Director of Public Prosecutions v JSP - [2020] TASCCA 3

[2020] TASCCA 3

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Director of Public Prosecutions v J S P [2020] TASCCA 3

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  J S P

FILE NO:  2844/2019
DELIVERED ON:  27 March 2020
DELIVERED AT:  Hobart
HEARING DATE:  2 March 2020
JUDGMENT OF:  Wood J, Estcourt J, Pearce J

CATCHWORDS:

Criminal Law – Particular offences – Sexual offences – Rape and sexual assault – Mens rea, honest and reasonable mistake and recklessness – Honest mistake.

Criminal Code (Tas), s 14A.
SG v Tasmania [2017] TASCCA, 12 referred to.
Aust Dig Criminal Law [2254]

Criminal Law – Sentence – Relevant Factors – Nature and circumstances of offence – Circumstances of offence – Rape – Absence of protection during sexual intercourse and presence of others as aggravating factors.

Sentencing Act 1997 (Tas), s 11A.
Aust Digest Criminal Law [3250]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Judge acted on wrong principle – Rape – Erroneous failure to find aggravating factors.

Sentencing Act1997 (Tas), s 11A(2).
Aust Dig Criminal Law [3520]

Criminal Law – Appeal and new trial – Appeal against sentence – Appeals by Crown – Exercise of discretion – Generally – Young offender for imminent release – Purpose of appeal served by identification of error and correct sentence.

Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462; CMB v Attorney-General (NSW) [2015] HCA 9, 256 CLR 346; HT v The Queen [2019] HCA 40, 93 ALJR 1307, applied.
Director of Public Prosecutions v Karazisis [2010] VSCA 350, 206 A Crim R 14, followed.
Aust Digest Criminal Law [3528]

REPRESENTATION:

Counsel:
             Appellant:  J Shapiro
             Respondent:  G Stevens
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number: [2020] TASCCA 3
Number of paragraphs: 113

Serial No 3/2020
File No 2844/2019

DIRECTOR OF PUBLIC PROSECUTIONS v J S P

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
ESTCOURT J (Dissenting)
PEARCE J
27 March 2020

Order of the Court:

Appeal dismissed.

Serial No 3/2020
File No 2844/2019

DIRECTOR OF PUBLIC PROSECUTIONS v J S P

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
27 March 2020

This is a Crown appeal against sentence alleging specific errors in the sentencing findings and manifest inadequacy. The respondent was sentenced by Geason J on 18 October 2019 to imprisonment for two years and three months, 18 months of which was suspended for three years. The sentence was imposed with respect to two counts of rape and one count of indecent assault. The comments on passing sentence are set out in full in the reasons of Estcourt J, which I have had the advantage of reading.
I have also had the advantage of reading the reasons of Pearce J and I agree with his Honour's treatment of the grounds of appeal and his Honour's identification of three specific errors. There is a point concerning the operation of s 14A of the Criminal Code which assumed some significance in the submissions advanced by the appellant, and I wish to make some brief observations for the purpose of clarifying my views.
I agree with Pearce J that, independently of the operation of s 14A, recklessness is inconsistent with the existence of honest belief about consent. Section 14A provides:
"14A Mistake as to consent in certain sexual offences
(1) In proceedings for an offence against section 124, 125B, 127 or 185, a mistaken belief by the accused as to the existence of consent is not honest or reasonable if the accused —
(a)was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or
(b)was reckless as to whether or not the complainant consented; or
(c)did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act."
Counsel for the appellant argued that the finding of the learned sentencing judge that the respondent held an honest belief was contrary to the deeming effect of s 14A which should have been applied by the sentencing judge. Counsel relied upon SG v Tasmania [2017] TASCCA 12, at [8] and at [43]. However, I am unpersuaded that in any of the three sets of circumstances provided for, the section operates to negate the element of honesty, particularly with respect to the sentencing task.
Certainly, the section states that a mistaken belief by the accused as to the existence of consent is not honest or reasonable in those circumstances. However, it is plain in my view that in the context of s 14A, what is meant is that such a mistaken belief is either not honest or not reasonable in the scenarios identified. In brief, my reasons are as follows. This section of the Code is concerned with criminal liability and the question of guilt and the ambit of a defence of honest and reasonable mistaken belief. The nature of the defence is that if the prosecution proves beyond reasonable doubt that the belief was not reasonable or not honest, then the defence is not available. A mistake is only exculpatory if it is both honest and reasonable. Therefore, it is immaterial whether such a belief is either not honest or not reasonable in the various scenarios identified. It would be superfluous for the prosecution to prove not only that the defence did not apply but that the accused did not have such an honest belief. Further, I do not see this provision as having any role in relation to sentencing. Even when the defence has been disproved because it was not a reasonable belief, an honest mistaken belief in a state of affairs bears on culpability and is relevant to the sentencing process.
In this appeal, the effect of s 14A does not have a bearing on whether the learned sentencing judge made specific errors in his findings. The learned sentencing judge found that the respondent held an honest belief as to consent which was unreasonable, found that the respondent was not reckless, and did not make findings which raised any of the other scenarios. There was no factual finding by the learned sentencing judge giving rise to the deeming provision.
I would prefer not to express a view about whether an honest belief in consent is mitigatory or an absence of an aggravating factor and consequently, the burden of proof. It is not necessary to decide this point, in my view. Even if the respondent had the burden of proving such a belief on the balance of probabilities, it was reasonably open to the learned sentencing judge to make that finding on the evidence.
Other than these two incidental points, I agree with the reasons of Pearce J regarding the specific errors he has identified and I agree that these errors could have affected the sentence that was imposed. The trial judge's sentencing discretion thereby miscarried. There is no need to consider the ground of manifest inadequacy and the question of whether the sentence was lenient to the point of error. The specific errors vitiate the sentence. As explained in Kentwell v The Queen [2014] HCA 37, 252 CLR 601 at [35], once specific error has been found, the Court is to exercise its own independent sentencing discretion in that it is required to form its own view of the appropriate sentence, rather than confining itself to the determination of whether the identified error infected the sentence below.
Generally, the Court of Criminal Appeal's determination of the appropriate sentence is determined on the material that was before the sentencing judge, the factual findings that have not been successfully challenged, and any relevant information of the offender's post-sentence conduct: s 402(4A) of the Code, see DL v The Queen [2018] HCA 32, 92 ALJR 764 at [9]; Kentwell at [43]; Betts v The Queen [2016] HCA 25, 258 CLR 420 at [11].
I agree with Pearce J at [106] as to his identification of key factual findings that formed the basis of the sentence. I also agree with his Honour that these findings distinguish this case from most sentences for rape in this State. Further, the offender's youth is a material sentencing factor. I agree particularly with his Honour's statement of principle at [108]:
"There was a distinct need to impose a sentence which gave weight to general deterrence, denunciation and vindication of the victim. As to general deterrence, there was a need to uphold the policy of the consent and mistake provisions of the Code, to make clear to men, especially young men, their criminal responsibility for sexual acts committed against a person so affected by alcohol or drugs as to be unable to freely agree."
In re-sentencing at appeal stage, there are matters that I would take into account which have occurred since the respondent was sentenced: s 402(4A) of the Code. I decline, at least for the moment, to consider the question of the sentence I would impose as a re-sentencing exercise. Before reaching that stage of re-sentencing, the appellant has a second hurdle to overcome.
In the case of a prosecution appeal, the Court has a residual discretion to dismiss an appeal despite a finding of appealable error. The discretion is residual in the sense that its exercise does not fall to be considered unless the appellant has demonstrated that the sentence pronounced by the court turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust: CMB v Attorney-General for NSW [2015] HCA 9, 256 CLR 346 at [33] per French CJ and Gageler J, and the cases cited at footnote 35; and at [54] per Kiefel, Bell and Keane JJ. The discretion does not fall to be considered unless that threshold of specific error or manifest inadequacy is met.
In Tasmania, the appellant's right of appeal is found in s 401(2)(c), and s 402 governs both Crown and defence appeals generally. The discretion is not expressly provided for in the Code, but derives from established common law principles with regard to Crown appeals: R v Dowie [1989] Tas R 167 at 180 per Underwood J (as he then was); Everett v The Queen (1994) 181 CLR 295. There were amendments to s 402 in 2008 and more recently in 2013 that impinged on these common law principles with regard to Crown appeals. Section 402 in its present form provides:
"402     Determination of appeals
(1)     ...
(4)     On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
(4A) The Court, on hearing an appeal against a sentence passed on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor), may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard.
(4B) Despite subsection (4A), the Court, in passing another sentence under subsection (4), must not take into account the element of double jeopardy involved in the person being sentenced again, in order to pass a less severe sentence than the Court would otherwise consider appropriate."
This Court has considered the effect of the amendments in 2008 and 2013 and particularly, the implications for the discretion. It is established that the residual discretion has survived the amendments, and that this Court retains a discretion to dismiss a Crown appeal: Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26 at [51]; Director of Public Prosecutions v Swan [2016] TASCCA 9, 26 Tas R 32 at [8] and [27]; DPP v Harington [2017] TASCCA 4, 27 Tas R 128 at [96]; Director of Public Prosecutions v Harwood (No 2) [2019] TASCCA 13 at [55]. The amendments in 2008, had the effect that the Court was precluded from taking into account general double jeopardy considerations in the sense of "presumptive stress and anxiety" involved in the respondent being sentenced again but otherwise, the discretion to dismiss was left undisturbed: Chatters at [51]; Harwood at [54]-[55]; Green v The Queen [2011] HCA 49, 244 CLR 462 at [25] and [26]. In Director of Public Prosecutions v Karazisis [2010] VSCA 350, 206 A Crim R 14, Ashley, Redlich and Weinberg JJA considered the impact of similar amendments in Victoria and concluded that:
"[119]It follows that, in our opinion, save for the abolition of the element of double jeopardy as a factor that can be taken into account in dealing with Crown appeals, the new provisions do not interfere in any way with the Court's residual discretion to dismiss such appeals, even if satisfied that the sentence below was inadequate. Nor, save for the abolition of double jeopardy, do these new provisions interfere with the Court's discretion in imposing a fresh sentence if the appeal is allowed. That conclusion derives both from the construction of the Act, and the long tradition in the common law of viewing Crown appeals as fundamentally different from appeals by convicted persons."
More recent amendments in 2013, giving rise to s 402 in its present form, are regarded as not further impinging on the discretion or limiting it in any other respect: Swan at [8] and [27] per Pearce J with the agreement of Blow CJ and Wood J.
I turn now to the principles that guide the exercise of the discretion. The nature of the discretion to dismiss needs to be highlighted. The onus is not on the respondent to demonstrate why the discretion should be exercised in his favour. The appellant must negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]:
"The Crown submissions correctly acknowledge that if this Court is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appealable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised."
See also CMB (above) at [33]-[34], [56] and [66].
In exercising the residual discretion, a relevant consideration is the primary purpose of a Crown appeal against sentence, namely to state the principle to be applied in future appeals to provide guidance to sentencing judges: HT v The Queen [2019] HCA 40, 93 ALJR 1307 at [20]; CMB at [55] and [69], citing Green at [1]. Here, in this particular case, the precedential value of the decision lies in the correction of specific error. This is a case where beyond the correction of specific error, the guidance provided to sentencing judges would be limited. The limited guidance provided by a particular case is acknowledged to be a proper basis for the exercise of the residual discretion: HT at [51] and Green at [2]; CMB at [37].
There are other considerations that may provide a basis for the exercise of the discretion to dismiss the appeal. It has been said that it is impossible to lay down any exhaustive statement of the scope of the residual discretion, and impossible to be unduly prescriptive as to how it should be exercised in any given case: Karazisis at [100]. The discretion is exercised to protect a convicted person against unfairness or injustice: R v Holder [1983] 3 NSWLR 245 at 255-256 per Street CJ. Essentially, the court may have regard to circumstances that would mean that if the appeal is allowed, the decision will occasion injustice. As stated by French CJ, Crennan and Kiefel JJ in CMB at [43]: "The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."
Factors that have identified as relevant to an exercise of the Court's discretion include parity, the totality principle, delay in the appeal process, fault on the part of the Crown, imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation: Green at [2] and [43]; CMB at [69] and [104], Karazisis at [103]–[115].
In assessing the cost to the individual, the court is engaged in an assessment of the respondent's subjective circumstances: Holder at 255-256. In the case of a youthful offender the interruption to his rehabilitation carries particular weight. "Crown appeals are not intended to detract, in any way, from the importance of this vital sentencing factor": Karazisis at [111].
It is observed that many of these factors such as delay between the sentencing of an offender and the hearing of the Crown appeal, and the release or imminent release of the respondent, will have relevance to the re-sentencing task if the residual discretion is not exercised to dismiss the appeal: Karazisis at [106]. In Harwood, factors such as delay, that the respondent had completed her sentence, and that returning her to prison would be unduly punitive and disrupt and jeopardise her efforts at rehabilitation, were taken in to account as applicable to the question of re-sentencing: [55]. Actual stress and anxiety were identified as a factor potentially relevant to re-sentencing: [54].
In determining whether or not to exercise the residual discretion, it is open to the appellate court to take into account material available at the time of the hearing of the appeal: s 402(4A) of the Code. The appellate court is not required to put itself back in the position of the sentencing judge at the moment of passing sentence. At the hearing of this appeal submissions were made by the respondent's counsel with regard to re-sentencing and the residual discretion particularly concerning matters that have occurred since the respondent was sentenced. The Crown did not take issue with these submissions and the information provided.
The respondent was sentenced on 18 October 2019 to two years and three months' imprisonment backdated to 1 October 2019 when he had been remanded in custody. Nine months of the term was effective and the balance was suspended for a period of three years. The notice of appeal was filed on 1 November 2019, within time, on the last day of the 14 day time limit. The respondent has been of good behaviour in prison and received notice that he will receive full remissions of three months with respect to his sentence as a result of his good conduct. If this Court does not interfere with his sentence he will be released at the end of this month, on 30 March. He has served most of his sentence and his release is imminent.
The respondent is now 19 years of age. He has no relevant prior convictions and this is his first experience of imprisonment. After sentence, he spent the first three months at the Hobart Reception Prison. Unfortunately, there were no courses or educational activities available to him at that prison. In that period, the inmates experienced "lockdowns" and were confined to their cells for long periods of up to six hours. On days when there were lockdowns, visits were cancelled and telephone calls were routinely cancelled. During these periods, he was not able to maintain contact with his family and he found that to be exceptionally troubling and a difficult experience for him. The sentencing judge had been told that the respondent and his family are very close and they provide him with support.
After three months, he was moved to the minimum security facility at Risdon prison. He volunteered to participate in a sex offenders' course and has had approximately six sessions with a counsellor. Recently, this course has stalled as the counsellor has not been available. As a result of his good behaviour, he has a position of trust within the prison as a wardsman. Given his age and that he is in a situation where he is associating with much older inmates, he has found his experience in this facility exceptionally unpleasant and the continuing separation from his close family difficult.

