DPP v Frank (a pseudonym)
[2021] VSCA 163
•11 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0126
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ERIC FRANK (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, T FORREST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 March 2021 |
| DATE OF JUDGMENT: | 11 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 163 |
| JUDGMENT APPEALED FROM: | [2020] VCC 768 (Judge D Sexton) |
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CRIMINAL LAW – Appeal – Sentence – Crown Appeal – Manifest inadequacy – Rape – Respondent and co-offender found alcohol and drug-affected victim semiconscious on footpath late at night and offered to drive her home – Victim not known to respondent or co-offender – Respondent stopped en route and penetrated victim – Respondent pleaded guilty to two counts of rape – Respondent sentenced to 6 years and 6 months’ imprisonment, with non-parole period of 3 years and 11 months – Individual sentences below the standard sentence for rape – Whether sentence manifestly inadequate – Inherently serious offence – Complete disregard for victim’s dignity and welfare – High degree of moral culpability – Respondent 23 years old at the time of offending – Good prospects of rehabilitation – Rehabilitation important sentencing consideration – Sentence within range – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Kissane QC with Ms A Ellis | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr I Hill QC with Dr M Fitzgerald | Doogue + George Defence Lawyers |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Emerton JA. I agree with the order which her Honour proposes, for the reasons which she gives.
T FORREST JA:
Having had the advantage of reading in draft the reasons for judgment of Emerton JA, I agree that the appeal should be dismissed, for the reasons given by her Honour.
EMERTON JA:
Following a plea of guilty in the County Court of Victoria at Melbourne, the respondent was convicted and sentenced on 4 June 2020 as follows:
| Charge Indictment C1811924A | Offence | Maximum | Sentence | Cumulation |
| 1 | Rape | 25 years’ imprisonment [s 38(1) Crimes Act 1958] | 5 years 9 months’ imprisonment | Base |
| 2 | Rape | 25 years’ imprisonment [s 38(1) Crimes Act 1958] | 5 years’ imprisonment | 9 months |
Total Effective Sentence: | 6 years and 6 months’ imprisonment | |||
Non-Parole Period: | 3 years and 11 months | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 713 days | |||
| 6AAA Statement: 8 years with a non-parole period 5 years 4 months | ||||
| Other relevant orders: Forfeiture and Disposal Orders | ||||
The appellant (‘the Director’) has appealed the sentences on the single ground that the individual sentences on each of charges 1 and 2, the orders for cumulation, and the non-parole period and total effective sentence imposed are each manifestly inadequate.
Circumstances of the offending
The victim was unknown to the respondent. He and his co-offender, ‘AB’, were among a number of people who found the victim semiconscious on the footpath near the corner of Lygon and Grattan Streets in Carlton at around 4:30 am in the morning of Sunday 17 June 2018, and he and AB agreed to drive her home to Mernda. The respondent, coincidentally, lived not far from the victim’s home. On their way to Mernda, the respondent and co-offender diverted into a side street and the respondent orally and vaginally penetrated the victim. It is alleged against AB that he also vaginally penetrated the victim. By his plea of guilty, the respondent conceded that the victim was so affected by alcohol and/or drugs as to be incapable of consenting to the sexual acts in question.
The background to and details of the offending are as follows.
On the evening of Saturday 16 June 2018, the respondent went out with AB and four other friends to a nightclub at Crown Casino. They travelled in two cars: the respondent and AB in AB’s Ford Ranger utility (the ‘ute’) and the other men in a Nissan Navarra utility. They remained at the nightclub for almost six hours, leaving at about 4:26 am. The respondent was a designated driver and did not drink. He and AB left together in the ute; the other four friends left at the same time in the Nissan.
The victim had spent much of the same evening with her friend, ‘EB’, socialising. Until at least 10:30 pm, they attended a social gathering with other women at a hotel in Kensington, where they drank heavily and took drugs. They then moved to a club in Lonsdale Street, where they consumed more alcohol and the victim took more drugs. Both the victim and EB became drunk to the point of falling over and were twice asked by bouncers to leave. They left the club at around 4:00 am, catching a taxi to Lygon Street. Upon arriving at Lygon Street, they became separated. The victim was staggering. She ended up lying on the footpath on the corner of Grattan and Lygon Streets. EB was later found passed out on a footpath nearby and police were called to assist her.
