Stanford v The King
[2024] VSCA 35
•18 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0097 |
| DONALD STANFORD[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]The published sentencing reasons use the pseudonym ‘Hawthorne’, as did documents filed in the appeal. Prior to handing down judgment, the Court was advised by the Director of Public Prosecutions that the victim consents to publication of the judgment without a pseudonym.
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| JUDGES: | BOYCE, WHELAN and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 February 2024 |
| DATE OF JUDGMENT: | 18 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 35 |
| JUDGMENT APPEALED FROM: | DPP v Hawthorne (a pseudonym) [2022] VCC 2063 |
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CRIMINAL LAW – Appeal – Conviction – Rape – Initial indictment particularised mode of penetration as vaginal – Indictment amended to particularise mode of penetration as anal – Complainant gave equivocal evidence of mode of penetration being vaginal or anal – Jury directed they could convict if satisfied of either anal or vaginal penetration – Prosecution conceded on appeal that it had disavowed reliance on vaginal penetration – Appeal allowed – Appellant re-sentenced to total effective sentence of 13 years with non-parole period of 9 years and 6 months.
Sentencing Act 1991 ss 6B, 6D, 6E, 16.
DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Lian [2019] VSCA 75; DPP v OJA (2007) 172 A Crim R 181; El-Waly v The Queen (2012) 46 VR 656; Filiz v The Queen [2014] VSCA 212; Knowles (a pseudonym) v The Queen [2015] VSCA 141; Nudd v The Queen (2006) 225 ALR 161; Pasinis v The Queen [2014] VSCA 97; Saab (a pseudonym) v The Queen [2022] VSCA 116; TKWJ v The Queen (2002) 212 CLR 124.
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| Counsel | |||
| Applicant: | Mr SN Andrianakis | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Slater and King Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BOYCE JA
WHELAN JA
T FORREST JA:
The applicant was charged on indictment with one charge of assault, four charges of making a threat to kill, five charges of rape, one charge of recklessly causing injury, one charge of false imprisonment, and one charge of indecent assault. The offences were alleged to have been committed in the period from May 2002 to May 2004. The complainant in relation to all of the charged offences was the applicant’s then domestic partner.[2]
[2]One of the threat to kill charges alleged a threat made to the complainant to kill another person.
The applicant pleaded not guilty to all of the charges.
On 26 August 2022, a jury in the County Count found the applicant guilty of one of the charges of making a threat to kill (charge 7), three of the charges of rape (charges 9, 12 and 13), the charge of false imprisonment (charge 10), and the charge of indecent assault (charge 11).
The jury acquitted the applicant of the assault charge (charge 1), three of the charges of making a threat to kill (charges 2, 4, and 5), one of the rape charges (charge 3), and the charge of recklessly causing injury (charge 6). The judge had directed an acquittal on one of the rape charges (charge 8).
Following a plea on 16 November 2022, the applicant was sentenced on 23 November 2022 as follows:
Charge Offence Maximum Sentence Cumulation 7 Make threat to kill[3] 10 years’ imprisonment 2 years’ imprisonment 1 year 9 Rape[4] 25 years’ imprisonment 8 years’ imprisonment 4 years 10 False imprisonment[5] 10 years’ imprisonment 2 years’ imprisonment - 11 Indecent assault[6] 10 years’ imprisonment 2 years’ imprisonment - 12 Rape 25 years’ imprisonment 12 years’ imprisonment Base 13 Rape 25 years’ imprisonment 10 years’ imprisonment 2 years Total Effective Sentence: 19 years’ imprisonment Non-Parole Period: 13 years Pre-sentence detention declared: 89 days Section 6AAA Statement: N/A Other relevant orders: Serious sexual offender in respect of charge 13. [3]Crimes Act 1958 s 20.
[4]Crimes Act 1958 s 38.
[5]At common law.
[6]Crimes Act 1958 s 39.
Proposed grounds of appeal
The applicant seeks leave to appeal against conviction on the following grounds:
1.The trial judge erred in allowing the prosecution to change their case on charge 9, by allowing the prosecutor to amend the charge from penetration of the vagina to penetration of the anus after the conclusion of all the evidence in the trial.
2.In the alternative to ground 1, the verdict of the jury on charge 9 is unreasonable or cannot be supported having regard to the evidence.
