GC v The Queen
[2013] VSCA 139
•14 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0146 |
| GC |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN, HARPER and TATE JJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 23 April 2013 | |
DATE OF JUDGMENT/ORDER: | 14 June 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 139 | |
JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria, Judge Cannon, Date of Sentence 14 June 2011 | |
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CRIMINAL LAW – Rape – Awareness by accused that the complainant was or might be submitting to penetration because of force or the fear of force or because she was unlawfully detained entailed awareness that the complainant was or might not be consenting, R v Getachew (2012) 286 ALR 196, distinguished.
CRIMINAL LAW – Sentence – Rape, false imprisonment and indecent assault - A total effective sentence of 11 years’ imprisonment with a minimum term of 7 years and 4 months’ imprisonment not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Rainer Martini & Associates |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA
HARPER JA
TATE JA:
After a trial in the County Court the appellant was found guilty on three charges of rape, one charge of false imprisonment and one charge of indecent assault. The appellant was acquitted on one charge of indecent assault.
A plea was conducted and the appellant was sentenced to be imprisoned for a term of 8 years on each of the charges of rape, for a term of 4 years on the charge of false imprisonment and for a term of 3 years and 6 months on the charge of indecent assault. With a measure of cumulation, a total effective sentence of 11 years’ imprisonment was produced. A non-parole period of 7 years’ and 4 months was fixed.
The appellant and the complainant had been in a sexual relationship for some six months prior to the commission of the offences.
On the night when the offences took place, the complainant went to the house of the appellant expecting to have consensual sexual intercourse. The appellant and the complainant drank alcohol and the appellant smoked marijuana.
The appellant took the complainant to his bedroom and forcibly tied her arms and legs to the bed. The appellant thus restrained the complainant for many hours during the evening and into the next morning.
During the course of the evening, the appellant raped the complainant vaginally, anally and orally. The Crown case was based upon one example of each of the types of rape, but evidence was led of uncharged acts being further instances of each type of rape.
In his record of interview, the appellant admitted that he had tied the complainant up and had sexually penetrated her a number of times. However, he insisted that the tying up and the sexual activity had been consensual. He denied assaulting the complainant and also said that on previous occasions he had tied the complainant up consensually. He did not give evidence at his trial. The defence relied on video evidence from another occasion in which the complainant was shown engaging in consensual sexual activity with the appellant with her right arm tied up.
While she was tied up, the appellant repeatedly assaulted the complainant, producing bruising and marks upon her body. The appellant slapped the complainant’s face on numerous occasions and at one point attempted to strangle her. The appellant also urinated on the complainant.
The appellant did not untie the complainant until 6 am the following day, when a work mate, Luigi Sorace, who came to the house to drive the appellant to work, urged him to release the complainant. The appellant boasted to Mr Sorace about his treatment of the complainant and invited him to ‘have a go at her’. The appellant also boasted of his treatment of the complainant to another person at his workplace.
The appellant has appealed against his conviction and sentence.
The sole ground of appeal against conviction is as follows:
The learned trial judge erred in directing the jury that the element relating to the applicant’s state of mind as to consent would be satisfied if the prosecution could prove that the applicant was aware that the complainant was or might have been submitting to the penetration because of force, the fear of force, the fear of harm to herself or because she was unlawfully detained.
The provisions found in ss 36, 37, 37AAA, 37AA and 38 of the Crimes Act 1958 (‘the Act’) deal comprehensively with the elements of the crime of rape and the directions to be given by trial judges to juries as to the elements of consent and the accused’s awareness.
Section 38 of the Act defines rape, inter alia, as intentional penetration without the complainant’s consent while being aware that the complainant was not consenting or might not be consenting or while not giving any thought to whether the complainant was consenting or might not be consenting.
