R v Mogg[2024] QCA 125

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Boddice JA and the orders proposed by his Honour.
2. [2]
   BODDICE JA:  Callaghan J’s comprehensive summaries of the offences, the applicant’s personal circumstances and the comparable authorities, which I gratefully adopt, allow me to briefly state my reasons for granting leave to appeal, but dismissing the appeal.
3. [3]
   The offence of attempted rape was particularly serious.  It involved predatory and persistent conduct against a young, extremely vulnerable woman found asleep in a public street.  The applicant did not desist; the incident ended only as a consequence of the complainant’s fortitude in fleeing the scene.
4. [4]
   Whilst the applicant ultimately entered a plea of guilty to that offence, the applicant had shown no remorse for his conduct, having falsely asserted consensual conduct by the complainant, who was subjected to rigorous cross-examination.  The plea of guilty was late, after the applicant had previously entered a plea of not guilty and the matter had been listed for trial.
5. [5]
   Further, the forensic psychologist’s report noted that the applicant exhibited very little, if any, insight into his offending.  Whilst the applicant, at the time of sentence, indicated “a strong commitment to enrolling in and completing” a sexual offenders treatment program, his risk of recidivism, without insight into his offending, was “considerable”.
6. [6]
   Against that background, the sentence of seven years’ imprisonment for the attempted rape balanced the applicant’s criminality and limited mitigating factors.  It was a condign sentence.  For obvious reasons, denunciation and deterrence loomed large.
7. [7]
   Further, a consideration of the limited comparable authorities does not support a conclusion that a sentence of seven years’ imprisonment for such offending fell outside a proper exercise of the sentencing discretion.
8. [8]
   First, comparable sentences provide yardsticks, but do not, of themselves, constrain the sentencing discretion to a particular number.  As the plurality in Barbaro v The Queen^[1] observed:

“… in seeking consistency sentencing judges must have regard to what has been done in other cases.  Those other cases may well establish a range of sentences which have been imposed.  But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion.  The history stands as a yardstick against which to examine a proposed sentence.”

9. [9]
   Second, comparable authorities must be viewed in the context of the particular circumstances.  In Hili v The Queen^[2] the majority observed:

“As McHugh, Hayne and Callinan JJ said in Pearce v The Queen: “Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision”. The circumstances of particular crimes and the “character, antecedents and conditions” of particular offenders are so various, the combinations in which they can occur are so numerous, and the relationship between these factors and the purposes which criminal sentences are to serve can be so impalpable, that the application to them of discretionary judgment permitting a range of legitimate outcomes is inevitable.”

10. [10]
    Third, the fact that in a particular statutory regime sentences above a particular figure cannot be identified, does not mean that a particular sentence above that figure falls outside a legitimate exercise of the sentencing discretion.  For example, a sentence of seven years’ imprisonment, in the context of statutory maximum of 14 years’ imprisonment, cannot, of itself, be said to be a sentence that could only be reserved for the worst example of attempted rape.
11. [11]
    Fourth, there were aspects of the applicant’s offending which were more serious than R v Crofts.^[3]  Whilst Crofts inflicted bruising and swelling to the complainant, his conduct did not involve the exploitation of a young, vulnerable and intoxicated stranger.  Those predatory aspects of the applicant’s offending warranted a sentence higher than that imposed in Crofts.
12. [12]
    Fifth, the comparables involving convictions for rape, are of limited assistance.  To the extent that R v Baxter^[4] may have had points of similarity, that sentence was imposed 14 years ago and the observation that a starting point of six years’ imprisonment for the offence of rape was “at the top of the range” must be viewed, having regard to contemporary sentencing principles as to “ranges”.
13. [13]
    Sixth, a sentence of six years’ imprisonment imposed for an offence of rape in R v Tory,^[5] does not render a sentence of seven years’ imprisonment for an offence of attempted rape, necessarily “unreasonable or plainly unjust”.  The circumstances of an attempted rape can warrant the imposition of a sentence higher than that imposed for an objectively less serious offence of rape.
14. [14]
    As Keane JA (as his Honour then was) observed in R v Pham,^[6] adopting the explanation of Kirby J in Markarian v The Queen:^[7]

“In sentencing there is sometimes a legitimate role for differences of judicial view.  These may occasionally favour the extension of leniency, as Osenkowski ((1982) 30 SASR 212 at 212-213 per King CJ) shows.  Necessarily, there must also be room for the views of a judicial officer who takes a more punitive view of all of the relevant considerations in the case.  So long as all relevant considerations are given due attention, the discretionary character of sentencing will inhibit appellate interference.”

