1 Following a trial the appellant was sentenced in the County Court on 14 December 2011 on two charges of rape, one charge of indecent assault and one charge of possessing child pornography. Maxwell P granted the appellant leave to appeal against the sentences imposed on grounds which included that the sentencing judge erred in treating the trial judge's ruling as to tendency evidence as a relevant consideration in sentencing, and that she failed to have proper or sufficient regard to current sentencing practices for rape. In addition during the hearing of the appeal, counsel for the appellant was granted leave to add a further ground that the sentencing judge inappropriately refused to discount the plea of guilty on the charge of indecent assault. Each of these grounds, which allege discrete error, has been made out. For the reasons that follow the appellant must be re-sentenced.

2 On 15 June 2011, the appellant pleaded guilty to one charge of indecent assault. On 23 June 2011, he was convicted by a jury of two charges of rape. The appellant also then pleaded guilty to the charge of possession of child pornography. The appellant's plea was to be heard on 24 July, but for reasons that are not pertinent, the trial judge was unable to hear the plea or sentence the appellant. The plea was eventually heard by a judge who was not the trial judge on 2 December 2011.

Indecent assault [s 39(1) of the Crimes Act 1958]

Rape [s 38(1) of the Crimes Act 1958]

Rape [s 38(1) of the Crimes Act 1958]

Possession of child pornography [s 70(1) of the Crimes Act 1958]

On the charge of indecent assault: 24 months' imprisonment; on the charge of possession of child pornography: 8 months' imprisonment

4 In either late October or early November 2007, the appellant and the complainant had been drinking together, first at a hotel and then at the appellant's house, where they also smoked marijuana. They had known each other socially for about 12 months. They went into the appellant's bedroom so that the complainant could play the appellant's guitar. The appellant tried to kiss the complainant on the neck, which she resisted. The appellant pushed her onto the bed and lay on top of her. The complainant said 'no, no' and tried to push him off. After some time, the complainant felt weak and passed out, fully clothed. While the complainant was unconscious, the appellant removed some of her clothing and used his mobile telephone to record a video of himself performing sexual acts on the complainant, including fondling her breasts and holding his erect penis close to her face, although there was no sexual penetration. The video went for about ten minutes. These acts constituted the charge of indecent assault.

5 The complainant awoke to find the appellant penetrating her vagina with his penis. This was the first charge of rape. After waking up, the complainant asked the appellant if he was wearing a condom. The appellant got up to put on a condom. When he returned, the complainant was trying to put her clothes back on. She said 'no' and tried to push the appellant off, but he forced her back onto the bed and sexually penetrated her again. This was the second charge of rape.

6 The offending came to light in February 2008 when the appellant lost his mobile phone. The phone was handed into the police, who found images of young girls stored on the phone that appeared to have been taken covertly. After a police interview with the appellant, police officers searched the appellant's home computer and found more than 100 images of child pornography. These acts constituted the charge of possession of child pornography. Police also found the video recordings of the complainant, which led to an investigation and eventually to charging the appellant with rape and indecent assault.

Ground 1 - Improper regard to tendency ruling

7 During the trial, the judge made a ruling that the video recording of the appellant performing sexual acts on the complainant was admissible as tendency evidence in relation to the first charge of rape, on the basis that it showed a tendency of the appellant to engage in sexual activity with the complainant while she was asleep. However, the trial judge refused to admit into the evidence the filming as tendency evidence in respect of the second rape, which occurred while the complainant was awake.

8 During the plea hearing, counsel for the appellant conceded that the recording was an aggravating feature of the indecent assault. The sentencing judge was unclear as to how the video impacted upon the offences proven. Her Honour indicated during the plea that it was her understanding that as a consequence of the trial judge's tendency ruling the video was relevant to the first rape. The appellant's counsel disputed that it was an aggravating feature of either rape as the recording had ceased by the time of the first rape. The prosecutor maintained that, as the recording of the indecent assault and the first rape were linked, the sentencing judge was entitled to take the recording into account as an aggravating feature of both offences. The prosecutor, by so submitting, did not provide her Honour with the assistance to which she was entitled

