Roberts v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2011 0240

PETER CHARLES ROBERTS	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NETTLE, TATE JJA and FERGUSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 October 2012
DATE OF JUDGMENT	17 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 313
JUDGMENT APPEALED FROM	DPP v Roberts (Unreported, County Court of Victoria, Judge Wischusen, 16 January 2012)

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CRIMINAL LAW – Appeal against conviction – Rape and false imprisonment – Whether verdicts unsafe and unsatisfactory – Challenge to credibility of complainant – Verdict open to jury on evidence – M v The Queen (1994) 181 CLR 487, applied.

CRIMINAL LAW – Whether judge erred in refusing to allow cross-examination of the complainant about her prior sexual abuse – Whether proper and rigorous evidentiary foundation for application for leave to cross-examine – R v ERJ (2010) A Crim R 270, applied – Criminal Procedure Act 2009, ss 338, 342, 349.

CRIMINAL LAW – Appeal against sentence – Manifest excess – Totality –Indeterminate life sentence for previous offence – Obligation of sentencing judge to fix sentence reflective of criminal culpability involved in particular offending – Effect of Sentencing Act 1991, s 5(2AA) – R v Hunter (2006) 14 VR 336, considered – Pre-sentence detention – R v Renzella [1997] 2 VR 88, Karpinski v R (2011) 32 VR 85, considered – non-parole period set at high proportion of head sentence – Kumova v R [2012] VSCA 212, considered – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Michael J Gleeson
For the Crown	Mr T Gyorffy SC with Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I agree with Tate JA.

TATE JA:

Introduction

The appellant, Peter Charles Roberts, appeals against his conviction for rape and false imprisonment on two grounds: (1) the verdicts were unsafe and unsatisfactory and (2) the judge erred in refusing to allow cross-examination of the complainant in relation to her prior sexual abuse.

He was acquitted of Charge 2 on the indictment, common assault.[1]
[1]The appellant withdrew a third ground of appeal, namely, that the guilty verdicts on Charges 1 and 3 were unreasonable and inconsistent with the verdict of not guilty on Charge 2.

The appellant also appeals against the sentence imposed on him.[2] He was sentenced in the County Court as follows:
[2]He was sentenced on 2 September 2011: The Queen v Peter Roberts (Unreported, County Court of Victoria, Judge Wischusen) ‘Sentencing remarks’. Leave to appeal against conviction and sentence was granted by Maxwell P on 29 May 2012.

Charge on Indictment Offence Maximum Sentence Cumulation

1 False imprisonment
[common law]
10 years’ imprisonment

[Crimes Act 1958
s 320]
18 months’ imprisonment 6 months

3 Rape
[Crimes Act 1958 (Vic) s 38(1)]
25 years’ imprisonment

[Crimes Act s 38(1)]
9 years’ imprisonment Base sentence

Total Effective Sentence: 9 years 6 months’ imprisonment

Non-Parole Period: 8 years

Pre-sentence Detention Declared: 974 days

6AAA Statement: N/A

Other orders:

The sentence is to be served concurrently with the parole sentence being served by the appellant.

The appellant was declared a registrable offender. Pursuant to s 34 of the Sex Offenders Registration Act 2004 the length of reporting period is 15 years.

The appeal against sentence is based on the ground of manifest excess, of which the particulars were (1) breach of the principle of totality and (2) insufficient weight was given to the appellant’s prospects of rehabilitation.[3]
[3]The appellant withdrew an additional ground based on the complaint that the judge had erroneously discerned a relationship between the current offending and the appellant’s earlier conviction for murder resulting in an excessive sentence.

Circumstances of the offending

On the evening of 8 April 2005, the complainant, who was at the time 16 years old, met a friend, Kyle, outside a tattoo shop, and they went for a walk to the park at Barngeong Reserve. She was drinking Jim Beam bourbon whisky that she had mixed with Coca Cola. She was drinking from a large Coke bottle. She had been drinking from about 8.00pm or 9.00pm. Kyle was picked up by another friend and the complainant met up with Reece. They walked together to his street so he could go to his house to get some money to buy some more alcohol. The complainant waited at the end of Reece’s street for him and then they walked up Dorset Road to the bottle shop at the Dorset Gardens hotel. She had her alcohol and he had his. The complainant was still drinking at the time, and she described herself as ‘pretty drunk’. On the way she found a small steak knife on the sidewalk, on Dorset Road. She put it in her pink Supre bag, a disposable shopping bag.

Slightly after midnight the complainant and Reece ended up at the entrance to the Dorset Gardens hotel. She had had her last drink about 10 to 15 minutes before she got to the hotel. By then she had drunk about three quarters of a 700ml bottle of Jim Beam.

The complainant was wandering around asking people for a smoke. She thought she saw someone smoking in a car coming out of the entrance. The car was being driven by the appellant. The complainant asked the appellant if he had a cigarette. The appellant said he did not smoke but would buy her a packet. She smoked Peter Jackson extra mild cigarettes. The complainant got in the car.

The complainant gave evidence that she placed the bag, with the knife inside, at her feet after entering the car. She remembered the appellant driving across the street to a petrol station and entering it to purchase cigarettes, although she said she ‘may have been in the car for longer than that and we could have gone to another local service station’. Her intoxication made it difficult for her to be sure of the precise location, but she said it was ‘definitely Caltex’. She later said she saw a Caltex sign which had a Safeway sign below it. After coming back to the car, getting in to the driver’s seat and giving her the cigarettes, the appellant produced a knife and held it to her chest. She recognised the knife as the knife that she had picked up earlier and put in her bag.

The appellant then drove the complainant to what she thought was a car park within a petrol station less than a minute away. In her statement to police she initially described the location as a ‘parking bay’ but at trial described it as a car park area close to a shed or car wash that was hidden away near a fence.

According to the complainant, the appellant came over to the passenger side of the vehicle, pulled the complainant’s underwear to the side and forcibly penetrated her vagina with his penis. The appellant was on top of the complainant in the passenger seat. He was moving back and forth. She was crying and asked him why he was doing it. ‘She said ‘why me’? The appellant did not reply. She was petrified because of the knife at her chest. She said that the knife was not at her chest the whole time. The appellant put it down but if she went to say something he would pick it up and put it back to her chest. He told her to shut up and she said he slapped her across the face several times.[4]
[4]The slapping constituted Charge 2, common assault. As mentioned above, the appellant was acquitted in respect of that charge.

Eventually the appellant stopped. She did not think there was any ejaculation. She did not think he was wearing a condom. The complainant was crying and saying ‘Please don’t kill me’. The appellant said he would not hurt her if she did not speak to the police. He drove the car to what the complainant described as a factory gate and told her to get out of the car, walk to the fence of the factory and not to look back, which the complainant did. The appellant then drove off.

After leaving the appellant’s car, the complainant walked to the main road until she arrived at a location she recognised, the Kilsyth Club. She saw two males approaching a car and wearing security numbers, so she approached them. They were Andrew Franklin (manager of the club) and Steven Bover-Groen (security guard). She ‘sort of told them what happened’. They asked if she wanted to go home or to the police. She asked to go to the police.

At the police station, the complainant made a statement and at about 6.00am she was forensically examined by Dr Phyllis Yen-Hui Fu at the South Eastern Centre Against Sexual Abuse (CASA). Dr Fu took the formal forensic samples from the underwear, the drop sheet,[5] two high vaginal swabs, two vaginal slides and two buccal swabs[6] for comparison DNA. A high vaginal swab revealed the presence of sperm containing DNA that was conceded at trial to be the appellant’s.
[5]The drop sheet was a big square piece of brown paper that was put underneath the complainant at the time of the forensic examination.
[6]That is, from the mouth.

The complainant had had an abortion a month earlier and had been told by her doctor that she ought not have penile-vaginal sex.

At the time of the offending the appellant was 49 years old[7] and on parole for murder.[8]
[7]The appellant was born on 15 January 1956: Sentencing remarks, [20].
[8]Sentencing remarks, [49].

The trial

The appellant did not give evidence at the trial and made no admissions when interviewed by police. No record of interview was placed before the jury.

In cross-examination, defence counsel asked the complainant whether consensual sexual activity of a different kind had occurred with the appellant on the night in question, with an overture by the complainant of the following kind:

You say to him through the open window, something to – words to the effect of ‘hey good looking, would you like to come to my place, spend the night and have some fun’? – No.
And you said it was all right, ‘it’s only just me and my mother and my two year old son?’ – No.
You say, ‘When we get there all we have to do is be quiet’? – No, I don’t have a two year old son, for the record.
…
I’m saying to you that he said to you that quote ‘get in’? – No, I don’t agree with any of this.

Defence counsel put to the complainant a description of a set of events which she suggested was the true set of events and to which she invited the complainant to respond. Those questions involved the complainant getting into the appellant’s car, the appellant turning left out of the Dorset Gardens hotel, asking the complainant for directions to her house and purchasing the cigarettes at a petrol station on the way. At the petrol station the complainant was dancing around and acting flirtatiously. She was alleged to have kissed the attendant on the cheek saying words to the effect, ‘I’m really happy’. After having got back into the car, and while the car was travelling, the complainant had allegedly rubbed the inside of the appellant’s thigh and unzipped the appellant’s pants who then ejaculated into the complainant’s hand. The complainant was asked whether she had then inserted her finger into her vagina and invited the appellant to have sex with her, saying he had to be gentle because she had a ‘little problem down there’, a reference to the fact that the complainant had been advised not to have penile-vaginal sex after having undergone an abortion a month earlier.[9] The appellant then reached over to the door and told the complainant to get out of the car. On the description of events put to the complainant, there was no knife in the car.
[9]It was also alleged that the complainant had told Reece about her abortion and the problems associated with it.

