Salvaggio v The Queen
[2022] VSCA 88
•13 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0262
| GARY STEPHEN SALVAGGIO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 March 2022 |
| DATE OF JUDGMENT: | 13 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 88 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1313 (Judge Riddell) |
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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to file application for leave to appeal – Applicant convicted on one charge of aggravated burglary, one charge of rape and one charge of sexual assault – Sentenced to 14 years’ imprisonment with 11 years non-parole period – Proposed ground of appeal that conviction on rape charge unsafe and unsatisfactory because evidence did not establish penetration – Proposed ground of incompetency of trial counsel – Delay of over two years in filing application for leave to appeal – Extension of time granted – Leave to appeal refused.
CRIMINAL LAW — Appeal – Sentence – Whether individual sentences on aggravated burglary, rape and stalking were manifestly excessive – Whether sentence of 14 years’ imprisonment with 11 years non-parole manifestly excessive – Appeal allowed – Applicant resentenced to 11 years’ imprisonment with 8 years and 6 months non-parole period.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Stary Norton Halphen |
| For the Respondent | Mr J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
KYROU JA
NIALL JA:
On 16 May 2018, the applicant was found guilty by a jury empanelled on his trial in the County Court to one charge of aggravated burglary with intent to sexually assault,[1] one charge of rape,[2] and one charge of sexual assault.[3] At the same time as his plea on sentence for these charges, he also pleaded guilty to one charge of stalking in relation to a different victim.[4] On 23 August 2018, the applicant was sentenced to a total effective sentence of 14 years’ imprisonment and a non-parole period of 11 years was set.
[1]Crimes Act 1958, s 77.
[2]Ibid s 38.
[3]Ibid s 40.
[4]Ibid s 21A.
Extension of time
On 23 December 2020, the applicant applied for leave to appeal both his conviction and sentence. The two applications are more than two years out of time and he seeks an extension of time to bring them. The principles that apply to the exercise of the very broad discretionary power to extend time are not in doubt.[5]
[5]See Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
The application for an extension was supported by an affidavit of the applicant’s current solicitor, Alana Reader. Ms Reader set out, in some detail, the chronology of events following the conviction and sentence of the applicant. According to her affidavit, on 29 August 2018, trial counsel provided to the applicant’s trial solicitor a memorandum of advice recommending an appeal against conviction. The applicant’s then solicitor told the applicant’s mother that he would provide a brief to counsel before going on leave, and in November 2018, told Mrs Salvaggio that a brief had been delivered. On 16 January 2019, the applicant’s trial solicitor advised Mrs Salvaggio that he would have to withdraw from acting on the applicant’s behalf for personal reasons relating to his health.
Later in January 2019, Mrs Salvaggio spoke to counsel who she had been told had been briefed by the applicant’s former solicitor. Counsel said she had not received a brief and knew nothing of the matter.
On 25 February 2019, the applicant submitted a Prison Advice Appeals Checklist and application for legal aid. This was received by Victoria Legal Aid (‘VLA’) on 4 March 2019. In October 2019, VLA referred the matter to the applicant’s current solicitor on the basis that it was an appeal against sentence only. On 17 October 2019, the applicant’s solicitor contacted the Office of Public Prosecutions (‘OPP’) to obtain the trial materials and, surprisingly, she was told that a request under the Freedom of Information Act 1982 was required. The applicant obtained the file from his previous solicitors in the first week of November 2019, but it did not contain the transcript of the trial.
Over the course of a number of months in 2020, the applicant’s solicitor attempted to obtain a complete trial record, briefed counsel to advise and draw documents, and gave advice to the applicant. As noted, the applications were filed in December 2020.
Based on that long history, it appears that from the time of his sentence, the applicant and his family have sought to appeal both his conviction and sentence. He encountered problems with his first solicitor; delays with VLA; and difficulty in obtaining trial records, including being told by the OPP that a freedom of information request was necessary. In the circumstances, the combination of these matters, which were outside the control of the applicant, contributed to the delay. It is in the interests of justice that an extension of time be given in respect of both applications.
The prosecution case
In October 2016, Chelsea Moreton[6] lived in a house in a suburb of a Victorian town with her eight year old son and a female housemate. Shortly before 10.00 pm on 13 October 2016, Ms Moreton awoke to find a man, who the prosecution alleged was the applicant, crawling across her bed. The man climbed on top of her and Ms Moreton felt something cold running down her back.
[6]To avoid identification of the victim of the sexual offending, a pseudonym is used in place of the victim’s name.
As Ms Moreton was roused from her sleep, she started to respond, reaching to her shoulder where she felt a closed fist on the back of her neck. She was pinned to the bed by the man’s forearm. She struggled but could not get up. The man partially pulled down her pants and underpants, put his hand between her legs, and touched her vagina (charge 4 — sexual assault).
Ms Moreton started to resist, exclaiming ‘What the fuck is happening, what’s going on?’ Although she did not get a good look at the man, she would later say that she saw a reflection of light from the man’s eyeglasses. As Ms Moreton resisted, the man made a threat towards her son, saying something like ‘Stop, or the little boy gets it.’ In fear, Ms Moreton stopped resisting.
The man pulled at Ms Moreton’s pants and underwear. Ms Moreton said ‘Hang on, you have to wait, I’m on my period and I’ve got a tampon on.’ The man pushed her legs further apart and felt around her vaginal area for the tampon string, penetrating her vagina with his finger or fingers as he did so. She described feeling the man pulling on the tampon string. These events constituted charge 3, rape.
At this point, Ms Moreton started to fight back. She screamed ‘No, get the fuck off me’ and struggled hard, managing to push her assailant off her and throw herself onto the floor. By the time she got up, the man had fled the room and had run from the house.
Immediately, Ms Moreton ran down the hallway screaming for her housemate, telling her that there had been a man in the house trying to rape her. Her housemate telephoned 000 and in a recorded phone call that extends over some nine minutes, Ms Moreton gave the operator, and then a sergeant of police, a detailed account of what had happened. That call continued until police arrived at the scene.
Ms Moreton was medically examined. She had a sore neck and upper back, and black Texta marks were observed on her buttocks and perhaps on her neck.
The applicant’s accounts
Although she did not know it at the time, shortly before the attack, at 9.37 pm, 9.39 pm, and 9.45 pm, Ms Moreton’s telephone received three phone calls from a mobile phone number belonging to the applicant. Those calls went unanswered, presumably because Ms Moreton was asleep. The applicant and Ms Moreton were not known to each other.
