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[2018] VSCA 83
Court of Appeal (Vic)
2018-04-09
Mr J, Weinberg JA, Kyrou JA
Original judgment source is linked above.
DPP v Bakshi (Unreported, County Court of Victoria, Judge Stuart, 16 March 2017 (Conviction), 7 April 2017 (Sentence))
CRIMINAL LAW - Appeal - Conviction and sentence - Applicant convicted by jury of one charge of rape - Sentenced to five years and six months' imprisonment with a non-parole period of three years - Complainant told applicant several times that she either 'want[ed] to go home' or 'just want[ed] to go home' while at his apartment - Whether applicant's belief in consent reasonable in circumstances - Open to jury to find no reasonable basis for belief in consent -Verdict not unsafe or unsatisfactory - Whether 'fresh evidence' in Victim Impact Statement, if known, would have impugned complainant's credibility - Nothing in Victim Impact Statement that would have given rise to reasonable doubt - Whether sentence manifestly excessive - Sentence within range - s 37G - ; , ; , ; - Application for leave to appeal refused.
1 On 16 March 2017, following a trial for rape in the County Court, the applicant was convicted of that offence. He was sentenced to five years and six months' imprisonment with a non-parole period of three years. He now seeks leave to appeal against both conviction and sentence.
2 The grounds of appeal with respect to conviction, are as follows:
Ground 1: The verdict is unreasonable or cannot be supported having regard to the evidence in view of the cumulative effect of the following matters:
And
Ground 2: The Victim Impact statement dated 21 March 2017 comprised fresh evidence post-trial, which, if known to the jury might have led the jury to entertain a reasonable doubt, and, acting reasonably, acquit the accused.
3 The sole ground of appeal with respect to sentence is elaborately stated and is in the following terms:
Ground 1: The head sentence and non-parole period are manifestly excessive having regard to the cumulative effect of the following matters:
a. the sentencing judge's findings that:
4 On Friday 27 May 2016, the complainant, then aged 22 and a citizen of Belgium, had been drinking with friends at a hostel in St Kilda. She had been staying at that hostel for about three weeks. She then accompanied her friends to a bar called 'Lucky Coq' in Chapel Street, Windsor. She had drunk a large amount throughout that evening, between about 10 and 20 beers.
5 At about 3.00 am on Saturday 28 May 2016, the complainant left Lucky Coq on her own. She could not find her friends, and began walking along Chapel Street. She did not want to pay for a taxi so, from what she could remember, set out to walk back to the hostel. Her evidence was that she was 'quite drunk' by that stage.
6 Under cross-examination, the complainant conceded that, rather than heading back to the hostel, she may have been looking for some place else that was still open at that time, presumably so that she could have something more to drink.
7 The applicant, who was aged 42 at the time, had spent the evening with a friend at a bar in Collins Street, in the city. After drinking several beers there, he left the bar and set out to drive home. On his way, he decided instead to visit a nightclub and turned into Chapel Street. In his evidence, he said that he was hoping to 'meet someone', 'get lucky', and 'have some kind of a casual acquaintance'. Clearly, he was hoping to find someone with whom he could have casual sex.
The meeting between the applicant and the complainant
8 At about 3.15 am, the applicant parked his car on Chapel Street. He began walking towards a nightclub that he knew to be still open at that time. There was a long line of people waiting for admission, and he decided not to join them. While walking along Chapel Street, he saw the complainant and struck up a conversation with her. He asked her where she was going, and what her plans were for the evening.
9 According to the complainant, she told him that she had lost her friends, and was walking home. She said that she was not sure whether she was heading in the right direction. He offered to drive her back to her hostel in St Kilda, and she accepted his offer.
10 The applicant gave a somewhat different account of their initial meeting. He said that she told him that she was looking for somewhere to go in order to have a drink. He said that he invited her to accompany him back to his place, to have a drink there. She agreed, and they then got in to his car which was parked nearby.
11 It was common ground that during the drive, which took about ten minutes, the two of them conversed in a friendly manner. The complainant described this as 'normal traveller's conversation'. They commented upon the fact that both Belgium and Australia produced good beer.
12 The complainant said that, while stopped at a set of traffic lights, the applicant unexpectedly kissed her on the lips. She said that she had kissed him back 'a little', in an attempt to be polite. She did so because he was offering her a free ride, and she thought that it would be 'ungrateful' to push him away.
13 The complainant added that, after the applicant kissed her, she made it clear to him that she was a lesbian. She said, presumably in relation to the kiss, that it was 'not her kind of thing'.
