Re Kayasith Viengkham and Rohit Narayan v R [1986] FCA 25 (13 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: KAYASITH VIENGKHAM and ROHIT NARAYAN
And: THE QUEEN
No. ACT G341 and 342 of 1984 Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.
Beaumont J.
Wilcox J.

CATCHWORDS

Criminal Law - Appeals from sentences - Whether sentencing judge erred in finding that accused did not show genuine contrition - Whether sentences excessive - Whether sentencing judge erred in imposing cumulative sentences - Whether a single non-parole period should be fixed where a number of sentences imposed - Whether judge may have regard to remissions and reductions under New South Wales legislation.

Crimes Act, 1900 (N.S.W.) in its application to the Australian Capital Territory, ss. 33, 63, 76, 90A, 97

Parole Ordinance 1976 (A.C.T.), s. 7

HEARING

CANBERRA
13:2:1986

ORDER

The orders made by the Supreme Court of the Australian Capital Territory on 13 November 1984 be varied by setting aside the non-parole periods fixed therein and in lieu thereof fixing the period of eight years as the period within which Kayasith Viengkham is to be ineligible for parole.

Otherwise the appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The appeal be allowed.

The orders made by the Supreme Court of the Australian Capital Territory on 13 November 1984 be varied -

(a) by setting aside the order that the
sentence of imprisonment for one
year imposed in respect of the
offence against s. 76 of the Crimes
Act, 1900 (N.S.W.) in its
application to the Australian
Capital Territory be served
cumulatively upon the sentences of
imprisonment imposed in respect of
the offences against ss. 90A, 63 and
97 of the said Act and in lieu
thereof order that the said
sentence of imprisonment for one
year be served concurrently with
those other sentences; and

(b) by setting aside the non-parole
periods fixed therein and in lieu
thereof fixing the period of six
years as the period within which
Rohit Narayan is to be ineligible
for parole.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

These are appeals against the sentences imposed on the appellants, Kayasith Viengkham and Rohit Narayan, by the Supreme Court of the Australian Capital Territory (Kelly J.) on 13 November 1984. The offences for which the appellants were sentenced were committed by them in company on the night of 23/24 April 1984.

2. Set out hereunder in summary form in respect of each of the offences for which Kayasith Viengkham was sentenced are the substance of the offence, the statutory provision creating it, the sentence imposed and the non-parole period fixed -

1. That he took away a young woman with
intent to hold her for his and Rohit
Narayan's advantage, namely to rob her
(section 90A of the Crimes Act, 1900
(N.S.W.) in its application to the
Australian Capital Territory) -
Imprisonment for five years with a
non-parole period of three years.

2. That he took away a young man with
intent to hold him for his and Rohit
Narayan's advantage, namely to rob him
(ibid.) - Imprisonment for five years to
be served concurrently with the above
sentence, with a non-parole period of
three years.

3. That he raped the young woman (s. 63 of
the said Act) - Imprisonment for seven
and a half years to be served
concurrently with the above sentences,
with a non-parole period of five years.

4. That, when armed with an offensive
weapon, an axe, he assaulted the young
woman and robbed her of $3, a wallet
containing personal papers and a
Commonwealth Bank Key Card (s. 97 of the
said Act) - Imprisonment for four years,
to be served concurrently with the above
sentences, with a non-parole period of
two and a half years.

5. That, when armed with an offensive
weapon, an axe, he assaulted the young
man and robbed him of a wallet
containing personal papers and a Westpac
Key Card (ibid.) - Imprisonment for four
years, to be served concurrently with
the above sentences, with a non-parole
period of two and a half years.

6. That he indecently assaulted the young
woman (s. 76 of the said Act) -
Imprisonment for two and a half years to
be served cumulatively upon the above
sentences, with a non-parole period of
eighteen months.

7. That he maliciously wounded the young
woman with intent to do her grievous
bodily harm (s. 33 of the said Act) -
Imprisonment for ten years to be served
cumulatively upon the above sentences,
with a non-parole period of six years.