3.Defence counsel:
(a)failed to tender evidence of a prior inconsistent statement resulting in no evidence before the jury of the inconsistencies despite counsel’s assertions in his cross-examination of the complainant;
(b)erred by failing to object to the admission of irrelevant prejudicial evidence in relation to the applicant’s drug use;
(c)erred by misleading the complainant that she had not given evidence previously where she found the applicant with a needle in his foot;
(d)erred in the alternative to (b) and (c) by not requesting a misconduct direction in relation to the applicant’s drug use;
(e)erred by consenting to the statement and notes of Dr Griffiths to be read to the jury or alternatively by failing to cross-examine Dr Griffiths in relation to the circumstances of the making of his notes and statement;
The combination of which constituted a material irregularity that affected the outcome of the trial and deprived the applicant of a fair trial resulting in a substantial miscarriage of justice.
The respondent conceded that proposed ground 2 was made out, in response to which the applicant’s counsel advised that, if the concession were accepted, he did not press proposed ground 1. The applicant did not press sub-paragraph (e) of proposed ground 3, and advised that sub-paragraph (a) was ‘neutralised’ if the concession on proposed ground 2 was accepted.
The applicant seeks leave to appeal against sentence on the following grounds:
4.The learned sentencing judge erred in finding that as a result of the offending relating to charges 9–13 that the complainant was taken to hospital and her IUD contraceptive device was found to have perforated the walls of her uterus where there was no evidence to support that finding.
5.The individual sentences and the total effective sentence of 19 years with a non-parole period of 13 years are manifestly excessive in all the circumstances.
The applicant’s counsel advised the Court that he did not press proposed ground 4.
Circumstances of the offending[7]
[7]This description of the circumstances is drawn substantially from the Plea Summary following Jury Verdicts, tendered as Exhibit A on the applicant’s plea, and DPP v Hawthorne (a pseudonym) [2022] VCC 2063 (‘Reasons for Sentence’).
The applicant was in his mid-30s at the time of the offending. The complainant was aged in her early 30s at the time of the offending and, as earlier indicated, was at that time the applicant’s domestic partner.
In May 2002, the complainant purchased a property in regional Victoria. The applicant moved in with the complainant. In 2003 the complainant had a child with the applicant. The complainant has three other children.
The offending of which the applicant was convicted took place in three episodes during 2004.
The first episode occurred between 1 January 2004 and 31 January 2004. The complainant had returned home from a night out with friends. The applicant approached her and tightly grabbed her by the shoulders. He said to her: ‘if I ever find out you cheated on me, I’ll tie you and the kids up and burn the house down’ (charge 7 — threat to kill).
The second episode occurred between 1 April 2004 and 29 April 2004. The complainant was at home having a shower. The applicant also got into the shower and forced himself onto the complainant. He forced the complainant against the wall from behind where she could not breathe freely because the water was running over her face. The applicant inserted his penis into the complainant’s vagina or anus (charge 9 — rape).
The final episode occurred between 23 April 2004 and 7 May 2004. The applicant was listening to music in a bedroom and drinking alcohol. He told the complainant to have a shower and to ‘empty her bowels’. The applicant took out a box containing sex toys.
The applicant and the complainant commenced consensual sex. Then, the applicant blindfolded the complainant with a tea towel and used a dressing gown belt to tie the complainant’s arms to the foot of the bed, leaving her unable to move. She asked him to stop but he refused (charge 10 — false imprisonment).
The episode continued for a long time.
During the episode the applicant covered the complainant’s hand with what was believed to be a condom, lubricated it and inserted her hand into his own anus (charge 11 — indecent assault).
The applicant inserted objects from the box of sex toys into the complainant’s vagina (charge 12 — rape) and anus (charge 13 — rape). One of the items he used was a Fanta bottle. The complainant told the applicant that he was hurting her and to stop, but he persisted. If she moved, the applicant tightened the ties or blindfold.
The complainant suffered excruciating, unbearable pain. She begged the applicant to stop.
Ultimately, an ambulance was called and the complainant was taken to hospital. Her IUD contraceptive device was found to have perforated the walls of her uterus.[8]
[8]Material concerning the hospital admission and the IUD perforation was in the depositions but was not led at the trial. In the Reasons for Sentence the judge included in his description of the offending the hospital admission and the IUD perforation: at [11].
The complainant left the applicant and stayed in a refuge. She took out an intervention order against the applicant.
In 2005 she informed her general practitioner, Dr John Griffiths, that the applicant had sexually abused her and had raped her with an object.
On 21 September 2015 the complainant reported the matter to police at Shepparton.