Unfortunately for the victim, she was found by a group of people that included the respondent and AB. The four friends in the Nissan had stopped first and one of them — ‘CD’ — went to check on the victim’s welfare. She was lying on the ground with her head resting on her arm. When asked, she said she was alright, but she looked and sounded drunk. When asked where she lived, she said that she lived in Mernda. Either the respondent or AB said they could drop her home. The victim tried to get up off the footpath but struggled to do so. CD helped by grabbing her arm and lifting her before walking her over to the ute. The victim appeared to be drug-affected and ‘all over the joint’. She was able to get into the ute with assistance but was mumbling and difficult to understand.
The respondent proceeded to drive in a northerly direction up Nicholson Street towards Mernda. AB was in the front passenger seat and the victim was in the seat behind.
About 12 minutes into this journey, at about 4:53 am, the respondent turned left off Nicholson Street into Harding Street, Coburg. He stopped the ute outside a house in Harding Street where it remained stationary until 5:08 am.
The victim has no memory of what then occurred. However, the respondent was sentenced on the basis that at some point during the period in which the ute was stationary in Harding Street, he penetrated the victim’s vagina and her mouth with his penis. At the time, the victim was so affected by alcohol and/or drugs as to be incapable of consenting to these acts. Through his plea of guilty to these charges, the respondent accepted that, having regard to the victim’s condition and the surrounding circumstances, he believed she was not consenting or did not believe that she was consenting, or could not reasonably have believed that she was consenting.
The offending took place while AB was present. While the respondent was not charged with being complicit with AB, it is alleged that AB also penetrated the victim’s vagina with his penis without her consent.
At around 5:08 am, the respondent resumed driving towards Mernda. On the journey, either the respondent or AB found the victim’s driver licence in her handbag, which gave her home address.
The respondent, AB and the victim arrived outside the victim’s home at about 5:38 am. The victim was on her back on the back seat of the ute. The respondent and AB appeared to attempt to rouse the victim from where they were seated in the front of the ute. AB got out of the ute and tried to remove the victim through the back passenger door. He was unsuccessful and returned to the front passenger seat, closing both doors. AB tried again, opening the back door and removing the victim. She appeared dishevelled, with her skirt up around her waist and her shoes askew. She was unsteady on her feet. She rested for a moment on a car parked in the driveway before entering the house. The respondent and AB drove away at about 5:51 am.
The victim’s fiancé observed the state she was in when she entered the house. She tripped over the stairs and was unresponsive when she lay on the bed. He helped her to remove her shoes and realised that she was not wearing any underwear. She made noises but was not talking.
At around 12:30 pm that day, the victim attended the Austin Hospital and was later medically examined. She was found to have bruising and abrasions to her abdomen and both legs, and had a group of injuries to her left groin in the form of scratch abrasions and bruises. A genital examination showed two small lacerations on the inner aspect of her labia minora and generalised redness to her vagina. A high vaginal swab and an endo-cervical swab detected the presence of semen.
At about the time that the victim attended the Austin Hospital, the respondent rang his friend, CD, who was present at the nightclub the night before. He told CD, ‘Bro, it was mad last night, she let us fuck her before we dropped her off.’ He said that he and AB were ‘tag teaming’. The respondent told CD that he turned into an alley. The victim started hooking up with AB and the respondent asked ‘Can I have some as well?’ and she ‘let [him] fuck her’. The respondent told CD that he and AB both ‘cummed’ in her, that she gave a ‘blow job’ to one while the other was ‘fucking’ her and they rotated. He said they took the victim home, took her out of the car and left.
Four days later, on 21 June 2018, CCTV footage from Lygon Street was released to the media seeking input from the public. The four friends who had been in the Nissan attended Epping Police Station in response and provided statements.
At about 6:52 pm on that day, the respondent called CD. The respondent told CD not to tell anyone what he had said or the respondent would go to gaol and lose his ‘missus’. When CD indicated he was not interested in helping the respondent, the respondent said that what he had previously told CD about having sex with the victim was a lie, and that he was trying to look cool. He said, ‘Keep your mouth shut or my life is over.’ The respondent and AB then communicated by text message about the media release, the respondent telling AB that they were ‘fucked’. AB said they had done nothing wrong. The respondent said he would delete his texts and he did so.
The respondent and AB got together later that evening. Approximately 12 hours later, at 10:40 am on Friday 22 June 2018, the respondent attended Mernda Police Station, where he was arrested and taken into custody. He was interviewed by police, in the course of which he denied sexually penetrating the victim. AB was arrested and the ute was seized and examined. Two confirmed semen stains were found on the rear passenger seat.
Respondent’s personal circumstances
The respondent’s personal circumstances are set out in a psychological assessment report dated 11 May 2020 prepared by Dr Joel Godfredson, a clinical and forensic psychologist, which was tendered on the plea (‘Godfredson Report’).
