Lockyer (a pseudonym) v The Queen
[2020] VSCA 321
•9 December 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0128
| JULIAN LOCKYER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 December 2020 |
| DATE OF JUDGMENT: | 9 December 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 321 |
| JUDGMENT APPEALED FROM: | [2020] VCC 323 (Judge Brimer) |
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CRIMINAL LAW – Appeal – Sentence – Rape – Common assault – Persistent contravention of family violence intervention order – Committing indictable offence whilst on bail – Total effective term of 12 years and 6 months’ imprisonment with non-parole period of 10 years – Whether total effective term, individual sentences, and non-parole period manifestly excessive – Applicant Indigenous Australian – Disadvantaged upbringing – No relevant prior convictions – Reasonable prospects of rehabilitation – Leave to appeal granted – Appeal allowed – Applicant resentenced to total effective term of 9 years’ imprisonment with non-parole period of 6 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Dixon | Furstenberg Law |
| For the Respondent | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
WEINBERG JA:
On 28 August 2019, the applicant was convicted after a trial in the County Court of one charge of common assault and two charges of rape. On 6 November 2019, a plea hearing was conducted in respect of those charges. On that same date, the applicant also pleaded guilty to a separate charge, on a different indictment, of persistent contravention of a family violence intervention order.
Subsequently, on 28 January 2020, the applicant pleaded guilty to a summary charge of committing an indictable offence whilst on bail. That charge arose out of the offending that gave rise to one of the charges of rape.
On 25 March 2020, the applicant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation Indictment J10467378.1 1 Common assault [Common law, s 320 — Crimes Act 1958] 5 years 2 years Nil 2 Rape [s 38(1) — Crimes Act 1958] 25 years 11 years Base 3 Rape [s 38(1) — Crimes Act 1958] 25 years 10 years 1 year Indictment J10467378.1B 1 Persistent contravention of an FVIO [ss 123 and 125A — Family Violence Protection Act 2008] 5 years 1 year 6 months Related summary offence — Committing an indictable offence whilst on bail [s 30B — Bail Act 1977] 3 months 2 months Nil Total effective sentence: 12 years and 6 months Non-parole period: 10 years Pre-sentence detention declared: 735 days
By notice dated 1 July 2020, the applicant sought leave to appeal against that
sentence.[2] He contended that both the total effective sentence, and the non-parole period, were manifestly excessive.
[2]An application for an extension of time to file a notice of application for leave to appeal accompanied the above notice. In short, the reason for the delay in filing the notice of application for leave to appeal was that, after he had been sentenced, the applicant had engaged new legal representation for the purposes of this application. As will be seen, that extension of time may now be taken as having been granted.
For reasons that follow, we would grant leave to appeal. The appeal will be treated as having been instituted, and heard instanter, and allowed. The applicant will be resentenced to a total effective term of 9 years’ imprisonment, and a non‑parole period of 6 years will be fixed.
Circumstances surrounding the commission of the offences
The applicant is an Indigenous Australian, having been born in far north Queensland, and having been subsequently brought up in the Northern Territory. At the time of the offending, he was aged 31. He had, at that stage, been in a relationship with the complainant (‘YK’) for about two years. She was also aged 31 at the time. The pair had met in Darwin, where they had both previously lived. YK had twin boys aged seven at the time of the offending. The applicant was not the father of those boys. He had a son and a daughter with a former partner.
On 10 January 2018, a family violence intervention order was made against the applicant. YK was listed as a protected family member. He was also on bail at that time.
By the end of January 2018, the applicant reconnected with YK by sending her a ‘wave’ on Facebook Messenger. From that time on, the pair maintained daily contact (part of charge 1 on Indictment J10467378.1B — persistent contravention of a family violence intervention order).
On 10 February 2018, YK agreed to meet the applicant, and go out dancing with him. She had arranged for a friend, ‘AS’, to look after her children. At about 8:00 pm, she arrived at the home of her friend. While she was there, the applicant phoned her. He was described as having been rude and abusive towards her. Shortly afterwards, she returned home and waited for him to collect her.
