Ortisi v The King
[2025] VSCA 42
•21 March 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCR 2023 0164 | |
| MARK ANTHONY ORTISI | Applicant |
| v | |
| THE KING | Respondent |
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JUDGES: | PRIEST, WALKER and T FORREST JJA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2025 |
DATE OF JUDGMENT: | 21 March 2025 |
MEDIUM NEUTRAL CITATION: | [2025] VSCA 42 |
JUDGMENT APPEALED FROM: | DPP v Ortisi (County Court of Victoria, Judge Leighfield, 23 August 2023) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Applicant charged on indictment with one charge of sexual assault, four charges of rape, one charge of sexual assault by compelling sexual touching and one charge of assault with intent to commit a sexual offence – Alleged offending related to four episodes on single day – Jury acquitted the applicant of all charges relating to first three episodes – Jury found the applicant guilty of two charges of rape and other offences related to fourth episode – Whether verdicts are inconsistent – Whether verdicts of guilty are unreasonable or cannot be supported by the evidence – Verdicts not unreasonable or incapable of being supported by the evidence – Leave to appeal refused.
Criminal Procedure Act 2009, s 276(1)(a); MacKenzie v The Queen (1996) 190 CLR 348; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; MFA v The Queen (2002) 213 CLR 606.
CRIMINAL LAW – Appeal – Sentence – Rape and associated offences – Total effective sentence of nine years and nine months’ imprisonment with a non-parole period of six years and three months – Whether sentence manifestly excessive – Appeal allowed – Resentenced to six years and six months’ imprisonment with non-parole period of four years.
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| Counsel | |||
| Applicant: | Mr D Dann KC with Mr PJ Smallwood | ||
| Respondent: | Mr D Glynn | ||
| Solicitors | |||
| Applicant: | Emma Turnbull & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
•
PRIEST JA
WALKER JA
T FORREST JA:
Introduction
An indictment filed against the applicant in the County Court contained one charge of sexual assault[1] (charge 1); four charges of rape[2] (charges 2, 3, 4 and 5); one charge of sexual assault by compelling sexual touching[3] (charge 6); and one charge of assault with intent to commit a sexual offence[4] (charge 7). ‘MI’, a 21 year old female, was the complainant with respect to each charge.
[1]Crimes Act 1958, s 40. The maximum sentence is 10 years’ imprisonment.
[2]Crimes Act 1958, s 38(1). By virtue of s 38(2), the maximum sentence is 25 years’ imprisonment; and by virtue of s 38(3), the standard sentence is 10 years.
[3]Crimes Act 1958, s 41. The maximum sentence is 10 years’ imprisonment.
[4]Crimes Act 1958, s 42(1). The maximum sentence is 15 years’ imprisonment.
Following a trial conducted in July 2023, the jury empanelled to try the applicant found him guilty of two charges of rape (charges 4 and 5); one charge of sexual assault by compelling sexual touching (charge 6); and one charge of assault with intent to commit a sexual offence (charge 7); but acquitted him on the other three charges (one charge of sexual assault, charge 1, and two charges of rape, charges 2 and 3).
As we will later discuss in more detail, in July 2021 MI was working as a bar attendant at a hotel in Heidelberg where, in the previous months, the applicant, then aged 55 years, had become a regular patron. The evidence in the trial revealed that MI and the applicant spent much of the afternoon and evening of 13 July 2021 in each other’s company in a variety of situations. Each charge on the indictment arose out of the applicant’s conduct towards the complainant in the course of four episodes during that evening: first, in the street after leaving the Men’s Gallery, situated in Lonsdale Street, Melbourne (charge 1 – sexual assault); secondly, during a taxi ride from the vicinity of the Men’s Gallery to a restaurant in Carlton (charge 2 – rape); thirdly, on a park bench in Carlton after leaving the restaurant (charge 3 – rape); and, fourthly, during a second taxi ride of a little over 20 minutes’ duration to the applicant’s home in Templestowe (charges 4, 5, 6 and 7 – rape and other charges). The four offences of which the applicant was found guilty all allegedly occurred during the second taxi ride.
On 23 August 2023, following a plea hearing conducted on 15 August 2023, the trial judge sentenced the applicant to a total effective sentence of nine years and nine months’ imprisonment, with a non-parole period of six years and three months.[5]
[5]See [79] below.
The applicant now seeks leave to appeal against both his conviction and sentence.
As to conviction, the applicant relies on a single ground that contends that the verdicts of the jury on charges 4 and 5 are unreasonable or cannot be supported having regard to the evidence. Significantly, he does not seek to challenge the convictions on charges 6 and 7.
With respect to sentence, the applicant’s sole ground is that the ‘individual sentences imposed and the orders for cumulation made were each manifestly excessive and resulted in a manifestly excessive total effective sentence’.
For the reasons that follow, we would refuse the applicant leave to appeal against conviction. We would, however, grant the applicant leave to appeal against sentence; allow the appeal; and resentence the applicant in the manner set out below.[6]
[6]At [97] below.
Factual background
MI gave evidence that, in July 2021, she was working as a bar attendant at a hotel in Heidelberg. The applicant, then aged 55 years, had become a regular patron.
According to MI’s evidence, on 13 July 2021, at around 12.30 pm, the applicant was at the hotel playing poker machines and drinking red wine and ice that she had served him. She finished her shift at 1.30 pm and, as she was leaving, stopped and spoke with the applicant at length. Among other things, MI said that she told the applicant that money was ‘tight’ because there was not a lot of work available due to the ‘lockdowns’ associated with the pandemic. When the subject of making ‘good money’ from stripping came up, the applicant told MI that he ‘could help [her] out, that he knew someone and that he could get [her] a job’.
MI and the applicant ultimately left the hotel together and, as we have indicated, went to various locations throughout the afternoon and evening, including Crown Casino, the Men’s Gallery and a restaurant in Lygon Street. The evening came to an end when the applicant and MI entered a taxi in Lygon Street to head home. As we have mentioned, it was during that taxi trip that the four offences of which the applicant was found guilty occurred.
MI gave evidence at trial of a number of alleged instances of non-consensual sexual conduct by the applicant towards her throughout the afternoon and evening prior to that final taxi ride. Closed circuit television (‘CCTV’) footage from Crown Casino, the Men’s Gallery and ‘Safe City’ cameras in the Melbourne CBD, were put into evidence and played during the trial. Some of the footage allegedly showed sexual contact between the applicant and MI prior to the final taxi ride (in particular, the prosecution alleged, at the Men’s Gallery).
Each of the incidents founding charges 1, 2 and 3 — of which the applicant was found not guilty — was alleged to have occurred after leaving the Men’s Gallery, but before the final taxi ride. Principally, the evidence supporting those charges came from MI alone, albeit there was, as we have indicated, a deal of CCTV footage — some relied on by the prosecution, and some by the defence — showing various interactions between the applicant and MI at Crown Casino, inside the Men’s Gallery and in the street in the vicinity of the Men’s Gallery, prior to the alleged conduct embraced by these three charges.
By way of contrast, the evidence on charges 4, 5, 6 and 7 came from three principal sources: the evidence of MI; CCTV footage captured during the taxi trip when the conduct founding the charges allegedly occurred; and various answers given by the applicant to police questions during a record of interview conducted on 12 August 2021.
