Director of Public Prosecutions v Sharp

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0184

THE DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
CHRISTOPHER SHARP	Respondent

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JUDGES:	NIALL, BOYCE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2024
DATE OF JUDGMENT:	6 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 24
JUDGMENT APPEALED FROM:	[2023] VCC 1535 (Judge Wraight)

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape, false imprisonment, common assault – Whether sentence manifestly inadequate – Delay of 13 years between offences and sentence – Where respondent 19 years old at time of offences’ commission – Where evidence of respondent’s rehabilitation during period of delay – Appeal allowed.

Sentencing Amendment (Abolition of Suspended Sentences & Other Matters) Act 2013, Sentencing Act 1991, s 27(2)(a).

DPP v Karazisis (2010) 31 VR 634, DPP v Buhagiar and Heathcote [1998] 4 VR 540, R v Todd [1982] 2 NSWLR 517, R v Boland (2007) 17 VR 300, Henry v The King [2023] VSCA 100, DPP v Za Lian; DPP v Hlawnceu [2019] VSCA 75, R v MWH [2001] VSCA 197, discussed.

Counsel
Appellant:		Ms D Piekusis KC with Ms S Lenthall
Respondent:		Mr D Dann KC with Mr C Wareham
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions (Vic)
Respondent:	Theo Magazis and Associates

NIALL JA
BOYCE JA
T FORREST JA:

Introduction

This is an appeal by the Director of Public Prosecutions against sentences imposed on 14 September 2023 upon the respondent, after trial in the County Court, for offences of common assault, false imprisonment and rape. After a plea hearing the respondent was sentenced as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Common assault (contrary to common law)	5 years	2 months’ imprisonment	N/A
2	False imprisonment (contrary to common law)	10 years	8 months’ imprisonment	N/A
3	Rape	25 years	3 years’ imprisonment	Base
Total Effective Sentence: Non-Parole Period:		3 years, 2 years of which was suspended for 3 years Nil
Pre-sentence Detention Declared:		136 days
Section 6AAA Statement:		N/A
Other Relevant Orders: 1. Registration for 15 years under the Sex Offenders Registration Act 2004.

The respondent had a co-accused at trial. The co-accused was charged with the same offences. The co-accused was found guilty of common assault and false imprisonment, but was acquitted of rape. The co-accused was sentenced as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Common law assault	5 years	2 months’ imprisonment	N/A
2	False imprisonment (common law)	10 years	6 months’ imprisonment	Base
Total Effective Sentence (State): Non-Parole Period:		6 months, wholly suspended for a period of 2 years Nil
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		N/A
Other Relevant Orders: N/A

The appellant has one ground of appeal. It is in the following terms:
The sentences imposed on charges 2 and 3, and the total effective sentence, are manifestly inadequate, particularly in light of the partial suspension of the total effective sentence.
For the reasons that follow, we would allow the appeal and re-sentence the respondent.

