DPP v McInnes

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0214

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JACOB KERR THOMAS McINNES	Respondent

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JUDGES:	WHELAN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 December 2017
DATE OF JUDGMENT:	13 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 374
JUDGMENT APPEALED FROM:	DPP v McInnes [2017] VCC 1284 (Judge Lawson, 7 September 2017)

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CRIMINAL LAW – Crown Appeal – Sentence – Rape – Respondent sentenced to community correction order with conditions – Whether sentence manifestly inadequate – Whether sentence with custodial component should have been imposed – Whether residual discretion should be exercised – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr C B Boyce SC	John Cain, Solicitor for Public Prosecutions
For the Respondent	Ms L A Taylor QC with Ms A Brennan	Victoria Legal Aid

WHELAN JA:

I have read in draft the reasons for judgment of Priest and Beach JJA.
They have set out in detail the circumstances of the offence, the submissions made on the plea hearing, the sentencing judge’s reasons, and the submissions made on this appeal. These reasons assume knowledge of those matters.
There are a number of matters which I wish to add to the matters they have set out. They are:
(1)In his record of interview the respondent admitted that he had had sex with SB without her consent and that she had been asleep. Otherwise, the account of the circumstances which he gave in the record of interview was not entirely consistent with the facts set out in the prosecution opening which was tendered on the plea. There were assertions which I would describe as attempts to minimise the offending, and they were repeated to the consultant psychiatrist, Dr Adam Deacon, and were also raised by the respondent in the course of the pre-sentence assessment conducted by the Specialised Offender Assessment and Treatment Service (‘SOATS’) of Corrections Victoria. This led the clinicians who prepared the pre-sentence assessment and recommendations report to express concern at the possibility of minimisation.
(2)The concern of the clinicians referred to in relation to minimisation, together with other characteristics of the offending and the respondent’s background, including poor insight into how to manage his risk, problems with self-awareness and in coping with stress, and engagement in maladaptive coping strategies, led to an assessment of the risk of re-offending by SOATS at moderate-low, notwithstanding the fact that the respondent has no prior or subsequent offending history. The report is very detailed and comprehensive and it culminates in a number of recommendations including that the respondent undertake a particular offending behaviour program called the ‘Better Lives Program’. The report points out that in order to undertake this program in the community a Community Correction Order (‘CCO’) of at least 18 months and preferably 2 years would be required. In order to undertake the program in prison a sentence of at least 18 months would be required. The report assessed the respondent as suitable to undertake the program in the community.
(3)As to the text message exchanges which occurred before the night of the offence, and the earlier incident on 4 July 2017 to which they refer, counsel for the respondent at the plea hearing referred to the earlier incident and to the text messages and submitted that the incident and the messages provided ‘context’. The sentencing judge responded to those submissions saying:
But that may well be, but it still doesn’t deny what’s happened … [a]nd she’d had a sleeping tablet and he knew what effect that had on her … [s]o it takes it out of that character of consensual activity between the two of them.
Counsel for the respondent agreed with what the sentencing judge said in that respect. When the prosecutor then attempted to deal with the issue her Honour said:
Can I just say, just to short circuit this, that’s just contextual evidence. As I said to [counsel for the respondent], it in no way gives an explanation for this particular offending.
Counsel for the prosecution did not persist, other than making the submission that the text messages made it clear that SB was rejecting sexual advances by the respondent. In the end, the earlier incident and the text exchanges did not play any role in her Honour’s reasoning.
(4)The level of remorse shown by the respondent was significant and unusual, but I do not consider that this is a case to which the principles referred to in R v Ellis[1] apply. This is not a situation where a person has voluntarily disclosed guilt of a crime which was otherwise unlikely to be discovered.
(5)It is important to take account of what SB has said about the effect upon her of what occurred. In her victim impact statement she says:
The man who raped me has taken everything from me, my quality of life, my mental health, my best friend, my friends, my future and even who I am. All of it is now gone and all I’m left with is hurt, anger and emptiness. The best way I can describe it is that I feel like I live my life in darkness, with no idea what I’m doing, where I’m going, when these feelings will end or if they ever will. Part of me feels like I died that day in Melbourne and now all that’s left of me is a shell of the person I used to be.
She does indicate that before the incident she was ‘no stranger to anxiety and depression’.
[1](1986) 6 NSWLR 603, 604.
As the sentencing judge said, and as senior counsel for the Director frankly conceded before us, there are powerful mitigating circumstances here. But, as the sentencing judge and both senior counsel before us recognised, this was serious offending. The rape was penile penetration, with the consequent risks of pregnancy and sexually transmitted disease. The victim was unconscious or semi-conscious because of medication she had taken, and the respondent knew that. Whatever conduct had occurred on earlier occasions, SB had told the respondent she did not want sexual activity between them to occur. On the night in question she did not consent and the respondent knew she did not consent.
Her Honour, Judge Lawson, imposed the sentence of a 3 year CCO, with 300 hours of community work and a requirement to participate in programs and/or courses that address factors relating to the offending. The sentence was imposed on 7 September 2017 and the respondent was required to report to Werribee Community Correctional Services by 11 September 2017.
An affidavit sworn by the respondent’s solicitor on 12 December 2017, which was filed and relied upon before us without objection, sets out matters which he swears the case worker responsible for the respondent at Werribee Community Corrections has confirmed. Senior counsel for the Director took no issue with the matters set out in the affidavit. The affidavit confirms that:
(1)The respondent has not accrued any unacceptable absences.
(2)He continues to show remorse.
(3)He has completed an ‘intervention plan’ which identified the absence of employment/education as the highest risk factor. He was referred for a job interview and he has obtained full-time employment in a factory in Laverton.
(4)He maintains a positive attitude and responds to his case manager openly.
(5)He has commenced his community work and has completed an occupational health and safety course. He has completed 62 hours 5 minutes of his community work.
(6)He is awaiting a start date for the program recommended by SOATS.
The affidavit also deposes that the respondent continues to reside with his grandmother and other family members, that his relationship with his girlfriend was ‘going well’, and that he has no pending criminal matters.
This Court has a discretion to disallow a DPP appeal even where a sentence is manifestly inadequate. One circumstance where that discretion may be exercised is where a non-custodial sentence has been imposed and there are powerful reasons not to disturb it.[2] This Court has also emphasised that the potential effects of the imposition of a custodial sentence upon an offender’s rehabilitation, particularly in relation to a young offender, is an important factor in determining whether to interfere on a director’s appeal.[3]
[2]DPP v Karazinis (2010) 31 VR 634, 658 [107].
[3]Ibid 659–60 [111]–[112].
In my view the sentence imposed here was manifestly inadequate. A period in custody was required given the seriousness of the offending, notwithstanding the powerful mitigating factors.
I have concluded, however, that this is a matter where the residual discretion should be exercised.
As matters now stand,[4] the respondent has a full-time job, an apparently positive and supportive intimate relationship, stable accommodation, and a good relationship with his Corrections Victoria case manager. He has responded most positively to supervision. He has completed 20% of the community work he is required to undertake over 3 years in a little over 3 months. He has been assessed for the Better Lives Program and is awaiting a start date. If he were now sentenced to a prison term of less than 18 months he would lose that opportunity to undertake the program and he could not undertake it in prison.
[4]Ibid 660 [114].
If the appeal were allowed, I would impose a custodial sentence of less than twelve months and reduce the term of the CCO. Given the likely effect such a disposition would have on his full-time employment, his current supervision and community work arrangements, and his access to an appropriate offending behaviour program, and given the possible effect on his family and other relationships, there are powerful reasons not to intervene. This is an appropriate case for the exercise of the residual discretion.
I would accordingly dismiss the appeal.

