R v OAD[2024] QCA 189

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The applicant pleaded guilty on 1 March 2023 to nine counts of rape committed on dates unknown between 1 January 2016 and 9 March 2019.  The offences were domestic violence offences as the complainant was the daughter of the applicant’s partner with whom he was in a relationship between August 2013 and May 2021.  During the period particularised for the offences, the complainant was approximately six to eight years old.  The applicant was sentenced on 20 October 2023 to imprisonment for eight years on each count and his eligibility for parole date was fixed as 30 September 2026 (after serving four and one-half years or a little more than half of the sentence).  A presentence custody declaration was made in respect of the 568 days spent in presentence custody between 1 April 2022 and 20 October 2023 that deemed that time as already served under the sentences.

Grounds of application

2. [2]
   The grounds relied on for the sentence leave application are:

1. The sentence is unjust in all respects.
2. The learned sentencing judge erred when imposing sentence and did not give “full weight” and take into account the full custodial time the applicant spent in presentence custody of “prior offences” of which the applicant was “acquitted”.
3. The sentence offends against the principles of totality in that it led to a crushing sentence.

The applicant’s antecedents

3. [3]
   The applicant was between 55 and 58 years old at the time of the offending.  He had a limited prior criminal history that was dated apart from one charge of using a carriage service to menace, harass or cause offence for which he entered into a recognisance release order to be of good behaviour for a period of one year and no conviction was recorded.
4. [4]
   The applicant had been convicted in the District Court in 2019 of three counts of indecent dealing with a child under 16 years and two counts of rape (the earlier District Court charges).  The applicant commenced serving the sentences for the earlier District Court charges on 8 March 2019.  His appeal to the Court of Appeal in 2020 was unsuccessful, but he successfully appealed to the High Court and his convictions were set aside and a new trial ordered.  He was subsequently granted bail on 10 March 2022 in relation to the earlier District Court charges.  When he was arrested on 1 April 2022 and charged with the subject offences, he was remanded in custody from 1 April 2022.  In mid-2023, the applicant was acquitted of the earlier District Court charges.  Even though he pleaded guilty to the subject charges on 1 March 2023, the sentencing hearing was deferred to 17 October 2023 after the trial of the earlier District Court charges.  It was a fact that, when the applicant was sentenced for the subject offences, he had served three years for the earlier District Court charges for which he was eventually acquitted.