Offending and disclosure

As already noted, the primary judge was required to sentence the respondent after trial. It was therefore necessary for the judge to interpret facts in a manner consistent with the jury’s verdict. The judge, in his Reasons for Sentence,[1] summarised the respondent’s offending as follows.
[1](‘Reasons’).
You [the respondent and his co-accused] were both aged 19 years at the time of the offending.
The victim in this matter is [name of the complainant]. She was aged 17 at the time of your offending.
You, Christopher Sharp, met [the complainant] in 2009 when she commenced casual employment at your family’s fish and chip shop (‘the Shop’) in Point Cook. You were her manager while she worked at the Shop. [The complainant] was friendly with you and your family and had attended your home for various functions.
You, [name of co-accused], were introduced to [the complainant] by Christopher Sharp as a friend.
Uncharged acts
On Sunday 18 July 2010, [the complainant] was working at the Shop during the day. You, Christopher Sharp, were also on duty. She walked from the front of the Shop to the back area to retrieve an item. As she walked past you, you slapped her buttocks with your flour coated hands. This left a hand print.
About 10 minutes later, [the complainant] walked out to the back area and you grabbed her breasts. Again, you had flour on your hands and left a hand print on her clothing. You laughed at this incident.
Later that evening, at approximately midnight, you sent [the complainant] a text message from your mobile phone. When she opened the message, she saw a picture of an erect penis.
Offences
On Monday 19 July 2010, at approximately 2:00 am, you, Christopher Sharp, attended [the complainant’s] home address. You tooted the car horn and texted her telling her to come outside. She went outside as she did not want her family to wake up due to the noise.
You, Christopher Sharp, were driving a white van which was parked outside the front of Eagle View Place in Sanctuary Lakes. [The complainant] observed both you and an unknown third male sitting in the front seats of the van. The passenger door of the van opened and [the complainant] moved to the door to speak to you, Christopher Sharp.
You, [the co-accused], and the unknown male grabbed [the complainant] and pulled her into the van. The unknown male held her hands behind her back while she was held on his lap in the front seat. Both of you punched her to her body. (Charge 1 – Common Assault)
You, Christopher Sharp, then started the van and drove to a location in Sanctuary Lakes which is a beached area near North Shore Drive.
The unknown male let go of [the complainant] and then pushed her out the passenger side door of the van. All three men exited the van and walked around to the back of the van to the sliding door. You, Christopher Sharp, opened the sliding door and told [the complainant] to get in. You then grabbed her arm and pushed her into the van. The door to the van was then closed.
You then pulled her leggings and underwear down to her knees. [The complainant] attempted to pull her leggings back up but you pushed her head down.
You inserted your penis into her vagina while she was facing away from you. This act lasted approximately 15 to 20 minutes. The act caused significant pain. (Charge 3 – Rape)
After you had finished penetrating her, you opened the van door where you, [the co-accused], and the unknown third male were waiting outside. You, Christopher Sharp, left the back of the van.
[The complainant] could not recall what you, [the co-accused] did next.
At approximately 4:00 am, [the complainant] was pushed out of the back of the van onto the ground. She observed a condom on the ground.
She does not recall how she got home but remembers showering at home at approximately 5.30 am. She hid the clothes that she had been wearing at the time in her bedroom.[2]
[2]Reasons, [5]–[22].
The judge described how the complainant came to disclose the offending. She told two school friends later the same day. She told school counsellors as well. Police were contacted, but the complainant did not want to make a formal report; she did not want her family to find out what had happened to her. The complainant underwent a medical examination. On 27 July 2010 the complainant signed a statement of ‘no further police action’. On 29 September 2010, the police investigation was marked as finalised due to the wishes expressed by the complainant.
The complainant later became a police officer. On 18 July 2019, she disclosed to one of her police colleagues that she had been sexually and physically assaulted by the respondent and two of his friends when she was 17. Investigating police were notified and the police investigation was re-activated. The complainant made a formal statement to police on 22 August 2019. The respondent and his co-accused were arrested on 15 July 2020.