15. [15]
    When regard is had to the particularly aggravating features of the applicant’s conduct and the limited circumstances by way of mitigation, the sentence of seven years’ imprisonment fell within a permissible exercise of the sentencing discretion.  Such a sentence does not differ to such a degree, from sentences imposed in comparable cases, as to support a conclusion that the sentence is unreasonable or plainly unjust.  Such a sentence also does not justify an inference that there must have been a misapplication of the principle.
16. [16]
    The sentence of seven years’ imprisonment for attempted rape was not manifestly excessive.
17. [17]
    I would order:

1. Leave to appeal the sentence on the offence of attempted rape be granted.
2. The appeal against that sentence be dismissed.

18. [18]
    CALLAGHAN J:

The sentence

19. [19]
    The applicant entered pleas of guilty to four charges, the most serious of which alleged an offence of attempted rape.  The Crown contended for an “appropriate range” of “between seven to nine years’ imprisonment”^[8] for that charge.  The validity of this submission is considered below.^[9]  In the result, the sentence imposed was imprisonment for a period of seven years.  On two counts of indecent assault, he received concurrent terms of two years and 18 months imprisonment.  A further concurrent term of 18 months imprisonment was imposed for deprivation of liberty.  Parole eligibility was set after three years of those sentences.^[10]

20. [20]
    Her Honour’s sentencing remarks were brief but no specific error (even by omission) is averred.  Rather, the applicant seeks leave to appeal on the basis that the sentence for attempted rape is manifestly excessive.

The applicant

21. [21]
    On 31 July 2022 the applicant was 51 years of age.  He endured a difficult childhood during which he was exposed to much domestic violence.  It was said that at age 13 he had received a sexual advance from an older man but he could not “really recall any of the other details.”^[11]  He had limited education (grade nine) but achieved meaningful employment.  After an earlier marriage, he had maintained a relationship with the same woman since the age of 24.  With her he has two sons and a stepdaughter, all adults.
22. [22]
    With the exception of one entry his criminal history was otherwise minor and irrelevant.  However, in 2015 he met a 15-year-old boy through an online social networking application.  In a series of text messages the applicant requested – and received – indecent images of the boy, and arranged to meet him in a public place.  Sexual activity was the purpose of the meeting.  Before any physical contact could occur, the pair were intercepted by police on patrol.  The applicant entered pleas of guilty to five offences that all arose out of these circumstances.  He was sentenced to imprisonment for a period of 18 months which was suspended after two months had been served.
23. [23]
    Upon release from prison he commenced work as a truck driver and at the time of the offences that are the subject of this application he was employed as a depot supervisor for a trucking company.

The offences

24. [24]
    The complainant was a 25-year-old foreign national living in Ayr on a working holiday.  After finishing work on 30 July, she went home and started drinking with her housemates.  At about midnight, the complainant went, with one of those housemates, to a hotel where they kept drinking until it closed at 2.15 am.  She soon commenced walking home, but fell asleep in a garden bed.
25. [25]
    The defendant, who was working a night shift, had been driving in circles through the Ayr CBD.  This was something he did, so he said, to prevent himself from falling asleep.  On this occasion, he drove around for about 70 minutes during which he saw the complainant walking.^[12]  He then followed her back to the area where she fell asleep.  It seems, therefore, that there were both opportunistic and predatory aspects to that which followed.
26. [26]
    This began when the applicant stopped next to the complainant, picked her up, placed her in the front passenger seat of his car and drove to the Ayr cemetery.
27. [27]
    An agreed Schedule of Facts records that which next occurred:

