigating factor.

• •

I have carefully considered the reasons for judgment in R v Shannon supra.	The majority decision has been followed and expressly approved by other courts, see for instance, Schumacher v R	(1981) 3 A.Crim R.441.	Notwithstanding that, and with all due respect to those who differ, I remain unpersuaded that "cooperation with the authorities" is necessarily in "the public interest," nor that its encouragement is a proper purpose of the sentencing process. If the legislature was so minded it could readily seek to achieve that object by other means.	King C.J. stated that:

"...courts have generally been willing to recognize as meritorious a willingness on the part of the offender to co-operate in the administration of justice irrespective of the moral purity of his motives.	The reason, no doubt, is that the proper administration of criminal justice should be influenced, not only by logic and consistency, but also by the need to serve practical ends."	(R v Shannon, supra at 450).

But the administration of the courts is the responsibility of those who administer the courts not those who are convicted and sentenced by the courts.

In Harris v The Queen [1967] S.A.S.R. 316 the court said that contrition, repentance and remorse aside, the idea should be "energetically repudiated" that any prisoner has anything to gain by saving the court trouble or crown witnesses embarrassment.	I would "energetically repudiate" the idea that the length of loss of liberty can turn on

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factors such as administrative convenience.	Furthermore I am not satisfied that a proper object of sentencing is the encouragement of pleas of guilty.	Should guilty pleas be encouraged?	In view of the right of the accused to put the Crown to proof beyond reasonable doubt of the charges alleged against him, should not guilty pleas be discouraged? Is it the business of the criminal law to motivate any behaviour other than desistance from crime, however morally correct or praiseworthy or publicly beneficial?		In my view it is for the legislature rather than the courts to encourage pleas of guilty if the consequent saving in court time is to be regarded as in the public interest.		Nor do I think the argument is advanced by reference to credits given to offender& who 61&close the identity of their CCLfE..Ct.:tO.i...t.E.			Et,	forir.strr c.c.,   E:._2_§£ !..   VL,	E l.1 f r a   at	450 per King C.J.	The justification for a reduction of penalty in such cases would seem to lie not in expediency or encouragement of the practice of "informing" but rather in the law exacting less retribution from an offender who is prepared to assist in the detection and bringing to justice of other offenders.		It demonstrates (in however small a way) some acknowledgement of and respect for the authority of the law and the needs of society in that regard.		Some may see that as too lofty a justification for a reduction the only reason for which they see as necessity.		If that be so, the reduction is nevertheless in my view consistent with principle, and remains no justification for a reduction for a plea of guilty per -

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What, then, is the effect of the plea entered by the respondent in this case?	I turn to the remarks on sentencing of the learned Trial Judge:

"I take into account that you co-operated with the police, that you gave a fairly lucid account of your involvement in this offence and made complete admissions when spoken to by them.	I also take into account your demonstration of remorse which is associated with your ...plea of guilty and the shame which you have demonstrated particularly in your ability to associate now properly in your family relationship •..

"You pleaded guilty from the very outset so far as the general conduct of proceedings were concerned and I allow substantial discount by adopting that course from committal to the present entry of plea yesterday.	It demonstrates remorse in a practical lE-gcl 5cnsE:.

"I add	t0 that of course the fact that was urged upcn me by your counsel that shame still persists in you and ycu hav8 recognition of tl1 crE:a6iul cffer;cE   -    tr•e   crin.e 1 cu   he.YE..   ccr.0rni ttec':. •

I agree that this is an appropriate case for mitigation on account of the plea of guilty.	The medical assessment of the prisoner as being of below average or even impaired mental ability was, too, quite properly taken into account by the learned trial judge.	I respectfully agree that the learned trial judge took proper account of all other matters in mitigation.	I only disagree on his starting point i.e. his "objective" sentence of 7 years.imprisonment.	While the other members of the Court consider this appeal should be dismissed, I would allow the appeal and, taking account of

the mitigating factors referred to by	he learned trial judge, order that the respondent be sentenced to 7 years gaol with a non-parole period of 3 years and 3 months.