8. That he maliciously inflicted grievous
bodily harm upon the young woman with
intent to do her grievous bodily harm
(ibid.) - Imprisonment for ten years, to
be served concurrently with the
sentences for the other offences against
s. 33 of the said Act, with a non-parole
period of six years.

9. That he maliciously wounded the young
man with intent to do him grievous
bodily harm (ibid.) - Imprisonment for
ten years, to be served concurrently
with the sentences for the other
offences against s. 33 of the said Act,
with a non-parole period of six years.

10. That he maliciously inflicted grievous
bodily harm upon the young man with
intent to do him grievous bodily harm
(ibid.) - Imprisonment for ten years, to
be served concurrently with the
sentences for the other offences against
s. 33 of the said Act, with a non-parole
period of six years.

The appellant Kayasith Viengkham was, therefore, effectively sentenced to imprisonment for a total period of twenty years.

3. The appellant Rohit Narayan was sentenced on charges in similar terms, save for necessary adjustments, to those laid against the appellant Kayasith Viengkham except that, in each of the charges of robbery, Narayan was alleged to be armed with a knife. On each of two charges under section 90A of the Crimes Act, 1900 (N.S.W.) in its application to the Territory - offences similar to those set out as 1 and 2 above in relation to Viengkham - Narayan was sentenced to imprisonment for four years, with a non-parole period of two and a half years. In respect of the charge of rape (see 3 above), he was sentenced to imprisonment for six years (non-parole period four years). On each of two charges of robbery (see 4 and 5 above) he was sentenced to imprisonment for three years (non-parole period one and a half years). The above sentences were directed to be served concurrently. On the charge of indecent assault (see 6 above), a term of imprisonment of one year to be served cumulatively was imposed (non-parole period six months) and on each of four charges under section 33 of the Crimes Act, 1900 (N.S.W.) in its application to the Territory (see 7 - 10 above), the term of imprisonment imposed was eight years (with a non-parole period of four years in respect of each charge), those four sentences to be served concurrently as between themselves but cumulatively upon the sentences for the other offences. Thus, Narayan was sentenced to imprisonment for a total period of fifteen years.

4. The learned sentencing judge summarised the events surrounding the commission of the various offences in the following way -

"At about 11.10 p.m. on 23 April 1984, the young
man and woman, the victims of the crimes, left the
Canberra Workers' Club intending to meet the young
man's girlfriend. They had gone about 200-300
yards from the Club when the two prisoners suddenly
appeared in front of them. Mr Viengkham used the
pretext that the young man had 'bashed up' his
brother and forced the couple to go with him and Mr
Narayan. I am satisfied that the prisoners had
been lurking in the vicinity of the Club so that
they might rob someone.

The prisoner Viengkham was armed with a small axe,
of the type commonly called a tomahawk, while the
prisoner Narayan was armed with a knife. Viengkham
uttered threats, 'I'll kill you', 'I'll split you
open', 'Keep to the dark and keep walking or I'll
smash your backs in' and 'I have a gun. You can't
see it, but I do have a gun'. The couple went in
fear of death. At one stage they were ordered to
sit down and did so while the prisoners talked but
could not be overheard. Both prisoners then said,
'Take us somewhere dark'.

When all four arrived at a fairly dark spot where
there were some trees at the rear of the Asian
Studies building near the Australian Rules oval on
the campus the prisoners ordered the couple to stop
and separated them. Viengkham made the young man
crawl along the ground for about 15 yards and then
lie face down flat on the ground. Viengkham then
said to Narayan, 'Do what you want with her'.
Holding the knife in his hand, Narayan first tried
to take the young woman's upper garment off and
then told her to take her clothes off. She did so
and was pushed backwards on to the ground. Narayan
knelt beside her and forced her to engage in
fellatio with him. He then raped her, effecting
substantial penetration but not, so far as the
evidence goes, ejaculating within her.

He then stood up. Viengkham took his place and
twice forced the young woman to engage in fellatio
with him. He forced her to sit on top of him and
then raped her. Again he made her engage in
fellatio with him at the same time performing acts
of serious indecency upon her.