2. “9.The complainant woke up in the car, with the defendant in the driver’s seat. He had driven to and parked at the Ayr Cemetery. She did not recognise the defendant. She felt unsafe and got out of the car. The defendant got out of her car and walked around to the complainant’s side of the car.
3. 10.The defendant unzipped his pants. He pulled out his penis and touched himself. He grabbed the complainant’s hand and forced it on to his penis. She tried to pull her hand away, but he grabbed her arm and moved her hand over his penis (Count 1).
4. 11.He let go of her hand and unzipped the complainant’s pants. He put his hand down her jeans and inside her underwear. He tried to pushed his finger inside her vagina for a few minutes, but she kept trying to stop him (Count 2). The defendant was forceful and it caused the complainant pain. The complainant pushed the defendant’s arm away.
5. 12.The complainant said she wanted to go to the toilet, but the defendant said there was no toilet around, so she had to go there. Whilst the defendant’s pants were still unzipped, he said, “Suck it with your mouth”. The defendant grabbed the back of the complainant’s head and pulled her head down towards his penis. The complainant pushed against him and tried to stand back up. He pushed her head towards his penis approximately three or four times, and she resisted. The defendant’s penis did not penetrate the complainant’s mouth, but his penis was very close to touching her mouth (Count 3).
6. 13.The complainant ran away. The defendant did not follow her. He got in his car and drove back to work. GPS tracking of the defendant’s work car revealed they were at the cemetery for 16 minutes between 3:34am and 3:50am.”

28. [28]
    Although the applicant did not pursue the complainant, it appears that the attack ceased only because the complainant ran away and not, for example, because he desisted.

Investigation and proceedings

29. [29]
    The applicant was identified on CCTV.  He spoke to police when he was first approached and again in a formal interview that followed.  He admitted to having been with the complainant, but his fanciful version of events included a denial as to any force being used, and assertions that there had been consensual and intimate touching.
30. [30]
    His ultimate acceptance of the schedule amounted to acknowledgement of the falsehoods in this account.
31. [31]
    The applicant’s guilty pleas were late.  He was committed for trial.  When arraigned he entered a plea of not guilty.  An application for the complainant’s evidence to be pre-recorded was (unsuccessfully) opposed.  During the pre-recording the complainant was subjected to a “rigorous cross examination.”^[13]  The matter was then listed for trial.  The pleas were indicated just 17 days prior to the sittings at which the trial was due to commence.
32. [32]
    The prosecution’s (unchallenged) submission was that “this would have been a truly terrifying experience” for the complainant, who by time of sentencing had returned to South Korea, but there was no victim impact statement.

Mitigation

33. [33]
    The applicant was, as noted, gainfully employed and his stepdaughter wrote convincingly about the support he enjoys from his children.
34. [34]
    However, in a report tendered on the applicant’s behalf a forensic psychologist opined that the applicant exhibited very little if any insight into the motivation for this offending.  It was noted that he had “persisted in placing the responsibility for the offences on (the complainant’s) indication of wanting a sexual encounter.  This has now changed to him seeing he may have misunderstood her actions to mean consent was on offer.”^[14]
35. [35]
    It is clear, from examination of the accepted facts, that there was in this case simply no room for “misunderstanding”.
36. [36]
    In the applicant’s favour, there was evidence placed before her Honour to the effect that he had “indicated a strong commitment to enrolling in and completing” a sexual offenders treatment program.^[15]
37. [37]
    The psychologist concluded that if the applicant was to implement that plan and acquire insight into his offending, then the risk of recidivism might be “manageable”.  Without such treatment, his risk of reoffending is “considerable”.^[16]

Manifest excess?

38. [38]
    A sentence will be manifestly excessive “only if, having regard to the relevant sentencing considerations and taking into account the degree to which the sentence differs from sentences imposed in comparable cases, the sentence is unreasonable or plainly unjust such as to justify the inference that there must have been a misapplication of principle.”^[17]
39. [39]
    In Johnson v The Queen,^[18] Gummow, Callinan and Heydon JJ wrote:

“Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.” (emphasis added)

The “statutory regime”