MI’s evidence was that, after she and the applicant left the hotel in Heidelberg together in the applicant’s Porsche motor vehicle, the applicant went to a bank in Balwyn to obtain cash. After leaving the bank, the applicant, while driving, touched her ‘inner thigh and vagina, like outside of [her] clothes’. She told the applicant that touching was ‘not on’, but the applicant said that ‘if [she] wanted to be a stripper, [she] was going to have to be okay with that kind of behaviour’. The touching then ‘escalated’, the applicant putting his hand into her pants onto her vagina. At some point MI said, ‘No, we’re just mates’. None of this conduct in the applicant’s vehicle on the way to the casino was the subject of a charge.
The two arrived at Crown casino at about 4.00 pm, and the applicant parked his car in the valet carpark. They then went to the gaming area, where the applicant gave the complainant money to obtain drinks. MI gave evidence that, while they were at a blackjack table, the applicant touched her inner thigh, legs and vagina. She pushed his hand away, saying, ‘No, we’re in public’. MI estimated that the applicant touched her in the ‘vagina area’ about ten times. She also estimated that, while at Crown, she drank ‘about’ four glasses of red wine, so that she ‘was feeling quite tipsy’. At some point she knocked over a glass of red wine, and the applicant was getting ‘quite loud’. Eventually, security asked the applicant to leave. MI said that she left with him, because she was ‘holding onto … the chance of getting this job’. She also said that she ‘was just in survival mode at that point because [she] could tell that he was getting like upset and aggravated with the way [she] was responding to his behaviour and [she] knew how uncomfortable it was going to be having a regular customer come into [her] workplace after something like this’. None of the applicant’s alleged conduct at Crown Casino was the subject of a charge.
After leaving Crown Casino, MI and the applicant walked to a strip club, ‘Centrefold’ — MI had heard ‘good things’ about it from one of her friends — but it was closed. MI’s evidence was that they then went to the Men’s Gallery, which was close by. The applicant paid for their entry and they obtained drinks. MI drank two shots of black Sambuca, and a vodka, lime and soda. After those three drinks she felt ‘intoxicated’. She then had a private ‘dance’ with one of the club dancers, who was ‘just basically dancing naked’, while the applicant was with one of the other girls. MI and the applicant then went to a smoking area, and while they were smoking the applicant started kissing her. She ‘wasn’t into it’ and said ‘no’. He then put his hand ‘through the front of [her] pants, under [her] pants and underwear’, and ‘was touching [her] clitoris and [her] vagina but it was kind of more like a groping’. In her evidence, MI said she could not remember if she said anything to the applicant. She was ‘pretty intoxicated’ and ‘felt so scared’.
MI gave evidence that, after leaving the smoking area, she started to have another ‘dance’, paid for by the applicant, but she had to interrupt it to go to the bathroom to vomit. She vomited for ‘about 20 minutes’, during which time girls checked on her. When she came out of the bathroom, she went to the bar where the applicant was talking to a number of the girls. MI was no longer sick, but she ‘still felt scared and confused’. She told the applicant she was ‘drunk’ and wanted to go home. The applicant, who ‘was getting more stern and more aggressive’, said he would get her home ‘safe’. They then left the Men’s Gallery. None of the applicant’s alleged conduct in the Men’s Gallery was the subject of a charge.
After they left, the applicant started talking about getting food as they walked. At an intersection, the applicant began to touch the complainant. He ‘put his hand in [her] pants again under [her] underwear, was touching [her] again [her] vagina, he also put his hands in [her] pants and touched [her] arse as well and he even pulled [her] hair at one stage’. The applicant also touched her ‘boobs’. MI was ‘stumbling’ and ‘intoxicated’. She estimated this activity — the foundation of charge 1, sexual assault, of which the jury found the applicant not guilty — went on for ‘say two minutes’. On the prosecution case, this activity took place at about 9.20 pm. Significantly, however, the defence relied on footage of the two in Lonsdale Street captured by CCTV cameras at about that time which appeared to show no sexual contact between them.
The applicant then hailed a taxi near the intersection of Lonsdale Street and King Street. MI gave evidence that she got into the taxi with him because she felt that she ‘had absolutely no choice’. While they sat in the back seat the applicant was ‘kissing and groping’ her. MI’s evidence — which was not directly supported by any independent evidence[7] — was that the applicant put his hands in her pants again onto her vagina, touching her clitoris, and moving his hand around ‘in somewhat of a circular motion’. This alleged conduct was the foundation of charge 2, rape, of which the jury acquitted the applicant.
[7]See fn 24 below.
Eventually the taxi arrived at a restaurant in Lygon Street, Carlton, and MI and the applicant went in. The complainant’s evidence was that she was still ‘intoxicated’. They ate, and she had another glass of red wine. After about 45 minutes they left the restaurant and walked down the road. When they got to a park, the applicant sat on a park bench and pulled MI onto his lap. At one point she told the applicant she wanted to go home — she ‘was getting more and more infuriated and like upset’ — but the applicant told her ‘to shut up or he was going to have to hit [her]’, making her feel ‘petrified’. On the park bench the applicant ‘roughly’ kissed the complainant, put his hands in her pants under her underwear, and put a finger into her vagina for ‘about 30 seconds’. MI could not recall whether she said or did anything while the applicant did that. This penetration — MI’s evidence of which was not directly supported by independent evidence — was the subject of charge 3, rape, upon which the jury found the applicant not guilty. MI said that at this stage she was still ‘intoxicated’, ‘still tipsy’, and the applicant ‘was definitely drunk’. Before they left the park bench, the applicant told the complainant that he had done her a favour and she had ‘better not backstab him’. After they left the park bench, they walked back onto Lygon Street and hailed a taxi.
It was common ground between the parties that, upon entering the taxi at 10.15 pm, MI had asked to be dropped off first in Brunswick, which was only a short distance from where the two had caught the taxi. The applicant refused, however, and insisted that, because he was paying for the taxi ride, he would be dropped off first at his home in Templestowe. If from no other evidence, it is clear from the CCTV footage captured during the taxi ride, that between the time the two entered the taxi at Lygon Street, and the time that the applicant got out the taxi at 10.36 pm at his home in Templestowe, there were multiple sexual acts involving the applicant and the complainant.
Charge 4, rape, the conviction for which is the subject of the ground of appeal against conviction, involved alleged digital penetration of MI’s vagina. MI gave evidence that the applicant initially ‘just kind of grabbed [her] and like pulled [her] towards him and just started kissing [her]’ on the mouth. He then ‘put his hands in [her] her pants again’ and said that he wanted to ‘eat that’ (indicating her vagina). The applicant put his right hand under MI’s underwear . Whilst his hand was inside her underwear, to ‘start with, his hand was on [her] clitoris and [her] vagina and then he started shoving … either one or two fingers inside [her] and just like poking inside [her] vagina’. MI said that the applicant was ‘extremely rough, just like very careless towards it’. His finger was inside her vagina for ‘about 30 seconds to a minute’. The complainant gave evidence that she said ‘stop’ when the applicant initially put his hand inside her pants and underwear, but that the applicant did not stop.