Interrelationship of the proposed grounds
It is necessary to first address proposed ground 2, the subject of the respondent’s concession.
Leave to appeal should be granted on proposed ground 2.
If the respondent’s concession is accepted, the appeal against conviction on ground 2 must be allowed, the issues in relation to proposed ground 3 will be narrowed, and, should that ground fail, it will be necessary to re-sentence the appellant on all of the remaining charges of which he was found guilty, so that it will not be necessary to address the remaining proposed ground on sentence (proposed ground 5).
Ground 2 — charge 9 (rape) — the respondent’s concession
As indicated, charge 9 concerned an allegation of rape in the shower in April 2004.
At the start of the trial, the indictment alleged vaginal rape on charge 9.
In the complainant’s evidence-in-chief (which had been pre-recorded), she said that in the shower she was forced to have ‘anal sex’.[9]
[9]Transcript of Proceedings, DPP v Stanford (County Court of Victoria, CR-18-01925, Judge Wilmoth, 5 April 2022) 80 (‘AV’).
In cross-examination it was put to the complainant that she had told the prosecutor in her evidence-in-chief that the appellant had had anal sex with her. In response, she said: ‘No, it was vaginal sex in the shower’.[10] There was then an extended interchange as to inconsistencies in her evidence about this incident. At one point, she said: ‘And if I said it was anal sex at that time, that must have been the case. Right now, I cannot remember’.[11] Eventually, the complainant said: ‘Regardless of whether it was anal sex or vaginal sex, I was in the shower, I could not breathe, I asked him to get out, he wouldn’t, I asked him to stop, he wouldn’t’.[12]
[10]AV, 123.
[11]AV, 125.
[12]AV, 127.
The inconsistency was raised on the first day of hearing (Tuesday 23 August 2022). The judge addressed the prosecutor, stating: ‘You’ve got to amend your indictment’.[13] The matter was discussed between the judge and counsel. The judge posed a rhetorical question as to whether the prosecution had to prove one ‘particular rather than another particular’.[14] The judge finally observed that he thought the prosecution ought to amend the following morning.
[13]Transcript of Proceedings, DPP v Stanford (County Court of Victoria, CR-18-01925, Judge Chettle, 23–26 August 2022) 23 (‘Trial’).
[14]Trial, 26.
The following morning, the second day of the hearing, the prosecution did apply to amend charge 9 on the indictment so that where the word ‘vagina’ appeared, it would be replaced by the word ‘anus’.[15] This amendment was made in the presence of the jury.
[15]Trial, 29.
Reference was earlier made to the fact that the judge directed an acquittal on one of the rape charges, charge 8. The judge’s initial view, expressed to counsel in the absence of the jury later on the second day of hearing, was that charge 9 was also in ‘that category’.[16] The difficulty with charge 9, which was concerning the judge at that time, was whether the jury could be satisfied that the complainant was recalling ‘an identified individual event … as distinct from conflating a number of events’.[17] That discussion concluded with the judge observing to the prosecutor that he thought he was ‘in trouble’ on both charges 8 and 9, in response to which the prosecutor said: ‘It’s conceded, Your Honour’.[18] Counsel for the prosecution, a little later, canvassed the possibility of an alternative indecent assault charge, a suggestion which he then withdrew.[19]
[16]Trial, 67.
[17]Trial, 68.
[18]Trial, 70.
[19]Trial, 80–1.
The following morning (the third day of the hearing), in the absence of the jury, the judge told counsel that he had had ‘cause to revisit the issue of charge 9’. He said he had revisited it on the basis of this Court’s judgment in Star v The Queen.[20] He observed that the form of penetration is a particular of the charge of rape and not an element. While the jury would have to be satisfied beyond reasonable doubt that there was sexual penetration, they would not have to be satisfied beyond reasonable doubt of the form of the penetration.[21] The judge accordingly did not direct an acquittal on charge 9 (as he did on charge 8).[22]
[20][2020] VSCA 331.
[21]Trial, 85–9.
[22]Trial, 89.
In his address to the jury the prosecutor proceeded on the basis that the judge had foreshadowed. That is, in substance, that it did not matter whether the penetration was vaginal or anal.[23] Defence counsel in his final address confined himself on charge 9 to the submission that the complainant’s inconsistency on whether it was anal or vaginal penetration meant she was not credible.[24]
[23]Trial, 108–9.
[24]Trial, 121, 125–6.
