Kalofolias v The Queen

[2017] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0237
PERRY KALOFOLIAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and McLEISH JJA
WHERE HELD:	GEELONG
DATE OF HEARING:	31 July 2017
DATE OF JUDGMENT:	26 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 308
JUDGMENT APPEALED FROM:	DPP v Kalofolias (Unreported, County Court of Victoria, Judge Hampel, 12 October 2016 (date of sentence))

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Rape – Sentence of 6 years’ imprisonment with non-parole period of 4 years – Manifest excess – Whether sentence was manifestly excessive – Applicant in position of authority over victim – Comparable cases – Relevance of comparable cases – Whether sentence wholly outside permissible range – Not reasonably arguable that sentence imposed manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T E Wraight QC with Mr P J Smallwood	Stephen Andrianakis & Associates
For the Respondent	Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

BEACH JA
McLEISH JA:

1. On 27 September 2016, the applicant pleaded guilty in the County Court to one charge of rape.  The maximum term of imprisonment for the offence of rape is 25 years. 

1. On 12 October 2016, following a plea hearing, the applicant was sentenced to a term of imprisonment of six years. A non-parole period of four years was fixed. The sentencing judge directed that this sentence was to be served cumulatively upon a sentence the applicant was then serving for unrelated offending. In addition, the judge declared, pursuant to s 6AAA of the Sentencing Act 1991, that but for the applicant’s plea of guilty the judge would have sentenced him to be imprisoned for a period of seven years and fixed a non-parole period of five years.[1]

   [1]DPP v Kalofolias (Unreported, County Court of Victoria, Judge Hampel, 12 October 2016) (‘Reasons’). A different version of her Honour’s reasons for sentence, with a medium neutral number of [2016] VCC 1532, may be found at  The parties were, however, agreed that her Honour’s reasons, as pronounced at the time of sentencing, are accurately recorded in the unreported reasons in the application book.

1. The applicant seeks leave to appeal against his sentence on the ground that the sentence imposed, the non-parole period and the order that the sentence be served cumulatively upon the sentence the applicant was then serving, were all manifestly excessive.  In particularising his complaint of manifest excess, the applicant contended that the judge gave insufficient weight to:

(a) the applicant’s plea of guilty, particularly when regard is had to the judge’s s 6AAA declaration;

(b)   the gravity of the offending;

(c)    the applicant’s limited criminal history;

(d)  the principle of totality;  and

(e)   the applicant’s prospects for rehabilitation.

Circumstances of the offending

1. The complainant was an 18 year old employee of the applicant’s family pizza restaurant.  The applicant was aged 44 at the time of the offending.

1. At the end of the working day upon which the offence occurred (19 September 2015) both the complainant and applicant were left in the restaurant cleaning up.  The applicant accompanied the complainant to the supermarket where she needed to buy some items before it closed.  At one point, the complainant began to feel dizzy and light headed.  The complainant had been drinking from a glass of Coke during her shift and had noticed it had an unusual taste and was very flat.  By the time the complainant got back from the supermarket to the restaurant, she was feeling distinctly unwell, dizzy and light headed.

1. The complainant sat down on the floor and felt like she could not get up, telling the applicant she felt unwell and as if she was going to throw up.  While the complainant was on the floor, the applicant sat beside her on the couch and grabbed her right breast over her clothing.  The complainant told him to stop, but he did not.  The applicant said to her ‘It’s all right.  No one is going to find out.’  The applicant sat on the floor beside the complainant, pushed her onto the floor, leant over her, put his hand up her T-shirt, pulled her bra down exposing her left breast and, over her protests and physical resistance, sucked her left nipple.  The complainant tried to push the applicant off, but was unable to.

1. The applicant then put his hand down the complainant’s skirt.  She tried to pull his hand away and told him to stop.  The applicant overcame her resistance, moved his hand underneath her underwear and digitally penetrated the complainant’s vagina.  The complainant continued telling the applicant to stop, feeling very unwell throughout this time.  The complainant could not recall what happened after that or how she got home.