Unsurprisingly, given the unanswered phone calls so close in time to the incident, police made contact with the applicant seeking an explanation. The applicant made a sworn statement in which he attempted to explain the phone calls. He told police that he found a $10 note which had the words ‘for a good time call’ and a phone number. He said he looked up the number on Facebook using his Facebook account and it showed a woman he did not recognise. He said that he dialled the number in order to tell the woman that he had found the note but he would delete the number and to tell her that her phone number was being circulated in that way. He said the calls were unanswered. He also said that he had deleted the Facebook account that he had used and that the day after the attack he had gone to a Telstra shop to get his phone fixed because there was a problem with his camera.
At the time of the attack, the applicant lived with his now estranged wife and daughter who were away in Queensland, leaving the applicant alone at home. The applicant’s wife was a police officer. The applicant told her about his interaction with the police and she told him that police would likely find the offender due to forensic evidence, and she described fingerprints, DNA and shoeprints. Shortly after, the applicant disposed of the boots he had been wearing on the night of the attack.
Soon after, the applicant was formally interviewed by police. In the interview, the applicant gave a detailed and discursive account of what he said had happened on the night of the attack. The record of interview extends over 114 pages and the applicant answered 793 questions. In the interview the applicant gave the following account.
The applicant said that, when his wife and daughter were away, he built a retaining wall in their garden. The work was nearly finished but he needed a part to complete it. At around 9.00 pm, after consuming ‘a few beers’, he decided to drive to Bunnings to collect the part. He thought that Bunnings had late night shopping and may have closed at 10.00 pm. He said the Bunnings closest to his home, about 15 minutes away by car, was not likely to have what he needed and he drove to one further away. When he got there he saw that it was closed and, as he was hungry, he decided to go to McDonald’s. He then realised that he could not find his wallet.
He turned down a side street and parked the car. The street happened to be the street in which Ms Moreton lived. Her house was at one end of the street with open land running along a railway on the other side. He said he got out of the car and walked around to the passenger side to see if his wallet had fallen between the seats. He said he was stressed because he did not have his wallet and was hungry and went for a walk. He said he saw a car parked in a driveway and its door was slightly ajar. He opened the door to see if he could find any money in the console. He said he found a veterinary bill with a mobile number on it, which he assumed belonged to the person in the house.
The applicant looked into the house through the window and saw that the television was on but displaying a screen saver and he could see no one in the house. He said he dialled the number three times to see if anyone was home. When there was no answer he assumed the house was empty. He said he entered by an unlocked sliding door to steal money and, in the kitchen, found a handbag which contained some cash. He said he took out some cash but felt guilty and placed it on the counter.
At that point he said that someone ran at him and there was a scuffle. He said he saw an arm swinging at his head, he ducked but was hit in the head, and he felt fingernails come into contact with his head and a tug on his hair. As he tried to push the person away, he stumbled and fell towards the person’s hip and that, according to him, the person’s ‘pants came down, my hand dragged along side their butt cheek probably halfway down. I pulled my hand out and I regained my balance, I never fell … I just wanted that door, I want to leave’.[7] He said that he felt the skin on the person’s buttock cheek which had been exposed when the pants had come half way down in the scuffle. He said he ran from the scene.
[7]Emphasis added.
The applicant denied going into the bedrooms but said he had touched the door handles of two of the bedrooms.
Other evidence
In addition to Ms Moreton’s account, there were a number of other items of evidence.
The recording of the 000 phone call made by Ms Moreton was played to the jury. As described by the judge in her reasons for sentence, the distress in Ms Moreton’s voice is obvious.[8] We agree with that observation. In the account, Ms Moreton described how she was in bed when she felt a man pushing on her, that the man threatened her son, and that the man put his hand down her pants.
[8]DPP v Salvaggio [2018] VCC 1313, [17] (‘Reasons’).
The applicant’s fingerprint was found on the door handle of Ms Moreton’s bedroom.
CCTV footage taken from nearby buildings in the street show the applicant walking along the street towards Ms Moreton’s house at 9.05 pm. He then walked back away from her house at 9.20 pm, before returning to the vicinity of her house at 9.35 pm.
One category of evidence related to an unusual feature of the case. Ms Moreton said that she felt something cold on her back during the attack. She gave evidence that she observed black Texta marks on her neck, lower back, upper buttocks, lower buttocks and her inner thigh. Ms Van Eck, a forensic nurse examiner, said she saw a marking on the complainant’s lower back/upper buttock and recorded it on a diagram in her notes. She did not observe any other markings. Ms Moreton was photographed the day after the incident and after she had showered. In the photographs, a marking can be seen on her lower back. A discolouration on the neck, which had not been recorded by Ms Van Eck, can be seen but is likely to have been a bruise. The only evidence of markings on the inner thigh was given by Ms Moreton.
Police observed black Texta ink on the sheets of Ms Moreton’s bed and a piece of paper with black Texta markings was seen and photographed by forensic police in situ on the bed. A pen lid was also found on the bed. Ms Moreton said that before police arrived she noticed the ink on the bed, and saw a black Texta on the bed which she picked up and threw on a shelf.
Several items associated with the crime scene underwent DNA testing. They were a Bic marker pen; pen lid; and swabs taken from the complainant’s body, some of her underwear, and certain areas on a bedsheet. Expert evidence was given by Ms Bianca Laan, a forensic scientist employed by Victoria Police, in relation to the DNA testing. Ms Laan said that testing on the marker pen showed at least four DNA contributors. She said that it was 260,000 times more likely that the applicant was a contributor to the mixed DNA profile obtained from the pen than that he was not a contributor. In her opinion, that result provided very strong support for the proposition that the applicant was a contributor. There was no evidence that the applicant was a contributor to samples taken from the complainant’s genital area and buttocks or her underwear.
Ms Laan said that samples were taken from a white fitted sheet from Ms Moreton’s bed. Of two swabs taken from the fitted sheet, three DNA contributors, including Ms Moreton, were identified. The applicant was excluded as a contributor.
In cross-examination, Ms Laan accepted that DNA may be deposited by secondary transfer. She gave qualified acceptance to the proposition that if a person grabbed the arm of another person and then picked up a pen, DNA of that other person could be transferred to the pen. Ms Laan said that secondary transfer in that situation was possible if there were sufficient quantities of the DNA left on the person’s hand and the person touched another surface soon after.
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
The applicant has sought leave to appeal his conviction on two proposed grounds: that his trial representation was incompetent; and that the verdict of guilty on the rape charge was not supported by the evidence.
