DPP v Dowie

[2009] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 913 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID DOWIE

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JUDGES:	MAXWELL P, VINCENT JA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2009
DATE OF JUDGMENT:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 154
JUDGMENT APPEALED FROM:	DPP v Dowie (Unreported, County Court of Victoria, Judge Barnett, 24 October 2008)

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CRIMINAL LAW – Sentence – Abduction with intent to rape – Rape – Recklessly cause serious injury – Intentionally cause serious injury – Whether sentence imposed manifestly inadequate – Aggravating features – Serious sexual offender – Protection of the community – Right to feel safe in public – Appeal allowed – Respondent re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr D Grace QC	Robert Stary Lawyers

MAXWELL P
VINCENT JA
COGHLAN AJA:

1. This is an appeal by the Director of Public Prosecutions against sentences imposed upon the respondent in the County Court at Melbourne, on 24 October 2008, and arising out of offences committed against a 21 year old female at Elwood on 20 October 2000.  These matters were encompassed by Presentment No X01047514.

Factual circumstances

1. The circumstances were outlined by the prosecutor in the Court below as follows:

[A]t approximately 11.30 p.m., the victim, a 21-year old female referred to as the victim, left her home in Elwood and began walking along Mitford Street, Elwood, towards the 7-Eleven store situated on the corner of Barkly and [Blessington] Streets, Elwood.  On arrival approximately 10 minutes later she purchased a number of items including a block of chocolate, cigarettes tea bags and ice cream.  The victim then began walking back home along Mitford Street.  When she was about half-way home she heard a noise behind her and turned around.  She was then confronted by the [respondent] who was armed with a knife.  The [respondent] put his arm around the chest of the  victim and using his right hand placed the knife to the throat of the victim.  The [respondent] told her to shut up and not scream or he would kill her.  The accused told her that  the knife was against her jugular and he would ‘slit her throat and run.’  The victim was then frogmarched down Mitford Street right into Deakin street to the Botanical Gardens.  The [respondent] was constantly telling the victim not to scream or he would slit her throat.  Gives rise to Count 1, count of abduction. 

He told her that he was going to have sex with her as many times as he wanted and that she was going to keep quiet.  The [respondent] pushed the knife hard up against the victim's throat when he was threatening her.  The victim described the knife as like a Stanley knife.  The [respondent] forced the victim over the fence into the Botanical  Gardens.  At this time the victim dropped her bag of items that she had purchased from the 7-Eleven store.  The  [respondent] was still holding the knife against her as he walked her about 30 metres into the gardens.  He selected a treed bushy area and then pushed the victim onto the ground and told her to get undressed whilst still pointing the knife at her.  She was very scared and hesitated about undressing.  The victim noticed the [respondent’s] tone became rougher and he told her to hurry up as she was taking too long.  The [respondent] got on top of the victim once she had taken off her clothes.  He tried to force his tongue into her mouth whilst still holding the knife against her neck but she avoided him.  He then forced her legs apart and began licking inside the complainant's vagina.  Gives rise  to Count 2, a count of rape.  During this act the accused bit the inside lip of her vagina which caused her pain.  He then inserted one of his fingers into her vagina.  Gives rise to Count 3, a count of rape.  And then put his penis inside her vagina, Count 4, count of rape.  He did not wear a condom and ejaculated inside her vagina.  They then put their clothes back on and the victim went to leave.  For the first time she got a clear look at the face of the [respondent].  He then asked her whether she was getting a good description of him.  The [respondent] still had the knife in his hand and stated that he wanted to talk to her.  He told her that he wasn't a bad man.  He said he had been out with people he didn't know and that somebody must have put something in his drink.  She asked him if he had raped anyone before and he said that he hadn't.  

She asked him why he carried a knife and he told her that he always carried one for self-defence.  He told the victim that he felt rotten about what he had done to her, that he felt like shit and that he wanted to take her anger away.  He asked her if she wished to go to the police station together.  She said she didn't want to.  The victim stated that she said that as she thought he was trying to trick her to see if she was going to tell anyone.  The [respondent] was still holding the knife whilst they talked.  She was crying throughout the incident and asked him to put the knife down.  During this time he took out a cigarette and asked for her lighter.  She told him that the lighter was in the shopping bag and that she had dropped it at the foot of the fence. 