Section 36 provides:
36 Meaning of consent
For the purposes of Subdivisions (8A) to (8D) consent means free agreement. Circumstances in which a person does not freely agree to an act include the following—
(a)the person submits because of force or the fear of force to that person or someone else;
(b)the person submits because of the fear of harm of any type to that person or someone else;
(c) the person submits because she or he is unlawfully detained;
(d)the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
(e)the person is incapable of understanding the sexual nature of the act;
(f)the person is mistaken about the sexual nature of the act or the identity of the person;
(g)the person mistakenly believes that the act is for medical or hygienic purposes.
The trial judge instructed the jury that the crime of rape consisted of four elements. The first was that the appellant sexually penetrated the complainant, the second was that the appellant did so intentionally, the third was that the complainant did not consent to the sexual penetration and the fourth was that the appellant had one of three states of mind about the complainant’s consent. The states of mind were that the appellant was aware that the complainant was not consenting or was aware that she might not be consenting or gave no thought as to whether she was or might not be consenting.
Referring to the fourth element, her Honour said:
Now, in considering this element you must have regard to the directions I have already given you about the meaning of consent. This element will therefore be satisfied if the prosecution can prove beyond reasonable doubt that the accused, [GC], was aware that [the complainant] was or might have been submitting to the penetration because of force or the fear of force, or submitting to the penetration because of fear of harm of any type to herself, or submitting to the penetration because she was unlawfully detained.
This element will also be satisfied if the prosecution can prove on any other basis arising from the evidence that the accused was aware that the complainant was not or might not have been consenting, or freely agreeing to the sexual penetration.
In considering whether the prosecution has proven that the accused, GC, was aware that [the complainant] was not consenting or might not have been consenting to the penetration in question, you must have regard to the following directions of law.
First, you must consider any evidence that the accused believed the complainant was consenting. I will identify the relevant evidence shortly. The law says that a belief in consent is inconsistent with the states of mind that the prosecution must prove here. So, if you find that there is a reasonable possibility that the accused believed that the complainant was consenting, the prosecution will have failed to prove this element.
Second, it is not for the accused to prove that he believed that the complainant was consenting. Instead it is for the prosecution to prove beyond reasonable doubt that the accused did not believe that the complainant was consenting.
Third, in assessing whether the accused, GC, believed that the complainant was consenting you must consider whether it would have been reasonable for him to hold that belief in all the circumstances of the case.
Fourth, in considering the reasonableness of the accused’s alleged belief you must have regard to whether the accused took any steps to find out whether the complainant was consenting and if so the nature of those steps.
Fifth, if you are satisfied that [the complainant] was not consenting because you found that she was submitting to the penetration in question because of force or the fear of force or that she was submitting to the penetration in question because of fear of harm of any type to herself, or that she was submitting to the penetration in question because she was unlawfully detained then in considering whether the belief was reasonable, that is the belief on the part of GC was reasonable, you must have regard to whether or not the accused, GC, was aware of those circumstances.
Finally you must not find this element proved just because you decide that the accused, GC, alleged belief was unreasonable. A person may genuinely hold a belief despite it being unreasonable. Whether the accused’s belief was reasonable or unreasonable is not more than a guide to help you decide whether or not the accused held that belief.
The topic of the reasonableness of the accused’s belief that the complainant was consenting was introduced by s 37AA. The section provides that if evidence is led or an assertion made that the accused believed that the complainant was consenting, the judge must direct the jury that in considering whether the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider any evidence of that belief and whether the belief was reasonable.
Was there an error in the charge?
Counsel for the appellant submitted that the first paragraph of the part of the charge we have cited above is incorrect. He said that the fourth element identified by the trial judge was not satisfied by proof of the appellant’s awareness of one of the circumstances described in s 36, and relied upon the following passage in the High Court’s judgment in R v Getachew:[1]
… But neither s 37AA nor any other relevant provision of the Crimes Act required that an accused who asserted a belief in consent none the less must be taken to have been aware that the complainant was not or might not be consenting if the accused was aware that the relevant s 36 circumstance — here, the complainant being asleep — did exist or might exist. If evidence was led or an assertion was made that the accused believed that the complainant was consenting, demonstration that the accused knew that the complainant was or might be asleep did not require the conclusion that the accused was aware that the complainant was not or might not be consenting. In such a case, s 37AA required the judge to direct the jury to take account of the asserted belief of the accused in deciding whether the accused was aware that the complainant was not or might not be consenting.
