Ivanov v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0132

STEFAN IVANOV (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of the identification of a victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of the applicant and the victim respectively.

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JUDGES:	EMERTON JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2019
DATE OF JUDGMENT:	8 October 2019 First Revision: 8 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 219
JUDGMENT APPEALED FROM:	DPP v Ivanov [2018] VCC 834 (Judge M Sexton)

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CRIMINAL LAW — Application for leave to appeal — Sentence — Rape — Two ‘composite’ (i.e. rolled-up) charges — Applicant and victim in relationship for 22 years —Applicant discovered victim’s affair — Applicant confronted victim and raped her — Applicant raped victim again two days later — Punitive, degrading offending — Applicant reported offending to mental health clinician who reported to police — Applicant confessed to police — Victim did not want police involved — Matter would not have been reported but for applicant’s self-reporting — Victim wishes to repair relationship and for applicant to return to family as soon as possible — Applicant’s judgement impaired by adjustment disorder — Early pleas of guilty — Remorse — No prior convictions — Previous good character — Excellent prospects of rehabilitation — Imprisonment more burdensome as applicant primary carer for children and suffers depression — Total effective sentence of nine-and-a-half years’ imprisonment with non-parole period of seven years — Victim impact/personal circumstances — Whether fact of imprisonment treated as an aggravating feature — Whether judge erred in factual findings concerning remorse and/or denied applicant procedural fairness — Whether individual sentences, total effective sentence and non-parole period manifestly excessive — Application for leave to appeal granted — Appeal allowed — Extraordinary case calling for extraordinary sentence — Applicant resentenced to total effective sentence of four years’ imprisonment with non-parole period of two years.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC	Amad & Amad Lawyers
For the Respondent	Ms E Ruddle	Mr J Cain, Solicitor for the Director of Public Prosecutions

EMERTON JA

CROUCHER AJA:

Overview

By any measure, this is an exceptional case.

In May 2017, Stefan Ivanov discovered evidence that JL — his partner of 22 years and the mother of his three young children — had been having an affair for the last five years. He felt hurt and humiliated, and was incensed. Of all the ways in which he might have reacted, Mr Ivanov completely lost self-control and raped JL. Worse still, despite apologising after coming to his senses immediately after this episode, only 36 hours later, after discovering more lurid detail of the affair, he lost control and raped JL again. Each offence, which we describe in more detail below, was committed in a degrading and punitive manner. His behaviour was reprehensible.

The day after the second rape, concerned that something JL had said after the second attack indicated that she might try to harm herself (or worse), and feeling ‘bad’ and ‘guilty’ about what he had done, Mr Ivanov took the exceptional course of reporting his actions to a mental health clinician. That clinician, in turn, alerted police, to whom Mr Ivanov confessed as well. After being charged with rape, he pleaded guilty at the earliest practical stage. Mr Ivanov did all of these things despite the fact that JL had no intention of reporting the offending and made a formal statement only when asked by police to do so a week after Mr Ivanov had been charged. JL considered police involvement in what she saw as a ‘wake-up call’ in their marriage to be ‘ridiculous’.

At the plea hearing in the County Court, JL eschewed the opportunity to make a victim impact statement. Instead, she gave sworn viva voce evidence in support of Mr Ivanov. JL told the judge that she considered what happened to be the result of a relationship ‘in disarray’. At no point did she think she ‘needed to make a report about this’. She said that, while the offences were ‘unpleasant’ and ‘ugly’, and that, at the time, ‘they floored [her]’, she refused to identify herself as a ‘victim’. To be referred to in that way ‘really [made her] cringe’. JL described herself as ‘a very pragmatic [and] headstrong woman [who has] picked [herself] up.’ She wants to ‘move forward’, not to ‘wallow’. This, she said, was a ‘private matter’ for her and Mr Ivanov to work out. JL wants Mr Ivanov to be released ‘as soon as possible’ so that they ‘can start repairing what’s happened’.

There is not the slightest suggestion that JL gave this evidence as a woman ground down by years of ill-treatment and ensnared in a relationship from which she found it impossible to escape. To the contrary, JL gave every indication of being self-assured and of having very firm and considered views about what happened and what is to be done about it in the future. Indeed, when asked (by the judge) whether she thought she might be ‘to blame in some way’, JL appeared incredulous. Her response was an emphatic denial.

Despite this extremely unusual combination of factors, the judge imposed a total effective sentence of nine-and-a-half years’ imprisonment with a non-parole period of seven years.

Mr Ivanov now applies to this Court for leave to appeal against sentence on three grounds,[2] including a complaint of manifest excess.
[2]Grounds 1, 3 and 4. Ground 2 was abandoned at the hearing.

In our view, all three grounds are made good. Accordingly, we will grant the application for leave to appeal, allow the appeal, set aside the sentences below and resentence Mr Ivanov.

Plainly, this case presents a very difficult sentencing task. While we consider the sentences to be manifestly excessive, it is much harder to say what the appropriate sentences should be. Reasonable minds might differ on this question.

That said, in our opinion, these are wholly extraordinary circumstances calling for an equally extraordinary response. While the legislature commands that prison sentences be imposed for rape,[3] and while there is no denying that Mr Ivanov has behaved unspeakably — twice — the prison sentences in this case must be much shorter than would ordinarily be required. This is primarily because of two exceptional factors: first, Mr Ivanov’s self-reporting and confession, coupled with the reality that, but for his decision to come forward, he would never have been prosecuted; and, secondly, JL’s remarkable and powerful evidence.
[3]See the Sentencing Act1991 s 5(2G).

Balancing these and other considerations, Mr Ivanov will be resentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years.

Summary of facts and proceedings

Mr Ivanov and JL

Mr Ivanov was born in Macedonia in 1968. He was aged 49 at the time of the offending and is now 51. He came to Australia as an infant with his parents. He has a brother who is eight years younger. After completing secondary school, Mr Ivanov worked in a variety of jobs. He spent most of his time in recent years managing his parents’ investment properties, developing his own business and being the primary carer for his children. He also had the major role in assisting both his parents (who are elderly and speak little or no English) and his brother (who seems to have special needs) with their daily affairs.

JL was born in 1969. She was aged 47 at the time of the offending and is now 50. JL has developed her own business connected with the dental industry. By all accounts, the business is doing very well, and JL is keen to ensure it does even better. However, the time JL was required to spend away from her family to develop and run that business was a constant source of tension in her relationship with Mr Ivanov.

The relationship

The early history of the couple’s relationship was ordinary enough. Mr Ivanov and JL met in 1995. After a brief hiatus, they reunited, married in 2002 and had three sons, born in 2004, 2007 and 2008.

Mr Ivanov became the principal carer for the children, JL having returned to paid work as soon as possible after each birth. While the couple’s parents assisted in looking after the children, for the most part, Mr Ivanov was the parent at home tasked with their care.

The relationship was at times ‘off-again, on-again’, but it was nevertheless reasonably stable between the couple’s marriage and the birth of their third son.

An intervention order in 2010

Prior to the events the subject of the rape charges, there had been only one altercation in the relationship involving any level of violence, which did not lead to criminal proceedings. As he explained to psychiatrist Dr Danny Sullivan, during an argument in 2010, Mr Ivanov ‘twice mashed’ food into JL’s face. JL called the police. A 12-month intervention order (‘IVO’) was taken out against Mr Ivanov by police on behalf of JL. The two, however, remained living under the same roof and their sexual relationship continued during the operational period of the IVO.

Ructions and divorce

After the birth of their third son in 2008, JL returned permanently to full-time work. She was working very long hours away from the family, which Mr Ivanov came to resent. He tried to persuade JL to reduce her working hours and spend more time at home, but his attempts failed.

Later, frustrated and in an attempt to make her reduce her work hours, Mr Ivanov took the drastic step of applying for a divorce. JL, however, saw through this ruse. As she said at the plea hearing, Mr Ivanov did not really want a divorce. Instead, ‘it was a tool for him that he needed to use in order to get [her] attention [and] to change’. Her response to his suggestion that, once divorced, she would have to leave the home, was to ‘refuse to move out’. JL said that it was as if Mr Ivanov would ‘draw a line in the sand’ and she would ‘step up to the line and … shirtfront him … and then he’d be forced to draw another line in the sand’.

Divorce changes nothing

Despite the divorce, and in line with JL’s prediction, nothing much changed in their lives thereafter. As they parted on the steps of the court, they said they would see each other at home. The two continued to live as, and considered themselves to be, a couple. (They still do[4] — or would like to be, if the law would allow it.) Indeed, the couple’s sexual relationship continued. The children were not told of the divorce.
[4]DPP v Ivanov (a pseudonym) [2018] VCC 834 [10] (‘Reasons’).

JL kept working long hours in her business. She was often interstate or overseas. At the plea hearing, she described herself as ‘the glory parent’ who would ‘swan in … on the weekends’. She also described herself as the ‘Alpha female’ or ‘the dominant person’ in the relationship. By contrast, JL described Mr Ivanov as ‘the main and sole carer of the children’; the one who ‘does the hard work’; the one who dresses and feeds them, teaches them how to tie their shoelaces and to do their times tables, and takes them to and from school.

Mr Ivanov rapes JL, twice

In 2012, JL commenced a five-year-long sexual relationship with a man she had met through her work.

In May 2017, after Mr Ivanov’s suspicions were aroused, he found proof of the affair on JL’s mobile phone. It appears that he surreptitiously copied these messages using his own phone.

On Friday, 19 May 2017, when the children were staying with their grandparents, Mr Ivanov confronted JL about the affair. Initially, JL denied the accusations. Mr Ivanov told her that he had seen the text messages on her phone and that others had confirmed his suspicions. She then admitted the affair, in part. Mr Ivanov felt humiliated, was infuriated and lost self-control.

This was the occasion of the first rape. Mr Ivanov pulled down JL’s pants and roughly grabbed her vagina, inserting his fingers. He said, ‘Oh my God, you’re wet, … you’ve just come from fucking him.’ He pulled her into the bedroom by her wrist and penetrated her vagina with his penis. During the attack, he verbally abused JL and spat at her a couple of times. Pathetically, he said things like, ‘Is this how he does it?’ JL did not do or say anything throughout the ordeal. She just lay there.