PRIEST JA

BEACH JA:

Introduction

As recently as three years ago, in Boulton[5] — a guideline judgment[6] — five members of this Court (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) said of the relatively new sentencing option,[7] the community correction order (‘CCO’), that:[8]
a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.
[5]Boulton v The Queen (2014) 46 VR 308 (‘Boulton’).
[6]See Part 2AA (ss 6AA to 6AG) of the Sentencing Act 1991.
[7]The CCO is the creature of the Sentencing Amendment (Community Correction Reform) Act 2011, the relevant part of which came into operation on 16 January 2012.
[8]Boulton, 338 [131]. See also APPENDIX 1: COMMUNITY CORRECTION ORDERS: GUIDELINES FOR SENTENCING COURTS: Boulton, 377 [25].

In the present case, the Director of Public Prosecutions (‘the Director’) appeals against a conditioned CCO of three years’ duration imposed upon the respondent for rape.[9] The Director asserts that the sentence is manifestly inadequate. Self-evidently, the Director must contend — at least tacitly — that the present is one of the ’kinds of rape’ in which ‘a properly-conditioned CCO of lengthy duration is [not] capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation’, ‘in view of the objective gravity of the conduct and the personal circumstances of the [respondent]’; alternatively, that the CCO actually imposed is not of sufficiently lengthy duration, or does not have the proper conditions, sufficient to satisfy the aims of sentencing, in light of the gravity of the respondent’s offending and his personal circumstances.
[9]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.

The appeal

The Director’s appeal comes to this Court in the following manner.

In the early hours of 8 July 2016, the respondent raped ‘SB’, by penetrating her vagina with his penis.

The respondent pleaded guilty to rape in the County Court on 22 August 2017; and, on 7 September 2017, the judge sentenced the respondent to a CCO of three years’ duration.[10] Additional special conditions required the respondent to perform 300 hours’ unpaid community work over a three year period; that he be under supervision during that period; and that he participate in programs or courses, as directed by the Regional Manager, that address factors relating to the offending (including Corrections Victoria’s ‘Specialised Offender Assessment & Treatment Service’ programs to address the offending behaviour).
[10]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the respondent’s plea of guilty, she would have sentenced him to be imprisoned for three years, with a non-parole period of two years.

In his Notice of Appeal, dated 5 October 2017, the Director’s sole ground contends that the sentence is manifestly inadequate. Six ‘particulars’ are subjoined, which assert that the sentencing judge:

(a) failed to have sufficient regard to the maximum penalties [sic.] prescribed for the offences [sic.];
(b) failed to have sufficient regard to the gravity of offending;
(c) failed to give sufficient weight to the principles of general deterrence, punishment, and denunciation;
(d) failed to give sufficient weight to the consequences of the offending on the victim;
(e) failed to take into account current sentencing practices; and
(f) gave excessive weight to factors in mitigation.

For the reasons following, we would dismiss the appeal.

Circumstances of the offence

In order to put the challenged sentence into proper context, it is necessary that we say something about the circumstances of the respondent’s offending.

At the time of the rape, both the respondent and SB were aged 23 years.[11] The respondent lived in Melbourne with his aunty, and SB resided in Western Australia. SB and the respondent’s aunty had been friends in high school, and SB planned to visit her in Melbourne. In the lead-up to the scheduled visit, SB and the respondent started communicating over ‘Facebook’.
[11]The respondent was born in Scotland on 11 July 1992. He is now 25.

When SB arrived in Melbourne on 8 June 2016, she met the respondent in person for the first time. Since the respondent’s aunty did not have a spare room, the respondent made the offer for SB to stay in his room. She accepted. The two then slept in the respondent’s queen sized bed for a couple of nights without incident. After a few nights, the respondent started to hug SB while she slept. Initially, SB thought that the hugging was harmless, so she did not say anything. Eventually, however, she became uncomfortable, so she slept on a couch in the lounge room for a few nights.