The respondent

As noted above, the respondent was 19 at the time of the offences. By the time of sentence he was 32 years’ old.
He was the youngest of four children and had experienced a happy childhood. His father died in 2019, after a long battle with cancer, and his mother died unexpectedly in 2021.
The respondent had completed Year 12 through what was described as a ‘TAFE VCAL’ program. He obtained certificates in panel beating, spray painting, motor mechanics, auto electrics, first aid and alcohol service. He also obtained forklift and scaffolding licences. After working at his parents’ fish and chip shop he worked in cabinet making and scaffolding. He obtained his Advanced Certificate in Scaffolding and became a field supervisor. He started his own scaffolding business in early 2013 with his brother. The business ultimately failed. The failure of this business caused strain in the respondent’s relationship with his brother and mother.
The respondent met his partner when he was 18 years’ old. He became very close to her family, in particular his partner’s mother. After the unexpected death of his partner’s mother in 2013, the respondent and his partner worked hard to maintain the business that hitherto had been operated by his partner’s family. The respondent separated from his partner in 2014 and conceived a child with another woman. The child was diagnosed with Attention Deficit Hyperactivity Disorder, Autism Spectrum Disorder and Global Mental Developmental Delay. Support was received through the NDIS scheme.
It was at this stage that the respondent’s mental health began to decline. He turned to methamphetamine as a means of coping. He began to use illicit substances daily. This, in turn, led to criminal offending. For instance, on 30 November 2014, the respondent committed a serious armed robbery which led in 2017 to him being sentenced in the County Court to six years’ imprisonment with a non-parole period of three years and nine months.
Importantly, prior to his imprisonment for the armed robbery offence, the respondent reconciled with his partner; she became pregnant with the couple’s first child. By the time of the present sentence the respondent and his partner had two children; they shared the custody of the respondent’s earlier child. As the sentencing judge put it, the respondent’s children ‘motivated [the respondent] to rehabilitate’.[3] The sentencing judge gave eloquent expression to the respondent’s path towards rehabilitation.
[Y]ou subsequently engaged with various substance use prevention programs, undertook regular urinalyses and completed further certifications while in custody. You gained trusted employment positions and became a mentor to other prisoners. Letters from support persons at Port Phillip Prison at the time of your incarceration, which were tendered on the plea, opined that your exemplary behaviour afforded you leave to work in sheds outside of the prison. You also received day release towards the end of your sentence including visits with your partner and children, and with your father who was in hospital at the time receiving cancer treatment. In May 2019, you were transferred to the Judy Lazarus Transition Centre to complete the transitional program. In the five months you resided there, you accessed work and education opportunities in the community and obtained regular leave prior to your release. You were granted parole in October 2019 and continued a high level of compliance in the community. You and [the respondent’s partner] also had another daughter, who will turn three years old in September.
A few days after your release, your father was transferred to palliative care and subsequently died. Your mother unexpectedly died less than two years later from heart complications.
A psychological report by Alison Mynard, clinical psychologist, dated 3 June 2023, opines that while you were prescribed antidepressants and Valium for depression and anxiety in 2014 and again when charged with this offending, you do not currently have a psychological or psychiatric diagnosis. She noted that while you have some symptoms of an adjustment disorder with anxiety and depression traits, it can be attributed to the uncertainty surrounding the matters currently before this Court. Ms Mynard reports that you may have suffered from Complicated Bereavement Disorder caused by the high levels of grief and depression you felt when [the respondent’s partner’s] mother and your parents passed away, which caused you to rely on illicit substances and anti-social behaviour to cope, however you have reconciled with their loss and surrounding grief. She also reported that your risk of reoffending is low and your rehabilitation prospects are very good.
Several character references were tendered on the plea from your friends, family and employer, many of whom have attend court to support you. They describe you as a reliable, family-orientated and trustworthy person who regularly contributes to the wider community. They note your dedication to your family, friends and neighbours, and your willingness to volunteer within the community. Your partner … details her reliance on you to support your family and the pride she has seeing you rehabilitate since your custodial sentence. She is concerned that your time in custody will disrupt your relationship with your young children and how she will support the family without you.[4]
[3]Ibid [55].
[4]Ibid [55]–[58].

The plea

On the plea, the respondent did not dispute the need for imprisonment. He sought, however, a sentence of imprisonment combined with a Community Correction Order (‘CCO’). This submission was based, primarily, on the respondent’s youth at the time of the offending. Attention was also called to the 13-year delay that had elapsed since the offending. It was submitted that ‘the delay’s not the fault of Mr Sharp’. It was emphasised that the respondent had made considerable rehabilitative efforts over the period of the delay, and that he had become ‘effectively rehabilitated’. The respondent relied on a substantial body of documentary evidence, expert and otherwise, which —so it was submitted — established ‘the completeness of that reformation’. It was put that given the respondent had undergone such a complete process of rehabilitation, and was now responsibly re-united with his family and children, sending the respondent back to prison would weigh heavily upon him. The respondent relied on the sentencing principle of parsimony. Even mercy was sought.
The Crown, on the plea, conceded that given the offending had taken place in 2010, and that there had been such a significant delay, a ‘missed opportunity’ for the respondent to have been sentenced ‘as a youthful offender’ was established. Referable to the period that had elapsed since 2010, the prosecutor conceded that:
delay was not attributable to … the accused, it is the feature of this case.
Nevertheless, the Crown’s position on sentence was that the offending had to be met with a term of imprisonment combined with a non-parole period.