Mr Ivanov then remembers ‘getting off [JL] and just feeling … terrible, crying, [being] upset’. He apologised profusely. Nevertheless, apparently still incensed, after wiping his penis with her scarf, Mr Ivanov took JL’s phone and threatened to send messages between her and her lover to her parents. They struggled over the phone, and JL eventually wrested it from him. During that struggle, JL broke a fingernail, hurt her lip and nicked her neck. Mr Ivanov later noticed her neck and tried to wipe it clean for her. He asked her questions about when the affair started. At some point, he asked JL, ‘Why did you let me do that to you? That’s not me. I wouldn’t do that to you.’ She did not reply, other than to say she needed to leave.

JL did leave. She went to a motel for the Friday and Saturday nights. The couple did not contact each other during that period.

On the Sunday, 21 May 2017, JL contacted Mr Ivanov to say that she needed to pick up the van and some items for her work on Monday. As she did not have the keys, they arranged for Mr Ivanov to be at home to meet her so that she could access the garage. When JL arrived, at about 11:00 a.m., Mr Ivanov let her into the garage and then asked her to come into the house. He insisted that he ‘just want[ed] to talk’.

On Mr Ivanov’s account, he had read more of the text messages copied from JL’s phone while she had been away over the weekend. He discovered nude images that JL had sent her lover and the fact that the two had been planning sexual encounters with others. These discoveries, said Mr Ivanov, ‘killed [him] even more, … just made things even worse’. When JL arrived on the Sunday, with these things on his mind, Mr Ivanov interrogated her further about the affair, which she denied. He then showed her images that she had sent to her lover, which she denied. Mr Ivanov said he ‘just snapped’.

It was then that he ‘guided’ JL to the bedroom and raped her again. He said he wanted to have sex with her. JL refused and reminded him that he had apologised after the events of Friday night. He insisted. When JL refused to remove her clothing, Mr Ivanov ripped her pants and pulled them down. He pushed her onto the bed, forced her legs apart and penetrated her vagina with his penis. Thereafter, he aggressively licked and sucked her vagina, and penetrated her with his fingers. He then penetrated her again with his penis. Throughout the episode, Mr Ivanov was rough; he slapped JL’s ‘vagina’ and turned her over and slapped her buttocks. He also made demands that she call him by her lover’s name. Following ejaculation, Mr Ivanov pried JL’s mouth open and forced ejaculate into her mouth, causing her to retch. He also dragged her across his ejaculate on the bed.

When the attack was over, JL went to the van in the garage. Mr Ivanov followed. They sat and talked. They remained in the van for two to three hours, crying at times, while Mr Ivanov read text messages between JL and her lover. He told her that he had a plan to ruin their lives. She told him to look after the children because she did not know how long she would be around, or something along those lines.

While they were in the van, the couple’s eldest son rang Mr Ivanov, asking to be picked up. Mr Ivanov headed off to do so, leaving JL in the van. When he returned, the couple behaved as they usually did. The whole family went out for dinner together in Southbank. After dinner, JL watched a movie with the children. Once the children were in bed, JL left for a friend’s house. Later, she returned to the motel in which she had been staying.

Mr Ivanov reports his offending to a clinician and confesses to police

At about 4:10 p.m. the next day, Monday, 22 May 2017, having considered JL’s remarks about not knowing how long she would be around, and feeling ‘so guilty’ and ‘bad’ about what he had done, Mr Ivanov became concerned for JL’s welfare and rang a mental health clinician. He told the clinician that he had raped JL on the weekend. He said that he had discovered she had been having an affair for the past five years. He read the clinician text messages between JL and her lover. He reiterated that he had raped JL and said that he had made her say her lover’s name while he raped her.

The clinician contacted police, who said they would conduct a welfare check on Mr Ivanov and JL.

Police attended the couple’s home after 8:41 p.m. that evening, whereupon Mr Ivanov immediately confessed to raping JL. He gave details about the rape on the Friday evening. Police then arrested him. Subsequently, JL was also contacted by police. She confirmed the events of the Friday night and the Sunday morning.

Late on the night of his arrest and into the next morning, police conducted a formal recorded interview with Mr Ivanov. He confessed to both episodes of offending and gave details (or at least those he could remember). Among other things, he said:

·He confronted JL about the affair after reading hundreds of text messages, and she lied to him again.
·He lost control and took her to the bedroom. He got on top of her and asked her, ‘Is this how he does it?’
·He remembers getting off her and feeling terrible, crying, upset.
·‘[JL] just lay there, didn’t do anything.’
·JL came around on Sunday and she denied the affair again. He just snapped and took her to the bedroom and did the same thing again.
·Afterwards, they sat in the van and cried and cried.
·JL told him to make sure he looked after the boys and that he would find a nice girl.
·He felt terrible for what he did. It wasn’t him at all. He apologised so many times. He doesn’t know what happened.
·He just wanted to hurt her like she had hurt him.
·JL just laid there and let him have sex with her.
·On the Sunday, he was infuriated and he got a bit crazy and led her into the bedroom. She didn’t say anything and just laid there silent, asking him why.
·He has never done anything like that before. He lost control.
·He wanted a divorce because she wasn’t coming home. He was screaming for her attention and thought getting a divorce would snap her out of it.
·He admitted the various sexual penetrations alleged on the Friday night.
·He does not remember a lot of the Sunday incident. He was ‘lost’.

Mr Ivanov was charged later on the Tuesday morning and bailed to appear at a filing hearing in the Magistrates’ Court three days later.

JL did not make a formal statement until 28 May 2017, nearly a week after Mr Ivanov was arrested and charged.

Pleas of guilty indicated/entered at early stage

On 18 August 2017, a committal mention was adjourned to enable Mr Ivanov’s fitness to plead to be assessed. Following that assessment, negotiations took place between the parties and the matter resolved on 15 November 2017.

On 17 November 2017, Mr Ivanov accepted committal on charges of rape to the County Court by way of a straight hand-up brief. He pleaded guilty to those charges.

Dr Sullivan’s report

On 16 February 2018, Mr Ivanov was assessed by a forensic psychiatrist, Dr Sullivan, who produced a report dated 2 April 2018. The report contains the following conclusions:

At the time of the alleged offences Mr [Ivanov] had come to a sudden, profound and unwelcome realisation about his relationship. His actions occurred at a time of emotional tumult. His actions reflected profound anger, distress and a desire to humiliate [JL], likely due to his own sense of humiliation. At the time the appropriate diagnosis would have been an adjustment disorder with mixed disturbance of emotions and conduct …

His subsequent course is consistent with a major depressive disorder, mild [to] moderate in severity, with somatic syndrome. This is sustained and has not resolved despite psychotherapy and with the passage of time. In part this may be due to the ongoing legal issues. The neuropsychological assessment suggests mood disorder without other diagnosis.
…
Mr [Ivanov] shows no indication of sexual deviance. The offences as alleged, involved sexual degradation of [JL], but there is no other indication of a predisposition to sadism or of sexually deviant interests or preoccupations. Mr [Ivanov] however indicates that sexual desire may have become paired with anger in his relationship, and his sexual templates with [JL] had possibly come to associate conflict resolution with sexual intercourse. It is likely that this will become apparent in the course of further psychological intervention. He is at low general risk of further sexual or violent offending, although the continuation of his relationship may pose future emotional challenges which he may find difficult to manage.
At the time of the alleged offences, Mr [Ivanov] seems to have been overwhelmed by distress. His incapacity to manage his emotions, consistent with an adjustment reaction, was causally associated with the alleged offences. At the time, his capacity to think clearly and make calm and rational choices was markedly impaired by his acute adjustment reaction. This was manifest in morbid rumination, distress, sleep and appetite disturbance, and marked preoccupation without effective solutions to his problems. His judgment was impaired by his incapacity to manage the emotional demands of the revelation that [JL] had been unfaithful. He was not disinhibited, and his awareness of wrongfulness was not impaired [but] his judgment was likely to have been diminished at the time.
Mr [Ivanov] has been the primary carer for his children, and [JL] has acknowledged this. Incarceration is likely to weigh more heavily upon him as a result of this.
Mr [Ivanov] appears focussed on restoring his relationship. …

The content of Dr Sullivan’s report is relevant to at least two of the grounds of appeal, as well as to the task of resentencing.

Plea hearing

On 19 April 2018, Mr Ivanov was arraigned in the County Court on an indictment containing two ‘composite’ (or ‘rolled-up’)[5] charges of raping[6] JL. He honoured the agreed resolution and pleaded guilty.
[5]As senior counsel for Mr Ivanov on the application pointed out, since the plea in this matter was conducted, this Court has deprecated the use of the (undefined) term ‘composite charge’ and opined that ‘it is preferable that those responsible for the drafting of charges or indictments, in future, ensure that the more recognised and understood term ‘rolled up charge’ is used’ (see Holland (a pseudonym) v The Queen [2018] VSCA 241 [6]).
[6]Contrary to the Crimes Act1958 s 38(1).

The prosecutor on the plea (who did not appear on the application in this Court) accepted that Mr Ivanov had pleaded guilty at an early stage. She told the court that the ‘serious offender’ provisions[7] were inapplicable, that there was no criminal history and no victim impact statement, and that she understood JL would be called by Mr Ivanov to give viva voce evidence. She also confirmed that, pursuant to s 5(2G) of the Sentencing Act1991 (Vic), a custodial sentence is mandatory for rape.
[7]See the Sentencing Act1991 Part 2A.

The judge invited submissions from the prosecutor prior to Mr Ivanov’s plea in mitigation. The prosecutor conceded that this was ‘a somewhat unusual case’ but submitted that the objective gravity of the offences was ‘high’, involving ‘verbal degradation and humiliation’ and ‘a breach of trust’. In addition, after being confronted with the affair and then apologising, he offended again within two days, which, in her submission, increased the gravity of the second offence.