The respondent had just turned 23 at the time of the offending. He was six months shy of completing his apprenticeship as an electrician. He was in stable employment and in a steady relationship with a young woman he intended to marry. He and his girlfriend lived with his family.
The respondent had no criminal record and had previously had no interactions with the police whatsoever.
The respondent is the elder of two boys in a close-knit family. He was born in South Africa. When he was eight years old, the family migrated to Australia to escape violence in South Africa. Upon arriving in Australia, they settled in Reservoir, Victoria. The respondent’s father worked for Nestlé, and his mother was employed as a manager for Westpac. They had a large extended family in South Africa, but few contacts in Australia. Although life in Australia was much safer, money was an issue. Nonetheless, the respondent never heard his parents argue and there was never any violence in the home. Nor was there any family history of serious mental illness or substance abuse.
The respondent attended local State schools, describing his learning as average. He made friends easily and was never in trouble. During the early years in Australia he was taunted about his accent, but the taunting and bullying dissipated over time.
The respondent left school in Year 10 to pursue a trade, spending the equivalent of Years 11 and 12 at a technical college while trying his hand at plastering, bricklaying and carpentry. He completed an apprenticeship in carpentry and worked for six months as a carpenter, but failed to secure permanent employment. He decided to become an electrician and commenced an electrical trades apprenticeship. He worked for two small companies, but failed to secure long term employment with either of them. He then went to work for a larger company where he enjoyed the culture, choosing to arrive early and work on weekends.
The respondent commenced his first relationship when he was 15 years old. That relationship lasted until he was 19, when his girlfriend ended it. The respondent was devastated. Dr Godfredson reported that from this time, the respondent’s ideas about himself changed: he felt ‘hopeless, stupid, worthless’. He reported that since the break-up, the respondent has experienced anxiety, struggling to cope at work and perceiving others as evaluating him negatively. The respondent has also suffered from low mood. He has been prescribed anti-depressants since the age of 19 and has consulted a psychologist on a number of occasions for his anxiety.
The respondent commenced his current relationship when he was 20 years old. Before he was arrested, he and his partner planned to become engaged. His partner has continued to reside with the respondent’s parents and remains committed to the relationship, despite the respondent’s predicament.
The respondent met AB when he was 20. AB is four years older. Their respective girlfriends were sisters and the couples often socialised together. The respondent and AB developed a friendship and saw each other most days. The respondent described AB to Dr Godfredson as having a ‘big personality’ and being a ‘daredevil’, stating that AB ‘had everything’, including a four-wheel drive, a motorbike and a jet ski, which impressed the respondent and which he sought to emulate. He was also impressed by AB’s tattoos, which inspired his own collection. However, the respondent said that no matter what he did, he could not help feeling
inferior to AB.
The respondent told Dr Godfredson that his parents did not approve of the friendship with AB. He also said that AB kept much of his life private, never speaking about his former partners and maintaining a group of friends that he kept separate. It was some time before the respondent learnt that AB had a daughter. At one point AB suddenly disappeared, and the respondent learnt only later that he had been gaoled for kidnapping his previous partner.
AB has an extensive criminal record. A number of women have sworn statements complaining of his abusive behaviour towards them. These statements were tendered on the plea.
By way of contrast, character references and letters of support for the respondent were tendered on the plea, describing the respondent’s character in what the sentencing judge said were ‘glowing’ terms. I note, however, that Dr Godfredson made mention of other statements in the brief provided by persons known to the respondent, describing ‘a man with poor work performance, and a tendency to engage in crude jokes of a sexual nature’. These negative appraisals of the respondent were not raised in the appeal.
The Godfredson Report
Dr Godfredson described the respondent as a man who was somewhat unsure of himself. During childhood, he experienced some difficulty adapting to Australian culture. Thereafter, he was concerned about ‘fitting in’. His doubts about himself were compounded when his first girlfriend ended their relationship and he subsequently experienced social anxiety to the extent that he was preoccupied with others’ perceptions of him and avoided large groups of people.[2] However, over the years he had become adept at masking his anxiety and seemed to have compensated for his uncertain self-image by engaging in gauche attempts to impress others.
[2]Dr Godfredson opined that the symptoms that the respondent experienced from the age of 18 appeared to be consistent with Social Anxiety Disorder.
According to Dr Godfredson, the respondent’s experience of masculinity is ‘somewhat problematic’ and includes the objectification of women, although he likely inhibits this aspect of himself in the presence of his family and partner. Dr Godfredson found no evidence that the offending was underpinned by vindictiveness towards women or the world at large.