The sentencing judge’s characterisation of matters relevant to sentence

The sentencing judge described the complainant’s experience of the offending as ‘an ordeal that would have undoubtedly been a terrifying experience for her.’[5] The judge noted that the respondent, at trial, had denied the facts giving rise to the false imprisonment and assault charges. The judge considered that the respondent’s commission of the false imprisonment charge encapsulated ‘the act of pushing the victim into the back of the van and the closing of the door … before the commencement of the conduct the subject of the rape’.[6] The judge assessed the commission of the common assault charge as not lying within ‘the high end of the scale’, albeit that it still constituted ‘serious offending’.[7]
[5]Ibid [38].
[6]Ibid [39].
[7]Ibid [40].
The judge noted that the respondent’s version of the facts underlying the rape charge largely aligned with what the complainant had had to say, save that the respondent alleged that the ‘complainant was consenting’ and that she was an ‘active participant’.[8] The respondent had given evidence that he had used a condom.
[8]Ibid [41].
The judge, in assessing the gravity of the respondent’s offending, noted the following matters: that the complainant was young and vulnerable; that the respondent was the complainant’s employer; that the offending occurred in the middle of the night; that —once in the van — the respondent pulled the complainant’s underwear down and kept pushing her down while penetrating her; that the victim felt pain and discomfort (she having stated that she felt ‘ripped and torn’) and that, during the rape, the respondent had told the complainant that she should ‘sound like she’s enjoying it’.[9] The judge concluded that, in all the circumstances, ‘it is self-evident that [the respondent’s] conduct can only be described as a relatively serious example of rape’.[10]
[9]Ibid [42].
[10]Ibid [43].
The judge took into account the impact that the respondent’s offending had had upon the complainant. The complainant, in a victim impact statement, recounted — for instance — that the offending had a significant life-altering effect upon her. She had lost ‘innocence, hope, self-esteem and self-worth’; she now suffered from depression, anxiety, Complex Post-Traumatic Stress Disorder and Borderline Personality Disorder.[11]
[11]Ibid [44]–[46].
Dealing with the important issue of delay, the judge observed as follows:
Delay is relevant in this instance in a number of ways. As noted, the offending occurred some 13 years ago. There has been further delay since the charges were laid in July 2020 as a result of the pandemic. The delay is also relevant in that at the time of the offending you were both 19 years of age with no prior criminal history, a matter I will address further below. The prosecution concede that the delay in this case is not attributable to … you and I take it into account in mitigation.[12]
[12]Ibid [69] (Emphasis added).
The judge said that had the respondent been sentenced ‘near the time of the offending’ the respondent would have been treated as a ‘young offender’ who had ‘no prior criminal history’, in respect of whom, ‘the principles in relation to young offenders would have been given full effect’.[13] Nevertheless, despite the passing of 13 years, the judge considered that ‘general deterrence still has a role to play in the sentencing discretion together with denunciation of [the respondent’s] conduct’.[14] As the judge put it:
This was serious offending over an extended period against a vulnerable young woman.[15]
[13]Ibid [70].
[14]Ibid [71].
[15]Ibid.
In reference to the respondent’s process of reclamation, achieved since his descent into drug addiction and further criminality, the judge recognised that it appeared ‘in recent years’ that the respondent had ‘settled in the community’, was committed to his family, and was genuinely moving on with his life. The respondent’s risk of reoffending the judge assessed as ‘low’.[16]
[16]Ibid [72].
The judge rejected the sentencing option of a combined gaol–CCO disposition. Nevertheless, given that the offending had occurred so many years earlier, the judge acknowledged that he had the legal option of imposing a partially suspended sentence.[17] This was ultimately the disposition that the judge chose.
[17]The option of a suspended sentence was preserved for the present offending by operation of the Sentencing Amendment (Abolition of Suspended Sentences & Other Matters) Act 2013. Nevertheless, s 27(2)(a) of the Sentencing Act 1991 (as applied at the date of the respondent’s offending and was open to be utilised in the present case) limited suspension — partial or otherwise — to an ‘aggregate term of imprisonment’ not in excess of three years.