However, having considered the reports of the psychiatrist Dr Sullivan and the clinical psychologist Dr Joel Godfredson, the prosecutor conceded that, because of an adjustment disorder, Mr Ivanov’s judgment was impaired on both occasions of offending, although the level of impairment might be found to be less on the second occasion, given that he had had time to reflect on the earlier conduct. The prosecutor also conceded that imprisonment may be more burdensome for Mr Ivanov; that he presented as a low risk of reoffending; that he had good prospects of rehabilitation; that he had shown remorse; and that, while there was still a role for general deterrence and denunciation, there would be some moderation of those sentencing purposes given the psychiatric/psychological material.

Prior to calling JL to give evidence, senior counsel for Mr Ivanov (who did not appear on the application in this Court) emphasised the following factors in his written and/or oral submissions:

· Mr Ivanov’s moral culpability was reduced on account of the shock of the disclosure of the affair and his consequent loss of self-control and impaired judgment arising out of the adjustment disorder diagnosed by Dr Sullivan;

· the absence of prior convictions;

· Mr Ivanov’s prior and subsequent good character;

· his self-reporting to the clinician and confession to police;

· his early pleas of guilty;

· his remorse;

· the particular impact of imprisonment on Mr Ivanov, given his knowledge that his family (namely, JL, his children, his parents and his brother) will be left without his assistance, and given also his depressive disorder;

· his taking up of and progress in psychological treatment with Dr Godfredson;

· his completion of a parenting programme with the Department of Health and Human Services (‘DHHS’) and the lack of any concern from the DHHS regarding the children;

· his low risk of further offending;

· his strong history of employment and service to his own family;

· his excellent family support, including from JL;

· his prospects for rehabilitation;

· the stance of JL, which would be detailed in her evidence; and

· the appropriateness of clemency or mercy.

Senior counsel for Mr Ivanov then called JL to give sworn viva voce evidence. We have summarised parts of that evidence already. There will be some repetition in the following outline.

JL began by explaining the nature and demands of her business. She said that, prior to the charged events, other than weekends, she ‘probably [saw] [the children] two or three times a week maybe in the mornings’ and, in a ‘good week’, she would be home ‘maybe once or twice … in time to put [the children] to bed’. JL described Mr Ivanov as ‘the main and sole carer of the children’; the one who ‘does the hard work’. In contrast, JL described herself as the ‘glory parent’ who would ‘swan in … on the weekends’. She regards herself as the ‘Alpha female’ or ‘the dominant person’ in the relationship.

JL described the children as ‘very well adjusted’ and said that ‘they love their dad’. She also said that one of the reasons that she and Mr Ivanov stayed together after the divorce was ‘for the children’.

JL explained that Mr Ivanov ‘does everything for his parents’, who, despite being in Australia for 45 years, speak ‘zero English’. He has been taking them to medical appointments, meetings with banks and the like since he was aged 12. They do not even have bank cards. Mr Ivanov’s brother, whom JL described as ‘simple’ and lacking in ‘social skills’, would not be able to provide the same assistance. He ‘has no friends’, does not ‘communicate very well’ and spends his weekends playing computer games with JL’s children. Mr Ivanov does his brother’s BAS.

When asked why, as a person who has been raped, she was in court giving evidence for the offender, JL responded in the following ways, among others. JL said that she considered what had happened to be ‘a symptom’ of a relationship ‘in disarray’. She said that, while the offences were ‘unpleasant’ and ‘ugly’, and, at the time, ‘they floored [her]’, she did not identify herself as a ‘victim’. To be referred to in that way ‘really [made her] cringe’. In her view, Mr Ivanov had ‘obviously gone mad a bit’. She believed that things would ‘settle down’ and at no point did she think she ‘needed to make a report about this’. She recognised it as ‘a wake-up call’ and that they, as a couple, ‘were going to need professional help’. JL described herself as ‘a very pragmatic [and] headstrong woman [who has] picked [herself] up.’ She wants to ‘move forward’, not to ‘wallow’. This, she said, was a ‘private matter’ for her and Mr Ivanov to work out. Moreover, JL wants Mr Ivanov to be released ‘as soon as possible’ so that they ‘can start repairing what’s happened’.

It was at that point in the evidence that the judge intervened and asked JL whether she thought she was ‘to blame in some way’. As discussed earlier, JL’s denial was emphatic. In particular, she said this:

That I’m to blame? No, no. … I’m not to blame. Our relationship was in trouble. … We needed some help. … [B]ut do I think I’m to blame? No. … I don’t apologise for my relationship with [the other man]. … I sought another relationship … because [the relationship with Mr Ivanov] had deficiencies. … I still had needs. … I’m not to blame for this.

JL went on and stated that, in her view, ‘the event needs to be dealt with’. She also pointed out that, ‘ever since the event has happened, we haven’t been able to deal with it … [because we have] been prevented from dealing with it’. Later in her evidence, she explained that, following the laying of charges, the police took out an IVO in her favour. This meant that Mr Ivanov had to live with his parents, separated from JL and the children. The order was not varied for some time so as to allow Mr Ivanov even to see the children. Even then, and contrary to the wishes of both JL and Mr Ivanov, the couple were prevented from engaging in counselling because of the terms of the order.

JL said that, while Mr Ivanov was in gaol, she intended to engage a nanny to care for the children and she (JL) would continue to work in her business. JL was unsure about how she would explain their father’s absence to the children. She said, ‘[D]o I say he’s gone off to China for two years?’

JL reiterated that her hope was that Mr Ivanov would be released ‘as soon as possible’.

Later still, JL sought to characterise the lack of any lasting impact on her from the offending in the following way. JL said that, while she did not want to ‘dismiss’ the rapes, for ‘it was not pleasant listening to the prosecution read those things out’, nevertheless, on the Monday immediately after the Sunday of the second attack, she ‘went to work’. In particular, JL said this:

… I can tell you … there was a specialist anaesthetist in my presence on that Monday … and there was a dentist … and there was my nurse there as well … I can tell [you that] if you were to bring either one of those people in here, this room, right now and say to them, ‘Do you remember a year ago when you and [JL] worked in [a particular place]?’, … and if you sort of said to ‘em, ‘Do you know the day before [JL] had been … raped …?’ I can tell you he would probably look at you as though you’ve landed on the moon.

The judge then remarked, ‘I can tell you in my experience … there are many, many different way[s] to react to a situation.’ But JL, politely yet firmly, stood her ground. She responded, ‘To me … this was a private matter … it was something … that we were going to need to deal with.’

In cross-examination, JL explained that, in the period before a nanny was engaged, it would be very difficult for the grandparents to help out with the children, because Mr Ivanov’s father had had a stroke, which affected his balance and his driving ability, and she was somewhat estranged from her own parents.

In further questioning, the judge asked JL about her remark (after the second attack) concerning Mr Ivanov ‘look[ing] after the kids because [she] may not be around for very long’. JL explained that she was ‘stunned by the fact that this had happened because … [she] didn’t know who this person was’. This was not behaviour that Mr Ivanov had ever exhibited before. Thus, when in a ‘haze’, she formed ‘a stupid plan’ to liquidate the company accounts and buy a one-way ticket to Europe to ‘disappear’. But, then, she ‘got up’ and thought, ‘I’m going to go to work.’ What ‘threw’ her was to have a police officer ringing her on the Monday night. She remembers thinking, ‘[W]hy on earth are you involving the police …? … This is ridiculous.’ That was her ‘actual impression’.

At the completion of JL’s evidence, senior counsel for Mr Ivanov then made further submissions. Among other things, he emphasised the following:[8]
[8]Senior counsel also referred to s 4(1)(c) of the Victims’ Charter Act2006 which provides that the objects of that Act are ‘to help reduce the likelihood of secondary victimisation by the criminal justice system’. He submitted that ‘[i]t doesn’t seem to me to be a matter that sits outside the intuitive synthesis’. Senior counsel on this application made no mention of this provision or of the judge’s failure to refer to it in her reasons for sentence. In those circumstances, we say nothing more about it.

· the character references, some of the authors of which were present in court;

· the support Mr Ivanov enjoys in the community;

· the exceptional nature of JL’s evidence, including her insight and strength;

· Mr Ivanov’s exceptionally forthright self-reporting made out of concern for JL, who, as it happened, was determined not to report the matter;

· the immediate repentance and remorse evident in that behaviour;

· Mr Ivanov’s strong work ethic from a very young age;

· Mr Ivanov’s devotion to his family, including his parents and his brother;

· Mr Ivanov’s own business projects (separate from managing his parents’ businesses);

· Mr Ivanov’s attendance and performance at counselling;

· Mr Ivanov’s concern for his family, including his parents, during his absence while in prison;

· the absence of any substance abuse or alcohol concerns; and

· the exceptional combination of a complainant like JL and an accused like Mr Ivanov.

Senior counsel for Mr Ivanov relied on the decision of this Court in MC v The Queen,[9] to which, he submitted, Mr Ivanov’s case should be compared favourably.
[9]MC v The Queen [2011] VSCA 2 (‘MC’).

In reply, the prosecutor submitted that, whereas in MC the children were put into care upon the imprisonment of their father, in this case, the children have ‘a highly capable mother to take care of them and some support from the family as well, notwithstanding the difficulties that having a full-time job and having three children raises’. In any event, this was a common impact of an offender being imprisoned after committing serious offending. The prosecutor also reiterated the breach of trust and the punitive, humiliating and degrading elements of the offending, as well as the need for some cumulation between the sentences for the two offences. She also referred to JL’s high level of distress at the time of the offending and the ‘practical impact upon her [latterly]’. Finally, the prosecutor emphasised the sentencing purposes of general deterrence and denunciation, notwithstanding that there might be moderation of those sentencing purposes if the judge were to find a link between the offending and the disorder diagnosed by Dr Sullivan.

Sentences and the judge’s reasons

On 6 June 2018, the judge sentenced Mr Ivanov and gave detailed reasons for the sentences that she imposed. While she did not say so in terms, it is clear that her Honour was troubled by the peculiar nature of this matter, and that she wrestled with the competing factors and the ultimate sentence to be imposed.

After summarising the background to and circumstances of the offending,[10] the judge weighed the gravity of the offences and identified factors in aggravation and mitigation. Overall, she found the offending to be serious:[11]

… [each occasion] involved humiliation, degradation, the exercise by you of power and control, additional personal and sexual violence, and abuse of trust. On the first occasion, you showed a complete lack of insight to what you had done, blaming JL for ‘letting’ you do what you did. The second occasion was made even more serious by reason of the time you had to reflect on your violent criminal behaviour, and the fact that despite the apologies you had made, you proceeded to inflict further sexual violence on JL.