The applicant picked up YK and drove into the city. There, they went to ‘Bond Bar’, where they had a number of drinks. At some point during the night, the pair argued, and YK went outside. When she came back into the bar, she was unable to locate the applicant. As she had no money for a taxi home, she arranged to meet a male friend, ‘CT’ who was also in the city at the time. She then returned with him to his home, where they subsequently argued.
YK borrowed CT’s car and drove back to her home. She arrived there at about 9:00 am the following morning. Once she entered the house, the applicant approached her in an aggressive manner. He began calling her a ‘slut’ and a ‘cunt’. He tackled her and ripped off her clothes and underwear. He accused her of having spent the night with another man. He said that he was going to check ‘if someone else’s cum was inside’ her.
The applicant then pinned YK down onto the couch and held her legs apart. She told him that he was hurting her. He then punched her once to the area of the vagina (charge 1 on Indictment J10467378.1 — common assault), before penetrating her with his fist (charge 2 on Indictment J10467378.1 — rape). He withdrew his fist, and then penetrated her a second time, on this occasion with his hand (charge 3 on Indictment J10467378.1 — rape, related summary offence — committing an indictable offence whilst on bail). She was yelling out while this occurred, and repeatedly told him to stop. She subsequently described the offending as having felt as though the applicant was ‘grabbing [her] insides’.
The applicant removed his hand from YK’s vagina and got up off her. She immediately ran up the stairs, pushing him away, and telling him to leave. As he did so, he said ‘please don’t put me in gaol’.
After the applicant left the house, YK showered. She then went to AS’ house to collect her sons. There, she told AS what had happened.
On the following day, 12 February 2018, YK went to work. Her employer, ‘MD’, observed that she was bruised and was shaking. YK told her what had happened. MD suggested that she see a midwife. YK agreed to do so.
On that day, and in the days that followed, the applicant sent YK a series of text messages. Their general tenor consisted of the applicant repeatedly apologising to YK, and telling her that he loved her. He maintained his belief, however, that she had been unfaithful to him (part of charge 1 on Indictment J10467378.1B — persistent contravention of a family violence intervention order).
On 18 February 2018, YK reported the matter to police. She then underwent a forensic medical examination. The doctor who conducted that examination observed bruising to her upper back, arms, and legs. There was a 10 centimetre abrasion to her left hip, and a graze on her genitals.
At 9:57 pm that night, police arrested the applicant. They conveyed him to the police station where they conducted a record of interview. During the course of that interview, he denied having seen, or gone out with, YK on the night of 11 February. He also denied that the text messages that he had sent her related in any way to the offending.
Sentencing remarks
After setting out the background facts, the judge turned to consider the impact of the offending upon the victim. She was now homeless and her children lived interstate with their father. Her victim impact statement spoke of the frustration, anger, shame, and disgust at what had occurred. It also spoke of her damaged mental state. She had self-harmed by scrubbing her body with bleach, and had attempted suicide. Her memory had also been affected by the offending, and it seems that she had stopped menstruating.
The judge then addressed the applicant’s personal circumstances. As indicated, he was an Indigenous man who had been brought up in the Northern Territory. Perhaps surprisingly, having regard to his somewhat dysfunctional upbringing, he had no relevant prior criminal history.
The applicant’s parents had separated when he was only 16. He told Mr Simon Candlish, a consultant psychologist, that his father had often accused his mother of infidelity, and had been abusive towards her. He also told Mr Candlish that he himself had been sexually abused by an older male during his childhood.
The applicant had completed school up until Year 9. He obtained a Certificate III in Fitness, and had subsequently worked as a personal trainer. He then found employment in the mining sector.
The applicant began using cannabis after he left school. In his mid-twenties, he began using methamphetamine. He told Mr Candlish that he was now aware of the harm brought about by substance abuse, and how it had affected his friendships and employment. He also noted that he had become insecure and paranoid as a result of his drug use.