1. The applicant accompanied the complainant home that evening.  The complainant’s then partner’s mother answered the door, saw that the complainant was upset and saw her go straight to the bathroom.  The applicant said the complainant had had too much to drink and left.  The applicant returned a short time later, handed over the complainant’s phone and left again.

1. The complainant vomited and remained in the bathroom for about an hour before she could be moved to the bedroom.  The complainant told her partner’s mother she had not been drinking alcohol, only diet Coke, and something inappropriate had happened with the applicant.  The complainant was in and out of awareness.  Police and ambulance were called.

1. Swabs taken from the complainant’s left breast later matched the applicant’s DNA, and blood and urine samples from the complainant later revealed a considerable concentration of alcohol in her system.  The complainant believed her drink had been spiked.  The applicant denied having spiked her drink.  On the plea, the prosecution accepted that it could not prove beyond reasonable doubt that the applicant had spiked the complainant’s drink.

1. The applicant was arrested by police a couple of days after the offence.  When questioned, he denied any sexual activity occurring with the complainant, said they had been drinking together and that, in effect, the complainant initiated sexual or salacious behaviour by showing him her tattoos, lifting her dress up, showing a tattoo on her thigh and another between her breasts.  He told police that he had no interest in the complainant and had repelled overtures made by her, and wanted the complainant to be charged as a result.

1. It was not until the DNA results had been obtained and provided in the lead up to the trial that the applicant changed his account given in interview to asserting that there had been consensual sexual activity.  The applicant pleaded guilty to the charge of rape on the second day of trial and before the jury had been empanelled.  The applicant had also been initially charged with sexual assault of the complainant in relation to touching her breast and sucking and licking her nipple.  Following the guilty plea the sexual assault charge was not proceeded with, however the circumstances in relation to the touching of the complainant’s breasts were part of the surrounding circumstances taken into account in considering the gravity of the rape offence.

Applicant’s background

1. At the time of sentencing, the applicant was 45 years of age.  Up until the age of 40, the applicant had not been in trouble with the law.  He had been in continuous employment, made significant contributions in his community and enjoyed an impeccable reputation.

1. The applicant’s first court appearance was in 2013, when he was aged 42.  On that occasion, the applicant was fined without conviction for driving while suspended, possessing small quantities of cannabis and another drug, and failing to answer bail.  A year later, the applicant was convicted and fined in relation to possessing cannabis, carrying a controlled weapon and minor driving offences.

1. In April 2016, subsequent to the applicant’s present offence, the applicant was placed on a 12-month community correction order in respect of the offences of unlawful assault, contravening a family violence intervention order, wilfully damaging property and failing an oral fluid test within three hours of driving.  Five months later, in September 2016, the applicant was convicted of a further contravention of a family violence intervention order, making a threat to kill, stalking, committing an indictable offence while on bail and trafficking in methamphetamine.  For this offending, the applicant was sentenced to a total term of imprisonment of eight months.  It was that sentence which the applicant was serving when he was sentenced by the judge, and upon which the judge directed that the sentence imposed by her was to be served cumulatively. 

The plea hearing

1. The plea hearing was conducted on the basis that a sentence of imprisonment was inevitable.  Counsel for the applicant submitted to the judge, however, that there should be full, or at least partial, concurrency between the sentence the applicant was then serving and any sentence imposed by the judge. 

1. On the plea, the applicant tendered references that were supportive of the applicant’s character and reputation.  These references were described by the judge as ‘glowing’.[2]

   [2]Reasons [29].

1. As part of his submissions on the plea, the applicant’s counsel referred to, and relied upon, the applicant’s long history of stable employment, strong family and social support, the burden that would be imposed upon the applicant’s mother while the applicant would be in custody, and the fact that the applicant had played an important role in caring for his mother since the death of his father.  It was also submitted that the applicant had excellent prospects of rehabilitation.