The respondent gave Dr Godfredson an account of the offending that effectively traversed his pleas of guilty because, among other things, he said that the victim invited AB to get into the back seat for ‘a bit of fun’ and, after approximately five minutes, invited him to come to the back seat as well. On the respondent’s account to Dr Godfredson, the victim repeated the request three times before the respondent acceded. Furthermore, so the respondent said, when they arrived at the victim’s home she repeatedly asked to go back to their place and refused to get out of the car unless she was given their phone numbers.
When reflecting on the offending, the respondent told Dr Godfredson that he knew now that he should have said ‘no’ because, at the end of the day, the victim had had a bit to drink and was ‘maybe’ not in the right frame of mind. He said, ‘Maybe she didn’t want to have sex with me but just said it because there were two blokes in the car.’ The respondent said he would not have ‘had sex’ with the victim had AB not done so because he was ‘not that type of person’. However, he was at pains to say that AB ‘did not push [him] into doing it’.
Dr Godfredson opined that, given that the respondent has no history of violence, criminal behaviour or sexual offending, appreciating the relationship dynamic with AB was critical to understanding his offending and the likelihood of recidivism. It was Dr Godfredson’s opinion that the respondent’s actions were influenced, possibly even significantly, by AB, which was consistent with the widely held view that in sex offences involving more than one perpetrator, there is almost always a leader. According to Dr Godfredson, the respondent is not a leader in any sense. That said, it was clear that the respondent’s offending was made possible by some underlying doubts about his masculinity, coupled with a tendency to objectify women.
Dr Godfredson did not go so far as to suggest that the respondent’s persistent symptoms of social anxiety and compensatory behaviours had a direct relationship to the offending, but opined that they had significant implications for his risk of reoffending. Dr Godfredson said:
Having developed reasonable hypotheses regarding the offending, it is possible to assess the likelihood that [the respondent] might again find himself in the same or similar circumstances. To this end, [the respondent’s] relationships with his prosocial parents and partner are considered protective. The prospect of further disappointing these individuals is likely to outweigh any misguided sense of loyalty. It is also likely that [the respondent’s] embarrassment would cause him to question any tendency to objectify women; he has plenty of time to think about that. So long as he can maintain his prosocial support network, resume employment, and address problematic attitudes regarding women and his sense of masculinity, I consider it unlikely [the respondent] will reoffend. Given these modest treatment needs, I have rated his risk as moderate/low.
Dr Godfredson also opined that the respondent would not need a particularly strong message to prevent him re-enacting the behaviours resulting in the current charges. The consequences he has faced, including extensive publicity, ongoing notoriety, legal implications, and the loss of friendships and work opportunities, will have a profound impact on his life. Were it not for the support of his family, his future would look very bleak indeed. However, there was nothing about him which suggested he ought not be expected to conform with the laws underpinning a civilised society.
Reasons for sentence[3]
[3]DPP v [Frank] [2020] VCC 768 (‘Reasons’).
The sentencing judge identified the victim as particularly vulnerable due to her level of intoxication and impairment. He found that while the offending was essentially opportunistic, being neither sophisticated nor planned, it was aggravated by the fact that the respondent raped the victim in the presence of AB, which underlined the victim’s powerlessness in the situation.[4] The respondent took advantage of a vulnerable victim and his description of ‘tag teaming’ with AB highlighted the somewhat sustained nature of the violation and the degree to which the victim was simply treated as a sexual object. Moreover, the lack of condom use demonstrated that there was absolutely no care for the victim’s welfare.[5]
[4]Ibid [21].
[5]Ibid.
However, the sentencing judge was not satisfied that the respondent’s conduct, as opposed to that of AB, caused any of the injuries to the victim, and observed that there was no suggestion that the respondent had engaged in acts of humiliation or degradation above and beyond the obviously abhorrent conduct in which he engaged. Nor was there any suggestion that the respondent ignored protestations from the victim (although this was hardly surprising given the state of her incapacity).[6]
[6]Ibid.
The sentencing judge stated that he regarded the offending as serious and concerning examples of the crime of rape. In the company of another male, his physical and sexual debasement of a clearly vulnerable victim was abhorrent, and required denunciation on behalf of the community.[7]
[7]Ibid [22].
In considering the respondent’s level of responsibility and degree of moral culpability, the sentencing judge made reference to Dr Godfredson’s view that the respondent’s actions were influenced, possibly even significantly, by AB. He accepted that the respondent’s psychological makeup leading up to the offending included a ‘somewhat anxious disposition’ for which he had been medically and psychologically treated and that his background and upbringing may have led the respondent to have sensitivities in relation to self-image. He also observed that AB, an older man with a concerning criminal history, appeared to have been the subject of concerning allegations of sexual misconduct. However, the sentencing judge found no evidentiary basis upon which to conclude that AB led the respondent into the offending or was the primary participant. The respondent told Dr Godfredson in relation to AB that ‘he did not push me into doing it’ and the respondent’s counsel had conceded that he was wholly responsible for his own offending conduct. The sentencing judge found that in these circumstances, the respondent’s level of responsibility was significant, and his moral culpability high.[8]
[8]Ibid [32]–[33].