The complainant denied that this alleged alternative set of events had occurred. The complainant specifically denied that she had consented to any sexual activity with the appellant that night. She admitted in cross-examination that the effect of the alcohol was to leave her with blanks in her memory and her mind had ‘played tricks’ with her.[10]
[10]In cross-examination, the following exchange took place: ‘Do you say then that your memory on 9 April was unreliable because of the amount of alcohol you took? - No, I wouldn’t say unreliable. It was the truth to me then, but yes. Some of the stuff just – I don’t know. My mind’s played tricks with me over what has, like – what has happened. But I know what has actually happened and what …’.

An application was made to cross-examine the applicant on her prior sexual activities but this was refused.[11]
[11]This is discussed further below.

Evidence was given by Mr Franklin and Mr Bover-Groen. Mr Franklin’s account was that he and Mr Bover-Groen had been leaving the Kilsyth Club at 3.30am on April 9 when they had been approached by the complainant. He had asked the complainant what was wrong and her response was that she had been raped. She appeared shaken and intoxicated; she was unsteady on her feet and slurring her words. He could smell alcohol. Her story seemed ‘jumbled’ and he described it as a ‘very emotional scene’. There were a lot of tears, emotion, and the complainant was ‘all over the place’. She was extremely distressed and ‘some of the things she was saying I couldn’t really make out’. In response to a question of his, the complainant said she had been raped behind the factory somewhere; that she had been taken to a factory across the road from the club and held up against a factory wall at knife-point.

In cross-examination his evidence was that she said to him that she did not want to go home because her mother would be angry and kill her; ‘I think she also said it’s happened before’. It appears that this final answer had been included in Mr Franklin’s statement to the police and the judge had ruled that it was not to be adduced in evidence.[12] When this answer was given in cross-examination the judge admonished defence counsel saying that counsel had ‘got from him the very answer that it was agreed at the outset of the trial we weren’t going anywhere near’ and he was ‘very disappointed’. The judge’s reference to what had been agreed at the outset would appear to be a reference to the ruling he had made refusing leave to cross-examine the complainant on previous sexual abuse.
[12]See further below, in the context of the application to cross-examine the complainant on prior sexual activity.

The complainant denied telling Mr Franklin that she had been raped against the factory wall, saying he may have misinterpreted what she said. Her evidence was that she did not recall much of the conversation with Mr Franklin because she had been drunk and because it had occurred a long time before the trial.

Mr Bover-Groen’s account was that the complainant had approached him and Mr Franklin and requested a lift home. They had told the complainant that they would be unable to take her all the way to her home. It was at this point that the complainant became very distraught and started crying. He could smell alcohol but did not believe she had been slurring her words or staggering. When he asked her what was wrong she said ‘I’ve just been raped’. She said she wanted to go home. She said that the rape happened near the factories, near Colchester Road. He had made short-hand notes while driving the complainant to the police station. He had recorded that the complainant had described the rapist as having ‘dark curly hair, goatee, six foot two, early 40’s’.[13]
[13]The complainant actually described the rapist as being about Mr Bover-Groen’s height, which he had converted into being six foot two inches in height.

Medical evidence was given by Dr Fu about her forensic examination of the complainant. The complainant gave her a clear and consistent account of the alleged offending, and did not appear intoxicated or influenced by drugs. The complainant’s genitals were not injured. In cross-examination, Dr Fu said that sperm on a high vaginal swab would normally be there as the result of penile penetration, ‘otherwise, it’s really anyone’s imagination’. She accepted that sperm inserted by a finger could result in semen being found in a high vaginal area. She stated that the swab used on the complainant could have collected semen from outside the vagina as it was being inserted into the vagina.

Evidence was also given by Senior Constable Ruth Scott, Officer Grant Harrison, Sergeant Stephen Wyatt, and Sergeant Evan Whitelaw who had each participated in different stages of the early investigation.

Senior Constable Scott had the role of caring for the victim and organising the forensic testing. She made contemporaneous notes of a conversation she had with the complainant at Croydon police station on the morning of April 9, in which she recorded that the complainant had said that the appellant had:

penetrated her three times, didn’t ejaculate. She was crying … Penis-vaginal penetration … Offence occurred in service station car park. … Offence occurred on passenger seat. She picked up a knife from the car and thought she put it in her bag but it is not there now. Black handled kitchen knife, no kissing, no condom. Offender early 40s, late 30s. Curly dark hair, maybe facial hair.

In cross-examination, she said that she believed that if the complainant had stated that the knife was hers she would have written that down.

Mr Harrison attended the scene of the rape with the complainant after her conversation with Senior Constable Scott. He spoke to the complainant and she described being driven to a service station directly opposite the Dorset Gardens hotel. He believed this to be a Safeway service station. The complainant stated to him that ‘knife was produced. And I’ve got in brackets (belonging to the victim)’. The complainant said to him that ‘the knife actually belonged to her that was produced by the offender and that she’d found it earlier that night, I believe, in a park’. He spoke to staff members at the petrol station across the road from the Dorset Hotel, and the attendant said he didn’t believe that any cigarettes had been sold within the relevant time frame that night. He did not visit other petrol stations but drove passed a Shell station that appeared to be shut.

Sergeant Wyatt gave evidence that he viewed the CCTV video taken on the morning of 9 April, both at the Dorset Gardens Hotel and the petrol station opposite, but the complainant did not feature. The petrol station opposite was co-branded Caltex and Safeway. He also checked the till roll for sales of ‘Winfield Blue’ brand cigarettes, which appears to have been based on a misconception as to the relevant brand of cigarettes, but found that no cigarettes of any kind had been sold at the petrol station opposite the hotel within the relevant time period. He checked other nearby petrol stations which were of no assistance. He believed that a 24-hour Fueline petrol station along Dorset Road was functioning but not open for business at the time of the offending. No footage or till roll was seized by the police and no statement taken from any employees of the service stations.

Sergeant Whitelaw, the informant, took over the investigation from Sergeant Wyatt. He conducted an interview with the appellant. He acknowledged that neither the complainant’s clothing nor the drop sheet had been forensically examined.

The appeal against conviction

The two grounds of appeal relied on by the appellant were expressed as follows:

1) It was not open on all the evidence for a properly instructed jury to be satisfied beyond reasonable doubt that the applicant was guilty on any charge and the verdicts are therefore unsafe and unsatisfactory;

2) That the learned sentencing judge was in error in refusing to allow cross-examination as to prior sexual abuse pursuant to ss 344-352 of the Criminal Procedure Act.

Verdicts were unsafe and unsatisfactory

The appellant submits the verdicts were unsafe and unsatisfactory. In examining this ground, an appellate court must always bear in mind the pre-

eminence of a jury verdict, as described by the High Court in M v The Queen:[14]
[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

[14](1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (footnotes omitted). See also SKA v The Queen (2011) 243 CLR 400, 408-9 [20]-[24].

The issue is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt: [15]

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, 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.

[15](1994) 181 CLR 487, 493.

This necessarily requires this Court to decide whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard. As Hayne J said in Libke v The Queen:[16]

… the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

[16](2007) 230 CLR 559, 596-7 [113] (with whom Gleeson CJ and Heydon J agreed (562 [1], 597 [117] respectively), original emphasis).

The test in M v The Queen, as applied by Maxwell P in R v Vjestica,[17] involves an appellate court in the following four steps:[18]

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

[17](2008) 182 A Crim R 350.

[18]Ibid 369 [60].

The appellant submits that the guilty verdicts on the charges of rape and false imprisonment cannot be supported because the complainant’s reliability and credibility were significantly called into question in her cross-examination. That attack on the complainant’s reliability and credibility, when taken together with the other evidence given by independent witnesses, Franklin, Bover-Goven, Scott, and Wyatt, meant that a properly instructed jury could not have convicted the appellant. In particular, the appellant relied on the following factors:

(1) the complainant’s memory was severely impaired by alcohol and the passage of time;

(2) the complainant’s credibility was called into question in denying having given different accounts as to the location where she had been raped;

(3) there was no corroboration or objective evidence to support the complainant’s description of events; and

(4) enquiries made by police on the day in question excluded the complainant’s account of going across the road to the petrol station. No knife was found; the CCTV footage was not corroborative; there was no evidence of the purchase of cigarettes from a service station; no injuries and no bruising to the face were noted; no DNA was found on any clothing and there was no analysis of the drop sheet.

(1) Intoxication

The appellant claimed that the complainant’s intoxicated state resulted in an impairment of her memory significant enough to put into doubt her entire recollection of the events. The complainant admitted that she had been ‘pretty drunk’ and that this had caused gaps in her memory. She was somewhat unclear as to where she had found the knife, first saying it was on Moorandah Highway before correcting herself and saying that she found the knife on Dorset Road. She denied the evidence of Mr Harrison that she said she had found the knife in a park and she denied the evidence of Senior Constable Scott that she had said to her that she had picked up the knife in the car. She was unable to explain how the appellant came to be in possession of the knife. Her evidence was said to be inconsistent as to whether the knife was held to her chest or her throat, raising a doubt as to whether there was a knife at all. In her statement to the police, the complainant had described her rapist as having short, dark curly hair. She did not include this feature in the description she gave at trial because she was not ‘100 per cent sure’ that it was correct due to her intoxicated state at the time of the alleged offending.