Meantime Narayan had gone back to the young man
and, after holding his knife, so the young man
believed, against the right side of his neck, asked
him where his wallet was. The young man gave
Narayan the wallet together with cash amounting to
$4 which does not form the subject of any charge.
I mention it merely as part of the circumstances.
Narayan returned the wallet. He then made the
young man crawl across to the young woman where the
prisoner ordered him to have intercourse with her.
The young man said, 'What?' Viengkham repeated the
command and told the young man to remove his
clothing. The couple simulated intercourse. The
young woman overheard the prisoners talking. She
noted that they had her Commonwealth Bank Key Card
and the young man's Westpac Key Card. He and she
gave the numbers of the cards when asked for them.

During the simulated intercourse the prisoner
Narayan scratched the young man's bare back with
his knife in a fairly extensive but random pattern.
The scratches were not serious.

Threats were made against the couple to enforce
their silence about what had been and was happening
to them.

The prisoner Viengkham then kicked the young man
and tried to render him unconscious by striking him
with the back of the tomahawk on the back of the
head. He did not cause the young man to become
unconscious and directed Narayan's attention to
that fact. Narayan moved the young man's body with
his foot, thus causing his shoe to be stained with
the young man's blood. I am not satisfied beyond
reasonable doubt that Narayan struck either of the
young couple with the tomahawk although I am
satisfied beyond reasonable doubt in all the
circumstances that his plea of guilty to the
charges in respect of those assaults was properly
made. In addition to all the circumstances I think
it proper to take into account the admissions
necessarily implicit in the pleas of guilty.

Despite repeated blows the young man was never
rendered unconscious.

The prisoner Viengkham also struck the young woman
with the back of the tomahawk and I am satisfied
that he caused her head and back injuries and broke
a finger. I am satisfied, too, that he influenced
Narayan to cause her serious injury by twice
stabbing her.

Thereafter the prisoners ran away. After using the
young man's Key Card to obtain $200 from his
account they left for the south coast of New South
Wales where they were subsequently arrested at
Narooma."

5. The young man suffered a severe contusion to the back of the head, laceration of the scalp and severe bruising of the back with abrasions and scratches.

6. The young woman was much more seriously injured. She suffered -

(a) lacerations to the scalp, front and
back, requiring stitching;

(b) gross bruises on her back;

(c) haematuria suggesting renal contusion;

(d) a stab wound in the midline of the
epigastrium;

(e) another stab wound slightly to the left
of the umbilicus;

(f) fractures of the transverse processes of
the first and second lumbar vertebra on
the right side and the transverse
process of the third lumbar vertebra on
the left side;

(g) a fracture across the mid-shaft of the
proximal phalanx of the right index
finger and a fracture of its middle
phalanx without displacement; and

(h) continuing psychological sequelae.

The sentencing judge was satisfied that the young woman suffered not only severe physical injury but, understandably, deep degradation and humiliation at what had happened to her when there could be not the slightest suggestion that anything she had said or done played any part in the actions of her assailants. Those actions resulted in, amongst other things, her hospitalisation for nearly two weeks during which surgery was performed to repair the damage caused by the stab wounds which, as his Honour found, came within millimetres of causing very serious, possibly fatal, consequences.

Appeal by Kayasith Viengkham

7. In sentencing Viengkham, Kelly J. said:

"The prisoner Viengkham migrated to Australia in
1976 with his mother and two of his sisters. They
came, sponsored by his uncle, an Australian
citizen, from a refugee camp in Thailand to which
they had fled some two years before from Laos where
the prisoner had been born. His father and other
members of his family later migrated to the United
States and he has not seen his father since. His
background is both complex and disturbed and is set
out in detail in a welfare report tendered in
evidence. Annexed to that report is a statement
made by his uncle which sets out in considerable
detail Mr Viengkham's family background and
history. Much of it would ordinarily be
inadmissible but in the circumstances I accept it
as of assistance in attempting to deal justly with
Mr Viengkham. He is said to have displayed
unacceptable tendencies and to have been guilty of
violence. This may well be so but I am not
satisfied that there is sufficient evidence of past
unlawful actions for me to take the allegation
properly into account. Only once has he previously
been before a Court and that in the Children's
Court in respect of three charges of maliciously
using fire alarms. The offences took place four
and a half years ago and I put them out of
consideration.