[10]Reasons [2]-[27].

[11]Reasons [28].

As to the impact of the offending on JL, the judge said:[12]

JL chose not to make a statement about the impact on her of what you did. However, I find there is an impact on her, a substantial one, and it has nothing to do with calling her a victim, but everything to do with how her life has been affected by your criminal actions. She has to arrange for someone else to care full time for the children you have together, so that she can continue to pursue the dream she has for her business. She has the right to work in her business, and not for one second am I suggesting that she should not. The impact is that she will bear the full brunt of the fallout from your crimes against her, including the ongoing issue of what to tell your children about where you are now and where you will be for some time to come.
In my view, while there was an immediate psychological and emotional impact on JL with her distress at the ‘unpleasant and ugly’ acts you perpetrated on her, and a subsequent and protracted impact on her of dealing with the practical outcomes of your offending, I recognise that JL’s evidence is that she wants to try and repair the relationship and start family counselling on your release, which you were not able to engage in before now because of an Intervention Order made on the application of the police after these offences.
While JL did not expressly say she has forgiven you, her wish to restore the relationship probably means that any psychological and emotional impact suffered by her is much less in the circumstances. Accordingly, I find there is some mitigation in that factor, even though the possibility exists that JL’s wish to restore the relationship may have a practical basis in restoring the main caregiver to the children, and not be one arising out of forgiveness; and further, I am mindful of the complex nature of the potential damage resulting from sexual offences committed in the context of family violence, which may not be readily apparent.

[12]Reasons [29]–[31].

The judge emphasised that sentencing is not a private matter between the person subject to the offending and the offender, that the offending is a wrong committed against the community at large and that it is the community that expects crimes to be detected and the community itself which is entitled to retribution.[13]
[13]Reasons [32].

As to Mr Ivanov’s remorse, the judge said:[14]

… I treat your pleas of guilty, and your voluntary reporting of your acts, together with your confessional interview with police, as showing some remorse. I have qualified the level of remorse because first, you apologised profusely to JL after the first occasion, demonstrating remorse, but committed the same serious offences within 36 hours; second, you told Dr Sullivan that it was hard to remember what happened on the first occasion after the initial confrontation, and it is difficult to find a person is wholly remorseful for something they say they cannot remember doing; and third, your report to the clinician was really about JL, not about your crimes, and you reported to Dr Sullivan that you did not realise what had happened was rape, even after the second occasion, until it was named as such by the clinician.

I have received many references attesting to your high level of remorse since then, and I take into account that you now fully accept responsibility for your criminal acts.
Also, I take into account that the crimes would not have come to light if you had not yourself contacted the mental health clinician. I also take into account the full admissions you made to police in your interview.

[14]Reasons [35]-[37].

The judge paid careful attention to the expert evidence of Dr Sullivan and had regard to his opinion that Mr Ivanov’s mental state ‘at the time of the offending’ attracted the operation of the principles in Verdins. She observed, however, that there was no reference by Dr Sullivan to ‘the time of the offending’ being two separate occasions, two days apart.[15] Given the concession made by the prosecution, the judge said she felt ‘constrained’ to find that, at the time of the offending on the first occasion, there was a realistic connection between Mr Ivanov’s diagnosed acute adjustment reaction and the offending and that that reaction had the effect of impairing his ability to make calm and rational choices and to think clearly. As a result, she found a ‘modest reduction’ in his moral culpability for Charge 1.[16] However, the judge did not accept that Mr Ivanov’s adjustment disorder affected the actions that gave rise to Charge 2.[17] Furthermore, it did not lessen the need for denunciation as a sentencing objective, and it did not moderate the need for general deterrence, as the protection of people in intimate relationships from sexual offending was of vital concern to the community. There also remained the need for specific deterrence.[18]
[15]Reasons [40].
[16]Reasons [44].
[17]Reasons [46].
[18]Reasons [45].

The judge accepted Dr Sullivan’s other diagnosis of a major depressive disorder and that this condition would make Mr Ivanov’s term of imprisonment more burdensome. She took into account that he went into custody for the first time on the day of the plea as a first-time offender and that he would find imprisonment harder than usual because of the knowledge of the impact of his absence on his children and parents.[19]
[19]Reasons [47].

The judge also took into account Mr Ivanov’s good character and good prospects of rehabilitation, as well as his pleas of guilty and the fact that his crimes would not have come to light if he himself had not exposed them. However, the judge rejected the submission that a merciful sentence should be imposed. She said:[20]

I am not persuaded that a merciful sentence should be imposed in light of the very serious nature of the composite charges. The mitigating features will be reflected in both the head sentence and non-parole period, but having regard to the aggravating features, significant sentences must be imposed on both charges.

[20]Reasons [51].

The judge went on to impose sentences on Mr Ivanov in accordance with the following table:

Charge

Offence

Maximum

Sentence

Cumulation

1

Rape (19 May 2017)

25 years

7 years

18 months

2

Rape (21 May 2017)

25 years

8 years

Base

Total effective sentence:

9 years and 6 months

Non-parole period:

7 years

Pre-sentence detention:

48 days

Section 6AAA declaration:

TES: 15 years
NPP: 13 years

Ground 1: Victim impact and JL’s evidence

Charge	Offence	Maximum	Sentence	Cumulation
1	Rape (19 May 2017)	25 years	7 years	18 months
2	Rape (21 May 2017)	25 years	8 years	Base
Total effective sentence:	9 years and 6 months
Non-parole period:	7 years
Pre-sentence detention:	48 days
Section 6AAA declaration:	TES: 15 years NPP: 13 years

Ground 1 was pleaded as follows:

The sentencing discretion miscarried as a result of a failure on the part of the sentencing judge to synthesise properly the sworn and (for the most part) unchallenged evidence of JL (‘the victim’) on the plea. In particular, the sentencing judge made findings regarding the impact of the applicant’s offending on JL that:
(a)were not open to the judge or not properly founded on JL’s evidence; and
(b)failed, in the circumstances, to accord the applicant procedural fairness.

Submissions

Senior counsel, who appeared for Mr Ivanov in this Court (but not below), explained in his written case, and in his oral submissions, that this ground should be understood as attacking paragraphs [29] to [32] of the Reasons in a number of ways.

Victim impact: His first submission was that, contrary to the judge’s reasons at paragraph [29], the fact and consequences of Mr Ivanov’s incarceration could not be regarded as aggravating his offending, or in any way provide a basis for additional punishment. Mr Ivanov’s absence from the family home and the difficulty of explaining his absence to his children, and the additional burden of knowing that he, his children’s primary carer, would be absent from their lives for the term of his imprisonment, are mitigating features of his offending and imprisonment. It was submitted that the same fact — his imprisonment — cannot be permitted either to erode that mitigation or to aggravate Mr Ivanov’s offending.

Qualifications to mitigation: The second submission was that, while the judge (correctly) found that JL’s evidence — to the effect that she wanted to reconcile and re-unite with Mr Ivanov — meant that he enjoyed ‘some mitigation’ because the ‘psychological and emotional impact suffered by [JL] [was] much less’,[21] the judge erred in qualifying that finding, or in eroding its significance, by:

(a) finding that ‘the possibility exists that JL’s wish to restore the relationship may have had a practical basis in restoring the caregiver to the children, and not be one arising out of forgiveness’;[22] and

(b) being ‘mindful of the complex nature of the potential damage resulting from sexual offences committed in the context of family violence, which may not be readily apparent’.[23]

[21]Reasons [31]. Senior counsel also referred to R v Skura [2004] VSCA 53 (‘Skura’).

[22]Reasons [31].

[23]Ibid.

Denial of procedural fairness: The third submission was that, in making these findings, the judge also denied Mr Ivanov procedural fairness, as she did not raise these qualifications with JL or with counsel on the plea.

Counsel who appeared for the Director of Public Prosecutions in this Court (but not below) addressed each of these arguments in turn.

Victim impact: As to the first point, in her written response to Mr Ivanov’s written case, the Director submitted that the judge’s reference to the ongoing inconvenience to JL of losing Mr Ivanov as a caregiver was: (a) founded on the evidence; and (b) a matter that the judge was required by legislation to take into account.

During her evidence, JL expressed the view that Mr Ivanov’s incarceration would ‘punish [her] ... in inconvenience’ and punish their children and Mr Ivanov’s parents. According to the Director, the judge was required, by paragraphs (daa) and (da) respectively of s 5(2) of the Sentencing Act, to have regard to ‘the impact of the offence on any victim of the offence’ and to ‘the personal circumstances of any victim of the offence’ and this was why the impact on JL was mentioned in the judge’s sentencing reasons, but the impact on the children and Mr Ivanov’s parents was not. Thus, in the Director’s submission, the judge complied with her statutory obligations by considering JL’s current personal circumstances, which included, inter alia, dealing with the ongoing care of her children and managing their reaction to their father’s incarceration.

The Director conceded that the judge would have been in error had she treated as an aggravating factor, or otherwise increased the sentence as a result of, JL’s ‘personal circumstances’ or the ‘impact’ on JL of Mr Ivanov’s incarceration. In her submission, however, the judge did not do that. Rather, her Honour simply took these matters into account as part of the ‘intuitive synthesis’. Alternatively, the judge’s remarks were otherwise just ‘commentary’ on JL’s personal circumstances.

Qualifications to mitigation/denial of procedural fairness: The Director submitted that the judge’s conclusions were appropriately drawn from the evidence of JL and were not a matter on which Mr Ivanov was required to be heard. The meaning and weight given to a witness’s evidence is a matter for the judge who hears that evidence. As the judge noted, JL did not actually give evidence that she had forgiven Mr Ivanov. Further, Mr Ivanov’s counsel did not submit that JL had forgiven him. It was clear from the nature of JL’s evidence that the practical difficulties of Mr Ivanov’s incarceration were foremost in her mind. Thus, so it was contended, the judge’s description of JL’s position was entirely appropriate.