In choosing the option of a partially suspended sentence, the judge cited the well-known dicta of Batt and Buchanan JJA in DPP v Buhagiar and Heathcote.[18] Indeed, the judge set the relevant passage from their Honours’ reasons out in full. Given its importance to the reasoning of the primary judge, it is worthwhile, here, to set out what Batt and Buchanan JJA had to say.
Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending. In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy … or for some other sufficient reason should have this particular avenue open to him, provided the conditions of the suspension are observed.[19]
[18][1998] 4 VR 540 (‘Buhagiar and Heathcote’).
[19]Ibid 547 (Batt and Buchanan JJA).

Submissions

The appellant, in this Court, submitted that the respondent’s offending was a ‘grave example’ of false imprisonment and rape. This was so for the following reasons: the offending was premeditated; it was committed in company; the overall attack continued for some two hours (the rape itself persisting for some 15 to 20 minutes); the offending involved physical force; the rape caused the complainant physical injury; the rape involved the degradation and humiliation of the complainant; the complainant was particularly vulnerable; and, the offending took place in a relatively secluded location. It was emphasised, also, that the respondent had held a position of power or authority over the complainant in light of his status as the complainant’s manager at the family’s fish and chip shop.
Emphasis was placed on the devastating impact that the offending had had upon the victim. The respondent was unable to rely on pleas of guilty or remorse. As to the respondent’s youth at the time of offending, it was submitted that this necessarily had to be ‘tempered by the gravity of the offending’.
It was submitted that it would be ‘incongruous’ for the respondent to be afforded a sentencing benefit for the mere fact of the delay given that the respondent had ‘evaded justice for his crimes for a decade’. It was submitted that only the period ‘of nearly three years’ could be brought to account, this being the period during which the charges were ‘hanging over [the respondent’s] head’.
As to any rehabilitation achieved by the respondent, it was submitted that this had only come to fruition in ‘recent years’. For most of the period since the respondent’s offending, he had ‘remained unreformed’. Against the background of the respondent’s drug taking, criminal offending and incarceration since his commission of the present offences, it was put that the respondent’s complete denial of the present offending stood against any finding of complete rehabilitation.
It was submitted that the sentences on charges 2 and 3 were manifestly inadequate, including the total effective sentence, and that this inadequacy was compounded by the suspension of two-thirds of the total effective sentence. The decision to suspend the sentence did not give sufficient weight to denunciation, deterrence and the gravity of the offending. It was submitted, in the end, that the sentences imposed in this case fell ‘egregiously short of the range of sentences reasonably available in this case’.
The respondent submitted that he fell to be sentenced in a ‘highly unusual context’. If, for instance, the respondent had been sentenced as a 19-year-old — without prior convictions — significant emphasis would have had to be placed on principles relevant to youth. It was emphasised that the sentencing judge appeared to accept that the respondent’s risk of reoffending was low and that his prospects of rehabilitation were very good.
The delay between offence and sentence was a significant matter. In the intervening period the respondent had served a number of prison sentences, including the 2017 sentence for armed robbery. Fairness required that weight be given to the respondent’s rehabilitation during the term of that particular sentence, as well as the bare fact of the delay. It was put that the judge was, in effect, sentencing for a ‘stale crime’.
The respondent’s proven rehabilitation meant that there was no longer a need to protect the community from the respondent. Indeed, because the respondent was only 19 years old when he offended, general deterrence was to be reduced as well as specific deterrence and the respondent’s moral culpability.
It was submitted that the respondent had made ‘outstanding efforts towards rehabilitation’; indeed, it was put that the respondent had ‘turned his life around’. The respondent had gained employment, become a devoted father and had contributed to the wider community. After his completion of the parole period connected with the 2017 armed robbery sentence, the respondent had become a responsible father of children (one child possessing significant difficulties). The respondent had achieved a drug-free lifestyle.
Delay also had its effect on totality. When the complainant made her statement on 22 August 2019 the respondent was still in custody. It was submitted that the criminal process appeared to have to wait until the respondent got out of custody. It was unclear why that had to be so. The respondent was released on 9 October 2019 and yet he was not interviewed until 15 July 2020. There was a lost chance of concurrency with the armed robbery sentence.
It was submitted that a partially suspended sentence could still give effect to general deterrence and, in itself, constituted significant punishment. It was submitted that this was not one of those rare cases where a partial suspension of sentence could render the sentence manifestly inadequate. In other words, if the three-year term was within range, then the decision partially to suspend could not give rise to manifest inadequacy.[20] It was submitted that three years was within range. Heavy emphasis was placed on the observations of Batt and Buchanan JJA quoted by the sentencing judge and found in Buhagiar and Heathcote.
[20]Reliance was placed on Henry v The King; DPP v Henry [2023] VSCA 100, [105]–[106] (Priest AP, T Forrest and Taylor JJA).
Insofar as the judge had ordered complete concurrency between all the sentences, it was submitted that this was justified because the offending was ‘one continuing episode’, and concurrency was presumed in any event.
Lastly, it was submitted that, insofar as the appellant’s ground of appeal sought to impugn the sentence of eight months’ imprisonment imposed on charge 2, parity with the respondent’s co-accused’s sentence of six months’ imprisonment for false imprisonment could not be ignored.

