Dylan Reece Berry v The King
[2024] VSCA 274
•19 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0139 |
| DYLAN REECE BERRY | Appellant |
| v | |
| THE KING | Respondent |
---
JUDGES: | PRIEST and BEACH JJA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 November 2024 |
DATE OF JUDGMENT: | 19 November 2024 |
MEDIUM NEUTRAL CITATION: | [2024] VSCA 274 |
JUDGMENT APPEALED FROM: | DPP v Berry [2023] VCC 1170 |
---
CRIMINAL LAW – Appeal – Sentence – Rape – Whether sentencing judge’s factual findings open on the evidence – Appeal dismissed.
---
| Counsel | |||
| Applicant: | Mr PJ Smallwood and Mr JJ Bourke | ||
| Respondent: | Ms S Lenthall | ||
Solicitors | |||
| Applicant: | Dribbin & Brown Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
•
PRIEST JA
BEACH JA:
Introduction
A jury in the County Court found the appellant, now aged 28 years, guilty of one charge of digital-vaginal rape on 25 January 2023.
Following a plea conducted on 26 May 2023, the judge sentenced the appellant on 10 July 2023 to five years’ imprisonment, with a non-parole period of three years.
Pursuant to leave granted by a judge of this Court on 21 November 2023, the appellant appeals against the sentence on a ground that contends that the sentencing judge erred
by sentencing the [appellant] on the factual basis that the victim had communicated the words ‘no’ and ‘stop’ to him.
In our view, for the reasons that follow, the appeal must be dismissed.
The evidence at trial
Evidence in the appellant’s trial established that, during the evening of 22 December 2017, the appellant’s younger brother held his eighteenth birthday party at an address in Pakenham. The appellant, then aged 21 years, and the complainant, ‘CH’, aged 17 years, were both guests at the party (although neither knew the other). Both drank alcohol throughout the evening.
During the night, CH — who other party-goers observed to be very drunk, swaying and unable to stand — was guided by friends to a couch in the living room of the premises to ‘sleep off’ the alcohol. She there drifted in and out of sleep. At some point while CH was in that state, the appellant inserted his finger (or fingers) into her vagina.
The next day, on 23 December 2017, police arrested and interviewed the appellant. In the course of a record of interview, the appellant admitted to having digitally penetrated CH, but claimed to be of the belief that she had consented to that activity.
In a VARE[1] interview conducted with CH by police on 28 December 2017, which effectively became her evidence-in-chief at the trial,[2] the following passages are to be found:[3]
[1]Video and Audio Recorded Evidence.
[2]See Criminal Procedure Act 2009, s 367.
[3]Emphasis added.
Q24And then what happened after that?
AAnd then I got that drunk that I couldn’t really walk so I was – like, all my friends were – like, there was two groups, like, the family group and the friend group. And I was with the – like, my friends and stuff and I was sitting on their laps and – ‘cause I just was out of it.
Q25Yeah.
AAnd I – all my friends were, like, just trying to help me and stuff ‘cause they just knew, like, I was at the moment where I just needed just to lay down. So, yeah, that whole night they were helping me and they were giving me water and then they laid me down on a couch - - -
Q26Mm.
A- - - which was – it was all open, yeah. They laid me down on the couch and then all left me, like, they made sure I was – like, ‘cause I kept falling off and vomiting and - - -
Q27Yeah.
A- - - all that.
Q28Yeah.
AAnd then they left me to go outside and then when they left me, that’s when [the appellant] come in.
Q29Yeah.
AAnd [the appellant] come in and then I was – I kept going in and out of it and stuff.
Q30Yeah.
AAnd he got on top of me.
Q31Mm’hm.
AI don’t know – I don’t remember him getting on top of me.
Q32Yeah.
ABut then I – I remember waking up again and he was on me.
Q33Yeah.
AAnd it was not ‘dark’ dark but I could see him, his face, and I kept zoning out but every time I woke up there was - he was just trying to touch me and, like, feel me up and I just kept saying, ‘No, stop’, and he just wouldn’t. And he did say something, the only thing I remember him saying to me was only reason he's with his – is with his fiancée is because of the kids.
Q34Yep.
AAnd then he – I was – I was clothed, like, I was fully clothed but I had, like, a loose shorts on.
Q35Yep.
AAnd then he put, like, his fingers in - - -
Q36Yeah.
A- - - my vagina.
Q37Yeah.
AAnd I kept saying, ‘No, stop that’, I was that drunk I could not move.