14 Once again, the applicant gave a different account. He said that the complainant had not 'seem[ed] to mind' his having kissed her, and indeed had kissed him back.
15 At 3.34 am, shortly after they had kissed, but while they were both still in the car, the complainant sent a text message to her friend at the hostel. That message read, 'Some Indian guy took me and I'm not comfortable with it!!'.
16 According to the complainant, she was surprised to discover that rather than arriving at the hostel, the applicant had driven her to an unfamiliar and dead-end street. She asked him, 'where are we?'. He replied that he wanted to show her a good Australian beer at his place. He said that he would drop her off at her hostel afterwards.
17 The complainant's evidence was that she did not, at any stage, want to join the applicant for a drink. However, she had agreed to do so in order to be polite. She said that she was frightened at the time, and did not want to upset him. For that reason, she accompanied him up the stairs to his apartment, in a manner that she described as 'voluntarily'.
18 Again, the applicant's account was significantly different. He said that, as they had already spoken about the complainant coming back to his place for a drink, there was no further discussion on that subject once they arrived.
19 It was common ground that after the applicant parked the car, the complainant followed him up to his apartment. She went in and sat down on a couch in the lounge room. He handed her a 'Lazy Yak' beer and sat down next to her on the couch.
20 The complainant said that the applicant then kissed her on the lips. She said that she pulled away from him, and asked him if she could go for a cigarette.
21 The applicant said that they had shared a kiss. Not only had the complainant not objected, but 'she went with it'. He claimed that at some stage shortly after they had gone into his apartment, she had told him for the first time that she was a lesbian. His account stood in stark contrast with that of the complainant who, it will be recalled, gave evidence that she had previously indicated that she was a lesbian while they were in the car. She agreed, however, that she may have mentioned that fact again while they were in the apartment.
22 It was common ground that the complainant then went out onto the balcony where she had a cigarette. The applicant joined her there. He then went back into the apartment, and the complainant followed him inside shortly afterwards. After she used the bathroom, she again sat down on the couch next to the applicant. According to the complainant, she became drowsy, almost to the point of falling asleep.
23 At various times while at the apartment and before sexual intercourse occurred, the complainant, using her mobile phone, took several blurry photographs. One of the photographs included the applicant and the balcony area. Others depicted the inside of the living room and bathroom. Subsequently, the complainant could not recall whether she had taken the photographs deliberately, or whether she had taken them accidentally. She later discovered them, and they were tendered in evidence.
24 The applicant said that, at about this stage, the complainant asked him to massage her back. He obliged, and said that she told him that she loved being massaged. He added that she asked him to unclip her bra, which he did. His evidence was that he understood this to be a 'green signal', or an indication that she was willing to have sex with him.
25 The complainant, when initially asked about the massage during the trial, said that she had no recollection of it having occurred. She acknowledged, however, that at the committal hearing, in November 2016, she had agreed that the applicant had given her a massage while they were seated on the couch. This prompted an uncertain memory of his having done so.
26 According to the complainant, she was very sleepy by this time. She said that she told the applicant that she wanted 'to go home'. He suggested that she take a nap first. She said that she told him again that she 'just wanted to go home'. In other words, she told him for a second time that she wished to leave. In response, the applicant repeated his suggestion that she first take a nap. She said that he then put his arm around her and helped her into his bedroom. She said that she needed his support to walk properly.
27 According to the applicant, the pair went into the bedroom in order to continue the massage that he had been giving her. He also said, contrary to her evidence, that she followed him into the bedroom entirely unassisted.
28 According to the complainant, she lay down on her back on the applicant's bed. He undid her belt. She said that she then turned over on to her stomach, because she felt 'safer' that way. She said that she told him yet again, on her account for the third time, 'I just want to go home'.
29 The complainant said that the applicant ignored her request. He pulled her jeans down and removed her underwear. She said that she felt him sit across her hips, remove her top, unclip her bra, and lift it over her head. That, of course, was at odds with the applicant's account of having previously unclipped her bra while they were both seated on the couch in the lounge room.
30 The applicant's account of what took place in the bedroom, again differed significantly from the complainant's version of events. He said that she took off her shoes, and watched him undress down to his underpants. He went to the bathroom and shortly afterwards returned, wearing only a bathrobe.
31 The complainant said that while the applicant was in the bathroom, she once again rolled over onto her stomach, in order to feel safe. She acknowledged, under cross-examination, that she could easily have left the apartment while he was in the bathroom, and said she should have done so. However, she said that she had remained on the bed because she was feeling 'a bit shocked'.