In her evidence, MI described the circumstances surrounding charge 5, digital-anal rape, the second charge which is the subject of the conviction application, in the following way:
[PROSECUTOR] Was he doing anything else while he put his fingers inside your vagina?---After that had happened he put his hand around my back, so on to my arse, and he put a finger inside my bum.
Okay. And what was the time frame between those two actions?---So directly after, so as soon as he put his fingers inside my vagina, as soon as that happened he took it out and put it behind me.
And can you just explain when you say ‘behind’ you, what was happening there?---Yep. So he had his hand under my underwear, in my pants, on my arse and then inside my arse.
Okay. And by ‘inside your arse’, can I just ask you to clarify what you mean by that?---Yeah. Inside my bum. I’m not sure how else to say it, I’m sorry.
MI said his finger was ‘inside [her] bum’ for ‘what felt like about 30 seconds as well’.
With respect to the vaginal and anal penetration the subject of charges 4 and 5, the complainant’s evidence was that she did not try to remove the applicant’s hand when it was down her pants because she had already said ‘no’ to him — which had not achieved anything — and she did not think it would help to try and remove his hand. MI also gave evidence that the applicant was intoxicated, aggressive and assertive.
We will return in a little more detail to the evidence on charges 4 and 5 below when discussing the cases advanced by the parties at trial.[8]
[8]See [33]–[43], and [47]–[52], below.
Charge 6, the charge of sexual assault by compelling sexual touching, the conviction for which is not the subject of the ground of appeal against conviction, was constituted by the applicant grabbing the complainant’s hand and placing it on his exposed penis. MI gave evidence that the applicant undid his pants and got his penis out. She said that he grabbed her hand and put it on his penis. He held her hand and she rubbed his penis for around five seconds. MI said that she did it ‘really badly’ so that perhaps the applicant would stop, but said that she ended up taking her hand off his penis anyway. Although MI gave no evidence of it, the CCTV footage appears to show that, after the applicant initially took hold of the complainant’s hand and placed it on his penis, she started to pull her hand away. The applicant then took hold of MI’s hand and put it back on his penis. It was at that point that she started to rub it. It is also apparent from the CCTV footage that she rubbed the applicant’s penis for longer than the estimated five seconds.
Charge 7, the charge of assault with intent to commit a sexual offence, the conviction for which the applicant does not challenge, was constituted by the applicant pushing MI’s head down towards his exposed penis with the intent that she give him oral sex. MI gave evidence that on a number of occasions the applicant grabbed her hair and pulled her head down towards his penis to try and get her to suck it. She said that the applicant did this forcefully and that, on each occasion he did it, she pulled her head back up. MI said that after the applicant had tried to force her head down a few times, he told her that he wanted her to suck his ‘dick’ but she said ‘no’. CCTV footage shows the applicant grabbing the back of the complainant’s head and forcibly pushing her head down towards his penis multiple times. Albeit that MI’s mouth and face did not actually touch the applicant’s penis, it appears that, on at least one occasion, it did come very close. It seems clear from the footage that, despite the complainant’s clear lack of consent to giving the applicant oral sex, the applicant continued to try to force her to do so.
When the taxi arrived at the applicant’s home in Templestowe, he got out and gave the complainant a $100 note to pay for the taxi fare. She then continued in the taxi back to her friend’s home in Brunswick. ‘HL’ gave evidence that when the complainant arrived she was crying and inconsolable. The complainant said that the person she was with became quite aggressive and complained he had done things sexually to her that she could not say no to. ‘RN’ gave evidence that, when the complainant arrived at the house she was incredibly distressed, very upset, shaking and crying. And when ‘RD’ subsequently arrived at the house, he observed that the complainant was distraught and bawling her eyes out. About two weeks later, on 2 August 2021, the complainant made a report to police.
On 12 August 2021, the applicant was arrested at his home in Templestowe. He participated in a record of interview with police, in which he admitted to having spent the afternoon and evening with the complainant, but denied having committed any sexual offences. Whilst the applicant did admit that his hand had gone into MI’s pants in the taxi, he stated that it was she who had grabbed his hand and put it in her pants. The applicant further stated that the complainant had kissed him and put her hands down his pants in the taxi. He denied penetrating MI either vaginally or anally. The applicant did not give evidence at trial.
The prosecution and defence cases on charges 4 and 5
On charges 4 and 5, the prosecution was required to prove three elements beyond reasonable doubt: first, that the applicant intentionally sexually penetrated the complainant by introducing his finger into her vagina (charge 4) or anus (charge 5); secondly, that the complainant did not consent to the relevant sexual penetration; and, thirdly, that the applicant did not reasonably believe that the complainant was consenting to the relevant sexual penetration.
Importantly, the only element that the defence put in issue was penetration, the applicant’s essential ‘defence’ on charges 4 and 5 being that he did not penetrate the complainant’s vagina (charge 4) or her anus (charge 5) with a finger. On each charge the applicant’s counsel unequivocally indicated that a reasonable belief in consent was not in issue. The disputed issue on each charge, therefore, was very narrow: did the evidence satisfy the jury beyond reasonable doubt that the applicant penetrated the complainant’s vagina or anus (as the case may be) with a finger?
Charge 4: The evidence
To risk repetition, charge 4 was an allegation that the applicant inserted his finger into the complainant’s vagina during the taxi ride from Lygon Street to his home. Whether the applicant penetrated MI’s vagina with his finger was the only disputed element.
MI’s evidence-in-chief was that, while in the taxi, the applicant pointed at her vagina and said he wanted to ‘eat that’. The complainant said that she responded: ‘No, that’s not happening. Absolutely not’. The applicant then put his hand in her pants. He was pulling her inside leg aside and outwards so he could get into her pants, and then shoving his hand into her pants and under her underwear. His hand was inside her clothing and under her underwear. When his hand was first inside her underwear, it was on her clitoris and vagina. The applicant then started shoving either one or two fingers inside her, and was just ‘like poking inside [her] vagina’. MI said the applicant was doing this in an extremely rough way and was ‘very careless towards it’. She said that his finger was inside her vagina probably for about 30 seconds to a minute.
Under cross-examination by senior counsel for the defence, MI agreed that, to her memory, neither the clasp nor the zip on her pants was undone during the taxi ride. She maintained, however, that the applicant’s hand went inside her knickers and towards her vaginal area. MI agreed that her pants were tight pants but she said that they were still ‘stretch’. She disagreed that, to get to her underpants, her pants would have to be undone. Her evidence was that, whilst they were tight pants, they were still accessible with force. She agreed there would definitely be a degree of difficulty in getting a hand down her pants, but she said that that does not mean that it is not possible. The complainant denied that it would be a ‘two-handed operation’ to get a hand in her pants. When counsel put to MI that the applicant had never put his hands inside her underpants and penetrated her vagina, she disagreed.
In relation to lack of consent, MI gave evidence that she did not want the applicant to touch her sexually whilst in the taxi (or at anytime), and she did not agree to him putting his finger inside her vagina.
Under cross-examination, MI agreed that, during the second taxi ride, she was prepared to negotiate her way with a drunk man and was prepared to permit a certain level of touching to keep the peace. She also said, however, that she felt like she did not feel like she had any other choice.