…
Q130Yep. And tell me about – so you said, ‘Stop’.
AYeah.
Q131And what did say? Tell me about the conversation. Did he say anything to you?
ANothing, he didn’t reply. I just kept saying, ‘Stop, stop’, and he just kept going.
Q132Yeah. And did he hear you say ‘stop’?
AYeah.
Q133Yeah. And what was he doing, like, was he - - -
AHe just kept forcing.
Q134Yeah.
AAnd I just kept saying, ‘Stop’. He just wouldn’t stop.
Moreover, the following passage is found in CH’s cross-examination by counsel for the appellant in the course of the special hearing:[4]
[4]See Criminal Procedure Act 2009, s 370.
Where abouts on the legs did he first touch you?---My thighs.
Did you show him that you were freaked out by that?---Yes, I said, ‘Get off me’.
You said those words?---‘Get off me’.
And did he say anything?---No.
Or do anything when you said that?---No.
You also told police, [CH], that you said – sorry, that you kept saying, ‘No, stop’ and ‘Stop, stop’?---Yep, yep.
Now, I know it’s difficult to give – I’m not asking for an exact number. But can you give me an approximate number of how many times you told him to stop?---Probably about four. Yeah, roughly.
Roughly about four?---Yep.
In your police interview, [CH], you said that [the appellant] heard you say stop. How do you know that he heard?---I don’t know.
Did you say it loudly?---Yes.
And every time you told him to stop, did you say it loudly?---I don’t remember.
…
Okay. How many times did you tell [the appellant] to stop when he had his fingers inside you?---I don’t remember.
Did you say it more than once?---Yes, I think I said it about two or three times.
And did you say loudly each time?---Yes.
‘EC’ and ‘RU’, who were talking to ‘JC’ in a bedroom off the living room where CH was on the couch, each gave evidence that they did not hear any noises coming from the living room at the relevant time. Although there was some evidence that the bedroom door may have been closed, there was no evidence concerning any ambient noise.
The plea hearing
There was a contest on the plea as to whether CH had said ‘no’ or ‘stop’ to the appellant.
Defence counsel submitted that the prosecution had relied on CH’s intoxication throughout the trial, and that the judge needed to have regard to CH’s level of intoxication ‘when considering whether to accept any particular aspect of the complainant’s evidence that was not otherwise corroborated by a further credible and reliable source’. Counsel submitted that the evidence that CH orally protested was not corroborated. There was an absence of any ‘confirmatory evidence’ from other witnesses — particularly those in close proximity — that supported the contention that the complainant uttered the words ‘no’ or ‘stop’. Counsel submitted that it was open to the judge to find that CH was either asleep or unconscious at the time of the offending, so that there was a reasonable doubt that she had communicated ‘no’ or ‘stop’ to the appellant.
The prosecutor invited the judge to accept, as a factual finding, that CH said ‘no’ or ‘stop’ several times loudly. By virtue of the verdict of guilty, the prosecutor submitted, it was clear that the jury had rejected the appellant’s version of events that the complainant was participating in and consenting to sexual activity, and accepted the complainant’s version of events that she said ‘no’ and was not consenting.
Reasons for sentence
In the course of her sentencing remarks, the judge appears to have found beyond reasonable doubt that when the appellant first penetrated her, CH was asleep and highly intoxicated. The judge said (among other things):[5]
Having had the opportunity to observe all witnesses as they gave evidence, and understanding the circumstances as I do, I reject your account as to her level of intoxication as implausible and untrue, and I accept [CH’s] description of her very high level of intoxication and her state of being asleep at the time that you laid on top of her and digitally penetrated her. As the witnesses described, [CH] had consumed alcohol to significant excess, which had affected her physical demeanour and behaviour to the extent that the view was collectively formed that she would benefit from vomiting, which she was initially unable to do, only for her to consume more alcohol. ... I have no reservations in accepting her description that she was zoning in and out at the time of your offending. I find, beyond reasonable doubt, that she did not consent to the act and was asleep and deeply intoxicated at the time that you laid on top of her and penetrated her, and that state of sleep and intoxication was known to you from your contact with her during the hours prior to the act of penetration.
[5]Emphasis added to this and following passages.
