Ismael Malbeal v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0170

ISMAEL MALBEAL	Appellant
v
THE KING	Respondent

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JUDGES:	TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2025
DATE OF JUDGMENT:	11 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 71
JUDGMENT APPEALED FROM:	DPP v Malbeal [2023] VCC 1568 (Judge Chettle)

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to two charges of rape – Sentenced to total effective sentence of 11 years’ imprisonment with non-parole period of 7 years and 3 months – Mitigating circumstances – Early pleas of guilty – Frank admissions – Appellant Vanuatuan citizen with limited understanding of English language – Prospects of deportation following sentence – No previous offending – Principle of totality – Whether total effective sentence manifestly excessive – Appeal allowed.

Crimes Act 1958, s 38, referred to.

Brown v The Queen (2019) 59 VR 462; Abdullahi v The King [2023] VSCA 110; Director of Public Prosecutions v Frank [2021] VSCA 163; Watkins (a pseudonym) v The King [2023] VSCA 203; Director of Public Prosecutions vDalgliesh (2017) 262 CLR 428, referred to.

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Counsel
Appellant:		Mr R Thyssen
Respondent:		Mr RL Gibson KC
Solicitors
Appellant:	Swan Hill Legal Co.
Respondent:	A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KAYE JA:

The appellant pleaded guilty in the County Court to two charges of rape. After a plea made on his behalf, he was sentenced to a total effective sentence of 11 years’ imprisonment, with a non‑parole period of 7 years and 3 months. That sentence was comprised as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment N12614276.1
1	Rape (s 38(1) of the Crimes Act 1958)	25 years	8 years	Base
2	Rape (s 38(1) of the Crimes Act 1958)	25 years	8 years	3 years
Total Effective Sentence		11 years
Non-Parole Period:		7 years 3 months
*Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		272 days
Section 6AAA Statement:		15 years with a non-parole period of 10 years
Other relevant orders:		n/a

On 13 February 2024, McLeish JA granted that appellant leave to appeal on the following ground:
The sentence imposed and the non‑parole period are manifestly excessive in that they fail to take into account and/or give weight to a number of mitigating factors put on behalf of the Appellant.
Circumstances of offending
At the time of the offending, the appellant was 27 years of age. He is a citizen of Vanuatu. In July 2022, he came to Australia on a temporary work visa as part of a labour hire arrangement. At the time of the offending, he was engaged in work on farms in the Swan Hill district, picking oranges and peaches.
The victim of the two offences, TT,[1] was 26 years of age at the time of the offences. Three days before the offending, TT was employed by the Swan Hill Holiday Park as a cleaner, and she was provided accommodation for that purpose in a cabin at the Park.
[1]A pseudonym.
On Thursday, 1 December 2022, at approximately 6:30 pm, TT and three friends were sitting on a bench near a toilet block in the Park, having a drink. After about one hour, the appellant joined the group. As the evening progressed, TT consumed beer and port, and became affected to such an extent that she had moments of blacking out. The appellant was sitting next to her, and, throughout the evening, he kept touching her leg and upper thigh. At one stage, he shared a joint of marijuana with TT.
Later during the evening, TT went to the toilet. On her return, when she went to sit down on a chair, she fell to the ground as a result of her intoxication. At that point, TT’s friend told TT that she, herself, was going to go home with another member of the group, and that the appellant should walk TT to her cabin.
Accordingly, the appellant commenced to walk TT to her cabin. When they arrived at the cabin, the appellant entered it with TT. The next recollection of TT is that she was on the bed and the appellant was removing things from it and placing them on a bench. TT continued ‘spacing out’. The appellant started to remove her shorts and her underwear. He put his head between her legs, put his tongue on her vagina, and licked the outside of it. That conduct constituted an uncharged act.
The appellant then came close to TT and began to touch her breasts. He pulled up her shirt and removed her top and bra, exposing her breasts, which he licked. He then tried to kiss TT and put his tongue in her mouth, but she kept her mouth closed to prevent him doing so. At that point, the appellant penetrated TT’s vagina with his penis. TT kept ‘spacing out’ while that was occurring, and, in the course of being penetrated, she vomited over the doona. That conduct of the appellant constituted the offence of rape that was the subject of charge 1.
The appellant then left the cabin to go to the toilet, which was located in an amenities block. When he returned to the cabin, he lifted TT’s legs, and, with his penis, penetrated her anus. That conduct constituted the offence of rape that was the subject of charge 2. TT then blacked out. When she woke up, she began vomiting again. She told the appellant to leave. He said that she should have a shower. In response, she insisted that he leave. TT then blacked out again.
When TT subsequently woke up at about 1:30 am, she telephoned her partner and told him that she had been raped. The Swan Hill Police were then notified.
Shortly after 8:00 am on the same day, the appellant attended the Swan Hill Police Station, where he was interviewed with the assistance of a French‑speaking interpreter. In the course of the interview, the appellant made frank admissions as to his offending. He told police that he put TT into bed and that they had sex. He said he was not wearing a condom at the time. He also said that while they were having sex, TT was asleep, and he thought that she was intoxicated. When asked why he thought that TT was intoxicated, the appellant responded that he had to carry her in order to get her into the bedroom. He said that she was not saying anything when they went into the bedroom. When asked, ‘Did you believe she wanted to have sex with you?’, he responded, ‘I don’t think so’. When asked whether, at any point, he thought that TT wanted to have sex with him, the appellant responded in the negative.
On completion of the interview, the appellant was remanded in custody.
Subsequently, the appellant was committed for trial at a committal mention hearing. At a subsequent directions hearing, the case was listed for trial in the Mildura Circuit, commencing 29 August 2023. On the first day of the listing of the matter, it resolved as a plea. On the hearing of the plea, the prosecution case was that, in the case of each charge, the appellant did not have any belief that TT was consenting to the particular act of penetration.
On the hearing of the plea, the court received a victim impact statement by TT. In the statement, TT described how the appellant’s conduct had significantly impacted her life. She felt humiliated and frightened, she was unable to work, and she was anxious about being around other people. TT constantly had nightmares and difficulty sleeping, she was anxious and depressed, and she felt extremely violated and dirty as a result of the offending.