The victim stated that it was obvious to her that the [respondent] thought that she would try and get away if she went to collect the cigarette lighter.  He then took her by the arm and led her to the fence where she dropped her bag.  He dragged it under the fence.  He was still holding the knife when he walked her back to where they had been sitting.  He then lit a cigarette and put the knife down in his lap and raised his hands and said, ‘See it's down.’ He would then pick up the knife and put it back in his lap.  This happened a few times before he threw the knife 4 or 5 feet away.  She then got up to leave and he asked, ‘What if I want sex again?’  She said, ‘No, can't you leave me alone?  I've done everything you told me without screaming, please just let me go.’  The [respondent] then pulled out another knife from his jacket, smaller than the other with a yellow handle and the blade on an angle like a Stanley knife.  He pushed the blade up.  She was standing and he was sitting on the ground.  The victim then fled, jumped over the fence and caught a taxi nearby.  She was driven to her home.[1] 

[1]Transcript 8-10.

1. The respondent was also sentenced at the same time for a quite separate offence which he committed approximately six and a half years later (Presentment No W01022362).  In relation to that matter, the judge found that:

[O]n 21 April 2007, you were in the City of Melbourne, substantially intoxicated and, it seems, perhaps on two occasions, maybe one, you were set upon by groups of young males in the city.  The behaviour of the young males was to say cowardly and mean and no doubt placed you in a great deal of fear.  They chased you for some time down Flinders Street causing you to cross, it seems, against traffic lights at Swanston Street.  In any event, you reported the matter to the police at the Melbourne East Police Station, which is in Flinders Lane, a short distance from Swanston Street.  The police noticed your intoxication, they said they would investigate the matter, you apparently refused to give them details. 

After being disappointed at the police response, you then moved down  Flinders Lane towards the intersection of Swanston and Flinders Street where you saw one of the young men you believed had accosted you.  You, at that stage, it seems, armed yourself with a broken glass bottle, stepped up to the victim and slashed him across the right side of his face and shoulder.  You were then chased by a number of men as you ran away from the scene, including the victim.  You were caught outside the front of the Melbourne East Police Station where you were interviewed by the police.  The victim had an injury to his right ear, which required plastic surgery and involved some permanent damage.  There was a laceration also to his right shoulder. 

It is perhaps clear from the depositions and by inference, and indeed from what you told me in the course of the evidence on the plea, that you were frightened by the behaviour of the young men.  You tried to report the matter to the police who, on your version, were dismissive.  As a result of you wanting to seek some retribution, and/or perhaps coupled with some drunken thoughts relating to self-defence, you armed yourself with a bottle, smashed it, and caused the injury to the victim.[2] 

The victim in that matter had reported in his Victim Impact Statement that he was self conscious of the resultant scarring and that it made him feel ‘a bit weird’ when people referred to it.

[2]Sentence 67-8.

1. After considering a plea made in mitigation of penalty, his Honour imposed the following sentences.

First presentment:

Maximum	Sentence	Cumulation
1.   Abduction with intent to rape	10 y	1 y	2 m
2.     Rape (lingual)	25 y	4 y	1 y
3.    Rape (digital)	25 y	4 y	1 y
4.    Rape (penile)	25 y	4 y	Base
5.    Recklessly cause injury	5 y	6 m	─

Second presentment:
Intentionally cause serious injury	20 y	3 y	1 y
Total Effective Sentence:   7 y 2 m Non-Parole Period: 5 y 2 m

1. The Director of Public Prosecutions has appealed against the individual sentences imposed for the offences committed during the first incident and the resultant total effective sentence and non-parole period, contending that all were inadequate to the extent that the intervention of the Court is required.  The offences of abduction and rape, in particular, which the respondent perpetrated were, it was argued, of their nature to be regarded gravely and the conduct in which he engaged serious examples of them.  There was no complaint about the sentence imposed on the count of intentionally causing serious injury arising from the second incident or about the cumulation of one year.

