Ayol v The Queen [2014] VSCA 34

2 The trial judge later sentenced the applicant to be imprisoned for four (4) years and nine (9) months on charge 1, and for seven (7) months on charge 2. Two (2) months of the sentence on the second charge was ordered to be served cumulatively upon the sentence on the first, leading to a total effective sentence of four (4) years and eleven (11) months' imprisonment. A non-parole period of three (3) years' imprisonment was fixed.

3 The applicant seeks leave to appeal both against conviction and sentence.

4 For reasons that follow, I would refuse the application for leave to appeal against conviction, but would grant the application for leave to appeal against sentence.

5 In order to appreciate the matters advanced by the applicant in support of the applications, it is necessary to set out some of the essential facts.

6 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.

7 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.

8 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.

9 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.

10 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.

11 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.

12 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 complainant.

13 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.

Application for leave to appeal against conviction

14 The sole ground of appeal with respect to conviction claims that the convictions on charges 1 and 2 are 'unsafe', in that:

1. They are inconsistent with the acquittals on charges 3 in particular and charge 4.

2. No reasonable jury could arrive at the above verdict on the evidence.

Although contained within a single ground, the two particulars invite distinct approaches.

15 Inconsistent verdicts render convictions unsafe and unsatisfactory.[1] In MacKenzie,[2] Gaudron, Gummow and Kirby JJ distilled the learning on inconsistent verdicts into six convenient propositions.[3] The present is a case of alleged factual inconsistency. Drawing on the six McKenzie propositions, it is sufficient for present purposes to observe that the obligation of establishing inconsistency between verdicts rests with the applicant. Given that the supposed inconsistency arises in the jury's verdicts on different charges in the indictment, the applicable test is one of logic and reasonableness. If there is a proper way by which the verdicts may be reconciled, and there is some evidence to support the verdicts said to be inconsistent, it is not the role of an appellate court to substitute its own opinion of the facts for one which was open to the jury. It must be borne in mind that the jury may simply have followed the judge's instruction to consider each charge separately; or, alternatively, this court might conclude that the jury took a 'merciful' view of the facts upon a charge.

16 As to the second aspect of the ground of appeal, which asserts that no reasonable jury could have arrived at the verdicts of guilt, the applicant relies on M v The Queen.[4] The question posed by M is: Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?[5] In determining whether it was open to the jury to be satisfied of guilt, the court must carry out its own independent assessment of the evidence. And in determining whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, the real question is whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[6] It is insufficient to show that there was material which might have led the jury to fail of satisfaction of guilt beyond reasonable doubt.[7]

17 In my opinion, it is not reasonably arguable either that the verdicts of guilty are inconsistent with those of not guilty, or that the convictions on charges 1 and 2 are unsafe and unsatisfactory.

18 Going first to the second complaint embodied by the ground of appeal - that on the evidence in the case no reasonable jury could have returned verdicts of guilty on charges 1 and 2 - in my opinion it was well open to the jury to convict the applicant on each of those charges. There certainly was no 'solid obstacle' to conviction.[8] The case turned on the credit of the complainant, FM. Although there were some inconsistencies in her account (as might be expected in almost all cases of this type), she had made a contemporaneous complaint of a sexual attack to the 000 operator and to police, and later to Kuel. Moreover, although it may not have been of great weight, FM was observed shortly after the events to be distressed.

19 FM's evidence was also bolstered by evidence of partial admissions. Several days after the commission of the offences, the applicant apologised to FM in the presence of Kuel, saying that what he did was wrong (while at the same time reminding her that he had a family and young children).[9]

20 Objective support for the complainant's evidence could also be derived from the lock on the bedroom door being broken; from her underpants being found in the bedroom; and from the fact that the complainant and the applicant had sustained injuries that were consistent with the alleged manner of commission of the offences in charges 1 and 2.

21 The applicant's principal attack on the complainant's credibility revolved around her failure to leave the apartment after the first incident while the applicant was away buying cigarettes. FM gave reasons for her failure to leave, however, which it was open to the jury to accept. They included that she was 'in shock'; that she was 'terrified' that the applicant might be waiting for her on the stairs; that the applicant had hidden her telephone; and that she was looking for her clothes. These were all matters that the jury were entitled to take into account when assessing the complainant's reliability and truthfulness.

22 For the sake of completeness it should also to be noted that, although the applicant's defence was a denial that any of the activities founding the charges had taken place, he did not give evidence. It was thus obvious to the jury that the complainant's evidence was not answered by any from the applicant. But with the concurrence of defence counsel, the judge gave an Azzopardi direction instructing the jury that they could not use the applicant's silence as an implied admission, to fill any gaps in the prosecution case or as a makeweight for the prosecution case.[10]

23 In light of the foregoing there was ample evidence permitting the jury to return verdicts of guilty on charges 1 and 2, and no solid obstacle in the path of that course. It cannot sensibly be contended, in my opinion, that it was not open to the jury to convict on those charges. Thus in my opinion it is not reasonably arguable that the verdicts are unsafe and unsatisfactory.