The circumstances of the offending

5. [5]
   There was an agreed statement of facts.  Apart from a short period when the complainant and her family moved in with the applicant for three months in early 2014, the applicant did not live with the complainant’s family but would frequently stay the night at the complainant’s house.  There were other times when the complainant and her family visited the applicant.
6. [6]
   Count 1 was committed when the complainant was lying on her mother’s bed, when her mother was out, and the applicant came into the room and began touching the complainant on top of her clothing.  He told the complainant not to tell anyone, took off her clothing and inserted his penis into her vagina.  The complainant tried pushing him away, but he continued to rape her.
7. [7]
   Around February 2018 the complainant and her family moved into her grandfather’s house.  On one occasion there, the complainant was in her mother’s room watching television, when the applicant came into the room and shut the door.  The applicant took off her underpants, lifted up her dress and while she was lying on her back with her torso on the bed and her legs over the edge and he was standing up, he penetrated her vagina with his penis (count 2).  The incident was interrupted when the complainant’s brother walked into the room.  Later that day, the complainant was in her room lying on her bed when the applicant entered her room and laid down next to her.  He took off her clothes, pulled her to the edge of the bed, stood over her and penetrated her vagina with his penis (count 3).  The complainant kicked out with her legs, managed to get up, put her clothes back on and left the room.
8. [8]
   There was another occasion when the complainant and her family were living with her grandfather when the applicant had bought a poster for the complainant.  She went to put the poster on the wall of her room.  The applicant came in to put the poster up and pushed her onto her bed, took her clothes off and inserted his penis into her vagina (count 4).  The complainant managed to push the applicant away and get up.
9. [9]
   On another occasion at the grandfather’s home, the applicant and the complainant were in her mother’s bedroom watching a documentary, when the applicant moved closer towards the complainant, took off her shorts and got on top of her.  She tried to push him away but he was too heavy.  He penetrated her vagina with his penis (count 5).  The complainant told him to stop.  She managed to get out from under him, put her clothes back on, and left the room.
10. [10]
    When the complainant was about seven years old, she was sleeping in the same bed as the applicant and her mother.  She was in the middle between them and the applicant told her to swap spots with him, so she was no longer sleeping next to her mother.  The applicant took off her pants and inserted his penis into her vagina (count 6).
11. [11]
    There was another occasion when the complainant estimated she was in grade 4, when her mother, brother and grandfather were out.  The complainant was in her mother’s room watching documentaries with the applicant.  They were lying on the bed.  The applicant used his hand to rub the complainant’s chest, moved his body closer to her, pulled down her pants and got on top of her.  The complainant was unable to get out from underneath him and he inserted his penis into her vagina (count 7).  This lasted for about 10 to 15 minutes with the complainant continuously asking him to stop.  After this incident, the applicant’s son came over and stayed at the complainant’s house and the applicant told her not to tell his son what had happened.
12. [12]
    Towards the start of the year that the complainant was in grade 4, she went to sleep in the bed of her mother and the applicant.  The applicant made her sleep on the edge of the bed next to him.  He rolled over on top of her and took off her clothing and inserted his penis into her vagina for a couple of minutes (count 8).  The complainant tried to push him away, but the applicant warned her she was going to wake up her mother.  Eventually the complainant got up and left the room.
13. [13]
    Another occasion occurred when the complainant was in grade 3 and was sleeping in the same bed as her mother and the applicant.  She got up to get a drink of water and, when she returned, she had to sleep on the outside edge of the bed next to the applicant.  The applicant turned towards her, pulled her pants down, got on top of her and inserted his penis into her vagina (count 9).
14. [14]
    An early disclosure in January 2016 by the complainant to her mother that the applicant had been “touching” her was put by the mother to the applicant and when he denied the conduct, nothing came of that disclosure.  On 24 May 2021, the complainant told her mother that the applicant had raped her.  When her mother then spoke to the applicant, he minimised his offending by saying that it happened two or three times and he only used his fingers.  The complainant was interviewed by the police in June and July 2021.  The applicant was spoken to by the police in August 2021 but did not participate in an interview.  There was a delay before he was charged on 1 April 2022 with the subject offences.

The sentencing remarks

15. [15]
    Apart from summarising the subject offences and the applicant’s antecedents, the sentencing judge’s sentencing remarks included the following.  The applicant’s guilty pleas were taken into account in reducing the penalty that would otherwise have been imposed for the offences.  Because the offending was against a child under the age of 16 of a sexual nature, subsections (4), (5) and (6) of s 9 of the Penalties and Sentences Act 1992 (Qld) (the Act) applied and the sentencing judge primarily had regard to s 9(6).  It was also an aggravating feature that domestic violence was involved.  The offending was committed when the applicant was in a position of trust.  It occurred over a lengthy period and was persistent.  There was a significant impact on the complainant.  The parties relied on the comparable authorities, including R v RAC [2008] QCA 185, R v BBP [2009] QCA 114, R v PAM [2011] QCA 36, R v Dendle [2019] QCA 194, and R v EP [2020] QCA 109.  Deterrence, denunciation and community protection were highly relevant matters.
16. [16]
    The primary judge addressed the issue of the undeclarable time served for the earlier District Court charges as follows.  The applicant relied on the Victorian cases that state that undeclarable “dead time” may be taken into account when a court imposes a subsequent sentence and, in particular, R v Renzella [1997] 2 VR 88, Warwick v The Queen (2020) 201 A Crim R 580 and Karpinski v The Queen (2011) 32 VR 85.  The New South Wales Court of Criminal Appeal held in Dib v the King (2023) 381 FLR 440 that “dead time” should not be taken into account when determining a Commonwealth sentence.  There was no specific case on point in Queensland, although the applicant submitted that cases such as R v Skedgwell [1999] 2 Qd R 97 and R v Fabre [2008] QCA 386 supported a flexible approach to such matters.  The sentencing judge then stated:

“However, having considered the arguments, I do not think the Court can entirely ignore the three years of undeclarable time. There are three reasons I conclude that. Firstly, it is for this Court to impose a sentence to punish the offender to an extent or in a way which is just in all the circumstances. I conclude that must include reference to periods of custody. Secondly, I consider it to be a relevant circumstance under section 9(2)(r) of the Act. The fact you have served this three years undeclarable time is relevant to your circumstances. The third aspect to be considered is that the police were aware of these charges when you were in custody. When I say ‘charges’, I mean ‘offences’.”

17. [17]
    The primary judge observed that, if the applicant had been charged with the subject offences before he was granted bail on 10 March 2022 for the earlier District Court charges (and had then not been released on bail for the earlier District Court charges),  it may have been possible for the time served since 8 March 2019 until 10 March 2022 to be declarable under s 159A(4) of the Act.  There was no evidence one way or the other as to why the charges for the subject offences were not laid until after the applicant’s release from custody on bail for the earlier District Court charges.  The sentencing judge then stated:

“But, in the circumstances, the delay in charge is a relevant factor to be considered at sentence. The delay has potentially led to three years being not declarable, noting it was always within the discretion of the Court as to what time, if any, would be declared. I also consider the principles in R v Mill (1988) 166 CLR 59 have some application. The principle of totality in that case requires the Court to consider all of the prison terms ordered to be served.”

18. [18]
    The primary judge concluded that the time served where there had been an acquittal could not be ignored and it would be unjust not to do so, when one is required to take into account time served for crimes of which a person has actually been convicted.  The primary judge did not think it was a “mathematical exercise”, as:

“One does not know the exact reasons there was remand. The evidence is scant on that. There may have been breaches of bail or other matters caused by an offender himself which led to custody. And the fact is, it was for other alleged offences. In this regard, I will refer to Berns [2020] QCA 36. In all of the circumstances, I have decided to take into account 18 months of the undeclarable time.”

19. [19]
    The primary judge considered that the subject offending was “very serious”, as the applicant was a mature man committing serious offences against a vulnerable complainant in breach of trust.  After trial, a sentence in the order of 11 to 12 years’ imprisonment to serve 80 per cent would have been within range.  Significant credit had to be given for the guilty pleas.  By reason of the pleas, the sentencing judge would have sentenced the applicant to nine and one-half years’ imprisonment, would not have made a serious violent offence declaration, but would have ordered a parole eligibility date after six years to reflect the serious nature of the offence, community protection, denunciation and deterrence in reliance on the principles expressed in R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80.

Did the sentence offend against the totality principle?

20. [20]
    The expression “totality principle” applied in Mill v The Queen (1988) 166 CLR 59 is used to explain the considerations that should apply to the imposition of appropriate sentences in a variety of circumstances, including where the offender is sentenced for more than one offence to cumulative terms of imprisonment, or there are successive custodial periods as a result of the offender receiving a sentence in one State and not being able to be sentenced in another State until released from custody in the first State, or where the offender is sentenced whilst currently serving another sentence.  McMurdo J (with whom Holmes and Gotterson JJA agreed) in R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177 at [18]-[19] referred to the classic formulation of the totality principle and the expansion of the circumstances in which it may apply.  Consistent with its purpose recognised in Mill at 63 that it requires a sentencing judge to review the aggregate sentence and consider whether the aggregate is “just and appropriate”, the totality principle is concerned with the aggregation of sentences imposed for offences to ensure that the aggregation of the sentences is relative to the totality of the criminality of the offending to which the sentences apply: R v Wilson (2022) 10 QR 88 at [26].  The totality principle is not concerned with a period in custody on remand which is ultimately not attributable to the serving of a sentence for an offence.
21. [21]
    There is therefore no scope for the application of the totality principle to the period of approximately three years which the applicant served on remand for the earlier District Court charges for which he was acquitted.

Did the sentencing judge act upon a wrong principle in not giving full weight to the custody for the earlier District Court charges?