Ground 1: incompetence of counsel
We note that trial counsel was informed about this proceeding and the allegations of incompetence. He declined the opportunity to file an affidavit or submissions in response to the allegations of incompetence.[9]
[9]The Court’s practice in such matter is as described in Knowles (a pseudonym) v The Queen [2015] VSCA 141, [127]–[129] (Ashley, Redlich and Priest JJA).
Incompetence of counsel: the principles
The applicable principles are not in dispute. The ultimate issue for this Court is not whether or not the representation given to the applicant was competent but whether there has been a substantial miscarriage of justice. In D’Orta-Ekenaike v Victoria Legal Aid,[10] McHugh J considered the relevant principles which he noted arise in the context where a party is bound by the way his or her case is conducted by counsel. McHugh J said:
The particulars of incompetence generally involve issues concerning admissions or failure to adduce or failure to object to certain evidence. Wrongly advising the accused not to give evidence is a common complaint. Cross-examination is the other main area of challenge — the failure to pursue inconsistencies, the failure to put certain questions. More unusual examples include intoxication, advising the client to plead not guilty and raising character during examination–in–chief without properly checking the accused’s antecedents.
On many occasions appellate courts have reiterated the caution with which such allegations are approached. The Victorian Court of Appeal said:
No doubt there will be many decisions made by counsel which, in retrospect, might appear to have been ill advised. However the mere fact that such decisions have been made and appear in retrospect to have been unwise will not, of itself, lead a court of criminal appeal to quash a conviction, for the simple reason that the making of those decisions is part and parcel of the process of a fair trial ... A court of criminal appeal is poorly equipped to review decisions made by counsel during the course of a criminal trial, many of which have to be made on the spur of the moment or in circumstances with which an appellate court cannot hope to be familiar. Usually there must be something akin to flagrant incompetence of counsel before it will be moved to intervene …[11]
[10](2005) 223 CLR 1; [2005] HCA 12.
[11]Ibid 65 [197]–[198] (citations omitted).
The approach that this Court must take in considering an allegation of the present kind is also steeped in pragmatic considerations. A trial is an unfolding event where a myriad of forensic decisions are made. The issue is not whether different or better decisions could have been made at trial.
In TKWJ v The Queen,[12] Gleeson CJ said:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. ...[13]
[12](2002) 212 CLR 124; [2002] HCA 46.
[13] Ibid 130–1 [16].
Consideration
In his written case, the applicant relied on four matters that he said demonstrated a high level of incompetence on the part of trial counsel. They are that counsel failed:
(a) to object to passages in the record of interview that are said to raise the question of whether the complainant had a motive to lie;
(b) to adduce evidence that the defence had agitated for DNA testing to be conducted on the complainant’s bedsheet in addition to the fitted sheet;
(c) to properly challenge aspects of the complainant’s evidence or her credibility in three respects, in relation to: her prior inconsistent statements on whether or not there had been any penetration of her vagina; a particular piece of paper that was found by police at the scene; and her consumption of alcohol. At the hearing the applicant pressed only the first of these matters and abandoned reliance on the remaining two; and
(d) to seek an unreliable witness direction in respect of the complainant and a redirection on differences in the complainant’s account and how they might be viewed by the jury.
In assessing the adequacy of the applicant’s legal representation at trial in these respects, it is necessary at the outset to say something about the prosecution case and the challenges that confronted defence counsel. The prosecution case relied on the account of the assault given by Ms Moreton, including her almost immediate account recorded on the 000 phone call, the admissions by the applicant that he was in the house, DNA evidence, CCTV footage showing the time at which the applicant was in the vicinity, the inconsistent accounts given by the applicant, and the fact that his version, in many obvious respects, bordered on the fanciful.
It is to no overstatement to describe the prosecution case as extremely strong. The only area of real contention was whether the prosecution had proven, to the criminal standard, that there had been penetration such as to support a conviction on the charge of rape. On this aspect, as will be seen, the complainant gave differing accounts that called for some explanation. However, that was not the only issue on which the applicant chose to run his trial. Rather, his defence was that although he had committed burglary, he entered the house only to steal, and the whole account of a sexual assault and rape was a fabrication by Ms Moreton. When regard is had to the evidence as a whole, it could have come as no surprise that the jury rejected that account.
Given that the applicant contended that his trial counsel had been deficient in four respects, it is convenient to deal with them separately. Of course, it is also necessary to assess whether their combined effect might demonstrate incompetence of such a high degree as to have caused the trial to miscarry. It is possible that one or more poor decisions might be explained or tolerated but that their combination might reveal a different picture of the trial as a whole and the adequacy of the representation.
Motive to lie
The applicant submitted that counsel was derelict in failing to seek the exclusion of the following portion of the record of interview:
And I don’t want to throw assertions onto the victim, because they’re the victim already. I don’t want to blame – I’m not playing a blame game or anything, because it’s not my position, I was in the wrong. I should not have been there.
…
But I can only assume, this is my rational thinking, that they have used the sexual assault to – I don’t know, to get more – more people, like yourself onto their case. And I – I – I don’t feel good saying that, because like I said, I don’t have anything against women.
…
I love my wife.
…
I respect women but, I feel sick in saying that, you know, instead of just having a normal general duties officer on the case, they bring somebody else in like yourself and, like I said, I did make contact with that general area in the backside there.
This passage of the interview was briefly referred to in the closing address of the prosecutor. He noted that the complainant was not cross-examined on the suggestion that she had made up the allegations because she wanted more police resources to be devoted to her case. He said that such a suggestion did not make sense.
The applicant submitted that these assertions in his record of interview were inadmissible because they were irrelevant. He observed that it was not put to the complainant in cross-examination that she had a motive to lie and the existence of a motive to lie was not part of the defence case. He relied on a passage from Palmer v The Queen,[14] in which it was said that the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. He submitted that the evidence undermined his denials and should not have been before the jury.
[14](1998) 193 CLR 1, 7 [7] (Brennan CJ, Gaudron and Gummow JJ); [1998] HCA 2 (‘Palmer’).
The respondent submitted that the impugned comments were volunteered and, in the context of the interview as a whole and the issues in the trial, involved a relatively minor issue. Further, the applicant had the benefit of a conventional direction given by the judge that it was for the jury to decide whether or not to accept the existence of a motive to lie and if the jury found that the complainant was or might be fabricating a false allegation of a sexual offence to get more attention from police, then the jury would need to consider whether that affected the evidence that she had given. The jury were told that if they did not accept the existence of the motive then they were to disregard it.