As for the complaint based on the judge’s reference to the ‘complex nature of the potential damage resulting from sexual offences committed in the context of family violence’, the Director submitted that it was trite to say that sexual violence in a family setting has the potential to cause damage, and that the community, not just the victim, must be considered in sentencing. The judge is not required to give a party a specific warning that she will apply trite legal principles. Mr Ivanov was represented by experienced senior counsel who was given ample opportunity to call evidence, tender documents and make submissions on the plea. In her submission, no mischaracterisation of the evidence or denial of procedural fairness occurred.

Discussion: Victim impact

In our opinion, the first aspect of Ground 1 must be accepted. The error is revealed in paragraphs [29] and [30] of the judge’s reasons:[24]

JL chose not to make a statement about the impact on her of what you did. However, I find there is an impact on her, a substantial one, and it has nothing to do with calling her a victim, but everything to do with how her life has been affected by your criminal actions. She has to arrange for someone else to care full time for the children you have together, so that she can continue to pursue the dream she has for her business. She has the right to work in her business, and not for one second am I suggesting that she should not. The impact is that she will bear the full brunt of the fallout from your crimes against her, including the ongoing issue of what to tell your children about where you are now and where you will be for some time to come.
In my view, while there was an immediate psychological and emotional impact on JL with her distress at the ‘unpleasant and ugly’ acts you perpetrated on her, and a subsequent and protracted impact on her of dealing with the practical outcomes of your offending, I recognise that JL’s evidence is that she wants to try and repair the relationship and start family counselling on your release, which you were not able to engage in before now because of an Intervention Order made on the application of the police after these offences.

[24]Reasons [29]-[30] (emphasis added).

Contrary to the Director’s submission, we consider that the only reasonable way in which the italicised passages can be read is that the judge treated as an aggravating factor the ‘impact’ of Mr Ivanov’s incarceration on JL (resulting in her having to arrange for the care of the children in Mr Ivanov’s absence and in having to explain that absence to the children).

These remarks were not simply ‘commentary’ on JL’s personal circumstances. As the judge said, she regarded the practical impact on JL of Mr Ivanov’s incarceration as ‘substantial’.[25] After mentioning the immediate impact of the ‘unpleasant and ugly’ acts perpetrated upon JL, the judge also referred to ‘a subsequent and protracted impact on her of dealing with the practical outcomes of [the] offending’.[26] There can be no doubt that this was a reference to the altered care arrangements and the confronting information that had to be conveyed to the children.
[25]Reasons [29] (emphasis added).
[26]Reasons [30] (emphasis added).

Further, it does not avail the Director to submit that the judge simply took into account this ‘impact on her [JL]’, or ‘how her life has been affected’ (or, for that matter, the ‘protracted impact on her of dealing with the practical outcomes of the offending’), as part of the ‘intuitive synthesis’. To take these considerations into account in the manner described as part of the intuitive synthesis is to treat those factors as adverse to Mr Ivanov.

Moreover, it makes no difference that, in the judge’s analysis, these factors may have been offset by the evidence that the harm suffered by JL was ‘much less’ than would ordinarily be expected, or by the mitigatory effect of the hardship of Mr Ivanov’s imprisonment because of his ‘knowledge of the impact of [his] absence on [his] children and [his] parents’.[27] If, in the sentencing mix, her Honour has taken into account adversely to Mr Ivanov ‘how [JL’s] life has been affected by [his] criminal actions’ by reference to the need for new childcare arrangements and the difficult task of breaking the news to the children, both of which arose from his incarceration, then the error is plain.
[27]Reasons [47].

Furthermore, while it is correct to say that paragraphs (daa) and (da) of s 5(2) of the Sentencing Act respectively require that, in sentencing an offender, the judge must have regard to ‘the impact of the offence on any victim of the offence’ and to ‘the personal circumstances of any victim of the offence’, there are reasons why, in addition to the Director’s concession, the words in those provisions cannot justify the judge’s reasoning in the present case.

First, even if it were correct that, on a literal reading of the provisions, the hardship to JL of having to make alternative childcare arrangements and deal with explaining their father’s absence to the children was a ‘personal circumstance’ as a victim of the offending or that it amounted to an ‘impact’ of the offending on her as a victim, we do not accept that the legislature contemplated that such factors should be taken into account adversely to an offender in sentencing, at least not in the circumstances that obtain in Mr Ivanov’s case. The consequences of incarceration for others, including the victim, cannot provide a basis for increasing the length of the incarceration. This would give rise to a ‘ratcheting up’ of victim impact and corresponding gaol time, with no logical ceiling.

Secondly, and in any event, it may well be that the ‘impact’ or ‘personal circumstances’ in question fall outside the ambit of s 5(2)(daa) and (da) because they are not direct results of the offending.

In SD v The Queen,[28] in a joint judgment, Ashley, Redlich and Priest JJA said the following:[29]

… It has been recently held … that ss 5(2)(daa) and (db) have replaced the common law requirement of reasonable foreseeability.[30] But that does not mean … that there is any warrant for a sentencing court taking into account injury, loss or damage (including pain and suffering) which is not a direct result of the offending.
Thus far, we have been addressing ‘injury, loss and damage’. … But there is also s 5(2)(daa), which refers to ‘the impact of the offence on any victim’. ‘Impact’ in s 5(2)(daa) must have a meaning different to ‘injury, loss or damage’. Without staying to consider what that might be, at least it should not be read as a back-door way of eliminating the requirement that injury, loss or damage are to be the direct result of the offending in order to be relevant for present purposes.

[28]SD v The Queen (2013) 39 VR 487 (‘SD’).

[29]Ibid 491-492 [17]-[18] (emphasis in original).

[30]Eade v The Queen (2012) 35 VR 526, 533 [31].

Subsequently, in Berichon v The Queen,[31] Redlich JA referred to the Court’s reasoning in SD and affirmed the view that a person will not be a ‘victim’ unless the effects of the crime on that person are a ‘direct result’ of the offending.[32] His Honour went on to hold that the words ‘direct result’ bear the same meaning whether for sentencing or compensatory purposes of the Sentencing Act.[33] Further, he held that the connection between an offence and consequences need not be proximate or immediate, and there may be intervening steps.[34]
[31]Berichon v The Queen (2013) 40 VR 490.
[32]Ibid 494 [12].
[33]Ibid 494 [13].
[34]Ibid 495 [17]; and see 494-496 [14]-[23] (on these points, see also at 498 [36]-[37] (Priest JA); and 508-511 [108]-[128] (Robson AJA)).

Neither the impact on JL nor her ‘personal circumstances’ arising from the need to make special childcare arrangements and/or break difficult news to the children about their father’s absence could be said to be a ‘direct result’ of the offending. Instead, these are difficulties resulting from the sentence imposed, not from the offending itself.

Discussion: Motive for JL’s stance

We accept the second submission made by senior counsel for Mr Ivanov that it was not open to the judge to have qualified, in the ways that she did, the mitigation resulting from the reduced psychological and emotional impact of the offending on JL.

While there was evidence from which it might be inferred that ‘JL’s wish to restore the relationship may have had a practical basis in restoring the caregiver to the children’ rather than in forgiveness, there are a number of problems with bringing that particular finding into account to qualify the level of mitigation (or reduced level of aggravation) that is accorded.

First, to find merely ‘the possibility’ that there ‘may’ have been such a motivation for JL’s stance is not a finding on either the civil standard of proof or the criminal standard of proof.

Secondly, the finding was irrelevant. If JL’s motivation might have ‘had a practical basis in restoring the caregiver to the children’, so be it. To have such a motivation does not detract from the significance of the much reduced level of harm experienced by JL or the existence of forgiveness.

In any event, the impact evidence given by JL is arguably of greater significance than evidence of forgiveness. For, as the authorities make clear, it is not necessarily forgiveness per se that is important, or as important as other factors, when assessing the stance of the victim of a crime. Instead, as Smith AJA said in Skura:[35]
[35]Skura [2004] VSCA 53 [48] (Buchanan JA agreeing) (emphasis added) (citations omitted); see also [13] (Eames JA). See also, for example, R v Wise [2004] VSCA 88 [36]; R v Sa [2004] VSCA 182 [33]-[44] (‘Sa’); R v Hester [2007] VSCA 298 [9] (Chernov JA; Vincent JA agreeing) and [27] (Neave JA); Marsh v The Queen [2011] VSCA 6 [29]-[31]; Cotter v The Queen [2011] VSCA 240 [46]-[49].

… So far as the attitude of the victim to the degree of sentence is concerned, that is generally irrelevant. But evidence that the victim has forgiven the offender may indicate that the effects of the offence had not been long-lasting. It may mean that
‘psychological and mental suffering must be very much less in the circumstances. Accordingly, some mitigation must be seen in that one factor’.

Where the offence occurs in a domestic situation, the attitude of the victim may also be relevant to the question of rehabilitation.

In the same case, Eames JA said:[36]

… If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence. I do not consider that the judge gave the statement appropriate weight in this case. In the passage of the sentencing reasons cited by Smith AJA the judge reflects undue reluctance, in my opinion, to give full weight to the victim’s statement. As the sentencing judge rightly said, sentencing is not the function of the victims of crime, but of the state, through the judiciary. That said, it is by no means inconsistent with that principle for a sentencing judge to give full weight to a supportive victim impact statement, as was provided here.

[36]Skura [2004] VSCA 53 [13] (emphasis added); see also [2] (Buchanan JA agreeing).

In our opinion, it does not appear that the judge applied the reasoning in either judgment in Skura in the manner required to do justice to Mr Ivanov.

Discussion: Complex nature of potential damage in family violence

We also accept the judge erred in qualifying the mitigatory effect of JL’s evidence by being ‘mindful of the complex nature of the potential damage resulting from sexual offences committed in the context of family violence, which may not be readily apparent’.

It is true that sexual violence in a family setting has the potential to cause complex damage, and that such damage may not be readily apparent. It is therefore appropriate for sentencing judges to be cautious when confronted with evidence of forgiveness by victims of violence, whether sexual or otherwise. As Eames JA said in Sa:[37]

One reason why courts do not allow the wishes of the victim to determine the sentence to be imposed is that the victim might not always be able to assess what is in his or her own best interest. For example, when considering what weight to give to factors of general and specific deterrence in a case of a woman assaulted by her partner, a sentencing judge would be minded to have regard to the imperatives which might motivate a battered wife to plead for leniency towards her attacker. In such circumstances the sentencing judge might be cautious about giving undue weight to such a plea for leniency.

