Basile v The King - [2023] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0105

LAWRENCE BASILE	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	8 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 308
JUDGMENT APPEALED FROM:	DPP v Basile [2023] VCC 822 (Judge Mullaly)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Rape – Applicant a massage therapist – Digital rape of client during therapeutic session – Penetration endured for 30 minutes – Sentenced to 7 years’ imprisonment with non-parole period of 4 years and 6 months – Whether objective gravity of offending ‘serious’ – Whether sentence manifestly excessive – Whether judge engaged in two-stage sentencing in assessing objective gravity in relation to hypothesised middle range of seriousness of offence of rape – Leave to appeal refused.

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Counsel for written submissions
Applicant:		Mr C Pearson
Respondent:		Mr J Dickie
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 17 April 2023 the applicant pleaded guilty to a single charge of rape. A plea hearing on that date and on 8 May 2023 followed.
On 22 May 2023 he was sentenced to 7 years’ imprisonment with a non‑parole period of 4 years and 6 months.
The applicant seeks leave to appeal against sentence on the following grounds:
1. The sentence imposed is manifestly excessive.
Particulars:
1.1Sentences imposed for the offence of Rape have increased since the introduction of the standard sentencing regime.
1.2A sentence of 7 years imprisonment on a single charge of Rape lies wholly outside the range of sentences available for this offence.
1.3The sentence imposed is manifestly excessive having regard to:
1.3.1The guilty plea that had been entered by the Applicant.
1.3.2The fact that the Applicant had a minor and dated prior criminal record.
1.3.3The age and relative ill health of the Applicant.
1.3.4The objective gravity of the offending.
2.The Learned Sentencing Judge erred in the way in which he applied the sentencing principle applicable by virtue of to (sic) the standard sentencing regime.
Particulars
2.1The Learned Sentencing Judge impermissibly engaged in a two stage reasoning process in making findings as to where the objective gravity of this offending stood in relation to an hypothesised middle range of seriousness (sic) offence of Rape.
2.2Even if the Learned Sentencing Judge was correct in the reasoning process that was adopted in relation to the standard sentencing regime, the finding here made as to the objective gravity of the offending was a finding that was not available on the facts.
For the reasons that follow, leave to appeal should be refused.

Summary of offending

On 8 February 2021 the applicant digitally penetrated the vagina of a 36 year old woman in the course of what was expected to be a therapeutic massage in her home. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Basile v The King

Details

AGLC: Basile v The King [2023] VSCA 308
Case: [2023] VSCA 308
Decision Date: 8 December 2023

CaseChat Overview and Summary

Basile v The King is a case that concerns a challenge against the sentence imposed on the applicant, a massage therapist, following his conviction for raping a client. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive and whether the trial judge correctly assessed the objective gravity of the offence. The applicant had been sentenced to seven years’ imprisonment, with a non-parole period of four years and six months, after penetrating his client during a therapeutic session for thirty minutes. The legal issues before the court involved the assessment of the objective gravity of the offence, the appropriate sentencing range for the crime of rape, and whether the trial judge had engaged in a two-stage sentencing process in evaluating the seriousness of the offence.

The court was required to decide if the sentence was manifestly excessive and whether the trial judge had correctly assessed the objective gravity of the offence. This included evaluating the severity of the crime in the context of other rape cases and whether the trial judge had correctly applied the principles of sentencing in a single-stage process. The court examined whether the judge had properly considered the unique circumstances of the case, including the applicant's professional relationship with the victim, and whether the sentence was commensurate with the seriousness of the offending. The court's task was to ensure that the sentence reflected the gravity of the crime while also taking into account the individual circumstances of the offender and the victim.

The High Court found that the trial judge had not erred in assessing the objective gravity of the offence or in imposing the sentence. The court held that the sentence was not manifestly excessive and that the judge had correctly engaged in a single-stage sentencing process. The court acknowledged the seriousness of the offence, noting the applicant's abuse of trust and the prolonged nature of the penetration. However, it determined that the sentence was proportionate to the gravity of the offence, taking into account the applicant's background, the impact on the victim, and the need for deterrence and denunciation. The court concluded that the trial judge had appropriately balanced these factors and that the sentence was not so excessive as to warrant interference by the High Court.

The High Court refused the applicant leave to appeal against his sentence, upholding the decision of the lower court. The court's decision emphasised the importance of a balanced and contextual approach to sentencing, recognising the gravity of the offence while also considering the individual circumstances of the offender and the victim. The court's ruling underscores the principle that sentencing decisions are generally within the discretion of the trial judge, provided they are not manifestly excessive or based on incorrect legal principles.

Orders