Submissions on the appeal

1. In a written Outline of Submissions in support of the appeal, counsel appearing for the Director argued that –

There were a significant number of aggravating features to the respondent’s offences, including, inter alia, that:

(a)The attack occurred in public, and close to the victim’s home;

(b)It lasted for a considerable period of time;

(c)The use of a knife;

(d)The accompanying verbal threats and intimidation;

(e)The degree of violence used;

(f)The respondent was a complete stranger;[3]

[3]R v Vivona;  DPP v Vivona [2005] VSCA 205, [10]; Fox & Freiberg, Sentencing, State and Federal Law in Victoria, (2^nd Ed), 12.406.

(g)The failure to wear a condom;[4]  and

[4]R v Klem [2008] VSCA 136, [18]–[20] (Neave JA) and [34] (Pagone AJA).

(h)The adverse consequences for the victim have been profound.[5]

[5]See Exh B:  the victim’s VIS was made nearly eight years after the offences, and graphically describes the severity and long lasting nature of those matters.

The respondent targeted a completely innocent young woman walking home, and at knife point abducted and then brutally and repeatedly raped her.  Those offences were committed in circumstances involving considerable fear, threats and intimidation.  Towards the latter part of the incident, the respondent deliberately taunted the understandably terrified victim.  The incident ended not because the respondent desisted, but because the victim managed to escape.

…

The sentence imposed for the abduction count represented just 10% of the available maximum, as did the sentence for the recklessly causing injury count.  The sentence of 4 years imposed for each of the three rape counts equated to just 16% of the available maximum penalty of 25 years.  After orders for partial cumulation, the total sentence of 6 years and 2 months imprisonment imposed for the first incident, still only represented less than ¼ of the available maximum for a single offence of rape.

In light of the gravity of this offending, and the circumstances of this offender, it is submitted that those individual sentences reveal such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle.

Those manifestly inadequate individual sentences and the limited orders for cumulation have produced a head sentence that can only be described as manifestly inadequate.  As the non-parole period was fixed by reference to that head sentence, it too is manifestly inadequate.

1. Senior counsel for the respondent, in his written submissions, accepted that the offending called for condign punishment.  But, he argued, this was understood by the sentencing judge.  It was clear, he submitted, that his Honour had taken into account the current sentencing practices in such cases, as he was required to do, and so far as they could be ascertained from a number of recent cases and the relevant Sentencing Snapshots.[6]  The cases and the Snapshots indicated, he pointed out, that the median length of imprisonment for rape between 2001 and 2006 was six years.  When regard was then had to the factors personal to the respondent that militated in favour of mitigation of penalty – including his early entry of a plea of guilty, personal background and prospects for rehabilitation – the individual sentences and the total effective sentence handed down could be seen to reflect a careful and appropriate synthesis of all of the relevant factual circumstances and sentencing principles and certainly in accord with current sentencing practices.  It was emphasised, in this context, that his Honour, had indicated that, in the absence of a plea of guilty, a total effective term of 10 years and 6 months’ imprisonment would have been imposed, with a non-parole period of 6 years and 6 months.

   [6]These had been prepared by the Sentencing Advisory Council.

1. Senior counsel for the respondent conceded, properly, that his client’s conduct before and after the rapes significantly aggravated the seriousness of his conduct.  As appears from the prosecutor’s summary, the respondent abducted the victim at knifepoint.  Holding the knife to her throat, he threatened to kill her if she made any noise.  These threats were repeated, and would have been quite terrifying.  After the rapes, the respondent continued to torment the victim, detaining her while he picked up and put down the knife repeatedly.  When she tried to leave, he raised the prospect of raping her again.

1. What the court said in The Queen v O’Rourke[7] is apt: 

The essence of the criminality of [this] conduct is to be found in the commission of sequential acts of a violent, degrading and humiliating kind, each of which combined to produce the state of terror into which the victim was so clearly driven. 

…

[This was] an aggregation of acts which together contributed to the debasement and humiliation of the complainant over a significant period of time during which the respondent was well aware of her resistance and distress.

[7][1997] 1 VR 246, 252.