[37]Sa [2004] VSCA 182 [39] (Buchanan JA agreeing). See also Cotter v The Queen [2011] VSCA 240 [46]-[49], where Nettle JA (Neave JA and Sifris AJA agreeing) extracted the same passage from Eames JA’s judgment, with approval.

Similarly, in R v Hester,[38] Neave JA said:[39]

… It is a common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. For a number of complex reasons which have been discussed in the social science literature dealing with this issue, many victims are assaulted on several occasions before they summon the courage to leave an abusive relationship. Often they require considerable support in order to do so. In my view, these are matters which should be given considerable weight by a judge who is considering the weight that should be given to a victim impact statement made by a person who has been the victim of domestic violence. I therefore agree with the comments of Simpson JA in R v Glen that evidence of forgiveness of the victim of domestic violence should be treated with extreme caution.

[38]R v Hester [2007] VSCA 298 (‘Hester’).

[39]Ibid [27] (citations omitted).

Thus, it is proper for the courts to be very careful generally and, in particular, in the types of case mentioned by Eames and Neave JJA.

But, while it is necessary to be alive to such considerations, a cardinal rule in sentencing is that each case turns on its own facts. And, in this case, there was not the faintest suggestion that considerations of the type mentioned by the judge or by Eames JA in Sa or by Neave JA in Hester might have operated on JL. Apart from the incident in 2010, there was no evidence of a relationship afflicted by family violence, be it sexual violence or violence of any other kind. No party adduced medical, psychological or psychiatric evidence to support such a finding of damage, potential or otherwise. The judge did not raise the point with JL, the prosecutor or Mr Ivanov’s counsel. The prosecutor made no submission that any such thing should be taken into account. For her part, JL gave every indication that she is a strong, self-assured person, and that she has firm and considered views about what happened to her and what needs to be done in the future.

The judge should have acted on JL’s evidence without qualification as there was no basis to do otherwise.

Ground 1 is made out. The judge erred in the way in which she took into account the impact of the offending on JL.

In the light of the specific error identified and given the severity of the sentences imposed, we consider that the sentencing discretion has been reopened.[40]
[40]See Criminal Procedure Act2009 s 281(1)(a) and (b).

In these circumstances, it is unnecessary to address the related complaints about denial of procedural fairness. Strictly speaking, it is also unnecessary to address the other grounds of appeal. However, as each also informs the question of resentencing, we shall deal with them briefly.

Ground 3: Findings regarding remorse and self-reporting

Ground 3 was pleaded as follows:

The sentencing discretion miscarried as a result of the judge’s findings regarding remorse and the circumstances surrounding the applicant’s own reporting of his crime. In particular, the sentencing judge erred by:
(a)departing from the agreed statement of facts contained in the Prosecution Summary of Opening on the plea; and

(b) denying the applicant, in the circumstances, procedural fairness.

Submissions

Senior counsel for Mr Ivanov submitted that the judge erred in her findings regarding Mr Ivanov’s remorse and the circumstances surrounding the reporting of his crimes. He submitted further that, even if the impugned findings were open, her Honour denied Mr Ivanov procedural fairness in reaching these conclusions.

The argument focused on the judge’s findings in paragraphs [35] and [40] of the Reasons, which, for convenience, we shall set out in full:[41]
[41]Reasons [35], [40] (emphasis in the applicant’s written submissions).

Next, I treat your pleas of guilty, and your voluntary reporting of your acts, together with your confessional interview with police, as showing some remorse. I have qualified the level of remorse because first, you apologised profusely to JL after the first occasion, demonstrating remorse, but committed the same serious offences within 36 hours; second, you told Dr Sullivan that it was hard to remember what happened on the first occasion after the initial confrontation, and it is difficult to find a person is wholly remorseful for something they say they cannot remember doing; and third, your report to the clinician was really about JL, not about your crimes, and you reported to Dr Sullivan that you did not realise what had happened was rape, even after the second occasion, until it was named as such by the clinician.

…

I turn now to the submission that the opinion of Dr Sullivan that your mental state ‘at the time of the offending’ attracts the operation of the principles in … Verdins.[42] Dr Sullivan considered your actions occurred at a time of emotional tumult, and the appropriate diagnosis would have been an adjustment disorder with mixed disturbance of emotions and conduct. There was no reference by him to ‘the time of the offending’ being in fact two separate occasions, two days apart.

[42]R v Verdins (2007) 16 VR 269.

The first submission was that the judge was wrong to find (in paragraph [40]) that there was no reference by Dr Sullivan in his report to the time of the offending being in fact two separate occasions, two days apart. Secondly, it was submitted that Mr Ivanov’s statement that it was ‘hard to remember’ what happened on the first occasion created no basis for qualifying the extent to which he exhibited remorse. Senior counsel for Mr Ivanov submitted that the same was true of her Honour’s related remark that ‘it is difficult to find a person is wholly remorseful for something they say they cannot remember doing’. This, it was contended, betrayed unjustified cynicism about Mr Ivanov’s history given to Dr Sullivan. Mr Ivanov had confessed his offending to the clinician and the police. Moreover, at the time of offending, he had lost control to a degree sufficient to justify a diagnosis of adjustment disorder, which was compounded by a pre-existing major depressive illness. Further, the judge’s findings were inconsistent with the prosecution’s concession as to remorse, which was in no way qualified.

Senior counsel also submitted that it was not open to the judge to find that Mr Ivanov’s ‘report to the clinician was really about JL, not about [his] crimes’ or that Mr Ivanov ‘did not realise what had happened was rape, even after the second occasion, until it was named as such by the clinician’. Alternatively, so it was submitted, it was not open to qualify the level of remorse by reason of either finding. Both findings were contrary to the agreed summary of prosecution opening (‘SPO’) and various aspects of the evidence and, again, inconsistent with the prosecution concession as to Mr Ivanov’s remorse.

Finally, it was submitted on behalf of Mr Ivanov that, even if any of the impugned findings were open, by going behind these aspects of the agreed SPO and the prosecution’s concession as to remorse, the judge denied Mr Ivanov the opportunity to address the material on which she appeared to make the impugned findings.

The Director submitted that the judge’s remark about Dr Sullivan’s failure to refer to the time of the offending as two separate occasions, two days apart, should be understood as a criticism of Dr Sullivan’s statement to the effect that, ‘[a]t the time of the alleged offences, Mr [Ivanov] had come on a sudden, profound and unwelcome realisation about his relationship’. This observation could not be applied to both sets of offences when he had apologised after the first and had had time to reflect between the two occasions of offending.

The Director also submitted that none of the passages in the SPO to which counsel for Mr Ivanov referred indicated an agreement between the prosecution and the defence about the exact words used by Mr Ivanov when reporting the rape to his clinician or the police. The SPO, by its very nature, is a summary of what was said or done. Senior counsel had placed the report of Dr Sullivan before the judge, which recorded the specific words that were used in Mr Ivanov’s conversation with the clinician. In the Director’s submission, it was not inconsistent with the SPO to detail and consider those specifics and Mr Ivanov’s own conduct when considering the issue of remorse.

Further, the Director submitted that the task of determining whether conduct is indicative of remorse is to be undertaken by the sentencing judge and does not require the judge to put the defence on notice of every thought process which may impact on that task. The judge was entitled to take into account Mr Ivanov’s own statements that he could not remember parts of the offending conduct in determining his level of remorse.

Discussion

In our view, Dr Sullivan’s report makes it clear that he understood that there were separate occasions of offending, two days apart. Having noted, in paragraph [1] of his report, the two ‘composite’ charges of rape, Dr Sullivan also recorded, in paragraphs [24], [25], [30], [31] and [33], that these rapes occurred on the Friday and the Sunday. Furthermore, Dr Sullivan was given the hand-up brief, which contained the same information.

Dr Sullivan also referred to the fact that, on the Saturday between the two acts of offending, Mr Ivanov ‘continued to read the messages’. These further discoveries, Mr Ivanov said, ‘killed [him] even more, … just made things even worse’. This evidence supports the conclusion that Mr Ivanov experienced a further profound and unwelcome realisation that contributed to his loss of self-control on the second occasion as well. Yet the judge did not refer to this evidence, despite the fact that she had access to Mr Ivanov’s police interview and relied on it elsewhere in her Reasons.[43]
[43]Reasons [3], [6], [9], [26], [35], [37].

Further, Mr Ivanov’s statement that it was ‘hard to remember’ what happened on the first occasion provided no basis for qualifying the extent to which he showed remorse.

Mr Ivanov made extensive admissions as to his offending conduct, but also consistently told both the police and Dr Sullivan that there were parts of the incidents that he did not remember. This is hardly surprising given his admitted shock and anger at the disclosures; his preoccupation with the feeling that he had been ‘profoundly betrayed’; the fact that he had not slept or eaten ‘for days’ and that it had been ‘really hard to get things right in [his] head’; and JL’s observations that Mr Ivanov had ‘obviously gone mad a bit’, that she ‘didn’t know who this person was’ and that ‘[t]his was not behaviour he’s ever exhibited before’. The fact that there were things Mr Ivanov could not remember is not inconsistent with a high level of remorse. Indeed, that there was any significance for the assessment of his remorse in his failure to recall every detail of his offending seems to be directly inconsistent with the judge’s own acceptance that Mr Ivanov made ‘full and frank admissions in respect of both sets of offending’.[44] Nor does it mean that the level of Mr Ivanov’s remorse was to be qualified.
[44]Reasons [26].

There was overwhelming positive evidence of remorse. Mr Ivanov, concerned about JL’s welfare and feeling ‘guilty’ and ‘bad’ for what he had done, reported his own behaviour to the clinician; confessed to police, as the judge herself found, in a ‘full and frank’ manner; and pleaded guilty at the first opportunity. In his police interview, he said, amongst other things, that he felt ‘so guilty’, ‘really bad’ and ‘terrible with what [he] did’, and that he was ‘embarrassed with [himself]’ and ‘sickened’. He did and said this in circumstances where JL would not have reported the offending. Further, there were several unchallenged character references that spoke of his remorse. Finally, the prosecutor expressly conceded that Mr Ivanov was ‘showing remorse’.

