Ayol v The Queen [2014] VSCA 151

CRIMINAL LAW - Appeal against sentence - Appellant sentenced to four years and 11 months' imprisonment with non-parole period of three years - Whether sentence manifestly excessive - Manifest excess requires something to have gone obviously, plainly or badly wrong in exercising sentencing discretion - Violent rape - Serious example of offence of this type - Nothing to suggest sentence outside range - Appeal dismissed - Clarkson v The Queen (2011) 32 VR 361 followed.

1 I will invite Weinberg JA to deliver the first judgment.

2 In September 2013, the applicant (or appellant in relation to the sentence) stood trial in the County Court at Melbourne on three charges of rape (charges 1, 3 and 4) and one charge of common assault (charge 2). He was convicted of charges 1 and 2 but acquitted of charges 3 and 4.

3 He was subsequently sentenced to a term of four years and nine months' imprisonment on charge 1 and seven months' imprisonment on charge 2. It was ordered that two months of the latter sentence be served cumulatively upon the sentence imposed on charge 1, making a total effective sentence of four years and 11 months with a non-parole period of three years.

4 The applicant sought leave to appeal against conviction and sentence.

5 On 7 March 2014, Priest JA refused leave to appeal against conviction but granted leave to appeal against sentence.

6 The applicant has elected to renew his application for leave to appeal against conviction and has pursued his appeal against sentence.

7 The facts are set out comprehensively in paragraphs 6-13 of Priest JA's reasons for judgment on the leave application:

Two days before the commission of the offences, the complainant, FM, and the applicant met each other through a mutual acquaintance, Kuel Kuel. The offences occurred in Kuel's Northcote apartment, where both the complainant and applicant had been staying. During their stay there had been drinking and partying.

There were four charges on the indictment flowing from two separate incidents of sexual activity between the applicant and the complainant. The complainant gave evidence that the offences occurred on a Sunday night in

July 2012. She and the applicant were at the apartment alone. The applicant had been drinking, but she had had only one stubby of beer. They were sitting on the couch next to each other. The applicant touched and squeezed her hand a number of times. He continued to do so after she asked him to stop. The complainant got off the couch and went to the bedroom. She locked the door behind her.

The applicant knocked on the door and asked the complainant to open it. She did not do so. The applicant then forced the bedroom door open, breaking the lock. He sat over FM as she lay on the bed before dragging her to the floor by her upper arms. While on her back, the complainant struggled and pleaded with the applicant to stop. When he tried to kiss her, the complainant bit the applicant's lips. FM asked the applicant whether he was going to rape her and he said that he was. When the complainant took hold of an iron in order to defend herself the applicant took it from her. The applicant then put his fingers into FM's vagina with one hand while he held her down on the floor with his other hand on her neck. These events represented the first incident of sexual activity, and were foundational of charge 1, rape, and charge 2, common assault.

After the complainant asked for a drink of water the applicant stopped what he was doing. He got FM a drink, and they sat on the couch in the lounge room. FM asked the applicant to light a cigarette for her, which he did. The applicant had removed FM's tracksuit pants and underwear in the bedroom and she asked for her clothes. He told her she could stay naked. The complainant went to the bathroom to clean herself and the applicant followed. He stood at the door.

The applicant then said that he had to go and get cigarettes. He left the apartment and was absent for between 10 and 20 minutes. During this time the complainant found her pants and underwear. She gave evidence that she did not leave during the applicant's absence because she was in shock and afraid that he was outside.

The second incident of sexual activity occurred in the following manner. When the applicant returned the two again sat next to each other on the couch. The applicant started touching the complainant. She asked him to stop. The applicant grabbed FM and dragged her to a mattress on the lounge room floor. She struggled and asked him to let her go.

The applicant then inserted his fingers into FM's vagina. This penetration founded charge 3, rape, upon which the applicant was acquitted. The applicant then inserted his penis into her vagina for a matter of seconds. This activity was the basis of charge 4, rape, upon which a verdict of not guilty was returned. The applicant stopped after FM told him that if he continued what he was doing he would 'leave evidence'. He told FM that no one would believe her if she made a complaint.

Following these events, the applicant sat on the couch and the complainant went to the kitchen. She found her phone in a cupboard. Once she had done so she ran outside. The applicant ran after her. FM called '000' and told the operator that the applicant had raped her (or, perhaps, tried to rape her) twice. While she was still connected, police arrived. The applicant, who had

left the scene while the complainant was making the 000 call, was later apprehended.

8 Essentially, the applicant's submission before this Court this morning was confined to an argument that there was an inconsistency in the verdicts of guilty relating to charges 1 and 2 and, specifically, the acquittal on charge 3.