The applicant also informed Mr Candlish that he had anger management issues. He described himself as easily irritated and impatient. While Mr Candlish considered the applicant’s personality traits to be problematic and entrenched, he did not meet the threshold for a personality disorder of a kind that could give rise to any of the Verdins[3] principles.
[3]R v Verdins (2007) 16 VR 269; [2007] VSCA 62 (‘Verdins’).
Mr Candlish’s report went on to detail the impact that that the applicant’s dysfunctional upbringing had had upon him. In particular, the volatile relationship between his parents had led the applicant to develop ‘issues related to insecurity, suspiciousness and jealousy.’[4]
[4]DPP v Lockyer (a pseudonym) [2020] VCC 323, [44] (‘Reasons’).
The judge said of that assessment:
Whilst your father’s behaviour might provide context in which to consider your offending, no submission was made, properly, that it excuses your offending. Your conduct warrants denunciation.
…
Those considering degrading abuse of a partner or former partner must expect stern punishment.[5]
[5]Ibid [46], [48].
Mr Candlish observed that the applicant appeared to wish to distance himself, psychologically, from what he had done. In Mr Candlish’s view, this indicated that he was ashamed of his conduct and had now recognised that it was wrong. He suggested psychological and case management to address the applicant’s problematic behaviour.
As regards the applicant’s time in custody, the judge observed that he had successfully completed a number of courses whilst on remand. He had obtained certificates that recognised his participation in a parenting program, a health and exercise program, and an anger management course. The judge found that the applicant would have the ability to return to his work when he was eventually released.
Her Honour acknowledged that the applicant’s physical isolation from members of his family, all of whom resided in Queensland and the Northern Territory, would, in a general sense, render his time in custody more burdensome. She accepted that, as an Indigenous man from the Northern Territory, he would, in any event, have a more difficult time returning to his community upon his eventual release.
The judge then turned to the relevant statutory considerations in sentencing. She observed that in this case, general deterrence and denunciation were significant sentencing factors. She noted that rape now had a standard sentence of 10 years. She observed that the amendment to the Sentencing Act 1991 to provide a standard sentence for that offence reflected Parliament’s intent to increase overall sentences for rape.
Her Honour said that she would have regard to current sentencing practice for rape but, as required by statute,[6] she would confine her consideration of that matter to sentences imposed after the introduction of the standard sentence regime. She also acknowledged that current sentencing practice was only one of a number of factors to be taken account in the sentencing exercise.[7] Of course, as she noted, each case must turn on its own individual facts and circumstances.
[6]Sentencing Act 1991 s 5B(2)(b).
[7]See generally, DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 434 [9]; [2017] HCA 41 (Kiefel CJ, Bell and Keane JJ).
The judge then turned to the objective gravity of the offending. She characterised the applicant’s conduct as ‘reprehensible’ and as ‘a significant act of overt violence’.[8] In considering the competing submissions regarding the gravity of the offending, she rejected the contention put forward by defence counsel that the seriousness of the offending was lower than ‘the average or mean’[9] because it had not been committed for the purposes of sexual gratification.
[8]Reasons [35].
[9]Ibid [36].
Her Honour acknowledged that she would not regard the contravention of the family violence intervention order as an aggravating feature of the two rapes. This was in order to avoid double punishment, given that the applicant was to be sentenced for that separate offence. She observed that the offending giving rise to that contravention demonstrated ‘a disregard of a court order’, and ‘an attitude of entitlement’.[10] General deterrence was, therefore, a significant consideration.
[10]Ibid [40].
As regards the related summary offence of committing an indictable offence whilst on bail, the judge considered the applicant’s conduct to be a serious example of that offence. She reiterated, however, that this would not be considered to be an aggravating feature of the offending that gave rise to the indictable charges.