At the time of sentencing, the learned judge had regard to the respondent's youth (he had just turned 17 at the time of offending), his prior good character, his supportive family and good work history. The learned sentencing judge concluded that he was unlikely to reoffend. This finding is not challenged. Noting as well the findings in relation to culpability, this crime was not the product of an aberrant character or attitudes.
Realistically, his prospects of reform and the positive steps that the respondent has taken may well be jeopardised by re-sentencing. Particularly, when his release date is imminent. The difficulties for him associated with his ongoing separation from the positive influences of family and disconnection with society may increase exponentially. He has made the most of the counselling available to him and it is likely that continued incarceration would be a period of marking time and acclimatisation to his environment and familiarisation with his prisoner cohort without any new offerings of rehabilitation courses or counselling. He would lose the reward he has gained for his good behaviour in the past six months which is not a constructive message for a young person.
This is not an appeal where the Crown is at fault. The appeal was brought within time but the fact remains that it was heard and determined near the end of the effective part of the respondent's sentence.
The primary purpose of Crown appeals has been achieved in this case by the identification of specific error and by the statements of principle articulated in the judgment.
I add that any guidance offered to sentencing courts by this Court proceeding further, by allowing the appeal and re-sentencing this offender, would be limited. This was a difficult sentencing exercise arising from the need to balance the distinguishing subjective considerations and the competing matters of public interest and protection of victims. As mentioned, it is distinguishable from most cases of rape in which offenders are aware that there was no consent, or do not have an honest belief in consent.
I consider, having regard to the combination of factors I have referred to, that the justice of the case lies in dismissing the appeal. The appellant has not shown that the residual discretion should not be exercised.
If I had not taken the view that the residual discretion should be exercised, the subjective factors and the circumstances of the respondent now would lead to a determination under s402(4) of the Code that a different sentence is not warranted in law. The respondent undoubtedly received a very lenient sentence; objectively this was a serious crime for the reasons highlighted by Pearce J. However, it is also the case that the respondent did receive substantial punishment involving effective as well as suspended imprisonment. There is a fundamental difference between a wholly suspended term of imprisonment and a term that requires a period of full-time incarceration. For this young man, who has never been to prison, it is a lengthy period of incarceration. He is due for release. In this particular case, his youth and legitimate concerns not to jeopardise his rehabilitation would weigh against re-sentencing and imposing a more severe sentence. Taking into account all relevant matters, including the events that have occurred since the sentence was imposed, a more severe sentence is now not appropriate. I would dismiss the appeal.

File No 2844/2019

DIRECTOR OF PUBLIC PROSECUTIONS v JSP

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
27 March 2020

The appeal

This is a Crown appeal against sentence on grounds of alleged specific errors and manifest inadequacy.
The principles relevant to Crown appeals were adumbrated recently by Pearce J in Director of Public Prosecutions v Fletcher-Jones [2019] TASCCA 18 at [4]. The principles relevant to appeals against manifest excess or inadequacy were set out by his Honour in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [10]. The role played by specific errors alleged in conjunction with a claim of manifest excess was explained by his Honour in Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313 at [17].
Following his trial before a jury, the respondent, on 18 October 2019, was convicted by Geason J of two counts of rape contrary to s 185(1) of the Criminal Code and one count of indecent assault contrary to s 127(1) of the Code. He was sentenced to two years and three months' imprisonment, 18 months of which was suspended for a period of three years on condition that the respondent commit no offence punishable by imprisonment during that period.