9 As is clear from the sentencing remarks, her Honour sentenced the appellant on the basis that the trial judge's tendency evidence ruling was relevant in determining whether the appellant's recording of himself performing sexual acts upon the complainant was an aggravating feature of the indecent assault and the first rape. Her Honour stated:

The recording, the indecent assault and the first rape are linked. However, I am told that the trial judge ruled that the recording was not to be used by the jury as tendency evidence for the second rape. I am constrained therefore to not find the making of the recording as an aggravating feature for the whole of the conduct with the young woman, but I do find that it is an aggravating feature of the indecent assault and the first rape. I also find it an aggravating feature that you persisted with the recording even after the young woman stirred, causing you to drop your phone. That is, you had the opportunity then to desist, but you did not.[2]

10 The appellant submitted that her Honour erred in finding that the trial judge's ruling as to tendency evidence was relevant to the question of whether the video recording was an aggravating feature of any of the offences. Further, the appellant submits that her Honour doubly punished the appellant by finding the recording to be an aggravating feature of both the indecent assault and the first rape, which led her Honour to impose a greater level of cumulation for both offences than would otherwise have been the case.

11 In our opinion, her Honour's use of the tendency ruling led her into error. The sentencing remarks demonstrate that her Honour used the tendency ruling as a basis for finding that the recording was an aggravating factor in relation to the indecent assault and the first rape. The trial ruling was not an appropriate reference tool for the purposes of sentencing the appellant. It had no relevance to the question whether the recording was to be considered an aggravating feature of any or all of the offences. The video recording could not constitute an aggravating feature of the first rape. Furthermore, once it was treated as an aggravating feature of the indecent assault it could not for that reason alone be further taken into account as an aggravating feature of the first rape. For those reasons it should not have affected the sentence on the first count of rape. Although it was unnecessary to show how a discrete error has in fact impacted upon the sentence, the appellant pointed to the fact that the sentence of five years and six months' imprisonment puts it at the higher end of the sentencing range for offenders convicted of raping an unconscious victim.[3] For these reasons, Ground 1 is upheld.

Ground 5 - The sentencing judge inappropriately refused to discount the plea of guilty on the charge of indecent assault

12 The appellant submits that the sentencing judge erred in failing adequately to discount the appellant's sentence as a result of his plea of guilty on the charge of indecent assault. In the sentencing reasons, her Honour said:

There are some mitigating features in your case which I must balance against the seriousness of your offending. In respect of the charges of indecent assault and possession of child pornography, I take into account that you pleaded guilty.

Your admission of guilt to the indecent assault did not avoid or shorten the trial or spare the young woman from giving evidence. Further, your account to the jury of how this occurred in the context of previous consensual sexual activity was rejected by them.

The recording and the images of child pornography disclosed the offending in each instance such that a plea of guilty was inevitable for each offence. Neither plea was entered at an early stage. However, I accept that the pleas were entered as an expression of a degree of remorse for the criminality that each offence displayed and, in respect of the child pornography charge, did save the community the time and cost of a trial.

As a result, the sentences I intend to impose for each of these offences will be less than would have been imposed had you pleaded not guilty and been found guilty, but less weight will be given to the guilty plea for the indecent assault.[4]......

There is limited weight to be applied to the plea of guilty for the indecent assault, for the reasons I previously gave, but considerable concurrency will be provided.[5]

13 In our view, the sentencing judge was not entitled to give less weight to the pleas of guilty on the charge of indecent assault, either on the basis that the pleas of guilty did not reduce the length of the trial or by reference to the strength of the Crown case.

14 On the first point, the fact that the appellant's plea of guilty did not reduce the length of the trial on other charges had no bearing on the sentencing discount to which he was entitled on the charge to which he pleaded guilty. It is undoubtedly true that one of the reasons for the sentencing discount is that a plea of guilty saves the State and the victim the costs, resources and trauma of a trial.[6] However, there is no basis for applying reverse logic in order to conclude that because a plea of guilty did not obviate the need for a trial, the appellant was disentitled to a sentencing discount. Weight must be given to the utilitarian benefit of the plea of guilty, irrespective of whether, because of other charges, the plea was of little utility. As appears from the joint judgment in Phillips v The Queen, '[a] discount for the utilitarian benefit of the plea must always be allowed on the sentence to be imposed, save for the exceptional category of case'.[7]