Consideration

The principles that apply to a Crown appeal against sentence when the error pleaded is manifest inadequacy find expression in Director of Public Prosecutions v Karazisis:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[21]
[21]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at 637 [1]) (citations omitted); [2010] VSCA 350.
The present offending was particularly brutal. It was committed essentially in company.[22] The complainant was 17 years old. Even allowing for the fact that sentences for rape may be said to ‘have increased somewhat in recent years’,[23] had this offending been dealt with close in time to its commission, the respondent’s youth would not have prevented the imposition of quite a substantial period of imprisonment; certainly one far in excess of any sentence susceptible to partial suspension.
[22]Albeit that the co-accused was not formally complicit in the rape.
[23]DPP v Za Lian; DPP v Hlawnceu [2019] VSCA 75, [60] (Ferguson CJ, Kaye and Weinberg JJA).
In the period since he committed the present offending, the respondent had continued further down the path of criminality. Yet, no doubt through considerable effort, the respondent had managed to reclaim his life. When, years later, this process of reclamation was well underway, the respondent’s present offending visited itself upon him.
The period that had elapsed from offence to sentence was, of course, important. It allowed the respondent to demonstrate rehabilitation. The sentencing judge, in reliance upon a Crown concession, held that the delay was not ‘attributable’ to the respondent. As has been noted, the appellant submitted in this Court that this concession was referable only to delay experienced after the commencement of the criminal process in 2019. We cannot accept that submission. It is clear to us that the Crown’s concession was intended to cover the full 13-year period. Certainly this is how the concession was understood by the sentencing judge.
This concession was certainly generous. But it is difficult to conclude that the period of delay from offence to 2019 (when the police investigation was reactivated) was unfair to the respondent.[24] But some unfairness did accrue, however, from the point of reactivation onwards.
[24]Compare R v Todd [1982] 2 NSWLR 517, 519–20 (Street CJ) where the prisoner was unable to be sentenced expeditiously in New South Wales due to his service of a sentence in Queensland.
It is clear that the sentencing judge was moved by the respondent’s efforts at rehabilitation. The judge’s reliance upon the dicta of Batt and Buchanan JJA in Buhagiar and Heathcote reflects as much. But the observations of Batt and Buchanan JJA must be understood in their context. That context was a Crown appeal against two three-year total effective sentences imposed upon respondents where, as Batt and Buchanan JJA noted: ‘[t]he director’s challenge was solely to the total suspension of the sentence of each respondent’.[25] The remarks of Batt and Buchanan JJA assume the correctness of each total-effective three-year term imposed in that case;[26] the remarks address only the decision to suspend.[27]
[25]Buhagiar and Heathcote [1998] 4 VR 540, 546 (Batt and Buchanan JJA).
[26]Batt and Buchanan JJA in Buhagiar and Heathcote [1998] 4 VR 540 at 544 record that ‘[c]ounsel for the appellant was careful to say that the appeals were brought only against the suspension, not the terms themselves or their non-cumulation.’
[27]Section 27(3) of the Sentencing Act 1991 (as it applied) required, in any event, that the three-year terms, if unsuspended, be ‘appropriate’; any increase to those terms would have removed the option of suspension.