The comments on passing sentence

Notwithstanding they are lengthy, it is appropriate in this case to set out the learned sentencing judge's comments on passing sentence in full. They were as follows:
"Mr P, you have been found guilty by a jury of two counts of rape and a single count of indecent assault.
Each count arises out of a single episode which occurred at a party at Carlton on 21 May 2017.
You were at that party and you were drinking alcohol. The complainant was also at the party. She was consuming alcohol too. The evidence is that she was drinking vodka, 'neat' from a bottle. She had consumed enough to be intoxicated and that fact is borne out by evidence of her demeanour from a number of witnesses. During the course of the evening, at least on intermittent occasions, there appears to have been some interaction between you both, and some of that involved kissing. At some point later in the evening you invited the complainant to go with you to another area of the property away from the party. You initiated that, but there is no suggestion that you forced the complainant to go there or that she went there other than voluntarily. You began kissing one another; consensual intimate behaviour followed, behaviour that I have no doubt aroused your desire to take matters further with her to the point where these offences were committed.
You acted on those desires by having sexual intercourse with her. This occurred as follows. An initial act of vaginal intercourse followed by digital penetration of her anus whilst she was on her stomach and then a second act of vaginal intercourse. All of this occurred, the jury has found, without her consent.
It is the digital penetration that constitutes the crime of indecent assault. As to that, I accept that the penetration was to the least degree and I observe that you desisted when you were asked to do so.
It is difficult to put a duration to this behaviour because the evidence is unclear in the sense that it is not precise. Estimates are based more on impressions than anything else and time estimates are usually unreliable. I can do no more than conclude that this offending occurred for long enough for the three acts I have described to be completed, noting the evidence that the complainant was in two different positions during the course of that conduct.
The offending conduct was interrupted by the arrival of other people to the area to which you had gone and it stopped at that point.
I observe that you did not ejaculate and the complainant had requested that you not do so.
The Crown submits that there are four aggravating features of this conduct. First, that this offending involved a breach of trust. I reject that submission. There was no relationship of trust in the relevant legal sense or at all. Second, in relation to the evidence of you placing your hand on the complainant's mouth during the conduct, the subject of the charges. I accept that this is conduct aggravates your offending, though I also accept that it was of very short duration and I find that it occurred at the point when others had come onto the scene. But it did prevent the complainant from saying anything she may have wanted to say to attract the intervention of those people. The third matter is that the sex was unprotected. There is no suggestion of any disease, and I have commented that you did not ejaculate. In my view, the fact that the sex was unprotected is not an aggravating factor. There is a fourth matter described as aggravating and that is that your conduct was predatory, a submission based on a remark earlier in the evening with which I will deal in a moment because, in my view, it is relevant to the issue of your state of mind at the time of your offending.
Section 11A of the Sentencing Act is not ignored by the Court in assessing the criminality of this conduct. I have identified the view I take of the submissions made by the Crown as to aggravating matters. There are no other matters in s 11A, though that list is not exhaustive, which are relevant in this case. I also formally record for the purposes of addressing that provision that this is not a case where, in my view, your good character or lack of previous convictions was of assistance to you in the commission of the offending.
Consistently with the verdicts I find that the complainant was, by reason of her intoxication, unable to give her free consent to any of these sexual acts. In that situation the issue of your state of mind emerges as a relevant matter. It is submitted to me that I should sentence you on the basis that you were reckless as to the matter of consent, rather than that you entertained an honest belief as to the complainant's consent which the jury found to be unreasonable, as was submitted to me by your counsel. It is put by the State than an honest but unreasonable belief in consent would be inconsistent with the way the Crown case was presented. It submits that the case was run on the basis of recklessness and that is the way it was opened to the jury and closed and the end of the trial. It also refers to that evidence I touched upon a moment ago, that you had expressed a wish to have sex with the complainant to at least one other person some time earlier that evening. It says that that evidence supports its conclusion as to recklessness. I should add, before I deal with that issue, that it is not entirely clear to me that a jury would necessarily appreciate the differences between a reckless attitude to consent and an honest but unreasonable belief in consent, though I do not rely on that observation for my conclusion.
The difference between the two bases goes to the objective seriousness of your offending and that is a matter which is relevant to the penalty the Court imposes. I have reviewed the evidence and I do not think the way the Crown urged the jury to view the evidence is ultimately a sound basis for resolving the matter. First in relation to the statement that you would like to have sex with the complainant, made at least to Mr V earlier in the night, whilst I am satisfied that was said to him I am not persuaded that that evidence is relevant to your state of mind at the time of the offences, and I am not assisted by it for my determination of this point. I consider it to be a crudely expressed statement of desire, not a statement of intention to act upon that desire unlawfully, come what may, to force yourself onto the complainant whether she wanted you or not. In my view, it is properly characterised as an inappropriate statement borne of youthful immaturity fuelled by a little alcohol. As such, I do not treat it as evidence of predatory behaviour. The decisive matter on this point as far as I am concerned is the uncontested evidence that you stopped your actions, the subject of count two, when you were asked to do so. That fact evidences your awareness of the need for consent and the requirement to desist when it was made clear to you that the activity was not consensual. In my judgment that awareness is more consistent with an honest state of mind rather than one of reckless indifference to the matter of consent. Indeed I consider it to be wholly inconsistent with reckless indifference to that matter.
The jury also heard your evidence. You gave evidence of your belief in consent and you were not shaken in cross-examination on that point. They also accepted the evidence that the penetration, the subject of count two, was digital and not penile as alleged by the State. That was also your evidence. It is my conclusion that the jury, having heard all this evidence, has concluded that whilst you honestly believed in consent, your belief was quite unreasonable and having so concluded they were satisfied beyond reasonable doubt that the sexual intercourse which occurred satisfied the Code definition for rape and that the digital penetration was an indecent assault in accordance with the Code definition thereof.
I am of the view that they have determined the matter on the evidence rather than the State's characterisation of the matter in its addresses. In my view, the evidence speaks louder than those words (by the Crown in their opening and closing address) and I sentence you on that basis.
The State submits that a significant sentence is required. By significant sentence I interpret it to mean a significant term of imprisonment. Those submissions have at their core the proposition that the seriousness of the offending prevails over considerations applicable by reason of your youth. There is authority to the effect that in circumstances where the offending is grave, youthfulness though still relevant effectively takes a backseat to other sentencing considerations, such as personal and general deterrence and the need for vindication of the victim. Your counsel submits that while all of the sentencing considerations are plainly relevant, your youth and your otherwise good character should be afforded pre-eminence, with the result that any term of imprisonment imposed should be wholly suspended.
There is no doubt in my mind that this offending is serious and the Court considers the need to punish you and to vindicate your victim is a very important matter in fixing sentence. But the Court also considers that your youth is equally relevant. I do not relegate it to a backseat in relation to other sentencing considerations. A mature response requires a sentence which affords to you an opportunity for rehabilitation; a sentence which recognises these offences are a product of your youthfulness and the poor judgment of youth. Aside from the very important obligation to acknowledge your victim and her circumstances, society has no greater interest than that you should become a good citizen.
I consider this to be a serious but not the most serious example of this type of offending. I pause to observe that that is a legal observation and does not diminish the seriousness of this matter from the complainant's perspective or my assessment of the seriousness of the matter to her. I also pause at this point to say that sentencing, though it addresses different heads of consideration, is not a science, it is not a mathematical exercise involving the Court stacking together the various sentencing principles to arrive at a sentence. It is a process of 'instinctive synthesis' of relevant matters. The relevant sentencing considerations are these: personal deterrence, general deterrence, your youth, denunciation of your crimes, vindication of your victim and protection of the public.
Personal deterrence is directed at discouraging you from engaging in similar behaviour in the future. I consider that you are unlikely to reoffend. I discern that you are of sufficient intelligence to have learned from this experience.
General deterrence requires a sentence which sends a clear message to others that this sort of conduct will meet with a strong response from the Courts: one which will cause them to pause before falling into similar behaviour. Taking advantage of a vulnerable female is unacceptable. The community demands that it should be punished when it judges that it has occurred and the jury in your trial has so judged.
Your youth is a matter I have addressed. My sentence will reflect those considerations as matters of significance and pay appropriate regard to the force of the submissions made on your behalf by Mr Stevens.
In relation to protection of the public, I do not think that you will reoffend and I consider this to be a reasonable conclusion based upon the nature of the offending and to be the near inevitable result of this experience. This will operate on your consciousness for a long time. As such, I think that the risk to the public that you present is not a matter that assumes any great significance in sentencing.
It is the need to vindicate your victim that is the matter that requires careful consideration and of course, appropriate weight. I have read and have regard to her victim impact statement. It is testament to the fact that this episode has damaged her. I cannot ignore that. As the result of this offending it has been necessary for her to undertake counselling, a step taken after a considerable period of withdrawal from family and social life. She suffers anxiety. She described suffering self-esteem issues. All of the consequences of this offending were for her extremely serious.
Vindication of a victim of crime is not an exercise in revenge but it is an integral part of sentencing. That is because through the sentencing process the Court speaks for the community, and the community through the jury has spoken. Vindication of the victim denounces your actions. It upholds the victim - her physical and mental being. It recognises and responds to the consequences for her, of your crimes.
I turn to your personal circumstances:
You clearly have had a good upbringing. You have a good school record, a good work history and some sporting achievements. I have read and taken account of the character references provided to me. I am satisfied that this conduct is out of character, a conclusion reinforced by those character references. I take account of the fact that you have waited nearly two years to have this matter resolved. That has weighed heavily on you as borne out by the counsellor's report. You appear without prior conviction of any type. I take account of the fact that you have committed no offences since, a matter that I regard as relevant to my assessment of future risk. I also take into account that any term of imprisonment will be a more difficult prospect for you than it may be for many. Until now you have lived at home, and you have enjoyed the care and the love of your family. They have been here with you throughout this trial. This support will be important to you in the future just as it has been in the past. I sense that it will be there and you should draw upon it. It is possible for you to be a useful member of this community notwithstanding this episode.
Having regard to all of these matters, my findings, the objective seriousness of the offending, the jury's verdict, the relevant sentencing principles that I have outlined, I have determined that a sentence of imprisonment is required. I have determined too, that although there are three distinct acts, they arise from one episode and a global sentence is appropriate.
Mr P, I sentence you to two years and three months' imprisonment. I turn to the question of suspending all or part of that sentence. Having determined that a term of imprisonment is appropriate, before requiring that it is to be served I must be satisfied that it is not appropriate to suspend that sentence. I will say that this has caused me great difficulty. On the one hand I am satisfied that you acted on an honest but unreasonable belief as to consent, and that you are unlikely to reoffend. You were 17 when you committed these crimes and you are now 19. You have no criminal record and a good history. You have come from a good home and have support and you have tasted incarceration albeit briefly whilst on remand. At the same time the vindication of the victim and the need for general deterrence require a strong response from this Court. The crimes for which you are convicted are serious. They have had a profound negative effect on the complainant. The sentence must acknowledge that. Young people at parties where there is alcohol must understand that there are limits on their behaviour. That consent requires active steps to ensure that it is present and a realisation that intoxication is directly relevant to another's capacity to give that consent.
Weighing those matters carefully and reflecting on this case for some time, I have decided that it would not be appropriate to suspend the whole of the sentence. Rather I have decided that a proper balancing of matters requires that you serve 9 months of the sentence that I have imposed, backdated to when you went into custody. The balance of the sentence is suspended for 3 years on condition you commit no offence punishable by imprisonment in that time. The nett effect of the sentence is that you will be released in a bit over 8 months, because I have allowed for the time that you have already spent in custody. The balance of the sentence is suspended and provided you commit no offences during that time that will be the end of the matter.
In relation to the register of sex offenders pursuant to the terms of s 6, if I am satisfied that you do not pose a risk of committing a reportable offence in the future I need not place your name on the register. I am so satisfied. I have decided not to place your name on the Register."

The grounds of appeal

There are four grounds of appeal. They are as follow:
"1 The learned sentencing judge erred in fact and/or in law by finding that the respondent held an honest belief that the complainant was consenting, such finding being inconsistent with the jury's verdict, not reasonable open on the evidence and contrary to section 14A of the Criminal Code.
2         The learned sentencing judge erred in fact and/or in law by failing to find that the unprotected nature of the sexual intercourse was an aggravating factor.
3         The learned sentencing judge erred in fact and/or in law by failing to take into account the fact that the crimes occurred in whole or in part in the presence of people other than the complainant as an aggravating factor.
4         The sentence was manifestly inadequate in all the circumstances of the case."
I propose to deal first with ground 4 as, if the sentence is manifestly inadequate when all factors relevant to sentence are taken into account, then it may be unnecessary to examine the specific errors alleged in grounds 1–3.

Was the sentence manifestly inadequate?