1. In the course of his submissions, the applicant’s counsel referred the judge to this Court’s decision of Singh v The Queen,[3] as a case that was relevantly comparable to the applicant’s case.  Singh was a case where the offender, following a trial, was convicted of rape and sentenced to seven years’ imprisonment with a non-parole period of five years.  An appeal on the ground of manifest excess was allowed and the offender was resentenced to five years and six months’ imprisonment with a non-parole period of three years and three months.  In Singh, the victim of the offending was aged 18.  The offender was, however, in contrast to the applicant, only 32 years of age.  Moreover, while the victim worked for the offender, the rape occurred in a social setting and outside work hours.  Additionally, unlike the applicant, the offender in Singh had no prior convictions and was thus of good character.  Further, and again in contradistinction to the applicant’s case, in Singh there had been a delay of some two years and four months between the offence and the time at which the offender was sentenced.

   [3][2014] VSCA 250 (Weinberg and Priest JJA) (‘Singh’).

1. In his submissions to the judge, the prosecutor contended that there were aggravating features of the offending being:

·the applicant was in a superior position, and a position of authority, to the complainant;

·the complainant was 18 and the applicant was 44;

·the complainant, to the knowledge of the applicant, had clearly been rendered helpless by alcohol;

·the applicant’s conduct was committed in the face of repeated attempts by the complainant to get him to stop;  and

·in his record of interview, the applicant sought to paint the complainant as a ‘deliberate and calculating liar’.

1. In response to the applicant’s submissions about totality, the prosecutor submitted that, while there could be some concurrency with the sentence the applicant was then serving, the sentence the applicant was then serving related to offending that was totally separate and it was ‘hard to see on ordinary principles that there would be [complete] concurrency with that sentence’. 

The judge’s reasons

1. The judge commenced her reasons for sentence with a description of the applicant’s offending.[4]  The judge then said:

A victim impact statement has been provided by the victim and what she says is an entirely understandable range of responses to a violation of this nature.  She said, ‘I couldn't leave the house, couldn't work.  It affected my relationship with my now ex-partner.  It affected how I felt about myself, I avoided as many people as possible because I was so worried all the time.  When I left the house I was always looking over my shoulder, scared something would happen.  I haven't gone alone to any place.  It affected my sleep and I was having nightmares for a while’.  All sexual violations are serious and features which add to the seriousness of this rape include these. 

The rape occurred over the victim's protests and resistance her repeated clear and unequivocal indications that she was not consenting to what you were doing and wanted you to stop.

She was very young;  she was only 18 and you were more than twice her age, at 44. The disparity in maturity and life experience between the two of you, that is between an 18 year old and a 44 year old is notable.  Her adult life was just starting.  You on the other hand, had lived through your late teens, the age she was, your 20 and 30s and were into your mid-40s.

She was, in effect, your employee.  You were the son of the owner, and as she perceived it, the manager.  So whilst legally your mother may have been the owner of the business, to all intents and purposes, she understood you to be the owner or a person in authority. 

The rape occurred in her workplace, after customers and other employees had left. It is clear that all employees should be free from fear of sexual molestation in their workplace.

There was no evidence of any relationship other than that of employer/employee, older boss and young employee.  There is no evidence that the two of you socialised and there is no suggestion of any mutual attraction before this night or even during this night in the lead-up. You knew that the victim was in a relationship and she knew you were, and that your relationship was with a co-worker and also a person in a position of authority at the restaurant.[5]

[4]Reasons [1]–[10].

[5]Ibid [11]–[16].

1. The judge observed that it was the aggregation of the aggravating features that were present in a particular case, rather than the absence of other matters that might otherwise be aggravating, which provided the best guide to the overall gravity of the offending and the determination as to where the sentence should sit.[6]  The judge then said:

Subject to considerations personal to you therefore, it is clear that denunciation, deterrence and just punishment are important sentencing considerations.  Personal integrity, the right to have sex with whom a person wants and when they want is a fundamental right of every person in our society.  Somebody who overbears and overwhelms that right in somebody else must understand that they face significant condemnation and denunciation and must be punished.[7]

[6]Ibid [19].

[7]Ibid [20].