Further, we accept the submission that it was not open to qualify the level of Mr Ivanov’s remorse on the basis that his ‘report to the clinician was really about JL, not about [his] crimes’. Even if Mr Ivanov’s report was ‘really about JL’ — meaning a concern that she might harm herself (or worse) — that concern must have sprung from a realisation of the wrong that he had done by raping her. Put another way, Mr Ivanov’s concern for JL’s welfare and his realisation of and remorse for what he had done were inextricably linked. This linkage is demonstrated by the following:

(a) the agreed SPO stated that Mr Ivanov ‘told [the clinician] that he was worried about his wife after he had raped her on the weekend’;

(b) the agreed SPO also stated that, when police arrived at his home, Mr Ivanov told them that he had ‘raped his wife’ and ‘provided details about the rape on the Friday’;

(c) in her statement the clinician said that Mr Ivanov told her that he ‘was concerned about his wife’, that he ‘raped his wife on the weekend’ and that he ‘made her say [her lover’s] name while [he] did it’;

(d) in his interview with police, Mr Ivanov said that he felt ‘so guilty … that [JL] was feeling really bad and that’s when I called for help’; and that he ‘just felt so bad’; and

(e) the arresting police officers, in their statements, said that, when approached at his home, Mr Ivanov said that ‘he wanted to make sure [JL was] okay because [he] did something on Friday’, and then admitted that he ‘raped’ JL.

We take the same view about the judge’s finding that Mr Ivanov ‘reported to Dr Sullivan that [he] did not realise what had happened was rape even after the second occasion, until it was named as such by the clinician’. We assume that this finding was based on the following passage in Dr Sullivan’s report:

… [Mr Ivanov] informed [the mental health clinician] of what had happened including saying, ‘I forced myself on her.’ He informed me that when the clinician responded with ‘you raped her’, he realised what had happened.

In his police interview, Mr Ivanov admitted that he told the clinician that he ‘forced [himself] on [JL]’. As the passage from Dr Sullivan’s report makes clear, Mr Ivanov also confirmed that he had told the clinician, ‘I forced myself on her.’ While he may not have used the word ‘rape’, it is plain that Mr Ivanov knew that, by forcing himself on JL, he had committed a serious sexual offence — one which made him feel ‘guilty’ and ‘bad’ and gave rise to concern that JL might harm herself (or worse). Whether or not Mr Ivanov was aware that, in law, such behaviour amounted to ‘rape’ or ‘sexual assault’ is not to the point. What matters is that, by using the words he did, he was confessing to what he believed to be a grave wrong which, as it happens, also constitutes rape pursuant to statute in Victoria.[45]
[45]See Crimes Act1958 s 38(1).

Alternatively, and for the same reasons, we consider that there was no basis for qualifying the level of Mr Ivanov’s remorse by reason of the impugned finding.

Finally, even if we are wrong in concluding that any one or more of the impugned findings were not open on the evidence, we accept senior counsel’s alternative submission that, because the judge had not raised any of the foregoing matters with the parties on the plea, Mr Ivanov was denied procedural fairness.

By going behind the agreed SPO and the prosecutor’s concessions, the judge denied Mr Ivanov the opportunity to address the material upon which her Honour ultimately based her findings regarding remorse and his voluntary confession to the clinician and police. While the Director was correct to submit that sentencing facts are, in general, for the judge to find and that not every thought must be voiced aloud, nevertheless, a judge should exercise great circumspection before going behind an agreed set of facts, since it may underpin the basis upon which a plea of guilty is entered.[46] Had the sentencing judge been of a mind to sentence Mr Ivanov on the basis of the impugned findings, she should have alerted counsel to the possibility during the plea hearing, so that the issues could be addressed.[47] But at no point did her Honour make any suggestion, in response either to the prosecutor’s concession regarding remorse or to defence counsel’s submissions on the same topic, that there should be any qualification to the level of remorse found, whether because of a partial lack of memory or because of any suggested belated realisation of the nature of the offences he had committed.
[46]SD (2013) 39 VR 487, 495 [33]; Ristevski v The Queen (2011) 31 VR 193, 195 [9].
[47]SD (2013) 39 VR 487, 495 [33]; see also R v Mielicki (1994) 73 A Crim R 72, 78–80; R v Duong [1998] 4 VR 68, 77-78; R v Lowe [2009] VSCA 268 [16]–[21].

In our view, for the reasons given, the judge erred in her treatment of Mr Ivanov’s remorse and the import of his self-reporting, and the exercise of her discretion miscarried. Given the existence of specific error and the severity of the sentences imposed, a different sentence should be imposed.[48]
[48]See Criminal Procedure Act2009 s 281(1)(a) and (b).

Ground 4: Manifest excess

Ground 4 complains that, in all the circumstances, the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

Submissions

Senior counsel for Mr Ivanov accepted that the offences were serious. Both charges were rolled-up charges comprising multiple instances of sexual penetration. The offending involved a breach of trust and was degrading, humiliating and punitive in nature. Nevertheless, so it was submitted, Mr Ivanov was able to rely on an impressive constellation of mitigating features and, just as importantly, was able to point to the absence of aggravating features that almost always accompany offending of the kind to which he pleaded guilty.

At the forefront of Mr Ivanov’s plea was his reliance upon two exceptional factors: first, the unchallenged evidence of JL; and, secondly, the reality that, but for Mr Ivanov’s own actions, his offending would not have come to light. In his submission, the sentences passed made it plain that the judge did not give anything approaching sufficient weight to these exceptional features of the case. As a result, the individual sentences, the total effective sentence and the non-parole period imposed were manifestly excessive.

The Director conceded that the two principal factors relied on by Mr Ivanov were exceptional in nature. She also conceded that the sentences imposed were stern, but submitted that they were not manifestly excessive, emphasising that the maximum penalty for rape is 25 years’ imprisonment.

In the Director’s submission, each count of rape was a serious example of the offence. Each charge was rolled-up — Charge 1 consisting of both digital and penile penetration, while Charge 2 consisted of two penile penetrations, a digital penetration and an oral penetration. The offences were punitive in nature.[49] JL was verbally abused, spat on during the first rape, and had ejaculate forced into her mouth during the second rape. Each offence involved some physical assault. Mr Ivanov threatened JL with further acts of humiliation by exposing her relationship to her father after the first rape and threatened her with further sexual assaults in the aftermath of the second rape. The offences took place in JL’s own home, in circumstances of a significant breach of trust, and had the result that JL considered (albeit briefly) leaving the country and abandoning her family.
[49]As conceded by senior counsel for Mr Ivanov on the plea.

Thus, in the Director’s submission, in all the circumstances, the Court should not be persuaded that the sentences were wholly outside the available range.

Discussion

The applicable principles are not in dispute. Thus, for example, in Clarkson v The Queen,[50] in a joint judgment, five members of this Court (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) said the following:[51]

… [T]he ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.

[50]Clarkson v The Queen (2011) 32 VR 361.

[51]Ibid 384 [89]. In a footnote at this point, their Honours referred to DPP v Karazisis (2010) 31 VR 634, 662-663 [127]; and FAJ v The Queen [2011] VSCA 137 [23].

We consider that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. They fail to reflect all relevant considerations, including Mr Ivanov’s early pleas of guilty, his remorse, his previous good character, the hardship involved in his imprisonment and his strong prospects of rehabilitation. They also fail to give sufficient weight to the two exceptional factors in this case: Mr Ivanov’s self-reporting and confession, coupled with the reality that, but for his choice to come forward, he would never have been prosecuted; and, most importantly, JL’s most remarkable and powerful evidence.

On the plea, senior counsel for Mr Ivanov relied on MC[52] as a comparable case. He urged the judge to impose a sentence on Mr Ivanov that was shorter than the sentence imposed in MC.
[52]MC [2011] VSCA 2.

However, the judge said this about MC:[53]

I was referred to a case of MC from the Court of Appeal that involved a man raping his former wife in circumstances where they continued to reside in the same house. I do not consider the sentence range in that case to be helpful because the decision pre-dates the High Court cases of Kilic and Dalgliesh, and relies on some of the principles which were addressed in those cases. Further, I do not agree that it is open to me to impose a sentence significantly less than was imposed in MC, even taking into account the mitigating features in your case, when the Court of Appeal has subsequently said that the sentences imposed for rape have been too low.

[53]Reasons [52] (citations omitted).

MC pleaded guilty to three counts of rape of his wife ‘XY’ and one count of unlawfully imprisoning her. MC and XY, who had two teenage children, had been separated for nine years but still lived in the same house, where XY’s new partner also lived. One night, when they were home alone, MC dragged XY into the bedroom and raped her three times. One rape was made up of multiple separate acts of sexual penetration committed overnight and into the next morning. MC also refused to allow XY to leave the bedroom for a considerable period of time. When he finally did, XY left the house and reported the rapes to the police.

MC made full admissions, including to aspects of the offending which were not alleged. In her statement to police, XY said:

Obviously I never asked [MC] to do this to me. This is so out of character for him to do something like this. I have never seen him like this before. He and I are pretty good friends and get on better now than when we were married, but not in a sexual way.

The sentencing judge in MC imposed a total effective sentence of seven years’ imprisonment with a non-parole period of four-and-a-half years. On appeal, on a complaint of manifest excess, MC relied on his good prospects of rehabilitation; the absence of a prior criminal history; his good employment history; the support of his family and the two children of the marriage who intended to reside with him upon his release; his full admissions; his early pleas of guilty; his remorse; that he did not require significant personal deterrence; that he was, if able to remain alcohol-free, capable of being a contributing member of the community; that he would serve his term of imprisonment under more difficult circumstances than the average prisoner as a result of his significant depressive disorder; and the judge’s finding that hardship would attach to MC’s children as a result of his imprisonment, as they would go into care because their mother was unable to care for them by reason of her problems with alcohol.