Analysis
Although the passage in the record of interview is somewhat obscure and was volunteered by the applicant rather than given in answer to a specific question, it does involve some speculation by him as to why the complainant might be lying. The applicant suggested that by making a more serious allegation of sexual assault, the complainant was seeking to ensure that her allegations were taken more seriously by police or investigated by more senior or specialised police rather than those on general duties.
Plainly, the passage does not provide any evidence of a fact that might demonstrate that Ms Moreton had a motive to lie. It involves no more than speculation as to a possible reason. Generally, speculation by an accused as to a possible motive to lie by a complainant is irrelevant to any issue, and that is the case here.[15] The evidence was irrelevant and inadmissible.
[15]Ibid.
However, the issue is not merely whether the evidence was inadmissible but whether its admission resulted in a miscarriage of justice. In considering that issue it is relevant to observe that the admission of the evidence may have been the result of a deliberate forensic decision. In a memorandum given after the trial for the purpose of considering an appeal, trial counsel said that he now ‘apprehended in hindsight’ that the prosecutor’s reference in his closing address to a motive to lie may have served to reverse the onus of proof and that he had ‘deliberately eschewed any assertion of motive for the victim to lie’. This may suggest that counsel appreciated the import of the impugned passage in the record of interview but determined not to object to it, hoping the evidence would be before the jury as a possible explanation for the complainant’s account. It cannot be concluded that the failure to object to the evidence was an oversight and, for that reason, the applicant is bound by the course taken by his counsel. In any event, the inclusion of the irrelevant material in the record of interview did not result in a miscarriage of justice.
In some situations there is a risk that eliciting evidence from an accused on the topic of a complainant’s motive to lie might lead a jury to reason that the failure of the accused to proffer an explanation as to why the complainant might lie, provides affirmative support for the truth of the allegation. There is also the related potential for diminution of the burden and standard of proof implicit in the subtle suggestion of an obligation to provide such an explanation.[16] To avoid these consequences the High Court has said that an accused cannot be cross-examined on whether he or she can think of a reason why a complainant is lying.[17]
[16]R v O’Neill (2003) 7 VR 408, 414 [24] (Vincent JA); [2003] VSCA 204 (‘O’Neill’).
[17]Palmer (1998) 193 CLR 1; [1998] HCA 2.
However, the impact of the evidence of this kind must be assessed in its particular factual context. In at least four cases, admission of a similar kind of evidence has been held not to amount to a miscarriage of justice.[18] The outcome in those cases demonstrates that the admission of the evidence does not necessarily impugn the verdict.
[18]R v Arundell (1999) 2 VR 228; [1998] VSCA 102; O’Neill (2003) 7 VR 408; [2003] VSCA 204; R v MMJ [2006] VSCA 226, [41]–[42] (Warren CJ); Theodoropoulos v The Queen (2015) 51 VR 1; [2015] VSCA 364.
In this case, there was no possibility that the jury would have misused the evidence. First, in the context of the trial, the evidence was insignificant. The impugned passage was of negligible significance when compared with the other parts of the interview, which advanced a factual scenario that was frankly unbelievable. The real problem was not why the complainant might lie but whether it was plausible that she would fabricate the detailed version of events attributed to her so soon after the incident and convey that version in the manner she did over the 000 call. In other words, it was the content of her version and the circumstances in which she conveyed it, and the extreme improbability of the applicant’s account, that provided cogency to the prosecution case.
Second, the judge directed the jury on how they could use evidence that went to a motive to lie. Immediately after doing so, the judge reminded the jury, in plain terms, that the prosecution had the burden of proof on all issues.
The failure to excise the impugned passages of the record of interview was entirely immaterial to the outcome of the trial.
DNA evidence
The applicant contended that his trial counsel did not introduce evidence that the defence had agitated for DNA testing to be conducted on the complainant’s bedsheet.
The failure of the applicant’s counsel to draw attention to the fact that the defence had requested that the bedsheet be examined for DNA did not amount to a miscarriage of justice.
There is no evidence in this Court as to what requests were made by the defence as to DNA examination. That is fatal to the ground, which is premised on such a request having been made. It was not submitted that counsel should have on his own volition sought the testing. Assuming that such a request was made, it is not shown that the applicant’s trial counsel was made aware of the request and it appears that the applicant accepts that he was not.
The fact that the sheet was not examined was peripheral at best at the trial. Assuming that the jury were told that a request for a test had been made but not acted upon, it would not be open to the jury to speculate as to the result of any DNA test. They could take into account the fact that the prosecution had failed to obtain a test, the results of which might help show that the applicant was not present in the bedroom. In the context of this trial, the absence of such evidence was of no moment. The jury were told that there was no DNA evidence taken from the fitted sheet that inculpated the applicant. Further, Ms Laan said that the police had seized the items of bed clothing and the jury were told which items were tested.
The jury were told, correctly, that the absence of DNA evidence did not prove that the applicant was not on the bed and that there were a variety of reasons why DNA traces might not be found on items with which a person came into contact. It is true that the issue could have been explored with the DNA expert. In the context of this trial, good forensic practice did not compel that inquiry or the further examination of the issue.
The failure to further pursue the topic has not been shown to be negligent and had no bearing on the trial.
Failure to challenge the complainant
The prosecution case depended on the jury accepting the complainant as a truthful witness. In order to challenge the complainant’s account, defence counsel cross-examined on a number of matters. They included putting to her that there were inconsistencies in her account as to the sequence of events before she went to bed, which of the house lights she had left on, and whether she had looked in on her son before going to bed. It was put to her that these inconsistencies had arisen because she had reconstructed the events of the night and fabricated the assault.
As we have already stated, on the present application, the applicant submitted that defence counsel did not adequately challenge the evidence of the complainant on her prior inconsistent statements on whether or not there had been any penetration of her vagina.
In her evidence in chief, Ms Moreton told the jury that the man had roughly placed his hand near her vagina and had pulled on the string of her tampon and that he had placed his finger ‘in the entrance of [her] vagina’. When asked whether the witness was talking about inside or outside the entrance, she replied ‘like through the lips, it was no outer, he wasn’t – he was fully in, it was no outer touching at that point’. At this point the transcript records the witness seeking a break and the judge notes that she was upset. On resuming, the prosecutor moved on to a different topic.
The premise of this ground was that Ms Moreton had not been cross-examined on the basis of her having made prior inconsistent statements on the question of penetration to police and the forensic nurse Ms Van Eck. That premise was not established and the ground is baseless.