40. [40]
    One difficulty that presented in this case was the reliance by both sides upon cases decided under a different statutory regime.  The legislature has long recognised that sexual offences will be committed across a spectrum of gravity.  Towards the more serious end of the legislative spectrum are offences that involve an element of penetration.  The inclusion of such an act – as an element of the offence – is the hallmark of rape, which is punishable by imprisonment for life.  Lesser maximum penalties apply to cases in which this element is absent – by definition, attempted rape (for which the maximum penalty is 14 years imprisonment) is one of those.
41. [41]
    That does not mean that there is a sharp dividing line between the sentencing range applicable to offences of attempted rape – or other sexual offences punishable by 14 years imprisonment – and that which is applicable in cases of rape.  Depending upon the circumstances, an offence of attempted rape may be more serious than an offence of rape.^[19]  There is no catalogue of those circumstances, but an obvious example might present in the case of an attempted rape that involved a high level of violence in addition to the violent act that was being attempted.^[20]  A contrast could be drawn between such a case and a case of rape in which the violence was limited to that which is inherent in the offence itself.
42. [42]
    Whilst the possibility of an attempt being more serious than a complete offence exists, and much will depend upon the circumstances of each case, it is nonetheless always essential to acknowledge the significance of the maximum penalty^[21] and in particular the fact that the element of penetration creates a regime with a higher maximum penalty of life imprisonment.
43. [43]
    This requirement limits the use that can be made, for the purposes of comparison with the applicant’s case, of cases in which an offender was sentenced for rape.  It is to my mind particularly difficult for the respondent to extrapolate any meaning from such cases.  Nevertheless, some of them formed the basis of submissions made to us.
44. [44]
    R v Smith [2022] QCA 55 was a case involve penile penetration and unprotected intercourse.  The circumstances were distressing, and the impact on the victim severe.  Smith had an appalling criminal history and was on a suspended sentence at the time of the offence.  The fact that he received eight years imprisonment was unsurprising, but the case demonstrates no more than that range for the offence of rape extends to that level.  It is not possible for current purposes to extract any greater meaning from the case than that.^[22]
45. [45]
    The applicant is, however, able to point to cases that involve penetration (and therefore the higher maximum,) and contrast them with his own. He argues that, in the absence of a feature such as extraneous violence any sentence imposed on him should not be more severe than those imposed in such cases.
46. [46]
    This submission can be taken only so far.^[23]  By reason of the fact that the circumstances of each case will vary so greatly, there will always be a range within which a penalty might be imposed.  Ranges might overlap, so the point made, even if established, can never be decisive.
47. [47]
    It is of some relevance, however, to consider a case such as Tory,^[24] who after a trial was convicted of a rape that was involved penile penetration and ejaculation.  A sentence of six years was imposed.
48. [48]
    This cannot without more be thought to present as some sort of “ceiling”, but the applicant’s argument is developed by reference to R v Baxter.^[25]
49. [49]
    It is useful to introduce Baxter’s case with his criminal history:

“The applicant was 24 years old when these offences were committed. His criminal history (which did not include any prior sexual offending) commenced in January 2006 when he was sentenced for two counts of robbery with actual violence whilst armed that were committed in August 2005. He was sentenced to 152 days’ imprisonment followed by two years’ probation. He was sentenced in August 2006 for two counts of robbery with actual violence whilst armed and in company committed on 27 September 2006 and 4 February 2007, one count of enter premises and commit indictable offence, two counts of stealing, one count of dangerous operation of a motor vehicle, two counts of assault occasioning bodily harm, one count of wilful damage, breach of probation and a number of summary offences for which he was given an effective sentence of three years’ imprisonment with a parole release date fixed at 15 February 2008.”^[26]

50. [50]
    In the result, Baxter was on parole at the end of 2008.  On the morning of Christmas day in that year he grabbed a 16-year-old who was walking home through a park.  The rape he committed involved the insertion of his finger into her vagina.  He went on to commit another offence (unlawfully entering a vehicle with intent to commit an indictable offence whilst armed) against a different woman on the same day.
51. [51]
    The reason Baxter may be instructive is not so much by reference to the sentence that was imposed on him, which was complicated by questions of totality, but in an observation by the Court.  It was said that in the circumstances, which included the aforementioned criminal history and the fact that Baxter was on parole, and which by definition included penetration, “the sentence of six years was not at the bottom of the range applicable to the applicant’s offending and circumstances, but was at the top of the range”.^[27]
52. [52]
    On the basis that six years imprisonment was at the top of the range within the statutory regime applicable to Baxter (maximum penalty of life imprisonment), the applicant can make a case that a sentence of seven years imprisonment imposed on him within a less punitive statutory regime should be scrutinised.  If nothing else, the Court’s statement as to the applicable range calls into question the range for which the Crown contended in the applicant’s case.