In re-examination, MI was asked to clarify the answers that she had given when she agreed that she had been managing the applicant as best she could. She said that she did not want to try and aggravate the applicant. The applicant was intoxicated and she did not want to push him. He was already getting sexual and aggressive with her, so she did not want to try and fight that. She said that she wanted to be clever about how she could get out of the situation she was in, and did not want to end up dead.
As to the applicant’s suggested lack of reasonable belief in consent — which, as we have said, was not a disputed issue — MI gave evidence that the applicant did not say anything before he put his hand down her pants and his finger into her vagina. She said that she had said ‘stop’ when he initially put his hand inside her pants and vagina, but that he did not stop. MI said that she also told the applicant that it was ‘not happening because we are in a taxi’, but he was saying that he just did not care. MI gave evidence that she had said this because she had already said ‘no’, so tried to say no because they were in public because there was a driver. It did not, however, change anything. MI said it was also embarrassing because someone else was in the car and it just made it ‘more disgusting’. She gave evidence that whilst in the taxi, the applicant was intoxicated, aggressive and assertive while he was doing these things, and that he was in charge and was aggressive and careless. What she meant by ‘careless’ was that he was grabbing a lot. She was saying ‘no’ and ‘stop’ and pulling her body away from his body and hands, but the applicant just kept grabbing her and saying that he did not care.
In cross-examination, MI conceded that she had not tried to remove the applicant’s hand when it was down her pants. She said she did not do this because she had said ‘no’ to him and that that had not done anything, so she did not think it would help to try and remove his hand. MI accepted that she chose to go with the applicant in the second taxi, even though he was drunk at the time. She said that she got into the taxi because she wanted to be on good terms and safe, and agreed that she wanted the applicant to think well of her. Further, MI said that she told the applicant ‘no’ and ‘stop’ and pushed his hand away and pulled her leg away at various times on numerous occasions, but nothing that she did that night changed what was happening to her, and only made it worse. That was why she felt she had no choice but to let the applicant do certain things.
Exhibit A was the CCTV footage of the taxi ride from Lygon Street to the applicant’s home in Templestowe. Both the prosecutor and defence counsel put arguments to the jury as to what it depicted.
Apart from the complainant’s evidence, and the CCTV footage, there was evidence of complaint from MI’s friend, RD (her partner by the time of the trial); a housemate, HL; and her manager at the hotel, GR. Thus, the evidence was that after RD arrived home after a social outing, MI told him that she had been out with the applicant at a number of places and he was ‘fingering’ her without her consent. She also told HL after she got home that the applicant had become aggressive and done things sexually to her in the taxi that she could not say no to. And the morning after the alleged rape, MI sent a message to GR that the applicant got very sexual with her and would not stop fingering her a lot and badly.
The applicant did not give evidence. In his record of interview, however, the applicant told police that MI grabbed his hand and put it down her pants. The applicant said he remembered MI kissing him, putting her hand down his pants and grabbing his hand. He said he did ‘go towards down there’, but then, while kissing ‘and all that’, he said, ‘that’s it, that’s enough’. When police put to the applicant that MI had said that he digitally penetrated her whilst in the taxi; was telling her he wanted to ‘eat’ her; and was trying to make her perform oral sex, by grabbing her head and trying to force it onto his penis (which was out of his pants); the applicant suggested that the complainant was the one who initiated sexual activity, not him. And when police suggested to the applicant that the footage showed him digitally penetrating the complainant in the back of the taxi, and that he was pulling her legs apart, he said, ‘seriously, I do not recall that’. Hence, the record of interview contained (among others) the following questions and answers:[9]
[9]An edited version of the record of interview, which was audio and video recorded, was tendered as Exhibit AO. During deliberations, the jury was also provided with a transcript of the interview as an aid. In her Charge, the judge directed the jury that ‘[t]he evidence is the recording of the record of interview, not what is in the typed version’.
Q134Then what happened?
A We caught a cab.
Q135Yeah.
AAt the time I caught a cab and – I’m just trying to – I can’t say each event that happened. I can just say ---
…
Q140Yeah.
AI know that she came over and kissed me.
Q 141 Yeah.
ALike, I was behind – I can’t remember. I think I was behind the driver. I can’t remember now. And I was intoxicated so she kissed me and I said, ‘Look, you’re too young, mate, you know, and plus I’ve got a partner and everything else’. And I don’t know I feel – I felt bad even doing that ‘cause she’s 20 – she told me after she was 22, 23 I’m not sure.
Q142Yeah.
AAnd that’s it. There was a – you know, while she was kissing me she did put her hands down my pants.
Q143Mm’hm.
AAnd – yeah, it’s – but there’s a guilt thing there. Do you know what I mean? So I – it got to a point where we all stopped and say, ‘Look, come on we’ve got to stop. You’re too young. We’re both pissed’, right?
Q144Mm’hm.
AAnd that’s what I know of. That’s what I can really be honest. I remember her saying to me – ‘cause I caught an Uber and I said, ‘I have to get home first.’ I feel bad, you know, all – I felt like I was played. …
…
Q339Mm.
A--- but that’s why, you know, I a hundred per cent remember her kissing me, putting her hand down me pants ---
Q340Mm’hm.
A--- and grabbed my hand – and I did, I went – I – I – I – I did go towards down there and I think maybe – I dunno – and then while kissing and all that, I said, ‘That’s it, that’s enough’.
Q341Yep.
A‘Cause she kept saying to me, ‘Oh, drop me off in’ – oh, I’ve .......... I dunno, I just – she wanted to get dropped off first ‘cause she wanted to pick up some – something, I assume – I dunno, but I was really intoxicated, I just wanted to get home ---
Q342Yep.
A--- do you know? So and amongst that time she kept saying that – ‘cause she goes, ‘Oh, Brunswick’s down the road’. And I said, ‘I don’t care, I’m paying ---’
Q343Yeah.
A‘--- it. I need to get home.’ I wasn’t supposed to be out. And just the whole thing got out – got out of control.
Q344Yeah.
ASo I got dropped off at first.
Q345Yep.
AAnd then she left.
Charge 4: How the prosecution and defence put the cases
In her final address to the jury, the prosecutor argued that the CCTV footage from the taxi supports MI’s version of events on charge 4. She suggested that the applicant could be seen in the footage to put his hand straight down MI’s pants, and then push it in further. It was at that point, the prosecutor contended, that the penetration founding charge 4 occurred. The prosecutor argued that if the jury accepted MI’s evidence, they would have no difficulty in finding that she was not consenting to sexual penetration, and that the applicant had no reasonable belief that she was consenting. Further, the prosecutor submitted that the evidence shows that MI said ‘no’, and the applicant knew that she was not consenting, but did not care, and just went ahead anyway.
By way of contrast, senior counsel for the defence argued that the CCTV footage does not show the applicant place his hand down MI’s pants and penetrate her vagina as alleged. He submitted further that the jury could not accept MI’s evidence when she said that he did. Counsel argued that the mechanics of such an action are difficult to undertake. He submitted that the version that MI gave to DR after the events was the most accurate version; that is, that the applicant was trying to put his hand down her pants and was trying to finger her. Counsel argued that the jury could not be satisfied beyond reasonable doubt on the evidence that the applicant did more than that and actually penetrated the complainant’s vagina.
