R v Rose-Meyer

[1998] VSCA 86

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 128 of 1998

THE QUEEN

v

MAURICE EDWARD JOHN ROSE-MEYER

---

JUDGES:	WINNEKE, A.C.J., BROOKING and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 1998
DATE OF JUDGMENT:	15 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 86

---

Criminal Law - Sentence - Victim punched in head and twice raped after entry to home gained by trick - Cumulation appropriate - 9½ years not excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson	Fraser, Barristers & Solicitors

WINNEKE, A.C.J.:

1. I will invite Brooking, J.A. to give the first judgment in this application.

BROOKING, J.A.:

1. On 21 May 1998, after pleas of guilty, the applicant was sentenced in the County Court for two rapes and three other offences committed by him against a 26 year-old woman in the small hours of 20 July 1997. The applicant, who had been drinking both en route to and in a nightclub for about five hours before the offences, had got into her home by pretending to want to use the telephone to summon a taxi and had, when his advances had been repelled, punched her in the head. The resulting wound was found to need several stitches. After punching the victim he tore off or opened her upper clothing and then raped her orally. Later he raped her vaginally. Then, while the victim was still vomiting, he took $50 and her car keys from a handbag and drove off in her car. Before leaving he threatened her, saying that he knew where she lived and would be back to get her if she went to the police. He was sentenced to eight years' imprisonment for each rape, twelve months' imprisonment for the punch to the head (causing injury intentionally), three months for the theft of the money and six months for the theft of the car. A total effective sentence of nine-and-a-half years was reached by cumulating upon the oral rape sentence one year of the sentence for vaginal rape, three months of the sentence for causing injury and three months of the sentence for car theft. A non- parole period of six years was fixed.

2. The application for leave to appeal against sentence now contains six grounds. The first is manifest excess. The next four grounds really refer to considerations by reference to which the sentence is said to be excessive: the plea of guilty, remorse, previous good character and prospects of rehabilitation. The last ground invokes the principle of totality.

3. The judge's lengthy and careful reasons for sentence have not been criticised in any respect. They set out in detail the events of 20 July 1997, the effects of those events on the victim and the course of events in relation to the plea of guilty. They summarise the evidence led on the plea and they discuss the matters relied on by the prisoner's counsel in mitigation. I need not set out the numerous facts and matters mentioned by his Honour. Moreover, Mr Holdenson, who appeared for the applicant before us, has provided his customary helpful written outline of submissions, which is reflected in his again helpful and concise oral submission and which will serve as a sufficient record of the arguments advanced on the applicant's behalf in this Court.

4. I have read the documentary and oral evidence led on the plea and the submissions and discussion on the hearing of the plea, and I have read and re-read the judge's reasons for sentence in the light of the plea and in the light of the grounds of appeal and Mr Holdenson's submissions. Each of the matters raised in Mr Holdenson's submissions as a circumstance calling for leniency was the subject of discussion - often a good deal of discussion - on the plea and each of those matters is discussed in the judge's reasons for sentence. It is clear that his Honour gave careful consideration to the circumstances relied on in mitigation and to the need to weigh them against competing considerations. Even the matter of mercy raised by Mr Holdenson (who of course referred to R. v. Miceli (1997) 94 A.Crim.R. 327) was in terms put to the judge on the hearing of the plea, where Miceli was referred to although not identified by name. There is not the slightest reason to suppose that his Honour was not well aware of what had been said on the subject of mercy in Miceli. My own view is that while it was of course necessary to give careful consideration to all the mitigating circumstances put forward - as the judge plainly did - and while it is much to be regretted that the applicant, a man of good character, should find himself facing these serious charges as a result of a brief escapade when he was affected by drink, the present case does not stand out as one in which the consideration of mercy to the offender should play any significant role. Of course this is not to say that proper and sympathetic consideration should not be given to circumstances pointing towards leniency.

5. It was appropriate to order a degree of cumulation in respect of all the offences except the minor one of theft of money. It would have been wrong not to add something to the total effective sentence to mark the second rape and the vicious blow to the head, and it was well open to the judge to add something to mark the theft of the car. Of course it was necessary to consider carefully the proposed resulting total effective sentence to see if it was too long.

6. The sentence was undoubtedly a long one, but notwithstanding the considerations relied on before us - which were, as I have said, all put clearly to the sentencing judge - I am not persuaded that we should interfere with the sentence passed in any respect - as regards the individual sentences, or the cumulation orders and resulting total effective sentence, or the non-parole period.

WINNEKE, A.C.J.:

1. I agree.

BATT, J.A.:
9	I also agree.

WINNEKE, A.C.J.:

1. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.