At trial the complainant was uncertain as to whether there had been any ejaculation and denied saying to Senior Constable Scott that there had been ‘nil condom, nil ejaculation’ during the rape.

However, it was open to the jury to conclude that the complainant’s evidence that she had found a knife was truthful, even if she could not remember at first the exact location where she had picked it up. The evidence of Mr Harrison was that she had said the knife was hers. Moreover, the complainant’s evidence as to precisely where on her body the appellant held the knife would have been understandable to a jury, taken in context, given that she was ‘petrified’ and screaming that she did not want the appellant to kill her. Furthermore, her evidence was not that the knife was held at her chest the whole time but rather that the appellant had put it down but if she went to say something he would pick it up and put it back to her chest. It was open to the jury to set aside the question of what the complainant said about whether ejaculation occurred given that DNA from vaginal swabs of sperm were admitted by the appellant to be his. The exact description given by the complainant of the rapist was irrelevant as the identity of the man in the car with whom some form of sexual activity took place was never in contest.

(2) Inconsistency as to location of the rape

In her statement to the police, the complainant described the rape as occurring in the front passenger seat of the appellant’s car. She gave the same account at trial. The appellant submitted that this was inconsistent with the evidence given by Mr Franklin that the complainant had described being raped against a factory wall, and inconsistent with the evidence of Mr Bover-Groen that she had been raped in the factory area near Colchester Road. At trial the complainant denied telling Mr Franklin that she had been raped against a factory wall, and denied that she had said that she had been raped in the factory area to anybody.

However, it was open to a jury to appreciate the context in which any statement made by the complainant to Mr Franklin and Mr Bover-Groen was made, namely, when she had just been dropped out of the appellant’s car near a factory gate. The explanation she gave to Mr Franklin was one in which she was in a visibly distressed and emotional state and when what she was saying was ‘jumbled’ and ‘all over the place’. When she spoke to Mr Bover-Groen she was very distraught and crying. It was open to a jury to accept the complainant’s evidence that there had been a misunderstanding as to the relevance of the factory given the circumstances in which these conversations took place.

(3) No corroboration

The complainant’s account that the appellant drove to a parking bay at the petrol station opposite the Dorset Gardens hotel was not corroborated. The attendant at that station did not recall selling any Peter Jackson brand cigarettes on the morning of 9 April, nor did a counting of the till roll suggest that a sale of any cigarettes at the relevant time had occurred.

There was no requirement that the complainant’s evidence be corroborated.[19] It was open to the jury to infer that the absence of any corroborative evidence was attributable to a failure of the police investigation to uncover the actual service station to which the appellant drove the complainant. The situation was aggravated to the failure by the police to seize any CCTV evidence or the till rolls, or to take statements from attendants at the local service stations. The complainant’s clothing was not analysed for DNA.

(4) Absence of incriminating CCTV coverage

[19]Evidence Act 2008, s 164.

The complainant’s account about the location in which the rape occurred was said to be compromised by the lack of CCTV coverage confirming that she and the appellant had been at a ‘parking bay’ at the service station opposite the Dorset Gardens Hotel. The ‘parking bay’ was within coverage of a CCTV camera. Upon being confronted with this evidence in cross-examination the complainant had expressed doubts as to the veracity of her memory and admitted the possibility that the rape had occurred at another petrol station. It was contended at trial that she had changed her story to allege that the appellant drove to a shed that was near a fence in the face of the failure to feature on the CCTV coverage.

However, the absence of evidence to locate the exact place where the crime occurred or the inability of the police to find exactly where the cigarettes had been purchased does not undermine the prosecution case. The failure of the Crown to establish those matters did not mean, and the jury would not have been entitled to infer, that the offences could not have occurred.

Was the jury bound to have entertained a doubt about the appellant’s guilt?

To satisfy the high threshold of the test laid down in M v The Queen it is not enough to point to some inconsistencies in the complainant’s account. Even significant inconsistencies thought to be the product of an impaired memory, as was the case in Papazoglou v R,[20] may be insufficient.There, the accused was charged with one count of sexual penetration with a child under 10, two counts of sexual penetration of a child aged between 10 and 16, and seven counts of indecent assault. The accused appealed against his conviction on the unsafe and unsatisfactory ground. There were numerous matters relied on in support, including the unreliability of the complainants’ evidence, multiple inconsistencies (including several prior inconsistent statements), absence of corroboration, possible collusion, contradictory evidence by defence witnesses, uncertainties, vagueness and incredulities in the complainants’ evidence. The deficiencies were identified as follows:[21]
[20](2010) 28 VR 644 (‘Papazoglou’).
[21]Ibid 656-657, [49]–[52].

(a) weakness in the complainants’ evidence, including troubling aspects of their reliability, changes in evidence, inconsistencies, prior inconsistent statements and the improbability of the behaviour alleged;
(b) the very long delay before complaint was made and the further long delay between complaint and prosecution;

(c) the possibility of collusion between the complainants;
(d) the absence of corroboration (except in relation to counts 3, 4 and 10;[22])
[22]Counts 3 and 10 were indecent assault and count 4 was sexual penetration of a child aged between 10 and 16.

(e) the appellant’s sworn evidence denying the charges;
(f) the sworn evidence of the appellant’s wife and son supporting aspects of the appellant’s case that the offences could not have occurred; and

(g) the sworn evidence of the appellant’s good character.
It was said that the matters in paras (b), (c), (d) and (g) were self-explanatory.
In support of the argument on (a), reliance was placed on what appeared in the counselling notes, which contained references by L to assaults ‘by many men — not just one’ and to her suspicions that her father might have sexually assaulted her. It was submitted that L’s evidence about the notes demonstrated that she was a poor historian. Further, it was argued that L’s reliability was undermined by her evidence that she had had paranoid thoughts, and had used marijuana. Her evidence that she had been told by Dandenong Police to ‘take matters into her own hands but not get caught ‘ was said to be ‘incredible’.
The second complainant, S, was also criticised. It was said that her evidence was ‘very vague , and that this suggested she was untruthful or unreliable. Attention was also drawn to evidence given by S that she said she had ‘visions’ or ‘flashbacks’ of the alleged abuse. The relevant evidence was:
COUNSEL: However, you have flashbacks of some of these incidents. Is that right?
WITNESS: What do you mean?
COUNSEL: Just that: flashbacks?
WITNESS: Yes.
COUNSEL: When did the flashbacks start?
WITNESS: I’ve always had visions of what happened to me those two incidents: they’re not something that came as a result of anything else. They were always there.
COUNSEL: Flashbacks?
WITNESS: And the reason I refer to them as flashbacks is because I can’t tell you for sure what happen before, prior, or after the incidents. So I remember being there, but I can’t give you all the details before and after.
Next it was pointed out that each of the complainants had changed the account she gave of when the conduct forming the basis of counts 3, 4 and 10 had occurred. The change occurred after the complainants were shown photographs of a family event. They were both challenged about this in cross-examination. It was further put that the evidence of each of the complainants on the question of collusion was entirely unsatisfactory and that the possibility of collusion could not be excluded. There were also several prior inconsistent statements, and some inconsistency between the evidence of the two complainants about the incident for which they were both said to have been present. Finally, it was said that some of the evidence given by the complainants was directly contradicted by the defence witnesses.

The Court of Appeal, in examining the multiplicity of deficiencies in the complainants’ evidence, both individually and cumulatively, held that the evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the guilt of the accused. This was because the conflict of evidence, the inconsistencies, the vagueness, the unreliability, the absence of corroboration and all the other shortfalls in the complainants’ evidence had been laid bare before the jury. There was nothing in that evidence which bound the jury to find the accused not guilty; in other words, there was nothing which precluded the jury, acting reasonably, from being satisfied of the accused’s guilt.

As Maxwell P and Coghlan AJA said:[23]

According to the Crown’s submission, the criticisms made on behalf of the appellant were matters before the jury, which they must be taken to have considered. In particular, the conflicts in evidence between the complainants and the accused were clearly exposed by the course of the evidence, as were the issues of inconsistency.
In our view, the ‘unsafe’ ground must be rejected. We have reviewed the evidence in its entirety and, in our view, it was reasonably open to the jury to be satisfied of the appellant’s guilt. The state of the evidence was not ‘such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard’.
As we have already said, this was a case which turned on the jury’s assessment of the credibility of the key witnesses — the two complainants and the appellant. There were proper bases on which the credit of the complainants could be challenged, and they were challenged on all of these matters, at length, in cross-examination. But nothing which emerged in the course of the evidence comes near to satisfying the Libke test. That is, while the jury might have had a reasonable doubt about one or more of the allegations, they were not bound to have such a doubt.

[23]Papazoglou, 657-8 [54]-[56] (citations omitted), with whose judgment Ashley JA agreed, despite some doubts, that in the end ‘it cannot be said that the jury must have entertained a reasonable doubt about the appellant’s guilt’. (661 [77]).

Inconsistencies may render a verdict unsafe where they make the account inherently improbable or, for example, where they require a jury, in light of cogent evidence to the contrary, to doubt whether an element of the offence alleged occurred.[24]
[24]R v Nous (2010) 26 VR 96, 110 [65]-[66].

Here, the weaknesses in the complainant’s account were comprehensively ventilated both in the appellant’s cross-examination of the complainant and through the cross-examination of the other witnesses. The inconsistencies were well exposed before the jury. When inconsistencies were put to the complainant during the trial, for example, the question of where the rape occurred, the complainant was steadfast in her position that the rape had occurred in the appellant’s car. Other than the answers obtained during cross-examination, no evidence was supplied to contradict the submissions of the complainant.