I take into account Mr Viengkham's disturbed
background. I have taken particular note of what
was said on his behalf by Dr Knox, a consultant
psychiatrist. I note in his favour that he pleaded
guilty to all charges, thereby sparing the young
man and woman the further humiliation of having to
give evidence in Court. I note also that he
cooperated with the police in their inquiries.
Nevertheless, I think he is to be dealt with
severely, not least because he seems to have been
the ringleader in the offences although, in my
opinion, Mr Narayan was not far behind."

8. His Honour said that he also took into account that the prisoner had been in custody since his arrest in April 1984 and continued:

"I have refrained from setting out all the details
of the crimes to which the prisoners have pleaded
guilty. I should add that I have accepted as
accurate the version of the events of the evening
given by the Crown except to the extent indicated
above although I have not set out every detail of
those events. Nor have I attempted to describe
them by any particular epithet. The recital set
out above is enough to establish their character.
It is enough to establish that these are offences
which must be dealt with severely for the proper
protection of society. Those who commit such
offences must be punished severely. Those who
would consider committing such offences must be
deterred by the expectation that heavy sentences
will be imposed upon them. The rehabilitation of
the prisoners and their youth and, in the case of
Mr Narayan, his contrition, must all yield, in my
opinion, to the need for the protection of society.
Any woman is entitled to walk the streets of this
city without fear that she will be subjected to
such degradation as was the lot of the young woman
in this case. No man should have to fear such
treatment as was meted out to the young man in this
case.

Where there are many offences arising broadly
out of one set of circumstances, it may be proper
to sentence an offender to concurrent terms of
imprisonment in respect of each offence. It seems
to me that in these cases, however, it is proper to
deal with the offences so that some consecutive
sentences may be imposed. The abduction, rapes,
robberies and indecent assaults seem to me to form
one set of offences but the indecent assaults were
of such a nature as to warrant a consecutive
sentence. The malicious woundings with intent and
the malicious infliction of grievous bodily harm
with, in each case, intent to do grievous bodily
harm, seem to me to constitute another set for they
were carried out with the intention, however
ill-advised, of preventing detection of the other
crimes.

Before proceeding to pass sentence, I think I
should point out that I do not accept that Mr
Viengkham shows genuine contrition for what he did
on the night of 23/24 April. I am satisfied that
he obtained from his actions on that night a degree
of pleasure in effecting the degradation of two
human beings over whom he was exercising what he
conceived to be some form of power."

9. At the time of the commission of the offences, Viengkham was four months short of his nineteenth birthday.

10. The grounds of appeal relied upon are:

(a) that the learned sentencing judge erred in
finding that the appellant did not show
genuine contrition;

(b) that his Honour erred in fixing cumulative
sentences;

(c) that the sentences imposed are excessive;

(d) that his Honour erred in according too much
significance to deterrence and retribution and
too little weight to the subjective factors of
the appellant;

(e) that his Honour, in fixing the period during
which the appellant was not to be eligible for
parole, erred in taking into account likely or
possible remissions and, in fixing cumulative
non-parole periods, acted otherwise than in
accordance with s. 7 of the Parole Ordinance
1976 (A.C.T.)

11. In relation to the first ground of appeal, there was before the sentencing judge a report dated 26 October 1984 as to the appellant's antecedents which had been prepared by Detective Senior Sergeant Ronald Edward McMah. That report contained the following statements:

"The accused has not expressed remorse for the
crime he has committed - in fact when interviewed
he stated 'What's happened has happened, just sorry
I got caught'. It is obvious from speaking with
him that he believes that every Australian owes him
something and he definitely has no respect for
Australian women."

Detective Senior Sergeant McMah was cross-examined in a manner indicating that the appellant challenged the correctness of that part of his report set out above. It was suggested to the witness that the report did not accurately reflect either the appellant's attitude or the conversation which the witness had with him.