Mulholland (above), was an appeal to this Court, involving a single count of rape in an internet dating setting. The 31 year old defendant, who had no significant record of prior offending, was sentenced to three and a half years' imprisonment. Pearce J, with whom Tennent and Brett JJ agreed, observed at [11]:
"The crime of rape is always serious. It involves infliction of violence and degradation on victims. It generally calls for a sentence reflecting the need for punishment, denunciation and retribution, providing the victim with appropriate vindication and protecting the public. Rape is a crime which also ordinarily requires a sentence which seeks to deter others from similar conduct. In Sentencing in Tasmania, 2nd ed, par 11.409, Professor Warner noted that a single count of rape ordinarily attracts a sentence of imprisonment of three to four years, and that a sentence of five years or more is appropriate for serious cases. Her text was cited with approval by this Court, albeit in a slightly different context, in Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418, per Slicer J at 426 [14], and Evans J at 442 [37]. According to the Sentencing Advisory Council Research Paper on Sex Offence Sentencing, April 2013, between 2001 and 2011, 92% of sentences for a single count of rape were immediate custodial sentences. The minimum term for a single count of rape was 12 months' imprisonment and maximum five years' imprisonment. Nothing said by this Court in Baldock v Tasmania [2015] TASCCA 3, an appeal dealing with a sentence for a very serious single instance of rape, suggests error in the length of the sentence now under appeal. On the information available to me there are numerous examples of longer sentences for single instances of rape. The sentencing judge was not bound to any particular range, but the material to which I have just referred gives some indication about whether the sentence he imposed reveals error or misapplication of principle."
In that case Pearce J approached the factual matrix as I would the present case. His Honour said at [12]-[14]:
"[12]    Some of the features of more serious examples of the crime of rape were not present in this case. There was little violence over and above the force necessary to commit the rape, no weapon was used, the appellant had no previous convictions for rape or other serious offences of a violent or sexual kind, the victim was neither very old nor very young, was not subject to any other serious form of sexual indignity or perversion, and the rape was not repeated or prolonged. Conversely, there were features of the crime which called for a substantial term of imprisonment. The appellant imposed his will on the complainant, despite her physical resistance and verbal protests, for his sexual gratification. He ran the risk of causing pregnancy and transmitting disease. The crime was committed in the victim's home. The appellant knew that her 6 year old daughter was in bed asleep. That is relevant for two reasons. Firstly, although the child was not directly exposed to the crime, she was exposed to its immediate aftermath and to the longer term effects on her mother. Secondly, knowledge of the presence of her child in the house would undoubtedly have added to the trauma to which the complainant was exposed.
[13]     As is invariably the case for victims of rape, the complainant was greatly affected. Her victim impact statement shows that she felt humiliated and powerless. She had great difficulty reliving the event through the police investigation. The stress was greatly exacerbated when she was told that the appellant had herpes. She has since suffered from nightmares and lack of sleep. She already had emotional and psychological difficulties because of family tragedies. She used alcohol as a method of trying to cope with those things and had difficulties with self-harm. After this incident she was admitted to a psychiatric unit a number of times in relation to self-harm and suicidal thoughts. She finished her job a few weeks before the crime but, as a result of the crime, was not able to work again for about seven months.
[14]     The appellant was not entitled to the mitigation a plea of guilty would have entailed. A plea of guilty is ordinarily a factor pointing to a reduction in sentence, particularly for sexual crimes. The complainant was not spared from having to give evidence, the consequent additional trauma of having to recall and relive the crime committed against her, and the embarrassment and humiliation of having to give a public account of events and subject herself to cross-examination."
As with Mullholland, there were to my mind some aggravating features of the crime of rape that were absent in the present case. They include, that there was little violence over and above the force necessary to commit the rape and the brief placing by the respondent of his hand over the complainant's mouth, that no weapon was used, that the respondent had no previous convictions for rape or other serious offences of a violent or sexual kind, and that the rape while repeated and thus not fleeting, was nonetheless a single course of conduct and was not prolonged.
However, like Mulholland there were features of the crime which called for a substantial term of imprisonment. The complainant was young and was intoxicated. The respondent was, at best, unreasonable in his attention to the question of the existence of the complainant's consent to his desire for sexual gratification. As a lowest common denominator, the jury verdict cannot be interpreted otherwise, whatever pathway to guilt may have been adopted by individual jurors. The respondent ran the risk of causing pregnancy and transmitting disease by virtue of the fact that the sex was unprotected. And it must be remembered that even assuming that the respondent had a means of certain knowledge that he was disease free, the complainant did not know that. Exposing the complainant to those risks is an aggravating factor, notwithstanding that in the result that occurred, the appellant did not ejaculate and did not have a sexually transmissible disease. That the complainant was not impregnated and did not contract disease as a result of unprotected sex establishes only the absence of further aggravating factors. The crime was committed in close proximity to and in the view of others who were present, at least four of whom gave evidence that they were watching what was occurring. And the rapes were accompanied by the sexual indignity of the indecent assault, albeit that the act of digital anal penetration was desisted in by the respondent when the complainant requested.
And again, as in Mulholland, the respondent was not entitled to the discount on an otherwise appropriate sentence a plea of guilty and expressed remorse would have entailed. As Pearce J put it in Mulholland at [14], "the complainant was not spared from having to give evidence, the consequent additional trauma of having to recall and relive the crime committed against her, and the embarrassment and humiliation of having to give a public account of events and subject herself to cross-examination".
Thus, leaving aside the question of the respondent's youth, I am of the view that error would be established and inadequacy plainly apparent in a head sentence of two years and three months' imprisonment. I would regard the sentence as unreasonable or plainly unjust unless it can properly be said that, notwithstanding the serious nature of the crimes, the respondent, as a youthful offender, was entitled to a more lenient sentence than would ordinarily be imposed.

The respondent's youth

In TAP v Tasmania [2014] TASCCA 5, Porter J with whom Blow CJ and Wood J agreed, said at [23]-[29]:
["23]    It is convenient to deal with this ground first. Counsel for the appellant in this Court submits that when determining penalty, the sentencing judge ought to have been guided by the principles which are apparent in the Youth Justice Act. Counsel referred to the objectives of the Act stated in s 4, and to the general principles of youth justice set out in s 5.
[24]     There is no need to set out those provisions. Those relevant to sentencing restate the relevant principles concerning the sentencing of juvenile offenders which have long been established by the courts. The principles are that the rehabilitation of the offender is always an important, if not the dominant, consideration, and that any sentence should be tailored with greater emphasis on the welfare of the youth; the emphasis on rehabilitation is consistent with the broader sentencing goal of community protection: LWR v Lusted (2009) 19 Tas R 233 at [26] citing JA (A child) v State of Western Australia [2008] WASCA 70 at [29]-[30].
[25]     Counsel for the appellant made the point that had the appellant sought to be dealt with by the Youth Justice Court for the 10 non-prescribed offences of indecent assault charged in the youth justice complaint, the principles and objectives of the Youth Justice Act would have applied to him by virtue of s 29(2) of that Act. That provision requires the Court to take into account the objectives and principles respectively specified in ss 4 and 5.
[26]     It is true that the justification for the principles governing the sentencing of youthful offenders is that such offenders are not able to appreciate the nature and extent of their criminality. They are more likely to make ill-considered and immature decisions. At the same time, counsel for the appellant accepts, by reference to R v Tran (2002) 4 VR 457 at [14], that the importance of rehabilitation of a youthful offender is usually far more important than general deterrence, but that there are cases in which just punishment and general deterrence become at least equally important.
[27]     As to the moderation of the emphasis given to rehabilitation, and the corresponding increase in the prominence given to general deterrence and retribution in cases of serious crime, I refer also to the detailed discussions by McLellan CJ at CL in R v Carroll [2008] NSWCCA 218 at [8], and by Redlich JA in Azzopardi v The Queen (2011) 35 VR 43 at 53–57 [30]-[44]. There is no doubt at all that, in short, where the level of seriousness in the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth.
[28]     In this case, the appellant was sentenced about six years after the last of his offending conduct. The correct approach to sentencing an adult for offences committed as a juvenile was discussed in R v Boland (2007) 17 VR 300. At 304 [16], Nettle JA with whom Ashley and Dodds-Streeton JJA agreed, said:
'[Previous decisions] recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity.'
[29]     That returns the focus to the level of seriousness of the crime, and the importance or otherwise of objectives of sentencing other than rehabilitation."
In short, as Porter J observed, where the level of seriousness in the relevant criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth. I do not see the present case as one where the respondent was not able by reason of his age to appreciate the nature and extent of the criminality of his conduct. And to my mind, in this case, considerations of rehabilitation do not loom large as a sentencing factor, given the respondent's previous good character and prospects, and the fact that he is unlikely to offend again. However, given the serious nature of the crime of rape, whatever the relevant considerations of youthful offending may be in this case, they should be subjugated in my view to the sentencing objectives of general deterrence, denunciation and vindication of the victim. No leniency on account of youth should be afforded to the respondent in setting the head sentence.

An appropriate sentence

Having regard to sentences for the crime of rape, passed in recent years by judges of this Court at first instance and on appeal, a sentence of three years' imprisonment with eligibility for parole after serving half of that sentence would, in my view, have been appropriate.
The only remaining question, as I apprehend it, is whether any part of that sentence should have been suspended.
In Garcie v Lusted [2014] TASSC 27 Pearce J noted at [16]:
"As to the contention that a wholly suspended sentence is no deterrent or punishment at all, I refer to the decision of the Court of Criminal Appeal in Director of Public Prosecutions v Broadby, Cockshutt and Woolley (2010) 20 Tas R 399. The principal judgment was written by Evans J with whom Porter and Wood JJ agreed. In the course of his reasons Evans J, at [16], remarked on the imposition of a suspended sentence on a young offender in the following terms:
'Whilst I appreciate the reality of and the significance to the sentencing process of the community's perception that an offender who receives a suspended sentence "walks free", I am in no doubt whatsoever that when such a sentence is appropriate it is the community that benefits. As explained by Crawford J (as he then was) and Slicer J in Attorney-General(Tas) v Blackler (2001) 121 A Crim R 465, at 470 par [15]:
"If leaving out of prison a young person who has not previously appeared in a court for offences results in the offender not re-offending, then the public will have been well served by the sentence which was selected. If, in breach of a sentence of imprisonment suspended on a condition of good behaviour, the offender re-offends within the period of suspension ..., then the offender is likely to serve the imprisonment which was suspended, in addition to suffering punishment for the subsequent offence or offences. In such a case, what the public may regard as a 'real' punishment, has not been avoided"." [Italics added.]
In Mannie v Hibble [2006] TASSC 55, Evans J observed at [6]:
"[6] Had it not been for the gravity of the complainant's injuries, nothing known about the circumstances of the assault warranted characterising it as so significant an offence that an immediately effective sentence of imprisonment was required. Nevertheless, in view of the extent of the complainant's injuries, a sentence of imprisonment was appropriate to mark the seriousness of the offence. The critical issue in this case was whether or not to wholly suspend that sentence. That issue was to be determined by the learned magistrate in accordance with the well-established principle that actual incarceration is a penalty of last resort. See James v Turner [2006] TASSC 54 [6] where I considered the same learned magistrate's failure to apply that principle when sentencing an offender for an assault. As to the issue of the suspension of the sentence, a number of matters were in the applicant's favour. At 19 years of age, he was comparatively young, he had no prior convictions for a crime of violence, had not previously been imprisoned, was living in a stable relationship, was employed, and imprisonment was likely to jeopardise his employment. His offence involved one forceful punch in the course of a drunken (at least on his part) verbal exchange. It was not a planned or sustained attack. He had shown genuine remorse. He had not abandoned the complainant. Had it not been for the applicant's admissions to the police, it was unlikely that he could have been successfully prosecuted for the offence. Against this background and given the applicant's comparative youth, very real attention needed to be paid to the desirability of wholly suspending any sentence of imprisonment that was imposed. In Lahey v Sanderson [1959] Tas SR 17 at 21, Burbury CJ said:
'It is because the public interest is best served if an offender is induced to turn from criminal ways to an honest living that a court rarely sends a youth to gaol except in the case of crime of considerable gravity (such as a crime involving violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol. The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility.'"
Recognising that imprisonment in the case of a youthful offender is a penalty of last resort, I am of the view that the same factors which militated against a leniency in the head sentence, on account of the respondent's youth, also militate against the suspension of any part of that sentence. I do not see this as a case where the particular considerations relevant to the imposition of suspended sentences in the case of youthful offenders are engaged.
As was further stated by Evans J in Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399 at [11]-[12]:
"[11] Whilst suspended sentences are a most valuable sentencing option (the Law Reform Institute recommended their retention), their utility is constrained in circumstances which require that the sentencer pays particular attention to considerations such as general deterrence, punishment or denunciation, as the degree to which a sentence addresses these considerations depends largely upon the community's attitude to it.
[12] In Latham [2000] WASCA 338; (2001) 117 A Crim R 74, Parker J, agreed with by Wallwork and McKechnie JJ, at 82 dealt with a submission that in that case a suspended term of imprisonment would have served the needs of deterrence. After observing that a suspended term of imprisonment was the second most serious sentencing option available to the court in Western Australia, his Honour said that:
'[31] ... the effect of such a sentence is the immediate release of the offender into the community without supervision or restriction and, unless the offender commits a further offence, [breaches a condition of the suspension of the sentence in Tasmania,] ... during the suspension period, the offender is discharged entirely from the sentence at the end of the suspension period ... In most cases a suspended sentence involves neither custodial nor coercive consequences.
[32] It is understandable, therefore, that the community's perception and the reality of this sentencing option is quite different from that of a sentence of a term of imprisonment to be served immediately...
[33] A suspended sentence remains, nevertheless, a valuable sentencing option in some cases and, although there are no confined or restricted circumstances in which the option is available and the full range of sentencing considerations are relevant to its appropriateness or inappropriateness in a particular case, it remains a sentence more often likely to commend itself as appropriate where considerations justifying special leniency or the special encouragement of rehabilitation are strong.
[34] While it should not generally be concluded that the imposition of a suspended term of imprisonment will have little or no general deterrent value, the nature of this punishment involves inherent limitations on its value as a general deterrent. Where the conduct of the offender is serious and warrants imprisonment and a clear general deterrent element in the sentence is called for, a suspended term of imprisonment may well be considered inappropriate.'"