32 According to the complainant, the applicant walked over to the bed, turned her over onto her back, and pulled up her legs. He then held her wrists, somewhat firmly, raised to the side of her head. He inserted his penis into her vagina. He also attempted to kiss her, and said to her, 'I love you'.
33 The applicant's evidence was again starkly different. He said that, after he returned from the bathroom, he climbed onto the bed and continued to massage the complainant. He said that there was then 'a bit of sex talk'. She had said, 'I will do it with a condom on only'. He helped her to undress, lowering her jeans and underwear. He asked her when she had last had sex. She replied, 'with a girlfriend four months ago and with a boy one year ago'. He said that her response confirmed, in his mind, that she was bi-sexual.
34 The applicant said that he then went to the dressing stand and put on a condom. He said that the complainant had asked, 'Where are you?'. This led him to believe that she was 'waiting for [him] or she was wanting [him]'. He then climbed on top of her and they had intercourse.
35 The complainant's evidence was that while he was having sex with her, she turned her face and said to him, 'I just want to go home and it really hurts'. On the complainant's version of events, this was the fourth time that she had told him that she wanted to go home.
36 By the applicant's account, the act of intercourse did not last very long. This was because, according to him, the complainant was not cooperating. She was totally silent and, not moving.
37 The applicant said that throughout the entire episode, the complainant 'was welcoming it, she was consenting to it all this while because she had not raised any objections, she didn't block me, she didn't show any resentment of any kind whatsoever'. He said that he withdrew without ejaculating. He said that he rolled towards the other side of the bed, removed the condom and threw it on the carpet. He then turned back towards the complainant and they embraced. The complainant then stood up and, for the first time that entire evening, told him that she wanted to go home.
38 The complainant agreed that she had indeed said, at that stage, that she wanted to go home. However, her evidence was that she had said the same thing on perhaps as many as four previous occasions earlier that night.
39 The applicant said that he invited the complainant to stay over. She declined, and he then agreed to drop her off at her hostel. As they passed the kitchen, he gave her two or three 'Lazy Yak' beers in a plastic bag, as a gift.
40 The applicant said that the complainant had descended the stairs outside his apartment unassisted. They then got into his car, and he drove her to her hostel in Grey Street, St Kilda. He parked close by, between the hostel and a kebab shop.
41 According to the applicant, the complainant wanted him to buy her a kebab. He said that she held his arm as they walked towards the shop. Upon finding that it was closed, they turned and walked back towards the car, because she had forgotten to take the beers with her.
42 For some reason, the two of them got back into the car. The applicant said that they then arranged for him to pick her up from the hostel the following evening. In her evidence, she said that she only agreed to that suggestion because she was frightened. She said that she wanted to get out of the car, and did not want to upset him.
43 It was common ground that the applicant then kissed the complainant on the lips. When asked how she reacted at that stage, in response to the kiss, she replied that she 'did half and half'. She said that this meant that she did 'not fully go with it', but just kissed him quickly on the edge of his mouth, before getting out of the car. In her testimony, she said that she did this in order to prevent him from becoming aggressive. She claimed that, in some way, he made her feel that she had to kiss him.
44 The complainant's telephone number was later found saved in the applicant's mobile phone. It was saved as 'Ine', accompanied by the description 'Chapel'.
45 The complainant accepted that she may have given him her number after they arrived back at the hostel. However, she was uncertain of this, and said that she also may have done so earlier that evening shortly after they first met.
46 The applicant's account was that they had agreed to exchange numbers in the car outside the hostel, after he had driven her home. He said that he had initially entered her name incorrectly as 'I-n-a', and that she had corrected it to 'I-n-e'. He explained that he had entered the word 'Chapel' because he had met her on Chapel Street.
47 The complainant then went back to her room at the hostel. She burst into tears, and woke several of her roommates. They included the friend to whom she had sent the text message earlier that night. She briefly explained what had taken place. In her evidence, she could not recall exactly what she had said. According to her friend, the complainant said that she had been raped.
48 On the following Monday, the complainant spoke to a security guard at the hostel, known to her as 'Shannon'. She told him that she had been raped two days earlier.
49 According to Shannon's evidence, the complainant told him that she had got a free ride with an overweight man of Indian appearance. That man had told her that he was a taxi driver. The complainant told Shannon that he had not taken her home as she had expected, but had rather driven her to his apartment. According to Shannon, the complainant told him that upon arrival there, she had tried to walk away, but claimed that he had physically pulled her towards the stairs.
50 The complainant mentioned to Shannon that she had taken photographs at the applicant's apartment. He told her that the GPS coordinates of the photographs would automatically have been saved in her phone. Together they traced the location of the photographs to an address that the complainant recognised as the applicant's apartment building. She took a photograph of the applicant's registration plate, on his car. Shannon then accompanied her to the police, where she made a formal statement.