With regard to the applicant’s prospects of rehabilitation, the judge assessed them to be ‘reasonable’.[11] Her Honour then sentenced the applicant as set out above.
[11]Ibid [53].
Applicant’s submissions
At the commencement of her written case, counsel for the applicant accepted that the judge had been correct to reject the submission put on the plea that the offending giving rise to the two charges of rape was less objectively serious than might otherwise have thought to be the case because the acts of penetration had not been ‘for the purpose of sexual gratification’. Indeed, counsel accepted, correctly, that these arguments had been ‘entirely misconceived’.
Counsel’s overall submission was that the individual sentences imposed, and the orders for cumulation on charges 2 and 3, were manifestly excessive. In support of that submission, she relied, inter alia, upon the applicant’s personal circumstances, and his good prospects of rehabilitation.
Counsel also submitted that the judge had misapplied the standard sentencing provisions by treating the figure of 10 years as a ‘starting point’, thereby engaging in ‘two-tiered’ sentencing.
Counsel relied, in particular, upon the decision of this Court in Director of Public Prosecutions v Drake,[12] to which we shall shortly refer. She also complained of the judge’s application of the principle of totality.
[12][2019] VSCA 293 (‘Drake’).
Dealing first with the applicant’s personal circumstances, counsel reiterated that he had experienced a dysfunctional and disadvantaged upbringing. This had included the sexual abuse he had suffered, and having been witness to his parents’ volatile relationship. She submitted that this had moderated his culpability for the offending, at least to some degree.
Second, counsel did not challenge the judge’s characterisation of the applicant’s prospects of rehabilitation as ‘reasonable’. She submitted, however, that despite her Honour’s assessment, ‘the sheer length of the sentence imposed indicate[d] that this sentencing consideration was given insufficient weight’. This was said to be supported by the judge’s further findings, in relation to her refusal to order that the applicant be placed on the sex offenders register, that she was not satisfied that he posed a ‘real risk’[13] to the sexual safety of YK, or to the community more generally.
[13]Reasons [73].
Third, with regard to the judge’s application of the standard sentence provisions, counsel submitted, in her written case:
Rape carries a standard sentence of ten years.[14] This ‘legislative guidepost’[15] is said to be the sentence for a rape that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[16]
In determining the objective factors a court must consider only the nature of the offence and not the personal circumstances of the offender.[17] Thus, the standard sentence is ‘ignorant of’ a range of matters which the judge will need to take into account in assessing the nature and gravity of the offending.[18]
The standard sentence does not affect the ‘instinctive synthesis’ approach. A court must not start at the standard sentence and work its way up or down.[19]
[14]Crimes Act 1958 s 38.
[15]Brown v The Queen (2019) 59 VR 462, 464–5 [4]; [2019] VSCA 286 (‘Brown’).
[16]Sentencing Act 1991 s 5A(1)(b).
[17]Ibid s 5A(3).
[18]McLaren v The Queen [2012] NSWCCA 284, [28].
[19]Brown (2019) 59 VR 462, 468 [17].
Clearly, counsel’s submission, in essence, was that the sentences of 11 years and 10 years, respectively, on charges 2 and 3, gave the appearance of having been fixed on the basis of the standard sentence for rape being 10 years’ imprisonment. Yet, there were powerful mitigating factors present here which related to the applicant’s upbringing, and disadvantaged background, which ought to have significantly moderated that figure which, should not in any event have been viewed as a ‘starting point’.
Fourth, with regard to comparable cases, counsel observed that, to date, Drake has been the only sentence for rape that has been considered by this Court since the introduction of the standard sentencing regime.
In Drake, the offender was sentenced for six charges of rape, one charge of aggravated burglary, two charges of assault with intent to commit a sexual offence, one charge of attempted rape, and one charge of sexual assault.
The offending occurred during a home invasion whereby the offender broke into the home of a 56 year old woman, who was a stranger to him, in the middle of the night, and attacked her. It took place over a protracted period of time, and involved conduct that was extremely violent, as well as degrading and humiliating.