1. Senior counsel argued that some form of abduction and/or false imprisonment was a typical feature of cases of this kind, and that such conduct was often not the subject of a separate charge.  In the present case, there was a separate charge of abduction with intent to rape, but no charge of false imprisonment.  Counsel acknowledged that, where such conduct is not separately charged, it aggravates the seriousness of the sexual offence itself.  He accepted that what his client had done to the victim following the rapes was properly to be characterised as false imprisonment.

1. Senior counsel referred, in support of his submission, to the decision of this Court in The Queen v Fisher[8] (‘Fisher’).  There, the offender had abducted the victim, before raping her, and had threatened to kill her if she resisted.  There was no separate count of abduction with intent to rape.  A sentence of 7 years’ imprisonment on the single count of rape was held not to be manifestly excessive.  As Coghlan AJA commented during the hearing of the appeal, however, the criminality involved in the present case was considerably worse than that for which Fisher was sentenced.

   [8][2008] VSCA 11.

Respondent’s background

1. With respect to the respondent’s background, the judge made the following findings:

You were born in Bulawayo, Zimbabwe.  You lived there until the age of 28 when you left to live in the United Kingdom.  Your mother died in June of this year aged 76.  Your father died in November 1996 at the age of 78.  Your father worked in the goldmines and eventually became a manager.  Your parents separated when you were aged two or three.  You have two elder siblings, a sister aged 43 and a brother aged 42.  There are two other children, aged 52 and 50, but they lived with relatives during your upbringing. 

Your mother, because of your father’s behaviour, struggled financially.  Your father inflicted a cruel lifestyle on your mother.  You lived in a part of Bulawayo that was very much affected by Apartheid.  You and your family were considered “coloured people”, therefore not  part of the white community nor part of the indigenous community.  Consequently, your educational, and indeed social opportunities have been very limited.  However, in saying that, it seems that you were a bright student.  You completed Form 4 and did well at school. 

After leaving school you found employment in a large department store and worked at an import/export business as a shipping clerk.  You began travelling overseas and eventually set up your own import/export business.  However, in 1996 there was a flood of import/export licences and your business fell away.  You then formed a partnership with a friend and ran a Safari business.  That business continued until 1998.

In 1998 you met an Australian woman.  You went to the United Kingdom with her to do labouring work and you worked also in a hotel.  In August 1999, you went back to Zimbabwe and introduced this woman to your family and then began living with her in Australia at Moe.  Her parents appeared quite racist and there were stresses that developed in the relationship. 

Initially you could not find employment because of the limitations on your Visa.  In 2001 to 2004 you began working as a waiter and did bar work.  You tried to make T-shirts, and began selling them from door to door in Chapel Street, however in 2005 you found employment in a very large department store where you remained until remanded in relation to the charge of rape.[9] 

[9]Sentence 69-71.

1. His Honour appeared to have accepted that the respondent had stabilised his life and made serious endeavours to rid himself of substance abuse problems that involved, over the years, heroin, amphetamine, cocaine, cannabis and, of course, alcohol.  He had formed and maintained over the five year period preceding sentencing a relationship with a woman that had assisted significantly in this regard.

Protection of the community

1. The prosecutor correctly pointed out to the sentencing judge that, if a sentence of imprisonment were imposed on count 1 (abduction) and count 2 (rape), the respondent would fall to be sentenced on the remaining rape counts (3 and 4) as a serious sexual offender. His Honour did impose sentences of imprisonment on the first two counts and, as a result, was obliged by s 6D(a) of the Sentencing Act to approach the sentencing on counts 3 and 4 on the basis that the protection of the community from the respondent was the principal purpose for imposing those sentences. 

1. The prosecutor indicated that the Crown did not seek an exercise of the Court’s power, under s 6D(b), to impose a disproportionate sentence in order better to protect the community. His Honour was nevertheless required to address the question which s 6D(a) posed, namely, what risk of reoffending did the respondent present?[10]  As Coghlan AJA pointed out, his Honour was also obliged, by virtue of s 6E, to approach the question of cumulation in respect of counts 3 and 4 on the basis that the sentences must be served cumulatively unless otherwise ordered. 