Further, defence counsel argued that MI had agreed that she was willing to permit a certain level of touching in the taxi, as she was trying to keep the peace and end the night on good terms. She had been willing to kiss the applicant and touch him, and let him touch her on the outside of her clothing, and that is what the applicant did. Counsel pointed to the CCTV footage where MI is seen to move her leg as exemplifying this consent, albeit that MI had drawn the line at oral sex and penetrative sex (which did not occur).
Charge 5: The evidence
Charge 5, it will be remembered, relates to an incident in which the applicant was alleged to have inserted his finger into the complainant’s anus during the taxi ride from Lygon Street. The essential dispute was whether the applicant did or did not penetrate MI’s anus with his finger. It was the prosecution case that he did, and the defence case that he did not.
MI’s evidence-in-chief was that, immediately after the applicant took his fingers out of her vagina, he put his hand around her back and onto her ‘arse’ and put a finger inside her ‘bum’. She said that the applicant had his hand under her underwear, in her pants, on her arse, and then inside her arse.[10] The complainant said that his finger was inside her bum poking and moving around. She said that it felt like his finger was in her bum for about 30 seconds. And as we have mentioned, MI agreed that, to her memory, neither the clasp nor the zip on her pants was undone. She maintained, however, that the applicant’s hand came around the back, went down to her bottom, and inside her bottom.
[10]See [24] above.
In cross-examination, it was put to MI that at no stage did the applicant put his hand down the back of her trousers and into her bottom, or leave his finger in her bottom for 30 seconds. She disagreed.
Exhibit A, the CCTV footage from the taxi was also very significant to charge 5, and the complaint evidence referred to above[11] was also relevant to charge 5.
[11]See [29] above.
In his record of interview, police did not specifically ask the applicant about any alleged digital-anal penetration. He did maintain throughout the interview, however, that there was no penetration. According to the applicant, only three things occurred during the second taxi ride: MI kissed him; MI put her hand in his pants; and MI put his hand in her pants.
As to lack of consent, MI gave evidence that she did not agree to the applicant putting his finger inside her ‘bum’. And in relation to the applicant’s alleged lack of reasonable belief in consent, MI gave evidence that the applicant did not say anything before he put his hand down the back of her pants and inside her bum. She gave evidence that, whilst in the taxi, the applicant was intoxicated, aggressive and assertive while he was doing things to her, and that he was in charge and aggressive and careless. MI conceded that she had not tried to remove the applicant’s hand when it was down her pants. Given what had transpired, she did not think that it would help to try and remove his hand.
Charge 5: How the prosecution and defence put the cases
In her arguments to the jury, the prosecutor submitted once more that the CCTV footage supported MI’s evidence that the applicant placed his hand down the back of her pants and penetrated her anus with his finger. The prosecutor suggested that the point at which this event occurred could be seen in the CCTV footage at time stamp ‘22.19.40’, when the applicant had one hand behind MI and one in front, and MI sat up and adjusted her clothing. As to the alleged difficulty of the applicant getting his hand inside MI’s pants, the prosecutor pointed to CCTV footage at the Men’s Gallery which, she suggested, showed that it was easy for the applicant to put his hands down the complainant’s pants. The prosecutor submitted that one could also see in the CCTV footage from the taxi that the applicant put his hand down MI’s pants on more than one occasion. The prosecutor argued that the jury could accept MI’s evidence as supported by the CCTV footage, and could be satisfied beyond reasonable doubt that the applicant did penetrate MI’s anus with his finger.
On the other hand, in his address to the jury, senior counsel for the defence disputed that in the CCTV footage one could see the applicant place his hand down the back of MI’s pants and penetrate her anus. He submitted that the prosecution’s interpretation of the footage was not a correct interpretation. Counsel argued that the mechanics of getting the hand down the back of the pants and the finger in the anus and moving it around for 30 seconds were difficult when seated in a taxi and wearing the kind of pants that MI was wearing. As we have said, senior counsel also submitted that the version which MI gave to DR after the events was the most accurate version; that is that the applicant was trying to put his hand down the complainant’s pants, and was trying to finger her. He argued that the jury could not be satisfied beyond reasonable doubt on the evidence that the applicant actually did more than tried to finger MI, and penetrated her anus.
The applicant’s submissions with respect to conviction
In this Court, counsel for the applicant submitted that the verdicts of the jury on charges 4 and 5 were unreasonable or cannot be supported having regard to the evidence because:
· first, the verdicts cannot stand together with the verdicts of acquittal on charges 1 to 3;[12] and,
· secondly, on charge 5, CCTV footage from the taxi demonstrates that the allegation that the applicant sexually penetrated the complainant’s anus ‘was highly improbable, if not almost impossible’.[13]
[12]Counsel cited R v Wilkes (1948) 77 CLR 511, 517–8 (Dixon J) and MacKenzie v The Queen (1996) 190 CLR 348, 365–8 (Gaudron, Gummow and Kirby JJ).
[13]Counsel cited M v The Queen (1994) 181 CLR 487, 494; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 96 ALJR 728; Coughlan v The Queen (2020) 267 CLR 654; Fennell v The Queen (2019) 93 ALJR 1219; Irwin v The Queen (2018) 262 CLR 626; Miller v The Queen (2016) 259 CLR 380; R v Baden-Clay (2016) 258 CLR 308; SKA v The Queen (2011) 243 CLR 400; R v Hillier (2007) 228 CLR 618; MFA v The Queen (2002) 213 CLR 606; De Gruchy v The Queen (2002) 211 CLR 85; Gipp v The Queen (1998) 194 CLR 106; and Jones v The Queen (1997) 191 CLR 439.
The applicant’s counsel attacked the quality of the evidence rather than its sufficiency. On charges 1 to 5, counsel submitted, the prosecution case depended on the complainant’s evidence. On charges 4 and 5, counsel submitted that, beyond the complainant’s evidence, there was an absence of other evidence that advanced the prosecution case. The CCTV footage from the taxi did not do so. Moreover, the applicant’s defence to charges 4 and 5 was the same as his defence to charges 1 to 3; that is, the evidence in the prosecution case did not establish to the criminal standard that the applicant sexually touched (charge 1) or sexually penetrated (charges 2 to 5) the complainant. Counsel contended that the quality of the evidence on charges 4 and 5 was no better than the quality of the evidence on charges 1 to 3.
Furthermore, counsel for the applicant submitted that a jury question about where the allegation informing charge 1 was said on the prosecution case to have occurred pointed to the jury doubting the complainant’s evidence relating to that charge, in circumstances where her evidence was not supported by the Safe City CCTV footage (which had captured the movements of the complainant and the applicant).[14] Additionally, the verdicts on charges 1 to 3 pointed to the jury doubting the complainant’s evidence relating to those charges. Counsel submitted that any doubts about the reliability of the complainant’s evidence relating to the allegations that gave rise to charges 1 to 3 were relevant to the assessment of her evidence relating to the allegations that gave rise to charges 4 and 5.