1. The judge then described, in some detail, the applicant’s personal circumstances.[8]

   [8]Ibid [21]–[29].

1. The judge observed that the applicant’s plea of guilty was ‘entered very late in the piece’.  The judge, however, said that the applicant’s plea of guilty entitled the applicant to a reduction in sentence for its utilitarian value.[9]  As to remorse and prospects for rehabilitation, the judge said:

Although the guilty plea does not of itself or in combination with other evidence indicate remorse and so add to the other evidence relevant to an assessment of your prospects for rehabilitation, there are positive factors counting in your favour in respect of your prospects for rehabilitation.[10]

[9]Ibid [31].

[10]Ibid [32].

1. Ultimately, the judge concluded that the applicant’s prospects for rehabilitation should be regarded in general terms as ‘reasonable’.[11]

   [11]Ibid [40].

1. As to the submission that the sentence to be imposed by the judge should be served concurrently with the sentence the applicant was then serving, the judge noted that there was no overlap between that offending and the rape of the complainant.  Moreover, the judge noted that the applicant’s subsequent offending was not part of a continuing course of conduct, nor was it ‘similar offending’.[12]  The judge said that she was not persuaded that concurrency was appropriate.  The judge described the applicant’s decision to commit the two subsequent bouts of offending as conscious decisions made when the applicant was on clear notice that he was in trouble.  The judge concluded that it would not offend the principle of totality to impose a sentence that was to be served cumulatively upon the applicant’s existing sentence.[13]

   [12]Ibid [41].

   [13]Ibid [42].

1. Finally, the judge referred to Singh, before observing that in sentencing, each case is required to be considered by reference to its own facts and circumstances.[14]

   [14]Ibid [43].

The applicant’s submissions

1. In submitting that all the elements of the sentence imposed were manifestly excessive, the applicant contended that insufficient weight had been given to his plea of guilty and that this was demonstrated by the judge’s s 6AAA declaration where the judge ‘only discounted the head sentence and non-parole period by 12 months by virtue of the plea’. While it was acknowledged by the applicant that the plea was a late plea, it was submitted that the plea was still of considerable utilitarian value and facilitated the course of justice.

1. As to the gravity of the offending, the applicant observed that the charge encompassed a single act of digital penetration, was not a rolled up charge, and was not a representative count or part of a substantial course of conduct.  It was submitted to be an isolated act of sexual offending by a person who was 44 years old with no prior convictions for sexual offending.  In assessing the gravity of the offending, the following factors were submitted to be relevant:

·no premeditation;

·the opportunistic and spontaneous nature of the offending;

·short duration of the offending;

·absence of gratuitous additional violence;  and

·absence of any exposure to the risk of pregnancy or a sexually transmitted disease.

1. The applicant submitted that when all of the relevant circumstances were balanced, the single act of digital penetration should have been viewed as a low to mid-level example of the offence of rape.  It was then contended that the objective gravity of the offence was not given sufficient weight by the sentencing judge and that this had produced a manifestly excessive sentence. 

1. As to the applicant’s prior offending, the applicant submitted that his limited prior record had no relevance to the sentencing task that confronted the judge and that the sentencing judge gave inadequate weight to this modest history and the applicant’s previous good character.

1. In respect of the sentence that the applicant was serving when he was sentenced by the judge, the applicant submitted that the judge gave insufficient weight to the principle of totality and that a degree of concurrency was appropriate when one looked at the applicant’s criminality as a whole.

1. As to the applicant’s prospects for rehabilitation, the applicant contended that these had been undervalued by the judge.  In support of this contention, it was submitted that the applicant had good prospects of rehabilitation because of:

·the applicant’s age;

·the fact that up until the age of 42 the applicant was a person of good character;

·his limited prior history;

·his good employment history;

·his family support;  and

·contributions that he had made to his local community.