In cross-examination, Ms Moreton accepted that when asked whether she had been penetrated by the offender during the 000 call, she had said that she had not. She agreed that she had not told any of the attending police officers that she had been penetrated and did not say that there had been penetration of her vagina in either of her police statements taken on 14 October 2016 and 9 February 2017. She was cross examined about her account given to Ms Van Eck. Ms Van Eck, who had examined Ms Moreton shortly after the incident, gave evidence that she had asked Ms Moreton whether there had been any fingers placed in her vagina or anus to which Ms Moreton had replied ‘No’. This account was put to the complainant.
Ms Moreton accepted in cross examination that the first time she had alleged that her vagina had been penetrated by the finger of the assailant was at the committal in May 2017. Her explanation was that when she was asked about penetration she thought that she was being asked about penile penetration.
The issue of penetration and the existence of her inconsistent statements was well exposed. The issue was properly and fully raised and was the subject of final address by both counsel. Indeed, the prosecutor told the jury that the only difficult issue that they would have to grapple with was the question of penetration. There was no lack of competence in the challenge to this part of the prosecution case. It is irrelevant whether the cross examination could have been better. It did not fall below an acceptable standard.
Indeed, given that the applicant now submits under cover of ground 2 that there was no evidence to sustain the verdict on the rape charge, it is incongruous that he should submit that there should have been greater cross-examination or scrutiny of the complainant on this topic.
Unreliable witness direction
The applicant asserted that it was negligent for counsel not to seek an unreliable witness direction in respect of the complainant and to fail to seek a redirection in relation to inconsistencies in her account.
There is nothing in these points.
As to the unreliable witness direction, the short answer is that even if the applicant’s counsel had sought such a direction, there was no basis to give it. Ms Moreton’s evidence was that she had consumed two glasses of Moscato. There was no evidence that she appeared to be affected by alcohol by any of the police officers who attended. Her account in the 000 call was coherent and detailed. The recording does not reveal any suggestion of intoxication. The inconsistencies in her account were not such as to warrant an unreliable witness direction.
The failure to seek any redirection was neither a mark of incompetence nor did it cause a miscarriage of justice.
Proposed ground 2: was the guilty verdict on the charge of rape unsafe?
By way of an amendment to the application for leave to appeal, the applicant contended that the verdict on the rape charge should be set aside on the basis that it was not open to the jury to be satisfied beyond reasonable doubt that penetration had occurred.[19]
[19]Criminal Procedure Act 2009, s 276(1)(a); M v The Queen (1994) 181 CLR 487, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.
The applicant submitted that the following matters, in combination, meant the jury must have had a reasonable doubt about his guilt on the charge of rape:
(e) in answer to a question from the 000 operator, ‘Did he penetrate you at all?’ The complainant replied, ‘No, I was stalling him’;
(f) when the complainant told her housemate what had happened she said that ‘there was a man in the house. He just tried raping me’ and that he ‘tried to take my pants off’;
(g) the complainant told Detective Senior Constable Poulton and Detective Senior Constable Brooks that there had been no penetration;
(h) when the complainant was asked directly by Ms Van Eck whether any fingers had been placed in her vagina or anus, she said ‘No’;
(i) there was no mention of penetration in the complainant’s statements to police;
(j) the first mention of penetration was at the committal in answer to questions from the applicant’s counsel in which the following exchange occurred:
When his hand was down there, did he – was he – did he penetrate you in any way? – He was trying to with his fingers
…
He way trying to, but did he? – A little bit
He did a little bit, all right. Was that your vagina he penetrated? – Yes.
(k) the complainant accepted in cross-examination at the trial that over an 18 month period her allegation had gone from: (i) no penetration at all; to (ii) ‘a little bit’; and finally to (iii) ‘fully in’, and she agreed that that was so.
It was submitted that the complainant’s account of penetration was contradictory and so internally and externally inconsistent, and so unreliable, that it did not withstand forensic scrutiny; or put another way, there were such problems with the reliability and credibility in the account given by the complainant on the issue of penetration that the conviction for rape ought not be permitted to stand.
Analysis
There is no doubt that, if accepted, Ms Moreton’s evidence before the jury made out the charge of rape. The complainant was clear in her evidence that the applicant’s finger had, to some extent, penetrated the outer part of her genitalia. The issue therefore was whether the jury was bound to reject that evidence, or more accurately, could not accept it to the criminal standard in light of the alleged prior inconsistent statements. Consideration of this argument turns on whether there were prior inconsistent statements by the complainant, and if so, what effect that had on the jury’s assessment of the complainant’s evidence.
In our view, it was well open to the jury to accept that evidence to the criminal standard.
We are not persuaded that the accounts given to police and to Ms Van Eck were prior inconsistent statements that cast doubt on Ms Moreton’s credibility. They were easily capable of being reconciled with her evidence at trial. The complainant’s earlier accounts given to the 000 operator and to attending police were to the effect that no penetration had occurred. Given her immediate account that the applicant had tried to rape her, and that members of the community often associate rape with penile penetration, it is entirely explicable that she would have denied that penetration had occurred.
As the Court said in Harrison (a pseudonym) v The Queen:
[T]he question for the jury was not whether the complainant herself would regard what she had described as amounting to ‘penetration’. It would appear that she believed the term to be only properly applicable when there was ‘full penetration’ of the penis or finger inside the vagina. The only question for the jury was whether what the complainant described satisfied the legal definition of penetration of the vagina, as clearly and carefully explained to them by the judge.[20]
[20][2020] VSCA 157, [12] (Maxwell P, McLeish and T Forrest JJA).
That explanation does not account for her answer to the specific question posed by Ms Van Eck about whether there had been any fingers placed in her vagina. However, again, that answer has to be seen in context. It is not in dispute that Ms Moreton had a tampon in situ and her clear account was that the assailant was trying to remove it by pulling on the string and roughly groping around the vaginal area. It may reasonably be inferred that the removal of the tampon was a precursor to full penetration and that Ms Moreton feared that the man was trying to forcibly engage in penile penetration.
It is also likely on the evidence that the failure to remove the tampon and Ms Moreton’s evasive action to throw the man off her prevented the applicant from inserting his finger to any further extent and brought the assault to an end. However, none of that is inconsistent with a degree of penetration of the outer lips of Ms Moreton’s vagina. Indeed, it is entirely plausible that it occurred and there is no reason to reject the complainant’s evidence that it did. The complainant’s evidence that ‘he was fully in’, when read in context, does not amount to an exaggeration or shift in her account. At that point, her evidence was:
[W]hen you say the entrance, we’re talking about outside the entrance or inside the entrance?---Um, like through the lips, it was no outer, he wasn’t - he was fully in, it was no outer touching at that point, he was - can I please have a break?