9 Priest JA, in refusing leave to appeal against conviction, dealt with that argument at paragraphs 26-9 of his reasons:

In my opinion, however, there was a sound basis (or bases) enabling the jury rationally to distinguish between the two incidents. First, with respect to the first incident, there was independent evidence supporting the complainant's version of events. For example, there was evidence that the lock on the bedroom door was broken; that the complainant's underpants were found in the bedroom; and that both the complainant and the applicant had sustained injuries which were consistent with FM's evidence as to the manner of the commission of charges 1 and 2.

By way of contrast, the defence was able to capitalise on a deal of material impinging upon the complainant's evidence relevant to the second incident. For example, FM did not complain of alleged penile penetration (charge 4) until six months after the relevant incidents when providing a written statement in Perth. Moreover, there were a number of inconsistencies in the Perth statement compared with her later evidence. And significantly, in the Perth statement the complainant said that just prior to the events making up charges 3 and 4 she said to the applicant: 'Is this what you really want? Ok, do it then'.

Thus there was some basis for the jury - acting rationally - to entertain a reasonable doubt of the applicant's guilt on charges 3 and 4, independently of their overall assessment of the complainant's credibility. Given the evidence that the complainant's DNA was found on the applicant's penis, and in view of the evidence of the complainant saying to the applicant, 'Ok, do it then' just prior to the activities making up charges 3 and 4, it would not have been irrational for the jury to have found that the acts forming the basis of charges 3 and 4 took place whilst at the same time enjoying a reasonable doubt as to whether the applicant possessed the necessary guilty mind.

Applying logic and reasonableness the two sets of verdicts are, in my opinion, easily reconciled. It is thus not reasonably arguable, in my view, that they can be characterised as inconsistent.

10 It seems to me entirely clear that Priest JA's analysis, which was orthodox and addressed all of the appropriate and relevant questions, was sound, and it is one with which I am in complete agreement.

11 The main point, so far as I am concerned, is that there was a significant difference between the evidence led in support of charges 1 and 2 and the evidence led in support of charges 3 and 4.

12 As his Honour correctly noted, there was evidence of what used to be called corroboration, which supported the complainant's version of events in relation to charges 1 and 2, but which was not available, or present to anything like the same degree, in relation to charges 3 and 4. As Priest JA found, it was open to the jury to accept the complainant's evidence with regard to charges 1 and 2, but to have had a doubt as to whether, in the absence of such evidence, charges 3 and 4 were made out.

13 The finding of not guilty in relation to charges 3 and 4 is not, of course, to be understood as a finding that the relevant allegations were untrue, or that the events described did not occur. It is rather to be understood as simply a finding that the jury were not persuaded to the appropriate criminal standard on the complainant's evidence in relation to those charges, unlike the situation in relation to charges 1 and 2.

14 I would also note that although this renewed application for leave to appeal is by way of rehearing, the carefully expressed reasons of a judge of this Court who has refused such leave will ordinarily be given considerable weight. That is not because this is an appeal from Priest JA's decision refusing leave. Of course, it is not. It is rather that his Honour's reasoning needs fully to be taken into account. In the event that no flaw or error in that reasoning can be discerned this Court would be slow to arrive at a different conclusion, and order that leave to appeal be granted.

15 All in all, as far as the application for leave to appeal against conviction is concerned, I would reject that application for precisely the reasons given by Priest JA.

16 In relation to the application for leave to appeal against sentence, I note that Priest JA essentially confined the grant of leave to an argument that the sentence was manifestly excessive. There were other points raised. These included a Renzella[1] submission, which was pursued as part of the manifest excess argument before this Court, as well as a further argument regarding the relationship between the non-parole period and the head sentence. That latter submission had no merit, and quite properly, was not pursued before this Court.

17 On the manifest excess point, Priest JA concluded that it was arguable that the sentence, which his Honour characterised as 'stern', was beyond the range reasonably available to the learned sentencing judge. With great respect, I would not have described this sentence in those terms. Nor would I have granted the applicant leave to appeal against it.

18 This was, on any view, a violent rape. The appellant used considerable force to achieve his objective. He broke into a bedroom, smashing down the door and destroying its lock. He used force to overcome the complainant's resistance. The gravity of his offending, viewed objectively, could not be said to be at the lower end of the scale, so far as rape is concerned. Indeed, I would go so far as to say this was a serious example of this always serious offence.

19 The appellant knew perfectly well that the complainant wanted nothing to do with him. She had made her position entirely clear before he pursued her to the bedroom. Yet he persisted. He even applied the equivalent of a choking hold upon her, whilst raping her. His moral culpability was high.

20 It is a bold submission to argue that a sentence of four years and nine months' imprisonment for this act of rape fell wholly outside the range of sentences available to the sentencing judge.

21 With regard to the other challenges mounted to the sentence, I note that her Honour said that she took into account the four months that the appellant was

serving for unrelated offending. There is nothing in either the sentencing remarks, or the sentence imposed, which suggests that her Honour's statement to that effect should be doubted.