Like the present case, the respondent in Drake was an Indigenous man whose early life had been marked by deprivation and abuse. He had suffered sexual abuse at the hands of two older males. He was a chronic alcoholic and had begun using methamphetamine at the age of 17. Unlike the applicant in this matter, he had a very lengthy criminal history, consisting of some 14 pages in all of prior convictions. He was also diagnosed with post-traumatic stress disorder.
The sentencing judge in Drake imposed individual terms of 6 years’ imprisonment on each of the six charges of rape, and the same sentence of 6 years on the charge of aggravated burglary. With orders for cumulation heavily modified to reflect the need to take into account totality, a total effective sentence of 12 years and 6 months’ imprisonment was imposed. A non-parole period of 8 years was fixed. Of course, in Drake, there was a plea of guilty, whereas in the present case, the applicant stood trial.
The Crown appealed against the sentences imposed in Drake. The appeal was dismissed, it being held that the sentences imposed in that case were ‘lenient’, but within range.[20]
[20]Drake [2019] VSCA 293, [35].
Returning to the present matter, counsel recognised that there were limitations in relying upon so-called comparable cases, particularly where, as in the present circumstances, there is a paucity of cases to discern a relevant current sentencing practice. She maintained, however, that the offending in Drake was objectively far worse than that in the present case. The fact that individual sentences of 6 years’ imprisonment were all held to be within range in that case, and the total effective sentence of 12 years and 6 months equally so, suggested that the applicant’s sentence was outside the range. The same could be said of the difference between the 8 year non-parole period in Drake and the 10 year non-parole period in the present case.
Fifth, counsel submitted that the judge’s orders for cumulation of 12 months between charges 2 and 3 demonstrated that her Honour had failed to give proper weight to the principle of totality. In support of that submission, counsel argued that the two rapes occurred within moments of each other, and therefore fell within the ‘single transaction rule’. In that regard, she relied upon Flynn (a pseudonym) v The Queen,[21] where this Court said:
In some cases, it may be proper, and indeed necessary, to order little or no cumulation. That would be so where the offences are, basically, of the same order, and all committed at the same time, against the same victim.[22]
[21][2020] VSCA 173 (‘Flynn’).
[22]Ibid [130] (citation omitted).
Counsel also complained that the order for 6 months’ cumulation on the charge of persistent contravention of a family violence intervention order was manifestly excessive. The breaches in question were characterised as being ‘essentially consensual’, with YK having readily condoned them.
As regards ground 2, counsel’s submission was that there was no adequate explanation at all by the judge as to why she had imposed a non-parole period that equated to 80 per cent of the head sentence. It was submitted that that was an extraordinarily high ratio, far beyond what would ordinarily be expected in the case of an offender who had never previously been imprisoned and had good prospects of rehabilitation.
Respondent’s submissions
In the written case on behalf of the respondent, it was first submitted that the Court should refuse the application for an extension of time. While it was accepted that the delay in this case was by no means inordinate, and that there was no prejudice to the respondent in meeting this application, it was contended that the prospect of leave being granted was poor. For that reason, the application should be refused. During oral argument, however, counsel specifically disavowed that argument.
With regard to ground 1, it was submitted that it was well open to the judge to impose the individual sentences, and make the orders for cumulation that she had. The objective gravity of the offending had been great, and had a profound impact upon YK.
In relation to the applicant’s reliance upon Drake, it was noted that, unlike the present case, the offender in Drake had pleaded guilty. The judge’s s 6AAA statement in that case indicated that, but for the respondent’s plea of guilty, he would have received a total effective sentence of 16 years’ imprisonment, with a non‑parole period of 12 years.
In the present case, the applicant had proceeded to a jury verdict, involving cross-examination of YK as to credit. He was, therefore, not entitled to the benefit of the discount accorded to a plea, as had been the respondent in Drake.