22. [22]
    The applicant submits that this Court should formulate a principle that gives full weight to the three years the applicant served in custody for the earlier District Court charges before he was acquitted or at least find that in the applicant’s circumstances the sentencing judge should have given him full allowance for those three years in custody in determining the appropriate sentence for the subject offences.  The applicant expresses it in terms that, apart from the three weeks on bail before he was remanded for the subject offences on 1 April 2022, he will have been in custody from 8 March 2019 until 26 September 2026 which is a period of approximately seven years and six months before he is eligible for parole under the sentences imposed by the sentencing judge.
23. [23]
    The sentencing judge applied the Victorian authorities that commenced with Renzella.  In order to understand those authorities and the extent to which they can be applied in Queensland, it is necessary to consider aspects of the respective sentencing regimes in Victoria and Queensland for dealing with presentence custody.
24. [24]
    When the Act was first enacted, s 161 made it mandatory for the sentencing court to make a declaration that presentence custody was taken to be imprisonment already served under the sentence (unless the sentencing court otherwise ordered).  The terms of s 161(1) were:

“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentence court otherwise orders.”

25. [25]
    Section 18(1) of the Sentencing Act 1991 (Vic) (the Victorian Act) was in similar terms.  The application of these provisions was affected by the inclusion of the words in each provision of “for no other reason”.  Where an offender was held on remand for more than one offence and the sentencing proceeded for one or some of the offences before the others, the strict terms of these provisions did not apply as the offender was not held in custody in relation to the proceeding for the offence for which the offender was being sentenced and for no other reason.
26. [26]
    Victorian and Queensland courts developed the same approach to dealing with presentence custody that could not be the subject of a presentence custody declaration where the time spent on remand did not relate solely to the offence or offences for which the offender was being sentenced first in time.  Although not strictly necessary to decide in Renzella, the Victorian Court of Appeal (at 96-97) approved the approach that, where s 18(1) of the Victorian Act could not be used in relation to presentence custody, it remained open for the sentencing court to take into account that custody in the exercise of the discretion in fixing the term of imprisonment for the offence for which the offender was being sentenced, as the sentence was determined not only by reference to the circumstances of the offence, but also by the circumstances of the offender.  Counsel for the offender in Renzella had relied on numerous provisions of the Victorian Act to support the discretion to take presentence custody into account in cases not covered by the strict terms of s 18(1) of the Victorian Act, including s 5(2)(g) which provided that in sentencing an offender a court must have regard to “the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances”.  Because the Court in Renzella had regard to sentencing practice prior to the Victorian Act, subsequent decisions have treated Renzella as applying the discretion at common law to take into account presentence custody where it related to the offence for which the sentence was being imposed and also unrelated offending: Karpinski at [7] and [30].
27. [27]
    A similar conclusion was reached in Queensland by this Court in Skedgwell as to s 161(1) not excluding the sentencing discretion (that existed prior to the enactment of the Act) to take into account presentence custody after the Act’s commencement where s 161(1) did not apply to the offender’s presentence custody under the terms of s 161(1).  The offender in Skedgwell committed an armed robbery.  He was released on bail and committed a less serious offence of break and enter for which he was remanded in custody and his bail for the armed robbery was also revoked.  When he was sentenced, the sentencing judge declared the time held on remand as presentence custody in respect of the second offence, but did not take it into account in relation to the first offence.  The Court noted at 99 that, before s 161(1) was enacted “it was practice in sentencing to take account of a period of pre-sentence custody as going to some extent in reduction or mitigation of the penalty being imposed”.  As to the effect of the enactment of s 161(1), the Court then stated at 99-100:

“Section 161(1) did not, at least directly or expressly, abrogate that discretion or practice exercised in sentencing offenders. What it did and does is to make it mandatory in defined circumstances for an offender who is being sentenced to be given credit under that sentence for time already spent in custody… What is important for present purposes is that the operation of s. 161(1) is made to depend on the fact that the offender has been held in custody in relation to proceedings for the offence in question ‘and for no other reason’…