Notwithstanding the potential corrupting influence of imprisonment, I do not see that it can be said in the present case that by "leaving out of prison a young person who has not previously appeared in a court for offences results in the offender not re-offending" and that thereby, "the public will have been well served: Attorney-General(Tas) v Blackler (above) at [17]. To my mind, the public interest will be best served by requiring the respondent to serve his sentence, subject to release on parole, if deemed appropriate in due course.
In my view the crimes of which the respondent was convicted were serious and warranted imprisonment. There were no strong considerations justifying "special leniency or the special encouragement of rehabilitation": Latham (above) at [33]. In such circumstances a wholly or partially suspended sentence would have been inappropriate, in my view, as failing to serve the ends of general deterrence, denunciation and the vindication of the victim.

Disposition

It follows from all that I have said that grounds 2, 3 and 4 of the notice of appeal should succeed. I do not find it necessary to individually consider ground 1, given that the respondent's belief in the existence of consent was unarguably unreasonable, and given, in my view, the sentence was manifestly inadequate. Whether the respondent's belief in consent was honest, if as a matter of law it could be so regarded, or not, makes no appreciable difference for sentencing purposes, to my mind, in a case where consent was vitiated by intoxication and the failure to appreciate that was unreasonable.
I see no reason why this Court's residual discretion not to interfere with the sentence, notwithstanding the success of the Crown appeal, should be exercised. I would allow the appeal.
I would quash the learned sentencing judge's order of sentence and substitute therefor a sentence of three year's imprisonment. I would order that the respondent not be eligible for parole until he has served half of that sentence.

File No CCA 2844/2019

DIRECTOR OF PUBLIC PROSECUTIONS v J S P

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
27 March 2020

This is a Crown appeal against sentence. The respondent was found guilty by a jury of two counts of rape and one count of indecent assault. He was sentenced by Geason J on 18 October 2019 to imprisonment for two years and three months, 18 months of which was suspended for three years from the date of sentence. The effect of the sentence was that, subject to grant of remissions, the respondent was required to actually serve a term of imprisonment of nine months from 1 October 2019, the day the respondent was remanded in custody.
The crimes were committed on 21 May 2017. At the time the complainant was aged 16 and the respondent was 17. They met for the first time at a party at a home in a small beach and rural locality in southern Tasmania, about 50 kilometres from Hobart. It was the Crown case that the respondent had non-consensual sexual intercourse with the complainant on the front lawn of the home. Three instances of sexual intercourse were alleged, all in the same course of sexual conduct: first, vaginal sexual intercourse when the complainant was on her back, then anal sexual intercourse when the complainant was either lying face down or on all fours, and then vaginal sexual intercourse again from behind the complainant. The respondent was charged with three counts of rape. At trial he admitted both instances of vaginal sexual intercourse. He denied anal sexual intercourse, but admitted penetrating the complainant's anus with his finger. He contended that all of the sexual acts were consensual, or that he held an honest and reasonable, but mistaken, belief that the complainant consented.
On the second count of rape, alleging anal sexual intercourse, the jury found the respondent guilty of the alternative charge of indecent assault. At the time of this crime, non-consensual penetration of the anus by a body part other than a penis, such as a finger, constituted the crime of indecent assault, not rape. The amendment to the Criminal Code to include, by s 2B, non-penile penetration in the definition of sexual intercourse did not come into force until 14 July 2017.

The grounds of appeal

There are four grounds of appeal. The appellant contends that, in sentencing the respondent, the learned trial judge made three specific errors. The first asserts that the trial judge erred by finding that the respondent had an honest belief that the complainant consented to the sexual acts. The second asserts error in failing to find that the unprotected nature of the sexual intercourse was an aggravating factor. The third asserts that the trial judge erred by failing to find, as an aggravating factor, that the sexual acts were committed in the presence of another person or persons. The fourth ground asserts that the sentence is manifestly inadequate.
To succeed, the appellant must establish error made in sentencing the respondent, error being understood, in this context, as it was explained in House v The King (1936) 55 CLR 499 at 505:
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The first three grounds of appeal assert errors of the first type referred to in House, that is, a specific error. The first ground of appeal asserts that the trial judge made a mistaken finding about a material fact. Grounds 2 and 3 assert that the trial judge did not take into account a material consideration. Ground 4 asserts an error of the second category, which requires the appellant to demonstrate that the sentence is "unreasonable or plainly unjust".
Before turning to the grounds of appeal, it is necessary to summarise the evidence relevant to the appellant's contentions. It is not necessary to canvas all of the evidence. The evidence directly relevant to the accounts given by the complainant and the respondent at trial were accurately and helpfully summarised by counsel for the appellant in his written submissions. The following narrative is largely extracted from those submissions.

The complainant's account and surrounding evidence

The complainant was 16 at the time of the crime. She weighed about 42 kilograms and was 5 feet and two inches tall. She arrived at the party with a female friend at about 9 pm on 20 May 2017. There was an arrangement that one of the parents of her friend would come to the party to pick them up and take them home. As soon as she arrived at the party the complainant started drinking vodka straight from the bottle. Her evidence at trial was that she drank almost the full bottle over the course of the night, however when she was examined by a medical practitioner at about 7 am on the following day she said that she had drunk around half the bottle. During the evening she danced and shared drinks with a different female friend, who, at one stage, started kissing her. Boys, one of whom was the respondent, joined in. The female friend told the respondent to go away and tried to push him away. The complainant did not know the respondent and did not know his name.
The evidence was that the party was mainly taking place in a shed adjacent to the house at the end of a driveway, to the right of the house as it is viewed from the street. There were, however, people in various places around the outside of the house. Late in the evening the respondent took the complainant by the hand and led her away from the shed. She told the jury that when she left the shed she was looking for the friend she had come to the party with and that the respondent told her he knew where the friend was. The house was separated from the street by an open grassed area referred to in the evidence as the front lawn. The respondent took the complainant to an area on the front lawn near the corner of the house, to the left as viewed from the street. It was near a corrugated iron fence which ran roughly parallel to the street across the space which separated the house from the side boundary at that point. There was a standard paling fence on the boundary. The area was on the opposite side of the house to the area in which the party was mainly taking place.
The complainant's next memory was that the respondent "took me to where no-one was. I remember falling to the floor or something and he started to kiss me. I don't – I don't remember – I don't remember anything else but being on the floor, um, and I remember that the next memory that I had was my pants were off, um - … That he took them off". She said her vision had gone and she had lost her balance as a result of her intoxication. By the time the sexual intercourse ceased she "couldn't see [or] … stand up". The complainant said that the respondent "started having sex with me and I knew that I couldn't get away because I was too weak and so I told him – told him not to cum in me. Um, I don't remember much more but I turned my head and then he turned me over and … He stuck his penis in my anus and I just remember my body going into shock and pain and I told him to stop and he did, but then he just continued to have sex with me and I collapsed onto the floor". She was lying flat on her stomach, the respondent had his arm on her back, his hand around her mouth and his penis in her vagina. At about the time the respondent stopped having sex with her, she heard her friend's stepfather, who had come to the party to pick her up, screaming out.
When cross-examined the complainant said that she did not remember speaking with the respondent or kissing him when they were in the shed. When it was put to her that the respondent asked her when they were inside the shed, "do you want to take this further", she replied "no". The complainant denied that she and the respondent were talking, laughing and holding hands while they walked to the front of the house to find her friend. She remembered the respondent kissing her, but did not remember him unbuttoning her jeans and asking "do you want to have sex." When it was put to her that she replied "yes", she answered "I wouldn't have said [that]." She did not recall moving from the spot where they initially sat down on the lawn, or saying "don't stop, make me cum" while they were having sex. She did not recall the accused asking her if she liked other positions, or that she suggested "doggy." She did not remember the respondent saying "I can hear people's voices, we need to stop". She said she heard the man, and he arrived and stopped it. She agreed that when she felt something inside her anus she said "stop" and the respondent did.
Other prosecution witnesses gave evidence of their observations of the apparent level of the complainant's intoxication during the course of the evening before the sexual intercourse took place. As will be further explained, some witnesses gave evidence of seeing the respondent and the complainant having sexual intercourse and of her appearance while sexual intercourse was occurring. Some witnesses described the complainant as having been, during the intercourse, on her stomach with her face in the dirt. Evidence was given of the witnesses' observations of the complainant's apparent distress immediately after the sexual intercourse. All of that evidence was circumstantial evidence relevant to issues of consent and mistake. However, no other witness gave evidence of having seen or heard the actions and words exchanged between the respondent and the complainant as they walked to the front lawn and while they were on the front lawn immediately before sexual intercourse commenced.