Notwithstanding a three-day contested committal hearing involving the cross-examination of the witness, the sentencing judge treated the respondent’s plea as an early plea of guilty. He accepted that it carried a significant utilitarian benefit and represented an acceptance of responsibility for the offending.[9] The respondent pleaded guilty in the face of a complete absence on the part of the victim of any memory of the offending conduct and the only evidence in relation to the oral rape came from him. In the circumstances, the sentencing judge was satisfied that a significant sentencing discount was warranted for the early plea of guilty.[10]
[9]Ibid [35].
[10]Ibid.
However, on the question of remorse and insight, with its relevance for rehabilitation, the sentencing judge expressed concern, first, about the respondent’s conversation with CD in the hours after he raped the victim and, secondly, about the detailed narrative of the offending provided to Dr Godfredson, which essentially conveyed that the victim was an active, willing and ultimately consensual participant in the acts to which the respondent had pleaded guilty.[11] While his Honour accepted that the respondent had acknowledged responsibility through his plea of guilty, and that he had shown a degree of awareness of problematic behaviour in relation to the victim, his insight difficulties, coupled with Dr Godfredson’s reference to his problematic attitude towards women, clouded ‘to a degree’ the respondent’s prospects of rehabilitation.[12]
[11]Ibid [37].
[12]Ibid.
More broadly on the question of rehabilitation, the sentencing judge recognised that because of the respondent’s relative youth, rehabilitation remained a very relevant sentencing consideration warranting mitigation in his case. The respondent fell to be sentenced as a young man with a complete absence of criminal history and a moderate-to-low risk of sexual reoffending based on the various risk assessment tools deployed by Dr Godfredson. He enjoyed strong family support and had a previous work history, auguring well for his prospects of rehabilitation.[13] The sentencing judge found that in all the circumstances, the respondent’s prospects of rehabilitation were good and that given his relative youth, any sentence imposed should appropriately facilitate that rehabilitation.
[13]Ibid [38].
The sentencing judge considered the time that the respondent had spent in custody and the constructive manner in which he had managed that time, accepting also that the impact of COVID-19 had made the respondent’s time in custody harder, by inhibiting his ability to maintain contact with his family and engage in courses. This had exacerbated the stress and anxiety and made the respondent’s time in custody more onerous, and a mitigatory allowance was therefore warranted.[14]
[14]Ibid [40].
The sentencing judge found that specific deterrence was not a prominent sentencing purpose in this case. However, general deterrence was particularly important, along with denunciation, community protection and just punishment.[15] The sentencing judge stated further that he had taken the standard sentence for rape into account as one of the factors to consider in his instinctive synthesis of all of the relevant factors,[16] recognising that the sentence that he proposed to impose in respect of each charge of rape was lower than the standard sentence.[17]
[15]Ibid [41].
[16]Ibid [42].
[17]Ibid [44].
As to concurrency, his Honour held that, as was conceded by the prosecution, there ought to be a significant degree of concurrency between the two charges which clearly arose out of a single episode of offending. This approach would also reflect the need to impose a proportionate overall sentence, and one that complied with the principle of totality.[18]
[18]Ibid.
Submissions
The Director submits that the offending here is particularly grave in that it involved a gross violation of the rights of a young woman who was extremely vulnerable. It involved a number of aggravating features:
(a) the victim was alone, vulnerable and substantially impaired by alcohol or drugs;
(b) the respondent, who was sober, had agreed to drive the victim home safely, albeit that she was a stranger;
(c) the victim was raped twice by the respondent;
(d) the rapes took place in the presence of the co-accused, AB, who it is alleged also raped the victim;
(e) the respondent did not use a condom;
(f) there was a somewhat sustained nature to the offending within a 15-minute window; and
(g) while the offending was described as spontaneous, it could not be described as entirely ‘spur of the moment’, as the respondent made an active decision to park the vehicle in a remote street in order to carry out the rapes.
The Director submits that the respondent’s moral culpability is very high, notwithstanding that the rapes were not sophisticated or planned, there were no additional threats or violence, no weapons were used and there were no specific acts of degradation. The offending has had a profound effect on the victim.