Further, the judge was satisfied beyond reasonable doubt that CH had said ‘no’ or ‘stop’. She said:
During cross-examination by your counsel at the special hearing, [CH] testified that she told you to stop a number of times, and she said it loudly. She conceded that she thought she zoned out, as she could not remember ‘him taking his fingers out’, and she then fell asleep uncontrollably, and passed out. Counsel at the special hearing did not challenge [CH’s] evidence that she was that intoxicated she was in and out of consciousness, nor that she said ‘no’ multiple times or ‘stop’.
Your counsel has reminded me I must consider the whole of the evidence and not simply parts of it, and submitted that there was no basis to conclude from the verdict of the jury that the jury accepted [CH’s] evidence in its entirety. I was reminded that [EC] and [RU] had been in the bedroom nearby and did not hear anything (albeit that having reviewed the transcript, I note there was no evidence as to whether the door to that bedroom was then open or closed, nor whether there was any other ambient noise).
I have indicated that I accept beyond reasonable doubt that [CH] was asleep immediately prior to you digitally penetrating her and was intoxicated to such an extent that she was zoning in and out of awakeness [sic] during the event. The lack of challenge to her description of telling you, ‘no’ or ‘stop’, makes my task of adjudicating this circumstance difficult. As I have said, I consider your explanation to police to be implausible, and I put it to one side.
I also accept [CH] to be a very credible witness. She told police an account of the act including reference to no and stop, which I find supports her credibility on this point. Her evidence of circumstances surrounding the events is confirmed by other credible witnesses. I therefore find beyond reasonable doubt that she explicitly communicated those words to you, and I sentence you on the basis that at the time of penetrating her with your fingers, as a result of her high level of intoxication, you knew her to be in and out of consciousness, and zoning in and out, incapable of consenting to the sexual act. You proceeded anyway.
The importance of the judge’s finding that CH actively communicated her lack of consent is that the judge seems to have considered it to be an aggravating feature of the appellant’s offending. Thus, she said:
Your offending involved a brutal and callous penetration of a vulnerable young woman’s vagina, whilst she was asleep and heavily intoxicated. She had been put to bed by her friends who were concerned about her state of intoxication. The fact of [CH’s] intoxication and associated vulnerability, and that you did not heed her requests to stop, aggravate your offending. The offence was somewhat spontaneous and opportunistic, though involved an aspect of predation given her vulnerable state, and occurred at a time when you were intoxicated.
Appellant’s submissions in this Court
In this Court, counsel for the appellant submitted that the evidence of EC and RU stood in the way of a conclusion that it had been proved beyond reasonable doubt that CH had said ‘no’ and ‘stop’ to the appellant. So, too, did the absence of any evidence from JC on the topic. Counsel submitted that, contrary to the sentencing judge’s observation that neither EC nor RU gave evidence about whether there was any other ambient noise, RU’s evidence included the following:
As far as when you were in the bedroom, did you hear any noises at all?---No, I didn’t hear.
Was there any music that night?---I don’t think there was but I don’t think there was anything later in the night when we were in the room.
Counsel for the appellant submitted that the reasonable doubt whether CH had communicated the words ‘no and ‘stop’ to the appellant was informed by the evidence of EC and RU. The evidence, counsel submitted, did not prove this disputed aspect beyond reasonable doubt. It was thus an error for the judge to have sentenced the appellant on the basis that his offending was aggravated by such words having been communicated to him. That error has reopened the sentencing discretion, and this Court should sentence the appellant to a lesser sentence.
Respondent’s submissions in this Court
The respondent’s counsel submitted that, while the evidence of EC and RU did not corroborate CH’s account, it was not inconsistent with it. Indeed, there was ample evidence to explain why the complainant’s protests may have gone unheard, including that EC and RU were in a bedroom separate from the living room; the door to that bedroom was closed; and EC, RU and JC’s attention was diverted by the fact that they were conversing. Further, although CH gave evidence that she protested ‘loudly’, there was no elaboration of what the volume actually was. And RU’s evidence did not amount to an assertion that there was no ambient noise.
Discussion
To have found the appellant guilty of rape, the jury must have been satisfied that, when the appellant sexually penetrated CH, she did not consent to the penetration, and the appellant did not reasonably believe that she consented to the penetration.[6] Self-evidently, the jury’s verdict indicates that they must have been satisfied by CH’s evidence that she did not consent to sexual penetration. Indeed, given the evidence contained in CH’s VARE, we consider the overwhelming likelihood is — as the judge appears to have found — that the jury were satisfied to the criminal standard that, on occasions that she woke up during the critical time while she was on the couch, the appellant was ‘trying to touch [her] and … feel [her] up and [she] just kept saying, “No, stop”, and [the appellant] just wouldn’t’. It was then that the appellant ‘put … his fingers in’.