In his charge to the jury, the judge set out the elements of the charge of rape. In relation to the sexual penetration element, the judge said:
The prosecution must prove beyond reasonable doubt that the accused man sexually penetrated [the complainant] in the way in which they allege.[25]
[25]Trial, 153.
Later, the judge referred to the evidence on charge 9 and then said:
Now the offence of rape is constituted, as I have told you, by an act of sexual penetration that is without consent and the appropriate mental [element]. That constitutes the offence. How it is done is a particular. Whether it is the introduction of a penis into an anus or a penis into a vagina is a particular. They are both still acts of sexual penetration. But you must be satisfied beyond reasonable doubt in relation to charge 9, that there was an act of sexual penetration. In this case, the prosecution have elected to opt for penetration by anus and she does give evidence about that.
You could not convict the accused man, unless you were satisfied beyond reasonable doubt that there was an act of sexual penetration, whether it was by anus or vagina. But there must have been an act of sexual penetration in the shower, on the occasion that is alleged, without her consent, with him knowing that she was not consenting, or might [not] be consenting.[26]
[26]Trial, 165–6.
In the appellant’s written case, it was submitted that the jury ought to have had a reasonable doubt in relation to charge 9 ‘based on the complainant’s differing and uncertain versions’.
In the respondent’s written case, it was conceded that the complainant’s evidence as to the form of penetration was ‘equivocal’. Reference was made to the inconsistencies in her evidence at varying points as to whether the penetration was vaginal or anal. It was said that no attempt had been made by the prosecutor to clarify the position. The respondent’s written case then stated:
Whilst the type or manner of penetration is only a particular, rather than a specific element of the offence, the prosecution must still prove that the act of sexual penetration occurred in the manner alleged. Here, because the indictment was amended to allege that sexual penetration occurred by the applicant inserting his penis into the complainant’s anus, the prosecution was required to prove that sexual penetration had occurred in that manner.
It is conceded by the respondent that the complainant’s evidence was not capable of establishing, beyond reasonable doubt, that the act of sexual penetration occurred in the manner alleged, namely by the applicant inserting his penis into the complainant’s anus.
On that basis, the respondent concedes that ground 2 is made out, in that the verdict of the jury on charge 9 is unreasonable or cannot be supported by the evidence.[27]
[27]Emphasis in original.
Prior to the hearing, the court advised the parties that they should address the question of whether the concession made by the respondent in relation to ground 2 ought to be accepted. In this respect, the court was mindful of the decisions in R v Castles,[28] El-Waly v The Queen,[29] and Saab (a pseudonym) v The Queen.[30]
[28](2007) 17 VR 329.
[29](2012) 46 VR 656.
[30][2022] VSCA 116 (‘Saab’).
Before us, counsel for the respondent began by submitting that, based upon the authorities referred to, the method or manner of penetration is not an element of the offence. It is a particular of the offence. Further, where there is ‘ambiguity’ in the evidence about the method or manner of penetration, the prosecution can allege alternative modes. But, counsel for the respondent submitted, the prosecution must particularise those alternative possibilities and ‘that’s where we fell short in this case’. It was submitted: ‘In effect what the prosecution did was disavow reliance on penile vaginal penetration as a mode of penetration’.
Counsel for the respondent referred to the judge’s instruction to the jury that the prosecution had to prove penetration in the way in which it alleged. Counsel for the respondent observed:
The way alleged here was that it was anal penetration and the prosecution was unable on the evidence to satisfy that charge beyond reasonable doubt in the way that it was alleged.
At the conclusion of the respondent’s submissions, the court indicated that the concession would be accepted for the reasons counsel for the respondent had explained. Counsel for the respondent submitted that if the concession were accepted, the appeal ought to be allowed and a verdict of acquittal entered. That is the course we will adopt.[31]
[31]By reference to what had occurred in Saab [2022] VSCA 116, in the course of submissions counsel for the respondent confirmed that this was not a matter in which the Crown sought a substituted verdict under s 277(1)(c) of the Criminal Procedure Act 2009 or an amendment of the indictment by this Court under s 165 of that Act.
Proposed ground 3 — counsel’s conduct of the trial
Proposed ground 3 contends that errors made by defence counsel deprived the appellant of a fair trial, resulting in a substantial miscarriage of justice.
In Knowles (a pseudonym) v The Queen,[32] this Court analysed in detail two High Court judgments on contentions of this kind, being TKWJ v The Queen[33] and Nudd v The Queen.[34]
[32][2015] VSCA 141, [130]–[146] (Ashley, Redlich and Priest JJA).