12. Counsel for the appellant pointed to the absence of any reasons given by the sentencing judge for his conclusion that the appellant had not shown genuine contrition notwithstanding that the matter had been raised as an issue. It was submitted that the only evidence to support his Honour's conclusion was that of Detective Senior Sergeant McMah and that that evidence was contradicted by the evidence given by the appellant. It was further submitted that, even if the evidence of Detective Senior Sergeant McMah were accepted, there was a preponderance of evidence supportive of a finding that the appellant was contrite. That evidence was so strong, so it was argued, as to justify this Court, in the absence of detailed reasons being given by the sentencing judge, setting aside his Honour's finding.

13. Reference should be made to the other evidence upon which the appellant relied. It was the evidence of Mr Roger Donald Peacock, an officer of the Department of Foreign Affairs, and of Mr James Broughton Boydell, a social worker employed in the Welfare Branch of the Department of Territories and Local Government and the material contained in two reports dated 6 July and 25 October 1984 made to the appellant's solicitors by Dr William Knox, Consultant Psychiatrist.

14. Mr Peacock, who is married to a sister of the appellant's mother, gave evidence that he had known the appellant since shortly after the latter's arrival in Australia in 1976. He gave the following evidence:

"Q. Are you able to form a view about the
prisoner's attitude to these offences?
A. Yes. That attitude changed or perhaps not his
attitude changed but his ability to express it
changed from the initial contact with him
where the word perhaps confusion understates
his presentation to me.

Q. Could you do any better than that?
A. Trance would overstate it but it is something
like an inability to communicate adequately
and that was when I first - the first two
visits I made to him which were, I think - the
first one was about two or three days after
his arrest and the second one was later the
following weekend.

Q. What has happened since then?
A. In the subsequent visit quite an unusual
occurrence, unusual in the sense that the
relationship that I have had with Kayasith
over the years in that he is as Mr Boydell has
referred to him, or about him, often presents
a fairly, I use the word tough, attitude
towards life, an appearance of somebody who
can cope, who can deal with his environment
and in that regard is something of a fantasy
assessment of his own abilities when on about
the fourth visit he shed most of that
defensiveness, most of that tough image and
perhaps for the first time, no, in fact the
first time, I saw him break down and cry. I
must say that I have very mixed feelings about
what has happened and did not know at that
time whether to accept this as something that
was not a variation of his choice of reacting
to people or whether in fact it was something
that he meant. In a subsequent meeting, after
I was able to obtain a contact visiting
arrangement with him we had quite a long
session in which he explored very fully, very
deeply, the feelings he had about not only the
victims and the enormity of what he had done
but also explored some of the causal aspects
of why he thinks he had done them. However, I
must say that more latterly, and I say largely
again because I think of the contact he has
had with some of his peer group, he has from
time to time, and partly because of his
adjustment to the remand centre, tried to be a
little bit tougher. But there is no doubt in
my mind that on those two occasions when he
broke down that was what he really felt."

15. Mr Boydell made a lengthy welfare report dated 5 November 1984 dealing with such matters as the appellant's family background and education, his activities after completing his studies, the events leading to the offences and the appellant's attitude to those offences. It is a most instructive and informative report which is too lengthy to be set out in these reasons. The part of the report upon which the appellant relies is as follows:

"In discussion with Detective Sergeant McMah, he
told me that Kayasith showed no sorrow for what he
had done, while his uncle told me that on two
occasions with him, Kayasith had completely broken
down emotionally with remorse. To me, Kayasith
expressed regret and sorrow for what he had done.
He stated that he had thought what it would be like
it if happened to him, and for the couple
concerned. He expressed concern for the future,
and wondered if he would be able to survive
incarceration."

In his oral evidence Mr Boydell explained that the second last sentence in the quotation from his report as set out above was intended to read:

"He stated that he had thought what it would be
like if it happened to him, and he expressed sorrow
for the couple concerned."

16. It is clear from a reading of Mr Boydell's report as a whole that there were contradictions in the various statements which the appellant had made to him in the course of his investigation. He was asked about these in cross-examination:

"Q. You referred to a certain degree of
contradiction in the versions that you have
been given by the prisoner?
A. Yes, that is correct.

