CRIMINAL LAW – Appeal – Sentence – Rape – Appellant sentenced to eight years’ imprisonment with five years non-parole – Whether manifestly excessive – Previous good character – Good prospects of rehabilitation – Significant aggravating features absent – Appeal allowed – Resentenced to three years’ imprisonment with 18 months non-parole.
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APPEARANCES:
Counsel
Solicitors
For the Appellant:
Mr O P Holdenson QC with Mr J O’Connor
Roger O’Halloran & Co
For the Respondent:
Mr C Boyce QC
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA WALKER JA:
Introduction
On 5 August 2021, a jury empanelled in the County Court found the appellant guilty of one charge of rape.[2] Following a plea, on 22 September 2021 the trial judge sentenced him to a total effective sentence of eight years’ imprisonment with a non-parole period of five years.
[2]Crimes Act 1958, s 38(1). By virtue of s 38(2) the maximum penalty is 25 years’ imprisonment, and by virtue of s 38(3) the standard sentence as 10 years’ imprisonment.
The appellant was subsequently granted leave ‘on the papers’ to appeal against the sentence on a single ground, by which he contends that ‘[t]he sentence imposed and the non-parole period are manifestly excessive’.[3]
[3]DPP v Clarke (a pseudonym) (Unreported, Court of Appeal, Priest JA, 25 March 2022).
Having now had the benefit of full argument, we would allow the appeal; set aside the sentence imposed by the County Court; and substitute a sentence of three years’ imprisonment, with a non-parole period of 18 months. Our reasons follow.
The appellant’s offending
The appellant and the complainant, ‘CRB’, married on 10 October 2014. At the time of the offending, which occurred on an occasion between 14 and 18 February 2018, the appellant and CRB were separated, but continuing to live under the same roof. Also resident in the home were CRB’s two children from a previous marriage; a child of the appellant and CRB; and a friend of the appellant’s, ‘GF’, who had been a boarder since early January 2018.
In her sentencing remarks, the judge described the appellant’s offending as follows:
[GF] was preparing to have an interview with MatchWorks employment placement services and the complainant, who is a hairdresser, offered to cut his hair and trim his beard in anticipation of the interview.
Whilst [GF] was sitting in a chair in the ensuite bathroom and the complainant was standing in front of him, leaning slightly forward to trim his beard, you entered the ensuite and stood behind the complainant. It was summertime, and…
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.
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Details
AGLC
Clarke (a pseudonym) v The Queen [2022] VSCA 89
Case
[2022] VSCA 89
Decision Date
CaseChat Overview and Summary
Clarke, also referred to by a pseudonym, challenged his sentence for rape against the Crown. The case was heard in the High Court of Australia. Clarke had been found guilty of raping a woman and was sentenced to eight years in prison with a non-parole period of five years. Clarke appealed the sentence, arguing it was manifestly excessive given his previous good character and prospects for rehabilitation, and the absence of significant aggravating factors.
The court was required to decide whether the original sentence was manifestly excessive and whether the sentencing judge had properly considered Clarke's good character and prospects for rehabilitation. The appeal hinged on whether the trial judge had given sufficient weight to these mitigating factors in the sentencing process.
The High Court found that the original sentence was indeed manifestly excessive. The court noted that the sentencing judge had not adequately taken into account Clarke's good character and his prospects for rehabilitation, which are significant mitigating factors. The absence of significant aggravating factors further supported the appeal. As a result, the court allowed the appeal, reduced the sentence to three years' imprisonment with an 18-month non-parole period, and ordered a re-sentencing.