[14]During the course of deliberations, the jury asked a question whether charge 1 ‘related to any time on the street between leaving Men’s Gallery through to getting into the first taxi or any time on 13 July [2021] or any time prior to existing the Men’s Gallery’. In response, the judge told the jury that the charge ‘relates to the incident which [MI] alleges occurred in the street in the period between leaving the Men’s Gallery and getting into the first taxi’.
With respect to charge 4, counsel argued that the CCTV footage from the taxi did not demonstrate that the applicant digitally penetrated the complainant’s vagina; and in relation to charge 5 specifically, counsel contended that the CCTV footage from the taxi positively foreclosed a conclusion that the applicant sexually penetrated the complainant’s anus.
The respondent’s submissions on conviction
In oral and written submissions, the respondent’s counsel submitted that the sequence of events was relevant to an assessment of whether the impugned verdicts were unreasonable or incapable of being supported by the evidence. Hence, the conduct founding the charges comprised four distinct episodes: first, during a walk from the Men’s Gallery (charge 1 – sexual assault); secondly, during a taxi ride to the restaurant in Carlton (charge 2 – rape); thirdly, on a park bench in Carlton (charge 3 – rape); and, fourthly, during the final taxi ride (charges 4, 5, 6 and 7 – rape and other charges).
We pause to note that, so far as the CCTV footage from the taxi is concerned, counsel for the respondent had initially advanced in writing the untenable submission that this Court should not view the footage (citing Pell[15] in supposed support of that contention), notwithstanding the fact that the footage formed a significant part of the evidence before the jury, and notwithstanding that the applicant’s case was that the footage rendered the alleged anal penetration ‘almost impossible’.[16] Upon the hearing in this Court, however, counsel for the respondent quite properly abandoned any reliance on that argument.[17] The Court viewed the footage.
[15]Pell v The Queen (2020) 268 CLR 123, 144 [36] (‘Pell’).
[16]Counsel had contended that, unless the CCTV footage is said to demonstrate that the conduct founding charge 5 was impossible, there is no merit in this Court viewing the CCTV footage for itself.
[17]Counsel who appeared for the respondent in this Court had not authored the written submissions.
Addressing what had been captured on video in the taxi, the respondent’s counsel conceded in writing that ‘the CCTV footage does not corroborate the allegation of digital-anal penetration (charge 5)’. Counsel argued, however, that although the CCTV footage does not display actual penetration, it does show the applicant’s right hand behind the complainant while she is sitting forward. There was thus opportunity for the conduct to have occurred. Awkwardness or difficulty in reconciling the CCTV footage with the complainant’s evidence was a matter for the jury.
In any event, counsel for the respondent contended that the CCTV footage of the second taxi ride was not the only evidence supporting charge 5. The complainant gave evidence, which, apart from the CCTV footage, was supported by evidence of distress and bolstered by evidence of complaint. Having had the advantage of observing the complainant’s and other witnesses’ evidence first-hand, coupled with the opportunity of viewing the CCTV footage, the jury’s verdicts clearly were open.
Discussion and analysis: Conviction
The applicant’s sole ground of appeal against conviction is based on s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), which provides that this Court must allow an appeal against conviction, if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. M sets out the test to be applied under that statutory limb: ‘the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[18] Thus, to succeed on the ground, the applicant must establish that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on charge 4 or charge 5.[19]
[18]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’).
[19]M, 492–3; SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ) (‘SKA’); Pell, 147 [45]–[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
During oral argument, senior counsel for the applicant agreed that, in the context of this case, the question for the Court is whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant penetrated the complainant’s vagina (charge 4) or anus (charge 5) with a finger (or fingers). The issue therefore is a narrow one, consent and reasonable belief in consent not being contested issues.
In our view, it was well open to the jury to be satisfied on charge 4 that the applicant penetrated MI’s vagina with his finger; and, on charge 5, that he penetrated her anus in the same fashion.
As we have said, relying on MacKenzie,[20] counsel for the applicant submitted that the verdicts of the jury on charges 4 and 5 were unreasonable or cannot be supported having regard to the evidence because they were inconsistent with the verdicts of acquittal on charges 1 to 3.
[20]MacKenzie v The Queen (1996) 190 CLR 348 (Gaudron, Gummow and Kirby JJ) (‘MacKenzie’).
We do not accept that submission.
Where it is asserted that inconsistency arises in jury verdicts upon different charges on an indictment, the test to be applied is one of logic and reasonableness.[21] When it is contended that a jury’s verdict is ‘unreasonable’ because it is inconsistent with other verdicts, the relevant test for the purposes of s 276(1)(a) of the CPA remains one of unreasonableness.[22]
[21]Ibid 366.
[22]MFA v The Queen (2002) 213 CLR 606, 618 [36] (Gleeson CJ, Hayne and Callinan JJ) (‘MFA’).
Given that the CCTV footage from the taxi did not show the actual penetration founding charges 4 and 5 — as opposed to opportunity — it is clear that the verdicts on those charges must have turned on the credibility and reliability of the complainant’s evidence. Counsel for the applicant in effect contended that the verdicts of not guilty on charges 1, 2 and 3, must indicate, however, that the jury were not satisfied of the credibility and reliability of MI’s evidence on those charges. That dissatisfaction with the credibility and reliability of her evidence should have carried across to the jury’s consideration of charges 4 and 5, and should have led the jury to entertain a reasonable doubt about the applicant’s guilt on those charges.
In oral argument, counsel for the respondent referred the Court to a passage from MFA. That was also a case in which it was contended that certain jury verdicts were inconsistent. In that case, the appellant had been charged with nine sex offences against a male youth. The sexual acts to which the nine counts related were alleged to have occurred on four separate occasions. At trial, a jury acquitted the appellant on seven counts on the indictment, but convicted him of two charges relating to a single occasion. The appellant appealed against conviction on the ground that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence and to the verdicts of not guilty on the other counts. In dismissing the appeal, Gleeson CJ, Hayne and Callinan JJ made a number of observations that are apposite to the present case:[23]
Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, … every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. ...
[23]Ibid 617 [34].
That passage is instructive in the present case. It must be borne steadily in mind that a verdict of not guilty on one or other of charges 1, 2 or 3 does not necessarily indicate any overall lack of confidence in the complainant’s evidence, or signify that the complainant generally was disbelieved. Verdicts of not guilty on charges 1, 2 and 3 may simply be an indication that a juror or jurors required supporting evidence before being prepared to convict on the evidence of the complainant; so that, even though a juror (or jurors) might have considered it to be probable that the complainant’s evidence was truthful and accurate, that juror (or jurors) might have required something additional before being able to reach a conclusion on a disputed issue beyond reasonable doubt.
Factors that might have made jurors cautious about reaching a conclusion beyond reasonable doubt in relation to the disputed fact of penetration might have included that the complainant showed uncertainty on some matters of detail; that she was shown to have a faulty recollection of some matters; and that she appeared to be more reliable about some parts of her evidence than about others. It will be remembered in that regard that — quite apart from what could be observed of her demeanour in various pieces of CCTV footage that were before the jury — the complainant was, on her own evidence, intoxicated by alcohol during much of the time that she was in the applicant’s company, so much probably impinging upon the jury’s assessment of the reliability of aspects of her evidence.