Q. Did you form the view that that showed a lack
of frankness or something else?
A. Yes. I really formed the view it showed a lot
of confusion on his part and that he answers
in a way that depends on his judgment of the
person he is talking to. His judgment of me,
I think, changed over time and so his answers
did.

Q. On that matter about which you were just asked
by my learned friend, that is, the degree to
which he has contrition or remorse, what is
your own view, after these several interviews,
about the degree to which he does suffer
remorse for these events?
A. When he is by himself I would suspect he is
completely confused and then it depends on,
again, who he is talking to as to sort of the
image he will present to them. So if he
thinks you are a friend he will be real
friendly and if he think you are not, he will
not be. He will be aggressive.

Q. Well, assume that - to what extent is he able
to verbalise his own feelings?
A. If he trust you, a lot. If he does not he
will shut you out completely and be aggressive
towards you.

Q. Did you feel that towards the end of your own
interviews there had developed a degree of
trust.
A. Yes, a degree of trust."

17. Of particular significance in the present context are two statements in Mr Boydell's report. The first is that the appellant "discussed events surrounding the offences openly and largely unemotionally, but the actual rape and assaults he described hardly at all." The second, under the heading "Attitude to Sex" is as follows:

"Kayasith stated that he had sexual relations with
many women, and described many of them almost in
terms of rape and with contempt for the women
involved. He saw sex purely in terms of self
gratification."

18. The first of Dr Knox's reports to the appellant's solicitors, that dated 7 July 1984, was prepared following an interview with the appellant for a period of ninety minutes on the preceding day. For the appellant, reliance was placed on a paragraph towards the end of the report in the following terms:

"While your client now genuinely regrets the events
of that evening, at the time he had no sense at all
of the inappropriateness of his behaviour. Your
client in fact gained considerable pleasure from
the events of that evening in a sadistic manner."

Earlier in his report Dr Knox said:

"When questioned concerning the events of 23 April
1984 your client told me that 'What I've done has
hurt me a lot'. He further told me that he has
been angry at himself and feeling considerable
sadness as a consequence of his behaviour toward
the man and woman whom he assaulted.

Your client told me that at the time of the
incidents he had experienced considerable 'fun'
from this behaviour. He told me, 'Overpowering
them gave me a good feeling'. He further said,
'All my life I've been under people'."

Reference should also be made to the following opinion which Dr Knox formed:

"I believe that if your client's lifestyle is to
continue at the very poor level of recent years
that (sic) under future conditions of frustration
he may again act inappropriately and without
control."

19. Dr Knox's second report was prepared following four sessions of counselling with the appellant. He reported:

"I have found Mr Viengkham a very empty individual
emotionally and spiritually. He has very little
capacity to take an overview of his present dilemma
and plan usefully for the future."

20. Counsel for the appellant also referred, as some evidence of contrition, to the fact that the appellant had co-operated with the police after his arrest, that he had made a complete confession and that he had pleaded guilty to the charges both at the committal stage and when the matter came before the Supreme Court.

21. The principles which guide an appellate court in determining whether it is appropriate to interfere in the sentencing process are now well understood. Where, as here, the question is whether the sentencing judge erred in finding that, whatever degree of contrition there may have been on the appellant's part, it was not sufficient to be weighed in his favour in the sentencing process, the onus upon the appellant is a heavy one. The question whether the appellant had shown contrition and remorse for the crimes he had committed, and thus provided a foundation for rehabilitation, required a consideration and evaluation by the sentencing judge of the whole of the material before him. As Wells J. said in The Queen v. Shannon (1979) 21 SASR 442 at p 454:

"No one sign invariably demonstrates remorse or any
other state of mind and emotion: the circumstances
as a whole must be surveyed in order to reach a
safe conclusion."

22. We are left in no doubt that the sentencing judge gave appropriate consideration to all of the material before him. The evidence relating to the issue of contrition was equivocal. Under such circumstances, the opportunity of seeing the appellant give evidence in the witness-box, and of observing his demeanour, was of particular benefit to the sentencing judge in evaluating the evidence he gave. That is a benefit denied to this Court.