Furthermore, while it may be accepted that the intoxication of the complainant reduced her reliability on some of the details surrounding the offending, on the material aspects relating to the elements of rape and false imprisonment her evidence was firm. The inconsistencies alleged were largely peripheral to the offending. Under cross-examination, the complainant was resolute and unwavering that the appellant had penetrated her vaginally and that he had done so forcibly and without her consent.

The evidence the complainant gave in chief and during cross-examination left it open for the jury to accept the overall truth of her account. There was no inherent improbability in the complainant’s account. Rather, the improbability lay in the appellant’s alternative version of events as put to the complainant in cross-examination. The alternative hypothesis was entirely speculative. While Dr Fu agreed that there were alternative ways by which sperm could have been found in the complainant’s vagina, limited only to ‘anyone’s imagination’, there was no evidence to support an alternative to penile penetration. The appellant had exercised his right to silence and the hypothesis put to the complainant in cross-examination was denied. The complainant resolutely alleged penile penetration, in her statement to the police; in her clinical examination by Dr Fu; and at trial, and this was supported by the character of the swab as having been taken high in the complainant’s vagina. It was thus open to the jury to infer that the character of the penetration was penile and not digital.

It was common ground that there was no consensual penile penetration. The problem faced by the appellant was that, if the jury took the view, on the basis of the high vaginal swab and other factors, that penile penetration had taken place (as it was open to them to do), the jury could also infer, on the basis of the evidence that the complainant had been advised by her doctor not to have penile-vaginal sex following the abortion she had had a month earlier, that the penile penetration must have occurred by force. The evidence that the complainant had a problem ‘down there’ supported, and did not undermine, the complainant’s account that the appellant had forced himself upon her.

In my view, while there were unsatisfactory features of the complainant’s evidence, it was open to the jury to conclude, on the whole of the evidence, that the elements of the offence of rape and of false imprisonment had been proven beyond reasonable doubt. More importantly, there was nothing in the evidence to preclude the jury from arriving at a finding of guilt; there was nothing to say that the jury must have entertained a doubt about the appellant’s guilt.

Ground one should be rejected.

Refusal to permit cross-examination on prior sexual activities

At trial the appellant made an application, pursuant to s 342 of the Criminal Procedure Act 2009 (‘the Act’), for leave to cross-examine the complainant about three issues relating to sexual activities, first, whether the abortion on 9 March was a result of non-consensual sex; second, whether there was prior ‘similar abuse’ by another person; and third, whether there had been any prior sexual abuse that prevented the complainant from going home on 8 April 2005.[25] No leave had been sought at the committal.
[25]Although the reference in the Application for Leave to Cross-examine the Complainant pursuant to ss 344-352 of the Criminal Procedure Act, dated 18 March 2011, was to ‘the 8^th April 2005’ it was clear that the intention was to refer to the night of the incident which occurred in the early hours of 9 April.

Section 342 restricts cross-examination relating to, and evidence being adduced of, a complainant’s sexual activities, without leave. It provides:

The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court.

Section 349 provides that leave should not be granted under s 342 unless the evidence has ‘substantial relevance to a fact in issue’ and it would be in the interests of justice to allow the cross-examination or admit the evidence taking into account a multiplicity of factors, including whether the probative value of the evidence outweighs the distress and humiliation of the complainant and the right of the accused to fully answer and defend the charge. Section 349 reads:

In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to -
(a)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and
(b)the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and
(c)the need to respect the complainant's personal dignity and privacy; and
(d)the right of the accused to fully answer and defend the charge.

The Act includes guiding principles for the application of Part 8.2 ‘Witnesses’, in which ss 342 and 349 appear.[26] The guiding principles are contained in s 338:
[26]The Guiding principles are set out in Division 1 of Part 8.2 and ss 342 and 349 occur in Division 2.

It is the intention of Parliament that in interpreting and applying this Part in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly under-reported; and
(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) offenders are commonly known to their victims; and
(e) sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.

Part 8.2 was introduced by s 50 of the Criminal Procedure (Consequential and Transitional Provisions) Act 2009. It is largely based upon comparable provisions in the Evidence Act 1958[27] which had been introduced or strengthened as a result of recommendations made by the Victorian Law Reform Commission in its report, Sexual Offences: Final Report,[28] following its review of the law of sexual offences. In particular, s 349 is modelled upon s 37A of the Evidence Act.[29]
[27]In introducing Part 8.2 into the Act in 2009, the then Attorney-General Rob Hulls said: ‘Given the importance of special rules in sex offence cases and the extent to which they involve procedural laws, these provisions [of the Evidence Act] are more appropriately located with other procedural provisions in the Criminal Procedure Act’: see the Second Reading Speech of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 at Victoria, Parliamentary Debates, Legislative Assembly, 17 September 2009, 3376.
[28]July 2004 (‘Final report’). That the comparable provisions in the Evidence Act were based upon recommendations made by the Commission is apparent from the Second Reading Speech of the Crimes (Sexual Offences) Bill 2005: see Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2005, 2183 (Rob Hulls, Attorney-General). The Bill was supported by the Opposition: see Victoria, Parliamentary Debates, Legislative Assembly, 7 February 2006, 26 (Mr McIntosh).
[29]The Final report recommended strengthening the existing s 37A of the Evidence Act which, although it had restricted cross-examination of the complainant in relation to evidence of prior sexual activities, had not clearly included a restriction on cross-examination about non-consensual sexual activity and relevant cross-examination was taking place without applications for leave being made: Final report, 4.50 and 4.54, see in particular recommendations 68-73. The amended s 37A provided a model for s 349 of the Act.

The Commission’s inquiry was intended in particular to address the substantial under-reporting of sexual offences.[30] It concluded that what was contributing to this problem was a ‘widely held perception that the criminal justice system does not always deal fairly with complainants in sexual offence cases’.[31] It reported that ‘concerns about the fairness of the criminal justice system … may discourage people from giving evidence against alleged offenders at committal and trial’.[32] While acknowledging that ‘cross-examination of witnesses is an essential feature of an adversarial criminal justice system’,[33] the Commission also recognised that ‘the focus on the complainant’s behaviour and credibility during cross examination can also cause significant distress’.[34] The Commission identified several features of trials for sexual offences that made them particularly distressing for complainants, and these included the ‘traumatic effect of unnecessarily intimidating or confusing cross examination’.[35]
[30]The Commission reported that ‘people who allege that they have been sexually assaulted are the least likely of all crime victims to report the offence to the police’: Final report, p xxi.
[31]Ibid xxi.
[32]Ibid xxii.
[33]Ibid xxvii.
[34]Ibid xxvii.
[35]Ibid xxvii.

The legislative history throws light on the mischief to which Part 8.2 was directed and its provisions, including ss 349 and 352, should be construed to promote its purpose,[36] most particularly in the light of the principles guiding the interpretation and application of the Part.[37]
[36]Interpretation of Legislation Act 1984, s 35(a).
[37]Project Blue Sky v ABA (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, 649 [5] (French CJ, Bell J).

At trial, it was argued that the substantial relevance of the questioning about the abortion was (1) the issue of whether the complainant consented to any sexual activity on 9 April; (2) the reason for the nature of any sexual activity which occurred; and (3) the question of to which activity the complainant consented. The substantial relevance of the questioning about prior sexual abuse was to attack the complainant’s credit. It was contended that a line of questioning about previous sexual abuse would be likely to materially impair confidence in the reliability of the complainant’s evidence because, if it was similar to the offending of which the complainant complained, a proper challenge could be made to the reliability of the complainant’s actual memory. The application for leave with respect to the prior sexual abuse was based upon the remark made by Mr Franklin in his statement that a reason the complainant gave for not wishing to return home was that ‘it had happened before’. The abuse relied on was what had occurred at the age of eight as well as the possibly non-consensual nature of the sexual activity resulting in the subsequent pregnancy and abortion.

The judge permitted questioning in a voir dire in which the complainant denied saying to Mr Franklin that she did not want to go home because she had suffered similar abuse at the age of eight, although she accepted that she had in fact suffered some sexual abuse at that age but not at her mother’s house and it had not involved a knife. When asked whether the abuse at age eight involved penile/vagina penetration, she said:

I can’t really remember, it’s something that I haven’t really tried to remember, if that makes sense, yeah. I think it was tried, I’m not really sure.
There was an attempt you mean? – Yeah.

In making a ruling which limited the grant of leave to questions about the complainant’s medical condition, the trial judge said:

I do not think that … cross-examination exploring the detail of what happened when she was eight has substantial relevance to a fact in issue in the case, and balancing the matters I have to have regard to under s 349, the probative value as against the distress, humiliation, embarrassment she may experience as a result of the cross-examination … The risk that it may arouse in the jury emotions, generally speaking, and the need to protect her personal dignity and privacy, and the right of the accused to fully answer and defend the charge, I’m not persuaded that cross-examination as to the content of the statement she made on the night to Franklin and others is a proper matter for cross-examination when I apply that test. As to the subject of her medical condition, consequent upon the abortion, the application that’s been made seeks leave to ask a number of questions about that, namely, whether it was – whether the pregnancy which was terminated resulted from non-consensual sex, and if it was, there were three follow-up lines of questioning about reporting to police, whether it was the result of rape and who was the offender, and lastly, whether as at 8 April 2010 the complainant had any medical condition resulting from the pregnancy or its termination. I’ve concluded that the proposed line of questioning can only have relevance to what I was informed was the accused’s case here, that was that there had been sexual relations consensual, but no penile/vaginal penetration took place because the complainant had informed the accused that a medical condition prevented penile/vaginal intercourse. In that setting, in light of the evidence the complainant has given on the voir dire that she was at that time under medical advice not to engage in sexual intercourse, I propose to admit the line of questioning as to her medical condition on the day the alleged offences occurred but not otherwise. The third line of questioning … in any event, suffers the same fate as the questioning about the abuse at the age of eight.