In our view, the contention that the verdicts of guilty in the present case are an affront to logic and reasonableness — given the jury’s acquittal of the applicant on charges 1, 2 and 3 — is unsustainable. As to that, it is significant that the CCTV footage in Lonsdale Street, which showed some of the interaction between the applicant and complainant, at a time proximate to the alleged incident founding charge 1, did not distinctly capture any conduct that would establish the charge (albeit that it did not necessarily establish that the conduct had not at some point occurred), and none of the interaction between the applicant and complainant in the first taxi ride, or in the park, was the subject of any specific supporting evidence whatsoever.[24] By way of contrast, the complainant’s evidence on charges 4 and 5 was in some important respects supported by the CCTV footage of the second taxi trip.
[24]In so observing, we do not ignore the potential for the complainant’s observed distress to be independent supporting evidence of a general nature.
Counsel for the applicant contended that the CCTV footage from the taxi showed that there was consensual physical contact between the applicant and the complainant during the trip to Templestowe. The complainant’s evidence that sexual contact was non-consensual, counsel submitted, was not accurate. By way of example, counsel argued that the footage showed that, at different times, the complainant kissed the applicant and allowed herself to be touched.
An objective viewing of the CCTV footage reveals that these latter two propositions appear to be true. The footage also depicts, however, a significant amount of physical contact by the applicant which quite clearly was not consented to by the complainant, including showing the complainant more than once removing the applicant’s hand away from her genital region.
But more importantly — given the narrow disputed issue of fact that the jury had to determine — the footage clearly demonstrates that there was ample opportunity for the applicant to have penetrated the complainant in the manner alleged. Relevantly to charge 4, at different times the video appears to show the applicant’s hand inside the front of MI’s pants — despite the suggestion by the applicant’s counsel that getting a hand in her pants would have been difficult (if not impossible). And, relevant to charge 5, the footage shows the applicant leaning across the seat towards the complainant with his right hand and arm behind her back, low down in the region of her buttocks. In that regard, we would specifically reject the contention that the footage foreclosed a conclusion that the applicant penetrated the complainant’s anus with his finger. To our observation, given the positions in which the two were situated, such a manoeuvre would not have been impossible (or necessarily particularly difficult).
In our view, the jury may well have considered that the CCTV footage from the taxi materially supported the credibility and reliability of the complainant’s evidence on the critical disputed facts. (Indeed, the jury may well have considered that the footage resolved any hesitation they had in unequivocally accepting the complainant’s evidence, such hesitation having been engendered by her state of intoxication.) It was open to them to do so, and to find beyond reasonable doubt that the applicant had penetrated the complainant in the manner alleged.
For these reasons, the applicant has failed to persuade us that the verdicts returned by the jury are an affront to logic or reasonableness, or otherwise cannot be supported by the evidence. The proposed ground of appeal against conviction must fail.
The application for leave to appeal against sentence
Turning to the application for leave to appeal against sentence, on 23 August 2023 the trial judge sentenced the applicant, now aged 59 years,[25] to a total effective sentence of nine years and nine months’ imprisonment, with a non-parole period of six years and three months, in accordance with the following table:
[25]His date of birth is 27 August 1965.
Charge Offence Maximum Sentence Cumulation 4 Rape 25 years 7 years and
6 monthsBase 5 Rape 25 years 7 years and
6 months1 year and
6 months6 Sexual assault by compelling sexual touching 10 years 2 years 3 months 7 Assault with intent to commit a sexual offence 15 years 3 years and
3 months6 months Total Effective Sentence: 9 years and 9 months Non-Parole Period: 6 years and 3 months Other relevant orders: Pursuant to Part 2A of the Sentencing Act 1991, sentenced as a serious sexual offender on charges 6 and 7
The submissions of the parties in this Court
In contending that the individual sentences imposed on each charge, and the orders for cumulation, were manifestly excessive and resulted in a total effective sentence that is too great and lies outside the permissible range of dispositions open to the trial judge, counsel for the applicant (in summary) relied upon the following factors:
· first, the gravity of the rape offences (charges 4 and 5) fell ‘somewhere between the low and middle of the range of objective seriousness for such offences’, in circumstances where ‘they were of relatively short duration’ and there was an absence of a number of features which would usually be aggravating;[26]
· secondly, the applicant had no prior convictions;[27]
· thirdly, imprisonment will be more burdensome for the applicant as a consequence of his physical and mental health issues as well as the response to the COVID-19 pandemic;[28]
· fourthly, the delay of two years between the applicant’s police interview (12 August 2021) and sentencing (23 August 2023);[29]
· fifthly, the applicant had made ‘significant steps towards rehabilitation’ and had ‘very good prospects for rehabilitation’,[30] such that community protection was ‘best served by [him] continuing on that path of rehabilitation rather than through prolonging the period [he spends] in custody’;[31]
· sixthly, rape covers such a wide spectrum of criminal liability as to make the notional ‘mid-range’ very difficult to identify, so that the standard sentence applicable to charges 4 and 5 was an intangible concept that did not fall to be given too much weight in the sentencing exercise;[32]
· seventhly, the principle of parsimony; and
· eighthly, the principle of totality was important, given that there was a factual interrelationship between the offences arising from their temporal link, each offence having been committed within a period of about 20 minutes.
[26]Reasons for Sentence, [23].
[27]Ibid [25].
[28]Ibid [45]–[47].
[29]Ibid [53]–[57].
[30]Ibid [56]–[57].
[31]Ibid [66].
[32]McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).
Counsel for the respondent submitted that, given the individual sentences were imposed following a trial, they were unremarkable. The sentences imposed for rape (charges 4 and 5) equated to 30 per cent of the available maximum, and those imposed on charges 6 and 7 represented approximately 20 per cent of the available maximum. Moreover, the orders for cumulation were ‘modest’, and did not result in a manifestly excessive total effective sentence.
The judge’s reasons for sentence
The judge’s reasons for sentence were careful and thorough.
Having noted the impact of the offending on the complainant as revealed by her victim impact statement, the judge turned to the gravity of the offending. She then cited a passage from Mokhtari,[33] and, having noted that ‘there were many aggravating features which were not present in this case’, noted two that were: first, the applicant’s insistence that MI not be dropped off by the taxi first, placed the complainant in a position where she could not escape from the applicant’s conduct; and, secondly, the offending conduct commenced shortly into the taxi ride and continued despite the complainant indicating both verbally and physically that she was not consenting.[34]
[33]DPP v Mokhtari [2020] VSCA 161.
[34]Reasons for Sentence, [22].
With respect to the charges of rape, the judge expressed the view that, although each was serious, ‘they do fall somewhere between the low and middle of the range of objective seriousness for such offences’[35] (later observing that on those charges ‘a sentence lower than the standard sentence is appropriate’).[36] By way of contrast, the judge considered the conduct constituting charges 6 and 7 ‘was of a higher level of objective seriousness for offences of that type’, the conduct on charge 7 being ‘particularly serious’.[37]
[35]Ibid [23].
[36]Ibid [67].
[37]Ibid [24].