15 On the second point, the Court of Appeal stated in Phillips v The Queen,[8] that a sentencing judge must take great care before reducing the discount for a plea of guilty because of the relative strength of the Crown case. Referring again to the observations in the joint judgment:

The strength of the Crown case may cast doubt on the extent of an offender's remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice and so result in a lesser discount than one would otherwise allow. This proposition is unexceptionable. However care must be taken when considering whether the strength of the Crown case can support an inference that these subjective criteria played little or no role in the decision to plead guilty. That is because, whatever the strength of the Crown case, an offender may be truly remorseful and accepting of responsibility. But, as was stated in the passage from Pajic, a Crown case that is obviously weak may, if the context permits, provide cogent evidence of the existence of the subjective criteria.[9]

16 While Phillips had not been handed down at the time of the appellant's sentence,[10] Phillips merely reflected an established common law principle. In Pajic v The Queen, Redlich JA said:

Section 5(2E) of the Sentencing Act 1991 requires the sentencing judge to have regard to the plea of guilty. One of the matters which may affect the appropriate discount to be allowed for a plea of guilty is the strength of the Crown case. Thus, a plea of guilty in the context of a weak Crown case will generally warrant an additional level of discount. It will be proper for a sentencing judge in some particular cases to find that the circumstance of a plea of guilty which might otherwise attract leniency is absent. Where the Crown case is a strong one, the conclusion may sometimes be justified that the plea has resulted from the recognition of the inevitable and so qualifies the extent of genuine contrition.

It must not be overlooked that whatever arguments there be about the degree of remorse shown by the plea, the strength of the Crown case will have no bearing upon that part of the discount which is to be allowed by virtue of utilitarian considerations. And a reduction in the discount because the strength of the Crown case shows that the plea reflects only limited remorse should only occur where conditions exist which justify such a conclusion. They are not to be found in the present case. The timing of the plea and the attitude of the appellant prior to his plea as to his offending conduct are two critical contextual factors. The plea here was neither a late one, nor did it follow a denial of guilt during the investigative stage. It could not be said that the plea was in response to a strong case, which therefore cast doubt on the level of his remorse or his acceptance of responsibility or his willingness to facilitate the course of justice. The discount for his plea of guilty was not to be reduced because of the strength of the Crown case. That is so because the utilitarian benefit of the plea could not be affected and, on the proper contextual analysis, neither could the level of contrition to be attributed to the appellant by virtue of the plea.[11]

17 Counsel for the respondent conceded error in this regard. He acknowledged that the sentencing judge's finding that a plea of guilty on the charge of sexual assault was 'inevitable', was not a basis for reducing the sentencing discount to be allowed in recognition of the utilitarian value of the plea. This ground of appeal is also made out.

Ground 2 - Insufficient regard to current sentencing practices for rape

18 Having heard from both parties as to the appropriate sentencing range, the sentencing judge expressed her own view of the current sentencing practices for rape:

I have carefully considered all of the matters put before me, and the relevant authorities, including the helpful survey of cases involving sleeping victims undertaken in Hasan [2010] VSCA 352. With the greatest of respect to the sentencing judges, for a number of those cases I find myself in total agreement with the Court of Appeal where at paragraph 60 the Court said:

"This brief survey of recent sentencing decisions underlines, in our view, the need for a review of current sentencing practices for rape. We note that, in a forthcoming Crown appeal against sentence, the Director is seeking just such a review."

The brief survey of recent sentencing decisions in Hasan shows that on conviction for rape following a trial, current sentencing practice is for a sentence as low as three years and as high as six years. I understand that no such review has yet taken place. In the absence of a review of the sentencing practice, I remain constrained to a certain extent.[12]

19 As we have already noted in our reasons at [10] the sentence imposed by the sentencing judge on the first charge of rape was at the high end of the sentencing range for rape offences of this kind. Her Honour had regard to the appropriate sentencing range, but expressed her concern with the adequacy of current sentencing practices for rape, by reference to the Court's remarks in Hasan that current sentencing practices may need to be revisited, and the pending Director's appeal in Werry on that very question. Her Honour's remark that she was bound by current sentencing practices 'to a certain extent' must be seen in light of her stated concern, and in light of the severe overall sentence she imposed.