The question to be decided is whether it was correct for his Honour to assume, as we consider he did, that, in sentencing the applicant, credit could be allowed for that period only in the manner and to the extent specifically addressed in s. 161 (1). We do not think it was… But s. 161(1) does not, on any view of its terms, appear to have been intended as an exhaustive statement or complete code of the court’s power to take account of a period of pre-sentence custody when arriving at an appropriate sentence. In the circumstances specified in s. 161(1), the duty to give credit for pre-sentence custody is mandatory, and the manner of doing so is prescribed by the section; but it does not limit or exclude the general sentencing discretion to consider a period of such custody as a factor which may operate in mitigation, whether by reducing the head sentence, or accelerating the date for consideration for parole, or otherwise.”

28. [28]
    Even though the Court in Skedgwell made no reference to the sentencing factors set out in s 9 of the Act for taking into account presentence custody that was not declarable under s 161(1) where it was otherwise appropriate for the Court in the exercise of its discretion to consider, paragraphs (l) and (p) of s 9(2) of the Act (which are now paragraphs (g) and (r) of s 9(2)) were the equivalent to s 5(2)(g) of the Victorian Act and authorised “a factor which may operate in mitigation” concerning the offender to be taken into account or “any other relevant circumstance”.
29. [29]
    In Victoria, the words “and for no other reason” were omitted by s 11(1) of the Sentencing and Other Acts (Amendment) Act 1997 (Vic) which came into operation on 1 September 1997.  The view that was expressed in Renzella was developed by subsequent authorities to a broader proposition that presentence custody to which s 18 of the Act did not apply could, in some circumstances as a matter of justice, be taken into account in the exercise of the Court’s sentencing discretion, including taking into account time that was served in respect of an offence for which there was ultimately an acquittal: R v McMahon [2006] VSCA 240 at [19]-[22].  These authorities were considered in Warwick by Maxwell P and Weinberg JA who summed up the effect of these cases at [10]:

“What emerges very clearly from these cases is that it is a matter for the individual judge, in his or her discretion, to decide what weight should be given to the dead time, or – more accurately – what sentencing discount is appropriate, having regard to the quantum of dead time.  Counsel for the appellant, in his written submission, properly concedes that the exercise is not a ‘mathematical’ one.  Indeed, the cases provide a variety of examples of different proportions of the ‘dead time’ being brought to account.”