In response to the applicant’s complaint regarding the orders for cumulation, it was submitted in the written case (which had been prepared by counsel who did not appear before this Court) that unlike Flynn, this was not truly a ‘single transaction rule’ case. Each act of penetration, albeit in close temporal proximity, ‘was brutally violating and painful’. In oral argument, counsel for the respondent very fairly resiled from that submission. She accepted that there was no evidence to suggest that there had been a temporal ‘break’ between each instance of penetration, and that there was scope for the ‘single transaction rule’ to apply.
With regard to ground 2, it was submitted that the judge had been entitled to fix the non-parole period that she had. It was noted in the written case that counsel on the plea had submitted that a lengthy period of parole would not be in the applicant’s interest as it would require him to remain in Victoria, where he had no family support. The judge had simply accommodated the applicant’s wishes in that regard by giving him a longer non-parole period.
In oral argument, counsel, once again very fairly, accepted that such a non‑parole period was ‘stern’, and that there seemed to be no explanation in the judge’s sentencing remarks as to why the non-parole period formed such a high percentage of the head sentence.
Conclusion
In our view, the individual sentences of 11 years and 10 years, respectively, on each of the two charges of rape were manifestly excessive. So too was the total effective sentence of 12 years and 6 months’ imprisonment. Even more so was the non-parole period of 10 years.
This was a case which, in our view, fell within the principles stated by the High Court in Bugmy v The Queen.[23] In that case, it was held that in appropriate circumstances, an offender’s deprived background can, on its own, be regarded as a mitigating factor, quite separate from his or her status as an Indigenous person.
[23](2013) 249 CLR 571; [2013] HCA 37.
The judge summarised the applicant’s personal circumstances and background in the following terms:
You are now 33 years old. You grew up in the Northern Territory, the eldest child of your parents’ relationship. You have two younger sisters. You also have four older siblings from both your mother’s and father’s previous relationships. Your parents separated when you were 16 years old. You reported to Mr Candlish that your father was always jealous and that your parents were often involved in relationship conflict. Your father often accused your mother of infidelity, would throw objects at her and verbally abuse her and your mother would then leave for some time.
Despite this conflict you described your mother as caring and bighearted and your father also as caring. You felt loved by both your parents. However, an accusation by your younger sister that your father sexually abused her resulted in the end of the marriage. You indicated to Mr Candlish that you were sexually abused by an older male that lived in the neighbourhood during your childhood.
You completed year 9 at school, but struggled academically and had behavioural issues. You worked in your Aunt’s business, in your cousin’s gym as a personal trainer, having obtained a Certificate III in Fitness, and then in several different jobs in the mining sector. The longest period of time in which you were unemployed was 18 months, approximately five years ago.
You started smoking marijuana after leaving school. You were introduced to methamphetamine three years into the relationship with your third partner, the mother of your children. When you were using drugs you described yourself as ‘the nastiest person’. You reported to Mr Candlish that you are aware of the negative impacts of substance use, losing friendships and employment. Mr Candlish considered that your drug use has impacted significantly on your ability to function in a range of areas of life. Your insecurity and paranoia have been exacerbated by drug use, although Mr Candlish observed that you do not appear to have been suffering from this condition at the time of your offending.
You denied any past symptoms associated with anxiety, mania or psychosis with the exception of an incident during a period of heavy methamphetamine use. On one occasion, you tried to stage a hanging in order to upset your partner enough to influence her to stay with you. You never attempted suicide before or after this event. When asked by Mr Candlish if you had issues with anger you responded 100%. You were easily triggered in the past, would have arguments with partners and drive recklessly. After you separated from your partner of seven years, the mother of your children, you ‘hit the drugs, ice, marijuana and synthetic cannabis’.