23. Notwithstanding the argument so ably put to the Court by Mr Salmon, who advanced all that could properly be said for the appellant, we are unable to conclude that his Honour fell into error in reaching the conclusion he did. There was ample evidence to support it.

24. We turn to the second ground of appeal. It was submitted on behalf of the appellant that the offences arose out of the same set of circumstances and were so connected in time, space and nature that to impose cumulative sentences was unfair. He referred to the following passage in the judgment of Bray C.J. in The Queen v. Carey (1975) 11 SASR 571 at p 577:

"It is, I think, now accepted that when a man is
convicted of several offences arising out of the
same facts the sentences should normally be
concurrent; when the offences are distinct they
should normally be cumulative. Of course, there is
room for debate about whether the various offences
do arise out of the same set of facts. But there
is no hard and fast rule either way: see Reg. v.
Costas (1967) 52 Cr. App. R. 115."

25. In the circumstances of this case, and notwithstanding that the events all took place within a comparatively short space of time and as a continuous course of conduct, we are satisfied that the sentencing judge was entitled to take the view that, having committed the abduction, the rapes, the sexual assaults and the robberies charged, the appellant and his co-accused embarked on a separate course of conduct designed to assist their escape from the scene and to aid in their avoiding apprehension for the crimes already committed. So viewed, it was quite properly open to the sentencing judge, having imposed sentences in respect of the crimes of abduction, rape, sexual assault and robbery, to impose sentences in respect of the charges under s. 33 of the Crimes Act, 1900 (N.S.W.) in its application to the Territory to be served concurrently as between themselves but cumulatively upon the sentences for those other offences.

26. The sentencing judge also imposed a cumulative sentence in respect of the offence of indecent assault on the young woman on the basis, not that the indecent assault charge did not form part of a set of offences consisting in the abduction, rape, robberies and indecent assault, but that the indecent assault was of itself of such a nature as to warrant a consecutive sentence. The indecent assault charge against the appellant Viengkham consisted in forcing the young woman to engage in fellatio with him on three occasions, in licking her vagina with his tongue and putting his fingers in her vagina.

27. Having considered carefully the whole of the circumstances in which the indecent assault charged took place, we are satisfied that it was open to the sentencing judge to exercise the discretion vested in him in the way in which he did. We are unable to conclude that the exercise of his discretion miscarried.

28. The third and fourth grounds of appeal may conveniently be dealt with together. Counsel for the appellant rightly called attention to the evidence before the sentencing judge showing that the appellant had had a very deprived background. The history of his family was set out at length in a memorandum prepared by Mr Peacock, the appellant's uncle by marriage, and also in Mr Boydell's report to which reference has already been made. We need not set out the material here but we have given careful consideration to the whole of it.

29. It is clear from the remarks on sentencing that his Honour had regard to the whole of the material concerning the appellant's family background and history. Notwithstanding this, his Honour considered that the appellant had to be dealt with severely and it is abundantly plain that his Honour regarded the enormity of the crimes committed on two young people who had done nothing to encourage the appellants or to provoke the attack upon them as demanding, in the public interest, very long custodial sentences. As his Honour said:

"It is enough to establish that these are offences
which must be dealt with severely for the proper
protection of society. Those who commit such
offences must be punished severely. Those who
would consider committing such offences must be
deterred by the expectation that heavy sentences
will be imposed upon them. The rehabilitation of
the prisoners and their youth and, in the case of
Mr Narayan, his contrition must all yield, in my
opinion, to the need for the protection of
society."

30. In so concluding we cannot think that his Honour fell into error. We do not regard the sentences he imposed on Viengkham for the various offences, considered separately or in their totality, as otherwise than a proper exercise of the discretionary power reposed in him. Having regard to the proved circumstances, we do not think they are out of accord with the general moral sense of the community in relation to such crimes committed in such circumstances. We are unable to agree with counsel for the appellant that the totality of the sentences passed is manifestly excessive.

31. We should, perhaps, mention that counsel for the appellant sought to gain support for his argument that the totality of the sentences was excessive by reference to statistics published by the Institute of Criminology as to the period of time that offenders sentenced to life imprisonment have in fact served. It is sufficient to say that we have not found these statistics of any assistance in this case.