30. [30]
    The Court in Warwick also considered (at [13]-[14]) whether in applying Renzella there should be a like reduction in the non-parole period to that made to the head sentence and noted that “there would seem to be no logical necessity for the one to mirror the other”.
31. [31]
    The issue of the approach to “dead time” or the Renzella discretion was considered by the Victorian Court of Appeal in Karpinski.  There is an extensive analysis of all the relevant cases by Tate JA at [30]-[64].  The offender in Karpinski was sentenced on 12 May 2009 for the theft of a car and armed robbery that were committed between 26 and 27 June 2007.  The effective sentence was imprisonment for six years and three months with a non-parole period of four years and six months.  These offences were committed whilst he was on bail for an attempted murder charge.  He had been remanded on that charge on 7 June 2006 and was granted bail on 6 February 2007 which meant he had been in custody on remand for that charge for eight months.  The sentencing remarks for the theft and armed robbery did not refer either to this time spent in custody or that the theft and armed robbery were committed whilst on bail for the attempted murder.  The attempted murder was discontinued on 19 June 2009.  The offender was successful on appeal on the basis (at [71]) that the sentencing judge should have applied the Renzella discretion in respect of that period of eight months at the time of sentencing for the theft and the armed robbery, as that period could not be treated as imprisonment already served for the sentence for the theft and armed robbery under s 18(1) of the Victorian Act.  It was noted (at [73]) that, in accordance with the more recent practice of the court, the appellant did not seek a full reduction in his head sentence or non-parole period of the eight months to which the Renzella discretion applied.  On the re-sentence, the effective sentence and the non-parole period were each reduced by a period of four months.  The other members of the Court in Karpinski, Weinberg and Mandie JJA agreed with Tate JA.  Weinberg JA had no difficulty in applying the Renzella discretion in accordance with the Victorian authorities, but raised (at [7]) whether it was appropriate for wrongful imprisonment of an accused person to be addressed by being given credit for the time spent in custody when he is sentenced at a later time for entirely unrelated offending.
32. [32]
    The Renzella discretion continues to be applied in Victoria.  A recent example is Kenyeres v R [2023] VSCA 25 where the offender was held in immigration detention on an extradition warrant for 222 days before he was charged with the offences for which he was then sentenced in Victoria.  The sentencing judge was incorrectly informed that the time in custody pursuant to the extradition warrant was 131 days.  The Court noted at [61] the principles in Renzella summarised in other authorities included that the Court may take account of the whole period during which the offender was in custody, or some lesser period.  In the circumstances, the Court (at [69]) made “a slight adjustment” to the sentence imposed at first instance by reducing each of the sentence on the most serious charge and the non-parole period by two months.
33. [33]
    The Renzella discretion in not applied in New South Wales for reasons that are explained in numerous decisions of the Court of Criminal Appeal such as Hampton v The Queen (2014) 243 A Crim R 193 at [27]-[31].  The approach in New South Wales is summarised at [30] as “that bare reliance on a period in custody for an unrelated matter, without more, is extraneous to the exercise of sentencing discretion for other matters”.  This was confirmed again in Dib v The King (2023) 381 FLR 440 at [33]-[52].
34. [34]
    Under the Victorian authorities that apply the Renzella discretion there is no principle of equivalence between the “dead time” served by an offender and the discount given when the next sentence is imposed on that offender.
35. [35]
    The constraint due to the words “for no other reason” in s 161(1) of the Act was not altered when s 161 was renumbered as s 159A in 2006 by the Corrective Services Act 2006 (Qld).  That constraint did complicate many sentences where making a presentence custody declaration was precluded by the strict terms of s 159A of which R v Fabre [2008] QCA 386 is an example.  It was finally addressed in Queensland by the amendment of s 159A(1) of the Act by the omission of the words “and for no other reason” by s 164 of the Justice and Other Legislation Amendment Act 2020 (Qld) which took effect on 25 May 2020.  The effect of the amendment was explained by Bowskill J (as the Chief Justice then was) in R v Whitely (2021) 8 QR 283 at [6] which was approved in Wilson at [18].  The Explanatory Note for the Bill that resulted in the 2020 amendment to s 159A(1) identified the policy objective as to “enhance judicial discretion and reduce complexity under section 159A”.  As an aside, the Victorian approach to the omission of the words “and for no other reason” from s 18(1) of the Victorian Act resulted in that provision being construed, so that “detention on remand for one offence would not fall to be declared under s 18(1) when sentenced for that offence if the detention was also referable to a second offence for which the offender was serving a sentence”: see Karpinski at [37].