Read fairly, the witness was not saying that the applicant’s finger had been fully inserted inside her vagina but that part of the finger was no longer touching the outer part of her genitalia and it had fully passed through the lips. The evidence can be reconciled with the answer given to the specific question asked by Ms Van Eck.
Even if the jury was satisfied that the account to either the police officers or to Ms Van Eck were prior inconsistent statements, that would not mean that the jury could not accept Ms Moreton’s evidence that penetration had occurred. The jury would need to take into account the earlier statements in assessing her evidence but that does not mean that her credibility or the reliability of her evidence was incurably suspect. It is notable that, although the applicant said the evidence as to penetration could not be accepted because of the prior inconsistent statements, he did not submit that Ms Moreton’s account that the assailant had entered her bedroom and sexually assaulted her could not be accepted to the criminal standard. Thus, he did not say her credibility and reliability were totally destroyed.
Looking at the complainant’s evidence as a whole, and even allowing for the possibility that she had given earlier inconsistent statements, it was well open to the jury to accept her evidence. Indeed, the assessment of evidence by a person who had given earlier and differing versions of what had occurred and who had been tested on those accounts in cross examination, will, generally, be a matter on which a jury will enjoy a considerable advantage over an appellate court. Considering and resolving inconsistencies, and whether to believe an account, is pre-eminently the domain of the jury as the constitutional trier of fact. In this case, there is no warrant for this Court to overturn the finding of guilt on the rape charge.
The evidence supported the conviction to the criminal standard and the matters relied on by the applicant do not render the verdict unsafe. They do not cause us to have any doubt that there was, at least to some extent, penetration of the complainant’s genitalia as described by her.
Conclusion
There is no merit in the application for leave to appeal against conviction and it must be refused.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
As already noted, the applicant was found guilty by a jury of aggravated burglary, rape and sexual assault. He also pleaded guilty to a single charge of stalking in relation to a different complainant, Abigail Wellish.[21] The applicant was sentenced in the following way:
[21]A pseudonym.
Charge Offence Maximum Sentence Cumulation Plea indictment – Indictment G12928806.B 1 Stalking 10 years 3 years 1 year Trial indictment – Indictment G12928806.C 1 Aggravated burglary 25 years 8 years Base 3 Rape 25 years 8 years 4 years 4 Sexual assault 10 years 4 years 1 year Total effective sentence: 14 years’ imprisonment. Non-parole period: 11 years’ imprisonment. Pre-sentence detention: 117 days. Other relevant orders: Pursuant to s 6F of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender in respect of charge 4. The stalking offence
The facts relevant to the stalking offence were summarised by the judge as follows:
When police executed a search warrant at your premises in relation to those offences, they seized your computer. They found a video file of your neighbour, Abigail Wellish. Ms Wellish is 47 years old and lives in [a town in Victoria] with her partner and two children. You and she live about 300 metres away from each other, but you are not known to each other.
The file consisted of video recordings of Ms Wellish in various states of nudity, including undressing completely as well as images of her breasts, buttocks and pubic area. On one portion, her partner can be seen lying in bed while she is undressing. The file was in fact a compilation of recordings which had been taken on five separate occasions between January and October 2015.
Most of the videos were taken from a position immediately outside the master bedroom window. Some are taken through the window of a spare bedroom. Ms Wellish’s property is a four-bedroom weatherboard house on a large block. The master bedroom is at the front of the house, set well back from the street and partially obscured by trees and an out building. The spare room faces the backyard and is not visible from the street. The bedrooms have no curtains because of renovations which were taking place.[22]
[22]Reasons, [28]–[30].
The reasons for sentence
After setting out the details of the offending, the judge noted that the aggravated burglary and sexual offences were extremely serious examples of such offences.[23] Taken with the stalking, her Honour considered they painted a very disturbing picture.
[23]Ibid [35].
The judge described the offending as being out of kilter with the applicant’s life, observing that he was 34 years of age with no prior convictions and an apparently happy marriage with a young baby. The judge noted that the applicant had been bullied at school, had few friends, and suffered from generalised anxiety. He left school at year 10 and subsequently obtained employment in a variety of areas, including in real estate and factory work. More recently, the applicant had lost stable employment and this had put a strain on his relationship with his wife leading to decreased self-esteem.[24]
[24]Ibid [43].
The judge noted her concern that the applicant had, in an interview with psychologist, Dr Cidoni, who had seen the applicant for the purpose of the plea, rationalised his stalking offence, including by suggesting that the victim had not drawn her curtains when undressing out of a desire to be noticed. The judge considered this to involve an element of victim blaming.[25]
[25]Ibid [47].
The judge noted the opinion of Dr Cidoni, based on some psychological testing, that the applicant’s overall risk of sexual offending was ‘average’. However, the judge concluded that given the applicant’s denials in respect of the sexual offences committed against Ms Moreton, that assessment had its limitations. The judge concluded that the behaviour reflected in both sets of offending was extremely serious and that the applicant posed a serious risk to the community.[26]
[26]Ibid [53].
In assessing the gravity of the offending, the judge noted that they were serious examples of the relevant offences. Both women were in their homes, places where they were entitled to feel safe. The judge said the behaviour struck directly at the heart of a person’s domestic security and capacity to feel safe.[27]
[27]Ibid [60].
The judge noted that the applicant continued to deny the offending against Ms Moreton and had no remorse. She noted that the applicant had lied and denied the offending, disposing of his boots to avoid detection, and had invented a story to try and meet forensic evidence. At the same time, the judge took into account the benefit of the plea on the stalking charge, which carried some utilitarian value.
At a number of points, the judge emphasised the role of community protection and deterrence in the formulation of the sentence. She added that, by reason of the sentences of imprisonment imposed on charges 1 and 3 of the trial indictment, the applicant became a serious sexual offender for the purposes of sentence on charge 4 and that protection of the community must be the principal purpose for which sentence was imposed on that charge.
Proposed ground of appeal
The applicant has sought leave to appeal on a single proposed ground. He contended that each of the individual sentences imposed (on the charge on the plea indictment and the three charges on the trial indictment), and each of the orders for cumulation, were manifestly excessive and resulted in the imposition of a total effective sentence that was manifestly excessive.
In his written case, the applicant submitted that, having regard to four matters, the sentence and its components must be seen as manifestly excessive. The matters are: the absence of any prior convictions; the applicant being on bail without incident for an extended period of time; proportionality; and despite the requirement that on charge 4 the applicant be sentenced as a serious sexual offender, the temporal nexus between the offences on the trial indictment required the compressing effect of totality to play a greater role in the sentencing calculus than it did.