The respondent's account

The respondent gave evidence that he kissed the complainant on the dance floor and they kissed each other in the shed later in the evening. He said that he sat with the complainant in the corner of the shed and she was "very alert". He said they were communicating with one another "fine". They kissed, this time longer than their previous kisses, and he asked her if she "wanted to take things further" and she replied "yes". Thereafter he "stood up and I put my hand out and she took my hand and stood up next to me and we walked out of the shed, side by side together". They walked past everyone to the front yard, where they sat and kissed. After that he began "fingering her", by which he meant that he unbuttoned her jeans, put his hand in her pants and moved his index finger in and out of her vagina. He said that they were kissing whilst he did this.
The respondent told the jury that, while he and the complainant were on the front lawn, he asked her if she wanted to have sex with him twice, and on both occasions she said "yes." They moved a few metres to an area where there was less light and it was more private. He took his pants down and helped the complainant pull hers further down, then put his penis in her vagina while she was on her back and underneath him. The respondent's evidence was that the complainant said, three times, "don't stop until I come", and that they were both moaning. After they had been having sex in that position for "a little while" he asked her if she liked "any other positions" and she said that she liked "doggy style". He said the complainant turned her body over onto her hands and knees and he began penile vaginal sexual intercourse again in that position. He said the complainant continued to "moan in enjoyment" and after minutes he "put [his] finger in her bottom". When he did this she did nothing to attract his attention. He then heard a giggle and voices behind the fence. The complainant was moaning and making noises so he put his hand over her face and said "you need to be quiet", she said "yes, we need to stop" and he "stopped immediately" and "pulled his penis out."
The respondent's evidence was consistent with what he told police in a video recorded interview conducted two days after the crimes, on 23 May 2017. The respondent told the police that the complainant would have been on all fours and denied that she ever lay down on her stomach. In the video interview, the respondent told the police that both he and the complainant were drunk, however when he gave evidence he denied that they were intoxicated.

Ground 1 – Honest but not reasonable mistake

The learned trial judge sentenced the respondent on the basis that, at the time of the sexual acts, the respondent honestly believed that the complainant was consenting, but that his belief was not reasonable. This ground asserts that the learned sentencing judge erred by finding that the respondent held an honest belief about consent. The respondent's evidence at trial raised the issue of mistake as to consent. A mistake by an accused as to a matter of fact which, if true, would excuse criminal responsibility for the act, may operate as a ground of exculpation by virtue of s 14 of the Criminal Code, or pursuant to the common law: Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; CTM v The Queen [2008] HCA 25, 236 CLR 440 at [8]; Bell v Tasmania [2019] TASCCA 19. In this State the "defence" of honest and reasonable mistake applies to the issue of consent to sexual intercourse in a charge of rape: Snow [1962] Tas SR 271. By extension, it also applies to a belief about consent to the acts which are alleged to constitute indecent assault. Although mistake is commonly referred to as a defence, it is a ground of exculpation. Once an accused person satisfies the evidentiary onus to raise honest and reasonable mistake, the prosecution bears the legal burden of proving beyond reasonable doubt that the accused person did not have an honest and reasonable but mistaken belief: CTM v The Queen [2008] HCA 25, 236 CLR 440; Hindrum v Lane[2014] TASFC 5. Thus, in this case, if the prosecution failed to prove beyond reasonable doubt that the respondent did not have an honest and reasonable belief that the complainant consented to the sexual acts, he was entitled to be acquitted. To be exculpatory, a mistake must be both honest and reasonable. Relevant to whether a mistake is honest and reasonable is the Code, s 14A, to which I will refer again shortly.
The term "consent" is relevantly defined in the Code, s 2A:
"(1) In the Code, unless the contrary intention appears, 'consent' means free agreement.
(2) Without limiting the meaning of 'free agreement', and without limiting what may constitute 'free agreement' or 'not free agreement', a person does not freely agree to an act if the person —
(a)does not say or do anything to communicate consent; or
(b)…
(h)is asleep, unconscious or so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter for which consent is required; or
(i)is unable to understand the nature of the act."
It necessarily followed from the verdicts that the jury was satisfied beyond reasonable doubt that the complainant did not consent to the sexual acts, and that the respondent did not hold an honest and reasonable belief that the complainant had consented. This ground of appeal challenges the trial judge's finding, relevant to sentence, that the respondent honestly believed that the complainant consented, although the belief was not reasonably held. The proposition underlying the ground is that the moral culpability of an offender who holds an honest but unreasonable belief that the complainant consented to sexual acts is less than that of an offender who did not have an honest belief in consent. The appellant submits that the learned trial judge was, in the circumstances, obliged to sentence the respondent on the basis that he was reckless as to whether the complainant was consenting. The submission is made on three grounds, namely that the trial judge's finding:
· was inconsistent with the verdict;
· was not reasonably open on the evidence; and,
· was contrary to the Code, s 14A.
To my mind, a belief in consent which is not honest is not a belief at all. In this context, belief means actual persuasion of the truth of a proposition or state of affairs to the exclusion of other alternative propositions or states of affairs. In this State, whether a mistake is honest and reasonable is further qualified by the Code, s 14A. That section is entitled "Mistake as to consent in certain sexual offences", and provides that in proceedings for certain sexual crimes, including rape and indecent assault:
"(1) … a mistaken belief by the accused as to the existence of consent is not honest or reasonable if the accused —
(a)was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or
(b)was reckless as to whether or not the complainant consented; or
(c)did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act."
In SG v Tasmania [2017] TASCCA 12 at [8], I expressed the view that recklessness, in the relevant sense, means that the appellant foresaw that the complainant may not consent and acted regardless of the risk that she did not. Independently of the operation of s 14A, if the respondent appreciated that the complainant may not be consenting and acted despite the risk that she was not, he could not be said to have been honestly mistaken about her consent. In the same case, Porter AJ gave a further explanation of the operation of s 14A which suggests that recklessness may also include "simply having no regard to whether a person is consenting or not", and concluded that the result is the same. Recklessness in either sense, his Honour concluded, is inconsistent with the existence of honest belief. I respectfully agree. The passage to which I refer in his Honour's reasons appears at [43] and it is helpful to set it out in full:
"As can be seen, the provision operates on both aspects of an asserted mistaken belief. In any of the three sets of circumstances provided for, a mistaken belief as to the existence of consent is deemed to be not honest or reasonable. Although ostensibly the provisions mostly relate more to reasonableness, the section operates to negate the element of honesty, irrespective of which limb of s 14A(1) is invoked. It is easy to see the sense of this where recklessness is involved, because that concept seems to involve alluding to the possibility or real risk of a lack of consent, and proceeding regardless. However, in s 14A(1) Parliament has taken the matter further. I add that recklessness would apply in the context of s 14 without recourse to s 14A. This is because recklessness as to consent, and a genuinely held belief as to the existence of consent, are mutually exclusive; the issue of reasonableness does not even arise. Even if, in this context, recklessness simply means having no regard to whether a person is consenting or not, the result is the same."