The plea

On the plea, counsel for the appellant advised the court that, although the matter was originally listed for trial, a plea of guilty had always been foreshadowed. However, because of language difficulties, and the appellant being located in Hopkins Prison in Ararat, it was difficult to obtain appropriate instructions. As a consequence, counsel had filed a defence response to the prosecution opening as a ‘holding document’ until counsel was able to obtain appropriate instructions in the matter. It was submitted that the appellant’s plea had significant utilitarian value, as it avoided the need for the complainant and other witnesses to give evidence.
As noted, the appellant was born in Vanuatu. His father is a bus driver and chauffeur, and he has three brothers and one sister. The appellant was educated to approximately a Year 10 level, but his counsel, on the plea, described him as ‘not bright’. After leaving school, the appellant had some employment in construction work in Vanuatu, but his prospects were limited, the work was not consistent, and it was not well‑paid. It was for that reason that he came to Australia as part of a labour hire arrangement. The appellant was then in a de facto relationship in Vanuatu. He has a son, now aged five years, by that relationship.
The appellant has a very limited facility in the English language. As a consequence, at the time of sentence, he had only had limited access to programs, and his time in custody had been more difficult as he had few fellow prisoners with whom he could converse. It was also noted, on the plea, that, at the conclusion of his sentence, the appellant would be deported to Vanuatu.

Reasons for sentence

The judge characterised the offending by the appellant as being a ‘mid‑level example’ of the offence of rape, the appellant having acted in an opportunistic way, disinhibited by alcohol and cannabis.[2]
[2]DPP v Malbeal [2023] VCC 1568 (‘Reasons’), [12].
In mitigation, the judge took into account the appellant’s pleas of guilty. Although the pleas were not entered at an early stage, the judge accepted that the matter was always going to resolve to a plea, once the appellant had obtained the advice of counsel.[3] The judge also accepted that the appellant’s pleas of guilty had significant value, having spared the victim and witnesses the need to give evidence, and having saved the community the time and expense of a criminal trial. In addition, the value of the pleas had increased as a result of the effect that the COVID‑19 pandemic had had on the legal system. Accordingly, the appellant had facilitated the course of justice, and he was entitled to a ‘greater reduction’ in the sentence as a result. The judge also took into account that the appellant had no previous involvement with police, either in Australia or in Vanuatu, and he was to be sentenced as a person of previous good character.
[3]Ibid [16].
The judge further took into account the appellant’s cooperation with the police, and his full and frank answers in the interview. The judge also noted that the appellant spoke little English. As such, he would be isolated in custody, having limited phone contact with his family in Vanuatu, and having difficulty doing courses or otherwise communicating with fellow prisoners.[4]
[4]Ibid [17].
Finally, the judge explained that the principles of ‘general deterrence, just punishment and denunciation’ were the principal sentencing factors in the case. His Honour stated:
People who act as you did and violate vulnerable women need to understand that they face significant terms of imprisonment.[5]
[5]Ibid [18].