   [10]See, for example, Director of Public Prosecutions v CPD [2009] VSCA 114, [49]; The Queen v RNT [2009] VSCA 137, [15]–[20].

1. As to the risk which the respondent presented, the Crown conceded on the appeal that, as at the date of sentencing in 2008, the respondent had good supports around him,  and that this was a material change since the time of the rapes in 2000.  At the same time, it was submitted, the respondent still represented a risk of reoffending and, if he did reoffend, he was likely to engage in serious criminal behaviour, as evidenced by the charges in the two presentments.  Senior counsel for the respondent conceded that the sentencing judge had been entitled to find, and had implicitly found, that the respondent represented a risk of reoffending.  This was, we have no doubt, a material consideration in the sentencing of the respondent.

Reckless intoxication

1. The respondent gave evidence on the plea.  Referring to the rapes, he spoke of his remorse at having committed ‘such a heinous and savage act’, and offered the victim his ‘deepest and most sincere apologies’.  He spoke of his efforts to break his addiction to alcohol and drugs.  He acknowledged, however, that he had been heavily intoxicated when he committed the offence of violence in 2007.

1. In cross-examination, the respondent agreed with the prosecutor that he had, before the 2000 offending, suffered ‘memory blanks’ because of drinking too much alcohol.  The cross-examination continued:

Did you also know that when you drank alcohol you became violent?---Not all the time.

No, but some of the time?---Yes, yes.

If someone irritated you, you would become angry a lot more quickly because of the alcohol;  is that right?---Yes.[11]

[11]Transcript 38.

1. In response to a question from the Court, senior counsel for the Director agreed that this evidence was relevant to the respondent’s culpability.  Counsel submitted that the respondent’s culpability for his offending, both in 2000 and in 2007, could be viewed as being greater because of his prior knowledge that, when he drank heavily, he would often behave violently and would become so drunk that he would not recall what he had done.  As Vincent JA put it during the hearing, the respondent knew that when he drank heavily he was likely to become a risk to the community, but took no steps to prevent that risk from recurring.

1. Quite properly, senior counsel for the Director placed no reliance on this argument as a basis for attacking the inadequacy of the sentence imposed below.  As he pointed out, no such submission was made to the sentencing judge, even though the factual foundation for it existed.  We draw attention to this matter because this is not the first time that an important matter of aggravation, associated with recurrent intoxication, has apparently been overlooked by the prosecution.  The same occurred – in relation to evidence of recurrent offences committed in the wake of drug-taking – in The Director of Public Prosecutions v Avci.[12]

   [12][2008] VSCA 256, [45]–[47]; see also DPP v Smeaton [2007] VSCA 256, [14] and R v Martin [2007] VSCA 291, [21]–[30].

Sentencing range

1. The sentencing judge received very good assistance from the prosecutor on sentencing range.  Although stopping short of identifying the range appropriate for the case at hand,[13] the prosecutor submitted that the seriousness of the offending required a sentence above the median sentences for rape shown in the Sentencing Snapshots published by the Sentencing Advisory Council, to which the sentencing judge had referred. 

   [13]Compare R v MacNeil-Brown;  R v Piggott [2008] VSCA 190.

1. The prosecutor referred, in particular, to the decision in Fisher.[14]  As noted earlier, a sentence of 7 years’ imprisonment for lingual rape following abduction with threats, was held not to be manifestly excessive.  The prosecutor also referred to the following decisions of this Court:

·DPP v Daly:[15]  the offender pleaded guilty to three counts of rape, and was sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years.  The Director’s appeal was allowed.  Making the conventional deduction for double jeopardy, the court resentenced the offender to a total effective sentence of 6 years’ imprisonment with a non-parole period of three and a half years.

·DPP v McCloy:[16]  the offender pleaded guilty to rape, indecent assault, intentionally causing serious injury and making a threat to kill.  On the Director’s appeal, the court held that the total effective sentence of 6 years and 6 months’ imprisonment, with a non-parole period of 4 years, was manifestly inadequate.  Making the conventional reduction for double-jeopardy, the court resentenced the offender to a total effective sentence of 8 years’ imprisonment, with a non-parole period of 5 years.  The sentences on the rape counts ranged from 5 years’ imprisonment to 3 years’ imprisonment.