It was the duty of the trial judge to determine facts for the purpose of sentence, subject to the facts which expressly follow from, or are necessarily implied by, the verdict: Cheung v The Queen [2001] HCA 67, 209 CLR 1 at [14]-[17]. This was a case where the jury returned a general verdict for each of the counts. To adopt the words of the High Court in Cheung at [17], the sentencing judge did "not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that [was] revealed by the verdict". Although the trial judge devoted some time in his sentencing comments to attempting to interpret the verdict, the facts relevant to consent and mistake were not necessarily implied by the verdict. Reference to the issue of consent serves to illustrate the point. The verdict established that the jury was satisfied beyond reasonable doubt that the complainant did not freely agree to sexual intercourse or penetration of her anus. At trial there was a considerable body of evidence from the complainant and from other witnesses that she was heavily intoxicated. She had been drinking vodka directly from the bottle for some time before sexual intercourse occurred. The prosecution case was that the complainant did not say or do anything to indicate consent and was so intoxicated by alcohol as to be unable to form a rational opinion about consent to sexual intercourse. The defence case as to consent was that the complainant, by both her words and actions, did convey her agreement to sexual intercourse and was not so intoxicated as to be unable to validly consent. The jury was not bound by the arguments urged on them by the prosecution or the defence or to any particular view of the evidence. The jury, or some members of the jury, may have been satisfied that the absence of consent was apparent from the complainant's words or actions. Some members of the jury may have been satisfied of the absence of consent because, according to s 2A(2)(a) of the Code, the complainant did not say or do anything to indicate consent. Other members of the jury may have concluded that, or even been undecided about whether the complainant, by her words or actions, indicated consent, but nevertheless been satisfied, according to s 2A(2)(h), that the complainant was so affected by alcohol as to be unable to validly consent.
As to mistake, all that was necessarily implied from the verdict was that the jury was satisfied that the respondent did not have an honest and reasonable belief that the complainant consented. Conclusions about the honesty and reasonableness or otherwise of a belief held by the respondent may have been formed for various reasons independently of s 14A. The jury, or some members of it, may have concluded that the respondent knew that the complainant was not consenting. Members of the jury may have concluded that the respondent did not have a belief in consent which was not honest or reasonable. For some it may have been because the respondent was reckless about the existence or otherwise of consent. For others, it may have been because the respondent did not take reasonable steps to ascertain her consent. Some members of the jury may have been satisfied that he held a belief which was honest but not reasonable. There was no requirement for unanimity about the alternative factual scenarios which might have led to the jury's rejection of the proposition that the respondent had an honest and reasonable belief. The relevant facts did not necessarily follow from the verdicts and it was for his Honour to make findings for sentencing purposes.
In submissions before the trial judge after the verdict, counsel for the prosecution submitted that the respondent should be sentenced on the basis that the complainant did not communicate consent to either sexual intercourse or digital penetration of her anus, that the respondent knew that the complainant was very intoxicated and had done nothing to communicate consent, and realised that there was a good chance that she was not consenting. There was evidence that, earlier in the evening, the respondent had commented to one of his friends words to the effect that he would like to have sex with the complainant. In his sentencing remarks the trial judge said:
"I have reviewed the evidence and I do not think the way the Crown urged the jury to view the evidence is ultimately a sound basis for resolving the matter. First in relation to the statement that you would like to have sex with the complainant, made at least to Mr V earlier in the night, whilst I am satisfied that was said to him I am not persuaded that that evidence is relevant to your state of mind at the time of the offences, and I am not assisted by it for my determination of this point. I consider it to be a crudely expressed statement of desire, not a statement of intention to act upon that desire unlawfully, come what may, to force yourself onto the complainant whether she wanted you or not. In my view, it is properly characterised as an inappropriate statement borne of youthful immaturity fuelled by a little alcohol. As such, I do not treat it as evidence of predatory behaviour. The decisive matter on this point as far as I am concerned is the uncontested evidence that you stopped your actions, the subject of count two, when you were asked to do so. That fact evidences your awareness of the need for consent and the requirement to desist when it was made clear to you that the activity was not consensual. In my judgment that awareness is more consistent with an honest state of mind rather than one of reckless indifference to the matter of consent. Indeed I consider it to be wholly inconsistent with reckless indifference to that matter.
The jury also heard your evidence. You gave evidence of your belief in consent and you were not shaken in cross-examination on that point. They also accepted the evidence that the penetration, the subject of count two, was digital and not penile as alleged by the State. That was also your evidence. It is my conclusion that the jury, having heard all this evidence, has concluded that whilst you honestly believed in consent, your belief was quite unreasonable and having so concluded they were satisfied beyond reasonable doubt that the sexual intercourse which occurred satisfied the Code definition for rape and that the digital penetration was an indecent assault in accordance with the Code definition thereof.
I am of the view that they have determined the matter on the evidence rather than the State's characterisation of the matter in its addresses."
In this appeal, the appellant submits that because the evidence of the prosecution and defence relevant to consent were "diametrically opposed", the verdicts must, "by necessary implication involve a rejection of the respondent's evidence going to his state of mind at the relevant time." That is so, it is submitted, because of the way the issues were joined at trial. In respect to the two counts of rape, the submission must be rejected. It was open to the jury, and to the trial judge, to accept at least some of the respondent's evidence that the complainant communicated her consent to him, even if it rejected other parts of his evidence about what she said to him. It was also open to his Honour to find that the extent of her intoxication was not apparent to the respondent, that he did take reasonable steps to ascertain her consent, but nevertheless to find that she was, when all of the evidence was taken into account, so intoxicated as to be unable to validly consent. His Honour found that, "the complainant was, by reason of her intoxication, unable to give her free consent to any of these sexual acts." No express finding was made about whether she communicated her consent or absence of consent. This part of this ground goes to whether the trial judge's finding of an honest belief was necessarily inconsistent with the verdict. For reasons I have explained, it was not.
The appellant contends, in the alternative, that the finding of an honest belief was not reasonably open on the evidence. I have undertaken my own review of the evidence. A finding that the respondent did not have an honest belief in consent to sexual intercourse was a finding adverse to the respondent and was to be established beyond reasonable doubt: R v Olbrich [1999] HCA 54,199 CLR 270. As with the jury, it was open to the trial judge to accept parts of the evidence of the respondent and reject other parts. I am not satisfied that, given the trial judge's advantage of having seen and heard the witnesses, and when all of the evidence is taken into account, that it was not open to the trial judge to fail to be satisfied that the respondent did not believe that the complainant was consenting.
Had the trial judge been satisfied that the attitude of the respondent to consent was reckless, s 14A mandated a finding that the respondent's belief was not honest or reasonable. As Porter AJ pointed out in SG v Tasmania, if any of the three sets of circumstances provided for in s 14A applied, a mistaken belief as to the existence of consent is deemed to be not honest or reasonable. Given that his Honour rejected a finding of recklessness, s 14A(1)(b) had no part to play. His Honour made no express finding about whether the complainant said or did anything to communicate consent, or whether the respondent took reasonable steps, in the circumstances known to him at the time of the offence, to ascertain that the complainant was consenting to the act. However his Honour's findings about those matters sufficiently emerges, in my view, from the manner in which he proceeded to sentence, and his finding of the respondent's "awareness of the need for consent" and an "honest belief in consent." For reasons already stated, the facts relevant to those questions were not necessarily implied from the verdicts, and his Honour's findings strongly indicated acceptance, or at least an inability to exclude the reasonable possibility of the truth of, at least some of the evidence of the respondent about what was said and done by the complainant prior to sexual intercourse. As I have already pointed out, findings adverse to the respondent on those factual matters required proof beyond reasonable doubt.
As it applies to the two counts of rape, the error contended by this ground is not made out. That conclusion does not extend to the finding as it applied to the crime of indecent assault. In my opinion it was not reasonably open to his Honour to find that the respondent had an honest belief that the complainant consented to penetration of her anus by his finger. The respondent's evidence at trial was that after he had been engaging in penile sexual intercourse from behind the complainant while she was on all fours, he put his finger "in her bottom." The complainant gave evidence that she remembered after having been turned over, that "he stuck his penis in my anus and I just remember my body going into shock and he did". It follows from the verdict that the jury was not satisfied that the respondent penetrated the complainant's anus with his penis. However, there was no evidence from either the complainant or the respondent that the complainant indicated her consent to the respondent penetrating her anus with his finger, or that the respondent believed she consented to that act. They had not met before. There was no history of consensual anal penetration which may have indicated implied consent. In cross-examination the respondent admitted that the complainant did not tell him that she wanted that, and agreed that he "did that completely without her consent." Although he contended in re-examination that he thought she consented he gave no other evidence of a rational or reasonable basis for that belief.
There is no proper basis for the conclusion that an indication of consent to vaginal intercourse extends to any sexual act, and in particular to penetration of the anus by either the penis or a body part other than the penis. There was no evidence, from the respondent or elsewhere, from which the trial judge could reasonably have concluded that the respondent honestly believed the complainant consented to him putting his finger "in her bottom." With respect to the trial judge, the finding that the respondent honestly believed that the complainant consented to penetration of her anus by his finger was an error.
The trial judge was entitled to find that penetration of the complainant's anus was for a very short time, and that as soon as the complainant asked him to desist, he did so. The moral culpability of the respondent was to be determined according to that finding. However, the finding is not relevant to whether, at the time of the penetration, the respondent honestly believed the complainant was consenting to it. To that limited extent, this ground is made out and error is demonstrated.

Ground 2 – Unprotected sexual intercourse

During the admitted sexual intercourse the respondent did not wear a condom. This ground submits that the learned trial judge erred by failing to find that the unprotected nature of the sexual intercourse was an aggravating factor. In the course of his sentencing remarks the learned trial judge said:
There is no suggestion you have any disease, and I have commented that you did not ejaculate. In my view, the fact that the sex was unprotected is not an aggravating factor."
With respect to his Honour, his approach demonstrates error. Sexual intercourse without consent will very often occur without the offender wearing a condom, but it is almost always material to sentence in a way which is adverse to the offender. In the absence of evidence taking it outside the usual case, unprotected sexual intercourse with a fertile female carries with it the risk of pregnancy: R v Khem [2008] VSCA 136, 186 A Crim R 465 at [17]-[21] and [33]-[34]; BM v The Queen [2013] VSCA 3. That is so whether the offender ejaculates or not. Similarly, unprotected intercourse carries with it the risk of sexually transmitted disease: R v Khem; BM v The Queen. Even if there were, for some reason, no chance of pregnancy, and no chance of sexually transmitted disease, the victim will commonly have no means of knowing those things during or immediately following the commission of the crime. Fear of pregnancy or disease adds to the trauma and distress to which she is subjected. The absence of a condom also serves to illustrate the respondent's careless and irresponsible attitude towards the complainant and disregard for her welfare.
It may have been, in this case, that the risk of transmission of disease was low, although there was no evidence about that. There is no suggestion that pregnancy or transmission of disease resulted. However the learned trial judge was wrong to exclude the absence of protection as an aggravating factor.
On this ground, error is established.

Ground 3 – Sexual intercourse in the presence of any other person or persons

The appellant, by this ground, contends that the trial judge erred by failing to take into account, as an aggravating factor, that the respondent's crimes were committed in the presence of another person or persons. The Sentencing Act 1997, s 11A(2), requires a court sentencing an offender convicted of specified sexual offences, including indecent assault and rape, to take into account any aggravating circumstance in relation to the offence. Sentencing courts always take into account facts relevant to sentence which are adverse to an offender. An "aggravating factor", according to its ordinary meaning, is a factor which tends to increase the seriousness of the offence or the culpability of the offender. However, the meaning of "aggravating circumstance" is defined in s 11A(1) to include:
"(a)the victim being under the care, supervision or authority of the offender;
(b)the victim being a person with a disability;
(c)the victim being under the age of 13 years;
(d)the offender committing the offence in whole or in part in the presence of any other person or persons, besides the victim;
(e)the offender subjecting the victim to violence or the threat of violence;
(f)the offender supplying the victim with alcohol or drugs with the intention of facilitating the commission of the offence;
(g)the offender making forced or uninvited entry into the victim's home or other premises;
(h)the offender doing, in the course of committing the sexual offence, an act likely to seriously and substantially degrade or humiliate the victim;
(i)the offender causing any other person or persons to carry out an act referred to in paragraph (e), (f), (g) or (h) of this definition."
In his sentencing remarks, the trial judge found, contrary to the submission of the prosecution, that the respondent's conduct did not involve a breach of trust and was not "predatory". His Honour accepted that the respondent's crime was aggravated by the fact that he placed his hand over the complainant's mouth, although he said "it was of very short duration and I find that it occurred at the point when others had come onto the scene." His Honour then found that there were "no other matters in s 11A … which are relevant to this case." It follows that his Honour either overlooked s 11A(1)(d) or was satisfied that it did not apply; that is, not satisfied that the offence was, in whole or in part, committed in the presence of any other person besides the victim. In either case, in my respectful opinion, error is demonstrated.
The factors listed in s 11A(1) would be aggravating circumstances independently of the operation of the section. The terms of s 11A require only that the aggravating factor be "taken into account". The extent to which a factor specified in s 11A increases the objective gravity of the offence or the moral culpability of an offender will be determined according to the circumstances of a particular case. Application of a statutory aggravating factor to an offence may have very little, if any, impact on sentence, or it may have a significant effect. The weight to be given to the aggravating factor will be a matter for the discretion of the sentencing judge. However, the terms of s 11A mandated his Honour to first determine whether the aggravating factor applied, and, if so, to take it into account. Facts adverse to an offender are to be established to his Honour's satisfaction beyond reasonable doubt: R v Olbrich (above). His Honour's comment that no other matters in s 11A were relevant suggests that he considered subs (1)(d) but found it to not apply. In my opinion, with due allowance for the advantage the trial judge enjoyed in hearing the evidence and observing the witnesses, it was not open to his Honour to fail to be satisfied beyond reasonable doubt that other persons were present at the time of the respondent's crime. That being so, his Honour was required to take it into account as an aggravating factor.
Counsel for the respondent submits that before the presence of another person is an aggravating factor it must be established that the offender knew of that fact. The submission must be rejected. The terms of s 11A(1)(d) should be interpreted such that the presence or otherwise of other persons is a matter of objective fact. As a matter of principle, commission of a sexual offence in the presence of others increases the seriousness of the crime because the commission of sexual acts in the presence of others adds to the degradation and humiliation of the victim: Director of Public Prosecutions v Harington [2017] TASCCA 4, 27 Tas R 128, per Wood J at [9]. The extent to which the factor is aggravating may vary according to a range of circumstances including how many persons were present, who the persons were, the circumstances of their presence, the extent to which the person observed the crime, and whether the victim knew of their presence at the time or learned about it later. It is an aggravating factor independently of knowledge and intention of the offender, although knowledge of, or carelessness about, the presence of others may increase the offender's level of culpability.