20 The appellant submits that the sentencing judge erred in considering herself constrained by current sentencing practices only 'to a certain extent', and in limiting the relevance of current sentencing practice because there had been no plea of guilty or remorse in respect of the charges of rape. The respondent submits that it cannot be inferred from the sentencing judge's use of the phrase 'to a certain extent' that her Honour intended to depart from current sentencing practices, as in the preceding paragraphs of her sentencing reasons, her Honour made specific reference to the current sentencing practices for rape and sentenced the appellant in accordance with that range.

21 In Ashdown v The Queen, Redlich JA emphasised that current sentencing practices disclose the indicative range within which a sentence may be placed.[13] He outlined, in a passage with which the President and Ashley JA agreed, that there are very limited circumstances in which an intermediate appellate court is entitled to express a view that current sentencing practices for an offence are inadequate.[14] None of those circumstances are presently relevant. Assuming, without deciding, that a sentencing judge may also revisit current sentencing practices, the judge can only do so if the case can be brought under one of the jurisdictional heads identified in Ashdown.

22 Redlich JA in Ashdown affirmed that the sentencing judge is obliged to sentence by reference to current sentencing practices:

Decisions which involve conduct which fall outside the relevant category of seriousness for the subject offence may occasionally provide assistance in identifying indicative outer limits of the appropriate sentencing range. However it is CSP, as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge. Hence appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence. Hayne J described this range as the 'permissible range of disposition' in A B v The Queen. There may also be a further narrowing of the range by asking whether the offence falls towards the lowest end, the middle or the upper end of that applicable range. Such focus upon the relevant range of sentences, or in times gone by, to the 'tariff' or 'going rate', provides guidance as to an indicative range for the category of seriousness of the subject offence and implies that the range is not unlimited.[15]....

23 He further stated in a passage with which Ashley JA agreed:

Consistency in sentencing, fundamental to the administration of criminal justice, requires adherence to CSP unless a specific circumstance exists which warrants departure from that practice. The law requires that a discretionary decision must be made in conformity with the well settled principles as must appellate review of such decisions. By this judicial method the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication. ....,[16]

24 Implicit in the requirement of a principled basis for declaring current sentencing practices inadequate is the recognition that idiosyncratic views have no place in the sentencing process. After all, current sentencing practices are the reflection of the product of the sentencing discretion in numerous cases by numerous judges. As counsel for the respondent acknowledged on the hearing of the appeal, a sentencing judge must take current sentencing practices into account to the full extent that the law requires. Unless the case can be brought within a recognisable ground for departing from current sentencing practices, a sentencing judge is not at liberty to disregard such practices or qualify the degree to which they should be given effect. Current sentencing practices for a category of the offence must guide the range of sentences available for that category of the offence.

25 The Court of Appeal in Hasan v The Queen[17] undertook a survey of a number of cases of rape which were said to be indicative of current sentencing practices for rape, including current sentencing practice in relation to cases where the victim was sleeping or unconscious.[18] In the cases there cited, the highest sentence imposed on an offender was a sentence of six years' imprisonment with a non-parole period of five years for an offender who had several prior convictions, including murder, and who had pushed the victim to the ground and held her down.[19] The lowest head sentence was three years. In Hasan, the victim fell asleep fully clothed. She awoke to find the appellant having penile intercourse with her. After a trial, the appellant was sentenced to six years' imprisonment on the charge of rape, with a non-parole period of four years. The appellant had no prior convictions. On appeal, the Court found that the sentence imposed was outside the range reasonably open to the sentencing judge.[20] The appellant was re-sentenced to four years with a non-parole period of three years.

26 Observations sometimes made by the Court of Appeal that the sentencing tariff or current sentencing practices ought to be re-considered, are of no significance whatsoever to a sentencing judge and provide no justification for revisiting the sentencing range. A pending appeal by the Director is also no basis for departing from current sentencing practices. Her Honour could not therefore regard herself as bound by current sentencing practices only to a limited or qualified extent and therefore fell into specific error in sentencing the appellant on both charges of rape. This ground is made out.

