McKay v R
11 May, 14 and 20 June 2001 - Mildren ACJ, Bailey and Riley JJ

The appellant was found guilty by a jury after a trial before Martin CJ of two counts of having sexual intercourse without consent, contrary to s.192(3) of the Criminal Code. He was unrepresented at trial. He was given an aggregate term of 14 years imprisonment with a non-parole period of ten years. He was acquitted on a further charge of disabling with intent to commit a crime, contrary to s.175 of the Criminal Code.

The appellant appealed against the sentence on the grounds that:

1. the sentencing judge erred in law by imposing an aggregate sentence

2. the sentencing judge erred in imposing a sentence that was manifestly excessive in the circumstances of the offences and the applicant

3. the sentencing judge erred in the application of the principles of general deterrence to the sentences imposed upon the applicant

4. the sentencing judge erred in law by taking into account in sentencing an offence of which the applicant was not charged and a further offence of which the applicant was acquitted at trial

5. the sentencing judge erred in imposing a sentence that infringed the totality principle of sentencing.

The Crown contested all grounds of the appeal.

The appeal was heard on 11 May 2001. On 14 June 2001 the court advised that the appeal would be allowed on ground 1 and received further submissions on sentence.

On 20 June 2001 the court unanimously granted leave to appeal on ground 1 and allowed the appeal on this ground. Leave to appeal on the remaining grounds was refused.

The court re-sentenced the appellant to eight years imprisonment on count 1 and ten years imprisonment on count 2. It was further ordered that six years of the sentence on count 2 be served cumulatively on the sentence imposed on count 1. The total effective sentence imposed therefore was a term of 14 years imprisonment. A non-parole period of ten years was fixed. In the end the sentence and non-parole imposed on appeal was the same as that imposed by the sentencing judge; the only difference being that the Court of Criminal Appeal imposed individual sentences for each offence in lieu of the original aggregate sentence.