Mr Candlish noted that you revealed low self-awareness at times and a history of limited self-reflection although you were able to identify broad issues you have struggled with including relationship insecurity and jealousy. You disclosed past issues that were indicative of characterological issues such as emotional detachment, some egocentricity and mild narcissism, some poor self-control and low self-discipline. You described yourself as being rather impatient and easily irritated. Psychometric test results indicated that you are relatively quick-tempered at times, and may be easily provoked by the actions of those around you. You are not considered to meet the threshold for a personality disorder however, your personality traits are problematic and appear entrenched according to Mr Candlish. You will require intervention to increase your ability to pursue healthy relationships and experience a healthy sense of self.
You have had five partners, the fifth being the victim in this matter. Your third partner, with whom you were together for seven years, is the mother of your two children. Your relationships with your partners have been characterised by feelings of jealousy and insecurity. You described your relationship with the victim as ‘toxic’, referring to your frequent conflict and separations.[24]
[24]Reasons [20]–[26].
It is plain from the passages set out above that the applicant had a somewhat dysfunctional, and deprived, background. He underwent significant privation, and had a history of drug abuse. He had also displayed disturbed personality traits which, Mr Candlish considered, required treatment and care.
Nonetheless, the applicant had somehow, to his credit, managed to reach the age of 31 without any relevant criminal history. He had ‘reasonable’ prospects of rehabilitation, and continued to receive family support from relatives in the Northern Territory and Queensland. These were powerful mitigating factors. Plainly, they should have impacted, to a considerable degree, upon the sentences imposed for these offences. In our view, they were clearly not given sufficient weight.
This is not, in any way, to understate the very great, and inherent, gravity of the crime of rape. As this Court said recently in Director of Public Prosecutions v Mokhtari:[25]
The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.[26]
[25][2020] VSCA 161.
[26]Ibid [41].
It must be understood that the standard sentencing regime, so recently introduced, does not in any way diminish the importance of giving proper weight to relevant mitigating factors. These include the personal circumstances of the offender, his or her prospects of rehabilitation and, where appropriate, the need to give due weight to a plea of guilty (particularly if coupled with remorse).
If the standard sentencing regime is not approached in accordance with the principles laid down in both Drake and Brown, it will have replaced ‘instinctive synthesis’ with ‘two-tiered’ or ‘starting point’ sentencing. It is clear that this was not the intent of the Parliament.[27]
[27]Sentencing Act 1991 s 5B(3)(b).
A standard sentence of 10 years’ imprisonment, for rape, represents a ‘legislative guidepost’[28], and is to be understood as but one factor to be taken into account in what is obviously a far more nuanced, and careful, process than one which is crudely arithmetic.[29]
[28]Brown (2019) 59 VR 462, 464–5, [4].
[29]Sentencing Act s 5B(2).
For the reasons set out above, we will extend time. We will grant the applicant leave to appeal on both grounds. As indicated, the appeal will be treated as having been instituted, and heard instanter, and will be allowed.
We will set aside the individual sentences imposed below on charges 1–3 on Indictment J10467378.1. We will substitute for the sentence of 2 years imposed on the charge of common assault a sentence of 12 months. We will also substitute for the sentences imposed on each of the rape charges sentences of 8 years and 6 months. With orders for cumulation, as set out in the table below, that will result in a total effective sentence of 9 years’ imprisonment. We will fix a non-parole period of 6 years.
Charge on Indictment Offence Maximum Sentence Cumulation Indictment J10467378.1 1 Common assault [Common law, s 320 — Crimes Act 1958] 5 years 12 months Nil 2 Rape [s 38(1) — Crimes Act 1958] 25 years 8 years and 6 months Base 3 Rape [s 38(1) — Crimes Act 1958] 25 years 8 years and 6 months 6 months Indictment J10467378.1B 1 Persistent contravention FVIO [ss 123 and 125A — Family Violence Protection Act 2008] 5 years 12 months Nil Related summary offence — Committing an indictable offence whilst on bail [s 30B — Bail Act 1977] 3 months 2 months Nil Total effective sentence: 9 years’ imprisonment Non-parole period: 6 years Pre-sentence detention declared: 994 days, up to, but not including, the date of judgment
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