The Director submits that there were limited factors operating in mitigation. The respondent’s age, the absence of a prior criminal history, his prospects of rehabilitation, the good use he has made of time spent on remand, the impact of the COVID-19 pandemic on his incarceration and the respondent’s experiences as a child in South Africa were not, either alone or in combination, especially powerful or significant. They called for only modest mitigation of the sentence, particularly when weighed against the objective seriousness of the offending.
Furthermore, the Director submits, the concession by counsel for the respondent at the plea hearing — that a further sentencing discount on the basis of true remorse was not warranted — is significant.
According to the Director, the sentences imposed are not commensurate with community expectations that the courts will provide unequivocal denunciation and just punishment for conduct of the kind engaged in by the respondent. Moreover, the sentences do not send the requisite message that these offences will not be tolerated to others who might consider using an opportunity to take advantage of vulnerable women in this way. In cases of this kind, the sentencing purposes of general deterrence and denunciation must be given particular weight. It is the duty of the Court to impose sentences which can provide some protection to members of the community, particularly women, who may otherwise be vulnerable when going about their business in public on their own at night.[19]
[19]Referring to this Court’s observations in DPP v MacArthur [2019] VSCA 71, [16] (Ferguson CJ, Kaye and Weinberg JJA).
The Director relies on the fact that the sentences imposed fell considerably short of the standard sentence for rape, being each barely over half the standard sentence of 10 years. She submits that the sentencing judge characterised the offending as ‘serious and concerning examples of rape’, yet arrived at a sentence which, he acknowledged, was lower than the standard sentence for the offence, and it is not entirely clear from the reasons for sentence why his Honour determined that this should be so. Moreover, although the prosecution conceded that there should be a significant degree of concurrency, the order for cumulation of nine months for the second rape was minimal.
For his part, the respondent submits that it was open to the sentencing judge to characterise the offences as ‘serious and concerning examples of rape’ and proceed to pass a sentence lower than the standard sentence for the offence of rape. He submits that the individual sentences and the total effective sentence were reasonably open to the sentencing judge.
The respondent conceded on his plea that the offences represented serious criminality and that there were a number of aggravating features, including that the rape was committed in the presence of another person. However, he submits that a proper assessment of the nature and gravity of the offence is informed by the following matters:
(h) the offences were part of a single transaction and occurred within minutes of each other, and the victim was not ‘raped more than once’ in the sense contemplated in Jurj v The Queen;[20]
[20][2016] VSCA 57, [70]–[71], [80] (Maxwell P, Redlich and Beach JJA).
(i) the offences were not planned in advance;
(j) the offences did not involve the use of weapons, violence, threats or the infliction of injury;
(k) the victim was not subjected to conduct of an especially denigrating or degrading nature while conscious; and
(l) the respondent did not ignore protests or distress on the part of the victim.
The respondent submits that while the finding that the offences were serious and concerning examples of rape was unexceptionable, it remains the case that the ‘range of seriousness’ for rape embraces cases that are objectively graver, and even much graver. Moreover, it could not be said that the mitigatory circumstances relied on by him at the plea hearing were unusually limited in number or called for only modest mitigation of the sentence. The respondent was able to call in aid a number of very significant factors, in particular, his plea of guilty, his youth, and the impact of the COVID-19 pandemic, which had resulted in restrictions being introduced in Victorian prisons while the respondent was remanded in custody.
In relation to the impact of the COVID-19 pandemic on the time that the respondent spent in custody, he submits that the restrictions, which included the suspension of visitation rights and the reduction in the availability of programs, courses and professional supports in prisons, were unprecedented and added appreciably to the burden of imprisonment. They tended to compound the stress and isolation experienced by young, first-time prisoners such as him. Before the introduction of restrictions, he had enjoyed regular weekly visits from his mother, father, brother and partner. These were replaced by two 30-minute video calls per week. According to the respondent, the sentencing judge was entitled to make a significant allowance for this.
At the plea hearing, the respondent was also able to rely on his previous good character; his history of social anxiety and panic attacks, which would compound the burden of being in custody; his good prospects of rehabilitation, borne out by the availability to him of strong family and social support; his work history and absence of criminal history; his application to vocational and educational courses whilst in custody on remand; and the assessment that he was at ‘low/moderate’ risk of reoffending, with only modest treatment needs.
In addition, the respondent points out that the Director accepted that specific deterrence (and, by extension, community protection) was of limited relevance in this case, and that the totality principle could be expected to play some role in moderating the individual sentences for the two charges because they related to a single transaction.