As already noted, a partially suspended sentence was a legal option here, so long as the length of the total sentence did not exceed three years.[28] But was it really ever open in this case to impose a total-effective term of no longer than three years? Given that the sentence imposed on the rape charge was three years’ imprisonment, and in light of the fact that all the other sentences were ordered to run concurrently with the rape sentence, this question may be answered simply by asking whether it was reasonably open to the sentencing judge to impose a three-year term for the respondent’s commission of the rape.
[28]See fn 17 above.
Quite simply, we do not think that it was. Affording the respondent all the benefit that must accrue to him on account of delay, achieved rehabilitation,[29] the Crown concession concerning the respondent’s lack of responsibility for delay, totality, as well as the respondent’s age at the time of the crime’s commission;[30] where the legislature has set an applicable maximum penalty of 25 years’ imprisonment and where the respondent could claim no mitigation on account of remorse or a plea of guilty, it seems to us that a sentence of three years’ imprisonment for this rape entirely fails to reflect the objective seriousness of the offending and the consequent need for general deterrence and denunciation.
[29]R v MWH [2001] VSCA 197, [18] (Callaway JA, O’Bryan AJA agreeing at [34]).
[30]R v Boland (2007) 17 VR 300, 303-4 [15]–[16] (Nettle JA, Ashley agreeing at 306 [25], Dodds-Streeton JA agreeing at 306 [27]).
The rape in this case came at the tail-end of what must already have been a terrifying ordeal for the complainant. The complainant was bundled against her will, at night, into a van and driven away from her home by three men. Along the way she was assaulted. She was taken, ultimately, to a place of relative seclusion. There she was raped by the respondent, over a not insignificant period of time, and also made to suffer the indignity of being told that she might at least sound like she were enjoying herself. The other two men stood by the van while this was happening. The complainant was 17. She was, in fact, in Year 11.
In our view the sentence of three years’ imprisonment imposed on the respondent for the offence of rape was wholly outside the range of sentences reasonably open to be imposed in this case and thus must be seen as manifestly inadequate. Because the rape sentence was correlative with the total effective sentence, the total effective sentence is also manifestly inadequate. The appeal must therefore be allowed and the respondent re-sentenced.
Given these conclusions, it is strictly unnecessary, in order to determine this appeal, to form a view about the sentence impugned by the appellant on charge 2. We consider, however, that the eight-month term imposed on charge 2 is remarkably lenient. Nevertheless, as the respondent argued, parity with the co-accused’s six-month sentence for false imprisonment remains a relevant consideration.
In all the circumstances, we would re-sentence the respondent to five years’ imprisonment on charge 3 (rape) and otherwise confirm the sentences imposed in the County Court in respect of charges 1 and 2. We would order that the sentence on charge 3 form the base sentence, that three months of the sentence on charge 2 and one month of the sentence imposed on charge 1 be served cumulatively upon the sentence imposed on charge 3 and upon each other. This produces a total effective sentence of five years and four months’ imprisonment. We would direct that the respondent serve three years before becoming eligible for parole.

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[2024] VSCA 24

6 March 2024