24 Nor, in my opinion, is it reasonably arguable that the verdicts of guilty on charges 1 and 2 are inconsistent with those of not guilty on charges 3 and 4.

25 The applicant submitted that the only basis for the acquittals on charges 3 and 4 must have been that the jury did not believe the complainant's evidence with respect to the second incident. It was not open to the jury, so it was argued, to accept the complainant as a truthful and credible witness as to the first incident while at the same time rejecting her as such with respect to the second.

26 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.

27 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'.

28 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.

29 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.

30 For these reasons I would refuse the application for leave to appeal against conviction.

Application for leave to appeal against sentence

31 There is one ground of appeal against sentence, supported by three 'particulars':

That the sentence is manifestly excessive in all the circumstances, but having particular regard to:

1. Current sentencing practises,
2. Failure to make proper allowance for time in detention for unrelated matters,
3. Failure to properly consider lack of relevant prior matters and personal circumstances with reference to prospects of rehabilitation.

32 In my opinion, the second 'particular' cannot be made good. Counsel for the applicant asked the sentencing judge to take into account on a Renzella[11] basis a sentence of four months' imprisonment imposed on the applicant by the Magistrates' Court, since that period of four months was incapable of constituting pre-sentence detention under s 18 of the Sentencing Act 1991. Consistently with counsel's submission, the judge in a general sense took the period of four months into account.[12] Thus, in my view, the complaint that the judge did not take into account the four month period of detention on unrelated matters cannot be sustained.

33 Moreover, in my view the third particular is without substance. In the written case, counsel for the applicant argued that, given an absence of sexual offending in the applicant's prior history, his strong employment record and the fact that he has the support of his wife and family; and further taking into account the role of alcohol, and the applicant's background of torture and persecution in Sudan, the non-parole period is excessive. The sentencing judge observed that the applicant had 'no relevant prior matters', and that his prospects of rehabilitation were 'positive' and 'probably good'.[13] Ultimately her Honour fixed a non-parole period of three years' imprisonment, which represents a period less than two thirds of that of the head sentence. On the assumption that the head sentence is within range, in my opinion it cannot realistically be contended that the non-parole period is excessive. Having regard to the matters pressed by the applicant's counsel, the non-parole period fixed must be seen to be properly proportionate to the length of the head sentence. It is, in my view, wholly unremarkable.

34 The fact that the second or third particular cannot be made out, however, does not answer the wider question as to whether it is reasonably arguable that the 'sentence'[14] is manifestly excessive.

35 A finding that a sentence is manifestly excessive is a conclusion[15] arrived at after instinctively synthesising all relevant aspects, including the circumstances of the offences and the offender, and those factors going in aggravation and in mitigation. In this case, even though it was imposed following a contested trial (so that the applicant did not have the benefit of any amelioration of sentence to be derived from a plea of guilty), the sentence of four years and nine months' imprisonment for this particular manifestation of the crime of rape is in my opinion, to say the least, stern. And although I would not necessarily regard the individual sentence of seven months' imprisonment on the charge of common assault as excessive, in my view making orders for cumulation which resulted in a sentence of four years and eleven months' imprisonment for the totality of the offending arguably renders the total effective sentence manifestly excessive.

36 It may be that with full argument the Court will be unpersuaded that the sentence is manifestly - as opposed to merely arguably - excessive. At this point, however, it seems to me to be reasonably arguable that the sentence in all the circumstances is manifestly excessive. Leave to appeal should therefore be granted.

37 As I have said, in my opinion two of the particulars of the ground are without substance. In that light I considered whether I should grant leave with respect only to part of the ground. Upon reflection, however, there seemed to be little utility in adopting that course. Hence the grant of leave is unrestricted (although it might be expected that the applicant's counsel will pay due heed to these reasons in the formulation of any revision of the written case for appeal).

[1] MacKenzie v The Queen (1996) 190 CLR 348, 357.

[4] [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).

[6] Ibid 492-3; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 556-7 [113].

[7] See also Klamo v The Queen [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40]; Greensill v The Queen [2012] VSCA 306, [82]-[83].

[8] Klamo v The Queen [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40].

[9] It is to be noted that it was not suggested by the defence that the admissions should not be left to the jury in support of any of the charges - see Choudhary v The Queen [2013] VSCA 325.

1. [10] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, 64 [34], 73 [62] (Gaudron, Gummow, Kirby and Hayne JJ). See Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 228-9. See also R v Emmerson (Unreported, 12 September 1997, Vic CA), 1-2 (Hayne JA); Burke v The Queen [2013] VSCA 351, [41]-[43].

[11] R v Renzella [1997] 2 VR 88. See Wheldon v The Queen [2011] VSCA 83; (2011) 31 VR 297, 300-3 [18]-[34].

[13] Reasons for Sentence, [32], [33].

[14] That is, the individual sentences on each count, the order for cumulation and the total effective sentence.

[15] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).