The respondent submits that the sentencing judge had the benefit of examples of previous sentences for rape, confined to cases in which rape had been sentenced as a standard sentence offence. The 12 cases put before the sentencing judge covered a period of approximately 15 months prior to the hearing. Omitting two cases in which a Youth Justice Centre order was made, the terms of imprisonment ranged from five years to 12 years. In cases where rape was the principal offence and the accused had pleaded guilty, the longest sentence was eight years and a sentence of between five and six years (inclusive) was imposed on fully 87.5 per cent of charges covered by this sub-set. The respondent submits that, therefore, a cross-check of the sentence against the conspectus of past cases did not support the Director’s submission that the sentences were wholly outside the range open to the sentencing judge in the circumstances.
In respect of cumulation, the respondent submits that the question of cumulation must be assessed in a context where, first, the two charges of rape related to separate forms of penetration forming part of a single transaction which lasted a matter of minutes; and, secondly, the principles relating to cumulation and totality were not affected by the statutory presumption of cumulation in s 6E of the Sentencing Act 1991. He submits that the period of cumulation of nine months was entirely reasonable and consistent with other cases where the offences formed part of a single transaction.[21]
[21]Ibid; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Zhao v The Queen [2018] VSCA 267; Mulligan (a pseudonym) v The Queen [2017] VSCA 94; Di Giorgio v The Queen [2016] VSCA 335.
Discussion
In order to establish manifest inadequacy, the Director must demonstrate that the sentences were wholly outside the range of sentencing options available to the trial judge.[22]
[22]R v Abbott [2007] VSCA 32, [13]–[15] (Maxwell P, Eames JA agreeing at [22], Habersberger AJA agreeing at [23]). See further DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).
Manifest inadequacy is a stringent ground of appeal, difficult to make good. It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[23] The sentence must be wholly outside the range that was open in the proper exercise of the sentencing discretion in the sense that it was not reasonably open to the sentencing judge to arrive at the sentence imposed, had proper weight been given to all the relevant circumstances of the offending and the respondent.[24] An appellate court must be ‘driven to conclude that there must have been some misapplication of principle’.[25]
[23]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA). See also Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
[24]Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA); DPP vZhuang [2015] VSCA 96, [40] (Redlich, Priest and Beach JJA); DPP v Macarthur [2019] VSCA 71, [58]–[60] (Ferguson CJ, Kaye and Weinberg JJA).
[25]R v Pham (2015) 256 CLR 550, 559 [28]; [2015] HCA 39 (French CJ, Keane and Nettle JJ), cited in DPP v Weybury [2018] VSCA 120, [50] (Maxwell P and Hargrave JA).
The difficulty of establishing the ground of manifest excess was explained by Redlich and Priest JJA in McPhee v The Queen[26] in terms that are apposite to the ground of manifest inadequacy:
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[27]
[26][2014] VSCA 156 (‘McPhee’).
[27]Ibid [8], citing Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA, Redlich JA agreeing at [26]).
In my view, while lenient, the sentences imposed by the sentencing judge were reasonably open and within range having regard, in particular, to the respondent’s youth, his clean record and his prospects of rehabilitation, which I would assess as ‘very good’ if he receives the appropriate support. On the basis of Dr Godfredson’s report, it seems very unlikely that the respondent will offend in this way again.
The sentencing judge’s reasons for sentence are impeccable and no issue is taken with them, other than that he does not explain directly why a sentence below the standard sentence of 10 years was appropriate (which, of course, he was not required to do). The sentencing judge carefully considered and weighed the relevant sentencing factors, recognising the seriousness of the offending, the impact on the victim, the qualified nature of the respondent’s remorse and his problematic attitudes to women. His Honour also had regard, as he was required to, to the standard and maximum sentences for rape. He carried out the instinctive synthesis in accordance with the law and, in my view, arrived at sentences that were open in the circumstances.
I am reinforced in this view by the analysis of the examples of previous sentences for rape referred to in para 63 above, which does not support the proposition that the sentence imposed on the respondent was wholly outside the range open to the sentencing judge.
The respondent’s conduct was, on any view, repellent. It was completely at odds with the descriptions of him in the character references as ‘kind’, ‘caring’ and ‘respectful’. He showed utter disregard for the victim. Although he did not engage in overtly denigrating behaviour towards her while she was conscious, he treated her with casual contempt. That he could treat the victim in this way speaks volumes about his attitude to women more generally. Moreover, the respondent’s profound disrespect for the victim was underlined by his lack of remorse, evidenced by his account of the offending to Dr Godfredson in which he described what was, essentially, consensual sex and ignored that the offending involved driving a semiconscious woman into a back street in the dead of night in the company of another man and violating her bodily integrity by ‘tag teaming’ with the other man. The fact that being in the company of a ‘daredevil’ and a ‘big personality’ like AB exposed the respondent’s insecurities, and likely motivated him to ask whether he could ‘have some as well’, is no excuse for his conduct.