During the evening of 8 July 2016, there were guests in the kitchen playing games and SB found it difficult to settle. She went into the respondent’s room and watched television with him, making it clear that she did not want anything sexual to happen.

At the time, SB was taking prescribed medication to assist her with her sleeping difficulties. She told the respondent that once she had taken the medication, she had difficulty being woken. That night, the respondent observed SB taking her medication.

Whilst watching television with the respondent, SB fell asleep. In her statement to police, SB said: ‘We had both fallen asleep in his bed; I think he was cuddled up to me, spooning me when I fell asleep’. SB also stated:

The next time I remember waking up next to him he was grinding against me, he had an erection and it was rubbing against my butt. We both had our underwear on because the heating was hot. I had my back faced to him; I am not sure whether he was awake at that time.
I think I fell asleep again, when I woke up again I could feel his penis inside of me and he was moving quicker than he was previously. I realised he had pushed my underwear to the side. I think this happened for about [five] minutes and then I fell back to sleep again. I woke up in the morning and said happy birthday to [named male].

SB then went into the kitchen and told the respondent’s aunty that he had sex with her without her consent. She was crying as she related what had happened. SB then went to the toilet and noticed that the respondent had ejaculated inside her. She then called her grandmother, told her what had happened and said that she wanted to come home as soon as possible.

The respondent woke up and went to have a shower. At 10.31 am, he sent SB a text message apologising for what had happened:[12]

This morning was my fuck up what I did was bad and shouldn’t of happened and yeah it was the cuddling but only when your but met my crotch which obviously gave me a hard on that all aside I’m really sorry that it happened I’m actually really pissed off at my self for it so if I don’t seem like I’m in a good mood that’s why again I’m really sorry.

[12]Spelling, grammar, syntax and punctuation as in original.

There was then an exchange of text messages into the next day, during which the respondent told SB that he would go to the police and tell them what he did. The following day, SB sent the respondent a message asking if he had contacted the police, otherwise she would. The respondent told her that he had contacted the police and that they were coming.

On 10 July 2016, police arrived at the respondent’s home as a result of a ‘000’ call that he made, in which he admitted that he ‘sexually assaulted someone while they’re asleep in my bed’. He was arrested and interviewed. During the interview, the respondent stated that he realised he had had sex with SB without her consent and that she was not consenting as she was asleep.

The matter resolved in the lead-up to an initial directions hearing on 12 May 2017, subsequent to a contested committal during which SB was cross-examined.

In the course of the plea, the respondent’s counsel referred the sentencing judge to aspects of the depositions — including parts of SB’s statement to police, and text messages that passed between the respondent and SB prior to 8 July 2016 — as ‘providing some context for the offending’.

The respondent’s counsel told the judge that SB ‘began sleeping in [the respondent’s] bed upon her arrival’, and ‘that subsisted for a short term, a couple of weeks perhaps, until an argument occurred between [the respondent] and the complainant, and then [the respondent] moved all of the complainant’s belongings out of his room and she began sleeping on the couch’. Counsel said that there were ‘text messages on the hand-up brief that show that they talked about that particular argument and it was decided that she would sleep on the couch, but they remained in conversation via text messages and obviously in person at the residence’.

The text messages included the following exchanges:[13]
[13]Spelling, grammar, syntax and punctuation as in originals.

SB:… Did something happen the other night? I vaguely remember something but when I’m half asleep I never know if it actually happened or if it was a dream.
Respondent: Either do I haha
I’m not completely sure, maybe, I dunno I was in and out of sleep half the night cause my back was sore for some reason

SB:Looks like we will never know.

Respondent:   And if something did happen what then
SB:Nothing?
Respondent:   Could be why my back was sore half way through the night
SB:Why would that explain it?
SB:There’s no way I slept through actual fucking.
Respondent:   My back never gets sore when I sleep in this bed it could of been from leaning awkwardly during the night. Actually thinking about that night I do vaguely remember moaning of some sort
And is that even possible to have sleep sex

SB:I’ve done it.
SB:Many times.
SB:[Named female] also does it.
SB:I’ve woken up on top of an ex like …. Wtf.
Respondent: Oh I see
SB:I probably shouldn’t sleep in your bed then, especially if we don’t know if anything happened.
Respondent: Why?
Would rather know

SB:I’d rather know. Also I don’t want you getting the wrong idea.
Respondent: What idea
SB:I’ve told you multiple times that nothing romantic can happen between us.
Respondent: Yeah I know and that’s not where I was going with that cause I understand that it’s 2 friends sharing abed that’s it
And attempting to annoy one another haha

SB:Are you sure?
Respondent: Yeah
Oh oh you know that karate chop thing you where doing the other night on my leg

SB:Yeah.
Respondent: If I payed on my stomach could ya do it to my back haha I’ll trade ya for back tickles haha
Laid*

SB:Is this your way of asking me for a back massage?
Respondent: Haha maybe J
Just the karate chop thing will do