Submissions

Counsel for the appellant clarified that the proposed ground of appeal was directed to the individual sentences on each of the two charges, to the orders for cumulation, and thus the total effective sentence, and, in addition, to the non‑parole period. In support of that ground, counsel contended that the sentence failed to take into account, and give adequate weight to, the mitigating factors put on behalf of the appellant, which included the following.
First, counsel noted that, although the matter was originally listed for trial, a plea of guilty was always indicated. There had been difficulty obtaining appropriate instructions due to language difficulties and the location of the appellant at Hopkins Prison in Ararat. The appellant’s first language is Bislama, and his second language is French. Counsel noted that obtaining instructions was hampered because there was not a Bislama interpreter available. Accordingly, there was no contested committal hearing.
It was further submitted that the appellant’s pleas of guilty were significant in the circumstances of the case, as the victim was intoxicated to a significant extent and her recall was only patchy.
In addition, the appellant made full and frank admissions in his interview. Further, he has significant limitations in understanding English, and therefore he would have difficulties in prison, in particular in following directions and availing himself of courses and programs, which would support the grant of parole at the conclusion of his non‑parole period. As the appellant’s family are in Vanuatu, and the appellant has extremely limited contact with them, his time in prison would be more onerous. Finally, it was noted that the appellant would face deportation at the conclusion of his sentence.
In respect of the offending, counsel submitted that the appellant’s conduct was not premeditated. At the time of the offending the appellant was heavily affected by his consumption of alcohol. It was submitted that he did not engage in any violence, other than the actual acts of rape.
Taking those matters into account, it was submitted that the individual sentences, the total effective sentence, and the non‑parole period, are each manifestly excessive.
In response, counsel for the respondent submitted that the two offences, to which the appellant pleaded guilty, were serious examples of the offence of rape, and that the appellant’s moral culpability for the offending was high.
Counsel submitted that there were a number of aggravating features to the offending. In particular, the appellant acted opportunistically, while the victim was incapacitated by alcohol and thus extremely vulnerable. Having been trusted to deliver TT to her cabin, he took advantage of her parlous state. Further, the cabin was a place where she was entitled to feel safe. In addition, as evidenced by her victim impact statement, the offending by the appellant had had a particularly serious deleterious effect on TT.
Counsel for the respondent further noted that the second rape was separated in time from the first rape, and was thus a separate offence. Counsel submitted that the judge’s assessment of the offending as being in the middle range of objective seriousness was amply justified and was accepted by counsel for the appellant on the plea. Counsel further submitted that, in the circumstances, the appellant’s moral culpability for the offending was high, as he was well aware of the victim’s intoxicated state.
Counsel further noted that the judge was required to take into account the standard sentence for the offence of rape, which is 10 years’ imprisonment. In such a case, it was submitted, the judge was correct to consider that general deterrence and denunciation were the principal sentencing factors. In addition, specific deterrence and protection of the community were also relevant considerations.
Counsel for the respondent noted that the judge acknowledged, and took into account, the factors in mitigation relied on by the appellant, including his pleas of guilty, his lack of criminal history, his cooperation with police and admissions in the interview, and his isolation in custody. It was submitted that there was nothing in the judge’s reasons to suggest that his Honour failed to give due weight to any of those matters.
Counsel accepted that the sentences imposed on the appellant were high, and they were either similar to, or higher than, sentences imposed in other cases involving serious examples of rape, some of which were arguably more serious than the present case. Counsel noted in that respect that current sentencing practices are only one factor.
Finally, counsel submitted that the period of cumulation of the sentences was clearly warranted, as the two offences were separated in time, and involved different forms of penetration.