The judge carefully considered the objective gravity of the offending, describing it as serious, and assessed the respondent’s moral culpability as high. I agree with those assessments.
Denunciation of the respondent’s conduct and just punishment are therefore important sentencing considerations, as is general deterrence. As the Director submitted, rape is an inherently serious offence. It is an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological.[28] The community expects that the courts will unequivocally denounce and punish conduct of this kind and send the clear message that it will not be tolerated.
[28]Referring to DPP v Mokhtari [2020] VSCA 161.
In my view, however, the paramount sentencing consideration in this case is rehabilitation. The respondent is young in years and, more significantly, young developmentally. He lacks maturity. His relationship with AB shows him to be highly impressionable. He has much to learn and his life, even if a longer prison sentence is imposed, lies ahead of him. Whatever the outcome of this appeal, he will return to the community while still a young man. While it is fundamental, as the Director submitted, that women are able to walk the streets without fear of predation by men such as the respondent, it is in the interests of the community at large, and women in particular, that the respondent re-enter the community having not only learned from the consequences of his terrible conduct and taken responsibility for it, but primed to develop mature and respectful relationships with others.
While the shock of incarceration and the time spent negotiating the rigours of daily life in gaol might be thought to be conducive to a person ‘growing up’, it is hardly an environment that encourages the kind of growth that the respondent needs. He is not going to learn respect for women in prison. To the contrary, it is a brutal, unforgiving, all-male environment that fosters machismo and, implicitly, the view of women as sexual objects. As Dr Godfredson observed, the respondent is not a leader. He takes his cues from others. In prison, he remains exposed to the misogynistic attitudes of many of his peers.
The respondent’s prospects of rehabilitation are enhanced by his strong family support, the prospect of completing his apprenticeship and securing gainful and satisfying employment, and the commitment of a partner whom he loves and wishes to marry. The longer he is incarcerated, the greater the likelihood that the last two of these protective factors will fall away and his prospects of rehabilitation will diminish.
That is not to say that the respondent should not be severely sanctioned for his repulsive conduct. He has been given a total effective sentence of six years and six months. The deprivation of liberty and personal autonomy for a period of years is a severe sanction for a first-time offender. In addition, the restrictions brought in in response to the COVID-19 pandemic have made the conditions in prison unusually harsh, especially for immature prisoners reliant on the support of family.
In these circumstances, and having regard to the respondent’s early plea, it was open to the sentencing judge to impose sentences for rape that fell well below the standard sentence for rape. The standard sentence is a ‘guidepost’[29] and does not affect the sentencing court’s obligation to engage in the process of instinctive synthesis, having regard to the gravity of the offending, the moral culpability of the offender and other relevant factors, including in this case the respondent’s age and prospects of rehabilitation. Parsimony and the principle of totality must also come into play in striking the individual sentences and the total effective sentence. The sentences imposed for rape, while low, are not outside the range of a reasonable discretionary judgment.
[29]Brownv The Queen (2019) 59 VR 462, 465 [7], 479–80 [55]–[57]; [2019] VSCA 286 (Maxwell P, Priest, Kaye, Forrest and Emerton JJA).
For the reasons given, I disagree with the proposition advanced by the Director that the factors in mitigation in this case were ‘limited’ and outweighed by the objective seriousness of the offending. As this Court said in McPhee, every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into what he considered to be an appropriate head sentence and non-parole period. I am not persuaded that something has gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion.
In this context, and having regard to the fact that the rapes formed part of a single course of conduct over no more than 15 minutes, the nine months’ cumulation on the base sentence for charge 2 was also reasonably open to the sentencing judge, as was the total effective sentence.
The non-parole period of three years and 11 months represents just over 60 per cent of the total effective sentence. It is very low by any measure. A ratio of 66 per cent of the total effective sentence would give rise to a more appropriate non-parole period of four years and three months. However, in Dinsdale v The Queen,[30] the High Court warned against intermediate appellate courts ‘tinkering’ with sentences, especially in circumstances of Crown appeals:
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across ‘time-honoured concepts’ of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a ‘matter of principle’, such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate ‘tinkering’ with sentences.[31]
[30](2000) 202 CLR 321; [2000] HCA 54.
[31]Ibid 340–1 [62] (Kirby J) (citations omitted).
To increase the non-parole period by four months would be to ‘tinker’. In any event, the respondent will be well served by a lengthy period of supervision in the community.
Accordingly, I would dismiss the appeal.
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