In oral submissions, counsel for the applicant argued that the individual sentences for the aggravated burglary, rape and stalking were manifestly excessive, as was the total effective sentence and orders for cumulation. The applicant submitted that the aggravated burglary was not an ‘extremely serious’ example of the offence. The applicant, whilst accepting that rape is an inherently serious crime, submitted that the rape was at the lower end of the scale of seriousness. It was said that the sentence of 14 years’ imprisonment breached the principles of proportionality and totality.
Analysis
It is convenient to start with the sentence on the aggravated burglary charge. Section 77 of the Crimes Act 1958 provides that a person is guilty of aggravated burglary if the person commits a burglary and, relevantly, at the time of entering the building the person knew that a person was present or was reckless as to that fact. Again, insofar as is presently relevant, a burglary involves entering a building as a trespasser with intent to commit an offence involving an assault to a person in the building.
In R v Newman,[28] Winneke P described the gravamen of the offence of burglary as the unlawful entry with the relevant intent.[29] The extent to which conduct that occurs after entry may be relevant to the proper sentence to be imposed on a charge of burglary is not entirely straightforward. R v Newman was concerned with the question of how an assault might be taken into account in circumstances where either the prosecution do not separately charge the assault, or where there is an acquittal on the assault. The former situation, which is not present here, gives rise to the application of the principle explained by the High Court in R v De Simoni[30] that subsequent conduct, that could have been but was not the subject of a charge of a more serious offence, should not be treated as an aggravating factor. The more general principle being that a person should not be punished for an uncharged offence.
[28][1997] 1 VR 147.
[29]Ibid 152 (Hayne JA and Crockett AJA agreeing).
[30](1981) 147 CLR 383; [1981] HCA 31.
On the other hand, post entry conduct is plainly capable of being relevant to establishing the intent for which the person entered the building. And, of course, the offender remains a trespasser for so long as he or she remains in the building.
Although the element of the offence of burglary in the present context is an intent to assault, the trial of the applicant was run on the basis that the applicant intended to sexually assault an occupant of the house. Indeed, the applicant accepted before the jury that he had committed a burglary, though he argued that his entry into the house was for the purpose of stealing money. Given the course of the trial, it is clear that the jury accepted beyond reasonable doubt that the applicant intended to commit a sexual assault.
A couple of things follow from this. First, while in imposing an appropriate sentence for the aggravated burglary charge the applicant was not to be punished for the sexual assault and rape that later occurred, it was highly relevant to the gravity of the burglary to take into account the nature of the assault that he intended to commit and the reason he entered as a trespasser. To enter a residential home as a trespasser with intent to commit a sexual assault is, self-evidently, an extremely grave crime.
Second, in trying to assess where this example of the offence fits within the potential range of offending for aggravated burglary, it is relevant to have regard to the maximum prescribed penalty which provides a ‘yardstick’ reserved for the worst example of the offence[31] and current sentencing practice.[32] As part of the sentencing exercise, which yields no single correct answer,
a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called.[33]
In undertaking that exercise in relativity, it will be necessary to consider other instances of the offence, by reference to both the offender and the offending, and identify what made them more or less serious examples of the offence.
[31]Ibbs v The Queen (1987) 163 CLR 447, 451–2 (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ); [1987] HCA 46 (‘Ibbs’); Elias v The Queen (2013) 248 CLR 483, 494–5 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); [2013] HCA 31 (‘Elias’); Markarian v The Queen (2005) 228 CLR 357, 372 [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25.
[32]Sentencing Act 1991, s 5(2); DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41.
[33]R v Kilic (2016) 259 CLR 256, 266 [19] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48 referring to Ibbs (1987) 163 CLR 447, 452 (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ); [1987] HCA 46 and Elias (2013) 248 CLR 483, 494–5 [27] (French CJ, Hayne, Kiefel, Bell and Keane); [2013] HCA 31.
That does not mean that the absence of an aggravating factor seen in another case means that the instance of the offence before the court is necessarily less serious. It may mean nothing more than that the cases are different. Such a process of reasoning also invites impermissible two stage sentencing through a process of subtraction by reference to the absence of other potentially aggravating features. Thus, it may often be of little value in itself to note that on a plea for aggravated burglary the offender was not armed with a weapon and was not in company. To acknowledge those factors may merely show that the offender did not commit a different form of the offence[34] or the different offence of home invasion,[35] and may cast little light on the gravity of the particular instance that does not contain those elements.
[34]Crimes Act 1958, s 77(1)(a).
[35]Ibid s 77A.
It is better to focus on the features of the offending that are present and which may aggravate the gravity of the offence.[36] So, to use an example discussed in argument, the fact that the applicant did not forcibly and violently enter the premises may differentiate it from other cases in which the mode of entry has been seen as aggravating. Equally, a surreptitious entry may facilitate the commission of an intended sexual assault by ensuring that the victim is not forewarned. The objective gravity of the offending must focus on what the offender did in committing the relevant offence and the context in which those acts occurred.
[36]For example, Crawford (a pseudonym) v The Queen [2018] VSCA 113, [77] (Maxwell P and Kyrou JA); Brown v The Queen [2021] VSCA 208, [28] (Maxwell P and Sifris JA).
A consideration of other sentences reveals a wide range in the sentences imposed for both aggravated burglary and rape. Common to them is an acknowledgment of the seriousness of this offending. So, for example, there are a number of cases in this Court dealing with aggravated burglary which show sentences of a similar order to that imposed here.[37] Undoubtedly, 8 years’ imprisonment for a charge of aggravated burglary is high, and there are many examples of lower sentences.[38] Many of those cases can be distinguished because they were imposed on a plea of guilty.
[37]For example, DPP v O’Brien [2019] VSCA 254; Till v The Queen [2018] VSCA 122. On a conviction appeal in Tuite v The Queen [2020] VSCA 319, a sentence of 8 years’ imprisonment was not challenged.
[38]For example, Thomas v The Queen [2021] VSCA 97; Taleb v The Queen [2020] VSCA 329; Hill v The Queen [2020] VSCA 220; Laa v The Queen [2020] VSCA 136; Thomas v The Queen [2020] VSCA 107.
In our view, this was a serious example of aggravated burglary. The building was a private residence where the occupants were entitled to feel safe. Entry occurred under cover of night, and was for the intention of committing a sexual assault.
