R v French

[2005] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 248 of 2002

THE QUEEN

v.

RICKY JOHN NORMAN FRENCH

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2005
DATE OF JUDGMENT:	3 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 4

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Criminal law - Sentence - Rape and causing injury intentionally - Prior conviction for rape in similar circumstances - Six years and four months' imprisonment with minimum term of four years and 10 months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
The Applicant in person

WINNEKE, P. (for the Court):

1. The applicant, Ricky John Norman French, has applied to this Court for leave to appeal against a sentence imposed upon him in the County Court of six years and four months, the non-parole period fixed being four years and ten months.  The applicant had been charged with two counts arising out of the one incident, which involved domestic circumstances.  The two counts were, first, a count of causing injury intentionally to his de facto partner and the second count, the more serious one, of rape of the de facto.  The trial judge imposed a sentence of 15 months for causing injury intentionally and five years and six months for the rape, which was count 2.  His Honour directed that ten months of the sentence imposed on the first count be cumulated upon the sentence imposed on the second count, making therefore a total effective sentence of six years and four months, and his Honour fixed a non-parole period of four years and ten months. 

1. The applicant applied to a single judge of this Court for leave to appeal pursuant to s.582 of the Crimes Act and the single judge refused that application, albeit that he told Mr French that he was entitled to persist with his application before the Court of three judges, which he has now done.

1. We have indicated to Mr French, having regard to the difficulties that face applicants in person, something which is very pertinent to the function that we have to perform.  Our function is very different from the function of the trial judge, in the sense that this Court is a court of review, and any person who is dissatisfied with a sentence imposed by a trial judge has to satisfy this Court that the trial judge in fixing the sentence which he has imposed has made an error in the sentencing process or, alternatively, has imposed a sentence which could be seen by this Court to be manifestly excessive in all the circumstances.  It is not an easy thing to persuade this Court, as a court of review, to interfere with the exercise of a trial judge's discretion, which he is exercising when called upon to impose sentence on a person for a serious crime.

1. The crime of rape has always been regarded in this State as a very serious offence.  It is the type of offence which, in normal circumstances, is regarded as worthy of serious punishment, and that is none the less so because it happens in domestic circumstances.  In this case the complainant was living with the applicant at premises in Penshurst, and on the evening of 1 November 2002 she and the applicant attended a party at a friend's place.  The applicant consumed liquor, as did the complainant, and at about 11 p.m. it appears that the applicant, with other men, went to the Penshurst Hotel, leaving the girls behind.  The applicant's partner left the party at about midnight, feeling tired, and went home to bed.  At some stage after she had prepared herself for bed, the person who had given the party rang to say that the applicant had returned from the hotel and wanted his partner to pick him up.  The complainant, however, indicated that she was not prepared to pick the applicant up because she was already in bed.  Ultimately the applicant arrived back at the house that he shared with the complainant, in a drunken state.  The complainant was in bed and pretending to be asleep, and the applicant got undressed and got into bed and began to interfere with the pyjama top of the complainant.  Ultimately the applicant told her to stop pretending that she was asleep and indicated to her that he was going to have sex with her whether she wanted it or not.  The complainant, as was her right, resisted, saying that she had her period, and, as a consequence of that, the applicant pushed her off the bed, sat on top of her, ripped her underwear off, and ultimately, having assaulted her, raped her against her will.  He repeated the conduct over a period of time.  That was the crime of rape which constituted count 2 on the presentment, and the facts that we have recited are sufficient to indicate its seriousness, if any such indication was needed.  As we have said, this State regards that type of conduct very seriously indeed and that is reflected in Parliament's maximum sentence of 25 years.

1. The sentencing judge, in his sentencing remarks, referred to the facts to which this Court has already referred and indicated that the conduct had to be measured against the fact that the applicant had a prior conviction for a similar offence of rape in very similar circumstances, but involving another of his partners.  That offence had led to the applicant being dealt with in a fairly lenient way.  The record of the applicant shows that, at the County Court at Warrnambool on 14 June 2000, he had been convicted of rape and sentenced to be released on entering into a combined custody and treatment order for a period of 12 months, so that only six months of that sentence was required to be served in custody.  In passing sentence in this case upon the applicant, this judge was bound to take into account that prior conviction, which he did, and to regard that as a matter relevant to his sentencing discretion.  He also referred to the fact that he regarded both specific deterrence and general deterrence as relevant principles to be taken into account in fixing an appropriate sentence.

1. We have listened to Mr French and we have indicated to him the limitations upon our capacity to intervene in what we think is an appropriate sentencing disposition.  We can only do it, as I have indicated, in limited circumstances. 

1. The Court has taken the view that the sentences which his Honour imposed and to which we have referred were eminently within the range of sentences available to him in this case.  Indeed, the sentence of five-and-a-half years for rape, having regard to the prior conviction, can, we think, be regarded as fairly generous.  In all the circumstances, we do not think that either the individual sentences imposed on the two counts or the total effective sentence were outside the range of sentences available to his Honour. 

1. In the circumstances, the application must be refused.

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