SB:Maybe, we will see.
Respondent:   Haha ok awesome J
SB:I’m worried about doing anything that will give you the wrong idea. I’ve been stressed out about it.
Respondent:   Nah don’t worry about it, don’t stress, stress less
Respondent:   That’s me saying I won’t get the wrong idea
Respondent:   Haha
Respondent:   I can hear the ding from here
Respondent:   Haha
SB:Yeah I figured. That’s my ipad.
Respondent:   Ding
Respondent:   Aww
SB:Quit it.
SB:I was hoping you knew about the other night. I feel strangely violated not knowing.
Respondent:   It was most likely a dream but last thing I remember was tickling your leg
SB:I see. Fair enough then.
Respondent:   Yeah it was the inside of your leg but I stopped and moved my hand and you put it back so I could keep tickling it
SB:I don’t remember that at all.
Respondent:   And I fell asleep mid tickle so that’s probably the reason my back was sore
Respondent:   I’m actually trying to remember that night
SB:I’m trying to. I’m fairly certain it happened.
Respondent:   Wait you said you get frisky while you sleep right
SB:It wasn’t me getting frisky I don’t think. If it’s what I think, it was all you.
SB:But if you remember moaning then chances are it did happen.
Respondent:   I wasn’t say you did but you sometimes do
Respondent:   With other people that is
SB:Yes I sometimes do.
Respondent:   Hmmm maybe that’s what happened with me would make complete sense
SB:Well if we’re thinking the same thing happened then it happened. It would be impossible for it not to have if we think the same thing.
Respondent:   Yeah that’s is true well, we would make a good team as detectives haha that escape room should be a piece of cake
SB:I don’t think figuring out whether or not you fingered me is going to help us win an escape room.
Respondent:   That part I didn’t think of, it may haha
SB:Ah well. I got an orgasm out of it so it’s a win for me.
…

The respondent’s plea

At the outset of her plea, counsel for the respondent drew the judge’s attention to the fact that the respondent was supported in court by a large number of friends and family, including his grandmother (with whom he had been residing), his father, his sister and brother, his aunty (with whom he had also resided) and his girlfriend.

Speaking to a written outline of submissions, counsel told the judge that the respondent had ‘some disruption in terms of his childhood by virtue of his mother being involved in a relationship that involved some physical violence towards her and [the respondent]’. There was also some disruption to the respondent’s early and senior school education as a result of moving schools, suburbs and states. The respondent does not have ‘any formal psychiatric or forensic history’ and does not have ‘any formal mental illness’.

Counsel relied on two reports by Dr Adam Deacon, psychiatrist, dated 9 August 2017 and 18 August 2017; and a report of Anthy Kapsalakis, psychologist, dated 6 June 2017. Ms Kapsalakis, counsel submitted, believed that the respondent suffered from ‘longstanding social anxiety’, and also originally thought that he may be ‘on the autism disorder spectrum’. Dr Deacon, however, noted that although the respondent ‘exhibits some traits that align with the diagnostic criteria for that disorder’, he did not believe that the respondent ‘falls within the DSM-V^[[14]] category of someone suffering from autism spectrum disorder’.
[14]American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).

Ms Kapsalakis reported that the respondent was ‘experiencing anxiety and depression arising out of the current circumstances that he finds himself in’.

Dr Deacon noted that the respondent lacked ‘self-esteem and self-worth and this low self-worth and social anxiety has tendered to be a chronic problem for him leading to an underlying dysthymic state’ (or ‘low level of depression’).

As we have said,[15] counsel drew the judge’s attention to parts of the depositions. She referred the judge to SB’s statement, in which SB said that on Monday, 4 July 2016, she watched a movie in the respondent’s bedroom. She stated:

I was trying to fall asleep, I asked [the respondent] to tickle my back when we were watching the movie. I fell asleep whilst he was tickling me. I was wearing my bra and undies to bed because they leave the heater on in the house and I get too hot. I woke up to find [the respondent] rubbing my vagina over my underwear. I was half asleep whilst this was happening, I fell back to sleep again. I woke up again to find him putting his hand inside of [sic.] my underwear; he had his hands down the front of my undies. I could feel his fingers touching inside my vagina and touching me on the clitoris.
He moved his hand away and I fell asleep again. When I woke up I wasn’t sure if I had dreamt it or imagined it or whether it had actually happened. I got up out of bed and I told [the respondent’s aunty] what had happened and explained I wasn’t sure if it had happened. [She] said to me it most likely happened. I didn’t say anything to [the respondent] for two days, and then I messaged him on Facebook and said I had an awkward question I needed to ask him.

[15]At [32] above.

Counsel then took the judge to the text messages[16] and submitted that ‘the incident that occurs prior to the charged offence [and] the text message exchange, relates to providing some context for the offending’.
[16]See [34] above.

The respondent’s counsel submitted that the respondent ‘is still a young man’. Tendered character references ‘describe him as being fairly introverted’, someone ‘who spends a lot of time at home and in his room’. It appears that he met each of his girlfriends ‘on-line’. In that context, there was a period of time over which the respondent and SB exchanged Facebook messages before meeting in person. They then ‘had a habit of hanging out in the house, but also being separated within the house, and speaking via text message, despite being in the same house’. Counsel argued that the act that occurred on Monday, 4 July 2016, and the subsequent text message exchange ‘is relevant to providing context to the offending in the sense that it demonstrates that there were some blurred boundaries between the two of them, and that went to the relationship, the status of the relationship’. The complainant’s text messages to the respondent and their physical conduct resulted in ‘his confusion about the state of their relationship’.

Turning to remorse, counsel submitted that, by virtue of his plea of guilty and his actions following the incident, the respondent accepted that those ‘blurred boundaries’ did not excuse what he did and that ‘he made a gross error of judgment’. The respondent’s ‘plea alone was indicative of remorse’, but ‘there is ample evidence of remorse independent of [the respondent’s] plea. Thus, the text messages the respondent sent on the morning after the offence were ‘indicative of remorse, self-disgust and an acknowledgment of wrongdoing’. Moreover, it was the respondent who reported his actions to police. In her psychological report, Ms Kapsalakis noted that the respondent had repeatedly demonstrated remorse for his offending. And many of the character references tendered were written by family members who had openly discussed the offending with the respondent, and they acknowledged that he had shown remorse to them. Furthermore, the statements and actions of the respondent, as well as statements he made in his record of interview, also indicate that he had ‘some insight into his offending’.