22 The sentencing judge cumulated upon the sentence for rape a mere two months for the common assault. That was well within the sound exercise of her Honour's sentencing discretion. I note in that regard that counsel on the plea conceded that it was within her Honour's province to cumulate some measure of the sentence for the common assault upon the sentence imposed for the rape.

23 In my view, the argument that this sentence was manifestly excessive has not been made out. Accordingly, I would dismiss the appeal against sentence.

25 I agree with Weinberg JA that the applicant's election to again seek leave to appeal against his conviction should be refused.

26 Where leave to appeal has been refused and is supported by careful and extensive reasons, this Court should approach an election to again seek leave on the basis that the applicant should ordinarily demonstrate by reference to the reasoning on the initial application for leave to appeal that there would be error if the conclusion that the grounds were not reasonably arguable were allowed to stand.

27 As Weinberg JA has said, the reasons of Priest JA show that this is not an appropriate case for the grant of leave.

28 I also agree with Weinberg JA that the applicant has not demonstrated any

basis for interfering with the sentence that was imposed by the judge at first instance. To demonstrate manifest excess, it would have been necessary for the applicant to show the sentence fixed was well outside the range open to the learned sentencing judge.[2] The applicant has not done so.

29 For the reasons given by their Honours, I too would refuse leave to appeal against conviction and would dismiss the appeal against sentence. I wish to say something briefly in addition about the ground of manifest excess.

30 It needs, I think, to be emphasised again that manifest excess is a stringent ground, difficult to make good. It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion. As was said by a fivemember bench of this Court in Clarkson v The Queen:

[T]he ground of manifest excess will only succeed if it can be shown that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[3]

31 The ground of manifest excess requires consideration of the sentencing range applicable to the case at hand. Determining the range requires an identification of the relevant features going to the seriousness of the offending - and, where relevant, to the antecedents of the offender - and then an identification of current sentencing practice for a case of that character.

32 As Redlich JA has said, and this Court has subsequently endorsed,[4] it is current sentencing practices for the relevant category of seriousness of the offence which inform the determination, both by the sentencing judge and by this Court on appeal, of the appropriate range. Almost always, in my experience, that requires the identification of comparable cases, that is to say, cases in which the relevant indicia of seriousness - and, where relevant, comparable antecedents of the offender - are to be found. This is simply a function of the basal requirement of consistency in sentencing. In that exercise, aggregate statistics provide no assistance at all. They have a role to play when a court is trying to get a sense of the full range of sentences available for an offence, but provide no guidance as to what is the range for a particular case.

33 As the decision in Hasan v The Queen[5] showed, occasionally it will be possible to demonstrate, by the identification of one or more relevantly comparable cases, that the particular offender has been treated inconsistently and unfairly, that is to say, has been given a heavier sentence than in comparable cases where there is no reasonable basis for differentiating between them. In Hasan, that led to what otherwise seemed a reasonable sentence being reduced.[6]

34 On this appeal, no comparable case has been identified by the appellant which would in any way suggest that there has been unequal or inconsistent treatment. On the contrary, the helpful written case filed on behalf of the respondent identifies a number of recent decisions of this Court which demonstrate that this sentence is wholly unremarkable for serious offending of this kind.[7]

35 This was, as Weinberg JA has said, a violent rape. As the very high maximum penalty shows, rape is viewed by the community as the most serious person-to-person offence short of murder. The present case illustrates why this conduct is viewed with such abhorrence by the community. This case involved the forcing by one person of himself on another, she having made it perfectly and unequivocally clear that she wanted no sexual contact with him. It has been often said - and we should be taken as reaffirming - that wilful sexual assault of this kind will attract stern punishment.

[1] R v Renzella [1997] 2 VR 88.

[2] Booysen v The Queen [2014] VSCA 150, [9].

[3] (2011) 32 VR 361, 384 [89] (citation omitted).

[4] See Anderson v The Queen [2013] VSCA 138 [22]-[23], citing Ashdown v The Queen (2011) 219 A Crim R 454, 517 [174], 523 [191].

[5] [2010] VSCA 352; (2010) 31 VR 28 ('Hasan').

[7] See NJ v The Queen (2012) 36 VR 522 (forcible rape at party, not guilty plea, six years' imprisonment); Clarke v The Queen [2011] VSCA 385 (forcible digital rape, guilty plea, four years' imprisonment); Tran v The Queen [2011] VSCA 252 (unprotected penile/vaginal rape, guilty plea, five years' imprisonment); MC v The Queen [2011] VSCA 2 (three rapes - forcible digital/vaginal and penile/vaginal - committed by man upon his partner from whom he was separated, guilty plea, sentences of four, three and two years' imprisonment).