On appeal, the appellant argued that the judge erred in refusing to allow cross-examination as to whether there was prior ‘similar abuse’ by another person and whether there had been any prior sexual abuse that prevented the complainant from going home on 9 April 2005. It was submitted that a line of questioning on those issues would have enabled the appellant to call into question the complainant’s credibility and would have allowed the appellant to suggest that she had ‘transposed’ a prior similar assault to the set of events alleged.

The appellant relied upon the decision of R v ERJ,[38] applying s 37A of the Evidence Act, in which this Court overruled a decision by the trial judge not to admit evidence or permit cross-examination with respect to the complainant’s sexual relationship with her boyfriend. There the applicant had been convicted of two counts of an indecent act with a child under 16 and nine counts of incest. He was acquitted on one count of indecent act with a child under 16 and three counts of incest. The complainant on each count was his daughter. At the trial the complainant said that when she was aged 14 or 15, a time when she was having frequent intercourse with the applicant, she had a ‘pregnancy scare’. She purchased 3 tests from the chemist (she being uncertain as to when her period would be due given their irregularity). Her father drove her into town and gave her money to buy the tests as well as some lollies. She had previously given evidence at the committal that she had received a love bite from her father. The boyfriend’s evidence at the committal was that he slept at the complainant’s house most Friday and Saturday nights and had sexual relations with the complainant at this time. He also testified that the complainant had a ‘pregnancy scare’ as a result of his relationship with her, and that she took a pregnancy test in consequence. He also stated that he had given the complainant a ‘hickey’ around the time she claimed to receive a love bite from her father.
[38](2010) 200 A Crim R 270 (’ERJ’).

Before the jury was empanelled, an application was made seeking leave to cross-examine the complainant on these matters:[39]
[39]Ibid 272 [9].

(1) sexual activities with the boyfriend, and in particular how the complainant came to have a love bite on her neck;

(2) the fact that as a result of her relationship with her boyfriend the complainant became apprehensive about being pregnant and had a pregnancy test;

(3) [withdrawn]

(4) the fact that the complainant alleged she was touched on the breast by a former employer of hers, GM, in August 2004 and (alleged in a statement made at that time) that it was the first time anyone had touched her on the breast and further that she had not been sexually assaulted before.

The judge had granted leave with respect to matters (1) and (4). As Redlich JA observed, the assessment of ‘substantial relevance to a fact in issue’, with respect to both matters (1) and (4), was based on a direct contradiction or inconsistency of evidence relating to a fact in issue:[40]

With respect to (1), evidence of the love bite was ruled to be of sufficient probative significance to permit it to be put before the jury. The trial judge accepted that the defence submission that as there was a direct contradiction between the boyfriend’s claim that he gave her the love bite and the complainant’s account that she received it from her father during intercourse with him, that it was therefore necessary for that part of the boyfriend’s evidence to be put before the jury. The judge directed that the defence could suggest some level of intimacy to explain the love bite but could not examine the activity in detail or suggest that it involved sexual intercourse.
In respect of (4), the material before the trial judge indicated that the complainant had sworn a police statement making allegations of sexual assault against the former employer (GM). The statement included the assertion that, as at the time of making the statement, GM was the only person who had ever sexually assaulted her. This was inconsistent with the allegations of sexual assault made against the applicant, which included assaults over an extended period prior to the incident involving GM. The trial judge ruled that this inconsistency justified the admission into evidence of the content of the statement.

[40]Ibid 273 [12] (emphasis added).

The trial judge upheld the view that the fact of a sexual relationship between the boyfriend and the complainant was not relevant to the complainant’s claim that she did not think there was anything wrong with having sex with her father. He refused leave for evidence to be adduced about the pregnancy scare with the boyfriend. No evidence was led to the effect that the complainant’s relationship with her boyfriend included sexual intercourse and no evidence of the pregnancy test was led. In applying for leave to appeal, the applicant submitted that he was denied the opportunity to suggest to the complainant that she had transposed the pregnancy scare with her boyfriend to a pregnancy scare with her father.

Redlich JA agreed.[41] He considered that the judge had wrongly made an assumption that the complainant, if asked, would have said that she had had a pregnancy test with her boyfriend as well as with her father. But the complainant had never been asked about the fact in issue as it had never been put to her at the committal that she had had a pregnancy scare with her boyfriend and she had given no evidence on the point. As Redlich JA observed:[42]

Were the complainant to have denied that she had a pregnancy test with her boyfriend, contrary to the assumption made by the trial judge, then an inconsistency of the same nature as the ‘love bite’ would have arisen. The jury’s acquittal on the ‘love bite’ count demonstrates how the issue might have assumed significance on the trial if the complainant had denied that she had a pregnancy scare with her boyfriend.
If she had admitted a pregnancy scare with her boyfriend, as well as her father, it would, in my respectful opinion, have had substantial relevance to a fact in issue. The judge’s ruling denied the defence the opportunity to cross-examine the complainant, leaving her evidence unchallenged that the pregnancy scare was the consequence of sexual intercourse with her father. That unchallenged evidence added some potentially persuasive detail to her account.
…
As a consequence of excluding the applicant’s assertions in his interview that the pregnancy tests related to her boyfriend and that he did not accompany her on those occasions, no innocent explanation for the pregnancy tests was before the jury. Evidence that at that time of taking a pregnancy test, she was in a sexual relationship with someone other than her father, and evidence of his denial that they related to any relationship with him or that he accompanied her on these occasions, had substantial relevance.

[41]With whose judgment Harper JA and Williams AJA agreed.

[42](2010) 200 A Crim R 270, 276 [22]-[23], [26].

In ERJ there was clearly a proper and rigorous evidentiary foundation for the application for leave to cross-examine the complainant on the love-bite the boyfriend had given her and on her allegations in relation to GM having been the only man at that time to have sexually assaulted her. That foundation consisted of evidence which directly contradicted, or was inconsistent with, the evidence of the complainant that it was her father who was responsible for the love bite and that she had been assaulted by her father over a long period of time including the time of the assault by GM. So too the applicant’s evidence on whether the pregnancy scare and test was a result of sexual activity with her boyfriend could either have directly contradicted the evidence from the boyfriend (if she denied it) or could have provided an innocent explanation for her having a pregnancy scare and test when she alleged it occurred as a result of intercourse with her father (if she admitted it). It is plain that in the circumstances there was a clash of evidence relating to a fact in issue and the applicant was entitled to cross-examine on those matters.

In my view, such a rigorous application of the test under s 349 as is to be found in ERJ is warranted in accordance with the guiding principles in s 338 and in the light of the legislative history of the section.

There is here no comparable evidentiary foundation, rigorous or otherwise, which could give rise to a grant of leave under s 349 for cross-examination of the prior sexual abuse. There is no tension, let alone an inconsistency or direct contradiction, between the complainant’s evidence that she was sexually abused at the age of eight and being raped by the appellant at the age of 16. There was no inconsistency in the complainant’s own evidence about the early sexual abuse.[43] She did not claim on one occasion to have been abused as a child and on another occasion deny the claim. Nor was there evidence from any other witness that she had never been abused as a child, nor that she had earlier said that she had never been abused.
[43]Indeed, the judge noted that it might have been different if the complainant had denied that she was abused at age eight when Franklin claimed that she had said to him that she was. This may have indicated that she had lied to Franklin and this could have been sufficient to ‘affect her credibility of the whole of her complaint’. But, on the contrary, her evidence on the voir dire showed that she had not lied to Franklin. The fact that she could not remember saying this to Franklin was argued to be attributable to the gaps in her memory due to her state of intoxication.

It was not a matter of the judge assuming a particular answer would be given by the complainant, or speculating about the import of alternative answers, if she were questioned on the earlier abuse, because, unlike the complainant in ERJ who had not been questioned at the committal about the pregnancy scare with her boyfriend, the complainant had been questioned on the voir dire about the prior sexual abuse. There was no reason to suppose that the complainant’s answers would be any different if she was asked the same questions at trial; indeed, the whole purpose of the voir dire was to determine whether an evidentiary foundation could be established for further questions during the trial based on the answers given at the voir dire. There was thus no clash of evidence about the earlier abuse in relation to which the appellant should have been permitted to interrogate to undermine the complainant’s credit or to try to resolve in his favour.

The same considerations apply in relation to the character of the earlier abuse. The evidence did not suggest that the earlier abuse bore sufficient similarity to the circumstances of the offending as to provide a basis for an allegation of ‘transposition’. Most importantly, on the version of events relied on as true by the appellant, the sexual activity between the appellant and the complainant was consensual; why then would it give rise to a transposition of events that had occurred years earlier and was non-consensual? Was it implied that every time the complainant had consensual sex she was disposed to transposing the events of a much earlier non-consensual experience as a child? Furthermore, on the version of events put by the appellant’s counsel to the complainant during cross-examination, the sexual activity between the appellant and the complainant did not involve penile penetration; why then would it give rise to a transposition of events in the complainant’s mind that may have involved an attempt at penile penetration? How would the existence of non-consensual attempted penile penetration of the complainant as a girl aged eight cause her to think that what was a consensual act of non-penetration with the appellant when she was sixteen was in fact a non-consensual act of penile penetration? There was no evidence that the complainant, as an eight year old girl, was asked, or forced, to masturbate a man or that the prior abuse had involved digital penetration. Moreover, there was no evidence that a knife had been involved in the earlier abuse, and, on the appellant’s account there was no knife involved in his activity with the complainant.