Weinberg JA and King AJA held that the sentences were manifestly excessive and substituted individual sentences of three and four years’ imprisonment for the rapes and a total effective sentence of five-and-a-half years’ imprisonment with a non-parole period of three-and-a-half years.[54]
[54]MC [2011] VSCA 2 [31], [33].

It is true, as the judge said, that the decision in MC pre-dates The Queen v Kilic[55] and DPP v Dalgliesh (a pseudonym),[56] in which the High Court was critical of the approach to sentencing employed by this Court. It is also true that, since MC was decided, this Court, in Shrestha v The Queen,[57] has declared that ‘there must be an upward adjustment in sentences for digital rape offences in this category of seriousness, that is, offences whose objective gravity is broadly comparable to that of the present case’. Without deciding whether the remarks in Shrestha apply to the types of offence prosecuted in the present case,[58] sentences for rape in general have increased and, in light of the High Court’s concern about this Court’s approach in other cases, the judge was right not to consider her discretion constrained by MC.
[55]The Queen v Kilic (2016) 259 CLR 256.
[56]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428.
[57]Shrestha v The Queen [2017] VSCA 364 [3]; see also [31] (‘Shrestha’).
[58]This case concerned ‘rolled-up’ counts that involved a number of forms of penetration.

However, in our view, the judge was wrong to say that it was not open to her ‘to impose a sentence significantly less than was imposed in MC, even taking into account the mitigating features in [Mr Ivanov’s] case, when the Court of Appeal has subsequently said that the sentences imposed for rape have been too low’.

Sentences are not precedents to be applied or distinguished. The administration of the criminal law involves individualised justice.[59] The imposition of a just sentence on an offender in any particular case is an exercise of judicial discretion concerned to do justice in that case.[60] The need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed.[61]
[59]Elias v The Queen (2013) 248 CLR 483, 494-495 [27]; also cited in DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 444 [49].
[60]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 444 [49].
[61]DPP v OJA (2007) 172 A Crim R 181, 196 [30]; also cited in DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 444 [49].

In our view, whatever might be said about the relative gravity of the offences, this case is different from MC in at least two crucial respects. While MC disclosed one offence (among many) for which there was no evidence, he did so only after his wife had complained to police about the other offences. Mr Ivanov, on the other hand, self-reported to a clinician and made a full confession to the police, in circumstances where JL was never going to report the matter. Secondly, there was no equivalent to JL’s evidence in MC’s case. While XY considered MC’s behaviour out of character, she did not give evidence of the kind given by JL that we have already recited at length. In particular, XY did not describe police intervention as ‘ridiculous’.

While error concerning the weight to be accorded to relevant considerations need not be identified on a complaint of manifest excess, in our view, the judge must have given insufficient weight to JL’s evidence of the impact of the offending on her and her desire to repair the relationship with Mr Ivanov so as to maintain the family unit and assist in Mr Ivanov’s rehabilitation. We also consider that the judge must have given insufficient weight to Mr Ivanov’s behaviour in self-reporting to the clinician and then confessing to police, in light of the fact that JL would never have reported the matter.

This was an extraordinary case calling for an extraordinary sentence. The sentence imposed was manifestly too heavy and must be set aside.

Resentencing

Section 5(1) of the Sentencing Act provides that the only purposes for which a sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

Denunciation and just punishment are important sentencing purposes for both offences. While JL has not suffered the harm or impact that ordinarily would be expected from such offending, Mr Ivanov’s behaviour nevertheless involved a grave breach of trust and violation of JL’s bodily integrity, and was so humiliating, degrading and intended to hurt that it must be denounced by this Court and he must receive just punishment. While the weight to be accorded to those sentencing purposes is reduced, on each count, by reason of the impairment of Mr Ivanov’s judgment as a result of his adjustment disorder stemming from the shock of the disclosures concerning JL’s affair and its detail, those purposes nevertheless remain important.

Further, while this is such an unusual case that general deterrence might not have the same weight that it would have in the vast majority of cases of rape, others in the community who might be minded to engage in similar behaviour must understand that, even where the harm and impact from such offending is at the lower levels experienced here, rape is still a grave crime that demands, and must attract, a substantial — indeed, almost always, a life-altering — term of imprisonment.

However, the sentencing purposes of specific deterrence and protection of the community are of little weight in this particular case. We are satisfied that Mr Ivanov is extremely unlikely to offend in this way again, given his self-reporting, his confession, his early pleas of guilty, his remorse, excellent prospects of rehabilitation, good character and lack of prior convictions, as well as his and JL’s commitment to repairing their relationship, and the salutary experience he has had of the criminal justice process.

Given that Mr Ivanov’s prospects of rehabilitation are so strong, and that he and JL are committed to working on their relationship, rehabilitation is an important sentencing consideration. It is important to recognise the interplay between rehabilitation and the protection of the community in the wider sense. As serious as his offending was, Mr Ivanov will be returning to the community sooner rather than later. It is therefore in the community’s interests that his prospects of rehabilitation be maximised, including by giving him and JL the opportunity to rebuild a stable family life.

Section 5(3) of the Sentencing Act, relevantly, provides that ‘a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed’. This provision reflects the fundamental common law principle of parsimony. We have applied this principle when considering the appropriate sentences in this case.

In considering the appropriate sentences, we have taken into account the rolled-up nature of the charges; the maximum penalty; current sentencing practices for rape in general;[62] the breach of trust involved in the offences; their punitive, humiliating and degrading nature; and the (immediate) impact on JL of the ‘ugly’ and ‘unpleasant’ offending and her personal circumstances.
[62]See, eg, Sentencing Advisory Council, Sentencing Snapshot 230: Sentencing Trends for Rape in the Higher Courts of Victoria 2013-14 to 2017-18, 22 May 2019.

We have also had regard to JL’s evidence, including her account of the much lesser lasting impact on her than would ordinarily be expected from such offending; her view that, in colloquial terms, Mr Ivanov had ‘obviously gone mad a bit’; her feeling that there was no need to report the matter to police; her desire to ‘move forward’ and not ‘wallow’; her desire for Mr Ivanov to be released as soon as possible so they can engage in counselling and repair their relationship; and the relevance of these matters to Mr Ivanov’s rehabilitation.

Further, we have taken into account the opinion of Dr Sullivan concerning the impairment of Mr Ivanov’s judgment as a result of the discoveries he made prior to each attack, and his adjustment and depressive disorders; the hardship that imprisonment presents for him given his concerns for his family in his absence and in light of his depressive disorder; his voluntary disclosure to the clinician and his confessions to police; his early pleas of guilty; the profound remorse evident in those actions; his good character and the absence of any prior criminal history; his strong history of work and caring for his children and wider family; and his excellent prospects of rehabilitation.

Senior counsel for Mr Ivanov accepted, correctly in our view, that the second attack was more serious than the first. Its objective gravity was greater. Further, Mr Ivanov’s moral culpability was higher given his awareness that he already raped and apologised to JL previously.

Consistently with the legislative command in s 5(2G) of the Sentencing Act, prison sentences must be imposed. Even allowing for the mitigating factors, those prison sentences must be substantial, although much shorter than those imposed by the judge at first instance and less than would be imposed for rape absent the exceptional combination of circumstances in this case.

Allowing for all competing factors and having regard to the foregoing sentencing purposes and principles, we will impose a sentence of three years’ imprisonment for the offending in Charge 1 and a sentence of three-and-a-half years’ imprisonment for the offending in Charge 2.

Since the offending in Charge 2 is more serious and has attracted the heavier sentence, that sentence should serve as the base sentence. In considering the order for cumulation, we have had regard to the fact that the two episodes of offending were each serious, discrete and separated by a period of 36 hours. We have also striven to ensure that the overall criminality is neither overstated nor understated in the total effective sentence in view of all competing considerations.

In the result, we will direct that six months of the sentence on the offending in Charge 1 be served cumulatively upon the sentence for the offending in Charge 2, resulting in a total effective sentence of four years’ imprisonment. The non-parole period will be fixed at two years.[63]
[63]See Sentencing Act1991 s 11 .

This is a relatively short non-parole period — both as a proportion of the total effective sentence and in absolute terms. However, that period adequately reflects all of the sentencing purposes mentioned earlier, and also will allow for Mr Ivanov’s conditional freedom on parole at an appropriate time. While all factors — both aggravating and mitigating — have affected the individual sentences, the total effective sentence and the non-parole period, the circumstances of this case are so unusual, Mr Ivanov’s prospects of rehabilitation so strong and his claim for clemency so compelling, that it is appropriate to fix a non-parole period that is shorter than might otherwise be imposed. Hopefully, such a sentence will encourage Mr Ivanov to work towards complete reform and his earliest possible release.

Pursuant to s 18 of the Sentencing Act, we declare that Mr Ivanov has served 537 days in custody under this sentence.

We are also required to make a declaration pursuant to s 6AAA of the Sentencing Act. Such declarations are notoriously difficult to make because pleas of guilty and not guilty tend to impact on other sentencing considerations, such as remorse, the weight to be accorded to specific deterrence, prospects of rehabilitation and so on. We have to assume that, even if a trial had been conducted, JL would have given evidence of the type she gave on the plea. Doing the best we can, we declare that, but for Mr Ivanov’s pleas of guilty, we would have proposed a total effective sentence in the order of seven years’ imprisonment with a non-parole period in the order of four years.

Orders

Accordingly, leave to appeal will be granted and the appeal allowed. The sentences imposed in the County Court will be set aside and Mr Ivanov resentenced in accordance with the following table:

Charge

Offence

Maximum

Sentence

Cumulation

1

Rape (19 May 2017)

25 years

3 years

6 months

2

Rape (21 May 2017)

25 years

3½ years

Base

Total effective sentence:

4 years

Non-parole period:

2 years

Pre-sentence detention:

537 days

Section 6AAA declaration:

TES: 7 years
NPP: 4 years

Charge	Offence	Maximum	Sentence	Cumulation
1	Rape (19 May 2017)	25 years	3 years	6 months
2	Rape (21 May 2017)	25 years	3½ years	Base
Total effective sentence:	4 years
Non-parole period:	2 years
Pre-sentence detention:	537 days
Section 6AAA declaration:	TES: 7 years NPP: 4 years

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[2019] VSCA 219

8 October 2019 First Revision: 8 October 2019