Counsel for the respondent submitted ‘that the need for specific deterrence in this case is reduced’. The respondent ‘has good prospects of rehabilitation’. He had stable housing available to him in the community and strong family support. Furthermore, the respondent had no prior convictions and no subsequent or outstanding matters.

The respondent is a permanent resident, counsel submitted, and, in light of s 501(3A) of the Migration Act 1958 (Cth), he faced the prospect of ‘mandatory cancellation of his visa and likely deportation’. Given that the respondent had no support structure in Scotland, he would be ‘significantly isolated’. It was submitted that the respondent and his family would ‘suffer great harm’ if he were to be deported. Further, any term of imprisonment would weigh more heavily on the respondent due to the prospect of deportation.

Ultimately, counsel submitted, ‘in the unique circumstances of this case’ the imposition of a CCO was warranted. She submitted that ‘the Court of Appeal in Boulton does make reference specifically to some types of rape being offences for which a [CCO] may be appropriate, and in my submission, this is one of those occasions’.

Prosecution submissions on the plea

The judge asked the prosecutor to indicate ‘the Crown’s response to the proposed disposition’.

In answer, the prosecutor told the judge that ‘the Crown is seeking a sentence of immediate imprisonment and would say that a CCO in these circumstances is outside the range’. It was submitted that the offending cannot be said to be ‘low-end offending’. The respondent ‘took advantage of a vulnerable victim’, whom ‘he knew was incapacitated by her medication’, and whom had ‘rejected his advances’. It was submitted that ‘whilst there are absent aggravating features, there is an important aggravating feature … in that he ejaculated inside of [the complainant and] exposed her to risks of pregnancy and STDs’.

Further, the prosecutor submitted that the plea of guilty cannot ‘be said to be an early plea’; and, although the cross-examination of SB at the committal was ‘relatively confined’, ‘she was, however, still put through the obvious humiliation of being cross-examined about these matters’.

The prosecutor submitted that the respondent’s remorse was ‘qualified’, but accepted that ‘what takes this out of the realm of usual is that he acknowledged his wrongdoing via the text messages at a time close to the offending and he also called the police and made full admissions’. She also had ‘no difficulties’ with the submission that the respondent ‘is a young person, and certainly no difficulties in terms of his prospects of rehabilitation’. The prosecutor did not seek to be heard on the ‘possibility of mandatory deportation’.

Finally, the prosecutor took the judge through the circumstances of three sentencing cases, Coronado, Alexander and Lockington.[17]
[17]See [60] below.

Sentencing reasons

In detailed and careful reasons, the judge, who is very experienced in criminal cases, observed that the impact on SB of the respondent’s offending ‘has been great’, and, among other things, had ‘aggravated some underlying conditions relating to her mental health’.

Her Honour described the offending as ‘serious’. The respondent, her Honour observed, ‘had unprotected sex with a sleeping victim, knowing that she had taken medication that meant she was unable to provide proper and informed consent’. In those circumstances, the respondent had ‘exploited her vulnerability’. His actions constituted ‘a serious violation of her rights over her own body’ and ‘a real breach of trust’. The judge said that she did ‘not consider the offending to be at the lowest end of the spectrum for this sort of offending’.

The judge acknowledged, however, some ‘some powerful mitigating factors’ that she took into account. Hence, the respondent admitted his guilt ‘immediately’. The text message that he sent to the complainant in the morning, indicated his sorrow for his conduct. Thereafter he ‘took direct action to notify the police and made appropriate and open admissions in respect to the offending’.

Doctor Deacon, her Honour remarked, thought that the respondent ‘would likely experience the prison environment with greater difficulty than the average prisoner without mental issues, as [he is] temperamentally shy and anxious and … would likely be vulnerable in the prison system, requiring psycho-social support and possible protection’. Ms Kapsalakis agreed that the respondent would have difficulties in gaol because of his personality traits.

The judge said the respondent is ‘a relatively young person’ with no prior criminal history. He struck her Honour ‘as being very naïve’.

Her Honour remarked that the plea of guilty was ‘not at the earliest opportunity, but following committal and after cross-examination of the complainant’. That cross-examination was, however, ‘relatively confined’. The judge was obviously impressed by the level and extent of the respondent’s remorse. Her Honour said:

Importantly, you have consistently indicated your guilt and you are sorry for your actions. You wrote a letter to the court, where you confirmed that you recognise that what you have done is wrong. You sought to apologise to the complainant for your actions. You feel ashamed and confused by your actions. You indicate some insight into how the victim feels and you have expressed your hope that she can move on with her life and you have apologised to her for the harm that you have caused.
I am satisfied, in all the circumstances, that your plea of guilty is indicative of genuine remorse and contrition and that is also reflected in the other evidence, to which I have already referred. That is, the text messages that you sent immediately following the offending, your written apology, the fact that you contacted 000 and when police attended, you admitted your guilt and made full and frank admissions in your record of interview. You have repeatedly shown remorse and contrition for your offending to your psychologist, Ms Kapsalakis.
Your degree of remorse and contrition exhibited commenced immediately following the discussion you had with the complainant about what had occurred. I consider that must be given particular weight, because those admissions were made prior to the offending being reported to the authorities by you. You stated openly in your record of interview that you had had sexual intercourse with the complainant without her consent and that she was sleeping at the time.

The judge said that rehabilitation ‘is still an important part of the sentencing exercise’, and that it is ‘highly unlikely’ that the respondent would re-offend. Her Honour formed the view that the respondent had ‘excellent prospects for rehabilitation, such that the need for specific deterrence can be sensibly moderated’, but said that ‘there is still a real need for the court to emphasise general deterrence and denunciation’. She acknowledged the ‘great anxiety’ that the respondent would have suffered contemplating the risk of deportation.