Analysis and conclusion

As we have noted, the proposed ground of appeal is directed to the individual sentences, the orders for cumulation, and the non‑parole period. In order to succeed on the ground that the sentences are manifestly excessive, the appellant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge. That requirement is, by its nature, a stringent requirement. It is not sufficient for the appellant to demonstrate that the individual sentences, or the total effective sentence, or the non‑parole period, were longer than this Court might have imposed in the circumstances of the case. Rather, the appellant must demonstrate that the sentences were so excessive as to bespeak error, by the judge, in the exercise of his sentencing discretion.[6]
[6]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
The starting point, in considering the proposed ground of appeal, is that the offence of rape, of itself, is inherently a serious criminal offence, as demonstrated by the maximum prescribed sentence of 25 years’ imprisonment. In the present case there were, as counsel for the respondent correctly contended, a number of aggravating features attaching to the appellant’s offending. The victim of the offending, TT, was plainly vulnerable, being severely intoxicated to the extent that the appellant had to physically assist her to get into her bedroom. The appellant was entrusted with the role of escorting TT safely to her cabin, and his offending was a patent violation of that trust. In addition, the offending took place in TT’s cabin, where she was entitled to feel safe. Each of those factors, taken together, justify the characterisation, by the judge, of the offending as being in the mid‑range of offences of that kind.
On the other hand, the appellant did have available a number of important mitigating circumstances. First and foremost, from the outset, he made full and most frank admissions of his offending. He admitted that he knew that TT was very intoxicated. On two occasions in the interview, he accepted that he did not think that TT wanted to have sex with him. He admitted that he did not have any conversation with TT about that matter. Further, he made clear admissions to both acts of penetration. Most significantly, the appellant did not suggest that TT in any way created the impression that she wished, or consented, to have sex with him. Taken together, the admissions made by the appellant, and the fact that he did not, in any way, seek to attribute his actions to any conduct by TT, were quite unusual in their frankness and candour.
Further, and allied to that consideration, the judge accepted that, although the appellant’s pleas of guilty were not entered at an early stage, the matter was always going to be a plea, once counsel had the opportunity to properly advise the appellant. As explained to the judge, the delay in entering the pleas of guilty was due to the difficulty, that the appellant’s legal practitioners had experienced in being able to confer with him. The fact that the matter proceeded to trial, without first proceeding through a contested committal proceeding, was consistent with the attitude of the appellant to adhere to the admissions that he had made to police in his interview.
Further, as the judge correctly noted, the appellant’s pleas of guilty had ‘significant value’. By his pleas, the appellant had spared TT and witnesses the need to give evidence, and he had saved the community the time and expense of a criminal trial. The utilitarian value of the pleas was enhanced, because, due to the effect the COVID‑19 pandemic has had on the legal system, the appellant had facilitated the course of justice. In that respect, the judge correctly noted that the appellant was entitled to a ‘greater reduction’ due to that factor.[7]
[7]Reasons, [17].
Further, at the time at which the appellant was sentenced, he spoke very little English. He was, and, it was foreseen by the judge, he would be, isolated in custody, with limited telephone contact with his family in Vanuatu, and limited opportunity to converse with fellow prisoners. In addition, at the time, the appellant had, and, it was anticipated, would continue to have, difficulty undertaking courses in prison.[8]
[8]Ibid.