[33](2002) 212 CLR 124; [2002] HCA 46.
[34](2006) 225 ALR 161; [2006] HCA 9.
It is unnecessary here to repeat that detailed analysis. For present purposes, it suffices to say that the relevant issue is whether the course taken by trial counsel, assessed objectively, is capable of explanation as having been taken for the purpose of obtaining a forensic advantage or avoiding a disadvantage. There may be exceptional cases where counsel’s subjective explanation will be relevant, and, for that reason, as well as for reasons of fairness, the practice whereby the court advises counsel of the contentions made, and gives an opportunity to respond, should continue. In the end, the question is always whether there has been a substantial miscarriage of justice. But, in considering that issue, the courts are mindful of the wide discretion which trial counsel must have in determining how an adversarial trial is to be conducted, and the courts recognise that in a trial decisions must often be made quickly. It is not necessary that every decision of counsel be carefully considered or wise.
In this case, trial counsel for the appellant was notified, and he responded with an affidavit. We have read the affidavit, but this case is not one of those exceptional cases where the subjective explanation assists with the relevant objective inquiry.
Counsel for the appellant did not press sub-paragraph (a) (concerning prior inconsistent statements) which focused upon charge 9 or sub-paragraph (e) (concerning the notes of Dr Griffiths). The remaining sub-paragraphs upon which the appellant relied (sub-paragraphs (b), (c) and (d)) all concern evidence as to the appellant’s drug use. It was submitted that trial counsel had failed to object to the admission of evidence as to the appellant’s drug use; that trial counsel’s credibility before the jury had been adversely affected by an erroneous proposition put to the complainant that she had not previously given evidence of having seen the appellant with a needle in his foot, when she had previously given such evidence in a statement which had been tendered at the committal; and, in the alternative, that defence counsel had not requested a misconduct direction in relation to the appellant’s drug use.
Reference to the appellant’s drug use pervaded his record of interview.
Before us, counsel for the respondent pointed out that there were some aspects of what the appellant said about drug use in the record of interview which were relevant to the prosecution case.
Counsel for the respondent maintained the appellant’s responses in his record of interview demonstrated his own memory of that time, including of issues relevant to consent, was compromised by drug use (Q698–703).
The appellant referred to his drug use in the context of explaining the fact that he had been, at the relevant time, a ‘very angry man’ (Q198–232).
The contention that all references to the appellant’s drug use could have been excluded is not tenable.
More importantly, drug use by both the appellant and the complainant was an integral part of the appellant’s explanation in the record of interview of the nature of the sexual relationship between him and the complainant, and of his contention that it was always consensual. In substance, the explanation he gave was that they both used drugs (Q80–2), and that she encouraged his drug use to enhance his sexual performance (Q352–4 and Q703–8). The appellant’s description of the relationship was ‘a drug-induced love affair’ (Q615–16).
Further, the appellant’s drug use was an integral part of his explanation in his record of interview of circumstances in which he may have threatened persons (Q578–82).
It is not without relevance to note that the appellant was acquitted of three of the four charges of making a threat to kill, and was acquitted of two of the five rape charges.
The course that defence counsel took concerning the appellant’s drug use is objectively explained by the fact that all evidence of drug use could not be excluded, and by the fact that drug use was integral to his exculpatory contentions in relation to consent and threats.
Defence counsel’s conduct in putting to the complainant that she had not previously referred to the needle incident, when she had referred to it in a statement tendered at the committal, was a minor error, of a kind which might often happen in the course of a contested hearing of this kind. It was inconsequential.
Defence counsel did not seek a misconduct direction in relation to the appellant’s drug use. Such a direction might well have been seen to be unnecessary, and perhaps disadvantageous.
In the course of argument, counsel for the appellant suggested defence counsel should have sought an unreliable witness warning in relation to the complainant. That contention is not part of the proposed ground of appeal and was not referred to in the appellant’s written case. In any event, such a direction could well have been seen to be disadvantageous, in that it could well have highlighted the complainant’s evidence as to the role of drug use in their relationship, which may well have not been seen as positive in relation to the appellant.
The complaints made in relation to trial counsel’s conduct of the trial were entirely without merit.
The appellant was acquitted on many of the charges he was facing, and inconsistencies which trial counsel elicited and highlighted in relation to one of the rape charges of which he was convicted (charge 9) has resulted in the concession made by the respondent on this appeal which the Court has accepted.
Leave to appeal on proposed ground 3 will be refused.
