Ground 6: His Honour erred in not correctly applying the principles in Veen v The Queen (No. 2) (1987) 164 CLR 465
Ground 10: The sentences were individually and collectively manifestly excessive
...
116 A basic objective of any sentencing exercise is that the sentence imposed should be reasonably proportionate to the offence committed and its attendant circumstances. The expression of the ground under consideration draws attention to the decision in Veen, where in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ their Honours said (at 472):
“The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen (No. 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: (1979) 143 CLR 467, 468, 482-483, and 495.”
117 And, later (at 473):
“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing a material sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”
118 It was submitted that in this case the overall effect of the sentences imposed upon the applicant seen in the light of the remarks of the judge to which reference has been made reveal that the judge imposed sentences that were outside the principles expressed in Veen (No 2).
119 The Crown’s response to the applicant’s submissions was to draw attention to the fact that the applicant was before the judge to be sentenced for no less than eleven crimes against s 61J and other crimes, and that his criminal behaviour was such as to require due recognition of the applicant’s propensity to commit crimes of the type for which he was before the court.
120 It does not necessarily follow from the judge’s expressions to which this ground draws attention that his Honour set about determining sentences with the object of ensuring that the applicant was not released until he was incapable of committing the like offences. Consideration of ground 6 cannot be divorced from consideration of ground 10.
121 This Court has already determined when considering all the offences for which the applicant was convicted involving s 61J of the Crimes Act that none of them was in the category of the worst class of case. It does not follow from this conclusion that the offences against s 61J committed by the applicant are not to be regarded as very serious crimes. Indeed, they are to be regarded as very serious crimes, and the Crown has pointed to features to be taken into account in assessing the gravity of the offences and the overall criminality of the applicant:
(i) his offences were committed on separate occasions and concerned three different victims;
(ii) all the victims were young women, eighteen years of age, and two of them were school students;
(iii) eleven of the offences were offences against s 61J of the Crimes Act, and of those eleven offences eight of them were committed upon the one complainant, two on the second complainant and one on the third complainant;
(iv) the applicant was found to have a leadership role, a finding this Court considers to be more relevant to the events of 10 August 2000 than to those of 30 August 2000;
(v) his offences were committed at remote locations;
(vi) his offences were committed in circumstances calculated to degrade the victims;
(vii) the victims, being Ms A and Ms C, provided victim impact statements which disclose the severe impact that the offences had upon each of them. Ms B did not provide a victim impact statement, but as was observed in AEM (at para 94):
“The long term effects of the trauma invariably encountered by victims [of sexual assault] are well documented.”
(viii) the nature and extent of the company in which the various offences were committed by the applicant was relevant to the assessment of the gravity of the offences charged: see R v Way (2004) 60 NSWLR 168 at [107].
122 This Court recognises that the sentencing judge had a most difficult task to perform, not only in arriving at sentences appropriate to the various offences, but in striking a proper balance between such sentences and the principle of totality. However, notwithstanding the assessment of this Court as to the serious nature of the offences committed by the applicant, it is of the opinion that the sentences for the offences under s 61J viewed individually were manifestly excessive, and so too was the overall effect brought about by the extent of the accumulation of the sentences that were imposed. It is considered further that the overall effect reflects a departure from the principles stated in Veen (No. 2). It is also noted that the offences against s 319 of the Crimes Act attracted sentences which, according to Judicial Commission statistics, are significantly higher than any other sentences for this type of offence that have been recorded. The statistical base is limited to twenty-three cases, but in all but thirteen percent of cases the sentences have not previously exceeded three years according to these statistics, and the highest sentence previously imposed for an offence against s 319 has been one of five years imprisonment.
123 Grounds 1, 3, 5, 6, 8 and 10 have been established and the intervention of this Court is warranted. The sentences must be quashed and the applicant must be re-sentenced.
I'm just personally annoyed that people complain so absolutely dogmatically without even reading or trying to understanding the judgment or the facts.