The fact that there had been some earlier abuse could not itself supply the necessary evidentiary connection. Yet that is all, at most, that could have been derived from the statement made to Franklin. For the alleged transposition to have been based upon a proper factual foundation,[44] and not to have been merely speculative, would have required evidence of some linkage between the two activities. To satisfy the rigorous test presented by s 349, in the light of the purpose of the provision as manifested by s 338 and its legislative history, required that there be some form of evidentiary plank to link the prior sexual abuse with the sexual activity which occurred between the appellant and the complainant on 9 April, and there was none.
[44]As was provided in ERJ by the boyfriend’s evidence of a pregnancy scare and test arising from his sexual activity with the complainant.

Indeed, if there was any link between the earlier abuse and the events of 9 April, it was much more likely that the connection lay in both incidents being examples of non-consensual forced sexual activity. In the circumstances, in my view, the appellant may have benefited by the fact that the complainant gave no evidence before the jury of the earlier sexual abuse.

Furthermore, there was no evidence whatsoever that the sexual activity that resulted in the pregnancy and abortion was non-consensual.

In my opinion, the judge did not err in refusing the appellant leave to cross-examine as to whether there was prior ‘similar abuse’ by another person and whether there had been any prior sexual abuse that prevented the complainant from going home on 9 April 2005.

I reject ground two.

Conclusion on the appeal against conviction

Grounds one and two of the grounds of appeal fail. The appeal against conviction should be dismissed.

Appeal against sentence

In his sentencing remarks, the judge observed that the criminal culpability of the appellant was severe; the offending, ‘although opportunistic, [meant that he] nevertheless took advantage of a heavily intoxicated 16 year old girl and raped her at knifepoint’.[45] His Honour found no remorse.[46]
[45]Sentencing remarks, [42].
[46]Ibid [17]-[18].

The judge noted that the victim’s impact statement indicated that the complainant ‘honestly believed that [the appellant] would kill her afterwards’[47] and she was ‘suffering profoundly from the effects of [the appellant’s] actions and many aspects of her life have been and continue to be disrupted by the psychological trauma of the offending’.[48]
[47]Ibid [40].
[48]Ibid [40].

In mitigation, the judge took into account the appellant’s personal circumstances and the psychological reports which indicated that the appellant had a difficult childhood. In his early teenage years, he had suffered from a profound psychiatric illness which required strong medication and hospitalisation and this led to his schooling effectively being brought to an end and his being ostracised by his siblings.[49] He is effectively illiterate.[50] His intelligence is at the low end of the normal range. However, the principles in R v Verdins[51] were not relied upon. His first significant personal relationship was dysfunctional and attended by violence and his own attempts at suicide. Other factors taken into account in mitigation included his having been kept in protective custody during the entire period of his pre-sentence detention; his having been traumatised recently by an investigation for bowel cancer; and the delay of six years between the offending and the trial.[52]
[49]Ibid [21].
[50]Ibid [22].
[51](2007) 16 VR 269.
[52]Sentencing remarks, [36]-[38]. The judge also noted that the appellant was not to be sentenced as a serious offender within the meaning of Part 2A of the Sentencing Act.

Against these mitigating factors, the judge took into account the principles of general and specific deterrence, the need to manifest the community’s denunciation of the appellant’s conduct and to protect the community.[53] With respect to specific deterrence, the judge noted that the appellant had an extensive history of criminal offending, with more than 40 convictions including murder, armed robbery and abduction.[54] The offending which led to the conviction for murder involved the use of a knife in the robbery and abduction of a young woman, whom he subsequently murdered.[55] The judge determined the appellant’s prospects of rehabilitation to be ‘not good’[56] based upon his lack of remorse, the psychological reports tendered, and the fact that the appellant had little contact with his family or indeed anybody outside of the prison system.[57]
[53]Ibid [39].
[54]Ibid [7].
[55]Ibid [8].
[56]Ibid [35].
[57]Ibid [35], other than his legal representatives.

The appellant was on parole for murder at the time he committed the offences of rape and false imprisonment, an aggravating feature.[58] The judge took into account the period being served on parole, in accordance with the principle of totality.[59] He applied a moderate degree of cumulation because the false imprisonment, although of short duration, and notwithstanding the fact that it was part of the one transaction with the rape, involved the use of a knife to detain the victim in the car for the purposes of the rape, which must have been terrifying for the victim.[60]
[58]Ibid [15].
[59]Ibid [15].
[60]Ibid [41]-[42].

As the sentence for which the appellant was on parole was a life sentence, at the plea the prosecution conceded that this was an exceptional circumstance within the meaning of s 16(3B) of the Sentencing Act 1991 and that the sentence to be imposed should be served concurrently with the sentence for which the appellant was on parole.[61] Section 16(3B) provides:

Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.

[61]See R v Jolly [1982] VR 46, 49, 51-52; R v Chamberlain [2001] VSCA 159.

The trial judge directed that as there were ‘exceptional circumstances’ within the meaning of s 16(3B), the whole of the sentence imposed would be served concurrently with the parole sentence, the sentence being served for murder.[62]
[62]Sentencing remarks, [50].

On the plea the Crown submitted that the appropriate sentencing range was a total effective sentence of between 8 and 10 years, with a non-parole period of 7 to 9 years.

As mentioned above, the total effective sentence imposed was 9 years and 6 months with a non-parole period of 8 years. The judge acknowledged that the non-parole period was long but considered that the circumstances of the case warranted an extended period. He said:[63]

Having regard to the gravity of this offending, to the fact that it was the second occasion on which you have used a knife in an attack on a young woman, the fact that it was committed whilst released on parole for the most serious offence known to our criminal law and having regard to my view of your prospects for rehabilitation, I am determined that you should serve what might be regarded as a somewhat longer than what is sometimes called the normal non-parole period and I direct that you serve a minimum of eight years before becoming eligible for parole.

[63]Ibid [49].

On appeal, the appellant submitted that the sentence was manifestly excessive and that this was reflected, in particular, in the contravention of the principle of totality and the failure of the judge to give sufficient weight to the appellant’s prospects of rehabilitation.

Manifest Excess

The appellant had been sentenced on 5 May 1986 to life imprisonment on one count of murder, 8 years on one count of armed robbery and 6 years on one count of abduction. On 7 September 1990 the life sentence was varied to allow for a non-parole period of 13 years. He served 14 years of his life sentence before being released. He complied with the conditions of his parole for about 7 years. He was called in on his parole in January 2007, for failure to report a change of address,[64] and released on 3 March 2008. These periods of incarceration total approximately 15 years attributable to the life sentence. On 20 March 2008 he was arrested and remanded in custody for the rape of another woman[65] and has remained in custody continuously since. He was charged with the instant offences of false imprisonment, common assault and rape on 2 October 2009. His parole was cancelled on 22 November 2010 and has remained cancelled. At the time of sentencing he was 55 years old.[66] The sentencing judge deemed pre-sentence detention, pursuant to s 18(6) of the Sentencing Act, to be 974 days.
[64]Ibid [10].
[65]At the time of the plea the appellant was awaiting a retrial on this rape charge, following a successful appeal: see Sentencing remarks [11].
[66]Sentencing remarks, [20].

(1) Totality

The principle of totality requires a sentencing judge to impose a sentence which reflects the overall criminality of the offending for which the offender has been convicted. In Postiglione v R,[67] McHugh J described the ambit of the principle:[68]

[I]n order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
….
[As said by] Hunt CJ at CL in R v Gordon:
‘When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.’

[67](1997) 189 CLR 295.

[68]Ibid 308 (citation omitted). See also Contin v R[2012] VSCA 247, [43]—[68] (where Weinberg JA reviews the authorities on the application of the totality principle ‘across the board’: [57] (that is, to offences beyond those connected and roughly contemporaneous with each other).

The principle of totality also falls to be applied when the offender commits further offences while on parole and by the time the offender is sentenced for those further offences, parole has been cancelled.[69] As this Court said in R v Hunter,[70] ‘[w]here parole is cancelled, the principle of totality must “bulk large” in the determination of the aggregate term of imprisonment imposed for the later offences’. In the ordinary case, a judge must fix a sentence for the further offences so as to ensure that the combined effect of that sentence with the sentence already being served is not disproportionate to the total criminality represented by the two sets of offences,[71] on the assumption that the offender will serve the whole of the balance of the head sentence fixed in respect of the earlier offences for which parole was cancelled.[72]
[69]R v Hunter (2006) 14 VR 336; R v Piacentino (2007) 15 VR 501.
[70](2006) 14 VR 336, 341 [31] (Maxwell P, Buchanan and Redlich JJA).
[71]McCartney v R [2012] VSCA 268, [96].
[72]DPP v Dickson [2011] VSCA 222, [2].

The appellant’s submissions that the judge had contravened the principle of totality had three strands.

The first strand was to argue that the recognition that a life sentence constituted an exceptional circumstance under s 16(3B) of the Sentencing Act, and therefore displaced the direction for cumulation in relation to offences committed whilst on parole for another offence, meant that there ought be no cumulation in respect of an offender who is currently serving a life sentence. The import of s 16(3B) was argued to be that a judge ought not make any order for cumulation in respect of an offender serving a life sentence, and that the judge erred here by cumulating six months of the sentence for false imprisonment on the nine years’ imprisonment he imposed for the rape. It was argued that sentencing an offender whose parole has been cancelled,[73] for offences committed during parole, is amongst the most difficult forms of sentencing[74] and all the more so in respect of offences where the offender is serving a life sentence.
[73]As here.
[74]DPP v Dickson [2011] VSCA 222 [11].

