Waye v R
2 August and 20 September 2000 - Martin CJ, Angel and Bailey JJ

The applicant pleaded guilty in the Supreme Court at Alice Springs to two indictments.

The first indictment contained one count of aggravated robbery.

The second indictment contained five counts, namely:

1. Aggravated unlawful entry (intent to steal; occurrence at night time).

2. Stealing (a hammer valued at $22.85).

3. Attempted aggravated unlawful entry (intent to steal; building a dwelling house; occurrence at night time; applicant armed with an offensive weapon, namely the stolen hammer).

4. Aggravated unlawful entry (intent to have sexual intercourse without consent, ie to commit the offence of rape; building a dwelling house; occurrence at night time armed with offensive weapons, namely the stolen hammer and a knife.

5. Unlawful sexual intercourse (rape).

All offences occurred on the night of 4 December 1998.

Facts - Indictment 1

On 25 October 1998 at 3.30 am the accused and two co-offenders saw the victim hop into a vehicle. The accused and co-offenders then approached the victim. One punched him in the face and knocked him unconscious. The victim was pushed further into the vehicle and the accused got into the passenger's seat. One of the co-offenders drove the vehicle to a location on Smith Street. There they took the unconscious victim from the vehicle. The accused dragged the victim along the ground and dumped him into the bushes. Fifty dollars was taken from the victim's wallet. The accused took some coins from the victim's vehicle. The accused and co-offenders drove off. The victim woke up and flagged down a police vehicle.

The accused was arrested and on 5 December 1998 he took part in a formal record of interview making partial admissions to the offence.

Facts - Indictment 2

At 5.00 am on 4 December 1998 the accused went to the front door of a residence and rang the doorbell. After getting no response from the occupant, he smashed the door chime and removed a flyscreen from a window endeavouring to gain entry without success. He then went to a shed at the rear of the premises, removed a hammer from the shed and smashed a rear window of the house.

The occupant yelled out to the accused that she had rung the police. On hearing this the accused left the yard with the hammer.

The accused then walked towards another house. He was carrying a knife and a hammer. He entered the victim's house and went to her room. She was asleep. He covered his face with a white plastic bag and carried the knife. He then held the blunt edge of the knife to the throat of the victim for a short time. He pinned her to the bed and removed her underpants and his own pants. The victim struggled and screamed.

The accused then hit the victim to the left side of her head with the hammer he had previously obtained. The victim lost consciousness. When she came to she found herself on the floor with her face covered and the accused was on top of her. He threatened to sodomise her with the hammer. He raped her. The accused threatened to come back and do it again. After some time, he left the premises.

The victim rang the police. During the assault the victim suffered bruises, grazes and lacerations. She was taken to hospital and received two stitches to the head.

The accused was located by police later on the same day and arrested. He participated in a record of interview the following morning and made admissions.

The applicant was 19 years old at the time of the offences and had a substantial record of offences of dishonesty, property offences and assault committed both as a juvenile (commencing at the age of 13 years) and as an adult. He had previously been imprisoned in New South Wales for three months for four counts of assault and in May 1998 had been placed on a three year bond in that State for an offence of break, enter and steal.

The sentencing judge heard evidence from a psychiatrist and concluded that:

• on the balance of probabilities she was not able to find that the applicant suffered from paranoid schizophrenia
  
  
• although rehabilitation must be a factor in sentencing the applicant in view of his age, rehabilitation did not play such a significant part in view of the very serious nature of these offences
  
  
• deterrence and retribution were factors which played a role in offences of the present seriousness.

In arriving at the sentence imposed, the sentencing judge firstly fixed notional sentences totalling 18 years and seven months imprisonment. This was achieved by ordering all of the sentences on the second indictment be cumulative on the sentence imposed on the first indictment and by a mixture of orders that the sentences in the second indictment be served concurrently and cumulatively. Having regard to the principle of totality the sentences were reduced to a total of 14 years and six months imprisonment. A non-parole period of eight years and six months was fixed.

The applicant applied for leave to appeal against sentence on the grounds that:

1. the effective sentence of 14 years and six months and the non-parole period of eight years and six months were manifestly excessive, taken as a whole in all the circumstances of the case and of the applicant

2. in imposing the effective head sentence and non-parole period, the learned sentencing judge erred in failing to have regard to the totality of the overall sentence in the light of the mitigating factors

3. the learned sentencing judge erred in that she did not give any or sufficient weight to the psychiatric evidence called on behalf of the applicant.

The court unanimously granted leave to appeal and allowed the appeal on ground 2. The court held that the only real issue disclosed concerned the application of the totality principle. The court held that even though none of the individual sentences were manifestly excessive, the sentencing judge's approach in a simple arithmetical accumulation of the various sentences may have led to an adoption of a starting point which was too high for the totality of the applicant's criminality.

In re-sentencing the applicant the court emphasised that an early plea of guilty in a case such as the present involving an offence of unlawful sexual intercourse has particular significance as a mitigating factor where a complainant is relieved of the distressing and distasteful experience of giving evidence and being cross examined about highly personal matters.

The court re-sentenced the applicant to a total effective sentence of 11 years and six months imprisonment. None of the individual sentences were disturbed. The new sentence was arrived at by ordering more concurrency of sentences on the sentences in the second indictment. A non-parole period of seven years was fixed.