1. In the course of argument, the applicant (as he had done in the plea hearing) made reference to Singh.  The applicant then referred to the sentences imposed for charges of rape in a number of additional cases that had not been referred to the judge on the plea.  Specifically, the applicant referred to the cases of Flora v The Queen,[15] Ali v The Queen,[16] Bowden v The Queen,[17] Ayol v The Queen,[18] Hajar v The Queen,[19] Evans v The Queen,[20] Coronado v The Queen,[21] Di Giorgio v The Queen,[22] and Director of Public Prosecutions v Cooper.[23]  Each of these cases involved sentences for charges of rape where the offender had pleaded not guilty.  The sentences imposed on the charges of rape in each of these cases ranged from three years to five years and six months.  The applicant noted that in each of these cases where, in contrast to the applicant who pleaded guilty in the present case, each offender had pleaded not guilty, the sentences imposed for rape were less than that imposed on the applicant.  The applicant submitted that these cases showed that the sentence imposed upon the applicant was not in accordance with current sentencing practice, and was wholly outside the permissible range.

   [15](2013) 233 A Crim R 320 (‘Flora’).

   [16][2013] VSCA 294 (‘Ali’).

   [17](2013) 44 VR 229 (‘Bowden’).

   [18][2014] VSCA 151 (‘Ayol’).

   [19][2015] VSCA 233 (‘Hajar’).

   [20][2016] VSCA 11 (‘Evans’).

   [21][2016] VSCA 86 (‘Coronado’).

   [22][2016] VSCA 335 (‘Di Giorgio’).

   [23][2017] VSCA 8 (‘Cooper’).

The respondent’s submissions

1. The respondent submitted that the sentence imposed by the judge was one that was within range, and open to the judge, on a proper exercise of the sentencing discretion. 

1. In respect of the applicant’s plea of guilty, the respondent noted that, while the plea of guilty spared the complainant the ordeal of giving evidence at trial, the complainant had been cross-examined at a committal hearing. 

1. The respondent submitted that, on any view, the applicant’s offending was very serious and that the following circumstances were significant:

·the complainant was in her workplace where she was entitled to feel safe;

·the applicant was in a position of authority vis-à-vis the complainant;

·there was a significant age disparity, the applicant being 44 years of age and the complainant only 18;

·the applicant was aware that the complainant was particularly vulnerable on account of being intoxicated and not feeling well and took advantage of that vulnerability for his own sexual gratification;

·the offending took place over the complainant’s verbal protests and her attempts to physically resist (requiring a degree of physical violence by the applicant to restrain her) meaning that the applicant was ‘left with absolutely no doubt that she was not consenting and that she wanted him to stop’;  and

·the applicant denied the offending when spoken to by police and tried to blame the complainant.

1. It was submitted that these features of the offending placed the offending ‘well above lower end offending of this kind’.

1. The respondent accepted that the applicant’s prior criminal offending was of limited relevance to the sentencing task.  It was submitted, however, that this previous offending meant that the applicant did not come before the court as a first time offender with prior good character.  In any event, the sentencing judge, in her reasons for sentence, acknowledged that the applicant’s prior criminal history was ‘not relevant’ save in this limited respect.[24]

   [24]Reasons [22].

1. The respondent submitted that the judge ‘clearly had regard to the principle of totality’, and that her Honour addressed that issue in her reasons for sentence.[25]  The respondent contended that there was no error in the judge’s carefully reasoned decision to cumulate the applicant’s sentence upon the term of imprisonment he was then undergoing. 

   [25]Ibid [41]–[42].

1. Next, the respondent submitted that the judge’s conclusion that the applicant’s prospects of rehabilitation were ‘reasonable’[26] was open and accorded with the evidence which included the applicant’s absence of remorse and the fact of his subsequent offending.

   [26]Ibid [40].

1. Finally, the respondent submitted that none of the sentences imposed for the rapes committed in Singh, Flora, Ali, Bowden, Ayol, Hajar, Evans, Coronado, Di Giorgio or Cooper demonstrated that the sentence imposed on the applicant in the present case was wholly outside the permissible range.  In argument, the respondent conceded that while the sentences imposed in the cases relied upon by the applicant showed that the sentence imposed on the applicant was stern, the sentence was one that was open to the judge to impose in all the circumstances of the applicant’s case.  In support of that submission, the respondent referred to the sentence imposed for rape in Marrah v The Queen.[27]  In Marrah, following a plea of guilty, the applicant was sentenced to six years’ imprisonment in respect of a charge of rape.