27 The appellant submits that the sentencing judge failed to give sufficient weight to the impact of delay. There was a four year delay between the date of the offence and the date of sentence, and a five-and-a-half month delay between the date of conviction and the date of sentence. The sentencing judge accepted that the delay was likely to have been caused by the analysis of the appellant's computer by the investigating police, and noted that the delay was in no way the appellant's fault and that he had not committed any further offences in this time.

28 Given our findings on the other grounds of appeal, we do not stay to consider the impact of delay as a discrete ground. However, we will consider it in re-sentencing the appellant.

29 The appellant submits that the individual sentences on the two charges of rape and the charge of possession of child pornography, the cumulation on the charge of indecent assault and the first charge of rape, and the total effective sentence and non-parole period, were all manifestly excessive. We have found specific error in respect of each of the sentences imposed on the counts on the first indictment. It is therefore unnecessary to consider the ground of manifest excess which relate to those charges as the sentencing discretion must be re-opened on all of the sentences on the first indictment.

30 We have taken full account of the appellant's gravity of offending and the traumatic effect these offences have had on the complainant, as evidenced by her victim impact statement. The appellant took advantage of the complainant in a vulnerable state, subjecting her to indecent acts and violating her while she was asleep. Once she awoke, the appellant used force to continue to violate her. As a result of these crimes, the complainant suffers from ongoing anxiety, panic attacks and an inability to form relationships with the opposite sex. However, having regard to current sentencing practice, the appellant's degree of criminality and matters personal to the appellant, we are satisfied that lesser individual sentences should be imposed on the counts of rape and indecent assault, resulting in a lower total effective sentence and non-parole period.

31 One must take account of the relatively brief time which elapsed between the indecent assault, and each of the rapes in determining the appellant's total criminality. The acts, though separate, comprised a single course of escalating conduct. There are a constellation of mitigating factors in the appellant's favour. The appellant is 39 years of age, has no relevant prior convictions, and while awaiting sentence he actively participated in the GROW program, to address his societal and drug issues. His chances of rehabilitation were assessed as reasonable, with a low likelihood of re-offending. Further, he was subjected to a substantial delay between the date of the offending and the date of conviction, during which period he did not re-offend.

32 Taking account of current sentencing practices, and allowing a discount for the plea on the charge of indecent assault, we would therefore re-sentence the appellant as follows:

Indecent assault [s 39(1) of the Crimes Act 1958]

Rape [s 38(1) of the Crimes Act 1958]

Rape [s 38(1) of the Crimes Act 1958]

Possession of child pornography [s 70(1) of the Crimes Act 1958]

On the charge of indecent assault: 24 months' imprisonment; on the charge of possession of child pornography: 8 months' imprisonment

33 We would confirm the other orders made by the sentencing judge.

[1] Sentenced as a serious sexual offender on Charge 3 of Indictment A10332384.3 and Charge 1 of Indictment A10332384.4.

[3] See Hasan v The Queen (2010) 31 VR 28, and the cases there cited.

[4] Reasons for sentence, [26]-[29].

[6] R v Donnelly [1998] 1 VR 645; R v Quarry [2005] VSCA 65; (2005) 11 VR 337.

[7] [2012] VSCA 140, [36].

[8] [2012] VSCA 140.

[9] [2012] VSCA 140, [70] (citations omitted).

[10] The appellant was sentenced on 14 December 2011. Phillips was handed down on 29 June 2012.

[11] [2009] VSCA 53; (2009) 23 VR 527, 532 [19]-[20] (citations omitted).

[12] Reasons, [57]-[59] (emphasis added).

[13] [2011] VSCA 408, [191]

[14] [2011] VSCA 408, [180]. DPP v C J A [2013] VSCA 18 [36]. That passage [180] has been cited with apparent approval in DPP v Werry [2012] VSCA 208; R v Hogarth [2012] VSCA 302 and Stalio v R [2012] VSCA 120.

[15] [2011] VSCA 408, [174] (citations omitted).

[16] [2011] VSCA 408, [191] with whom Ashley JA agreed [169].

[17] (2010) 31 VR 28.

[19] R v Brown [2002] VSCA 207; (2002) 5 VR 463.

[20] (2010) 31 VR 28, 41-42 [56].