In the following passage — in which she summarised her reasons for imposing a CCO — the judge recognised that those convicted of rape ordinarily could expect to be imprisoned; but that, in the unique circumstances of the present case — and consistently with the guidance to be derived from Boulton — the relevant aims of sentencing could be satisfied by the imposition of a CCO. Her Honour said:

Overall, having regard to the totality of your offending, I have come to the view that the appropriate disposition is the one that marks the seriousness of your offending, but provides you with an opportunity to address your underlying offending behaviour. Of great significance was the fact that you confessed to your actions immediately, that you made full and open admissions and that the complainant has been spared the ordeal of a trial.
In the unique circumstances of this matter, I consider that a [CCO], with a substantial component of community hours, together with a requirement that you undergo offending behaviour programs, does provide for both the punitive and rehabilitative aims in this sentencing exercise.
I have had regard to the current sentencing practices and noted the sentences that were provided by each of the parties in the course of the plea hearing. They represent a spectrum of cases that reflects the nature and circumstances of this sort of offending. There are distinguishing features, but ultimately I must have regard to the particular facts and circumstances of your case in sentencing. It is the case that ordinarily people ought expect the imposition of a gaol term when they are convicted of the offence of rape. However, I am satisfied in the particular circumstances of your matter, that a non-custodial sentence in the terms that I have already described is appropriate punishment in all the circumstances.

The Director’s submissions on the appeal

In summary, counsel for the Director made the following submissions in the written case in support of the appeal:

· first, with respect to the objective gravity of the offending, it was submitted that ‘this was not an example of rape that could not be categorised as at the lower end of the spectrum of seriousness’ [sic.];

· secondly, as to factors in mitigation, it was conceded that the respondent ‘was able to call upon a number of matters in mitigation, which were in the main undisputed’, such that the sentencing judge ‘concluded that the circumstances of this case were “unique”’;

· thirdly, as to current sentencing practices, counsel for the Director referred to two sentences from the County Court[18] and one case from this Court[19] — in each of which ‘a sleeping victim was penetrated by the offender’ and in each of which ‘an immediate custodial sentence was imposed’ — as ‘broadly comparable cases to be used as a general yardstick against which to examine current sentencing practice’; and

· fourthly, the sentence is manifestly inadequate, given that ‘[w]hile the authorities show that there may be in “rare” or “exceptional” factual circumstances [justifying] the imposition of a non-custodial sentence’, this is not one of those cases; since ‘[t]he factors raised in mitigation are not so powerful or so unusual that when weighed with the gravity of the offence and the Respondent’s moral culpability they warrant a sentence of such leniency as imposed here’.

[18]DPP vAlexander [2016] VCC 668 (Judge Patrick) (3 years and 8 months’ imprisonment, with non-parole period of 2 years and 2 months); DPP v Lockington [2016] VCC 1082 (Judge Patrick) (4 years’ imprisonment, with non-parole period of 2 years and 3 months).

[19]Coronado v The Queen [2016] VSCA 86 (Osborn and Priest JJA) (4 years’ imprisonment, with non-parole period of 2 years).

Orally, counsel for the Director — who neither appeared on the plea hearing nor drew the written case — submitted that the instant case was not a ‘low level rape’. He submitted that this was so given the respondent’s violation of the victim’s trust; his exploitation of her vulnerability; and the fact that this was a case of penile-vaginal rape accompanied by ejaculation. It is fair to say, however, that counsel did not embrace what had been put in the written case concerning current sentencing practices.[20] Indeed, so it seems to us, counsel was at some pains to make clear that he had not encountered another case of rape involving a sleeping victim in which the facts closely mirrored those of this case.
[20]Compare Shrestha v The Queen [2017] VSCA 364, [29]–[31] (Maxwell P, Weinberg and Whelan JJA).

Counsel submitted that the affidavit filed by the respondent’s solicitor for the purposes of the appeal — the contents of which we refer to below[21] — was relevant to the exercise of the residual discretion; but that, in the circumstances of this case, it was ‘not open’ to this Court to exercise that discretion.[22]
[21]At [67]. See also [6]–[7] above.
[22]Counsel cited DPP v Karazisis (2010) 31 VR 634, 658 [107] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).

When taken by the Court to Boulton,[23] counsel submitted that Boulton should not be thought to offer a ‘Get Out of Jail Free’ card in all cases of rape.[24]
[23]Counsel was taken to the passage at [14] above.
[24]See Hutchinson v The Queen (2015) 71 MVR 8, 13 [17] (Priest JA).

The Respondent’s submissions on the appeal

In written submissions, counsel for the respondent advanced the following contentions:

· first, the judge exercised the sentencing discretion ‘soundly’, in that she ‘did not overlook the features of the offending which bore directly on its objective seriousness or the relevant sentencing principles’;

· secondly, with respect to the objective gravity of the offending, it was submitted that ‘the breach of trust was not attended by an age or power imbalance, familial relationship or an accused in a position of authority’; and that, although the respondent took advantage of SB while she was asleep, SB ‘was in his bed prior to the offending and “spooning” him in her underwear by consent’, so that the respondent’s ‘action in taking advantage of her can be seen as a spontaneous and momentary gross error of judgement, rather than a premeditated or predatory act’;

· thirdly, it was contended that it was open to the sentencing judge to conclude that ‘this was a case involving rare or exceptional factual circumstances’, and that the factors raised in mitigation ‘were so powerful and unusual that when weighed with the gravity of the offence and the Respondent’s moral culpability, they warranted the non-custodial sentence imposed’;

· fourthly, it was argued that the ‘comparable cases’ relied upon by the appellant ‘are of limited assistance to this Court, because in each the offender’s conduct was objectively more serious’;

· fifthly, the judge had regard to Boulton ‘when concluding that in the unique circumstances of this matter, a CCO with a substantial component of community hours, together with a requirement to undergo offending behaviour programs, would provide for both the punitive and rehabilitative aims of sentencing’, and that the ‘sentence imposed does not fail to reflect the gravity of the offending, or fail to give due weight to punishment, denunciation and general deterrence’; and

· sixthly (and alternatively), counsel invoked the residual discretion.