In the present case the appellant did assert a belief in the complainant’s consent.
[1](2012) 286 ALR 196, [28].
The complainant in R v Getachew was asleep when the accused sexually penetrated her. Accordingly, the circumstance negating her free agreement to sexual intercourse with the accused was that found in paragraph (d) of s 36 of the Act. Establishing that circumstance, that the complainant was asleep, did not involve proof of any effect of sleep upon the complainant’s state of mind. In the present case, the relevant s 36 circumstances were those contained in paragraphs (a) to (c), which do require proof of a causal connection between the conduct directed at the complainant and the complainant’s submission to the act of penetration. In order to negate consent in this case the Crown was obliged to establish that the complainant submitted because of force or fear of force exerted by the appellant or fear of harm by the appellant or because she was unlawfully detained by the appellant.
If an accused person is aware that the complainant’s submission is due to force or fear of force or fear of harm or unlawful detention, the accused must be taken to be aware of the complainant’s lack of consent. This is because of the significant differences in the statutory language between paragraphs (a) – (c) of s 36 and the other circumstances identified in s 36. Paragraphs (a) – (c) require that the submission of the complainant was ‘because of’ force or fear of force or fear of harm or unlawful detention. On an ordinary understanding of the terms of paragraph (a), if a person submits to an act ‘because of’ force, then but for that force he or she would not have consented. Submitting to a sexual act ‘because of’ force is not consistent with submitting freely. This is to be distinguished from those circumstances where a complainant freely agrees to a sexual act in which force is involved; in those circumstances we do not consider that the complainant is submitting ‘because of’ force. A jury which finds that the circumstance under paragraph (a) of s 36 is made out has in effect rejected any version of the events that there was free agreement to sexual activity coupled with force or violence. The same reasoning applies to the circumstances identified in paragraphs (b) and (c) of s 36.
It follows that if the submission of a complainant is obtained ‘because of’ force, and an accused is aware that the submission was obtained ‘because of’ force, the accused must be aware that the submission was not obtained by the complainant’s free agreement. In our view there is an incompatibility between the mental state of being aware that a complainant has submitted ‘because of’ force and holding the belief, or being aware, that the complainant has freely agreed to a sexual act. The same incompatibility exists for all of the circumstances identified in paragraphs (a) to (c) of s 36. Attention to the language of those paragraphs suggests that, where an accused is aware that any of the circumstances identified in paragraphs (a) to (c) of s 36 exist, the accused must also be aware that the complainant was not consenting or might not be consenting (or had not given any thought to whether the complainant was not consenting or might not be consenting).
Accordingly, if the jury were satisfied beyond reasonable doubt that the appellant was aware that the complainant was submitting to the act of penetration because of force or fear of force or fear of harm or because she was unlawfully detained, they must have been satisfied that the appellant was aware that the complainant was not or might not be consenting to the act.
The jury’s verdict showed that it rejected the appellant’s version of events that the tying up and penetration was consensual. We consider that there was no error in the direction concerning the appellant’s state of mind.
We do not read Getachew as precluding our analysis. Putting to one side the fact that in Getachew there was neither evidence led nor an assertion made of a belief in consent, the remaining focus of the judgment was on the directions to be given to a jury in the circumstances identified in paragraph (d) of s 36. In other words, the focus was on the directions to be given in relation to an accused’s awareness that a complainant was not, or might not be, consenting, if he or she was penetrated when asleep. As indicated above, paragraph (d) does not contain the requirement of a causal connection between the circumstance identified and the submission to the sexual activity. We consider the circumstance identified in paragraph (d) to be significantly different from the circumstances identified in paragraphs (a) – (c) of s 36. The incident in Getachew did not provide the High Court with an opportunity to consider the differences in the statutory language we have identified. Nor did the judgment purport to examine the requirement for a causal connection apparent in paragraphs (a) – (c) of s 36 and the issues raised by the circumstances of this case.