51 Later that same day, the complainant was forensically examined by Dr Leo Smith, a medical practitioner with qualifications in obstetrics and gynaecology, associated with the Victorian Institute of Forensic Medicine. Dr Smith found no injuries to the complainant's genital area which, it was conceded, did not exclude recent vaginal penetration, consensual or otherwise.
52 According to his notes, the complainant told him that she had been turned over and penetrated from behind, that being at odds with her description of the act of intercourse as given to the police.
53 Before this Court, the applicant placed considerable reliance upon the fact that, at the conclusion of the complainant's evidence at trial, the judge had stated, in the absence of the jury, that he regarded the prosecution case as 'one of the weakest' he had ever come across. His Honour suggested to the prosecutor that he seek instructions as to whether the Crown proposed to continue with the trial. He said that the prospect that the jury would convict was 'remote'. He added that, in his opinion, in the unlikely event that the Crown managed to secure a conviction, any such verdict would be set aside on appeal.
54 We are prepared to assume, at least for present purposes, that the applicant is entitled to rely upon the judge's observations as to the weakness of the prosecution case in support of his submission that this verdict was unsafe or unsatisfactory. His Honour is an experienced judge, who practised for many years at the Criminal Bar. We obviously accord respect to his views. The question whether this conviction should be set aside as unsafe, however, must be a matter for this Court, and for it alone.
55 It is perhaps of some interest to note that his Honour, when asked at the conclusion of the prosecution case to give a Prasad direction[1], declined to do so. After some discussion with counsel, he determined that it would not be appropriate to give such a direction in the circumstances of this case.
56 The offence of rape in this State is, of course, statutory in nature. The elements of that offence are set out in s 38(1) of the Crimes Act 1958, which provides as follows:
(1) A person (A) commits an offence if -
(a) A intentionally sexually penetrates another
person (B); and
(b) B does not consent to the penetration; and
(c) A does not reasonably believe that B
consents to the penetration.
...
57 It should be noted that s 37G(1) of the same Act, which was in force at the time of the trial,[2] provided that whether or not a person had a reasonable belief in consent, would depend upon the circumstances. Pursuant to s 37G(2), those circumstances would include any steps that the person had taken to find out whether the other person was consenting.
58 At the trial, there was no dispute about the fact that the applicant had engaged in sexual intercourse with the complainant. The judge, in his charge to the jury, made it clear that both consent and reasonable belief in consent were formally in issue. That said, as a matter of practical reality, the key issue that was to be resolved concerned the applicant's state of mind.
59 In substance, and in the way that the trial was conducted, the real issue for the jury to determine was whether the prosecution had established, to the requisite degree, that the applicant did not reasonably believe that the complainant was consenting to sex.
60 It is important, in that regard, to note that the prosecutor at trial was prepared to proceed upon the basis that it was entirely possible that the applicant had genuinely believed that the complainant was consenting. His argument, in his closing address, was that any such belief was not a 'reasonable belief'. Necessarily, that meant that the jury would have to consider what steps, if any, the applicant had taken to find out whether the complainant was consenting.
61 The judge made it clear that he viewed the matter in the same way as had counsel when he came to sentence the applicant. His Honour made it clear that he was sentencing the applicant on the basis that any belief that he may have had in consent had been found by the jury not to have been a 'reasonable belief'.
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
62 In M v The Queen,[3] the High Court considered the principles governing unsafe or unsatisfactory convictions. The majority (Mason CJ, Deane, Dawson and Toohey JJ) stated:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[4]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred.[5]
64 In Libke v The Queen,[6] the High Court once again considered when a conviction ought be set aside as unsafe or satisfactory. Hayne J (with whom Gleeson CJ and Heydon J agreed) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[7]
65 It is clear from Libke that the High Court intended the test for appellate intervention with respect to convictions to be a stringent one.[8] In the present case therefore, in order for the applicant to succeed, he must show that it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of rape. In other words, he must establish that upon a consideration of all of the evidence, the jury must have entertained a doubt as to his guilt.
66 In R v Klamo,[9] this Court (Maxwell P, with whom Vincent and Neave JJA agreed) applied M v The Queen and Libke and in doing so, summarised the approach required of intermediate appellate courts when considering whether a conviction is unsafe or unsatisfactory. His Honour said:
Consideration of ground 1 - unsafe or unsatisfactory
67 In support of this ground, the applicant drew attention to a number of features of the complainant's evidence which, it was submitted, rendered her an unreliable witness, upon whose evidence the jury could not safely have acted. The applicant also drew attention to an apparent concession by the Crown that the only evidence which established a lack of belief in consent consisted of two matters; the complainant's representation that she was lesbian, and the statement made sometime between sitting on the couch and penetration, 'I want to go home'.