   [27][2014] VSCA 119 (‘Marrah’).

Analysis

1. As has been said many times before, manifest excess is a difficult ground to establish.[28]  The test for manifest excess is whether the sentence imposed was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[29]  Moreover, a complaint of manifest excess falls to be considered in relation to — and only in relation to — the sentence actually imposed.[30] Manifest excess does not fall to be determined by reference to the correctness or otherwise of a s 6AAA declaration, or some particular percentage difference between that declaration and the actual sentence imposed.[31]  Specifically, manifest excess falls to be determined by reference to whether, in all the circumstances, including any plea of guilty, the actual sentence imposed was wholly outside the permissible range.

   [28]See most recently DPP (Cth) v Brown [2017] VSCA 162 [55].

   [29]R v Abbott (2007) 170 A Crim R 306.

   [30]R v Burke (2009) 21 VR 471, 477 [31]. See further, Scerri v The Queen (2010) 206 A Crim R 1, 5–6 [22]–[24]; Rizzo v The Queen [2011] VSCA 146 [33]–[34] (‘Rizzo’).

   [31]Rizzo [2011] VSCA 146 [33]–[34].

1. The judge’s reasons for sentence in the present case were carefully expressed.  They show that the judge gave detailed consideration to each of the matters about which the applicant now complains she gave insufficient weight.  Specifically, there is no lack of appropriate consideration by the judge of the applicant’s plea of guilty,[32] the applicant’s previous good character and limited criminal history,[33] the issue of totality,[34] the applicant’s prospects for rehabilitation[35] or the gravity of the particular offending against the complainant.[36] 

   [32]Reasons [31]–[32].

   [33]Ibid [21]–[22], [26]–[30] and [33]–[34].

   [34]Ibid [41]–[42].

   [35]Ibid [32] and [40].

   [36]Ibid [12]–[19].

1. The applicant’s offending was properly to be regarded as very serious, committed as it was against an obviously vulnerable and unwell young woman by a man considerably older and in a position of authority and power over his victim.  The judge’s conclusions about the seriousness of the applicant’s offending were, with respect, plainly correct.

1. The applicant’s plea of guilty was entered at a late stage, after the complainant had been cross-examined at a committal.  While appropriate regard had to be given to the applicant’s good character for the first 40 years of his life, he did not come before the court as someone with no prior convictions whose character was totally unblemished.  Again, the judge’s treatment of these issues was plainly correct.

1. In contending that the sentence imposed upon him was outside the permissible range, the applicant placed significant reliance upon the cases of Singh, Flora, Ali, Bowden, Ayol, Hajar, Evans, Coronado, Di Giorgio and Cooper.  These cases were said to be cases where the offences of rape were committed in circumstances that were comparable to the circumstances of the applicant’s offending, but with one important difference:  in each of the cases relied upon by the applicant, the offender pleaded not guilty to the rape charge brought against him;  whereas the applicant pleaded guilty to the charge against him (albeit at a very late stage, and after the complainant had been cross-examined at a committal) and yet received a longer term of imprisonment than any imposed in the cases where the offenders had fought their trials.

1. The principles relating to the use of comparable cases have been discussed in a number of recent cases, including the decisions of the High Court in Wong v The Queen,[37] Hili v The Queen,[38] Barbaro v The Queen,[39] R v Pham,[40] and Director of Public Prosecutions v Dalgliesh.[41]  They have also been considered in a number of decisions of this Court including Hudson v The Queen,[42] Nguyen v The Queen,[43] Director of Public Prosecutions (Cth) v Thomas,[44] and Lieu v The Queen.[45]  In Lieu, after referring to Wong, Hili, Barbaro, Pham, Hudson, Nguyen and Thomas, Beach and Kaye JJA said:

[A]n analysis of comparable cases is directed to promoting consistency of sentences.  However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences.  Rather, the process is directed to achieving consistency in the application of relevant legal principles.  For that reason, so-called ‘comparable cases’ are not precedents.  In the context of sentencing, no two cases can be alike.  The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge.  Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences.  However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[46]

[37](2001) 207 CLR 584, 591 [6] (Gleeson CJ) (‘Wong’).