[6]Crimes Act 1958, s 38(1).
As to the appellant’s absence of belief in consent, in the particular circumstances of this case two possibilities present themselves: first, the jury may have been satisfied that the appellant did not reasonably believe that CH was consenting to sexual penetration when he initially sexually penetrated her, either because she was asleep or too intoxicated to consent;[7] or, secondly, because CH actively communicated her non-consent once she realised she had been penetrated by saying ‘no’ and ‘stop’, and the appellant, having introduced his finger into CH’s vagina, continued to keep it there.[8] In our view, in light of CH’s VARE, the former is the more likely.
[7]Crimes Act 1958, s 36AA(1)(f) and (g).
[8]Crimes Act 1958, s 35A(1)(d).
We acknowledge that the judge’s findings as to when CH said ‘no’ and ‘stop’ are far from clear; in particular, whether CH had said ‘no’ and ‘stop’ prior to the appellant effecting penetration. In that respect, the judge appears to have made the following findings:[9]
·I find, beyond reasonable doubt, that she did not consent to the act and was asleep and deeply intoxicated at the time that you laid on top of her and penetrated her, and that state of sleep and intoxication was known to you from your contact with her during the hours prior to the act of penetration.[10]
·I accept beyond reasonable doubt that [CH] was asleep immediately prior to you digitally penetrating her and was intoxicated to such an extent that she was zoning in and out of awakeness [sic] during the event.[11]
·I therefore find beyond reasonable doubt that she explicitly communicated those words to you, and I sentence you on the basis that at the time of penetrating her with your fingers, as a result of her high level of intoxication, you knew her to be in and out of consciousness, and zoning in and out, incapable of consenting to the sexual act.[12]
·Your offending involved a brutal and callous penetration of a vulnerable young woman’s vagina, whilst she was asleep and heavily intoxicated.[13]
[9]Emphasis added.
[10]See [14] above.
[11]See [15] above.
[12]See [15] above.
[13]See [16] above.
As we have said, the judge considered that the appellant’s offending was ‘aggravated’ by the ‘fact of [CH’s] intoxication and associated vulnerability, and that [the appellant] did not heed her requests to stop’. Quite plainly, if the jury’s findings as to CH’s non-consent, and the absence of the appellant’s reasonable belief in consent, were based on the fact that the appellant ‘did not heed [CH’s] requests to stop’, then so much would establish elements of the offence, and would not be regarded as a circumstance of aggravation.
We consider, however, that the better view is that the judge was satisfied that the appellant sexually penetrated CH when she was intoxicated and asleep — establishing the elements of CH’s non-consent and the absence of a reasonable belief in consent — but that the appellant persisted after CH awoke and said ‘no’ and ‘stop’. In those circumstances, the appellant’s failure to desist could legitimately be regarded as a circumstance of aggravation. As Gleeson CJ, Gummow and Hayne JJ said in Cheung:[14]
The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender’s conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender’s culpability. That is not unusual. It is commonplace.
[14]Cheung v The Queen (2001) 209 CLR 1, 9 [5] (‘Cheung’).
And some years earlier, it was observed by the Full Court in Harris:[15]
The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts.
[15]R v Harris [1961] VR 236, 236–7 (Lowe, Gavan Duffy and Sholl JJ) (‘Harris’).
It will be remembered that the ground of appeal asserts that the sentencing judge erred ‘by sentencing the [appellant] on the factual basis that the victim had communicated the words “no” and “stop” to him’. In our view, it is clear that such a finding was open on the evidence, and was not foreclosed by the testimony of EC and RU (and the absence of evidence from JC). As to that, we accept the respondent’s submissions as to why EC and RU might not have heard CH saying ‘no’ or ‘stop’.[16] The judge had the significant advantage of seeing and hearing CH provide her version in the VARE, and of seeing and hearing the recording of CH’s cross-examination in the special hearing. And we note in that regard that CH was not challenged by the appellant’s counsel on her evidence that she said ‘stop’ multiple times.[17]
[16]See [19] above.
[17]See [9] above.
For these reasons, the appellant’s sole ground of appeal has not been made out.
We would add that, even had the error contended for in the ground been established, we would have struggled to see that ‘a different sentence should be imposed’.[18]
[18]Criminal Procedure Act 2009, s 281(1)(b).
The appeal will be dismissed.
---
3
1
2