By way of oral submissions, senior counsel for the respondent acknowledged that rape ‘is always serious’, and that it must always be deterred and denounced. Usually, counsel conceded, a conviction for rape will require a custodial term. In ‘rare’ and ‘unusual’ cases of rape, however, a non-custodial sentence might be available. This was such a case.

Counsel submitted that the judge acted ‘according to principle’, and that her Honour described the mitigating circumstances as ‘powerful’. Indeed, so it was submitted, the prosecution ‘did not quibble’ with the notion that the respondent’s voluntary confession of guilt was ‘unusual’.

With respect to the possible exercise of the residual discretion, counsel tendered an affidavit sworn by the respondent’s solicitor on 12 December 2017. Based on what he was told by the respondent, the solicitor deposed that the respondent continues to reside with his grandmother, his aunty and her partner and three year old son, and that the respondent has been in a relationship with a female since October 2016 which is ‘going well’. The solicitor also deposed that, on 6 December 2017, he spoke to the respondent’s Corrections Victoria’s case worker, who confirmed that:

· the respondent ‘has continued to show remorse, accepts the offending in accordance with the prosecution summary and makes no attempt to minimise his actions’;

· the respondent has not accrued any ‘unacceptable absences’;

· the respondent ‘maintains a positive attitude towards his supervision sessions and answers all questions put to him openly’;

· the respondent has completed 62 hours and five minutes of community work (leaving 237 hours and 55 minutes[25] remaining);

· following the completion of an ‘intervention plan’ aimed at ‘reducing the risk of reoffending’, during which the absence of employment and education was ‘identified as the highest risk factor of further offending’, the respondent obtained employment as a labourer — working five days a week between the hours of 5.00 am and 3.20 pm — erecting frames for bathrooms; and

· Corrections Victoria’s Specialised Offender Assessment and Treatment Service had assessed the respondent as ‘being in the low-moderate risk category of sexual offending’, and had recommended that the respondent attend a 30 week program of weekly group counselling sessions (although no starting date for the respondent’s participation in that program had yet been determined).[26]

[25]The affidavit stated that ‘232 hours and 55 minutes’ remained.

[26]See also [3](1)–(2) above.

Senior counsel reminded the Court of the importance of rehabilitation to the exercise of the residual discretion. In that respect, she relied on Karazisis:[27]

The next potentially relevant factor in the exercise of the residual discretion is rehabilitation. Crown appeals are not intended to detract, in any way, from the importance of this vital sentencing factor. The importance of rehabilitation in the case of young offenders, in particular, has been emphasised many times.
[27]Karazisis, 659 [111] (footnote omitted).

Analysis

Although there rarely can be any absolutes when it comes to sentencing, it might ordinarily be expected that penile-vaginal rape — particularly when unprotected and accompanied by ejaculation — will be visited by the imposition of a substantial term of imprisonment. The judge recognised as much.

In the unique circumstances of this case, however, her Honour was of the view that a non-custodial sentence — albeit one which included a substantial component of community work, together with a requirement that the respondent undergo programs to address his offending behaviour — satisfied ‘both the punitive and rehabilitative aims’ of sentencing. It will be remembered, in that regard, that by virtue of s 5(4C) of the Sentencing Act 1991, her Honour was obliged not to impose a sentence that involved the respondent’s ‘confinement’ unless she considered ‘that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached’.

Section 5(2) of the Sentencing Act 1991 provides for a range of factors that ‘a court must have regard to’ when sentencing, which, so far as relevant, include:

(a) the maximum penalty prescribed for the offence; and
(b) current sentencing practices; and
(c) the nature and gravity of the offence; and
(d) the offender’s culpability and degree of responsibility for the offence; and
…
(daa) the impact of the offence on any victim of the offence; and
(da) the personal circumstances of any victim of the offence; and
(db)any injury, loss or damage resulting directly from the offence; and
(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and
(f) the offender’s previous character; and
(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.

Given that the factors listed in s 5(2) which must be taken into account ‘are incommensurable, and indeed, in many respects, inconsistent’, they ‘cannot be applied mechanically’.[28] They must be balanced as a matter of instinctive synthesis so as to arrive at a sentence which is just in all the circumstances.[29] The extent to which each factor in s 5(2) bears upon the formation of the instinctive synthesis is inevitably a matter for judgment, allowing a measure of discretion to the sentencing judge. Given the discretionary nature of the required judgment, there is no single sentence that is just in all the circumstances.[30]
[28]DPP v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063, 1066–7 [4] (Kiefel CJ, Bell and Keane JJ), 1077 [79] (Gageler and Gordon JJ) (‘Dalgliesh’).
[29]Ibid 1067 [5].
[30]Ibid 1067 [7].

While current sentencing practices must be taken into account in sentencing an offender, it is but one factor; and, by the terms of s 5(2), is not said to be the controlling factor.[31] As Gageler and Gordon JJ remarked in Dalgliesh:[32]

Section 5(2)(b) does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence. The court must have regard to current sentencing practices, as well as every other matter listed in s 5(2). Current sentencing practices stand in the same position as every other matter listed in s 5(2). There is nothing to suggest that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters. Of course, an express purpose of the Sentencing Act is to promote consistency of approach in the sentencing of offenders,[33] to which the requirement in s 5(2)(b) may contribute. But that purpose, which reflects the well-recognised importance of consistency in the application of sentencing principles,[34] provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a ‘band’ derived from current sentencing practices.
Sentences are not binding precedents,[35] but are merely ‘historical statements of what has happened in the past’.[36] As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’[37] (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.