36. [36]
    The Act makes specific provision in s 159A for the circumstances in which a declaration for presentence custody can be made in respect of time that the offender was held in custody in relation to proceedings for the offence when the offender is sentenced to a term of imprisonment for that offence.  It is not mandatory for such a declaration to be made, as the sentencing court is given a discretion under s 159A(1), (3A) and (3B), depending on the circumstances in which that presentence custody was served, as to whether all or part of the period held in custody is taken to be imprisonment already served under the sentence.
37. [37]
    The 2020 amendment to s 159A has had the consequence of increasing the circumstances in which a s 159A declaration that presentence custody is taken to be imprisonment already served under the sentence can be made.  It is apparent from the purpose of the 2020 amendment that the intention of the Legislature was to address the practical problems that had arisen in sentencing from limiting the presentence custody declaration to the period in presentence custody in relation to the offence for which the offender was being sentenced and for no other reason and not to displace the authority in Queensland of Skedgwell.
38. [38]
    The fact that there is an express provision in the Act dealing with presentence custody for an offence does not preclude a sentencing court from considering custody served by an offender that is ultimately not attributable to any sentence where it is appropriate to do so in the exercise of the sentencing discretion.  It will be appropriate to take account of such custody as a relevant factor, when a subsequent sentence is imposed, where the serving of that custody which is not attributable to any offence can be characterised as falling within one of the factors to which a Court must have regard in sentencing an offender pursuant to s 9(2) of the Act.  That happened in R v Bui [2022] QCA 67.  The offender had served three years and nine months in custody for offences, he successfully appealed the convictions and the charges were discontinued.  That period in custody was treated (at [15]) as a relevant personal circumstance when the offender was sentenced for a subsequent offence.
39. [39]
    In the applicant’s case, the sentencing judge considered paragraph (r) of s 9(2) authorised giving the applicant some credit for the three years in custody for the earlier District Court charges.  There was no error in doing so.  Serving three years of undeclarable time became relevant to the applicant’s circumstances when his sentence for the subject offences commenced three weeks after he had served those three years in custody.  On any view, the severity of the imprisonment for the subject offences for the applicant must have been affected by the lengthy period which he had spent in custody immediately preceding that sentence that was not attributable to any sentence because of his subsequent acquittal of the earlier District Court charges.  Consistent with the approach in Skedgwell, such custody could also be treated as a mitigating factor in favour of an offender where there is some connection such as proximity to the custody served for the offences for which the offender is then being dealt with, as it was in the applicant’s case.
40. [40]
    When it is understood that time served in custody for offences of which an offender is ultimately acquitted may be taken into account when the offender is next sentenced, if the fact of that custody is relevant to the subsequent sentencing pursuant to s 9(2) of the Act, there is no principle (for which the applicant contends) that the offender must be given a discount on the sentence equivalent to that period in custody.  It is a factor to be weighed in the exercise of the sentencing discretion and the extent to which some allowance is made for the custody which is not attributable to any sentence depends on its relationship by time or other circumstance to the offences for which the offender is subsequently sentenced.