The Court was not directed to any authority which may assist in determining the meaning of the phrase "in the presence of" as it is used in s 11A, but having regard to the ordinary meaning of the words, their context, and the object of the provision, it should be interpreted to mean that a person or persons are in such proximity to the place at which the sexual act was committed so as to enable that person to see or hear the act as it was committed. It is not necessary to establish that the person present in that sense appreciated, at the time, that the act occurring in his or her presence was an offence. I do not intend to confine the meaning of the phrase "in the presence of." The circumstances of a particular case may lead a court to broaden the meaning I have adopted in this appeal. For example, it might be contended that a rape of a woman while her children are nearby, perhaps in the same home, is a crime committed in the presence of the children even if the children do not become aware of the crime as it is committed. Those circumstances may give rise to a reasonable fear on the part of the victim, at the time of the crime, that the children may see or hear the events, thereby adding to her distress and trauma.
Here, the evidence established beyond reasonable doubt that other persons were present. A number of witnesses gave evidence that it became known at the party, and then they saw, that two people were having sex on the front lawn. One young woman who knew the complainant was told by her boyfriend. She followed as he went to look, concerned that he should not do so. She saw a group of people gathered near a fence, and saw a male and a female having sex on the front lawn on the other side of the fence. She realised it was the complainant, and went over the fence intending to put a stop to it to spare the complainant from embarrassment. She heard a young man say to the respondent to stop, and the respondent replied, "Guys, go away, don't look."
The young woman's boyfriend gave evidence that he saw two people having sex on the grass. He could see them and hear moaning. He told the jury that when he arrived at the spot where the sex was taking place there were four or five people there, but then a crowd gathered, "about 15 people all up". Another young man, who knew the respondent, was told that the respondent was having sex with someone, and "heaps of people came down to look". He looked over the fence and saw two people having sex, but then, after about 30 seconds, walked off. A young woman gave evidence that "there was people running over saying like, people were having sex across the fence – behind the fence and then a few of us all ran over". She was able to climb up on something to look over the fence and saw a male and female having sex, with the male on top thrusting. Another male guest at the party was standing on the deck of the house. From where he was standing he saw the respondent and the complainant on the front lawn having sex.
The stepfather of the complainant's friend gave evidence that, at around midnight, he drove to the party to pick up his stepdaughter and the complainant. He pulled up in his car at the front of the house and, from where he was sitting in his car, he could see two people on the front lawn. He saw people standing on the balcony and others standing around watching. He eventually came to appreciate that the two people were engaging in sexual intercourse and, as he walked to where they were, he realised that the female was the complainant.
The evidence of the witnesses I have referred to was relevant to the issue of consent and mistake. It was tested by cross-examination. However, to the extent that it proved the presence of others during the sexual acts, it was not challenged. The respondent gave evidence that he had walked with the complainant to a place on the front lawn where they sat down together. Before engaging in sexual intercourse he took the complainant to a place closer to the fence because it was "not in the open." He said the yard was lit by a light, and he thought that there would be less light near the fence, and it would be "more private for both of us." His evidence was that he realised that others were present when he heard giggling from the other side of the fence. He told the complainant that they needed to be quiet and put his hand over her mouth, but then stopped the intercourse.
In my respectful opinion, the trial judge could not reasonably have failed to conclude that the respondent's crimes were committed in the presence of others. It was an aggravating factor which, by the terms of s 11A of the Sentencing Act, he was required to take into account in sentence. By not doing so, his Honour erred.
The error asserted by this ground is made out.

The consequence of error

Having found the errors asserted in grounds 2 and 3 of the appeal to have been established, and the error asserted in ground 1 established in part, it is necessary to consider whether the errors require or justify the intervention of this Court. Two issues arise. The first is the function of this Court when specific error is established in the exercise of the sentencing discretion. The second is the exercise of the residual discretion in Crown appeals.
The function of an appellate court under s 402(4) of the Code when specific error in the exercise of the sentencing discretion is demonstrated, was considered in detail by Porter AJ, with whom Marshall AJ agreed, in Jenkins v Tasmania [2019] TASCCA 12 at [120]-[140]. His Honour reviewed the decision of the High Court in Kentwell v The Queen [2014] HCA 37, 252 CLR 601 and decisions of intermediate courts of appeal in other Australian jurisdictions. I respectfully agree with his Honour's conclusions which he summarised at [139]-[140]:
"[139] Once a House type of error is identified, a court must exercise the discretion afresh, and is to proceed to resentence unless in a separate independent exercise of its discretion, it considers that no different sentence should be passed: AB v The Queen [1999] HCA 46, 198 CLR 111 at [106]-[107] per Kirby J, [130] per Hayne J; Kentwell at [35]… That view was expressly taken in S v Tasmania (No 2) [2007] TASSC 85, 16 Tas R 449 at [7] and [15], a case involving an allegation of a miscarriage of justice in the hearing process, rather than a House type error, but where the approach was said to be the same: S v Tasmania (above) at [20], S (No 2) at [2].
[140] The task of the Court is not to simply assess whether the sentence imposed was 'within range': Kentwell at [42]; Davis [2015] NSWCCA 90 at [81]. There is no presumption in favour of the original sentence and it has no persuasive value; its use is merely the mark by which a 'more or less severe' sentence is judged: Thammavongsa v The Queen [2015] NSWCCA 107, 251 A Crim R 342. The Court re-exercises the sentencing discretion 'taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which s 402(4) provides': Baxter at [19]; in Zahorsky v The Queen [2013] NSWCCA 268 at [48]-[49]. All relevant matters must be taken into account including any evidence received of post-sentence events: AB at [106]-[107] per Kirby J; Kentwell at [43]; Baxter v The Queen [2007] NSWCCA 237, 173 A Crim R 284 at [10]. In looking at things afresh the Court might take the view that the sentence passed is the appropriate one, or it might form the opinion necessary to enable it to quash the sentence and pass another; that is, some other sentence is warranted in law and should have been passed: S (No 2) (above)." [Citations added.]
As was stated by French CJ, Hayne, Bell and Keane JJ in Kentwell at [42]:
"When a judge ... mistakes the facts or does not take into account some material consideration the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing ..."
In applying those principles in this appeal, I have concluded that the errors I have found established were material in the sense that they could have affected the sentence, and that the exercise of the trial judge's sentencing discretion thereby miscarried. The discretion of this Court to intervene is enlivened, and the sentencing discretion is to be separately and independently exercised afresh. The question becomes whether, as the State submits, a different sentence should be passed.

Re-sentence and the factual basis for re-sentence

Subject to the identified errors, any re-sentencing of the respondent should be on the same factual basis as was applied by the trial judge. I have already noted the absence of some express findings of fact which may leave room for argument, but it seems to me to be sufficiently clear that the trial judge sentenced the respondent on the basis that:
·     it was the complainant's intoxication, rather than other factors, which founded the absence of her consent;
·     communication of consent invalidated by intoxication formed the basis of the trial judge's finding of honest but mistaken belief in consent to sexual intercourse; and
·     the respondent's belief in consent was unreasonable by reason of the apparent level of the complainant's intoxication, rather than other factors.
In his reasons, which I had the advantage of reading in draft, Estcourt J explained the seriousness of the crime of rape and made reference to sentences passed in this State for the crime. Because of the manner in which I have approached the grounds of appeal, it is unnecessary for me to decide whether the sentence imposed at first instance is manifestly inadequate, that is, unreasonable or plainly unjust. However, in my respectful view, a case in which a complainant indicates consent to sexual intercourse which the respondent honestly, though unreasonably, believed to be valid, but which by reason of intoxication was not valid, is to be distinguished for sentencing purposes from a case in which the offender knew that there was no consent, or did not have an honest belief in consent. Most sentences in this State for rape do not involve an offender who was found to have an honest, albeit unreasonable, belief in consent arising from communication of consent.
I would have imposed a greater sentence on the respondent. This was a serious crime. There was a distinct need to impose a sentence which gave weight to general deterrence, denunciation and vindication of the victim. As to general deterrence, there was a need to uphold the policy of the consent and mistake provisions of the Code, to make clear to men, especially young men, their criminal responsibility for sexual acts committed against a person so affected by alcohol or drugs as to be unable to freely agree. The victim suffered, and will likely continue to suffer, a significant psychological impact. The respondent was not entitled to the mitigation a plea of guilty would have attracted.
I respectfully differ from Estcourt J in one other important respect. I agree that the seriousness of the crime reduced the mitigation which arose from the respondent's youth, but, in my view, youth remained a sentencing factor of some weight. One reason that the law generally allows lenience to young offenders is they, being immature, are "more prone to ill-considered or rash decisions": R v McGaffin [2010] SASCFC 22, 206 A Crim R 188 at 210, [69]. They "may lack the degree of insight, judgment and self-control that is possessed by an adult" and may not fully appreciate the nature, seriousness and consequences of their criminal conduct: Director of Public Prosecutions v TY (No 3) [2007] VSC 489, 18 VR 241 at 242, [43]. I think that those factors had a part to play here. The sentencing factors of general deterrence directed to young men for crimes of this nature and punishment are competing countervailing considerations with allowance for the immaturity and lack of judgment of a young man. That is not to say however that the latter factors are to be given no weight.
In re-sentence, this Court may take into account any relevant matter which has occurred since the respondent was sentenced: s 402(4A). The respondent has now served almost six months of the sentence. The Court was informed that he has found prison difficult for reasons fully explained in the reasons of Wood J. Conversely, s 402(4B) provides that, in re-sentencing, the Court must not take into account the element of double jeopardy involved in the respondent being sentenced again so as to pass a less severe sentence than the Court considers appropriate. There is no evidence of actual anxiety or distress arising from the appeal.
Taking all relevant sentencing considerations into account I would have imposed the same head sentence as the trial judge, that is, imprisonment for two years and three months. However I would not have suspended any of the sentence, but ordered eligibility for parole after half of the sentence has been served.

The residual discretion

In appeals of this nature, the Crown must negate any reason why the appeal should be dismissed in the exercise of the residual discretion: CMB v Attorney-General (NSW) [2015] HCA 9, 256 CLR 346. This Court has a residual discretion to dismiss the appeal in spite of a finding of error in sentencing, on some basis other than double jeopardy Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26, 218 A Crim R 156; Director of Public Prosecutions v Swan [2016] TASCCA 9. I would, like Wood J, for the reasons her Honour gives, decline to impose a different sentence and exercise the residual discretion to dismiss the appeal. The primary purpose of an appeal against sentence by the Crown is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462; CMB v Attorney-General (NSW) (above) at 366 [55], HT v The Queen [2019] HCA 40 at [20]. Sometimes, the intervention of appellate courts should not extend to the general correction of errors made by sentencing judges. Crown appeals serve to maintain public confidence in the administration of justice by the intervention of this Court in case of error, commonly in the case of a manifestly inadequate sentence: Everett v The Queen (1994) 181 CLR 295. However, even in cases in which a sentence is shown to be manifestly inadequate, the residual discretion may be exercised for reasons other than double jeopardy. In this case, I have concluded that the purposes of the appeal can be adequately served by identification of the errors and by an indication of the sentence which, but for the exercise of the residual discretion, I would have imposed.
For those reasons I would dismiss the appeal.