[31]Ibid 1067 [9].

[32]Ibid 1077–8 [82]–[83]. See also DPP v Zhuang (2015) 250 A Crim R 282, 292–5 [29]–[37] (Redlich, Priest and Beach JJA) (‘Zhuang’).

[33]s 1(a) of the Sentencing Act.

[34]See Hili v The Queen (2010) 242 CLR 520 at 535 [49]; [2010] HCA 45.

[35][Wong v The Queen] (2001) 207 CLR 584 at 605 [57].

[36]Hili (2010) 242 CLR 520 at 537 [54] quoting Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at 71 [304].

[37](2010) 242 CLR 520 at 537 [54]. See also Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181 at 196 [31].

At face value, the three sentencing cases relied upon by the Director establish no more than that, in the particular circumstances of those cases, a sentence at or near four years’ imprisonment was considered appropriate for the rape of a sleeping victim. The sample is too small, however, to establish any current sentencing practice; and, in any event, the facts of those cases do not display the unusual mitigating features of the instant case.[38] Certainly, those cases could not be said to establish the upper (or lower) limits of a range.
[38]R v Kilic (2016) 259 CLR 256, 268 [25] (Bell, Gageler, Keane, Nettle and Gordon JJ).

Counsel for the Director accepted that the principles governing this appeal are as ‘re-stated’ in Zhuang.[39] We need not repeat them, save to remind ourselves:
[39]Zhuang, 295–300 [39]–[49].

· first, that the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice;

· secondly, that the members of this Court may not substitute our own opinion for that of the sentencing judge merely because we would have exercised our discretion in a manner different from the manner in which the sentencing judge exercised her discretion;

· thirdly, that manifest inadequacy of sentence is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge;

· fourthly, that a sentence may be inadequate either because the wrong type of sentence has been imposed — for example, non-custodial rather than custodial — or because the sentence imposed is manifestly too short; and

· fifthly, that manifest inadequacy will not be established unless the sentence is wholly outside the range of sentencing options available to the sentencing judge, in the sense that it was not reasonably open to the sentencing judge to arrive at the sentence which she did had proper weight been given to all the relevant circumstances of the offending and of the respondent.

We might not have exercised our discretion in the same way as the sentencing judge. But that is not to the point. Intervention at the suit of the Director would be justified only were we persuaded that the sentence is manifestly inadequate because a CCO simply was not open to the judge; or, if open, did not contain appropriately severe conditions. We are not so persuaded.

One of the more remarkable facets of this case is the fact that the respondent voluntarily contacted police via ‘000’ and reported his crime.[40] For an offender to do such a thing, although not unheard of, is very unusual. It is a reason for extending an added measure of leniency to the respondent, beyond the leniency flowing from a plea of guilty. In an oft cited passage from Ellis,[41] Street CJ said:

When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.

[40]The respondent told the emergency operator: “Well, I sexually assaulted someone while they’re asleep in my bed”. He said he could not go to the police station, “’Cause I’m shaking so much … ‘Cause of what I’ve done”.

[41]R v Ellis (1986) 6 NSWLR 603, 604. See also Ryan v The Queen (2001) 206 CLR 267, 272 [12] (McHugh J); R v Doran [2005] VSCA 271, [15] (Buchanan JA); Younan v The Queen [2017] VSCA 12, [39] (Redlich and Ferguson JJA).

While it cannot be said that but for his disclosure to police the offending would not have been discovered, the level of remorse demonstrated by the respondent was quite extraordinary. As we have indicated, he called the police and confessed his wrongdoing. And although there was a committal, the cross-examination of the complainant was, as the judge observed, relatively confined.[42] The sentencing judge thought the circumstances of the case to be unique. We cannot say that it was not open to her to so conclude. Her Honour was moved by the fact that the respondent confessed his actions immediately, made ‘full and open admissions’ and spared the complainant the ordeal of a trial. In those circumstances, her Honour thought the appropriate disposition to be one that marks the seriousness of the respondent’s offending, whilst providing him with an opportunity to address his underlying behaviour. In our opinion, it was open to the sentencing judge to reach those conclusions.
[42]In the main, the cross-examination was concerned with the effects of amitriptyline on SB; her previous physical intimacy with the respondent; and the course and context of their messaging. Importantly, SB was not challenged on any aspect of her account.

Given the unusual circumstances of this case, including the objective gravity of the respondent’s conduct and his personal circumstances, in our view it was open to the judge to conclude that a properly-conditioned CCO of lengthy duration was capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for the respondent’s rehabilitation. As we have said, we might not have exercised our discretion in the same manner. And as the judge recognised, ‘ordinarily people ought expect the imposition of a gaol term when they are convicted of the offence of rape’. But we are not persuaded that it was not open to her Honour to impose the sentence that she did. The sentence that she imposed on the ‘very naïve’ and relatively young respondent, who had no prior convictions and excellent prospects of rehabilitation, and who had demonstrated extraordinary remorse, was undoubtedly lenient. It was not, however, manifestly inadequate.

Residual discretion

Given our conclusion that the sentence imposed is not manifestly inadequate, there is no occasion to exercise the residual discretion.

Had we determined that the sentence was manifestly inadequate, however, in the particular circumstances of this case we would nonetheless have dismissed the appeal in the exercise of the residual discretion. We would have done so for the reasons set out by Whelan JA,[43] whose judgment we have had the advantage of reading in draft.
[43]At [11]–[12] above.

Conclusion

We would dismiss the appeal.

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[2017] VSCA 374

13 December 2017