We note that in the first paragraph of the part of the charge we have cited her Honour directed the jury that they could be satisfied if the prosecution could prove beyond reasonable doubt that the appellant was aware that the complainant was or might have been submitting to the penetration because of force or fear of force. In doing so her Honour identified the circumstances in s 36(a) as well as the circumstances where the person might have been submitting because of force. Awareness that a complainant might be submitting ‘because of’ force carries with it an awareness that the complainant might not be consenting. To consider that a complainant might be submitting ‘because of’ force, while it is compatible with a belief, or an awareness, that the complainant might be consenting also entails an awareness that the complainant might not be consenting. As was observed in Getachew, ‘An accused’s belief that the complainant may have been consenting, even probably was consenting, is no answer to a charge of rape’.[2] We see no error in the direction given.
[2](2012) 286 ALR 196, [28] (original emphasis).
Was any error cured?
Counsel for the respondent submitted that any error at the outset of the charge with respect to the elements of rape was remedied by her Honour’s subsequent injunctions that the Crown was obliged to prove beyond reasonable doubt that the appellant was aware that the complainant was or might not be consenting or failed to consider the question.
The trial judge told the jury that if they accepted that the complainant told the appellant not to tie her up or penetrate her, ‘… you would have to be satisfied beyond reasonable doubt that the accused was aware that the complainant was not or might not be consenting to the sexual penetrations alleged which form the basis of charges 1, 2 and 3.’ Later, the trial judge referred to the evidence of the appellant farewelling the complainant in a friendly way and his behaviour in helping her get dressed and telling her to drive safely, and said:
You would consider this evidence in relation to whether you are satisfied beyond reasonable doubt that in all the circumstances in light of the evidence that arises from the day in question and the comments made by the accused … that in light of all that evidence you would have to consider whether you are satisfied beyond reasonable doubt that even if the complainant was not consenting that the accused was aware that she was not consenting or might not be consenting.
Her Honour then repeated this requirement, saying:
If upon consideration of all the evidence you find that the prosecution has proven beyond reasonable doubt that the accused … did not believe that [the complainant] was consenting and you are satisfied that the accused, GC, was aware that [the complainant] was not consenting or was aware that [the complainant] might not be consenting or was not giving any thought to whether she was not or might not be consenting, if you are satisfied beyond reasonable doubt as to one of those states of mind then this fourth element would be met.
For good measure, the trial judge summarised the elements of rape, including the fourth element, which was that ‘At the time of the sexual penetration the accused, GC, either was aware that the complainant was not or might not be consenting or was not giving any thought to whether the complainant was not or might not be consenting.’ At the conclusion of her charge, the judge gave the jury a written check list of the elements of rape, including the element of the appellant’s state of mind.
We note that in the course of her directions on indecent assault, which succeeded the directions as to rape, her Honour said that one of the elements was that the appellant ‘… was not or might not be consenting or was not giving any thought to whether the complainant was not or might not be consenting.’ Her Honour then said:
This element will therefore be satisfied if the prosecution can prove beyond reasonable doubt that GC was aware that the complainant was or might have been submitting to the accused urinating upon her on the occasion in question because of force or the fear of force or submitting to the accused urinating upon her because of fear of harm to herself or submitting to the accused urinating upon her because she was unlawfully detained.
We are not convinced that the jury would have relied on one part of the charge in preference to another. Nevertheless, for the reasons we have stated, we think there was no error in the direction concerning the appellant’s state of mind. Accordingly the appeal against conviction is dismissed.
Appeal against sentence
The appeal against sentence requires consideration of the personal circumstances of the appellant.