Was the sentence unjust?

41. [41]
    The applicant has framed this ground for his sentence leave application as the sentence being unjust.  The effect of his submissions is that the sentence is manifestly excessive, having regard to the three years he served in custody for the earlier District Court charges before he was acquitted of those charges that was only separated by three weeks from the commencement of the period in custody that was attributable to the sentences for the subject offences.  This ground will be considered on that basis.
42. [42]
    Even though the sentencing judge explained the process by which he imposed a sentence of eight years’ imprisonment for each count and fixed the date for eligibility for parole at 30 September 2026, the task of this Court in considering whether the sentence is manifestly excessive is to look at all the relevant factors and form a view as to whether the sentence that was imposed on the applicant for his offending and taking into account his personal circumstances and history is manifestly excessive.  It is the ultimate result of the sentencing process that is the focus of this ground.  That approach is consistent with the instinctive synthesis process that is engaged by a sentencing judge in weighing all the relevant factors to arrive at the ultimate result that reflects the outcome of the process: Markarian v The Queen (2005) 228 CLR 357 at [37], [39] and [73].
43. [43]
    The applicant’s sexual offending against the young child of his partner over a period in excess of three years that involved repeated penile rape was objectively serious.  There was the aggravating circumstance that each rape was a domestic violence offence.  The applicant’s conduct was brazen and when first confronted in January 2016 about whether he had been “touching” the complainant, he denied the conduct and continued the offending.  Apart from the three years in custody for the earlier District Court charges, the significant mitigating factor for the applicant was his guilty pleas.
44. [44]
    The comparable authorities of BBP, Dendle and EP put before the sentencing judge supported the proposition that, if the applicant had been found guilty after trial, he would have been exposed to a sentence up to 12 years’ imprisonment which would have required him to serve 80 per cent in custody before being eligible for parole.
45. [45]
    The offender in BBP was convicted after trial of one count of rape and one count indecent dealing committed in the same incident against his niece who was nine or 10 years old.  The act of penetration which constituted the rape was described (at [48]) as “shallow and momentary” and that as soon as the complainant experienced pain, she pushed the offender away who desisted immediately.  He was sentenced to eight years’ imprisonment for the rape.  He was unsuccessful in his sentence leave application.  It was noted (at [52]) that, where there was no plea of guilty and a breach of trust, the range for offending of that kind would extend beyond eight years.  That would certainly have been the case for the applicant for the nine rapes committed by him over a period where for many of them he continued the offending despite the complainant’s protests.
46. [46]
    The offender in Dendle was found guilty after trial of three counts of indecent treatment of a child under 16 and two counts of rape.  For the most serious of the rapes (which was a penile anal rape) he was sentenced to 12 years’ imprisonment with a serious violent offence declaration.  The complainant was a 13 year old boy who lived with his father and the appellant was a friend of the complainant’s father who resided with them.  The offences were committed over a period of about three or four hours in the offender’s bedroom after he had asked the complainant to come to his bedroom to talk.  The offender threatened the complainant if he went to his father about the offending.  The complainant did tell his father who took him to the police.  Some partial admissions were made by the offender that showed a “hint of remorse” that was displaced by the lack of remorse shown by the offender in the evidence given at the trial.  The complainant had committed suicide 10 weeks after the offences were committed which were treated as a cause of the complainant’s suicide and a relevant factor under s 9(2)(c) of the Act.  The impact of the offending on the complainant in Dendle was devastating.  In the applicant’s case, the length of period over which the applicant committed the rapes in breach of trust on an even younger complainant means that the sentence imposed in Dendle remains a relevant comparative sentence for the applicant’s offending.
47. [47]
    EP concerned a sentence imposed on the offender who pleaded guilty to four counts of rape (an oral rape, a penile anal rape, a digital vaginal rape and a digital anal rape) and one count of indecent treatment of a child under 16, under 12, under care.  For the penile anal rape (which was the most serious offence) the offender was sentenced to nine years’ imprisonment and an eligibility for parole date was fixed after he had served three years.  The offender had been asked by the parents of a five year old daughter to look after her while they went out.  The appellant was 30 years old at the time of the offending with an irrelevant criminal history.  Philippides JA (with whom Morrison JA and Buss AJA agreed) noted (at [39]) that the offending was objectively very serious and the trial judge had generously taken account of the appellant’s mitigating factors.  The sentence was described as “comparatively moderate” in all the circumstances.  In contrast to the applicant’s offending, the multiple rapes were committed by the offender in EP on the one occasion when he had care of the complainant.
48. [48]
    The applicant relies on RAC as a comparative sentence that would have justified his being sentenced to 10 years’ imprisonment after trial.  The offender in RAC pleaded guilty to an ex officio indictment that charged him with eight counts of rape and two counts of indecent dealing with circumstances of aggravation.  Some of the charges were only brought because of the detailed and frank admissions made by the offender to the police.  The complainant was his six year old stepson.  He successfully appealed against a sentence of 10 years’ imprisonment on each count.  McMurdo P (with whom Muir JA and Cullinane J agreed) considered (at [39]) that, if the offender had been convicted after trial, a sentence of 12 years’ imprisonment would have been within range, but to discount that by only two years for the very early plea of guilty and extensive cooperation with the authorities was to give too little weight to that important feature.  The sentence for each offence of rape was reduced to imprisonment for eight years with a serious violent offence declaration.  The observations made in RAC, in fact, support the starting point for the applicant’s sentence, if he had pleaded not guilty, as 12 years’ imprisonment.
49. [49]
    The mitigating factors in favour of the applicant of his guilty pleas and his having served three years in custody for the offences for which he was ultimately acquitted immediately before the commencement of the sentence for the subject offences were taken into account by the sentencing judge in arriving at the head sentence.  The applicant got a double benefit from the custody for the earlier District Court charges as, before the reduction of the head sentence for that custody not attributable to any sentence, the sentencing judge would have ordered him to serve about 70 per cent of the head sentence.  The custodial component of the sentence before the applicant would be eligible for parole was then further reduced to 56 per cent of the ultimate head sentence.  Having regard to all the relevant sentencing considerations that applied to the applicant and his offending, the sentence of eight years’ imprisonment to serve four and one-half years before being eligible for parole is not manifestly excessive.

Order

50. [50]
    It follows that the order which should be made is: Application for leave to appeal against sentence refused.