·The Queen v Prowse:[17]  the offender was sentenced for aggravated burglary, two counts of rape and one count of indecent assault.  The sentencing discretion having been reopened because of error, the respective sentences of 6 years and 4 years for the rape counts were reimposed.

·The Queen v Ahmed:[18]  the offender pleaded guilty to one count of false imprisonment and one count of rape.  He was sentenced to 18 months’ imprisonment on the false imprisonment count, and 4 years on the count of rape.  His appeal was dismissed, the court holding that the sentence imposed for the rape was ‘well within the range’.[19]

[14]See [10] above.

[15][2004] VSCA 63.

[16][2006] VSCA 99.

[17][2005] VSCA 287.

[18][2006] VSCA 200.

[19]Ibid [30].

1. We have already referred to the decision of this Court in Director of Public Prosecutions v Avci.[20]  In that case, there had been a series of rapes, over a period of months.  The sentences for the rape counts, all of which involved the use, or threatened use, of a knife, ranged between 5 years and 10 years.  Those sentences were not challenged on the Director’s appeal, which concerned only the non-parole period.  The Court noted that the Director’s submission – that this was ‘a grave example of this kind of offending’ – could, with equal force, have been advanced to support a review of the head sentences.[21]

   [20][2008] VSCA 256.

   [21]Ibid [25].

1. As the Court pointed out recently in Director of Public Prosecutions v CPD, the ascertainment of current sentencing practices will ordinarily require an examination both of aggregate sentencing statistics and of recent comparable sentencing decisions, ideally both at first instance and on appeal.  In the present case, the prosecutor’s industry ensured that the judge had available to him relevant comparable decisions.  His Honour referred in the course of the plea to the aggregate statistics collected and analysed by the Sentencing Advisory Council in Sentencing Snapshot No 26.[22]  In his sentencing reasons the judge referred to these statistics and said:

I note in 2003 the average length of imprisonment imposed on incidents for rape was 5 years, 6 months;  and in 2004 to 2005, 5 years, 9 months.  I also note the median effective level of imprisonment between 2001 and 2006 was 6 years.  The most common effective term of imprisonment was 5 years.[23]

[22]Sentencing Trends for Rape in the Higher Courts of Victoria, 2001-02 to 2005-06.

[23]Sentence [16].

1. As this Court has often said, sentencing statistics are a helpful guide to current practice, though only at a general level.  The identification of a term of imprisonment as the median means that, during the relevant period, half of the imprisonment terms imposed for the offence were shorter, and half were longer.   Identification of the median cannot, however, be more than a starting-point in the determination of the sentence appropriate to the particular case.  This is especially so with an offence such as rape where, as the Snapshot points out, imprisonment terms over the period 2001-2006 ranged from one year to 20 years, and the total effective sentence imposed for offences including rape ranged from one year and three months to 26 years.  That is why, as we have said, reference to comparable cases is indispensable.

1. The prosecutor was clearly right, in our view, to submit to the judge that the sentences for these rapes should be above the median.  They should, in our view, have been well above the median.  This offending had to be viewed as at the very serious end of the scale of seriousness for single-incident rapes.  The prolonged torment of the victim, the actual violence inflicted and the threats to kill called for severe punishment.  The maximum penalty of 25 years for rape had to be given appropriate weight.[24]

   [24]Sentencing Act 5(2)(a):  See DPP v CPD [2009] VSCA 114 [71]-[74].

1. The judge had regard to all relevant principles and factual circumstances in the determination of the sentences.  We have concluded, however, that notwithstanding his Honour’s experience and the care with which he approached his task, his exercise of the sentencing discretion miscarried.  Giving full weight to the period of time that had elapsed since the commission of the offences at Elwood in 2000, the respondent’s pleas of guilty and the other matters favouring mitigation, the sentences imposed simply do not reflect the extreme seriousness of the respondent’s criminal conduct.

The right to feel safe in public

1. In this case, a young woman left her home and went to a shop only 10 minutes walk away.  In the course of her return journey, she was attacked, abducted and terrified with a knife pressed against her throat, then raped in different ways and held against her will until she was able to escape.