The appellant is aged 45 years. His father was an alcoholic who beat his wife. The appellant’s parents separated when he was two years’ old. Thereafter the appellant lived with his mother, who moved the family from place to place.
The appellant left school in the course of year 11 and became a labourer. The appellant had a child by each of two women with whom he lived. The appellant maintained a close relationship with the child of the second relationship.
The appellant had 18 prior convictions from nine court appearances, consisting of traffic offences, drug offences, criminal damage and assault. The appellant had not previously served a term of imprisonment.
In the course of the plea, a report by a psychologist was tendered. The psychologist reported that the appellant was addicted to cannabis and said that he ‘requires substantial treatment to deal with substance abuse’. The psychologist also said that the appellant had ‘significant cognitive deficits’.
The notice of application for leave to appeal against sentence contained the following grounds:
1.The learned sentencing judge erred in finding as an aggravating factor my post-offence conduct.
2.The learned sentencing judge failed to take into account sufficiently current sentencing practices.
3.The learned sentencing judge erred in fixing a non-parole period of 7 years and 4 months which was in all the circumstances manifestly excessive.
4.The total effective sentence and the non-parole period were manifestly excessive.
Counsel who appeared for the appellant in this Court said that the principal ground of appeal was manifest excess and that he did not rely upon the other grounds as denoting specific error.
Counsel for the appellant relied upon the fact that the offences occurred in the course of a single episode, the lack of any prior convictions for sexual offences, the difficulties in the appellant’s early family life, his reputation as a hard worker, his attachment to his daughter and his cognitive deficits. On the other hand, the offending was protracted, the appellant deliberately injured and humiliated the complainant, the appellant was to be sentenced as a serious sexual offender on the third charge of rape and, as her Honour observed, there was no evidence that the appellant was remorseful. Counsel for the appellant conceded that the appellant’s abuse of the complainant was prolonged and degrading and called for a substantial sentence.
A central theme of the appellant’s case was that the total effective sentence and its component parts were inconsistent with current sentencing practices, which were said to be exemplified by three cases.
In the first case, Hasan v R[3] the offender was sentenced to a term of four years’ imprisonment on a count of rape after a plea of guilty. The offender penetrated the vagina of the complainant with his penis while she was asleep. The second case, R v GJ[4] concerned a number of counts of rape, intentionally causing injury and false imprisonment. The victim was tied up for the night, the 19 year old offender urinated upon her and placed various objects in her anus. A total effective sentence of 10 years with a minimum term of seven years’ imprisonment was fixed after a successful appeal. In the third case, MC v R,[5] the offender pleaded guilty to three counts of rape and one count of false imprisonment. The Court of Appeal imposed a total effective sentence of five-and-a-half years’ imprisonment with a non-parole period of three-and-a-half years’ imprisonment. The base sentence for a count of rape was three years’ imprisonment, which counsel for the appellant in the present case said located the lower end of the appropriate range for the appellant at or near three-and-a-half years’ imprisonment.
[3][2010] VSCA 352.
[4][2008] VSCA 222.
[5][2011] VSCA 2.
The limitations in using a small number of cases with some common characteristics to demonstrate an appropriate sentencing range are self-evident. While consistency in sentencing is important, the nature of the sentencing task permits some inconsistency. As Gleeson CJ said in Wong v R:
All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.[6]
[6][2001] HCA 64, 591.
Consistency in this context depends upon identification of the appropriate range rather than upon the application of single instances of cases said to be similar. The range is to be ascertained by the application of the relevant legal principles to the circumstances in which the offences were committed and the character and antecedents of the offender together with an examination of comparable cases and the application of the process of instinctive synthesis.
In the present case, we consider that the offending was serious indeed. Bearing in mind that the maximum sentence for rape is 25 years’ imprisonment, we are of the opinion that the total effective sentence and its components were open to the sentencing judge in the exercise of her discretion.
Accordingly, the appeal against sentence is dismissed.
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