The Crown submitted that it was perfectly proper for the judge to cumulate part of the sentence on Charge 1 with the sentence on Charge 3.

I agree. Section 16(3B) directs that sentences committed after parole has been cancelled for earlier offences be served cumulatively upon the sentences for the earlier offences. A finding that life imprisonment amounts to an ‘exceptional circumstance’ within the meaning of s 16(3B) operates to enliven a discretionary power in a judge to direct otherwise. It remains within the discretion of a sentencing judge as to whether, in the relevant circumstances, part or whole of the sentences to be imposed are to be cumulative in relation to each other. Here, it was within the judge’s power to do precisely what he did, namely, to order a moderate degree of cumulation between Charge 1 and Charge 3 to reflect the separate criminality of the offending involved in the conviction for false imprisonment. The cumulation was not between the sentence imposed on Charge 1 and the sentence the appellant was serving for the murder conviction. While ‘it is well-established that once a prisoner has been sentenced to life imprisonment; any later offence can only be served concurrently because of the nature of a life sentence’,[75] in my view this does not preclude a degree of cumulation between the sentences imposed for later offences, providing that the court directs, as the judge did here, that the total effective sentence imposed in respect of those charges be served wholly concurrently with the ‘parole sentence’ previously imposed on the appellant for murder.
[75]R v Chamberlain [2001] VSCA 159, [15] (Charles JA (with whom Brooking JA and Chernov JA relevantly agreed), citing R vFoy (1962) 46 Cr App R 290; R v Jolly [1982] VR 46; and Taikmaskis v R (1985) 19 A Crim R 383.

The second strand of the appellant’s submissions on totality was to argue that the non-parole period of the sentence imposed in respect of the offences of false imprisonment and rape was in effect cumulative upon the life sentence, notwithstanding the direction for concurrency. This was argued to be so because the appellant would be obliged to serve the eight year non-parole period of the sentence the judge imposed here before being eligible for parole despite having already served the entirety of the 13 years fixed as his non-parole period for the murder conviction. In effect, it was submitted, the appellant has been sentenced to a cumulative non-parole period of 21 years with the balance of his life to be served on parole. It was argued that the aggregated sentence of 21 years non-parole period exceeded the totality of the criminality involved in all the offences to which the total period is attributable.

The submission relied on s 15 of the Sentencing Act.[76] Section 15 provides:
[76]Section 14 of the Sentencing Act did not apply because the appellant had already served the non-parole period imposed for murder. Section 14 requires the fixing of a single non-parole period in respect of all the sentences an offender is to serve or complete in circumstances where (a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and (b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period.

(1) If an offender has been sentenced to several terms of imprisonment in respect of any of which a non-parole period was fixed, the offender must serve—
(a)firstly, any term or terms in respect of which a non-parole period was not fixed;

(b) secondly, the non-parole period;
(c)thirdly, unless and until released on parole, the balance of the term or terms after the end of the non-parole period.

(2) If during the service of a sentence a further sentence is imposed, service of the first-mentioned sentence must, if necessary, be suspended in order that the sentences may be served in the order referred to in subsection (1).

The effect of s 15 is that an offender must serve each non-parole period of any sentence fixed upon him before becoming eligible for parole. It was submitted that the judge failed to appreciate the cumulative nature of the successive non-parole periods served, or to be served, by the appellant, or to understand that his direction for concurrency would not preclude this aspect of cumulation. It was submitted that this lack of understanding led the judge to fail to assess properly whether the totality of the sentences imposed was proportionate to the totality of the criminal culpability. The sentence imposed was argued to be manifestly excessive because it resulted, albeit indirectly, in a cumulative non-parole period in excess of what would be appropriate for a head sentence of 20 to 25 years, the head sentence here being 9 years and 6 months.

In response, the Crown submitted that the principle of totality applies in the context of the imposition of discrete sentences where questions of cumulation as between the sentences can sensibly arise. By contrast, where an offender is already serving a life sentence for a previous offence, the principle of totality has limited or no application because the sentence being served is indeterminate and, in a sense, endless for the offender.[77] Any additional sentence imposed will of necessity be concurrent and notions of cumulation and totality do not properly arise. This must be so, it was submitted, because to accept the appellant’s submissions would mean that no additional sentence could be properly imposed on an offender already serving an indeterminate life sentence, no matter how egregious the subsequent offending. Any additional sentence would be in excess of what the offender will be capable of serving ‘[s]ince no sentence can be served beyond the expiration of [a] prisoner’s life’.[78]
[77]Indeed, the Crown argued that the judge was wrong to take account of the principle of totality in his sentencing remarks ([15]) because to do so must have involved an assumption that the Parole Board would grant parole, contrary to s 5(2AA) of the Sentencing Act. However, this could only have been of benefit to the appellant.
[78]R v Jolly [1982] VR 46, 50 (McInereny and Gobbo JJ).

I agree. In the context of imposing a sentence upon an offender who is serving an indeterminate life sentence the principal obligation of the sentencing judge must be to fix an appropriate sentence reflective of the degree of criminal culpability involved in the particular offending for which the sentence is being fixed, and taking into account all relevant factors. In that context, the principle of totality has limited application in respect of the need to take account of any other sentence currently being served.[79]
[79]As opposed to the need for a sentencing judge to consider the total criminality involved in the offences for which he or she is fixing the sentence: see Keating v State of Western Australia (2007) 35 WAR 1; Aslett v R [2006] NSWCCA 360.

The third strand of the appellant’s submissions was to argue that the judge failed to appreciate the force of the assumption that he was obliged to make that the appellant would spend the rest of his life in custody.

In this context the appellant relied upon s 5(2AA) of the Sentencing Act which has the effect of creating a presumption at law that in sentencing a judge is to assume that the head sentence will be served in full. Section 5(2AA) relevantly provides that:

Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to:
any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind.

The appellant submitted that, by reason of s 5(2AA), it ought to have been assumed that he would remain in custody until he had completed the head sentence fixed in respect of his murder conviction. The effect of s 5(2AA) was examined in R v Hunter[80] where the Court said: [81]

This court has made clear repeatedly that a period of imprisonment being served at the time of sentencing must be taken into account in the exercise of the sentencing discretion. Nothing in s 5(2AA) of the Sentencing Act authorised, let alone required, the trial judge to disregard the fact that Hunter was then serving the unexpired portion of his original sentence. On the contrary, the prohibition on speculation meant that the judge was bound to assume that the full term of the original sentence would be served. Any possibility that Hunter might again be released on parole had to be disregarded.

[80](2006) 14 VR 336 (Maxwell P, Buchanan and Redlich JJA). (‘Hunter’) In Hunter the offender’s parole had been cancelled, as here.

[81](2006) 14 VR 336, 341 [29] (emphasis added).

It was argued that if the judge had properly assumed, as he was obliged to do, that the appellant would remain in custody for the remainder of his life, he would have recognised that fixing a sentence of 9 years and 6 months was in effect to impose an additional sentence on top of the indeterminate life sentence. It was submitted that this contravened the principle of totality, the proper recognition of which would have led to a reduced sentence.

The Crown’s response to this third strand was to repeat their response to the second, with which I have already indicated I agree.

Related to the submissions on totality, the appellant also argued that there ought to have been a reduction made on the head sentence, and the non-parole period, in the exercise of the discretion recognised in R v Renzella.[82] The appellant submitted that there were three periods that should have been taken into account ‘in a broad way’[83] as time already served.
[82][1997] 2 VR 88 (’Renzella’).
[83]Ibid 96.

The first period for which a reduction was sought was about 14 months between January 2007 and March 2008, when the appellant’s parole had been suspended and he was temporarily taken into custody. The second period was said to be the length of about six years’ parole between being granted parole in 1999 and his offending on the charges of false imprisonment and rape in 2005. The third period for which a reduction was argued to be justified related to the fact that the appellant had spent a significant portion of his adult life in prison.[84] It was submitted that, in all the circumstances, a non-parole period for the instant offences should have been set at six years.
[84]It would appear that the appellant has spent about 19 years in prison.

As the appellant was charged in respect of the instant offences on 2 October 2009, the first and second periods of detention are not attributable to these offences and cannot be taken into account as pre-sentence detention under s 18(1) of the Sentencing Act.

However, the complicating factor here is that at all times the appellant was serving the life sentence imposed on him for the murder conviction. When his parole was suspended and he was temporarily taken back into custody for 14 months those 14 months were attributable to the murder conviction and constituted part of the life sentence he was required to serve for that conviction. In those circumstances the Renzella discretion has no operation, nor could it, for otherwise, absurdly, all of the 15 years spent in custody attributable to the murder conviction would need to be taken into account, in which case there could be nothing left to serve.[85] If a sentence served for unrelated offending was eligible to be taken into account under the Renzella discretion a serial offender would be able to rely on all the sentences he or she had previously served to achieve a substantial reduction for his most recent offence.
[85]In accordance with R v Stares (2002) 4 VR 314 the detention to be taken into account under the Renzella doctrine need not have occurred after the offending for which the offender is being sentenced.