[38](2010) 242 CLR 520, 534 [44], 535 [48]–[49] (‘Hili’).

[39](2014) 253 CLR 58, 74 [40]–[41] (‘Barbaro’).

[40](2015) 256 CLR 550, 558–9 [26]–[28] (French CJ, Keane and Nettle JJ) (‘Pham’).

[41][2017] HCA 41 (‘Dalgliesh’).

[42](2010) 30 VR 610 (‘Hudson’).

[43][2016] VSCA 198 [71]–[72] (Redlich JA) (‘Nguyen’).

[44](2016) 315 FLR 31, 88–92 [171]–[187] (‘Thomas’).

[45][2016] VSCA 277 (‘Lieu’).

[46][2016] VSCA 277 [46].

1. In Dalgliesh, the High Court held that, while current sentencing practices must be taken into account when imposing a sentence, current sentencing practices were only one factor, and not the controlling factor, in fixing a just sentence.[47]

   [47]Dalgliesh [2017] HCA 41 [68].

1. In each of the cases relied upon by the applicant, the offender pleaded not guilty and was sentenced to a shorter term of imprisonment than the applicant who had pleaded guilty.  Looked at superficially, this fact might suggest that the applicant’s sentence was unduly stern.  However, the mere fact that in a small cohort of cases offenders who did not plead guilty received lower sentences than an offender who pleaded guilty says little about whether the sentence on the offender who pleaded guilty was wholly outside the permissible range.  Generally speaking, considerably more needs to be known about the individual facts of each case before such a conclusion could be arrived at.

1. As explained in Lieu and Dalgliesh,[48] the cases relied upon by the applicant are not precedents.  In any event, the cases have, to varying degrees, different facts and circumstances that may properly be regarded as either aggravating on the one hand, or mitigatory on the other hand.  For example, in some cases there was no relevant age disparity between the offender and the victim, or the age disparity was not as marked as it is in the present case.  Many of the cases involved no employment relationship.  Moreover, unlike the applicant, some of the offenders were found to have good prospects for rehabilitation.  There are also relevant differences in respect of the circumstances and background of the offending, prior criminal histories, imbalances of power between offenders and victims, other personal circumstances and circumstances of disadvantage.  The cases relied upon are a sample of cases that disclose part of the range of circumstances and offending behaviour that can occur when the offence of rape has been committed.  Other cases, such as Marrah, Sharifi v The Queen,[49] NJ v The Queen,[50] Director of Public Prosecutions v Werry,[51] and Jurj v The Queen,[52] show that the range of sentences open for the offence of rape is not limited by the sentences imposed in the cases upon which the applicant relies.  In short, we have not found that the cases, reviewed as a whole, reveal a range or pattern of previous sentences by reference to which the present sentence may usefully be assessed.

   [48]Ibid [83].

   [49][2013] VSCA 126.

   [50][2012] VSCA 256.

   [51](2012) 37 VR 524.

   [52][2016] VSCA 57.

1. The maximum term of imprisonment for rape is 25 years.  It is trite that all rapes are serious.  The circumstances of the rape committed by the applicant in the present case were very serious, having regard to the age and power imbalance between the applicant and the complainant, the obvious vulnerability of the complainant, the applicant’s persistence in the face of the complainant’s protests and the fact that the applicant used a degree of force so as to overcome the complainant’s attempts to physically resist him.  When one takes all of the relevant matters into account, and gives due weight to current sentencing practice, not limited merely by reference to the cases relied upon by the applicant, it is not reasonably arguable that the sentence imposed in this case was manifestly excessive.

Conclusion

1. For these reasons, leave to appeal must be refused.

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