Re-sentence
Given our conclusion on ground 2, it is necessary to re-sentence the appellant.
Before us, counsel for the appellant said that the appellant’s personal circumstances up to and including his incarceration were ‘fairly summarised’ by the trial judge. He pointed out that, as the appeal in relation to charge 9 had succeeded, the appellant was no longer to be sentenced as a serious sexual offender on charge 13.
In relation to the position since sentence, counsel for the appellant said that the appellant suffers from some medical conditions, including type 2 diabetes, and that he walks with a walking stick. The appellant has, the Court was told, integrated well into the prison system. He is part of a prisoner forum, and he has a job in upholstery.
The sentencing judge addressed the appellant’s prior and subsequent offending as follows:
You have admitted a prior criminal history. You have many dated prior convictions. In 1986, you were fined for drug offences. In 1987, you were fined for intentionally causing injury. In 1989, you were imprisoned for three years and six months with a non-parole period of 21 months for offences of armed robbery and attempted armed robbery. In 1992, you were sentenced to a suspended term of imprisonment for trafficking, possession, cannabis and possessing a prescribed weapon.
You breached the suspended sentence and was sentenced to serve the four months’ imprisonment in 1993, however, on appeal that order was set aside and the suspended sentence reimposed. In 1994, you were imprisoned for one month for offences of driving while disqualified and possessing a pistol without a licence.
You do have subsequent convictions that bear upon your prospects for rehabilitation. In 2005, you received a bond for breach of the intervention order. In 2006, you were fined for breach of that order. In 2014, you received a Community Corrections Order for the offence of threat to kill and using a carriage service to harass. In 2021, you were sentenced to [140] days imprisonment for contravening a family violence intervention order, committing an indictable offence whilst on bail, harassing a witness, making a threat to kill, and stalking. Those offences relate to your victim in the offending for which I am to sentence you.
The details of this offending are set out in Exhibit C which includes a police summary.
You threate[ne]d to kill your victim in the offending I’m dealing with. You told your daughter you wanted to bail up your victim, that you would shoot your victim or get someone else to do it and, ‘Gonna shoot that cunt, straight between the eyes.’ This subsequent material does not bear upon your sentence for the offending, save that it demonstrates your prospects for rehabilitation are poor, and that you represent a risk to your victim in the future.[35]
[35]Reasons for Sentence, [16]–[20].
In relation to the appellant’s personal circumstances, the sentencing judge said:
You are now 54 years of age, being born on 20 September 1968. You grew up in Melbourne and your father was an engineer, he died ten years ago. Your mother is a retired seamstress still living in Melbourne and you have one sister. You enjoy strong family support from both your mother and sister. Each provided letters of support, Exhibit 3, describing you as a hard-working family man and someone whose life changed for the better since ceasing illicit drug use.
You were educated to Year 10 level. You then commenced but did not complete a motor vehicle apprenticeship.
You had begun illicit substance use and found yourself in prison for armed robbery.
You did resume employment with Holden upon your release from custody but relapsed again into drug use. After being unemployed for some four years you worked for 12 years in a wool factory in Williamstown and five years with a pharmaceutical company. You have been unemployed since your father died.
In 2014, you sustained serious injury to your spine when a tree fell on you. You have been in receipt of social welfare payments recently and you lived in rental accommodation in regional Victoria involving yourself in community radio and animal welfare.
You have a number of health issues. In 2020, you suffered a heart attack and underwent surgery. This year you have undergo[ne] spinal surgery to your neck and require strong painkillers for the result[ing] pain.
You have had a long term on again, off again relationship with your victim for over 30 years. You had a sexual relationship with her for 15 years, even when she was married. You and your victim have a 17-year-old daughter. You claim to have a positive relationship with that daughter, but the behaviour surrounding your subsequent offending as disclosed in Exhibit C, throw grave doubts as to your assertions to psychologist, Carla Ferrari, in this regard. It appears to me that you are somewhat delusional and untruthful as to that involvement.
Whilst in a relationship with your victim, you regularly abused cannabis and amphetamines. Subsequently, you have turned to significant alcohol abuse. Fortunately, you claim to feel much better now that you are abstinent from alcohol whilst you have been on remand.
I accept that your medical issues and resultant depression will make custody more onerous for you, tha[n] it would for someone without your issues. Your counsel correctly expressly disavowed reliance on the principles set out in R v Verdins.[36]
[36]Reasons for Sentence, [22]–[30].