In R v Broad[86] Brooking JA held that where an offender was in detention serving a sentence, and the detention was also referable to being on remand for a second offence, the detention would not fall to be recognised as pre-sentence detention under s 18(1) in respect of the second offence. He held that s 18(1) ‘was inapplicable to periods of detention during which the person being sentenced was serving a sentence’.[87] This was not because of any limitation in the language of s 18(1), the section no longer being restricted to detention that was solely referable to the offence for which the offender was being sentenced.[88] Rather, it was because of public policy considerations, namely, that otherwise, for example, an offender who was serving a sentence and escaped and committed a crime while at large could, when recaptured, retried and later sentenced, be entitled to rely on the time spent in detention between recapture and the passing of sentence as ‘credit’, by way of pre-sentence detention under s 18(1), when sentenced for the offence committed while at large. As Brooking JA said: ‘Such a result is manifestly unreasonable and contrary to the public interest’.[89]
[86][1999] 3 VR 31.
[87]Ibid 35 [11]. This is subject to the exception where a prisoner is re-sentenced by the Court of Appeal, the original sentence having been quashed. In those circumstances, time served under the quashed sentence is treated as pre-sentence detention for the purposes of the sentence substituted by the Court of Appeal: Ibid [11].
[88]See Karpinski v R (2011) 32 VR 85, 91 [30], 92 [36].
[89]R v Broad [1999] 3 VR 31, 33 [8].

Precisely the same sentiment applies to the proposition that an offender who is serving a life sentence and who commits an offence while released on parole can rely on the time spent in detention between recapture and the passing of sentence on the more recent offence as ‘credit’ by way of pre-sentence detention under the Renzella discretion. To my mind, such a result would also be manifestly unreasonable and contrary to the public interest.

Those 14 months did not constitute ‘dead time’ (time which should not have been served because, for example, it was time spent on remand for an offence in relation to which an offender is ultimately acquitted, or the charge is withdrawn, or a nolle prosequi is entered, and during which the offender is not serving another sentence)[90] nor was it time spent on remand in relation to charges yet to be tried for unrelated offending while not serving another sentence,[91] and it is difficult to see how the Renzella doctrine would apply.
[90]Karpinski v R (2011) 32 VR 85, 91 [28]-[29].
[91]R v Wade [2005] VSCA 276.

The short answer to the second period identified is that during the six or more years the appellant spent on parole he was at large and was not detained. It could thus not constitute pre-sentence detention of any kind.

The third period of time was in substance a factor to be considered as part of the circumstances of mitigation and it did not fall under the Renzella doctrine. The judge expressly took into consideration the psychological assessment of Mr Watson-Munro that the appellant was ‘in many ways institutionalised’[92] and this was plainly a reference to the proportion of the appellant’s life that he had spent in custody. The judge also noted that the appellant had almost no contact with anyone outside the prison system.[93] These were proper matters to be considered in the context of mitigation and they have no further place in the context of a Renzella submission.

(2) Prospects of rehabilitation

[92]Sentencing remarks, [33].

[93]Ibid [35].

The appellant submitted that the sentencing judge, by imposing a very high minimum non-parole period, had failed to give sufficient weight to the applicant’s prospects of rehabilitation. Indeed, it was argued that the non-parole period had been improperly set without regard for his prospects of rehabilitation. The non-parole period of 8 years, in respect of a head sentence of 9 years and 6 months, meant that the non-parole period was 84 per cent of the head sentence, a very high percentage and a departure from the ‘usual non-parole period’.

The appellant relied upon the comments made recently by Redlich and Osborn JJA in Kumova v R,[94] in which their Honours observed:[95]

[T]he principles which bear upon the determination of how much of the head sentence the prisoner should be required to serve before becoming eligible to conditional freedom, provide a significant level of constraint as to the range of minimum sentences that are open. So the gap between the head and minimum sentence cannot become so great that the minimum sentence no longer adequately reflects the gravity of the crime and fails to satisfy punitive sentencing principles. Furthermore, very long parole periods are rarely desirable. On the other hand, the minimum sentence cannot be fixed so close to the head sentence, that it may fail to give effect to the prisoner’s prospects for rehabilitation and so mitigate punishment. The prospect of early release also serves as an incentive to the prisoner to behave within the prison setting and to pursue rehabilitative programmes. In every case, these considerations serve to confine the choice as to the proportion of the head sentence that must be served.

[94][2012] VSCA 212 (’Kumova’).

[95]Ibid [28] (emphasis added).

It was submitted that here the non-parole period had been fixed too close to the head sentence and the parole period was in effect too short for the purpose for which it was designed to serve. The appellant pointed to the fact that he did not belong in the worst category of offenders, his murder conviction occurred more than 25 years before this offending; he had not committed previous sexual offences before this offending; the offence was unplanned; it had occurred in circumstances in which it was the complainant who had initiated contact; he had not been carrying the knife; and he did not stand to be sentenced as either a serious sexual offender or a serious violent offender. If it was accepted that a non-parole period of 75 per cent of a head sentence was reserved for the worst category of offender, the non-parole period here must have been fixed in error.

However, as Nettle JA noted in Kumova, appellate courts should be reluctant before interfering with a non-parole period fixed by a sentencing judge. Indeed, as he observed,[96] the notion of a ‘usual non-parole period’ can be problematic implying, as it does, the existence of a two part sentencing process, a practice forbidden at common law, while yet the courts must strive for consistency. Relevantly here, however, his Honour noted that the notion of a ‘usual non-parole period’ is of limited application when the head sentence is 10 years or beyond. As he said:[97]

[A]lthough the range of cases to which the idea of a ‘usual non-parole period’ relates may properly be described as ‘relatively broad’, it is limited. The idea of a usual non-parole period of between 60 per cent and 75 per cent of head sentence ceases to be of much assistance once one approaches a head sentence of in the order of 10 years‘ imprisonment or more. As Redlich JA explained in Romero v R:
For offences that do not attract the sort of sentences reserved for murder and other very serious crimes, non-parole periods between 60 and 66 per cent and up to 75 per cent of the head sentence are not regarded as uncommon. Where the ratio of the non-parole period to the head sentence exceeds these figures, the absence of an explanation may invite appellate scrutiny. Even then, the fact that the non-parole period exceeds 80 per cent of the length of the head sentence does not inevitably lead to the conclusion that the sentencing judge made an error, because there is no set formula or fixed standard that applies to the fixing of a non-parole period. Moreover, counsel for the applicant appeared to accept that the common ratios applicable with respect to lesser offences are not particularly instructive in the case of very serious crimes where the head sentence is much higher. That concession, in my view, was rightly made. The ratio between the head sentence and non-parole period more commonly found for lesser offences and lower sentences are generally unlikely to be appropriate for murder and other serious crimes attracting similarly long head sentences, as they would create inordinately long parole periods and the non-parole period would not then, as it must, also reflect the gravity of the offending. The non-parole sentence would be shortened beyond the lower limit of what might be reasonably regarded as condign punishment. Other purposes of sentencing that are relevant to fixing the non-parole period as well as to fixing the head sentence, such as deterrence and protection of the community, would not then have been given their necessary weight.

[96]Ibid [9]-[15].

[97]Ibid [14] (citations omitted) (emphasis added).

While the head sentence imposed here was only 9 years and 6 months, and not 10 years, in my view, in the circumstances of this case the same sentiments apply.

Nettle JA also emphasised that the fixing of a non-parole period involves the exercise of a broad discretion and the sentencing judge is in the best position to assess the appropriate minimum time to be spent in custody:[98]

[T]he point of a non-parole period is that it is a sentencing judge’s perception of the minimum time which the offender should spend in gaol before becoming eligible for release. Since each case is unique, and since the setting of a non-parole period is a matter of sentencing discretion, outcomes are likely to vary. To a considerable extent, what is usual or normal is what a sentencing judge considers to be usual or normal for the nature and gravity of the offence in question in all the circumstances of the case, and what is less than normal will accord to that conception.

[98]Ibid [15].

Here, the judge acknowledged that the non-parole period he fixed was ‘longer than what is sometimes called the normal non-parole period’[99] and he sought to explain why, in all the circumstances of the case, the appellant should serve a minimum of eight years before becoming eligible for parole, paying particular regard to the gravity of the offending including the fact that this was the second time in which the appellant had used a knife in an attack on a young woman.[100] In my opinion, it was open to the judge, in the circumstances of the case, to fix a non-parole period of eight years and the discretion did not miscarry.
[99]Sentencing remarks [49].
[100]See [87] above.

The finding that the appellant’s prospects for rehabilitation were ‘not good’ was well open in the light of the appellant’s extensive criminal history, his lack of remorse, and the fact that these offences took place while he was on parole for murder.

The ground of manifest excess should be rejected.

Conclusion on the appeal against sentence

As the complaint made by the appellant against his sentence on the ground of manifest excess has failed I would dismiss the appeal against sentence.

Proposed Orders

The appeal against conviction, and the appeal against sentence, should both be dismissed.

FERGUSON AJA:

I also agree with Tate JA.

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Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	False imprisonment [common law]	10 years’ imprisonment [Crimes Act 1958 s 320]	18 months’ imprisonment	6 months
3	Rape [Crimes Act 1958 (Vic) s 38(1)]	25 years’ imprisonment [Crimes Act s 38(1)]	9 years’ imprisonment	Base sentence
Total Effective Sentence:		9 years 6 months’ imprisonment
Non-Parole Period:		8 years
Pre-sentence Detention Declared:		974 days
6AAA Statement:		N/A
Other orders: The sentence is to be served concurrently with the parole sentence being served by the appellant. The appellant was declared a registrable offender. Pursuant to s 34 of the Sex Offenders Registration Act 2004 the length of reporting period is 15 years.

[2012] VSCA 313

17 December 2012