“Consistency of approach”

53. [53]
    As noted by the plurality in Barbaro v The Queen (2014) 253 CLR 58:

“In seeking consistency sentencing judges must have regard to what has been done in other cases. Those cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence.”^[28]

54. [54]
    The very concept of consistency demands comparison of cases decided within the same statutory regime.  In this instance, that exercise can be performed by comparison of the applicant’s case with others in which a sentence was imposed for attempted rape or, at least, a comparable offence punishable by a maximum of 14 years imprisonment.  Three such cases received attention.
55. [55]
    R v Armstrong [2006] QCA 158 was a case of assault with intent to rape in which the maximum penalty was 14 years imprisonment.  The offender, who weighed 90kg, accosted the complainant (who weighed 55 kg) as she was walking alone and in the dark.  She became aware of Armstrong’s presence and made a 000 call before she was seized off the street and pushed to the ground.  He touched her breasts and announced his intention to commit anal intercourse.  As a result of the call, the incident was interrupted by police.  The complainant suffered some bruising.
56. [56]
    A truly significant feature of the case was Armstrong’s criminal history:

“Mr Armstrong has a long record of using violence against others, as well as committing offences of dishonesty, and offences relating to drugs. On 30 June 1988 he was convicted of three counts of rape, one of carnal knowledge against the order of nature, and one of indecent assault of a female, with all those offences having been committed on 1 April 1988. He was sentenced to four years six months hard labour. On 6 November 1991 he was convicted of assault occasioning bodily harm and indecent assault of a female, and he had committed those offences on 31 August 1991. He was sentenced to three years imprisonment. On 15 April 1994 he was convicted of assault with intent to steal, with the circumstances of aggravation of having used actual personal violence while armed with a dangerous weapon, and sentenced to five years imprisonment. Then followed offences for being unlawfully at large and for possession of drugs, before he was again convicted of an offence of violence. That offence was assault occasioning bodily harm, committed on 28 July 2000; he was sentenced on 20 July 2001 to three years imprisonment. He successfully appealed and the sentence was varied to one of two years imprisonment. In January 2005 he was convicted of possessing and producing dangerous drugs.”^[29]

57. [57]
    In sum, Armstrong’s criminal history was worse than the applicant’s and his conduct was more overtly violent and at least as predatory.  He was sentenced on the basis that he had shown no remorse, there was no doubt that he would continue to offend and that but for the timely arrival of the police the offence would have been rape.^[30]
58. [58]
    The Court allowed that those conclusions were open, but nevertheless reduced the sentence imposed.  This did, then, have the status of a case in which this Court determined the appropriate penalty.  In the circumstances it was fixed at six years imprisonment.
59. [59]
    There is, necessarily, significance to be imputed to the fact that this was the penalty imposed on Armstrong after a trial.
60. [60]
    Sharing with Armstrong the status of a case in which the sentence was fixed by this Court was R v Crofts.^[31]  Crofts drove the complainant to an isolated location at which offences of attempted rape, indecent assault and assault occasioning bodily harm were committed.  He had a criminal history which did not include any prior sexual offending, but did involve a number of previous convictions for offences of violence, including armed robbery in company.
61. [61]
    Apart from the fact that the applicant did not injure the complainant, the major distinction to be drawn is that Crofts knew his victim and used the fact of that relationship in order to get her to an isolated location.  Crofts’ was an awful breach of trust that must have left considerable residual trauma.  The applicant attempted to exploit a truly vulnerable and intoxicated woman, who was not known to him.  The Crown submits that by reason of this distinction, Crofts’ offending was not as serious as the applicant’s.  Comparison between cases can be an abstract exercise.  In this instance it includes a contrast between incommensurable concepts.  Both forms of exploitation are reprehensible.
62. [62]
    There is, however, an unmistakable distinction to be made between the cases, and that is in the level of violence used.  The complainant in Crofts suffered “extensive bruising, abrasions and swelling”.
63. [63]
    The effective sentence imposed on Crofts at first instance was seven years imprisonment.  A technical defect meant that this Court set that aside and fixed the appropriate sentence as being one of six years imprisonment.  In the course of doing so, the court recorded:

“It was accepted by counsel for the prosecution that seven years was at the high end of the range that could have been imposed had the case gone to trial.”^[32] (emphasis added)