Finally, the appellant has no previous convictions in Vanuatu (or in Australia), and he was sentenced on the basis that he was a man of otherwise good character.[9]
[9]Ibid.
Taken together, it was necessary for the judge to attribute appropriate weight to those factors in mitigation of the sentences imposed on the appellant.
One of the factors, which the judge was required to take into account, was the prescribed standard sentence for the offence of rape of 10 years’ imprisonment. That sentence is specified by s 5A(1)(b) of the Sentencing Act 1991 as the standard sentence for an offence which, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness for that offence. As this Court explained in Brown v The Queen,[10] the standard sentence is a legislative guidepost. As such, it is one of the factors to be taken into account in the sentencing synthesis. In taking it into account, it is necessary to bear in mind the narrowness of the definition of the ‘objective factors’, which excludes a number of factors, which the judge is required to take into account, in assessing the nature and gravity of the offending.
[10](2019) 59 VR 462, 379 [55]–[57] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286.
In the present case, as we have discussed, the judge characterised the offending as falling within the mid‑range of seriousness of the offence of rape. That characterisation was appropriate.
On the hearing of the appellant, we were referred to a number of other sentencing dispositions since the introduction of the standard sentence regime. They include the decisions of this Court in Abdullahi v The King,[11] Director of Public Prosecutions v Frank,[12] and Watkins (a pseudonym) v The King.[13] As the High Court has emphasised in Director of Public Prosecutions vDalgliesh,[14] while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration in the determination of the sentence in each case, nevertheless, that factor is only one of a number of factors, which must be taken into account in the exercise of the sentencing discretion in the particular case.[15] Nevertheless, as counsel for the respondent properly accepted, the sentences imposed in this case are similar to, or higher than, the sentences imposed in other cases, which involved examples of rape, which were more serious than the present case.
[11][2023] VSCA 110.
[12][2021] VSCA 163.
[13][2023] VSCA 203.
[14](2017) 262 CLR 428; [2017] HCA 41.
[15]Ibid (2017) 262 CLR 428, 434 [5]–[9] (Kiefel, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
In summary, the offending in this case was quite serious, involving the aggravating circumstances to which we have referred. On the other hand, the appellant did have available strong and persuasive mitigating circumstances. Taking those matters into account, the sentences on each of those charges were, at the least, particularly stern. It is arguable whether it could ultimately be concluded that the sentences, on each of the two charges, were, of themselves, manifestly excessive. However, it is not necessary to reach a concluded view on that issue, as the more pertinent question is whether, applying the principle of totality, it should be concluded that the total effective sentence, and thus the non‑parole period, are manifestly excessive.
The totality principle requires a judge, in sentencing an offender for a number of offences, to ensure that the aggregation of the sentences imposed for each offence is a just and appropriate measure of the total criminality of the offender, taking into account and giving due weight to the mitigating factors available to that offender.[16]
[16]Mill v The Queen (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70 (‘Mill’); Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J), 321 (Gummow J), 340 (Kirby J); [1997] HCA 26; Azzopardi v The Queen (2011) 35 VR 43, 59–60 [57] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed); [2011] VSCA 372 (‘Azzopardi’).
Applying that principle in the present case, and giving full weight to the seriousness of the two offences taken together, we are driven to the conclusion that the total effective sentence of 11 years’ imprisonment is manifestly excessive, in that that sentence necessarily could not have given appropriate weight to the mitigating factors, which we have discussed. While the judge expressly took those factors into account, nevertheless, it could not be concluded that, if they were given appropriate weight in the circumstances of this case, the total effective sentence of 11 years’ imprisonment, imposed on the appellant, was other than wholly outside the range of sentences available to the judge.
For those reasons, we have concluded that the total effective sentence of 11 years is manifestly excessive.
It is therefore necessary to re‑sentence the appellant. For that purpose, we were provided with some information concerning the appellant’s circumstances in prison since his apprehension and incarceration.
It appears that the appellant has improved his facility in the English language, although he still has difficulties in communicating, at times, with other prisoners and with staff. He has been able to participate in educational courses, and he has worked in the kitchen and is learning to cook. In addition, he has taken part in some sporting activities. On the other hand, he is separated from his partner and his five year old son in Vanuatu, and he has limited contact with them or other members of his family. He has ongoing concern about the welfare of his family, in part because of a recent earthquake in that country. Since the appellant has been in prison, there have been a number of ongoing restrictions due to the prevalence of COVID‑19.
In re‑sentencing the appellant based on the principle of totality, it is appropriate to moderate either the orders for cumulation determined by the sentencing judge, or the individual sentences. The authorities suggest that the former method is preferable, so that the individual sentences remain an appropriate reflection of the degree of criminality engaged in by the appellant.[17]
[17]Mill (1988) 166 CLR 59, 63; Azzopardi (2011) 35 VR 43, 61 [63], 63 [68]; see also DPP v Grabovac [1998] 1 VR 665, 677 (Ormiston JA, with whom Winneke P and Hedigan AJA agreed); The Queen v Mantini [1998] 3 VR 340, 348 (Callaway JA, with whom Phillips CJ and Batt JA agreed).
In the present case, in re‑sentencing the appellant, it is important that there be sufficient cumulation of the sentence, imposed on charge 2, on the sentence imposed in respect of charge 1. The offending in charge 2 was separate to the offending that was the subject of charge 1, and it is important that there be sufficient cumulation to reflect that consideration. In order to achieve an appropriate total effective sentence, it is, therefore, necessary to moderate the individual sentences imposed by the judge.
Applying those considerations, and taking into account both the seriousness of the offending, and the mitigating factors, which we have discussed, we would re‑sentence the appellant to 7 years’ imprisonment on each of charge 1 and charge 2, and we would direct that 18 months of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. Accordingly, the total effective sentence is 8 years and 6 months’ imprisonment. We impose a non‑parole period of 6 years before the appellant is eligible for parole.
Accordingly, we will make orders to the following effect:
1.The appeal is allowed.
2.The sentences imposed on charges 1 and 2 be set aside, and in lieu, the appellant be sentenced to 7 years’ imprisonment on each charge.
3.It be directed that 18 months of the sentence on charge 2 be served cumulatively on the sentence imposed on charge 1, so that the total effective sentence is 8 years 6 months’ imprisonment.
4.The appellant serve a minimum of 6 years before he is eligible for parole.
5.We would declare that, pursuant to s 6AAA of the Sentencing Act 1991, if the appellant had not pleaded guilty to the two charges, he would have been sentenced to a total effective sentence of 11 years and 6 months’ imprisonment with a non‑parole period of 8 years.

[2025] VSCA 71

11 April 2025