A victim impact statement was tendered from the complainant. The judge summarised it as follows:
Your victim filed a victim impact statement, Exhibit B. She read it to the court. She has been seriously and permanently damaged by your offending. What she thought was love, caused her hurt, fear and terror. She felt like a prisoner and a prostitute in her own home and she feels that her pain and suffering are irreparable. She became effectively homeless when she sought to escape from you. She avoids social interaction because she feels unsafe and fearful. She has difficulty finding joy, suffers memory problems and impaired sleep. She states, “I have trouble moving on, the trauma will live forever”.[37]
[37]Reasons for Sentence, [15].
In relation to mitigation, having reviewed the material, the judge’s relevant observations were as follows:
There is little that can be said to mitigate your offending. You exhibit no remorse or contrition for your controlling, abusive and violent behaviour. You have a history of violence and demonstrated ability to be self-delusional, self-centred and dishonest. The best that can be said for you is that you had a reasonable work history, enjoy family support and have the burden of medical issues including depression that will continue to cause you problems in the future.[38]
[38]Reasons for Sentence, [31].
We agree with all of the above quoted statements and conclusions of the sentencing judge.
The offence of rape is now an offence the subject of the scheme introduced by the Sentencing Amendment (Sentencing Standards) Act 2017, referred to as the standard sentence scheme. The scheme applies to offences committed on or after 1 February 2018. It accordingly does not apply to charges 12 and 13.
We have reviewed sentencing statistics in relation to rape offences for periods prior to the introduction of the standard sentence scheme. They reveal a very wide range of sentences of imprisonment for rape, from sentences as low as 3 months to sentences of 20 years. Both the median sentence, and the mode, were consistently around 5 years, but there were always a not insignificant number of sentences of 10 years and above.[39]
[39]Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria, 2001–02 to 2005–06 (Snapshot No 26, 22 June 2007) 3; Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria, 2003–04 to 2007–08 (Snapshot No 83, 30 June 2009) 4; Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria, 2005–06 to 2009–10 (Snapshot No 117, 30 November 2011) 4; Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria, 2007–08 to 2011–12 (Snapshot No 145, 21 June 2013) 4; Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria, 2009–10 to 2013–14 (Snapshot No 176, 26 June 2015) 3; Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria, 2011–12 to 2015–16 (Snapshot No 207, 31 May 2017) 3.
Cases involving offences of rape within an existing relationship have come before this Court on a number of occasions in recent years.[40] Some of those cases involved degrading and humiliating conduct similar to that which occurred here.
[40]See, eg, R v Fuller-Cust (2002) 6 VR 496; [2002] VSCA 168; R v RJR [2005] VSCA 315 (‘RJR’); R v Abela (2007) 17 VR 1; [2007] VSCA 22 (‘Abela’); R v GJ [2008] VSCA 222 (‘GJ’); Johns (a pseudonym) v The Queen [2016] VSCA 97 (‘Johns’); Mulligan (a pseudonym) v The Queen [2017] VSCA 94 (‘Mulligan’); Samuels (a pseudonym) v The Queen [2018] VSCA 251 (‘Samuels’); Forbes (a pseudonym) v The Queen [2018] VSCA 341 (‘Forbes’); Bolton v The Queen [2019] VSCA 21 (‘Bolton’); Flynn (a pseudonym) v The Queen [2020] VSCA 173 (‘Flynn’); Matovic v The Queen [2021] VSCA 212 (‘Matovic’); DPP v Avalos (a pseudonym) [2023] VSCA 117 (‘Avalos’).
Relevant individual sentences for rape after a plea of not guilty imposed or upheld by this Court in the cases referred to are generally in the range of 6 to 8 years.[41] Individual sentences of 4 years, described as ‘lenient’, were confirmed for a youthful offender.[42] Sentences of 3 years 4 months, 3 years 10 months, 5 years, 6 years (2), 6 years 3 months, 7 years, and 8 years (2) on a series of rapes in one appeal were described as ‘lenient’.[43] This Court held that sentences of 10 and 12 years for an offender with prior convictions for rape and violence were ‘plainly well within range’.[44] A sentence of 12 years was imposed for a particularly bad rape (involving penetration by a firearm) after a guilty plea.[45]
[41]RJR [2005] VSCA 315; Abela (2007) 17 VR 1; [2007] VSCA 22 (5 years 6 months on re-sentence); Johns [2016] VSCA 97; Mulligan [2017] VSCA 94; Samuels [2018] VSCA 251; Forbes [2018] VSCA 341; Flynn [2020] VSCA 173; Avalos [2023] VSCA 117.
