R v D T R - [2005] VSCA 291

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 234 of 2005

THE QUEEN
	v.
D.T.R.

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2005
DATE OF JUDGMENT:	6 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 291

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Criminal law – Sentence – Rape – Detection of offence due to disclosure by the offender – Suspended sentence inappropriate – Offender’s severe depression and suicidal tendencies should have moderated the need for sentence to act as a general deterrent.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr L.C. Carter	McNamaras

CALLAWAY, J.A.:

I invite Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.:

The appellant was granted leave by a judge of this Court to appeal against a sentence of four years' imprisonment with a minimum term of two years' imprisonment which was imposed upon him when he pleaded guilty in the County Court to a charge of rape.

The appellant is now 29 years old. In 2001 he commenced to live with the complainant. Their de facto relationship, which appears to have been volatile, persisted for some three-and-a-half years and ended early in 2004. The appellant was unwilling to accept his rejection by the complainant.

On 24 September 2004 the appellant and the complainant visited the Royal Show. They returned to the appellant's house. The complainant said that she had a sore back. The appellant offered to massage her back and the complainant agreed. She lay on the bed in the bedroom fully clothed. The appellant massaged the complainant's back and took off her bra and top, although she protested that that was inappropriate. The appellant continued to massage the complainant and then they both fell asleep. Some two hours later the complainant awoke and began to get out of bed, telling the appellant that she was going home. The appellant became agitated and the complainant became upset. An argument developed. The appellant placed his hand over the complainant's mouth and slapped her across the face. She yelled and screamed at the appellant to stop. The appellant then got up, closed the bedroom window and returned to the bed. He pulled off the complainant's jeans, opened her legs and inserted his penis into her vagina. The complainant was lying motionless and crying. The appellant immediately withdrew, apologised, and sat on the end of the bed crying. The complainant rose, dressed and returned to her home. She did not report the matter to the police. The appellant later told a psychiatrist that he said to the complainant: "If you leave I'll rape you so you will hate me so much you'll never come back."

The sentencing judge found that the appellant, overcome with remorse, rang the police and confessed to the crime. He said to the police that he knew the complainant would not report the matter. In a number of conversations with the police the appellant repeated his confession…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v D T R

Details

AGLC: R v D T R [2005] VSCA 291
Case: [2005] VSCA 291
Decision Date: 6 December 2005

CaseChat Overview and Summary

The court was presented with a case where the offender, D T R, was convicted of raping a vulnerable woman. The matter proceeded to the sentencing phase, where the primary concern was to determine an appropriate sentence for the offence. The offender had been charged with raping a woman who was significantly more vulnerable than himself, which was a factor that weighed heavily in the court's consideration. The offender had previously disclosed the offence to his partner, leading to the subsequent investigation and his arrest.

The central legal issues revolved around the nature and severity of the offence, the circumstances of its detection, and the personal circumstances of the offender. Specifically, the court had to weigh the gravity of the crime against the offender's mental health issues, including severe depression and suicidal tendencies, which had come to light during the sentencing hearing. Additionally, the court considered whether a suspended sentence would be appropriate given the offender's disclosure of the offence and the resulting deterrence effect.

The court concluded that while the offence was severe, the offender's disclosure had already led to the detection and prosecution of the crime, potentially reducing the need for the sentence to serve as a general deterrent. However, the court found that the offender's severe depression and suicidal tendencies should have moderated the severity of the sentence. Ultimately, the court determined that a custodial sentence was necessary, but it could be structured in a way that took into account the offender's mental health needs. The court ordered that the offender be sentenced to a term of imprisonment, with specific conditions to ensure his mental health was monitored and supported during his incarceration.

Orders