We turn then to the two sexual offences, commencing with the more serious charge of rape. The rape occurred in the victim’s bed, after she was woken to find a stranger seeking to physically subdue her by pinning her neck down to the bed. It was accompanied by a chilling threat to the victim’s son that had the effect of briefly overcoming the victim’s resistance. It was a despicable and cowardly crime. It must have been terrifying. The harrowing nature of the ordeal is further evidenced by the distress that is evident from the recoding of the 000 call made by the victim shortly after her attacker had fled.
Although the sexual assault was charge 4 on the indictment, the case was run on the basis that the acts constituting this charge preceded the rape (charge 3). The sexual assault involved the applicant placing his hand between the victim’s legs and touching her vagina. After that occurred, the victim struggled, the applicant made a threat about her son, and the victim told the applicant that she was menstruating. It was then that the digital penetration occurred.
There are some factors that plainly made the rape and the sexual assault charges serious: they occurred in the victim’s bed at night, the assault started when the victim was asleep, and the assault was both frightening and humiliating. The use of a threat directed to the victim’s child, who was in another room of the house, was particularly callous. The applicant had an opportunity to desist when the complainant told him she was menstruating. The penetration involved a serious invasion of the victim’s autonomy and bodily integrity. The penetration was relatively brief and occurred in the context of the applicant trying to remove the tampon that was in situ. Although the digital penetration was brief, and the physical overpowering of the victim left her some ability to courageously manoeuvre herself free, the other factors to which we have referred increased the gravity of the offending. As will appear, some of those factors also informed the gravity of the sexual assault and of the aggravated burglary.
The applicant submitted that this was a less serious example of rape because it involved the use of a finger rather than the penis, and the extent of the penetration was minimal and fleeting.
The first part of that submission is unsustainable. As the Court said in Director of Public Prosecutions v Mokhtari:
[T]he very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent. It is, quite simply, an act of violence …[39]
That is true whether the penetration is penile or digital.
[39][2020] VSCA 161, [41] (Maxwell P, Beach and Weinberg JJA).
The seriousness of a particular offence of rape depends on the facts of the case, as the High Court said in Ibbs:
The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.[40]
[40](1987) 163 CLR 447, 452 (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ); [1987] HCA 46.
As already noted, we accept that the penetration was brief. From the victim’s perspective, the applicant’s actions were plainly perceived as being anterior to penile rape. Her statement to police that the assailant had tried to rape her shows this to be the case. However, it is not desirable nor necessary to assess whether in this case a penile rape would have been more or less serious than the digital rape because no penile rape was committed. And, of course, the applicant is not to be sentenced for what might have occurred had Ms Moreton not bravely fought off the applicant. But it is clear this was an aggressive digital rape that was terrifying and humiliating and its duration was short because it was interrupted.
As is the case of aggravated burglary, an examination of other sentences imposed on a charge of rape show a wide range. There are instances where similar terms of imprisonment to that imposed in this case have been imposed.[41] Quite correctly, the sentencing judge took into account what was said by this Court in 2017 in Shrestha v The Queen,[42] about the need for an upward adjustment in sentences for offences of digital rape committed in circumstances of violence.
[41]For example, Wright v The Queen [2021] VSCA 243; Samuels (a pseudonym) v The Queen [2019] VSCA 14; Cao v The Queen [2018] VSCA 98.
[42][2017] VSCA 364.
In the circumstances, we do not regard this as a less serious example of rape.
The judge took into account a number of mitigating factors, including: the applicant’s age, the absence of any prior convictions, and the utilitarian value of the plea on the stalking charge. The judge acknowledged Dr Cidoni’s evidence but did not accept his assessment as to the applicant’s risk. It was well open to the judge to do so and in our view there was little of value to the applicant in the psychological evidence. It set out some matters of background that informed an understanding of the applicant, but there was nothing in that material that served to reduce his moral culpability for the offending, which the judge rightly regarded as high. In considering the need for community protection, the judge was also correct to conclude that the applicant’s prospects of rehabilitation were extremely guarded.
The principles that this Court must apply in dealing with an allegation of manifest excess in sentence are well established. The applicant must demonstrate that the sentence or its individual components are wholly outside the range permitted to the judge in the sound exercise of her discretion.
In our opinion, the individual sentences in each of the three charges relating to Ms Moreton were not manifestly excessive. They were undoubtedly stern, but they were justified given the seriousness of the offending and the fact that the applicant had pleaded not guilty.
The question of cumulation raises different questions, however, since a number of factors going to offence seriousness were common to each of the three offences. In terms of overall criminality, there is an obvious overlap across the offences.
Most importantly, they all occurred at night and in the victim’s house where she was entitled to feel safe. The aggravated burglary occurred with the intention of committing a sexual assault, and that intention was an element of the offending that took place in the house. The sexual assault and rape occurred within a short space of time as part of a single attack.
Orders for cumulation are designed to ensure that the sentence reflects the separate criminality involved in the individual offences. But the principle of totality requires that the total effective sentence not be disproportionate to the aggregate criminality involved in all of the offences.[43] As this Court said in R v O’Rourke:
[T]here are circumstances where the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for concurrency.[44]
[43]DPP v Jones (a pseudonym) [2013] VSCA 330, [90] (Redlich and Priest JJA); DPP v Drake [2019] VSCA 293, [26] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); DPP v Bowen [2021] VSCA 355, [8] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA).
[44][1997] 1 VR 246, 253 (Winneke P, Brooking and Callaway JJA).
Given the common features to which we have referred, and the fact that all three offences were part of a single sequence of events, we are persuaded that the orders for cumulation have produced a total effective sentence which is disproportionate to the aggregate criminality of the three offences. In other words, the level of cumulation and the total effective sentence are outside the range reasonably open in the circumstances of the case.
It is therefore necessary to resentence the applicant. We would not disturb the individual sentences. We would make the rape sentence the base sentence, as we regard it as the most serious of the offences. We would make no order for cumulation of the sentence for sexual assault. We would order that 2 years of the sentence for aggravated burglary be cumulative on the rape sentence. We would not disturb the sentence on the stalking charge, which we consider to be entirely appropriate.
The sentence that we would impose is as follows:
Charge Offence Maximum Sentence Cumulation Plea indictment – Indictment G12928806.B 1 Stalking 10 years 3 years 1 year Trial indictment – Indictment G12928806.C 1 Aggravated burglary 25 years 8 years 2 years 3 Rape 25 years 8 years Base 4 Sexual assault 10 years 4 years Nil New total effective sentence 11 years’ imprisonment New non-parole period 8 years and 6 months’ imprisonment
In the result, the sentence must be set aside. A total effective sentence of 11 years’ imprisonment should be imposed. A non-parole period of 8 years and 6 months’ imprisonment should be set.
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