32. The remaining ground of appeal concerns the fixing of the period during which the appellant was to be ineligible for parole. The sentencing judge fixed a head sentence and specified a non-parole period in relation to each charge. In R. v. Waghorn (July 1985 - unreported) a Full Court of this Court held that, in a case such as the present, the sentencing judge, having decided that the case was an appropriate one in which to specify a non-parole period, should have fixed only one non-parole period pursuant to sub-s. 7(1) of the Parole Ordinance 1976 (A.C.T.). The fixing of separate non-parole periods, therefore, discloses error.

33. Further, in fixing the non-parole periods, the sentencing judge said that he had regard to the current New South Wales legislation which allows for remissions on non-parole periods fixed by the courts. In so doing his Honour also fell into error: R. v. Paivinen (1985) 60 ALR 155.

34. Accordingly, this Court should now fix a non-parole period within the limits of a reasonable exercise of discretion such as will formulate a duly proportioned and properly balanced sentence appropriate to meet all the circumstances of the case (Anderson v. R. (1977) 19 ALR 212). The Court should specify as the non-parole period the minimum period of imprisonment to be served because this Court considers that the crimes committed call for such detention (Power v. R. [1974] HCA 26; (1973) 131 CLR 623 at p 628). Applying that principle, we fix a non-parole period of eight years.

35. The orders made by the Supreme Court should be varied accordingly. Otherwise the appeal should be dismissed.

Appeal by Rohit Narayan

36. In the notice of appeal filed on his behalf, the only grounds of appeal relied upon by Rohit Narayan were grounds related to the fixing of the non-parole period, grounds which must succeed having regard to what has been said in relation to the appeal by Viengkham.

37. However, during the course of the hearing of his appeal, the Court granted leave to the appellant to add a further ground of appeal that the sentencing judge had erred in fixing cumulative sentences.

38. For the reasons given above in relation to the appeal of Viengkham, we are satisfied that it was properly open to the sentencing judge, having imposed sentences in respect of the crimes of abduction, rape, indecent assault and robbery, to impose sentences in respect of the charges under s. 33 of the Crimes Act, 1900 (N.S.W.) in its application to the Territory to be served concurrently as between themselves but cumulatively upon the sentences for the other offences.

39. In the case of Narayan, as in the other case, the sentencing judge imposed a cumulative sentence in respect of the offence of indecent assault on the young woman. His Honour did this on the same basis as in the case of the co-accused. In his sentencing remarks his Honour drew no distinction between the nature of the indecent assault perpetrated by each of the accused; although, of course the difference between the respective head sentences reflected his Honour's view that the indecent assault by Viengkham was more serious than that of Narayan. In Narayan's case the indecent assault charged consisted in forcing the young woman to engage in a single act of fellatio with him as a preliminary to the offence of rape.

40. With all due respect to the sentencing judge, we do not think that it was appropriate to impose a consecutive sentence in respect of that single act of fellatio. Although a circumstance of aggravation, that act was truly part of the assault which culminated in the act of rape. The case of Narayan may be contrasted with that of Viengkham; the third fellatio required by the latter being a renewed assault after the rape by him had been completed. We consider that, in the case of Narayan, the sentence imposed in respect of the offence of indecent assault should have been ordered to be served concurrently with the sentences for the offences of abduction, rape and robbery. The orders of the Supreme Court should be varied accordingly.

41. We have also considered what period we should fix as an appropriate non-parole period in accordance with the principle to which we have already referred. Applying that principle, we fix a non-parole period of six years.

42. The appeal by Rohit Narayan should, therefore, be allowed and the orders of the Supreme Court varied by -

(a) setting aside the order that the sentence of
imprisonment for one year imposed in respect
of the offence against s. 76 of the Crimes Act,
1900 (N.S.W.) in its application to the
Territory be served cumulatively upon the
sentences for the offences of abduction, rape
and robbery and in lieu thereof ordering that
that sentence be served concurrently with
those other sentences; and

(b) by setting aside the non-parole periods fixed
therein and in lieu thereof fixing the period
of six years as the period during which the
appellant Narayan is to be ineligible for
parole.