om CATCHWORDS CRIMINAL LAW - appeal against severity of sentence - incestuous rape - allowance to be made for plea of guilty - other celevant factors, Parole of Prisoners Act (NT) s.4(5) Criminal Law {Conditional Release of Offenders) Act (NT) s.5(1) (b} K v THE QUEEN No. NTG 15 of 1983 Woodward, Sheppard and Neaves JJ. Darwin 28 September 1983 WHERE MADE IN THE FEDERAL COURT OF AUSTRALIA 5) ) NORTHERN TERRITORY DISTRICT PEGISTRY ) No. NTG 15 of 1983 RY GENERAL DIVISTON ) OW APPEAL FFOM THE SUPREME COURT OF TIE NORTHERN TERRITORY OF AUSTRALIA BETWEEN : K Appellant and THE QUEEN ORDER JUDGES MAKING ORDER Woodward, Sheppard and Neaves JJ. DATE OF ORDER 28 September 1983 Darwin THE COURT ORDERS THAT: 1. The appeal be upheld and the sentence imposed on the accused on 26 May 1983 be set aside. 2. The accused be sentenced to imprisonment with hard labour for five years, commencing upon 26 May 1983. 3. The said sentence be suspended, after the accused has served 15 months of it, upon his then giving security by way of recognizance in the sum of $500 « to be of good behaviour for a period of two years. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 15 of 1°83 ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: . K Appellant and THE QUEEN Respondent CORAM: Woodward, Sheppard and Neaves JJ. DATE: 28 September 1983 REASONS FOR JUDGMENT THE COURT This is an appeal against the severity of a sentence imposed in the Supreme Court of the Northern Territory for an offence of rape. The prosecutrix was the 15-year-old step-daughter of the accused, who had been separated from the girl's mother for some months at the time of the offence. The girl, with her younger brother, was staying with her step-father for the weekend. During the night the accused, apparently succumbing to a sudden impulse, went into the sleeping girl's room, got into her bed and, in the space of a few manutes, committed the offence of rape. The girl, not knowing what to do, feigned sleep. There is no suggestion that she consented to the accused's acts. After the accused left her, she waited For a time, then got up, dressed, and found her way back to her mother's house. When her mother, who was out, returned at about 2.40 a.m., the girl told her what had happened. The mother went straight round to the accused's house and confronted him. He immediately admitted what he had done. When the mother reported the matter to the police the next morning, the accused made a full confession, admitting penetration, which the girl had not been sure about. He did everything he covld to ensure that his step-daughter would not have to go to court or give evidence. The learned sentencing judge rightly took the view that the offence was a serious one, particularly having regard to the breach of trust involved in the accused's betrayal of his parental responsibilities. The girl had laved with ham since she was 18 months old. His Honour sentenced the accused to seven years gaol, with a non-parole period of 3% years. After carefully considering the severity of this sentence in the light of his Honour's reasons for sentence, the facts of the case and the previous good character of the accused. and particularly having regard to his plea of guilty, full co-operation with the police and obvious contrition, we have reached the conclusion that his Honour's discretion miscarried when he imposed the sentence that he did. We have come to this conclusion mainly because of the factors we have last mentioned - the accused's plea of guilty, contrition and co-operation. The learned sentencing judge said that he had taken these matters into account, but we' cannot feel that he took them sufficiently into account. The matter can be tested by asking what sentence would have been imposed 1£ the accused had elected to deny the whole affair, or admit no more than an indecent assault, thus forcing the girl to give evidence. If nevertheless sentence convicted of rape he must, on his Honour's approach, have received a / significantly longer than 7 years which, in our respectful view, would have been manifestly eucessive, even for an incestuous rape, an the case of an unpremeditated single act not accompanied by violence. We believe that this 1s exactly the type of case in which a plea of guilty should be clearly rewarded. It was accompanied by remorse, demonstrated both by words and conduct, and the making of a full confession including matters which would otherwise have been difficult for the Crown to prove. C£. Rv Shannon (1979) 21 SASR 442 and R v Schumacher 3 A Crim R 441. Counsel for the Crown invited us to "give considerable weight" to these matters. It seems that another reason for the miscarriage of his Honour's discretion was his underscanding that some material before him had indicated that the incident had had "a profound effect" upon the girl, when in fact the only evidence was that the girl had said she had cried a lot on the night of the offence and been revolted by her step-father's act. There was other material tending to 1andicate that the girl had not been seriously affected. A further matter to which we should advert is the considerable doubt whach his Honour expressed as to whether the accused might not offend again, given the flawed character he had demonstrated. There was material before the court testifying to the accused's previously unblemished good character. There was also a psychiatric report to the effect that the likelihood of his re-offending was slight. He 1S 43 years of age and in our view it should be assumed in his favour that he is unlikely to offend again in any similar way. Since we have concluded that his Honour's discretion miscarried, we must now undertake the sentencing task ourselves. In our view an appropriate sentence to mark the gravity of the offence, for which the maximum penalty is life imprisonment, would be 5 years imprisonment with hard labour. UHowever, in view of the accused's previous good character, lack of premeditation, isolated offence, absence of violence, remorse, full confession, plea of guilty and unlakelihood to offend again in any similar way, we intend to direct, pursuant to s.5(1) (b) of the Criminal Law (Conditional Release of Offenders) Act, that his sentence be suspended after he has served 15 months of 1t, upon his then giving security, by way of recognizance in the sum of $500, to be of good behaviour for a period of two years. It 1s not necessary for us to f1x a non-parole period, see Parole of Prisoners Act (NT) s.4(5). I certify that this and the 4 preceding pages are a true and accurate copy of the Reasons for Judgment herein of the Court... ° Kssociate Dated: 28 September 1983