The judge noted that, at age 57, the applicant had no prior convictions and no subsequent offending;[38] and, having set out in some detail the applicant’s personal and employment history,[39] noted that until approximately 2016 the applicant’s life was progressing in a very positive manner.[40] Between February 2021 and 13 July 2021, however, the applicant’s life ‘spiralled’, in the context of underlying mental health issues, isolation from his support network and over-reliance on alcohol, related to his wife in the intervening years being diagnosed with lymphoma (and undergoing aggressive treatment); discovering that his wife was having an affair (and divorce proceedings commencing); losing his father; and his business coming to a ‘standstill’ due to the pandemic. The applicant drank heavily, and sought treatment for anxiety and depression.[41]
[38]Ibid [25].
[39]Ibid [26]–[32].
[40]Ibid [32].
[41]Ibid [33].
With respect to the applicant’s physical health, the judge noted that various reports that she had received showed that the applicant suffers from mild coronary heart disease; poorly controlled type 2 diabetes; high cholesterol; sleep apnoea; episodic asthma; and anxiety and depression, for all of which he needs to receive ongoing treatment and medication.[42] And as to the applicant’s mental health, the judge noted that three reports that she had received from psychologists revealed that the applicant presented with symptoms consistent with major depressive disorder and anxiety; had developed an adjustment disorder with depressed mood; and had also developed clinically significant symptoms of depression due to a maladaptive reaction to his life stressors.[43] Ultimately, the judge concluded that the applicant’s physical and mental health issues (and the remaining limited restrictions in custody due to COVID-19) in combination meant that the applicant would find his time in custody ‘more burdensome than someone without those same issues’.[44]
[42]Ibid [37].
[43]Ibid [38]–[44].
[44]Ibid [47].
The judge noted that the delay in finalising the charges had caused the applicant ‘ongoing anxiety’ — which was a relevant matter in mitigation of sentence — ‘the weight of this matter and the uncertain suspense as to the possible consequences hanging over [his] head since mid-2021’. Moreover, the applicant had taken significant steps towards rehabilitation in the meantime, and concluded that the applicant had ‘very good prospects for rehabilitation’.[45]
[45]Ibid [48]–[57].
Next, the judge discussed the effect of the various serious offender provisions (ss 6B(2)(a), 6D and 6E) and standard sentence regime (ss 5A(1)(b), 5A(3) and 11A), in the Sentencing Act 1991;[46] and, having referred to principles of just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community, observed that in the applicant’s case ‘the protection of the community is best served by [the applicant] continuing on that path of rehabilitation rather than through prolonging the period [he spends] in custody’.[47]
[46]Ibid [58]–[65].
[47]Ibid [66].
Finally, the judge stated that the sentence to be imposed on each of charges 4 and 5 is lower than the standard sentence for those charges. The judge said that she had considered the standard sentence as one of the factors in her instinctive synthesis of the relevant facts and principles, but, having regard to all of the matters she was required to take into account in sentencing the applicant, she was of the view that ‘a sentence lower than the standard sentence is appropriate’. She was not, however, of the view that it was in the interests of justice to impose a non-parole period of less than 60 per cent.[48]
[48]Ibid [67].
Discussion and analysis
Contrary to the submissions of the applicant’s counsel, we consider that the individual sentences on charges 6 and 7 are within the range of sentences open to the sentencing judge in the sound exercise of discretion. In particular, the offending embraced by charge 7 merited a sentence of the order imposed. The CCTV footage from the taxi shows the applicant on multiple occasions forcibly pushing the complainant’s head down towards his exposed penis. On more than one of those occasions, he is seen to place one hand behind her head, and the other over her face, using substantial force in an attempt to achieve penile-oral penetration. We agree with the sentencing judge’s characterisation of this offence as ‘particularly serious’.
Moreover, taking into account the objective factors affecting the relative seriousness of the offence of rape,[49] we agree with judge’s characterisation of the offending on charges 4 and 5 as being ‘somewhere between the low and middle of the range of objective seriousness for such offences’, albeit we would put it towards the lower end. That being so, individual sentences on charges 4 and 5 that are somewhat lower than the standard sentence of 10 years’ imprisonment — all other things being equal — may be warranted, the standard sentence being, of course, but a legislative guidepost, based purely on the objective factors that affect the relative seriousness of the relevant offence.[50]
[49]See Sentencing Act 1991, s 5A(1)(b).
[50]Brown v The Queen (2019) 59 VR 462, 464–5 [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
Although the judge’s sentencing remarks cannot be faulted, having regard to the particular circumstances of this case, approaching the issue in the manner mandated by authority, we have concluded that the individual sentences on charges 4 and 5 are manifestly excessive. It was observed in Leimonitis:[51]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument, since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long. A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate. But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.
[51]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weinberg JA agreeing) (footnotes omitted).
In the present case, although the offending was inherently serious, there were a number of mitigating factors:
(a)the conduct founding the two offences of rape occurred in the course of a single occasion, occurred close to each other in time, and each offence was of relatively short duration;
(b)the applicant did not use force over and above the force involved in the offending itself, and other aggravating features were also absent;[52]
(c)the applicant previously had been of good character until a number of factors beyond his control caused a downward spiral in his life to spiral out of control;
(d)imprisonment will be more burdensome for the applicant as a consequence of his compromised physical and mental health;
(e)there was a delay of two years between the applicant’s police interview and sentencing which caused the applicant ongoing anxiety; and
(f)the applicant has ‘very good prospects for rehabilitation’.
In these circumstances, we have concluded that the sentences imposed by the judge on charges 4 and 5 are beyond the range of those open to the judge in the sound exercise of the sentencing discretion.
[52]We do not quibble with the two matters that the judge identified as going in aggravation. See [83] above.
In the result, we would set the sentences on those charges aside. In lieu, endeavouring to synthesise the circumstances of those offences and those of the applicant, and paying due regard to the factors going in aggravation and in mitigation, we would impose individual sentences of four years and six months’ imprisonment on each of those charges.
As we have also indicated, however, we are not persuaded that the sentences on charges 6 and 7 are infected by error, so that they should be confirmed.
Attempting to accommodate the principle of totality in the resentencing exercise, we would make orders for cumulation that differ from those of the sentencing judge, so as to arrive at a total effective sentence of six years and six months’ imprisonment, upon which we would fix a non-parole period of four years. In fixing the individual sentence on charges 4 and 5, and arriving at the orders for cumulation, we have had regard to ss 6D and 6E of the Sentencing Act 1991. Furthermore, in fixing the non-parole period we have had regard to s 11A(4)(c) of the Act.
It is convenient to reflect our overall intention in the following table:
Charge Offence Sentence Cumulation 4 Rape 4 years and
6 monthsBase 5 Rape 4 years and
6 months9 months 6 Sexual assault by compelling sexual touching 2 years 3 months 7 Assault with intent to commit a sexual offence 3 years and
3 months12 months Total Effective Sentence: 6 years and 6 months Non-Parole Period: 4 years Other relevant orders: Pursuant to Part 2A of the Sentencing Act 1991, sentenced as a serious sexual offender on charges 6 and 7
We would make orders granting the applicant leave to appeal against sentence; allowing the appeal; and resentencing the appellant in the manner set out above.
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