[42]GJ [2008] VSCA 222, [62] (Nettle, Weinberg JJA and Hargrave AJA).
[43]Avalos [2023] VSCA 117, [44], [49] (Ferguson CJ, Priest AP and T Forrest JA).
[44]Bolton [2019] VSCA 21, [63] (Beach JA, Champion and Taylor AJJA).
[45]Matovic [2021] VSCA 212, [12], [63] (Kyrou and McLeish JJA).
Comparable cases may illustrate the possible range of sentences but they cannot define it.[46] In 2019, this Court observed that sentences for rape have increased somewhat in recent years, which accords with and respects community expectations.[47] When sentencing men who violently offend against female domestic partners, specific and general deterrence are very important factors.[48]
[46]DPP v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, Ashley JA agreeing at 206 [71], Redlich JA agreeing at 206 [72]); [2007] VSCA 129; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 445 [50]–[52] (Kiefel CJ, Bell and Keane JJ), 453–4 [82]–[83] (Gageler and Gordon JJ); [2017] HCA 41.
[47]DPP v Lian [2019] VSCA 75, [60] (Ferguson CJ, Kaye and Weinberg JJA).
[48]Pasinis v The Queen [2014] VSCA 97, [53] (Neave JA and Kyrou AJA), quoted in Forbes [2018] VSCA 341, [42] (Ferguson CJ, Whelan JA and Macaulay AJA). See also Filiz v The Queen [2014] VSCA 212, [21] (Maxwell P and Redlich JA).
On the two rape offences here, the matters which seem to us to be significant are:
•the importance of specific and general deterrence in this context;
•the absence of remorse, the poor prospects of rehabilitation, and the lack of insight, as particularly demonstrated by the subsequent offending concerning the complainant;
•the appellant’s criminal history, recognising that most of that offending is old;
•the delay between the offending and the charges, and some positive changes made by the appellant in that period; and,
•the seriousness of the appellant’s conduct, involving penetration with objects, injury to the complainant requiring hospitalisation, pleas and distress which were unheeded, and humiliating and degrading treatment.
The sentence on charge 12 (vaginal rape with an object) of 12 years’ imprisonment was high. The offending was particularly serious, and the false imprisonment and indecent assault offences occurred in the same episode, on each of which the appellant was sentenced to 2 years’ imprisonment without any cumulation. This rape is no longer to be treated as having occurred after the charge 9 rape. On a re-sentence, it seems to us that the appropriate re-sentence on charge 12 is 10 years’ imprisonment.
The sentence on charge 13 (anal rape with an object), which also took place during the same episode which resulted in the charge 12 offence, was 10 years’ imprisonment. Because of the convictions on charges 9 and 12, the sentencing judge was sentencing the appellant on charge 13 as a serious sexual offender.[49] He did not, however, impose a disproportionate sentence.[50] We will impose the same sentence as the sentencing judge imposed on that charge.
[49]Reasons for Sentence, [35], [37]. A ‘serious sexual offender’ includes an offender, other than a young offender, who has been convicted of two or more sexual offences for each of which he or she has been sentenced to a term of imprisonment: Sentencing Act 1991 s 6B(2) (definition (a) of ‘serious sexual offender’).
[50]Reasons for Sentence, [36]. In sentencing a ‘serious offender for a relevant offence’, the Court may, in order to achieve the protection of the community from the offender, impose a sentence longer than that which is proportionate to the gravity of the offence: Sentencing Act 1991 s 6D.
We will treat charge 12 as the base sentence, as the sentencing judge did.
As the sentencing judge was sentencing the appellant on charge 13 as a serious sexual offender, the usual presumption of concurrency was replaced by a presumption of cumulation.[51] On re-sentence, that is not the case. The cumulation of 2 years seems to us to be appropriate, in any event. The charge 13 anal rape occurred in the same episode as the offences the subject of charges 10, 11 and 12, but was distinct serious offending. Notwithstanding the altered position in relation to concurrency/cumulation, it seems to us that cumulation of 2 years remains the appropriate disposition.
[51]Sentencing Act 1991 ss 6E, 16(1), 16(1A)(c). The sentencing judge did not refer to this in the Reasons for Sentence.
We will otherwise impose the same sentences and cumulations as the sentencing judge.
Accordingly, the total effective sentence on re-sentence will be 13 years’ imprisonment. We fix a non-parole period of 9 years 6 months.
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