64. [64]
    The sentences imposed and, more importantly, observations made in the cases discussed suggest that, in the interests of consistency within the applicable statutory regime, the sentence imposed on the applicant should not have exceeded six years imprisonment.
65. [65]
    On the strength of the arguments made before us, the only way in this conclusion can be displaced is by reliance upon the authority of Eastwell.^[33]
66. [66]
    There is to my mind difficulty in placing any reliance upon a case of which it can be said, with some certainty, that the sentence imposed would not now be allowable.  A sentence of 10 years imprisonment would now carry with it a mandatory declaration as to the conviction for a serious violent offence.  It would not currently be imposed for this offending.  The respondent did not contend that it could be.  And it is impossible to know now the manner in which Eastwell would have been sentenced under the statutory regimes created by the Penalties and Sentences Act 1992 (Qld).
67. [67]
    However, the problems with any attempt to use this case as a marker for “outer bounds” go beyond that.
68. [68]
    It is not possible, from the judgment, to discern with accuracy the full extent of Eastwell’s conduct.  It can be said that the circumstances are to some extent comparable, although Eastwell’s conduct is described as a “prolonged, determined assault” that involved a degree of violence.  He was a taxi driver so, like Crofts, committed a breach of trust.  That breach had to be denounced.  His victim was left with a substantial psychological aftermath, along with bruising, abrasions, swelling, and perhaps other injuries.  Eastwell’s conduct ceased only because his victim jumped, naked, from his moving vehicle.
69. [69]
    However, and although not clear from the judgment, there is something else that might be inferred about Eastwell’s conduct.  He was convicted, along with attempted rape, of an offence of indecent assault with a circumstance of aggravation.  The particulars are not revealed, but at the time of his offending s 337 of the Criminal Code (Qld) read as follows:

“337 Indecent assaults. Any person who –

1. unlawfully and indecently assaults another; …

is guilty of a crime, and is liable to imprisonment for 7 years.

In the case of an offence defined in paragraph (1) or (2)(a), if the indecent assault or the act of gross indecency consists (wholly or in part) –

1. in an act of carnal knowledge by anal intercourse, the offender is liable to imprisonment for life;

2. in penetrating the vagina or anus with any object or with any part of the body other than the penis or in bringing into contact any part of the mouth and the anus or any part of the genitalia, the offender is liable to imprisonment for fourteen years.”

70. [70]
    It can be inferred that relevant “circumstance of aggravation” was the one included in (ii) and reflected the fact that penetration had occurred.  It is likely, it seems to me, that the sentence imposed for attempted rape reflected the fact that an act of penetration, and further incident of indecent assault “were part of a continuing episode”.^[34]
71. [71]
    Further, and importantly, Eastwell’s was “not a case… where he had pleaded guilty.”^[35]  Sentences imposed after a trial must be viewed in a manner that is different from those which follow the entry of (even late) pleas of guilty.
72. [72]
    Its age, the absence of certainty as to that which was involved in the attempted rape, the fact that it seems that some act of penetration occurred, the presence of injuries and the fact that Eastwell went to trial (and persisted with denials) combine to limit the usefulness of this case as any sort of “yardstick.”  It cannot, to my mind, rise to the level of an authority which displaces the conclusion suggested by the other cases considered.

Conclusions

73. [73]
    The Court was not referred to a single case of attempted rape in the 32 years since Eastwell was decided in which the sentence exceeded six years imprisonment.  The cases to which the Court was referred – and in particular the sentences imposed in cases under the same statutory regime and in which guilty pleas were entered – do not support a sentence of seven years imprisonment.  Nor does any observation made by this Court.  Such observations as have been made tell against the validity of a seven-year sentence.  To my mind this combination of features compels the conclusion that, in order to ensure consistency of approach within the applicable statutory regime, the sentence imposed should be deemed manifestly excessive.  It might well be appropriate for an offence of attempted rape that was attended by aggravating features such as gratuitous violence and injury but – and notwithstanding the vulnerability of his victim – the applicant’s case was not in that category.
74. [74]
    This was still a serious instance of attempted rape, warranting a severe penalty.  My view as to disposition is not shared by the majority and the orders I propose will be of no effect, but I would grant the application, allow the appeal and set aside the sentence imposed below.  In its place, I would sentence the applicant to imprisonment for a period of six years.

Parole Eligibility

75. [75]
    Given the timing of the plea, and in particular the fact that the complainant was cross examined, it is possible to make only small allowance for the applicant’s guilty plea.  It could not reasonably be seen as a reflection of remorse, nor as any real clue about the applicant’s prospects of rehabilitation.  At most it meant that some of the Court’s time and resources were saved.  That reduced to the difference between the time taken by the sentence and the time that would have been taken by a short (no more than two day) trial.  The applicant is a mature man with a relevant criminal history.  I would have allowed that his statutory expectation as to a parole eligibility date be brought forward by no more than three months.  Since my judgment will be of no functional effect it is unnecessary to fix that date with precision, nor to propose any other orders.