1. That she suffered and continues to suffer profoundly over the years that have followed is hardly surprising.  She has described the consequences in her Victim Impact Statement.

I was thrown over a high fence, had the point of a sharp knife rammed up against my throat, held down and raped.  I was bruised, scratched and had to take medication (for HIV) which made me incredibly ill for a long time after the crime,  I was vomiting for weeks, couldn’t eat or even move with terrible headaches.  I still suffer headaches and panic attacks where it is hard to breathe.

I was unable to work as a result of the crime for at least 6 months and then lost about 3 jobs as I cried so much.  My parents & boyfriend’s parents were forced to let me live with them and help me financially.  I took more blood tests after about 6 months also.  My parents had to pay for plane fares for me to go to N.Z.  I rent and because security is such an issue end up paying more for extra security.

Straight after the crime I was depressed, lost.  I couldn’t eat or work.  I cried all day and my parents paid for me to go back to N.Z. where I lost my boyfriend for some time as he didn’t know what to do as I wouldn’t let him touch me.  The time it took me to rehabilitate from drugs was lengthened as I couldn’t stand the nightmares and terror.

I found it difficult to handle any situation and being alone would send me into panic.

Walking down the street was and still is very difficult as I cannot walk past fences, hedges or anywhere somebody can conceal themselves.  I still cannot participate in certain intimate acts and my partner has had to deal with trying to console me for all these years.  There were whole years where I could not allow myself to be touched in any way, this resulted in more than one separation.  I feel angry, scared and helpless every single day.  I am now a mother and have been physically sick with fear that this could happen to my child who is not allowed to stay at friends houses, walk anywhere or be out of my sight for a moment.

My partner now works night shift and needs to get special permission to leave as any noise scares me so much he has to come home, resulting in less pay for him and an unreliable reputation at work.

1. The difficulties experienced by the victim here constitute a good example of the point made in DPP v Toomey,[25] where it was pointed out (in a different context) that the rehabilitation of a victim may often be more difficult to achieve than that of the perpetrator and that frequently the damage will be both profound and long lasting.

   [25](2006) VSCA 90, [22] (Vincent JA).

1. We have set out these extracts in order to emphasise not only the actual implications of the respondent’s behaviour, from the perspective of the victim, but also the importance of general deterrence as a sentencing consideration in cases of this kind.  The members of our community are entitled to go about their ordinary activities – in this case to walk to a shop – without fear of exposure to physical or sexual attack.  Those who offend against them, and thereby deny their victims and (through them) members of the community generally the right to do so, must anticipate that the response of the Courts will be stern.  It must also be understood that an attack of the kind actually perpetrated here will be regarded with the utmost gravity.

Resentencing

1. The respondent was 30 years of age at the time of the commission of these offences.  He has been assessed by a psychologist as being quite intelligent.  Although he claimed to have had no recollection of what transpired, by reason of his consumption of alcohol or drugs, there would seem to be no doubt that he acted purposefully.  We note that he offered a distorted form of apology to his victim even as he offended against her.  There was nothing in the circumstances in which the offences were committed that could be seen to mitigate their seriousness.

1. After making allowance for the principle of double jeopardy, we have concluded that the appeal should be allowed and the respondent resentenced on the first presentment as set out below.  The sentence imposed on the second presentment W01022363, which has not been the subject of appeal, would remain.  The order for cumulation made by his Honour is still appropriate, bearing in mind the need to apply the principle of totality to the new total effective term thus created.  The total effective sentence is 10 years and 6 months’ imprisonment.  The Court fixes a non-parole period of 7 years and 6 months.

Resentencing

Resentencing

First presentment	Sentence		Cumulation
1.        Abduction with intent to rape	2 y		6 m
2.        Rape	5 y 6 m		1 y 3 m
3.        Rape	5 y 6 m		1 y 3 m
4.        Rape	6 y 6 m		Base
5.        Recklessly cause injury	6 m		─
Second presentment
Intentionally cause serious injury	3 y	1 y
Total effective sentence:    10 y 6 m Non-parole period:            7 y 6 m

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