68 The complainant's evidence that she had told the applicant on a number of occasions, before he had intercourse with her, that she wanted to go home, was pivotal to the prosecution being able to negate a reasonable belief in consent on his part. If the jury were not satisfied of her evidence regarding that matter, and instead accepted as a reasonable possibility that she had not said anything of that kind, the conviction in this case would be seriously susceptible to challenge.
69 Before this Court, counsel for the applicant went considerably further. She submitted that, even if the jury had accepted the complainant's evidence in its entirety, this conviction could not stand. In our opinion, that submission cannot be accepted.
70 If, as the complainant asserted, she had told the applicant a number of times before he had sex with her that she wanted to go home, or just wanted to go home, that would surely raise concerns on the part of a reasonable person as to whether the sex that was to take place shortly was truly consensual.
71 Moreover, the circumstances surrounding whether the applicant's belief in consent was reasonable include his awareness of the complainant's apparent intoxication. In his closing address, the prosecutor expressly invited the jury to consider this matter as relevant to the reasonableness of any belief in consent.
72 The likely concern that a reasonable person would have harboured as to whether the complainant was consenting is even more clear when one has regard to s 37G(2) of the Crimes Act 1958. As previously indicated, that section required that a jury take into account what steps, if any, the applicant took to satisfy himself that the complainant was willing to have sex with him. The short answer is that, notwithstanding her express desire to be taken home and apparent intoxication, he appears to have taken no such steps.
73 In considering whether this conviction is unsafe or unsatisfactory, this Court must have regard to the whole of the evidence led at trial. That, of course, includes the evidence given by the applicant which, as we have noted, differed significantly from that of the complainant in a number of key respects.
74 A careful reading of the transcript of the applicant's cross-examination provides a cogent explanation as to why the jury accepted the complainant's version of events, and rejected the applicant's account.
75 The applicant's evidence contained a number of improbable assertions, as well as several inconsistencies. For example, his evidence was that after they first got into his car, he leant over to kiss the complainant. He subsequently gave a different account of the circumstances surrounding that kiss, by saying that it was possible that it was she who had leaned over to kiss him. Finally, he said that he could not recall who had initiated that kiss.
76 The applicant agreed that while they were both in the car, the complainant had, for most of the time, been using her phone. As it happened, but unbeknown to him, she had sent a text to her friend, indicating that she was uncomfortable being in the car with him.
77 We interpolate to say that it might be thought somewhat unlikely, in those circumstances, that she would spontaneously have leant across and kissed him on the lips as he, at one point, asserted.
78 When cross-examined about what had taken place on the couch in his apartment, it was put to the applicant that the complainant had never indicated, by anything she said or did, that she was consenting to any sexual contact. His reply, that 'she never said no', was somewhat glib and might not have impressed the jury.
79 The applicant said, in his evidence, that there was a considerable amount of 'sex talk' between himself and the complainant both while they were seated on the couch, and subsequently in the bedroom. He claimed that a good deal of this 'talk' took place while he was massaging her back, but could provide no specifics in that regard. When pressed further on that subject, he said that all he could recall of the 'sex talk' was the complainant's instruction to him, in the bedroom, to use a condom, and her question to him, in that same darkened room, 'where are you?'. The jury might well have thought that the question, 'where are you?', asked in those circumstances, could hardly be regarded as 'sex talk'.
80 As we have said, the applicant denied the complainant's account of having told him, earlier whilst in the car, that she was a lesbian. It may not be of great consequence, but if she had made her sexual preference clear to him at that stage, presumably to dissuade him from further sexual contact, that would have been another matter to have taken into account in determining whether he reasonably believed that she was consenting to sex with him.
81 Importantly, the applicant specifically denied the complainant's claim that, prior to sexual intercourse, she had told him on a number of occasions that she just wanted to go home.
82 At one point, the applicant said that the complainant had undressed herself in the bedroom, and that he had merely assisted her in doing so. Almost immediately, however, he contradicted himself. He said that she had laid down passively on the bed, and that it was he who had undressed her. He added that she had not resisted. He said that if she had wanted to, she could have crossed her legs to prevent him from removing her jeans. When asked for further clarification as to how she had participated in removing her clothes, the applicant said that she simply 'never objected' to his having undressed her.
83 In summary, the applicant's evidence contained a number of improbabilities. It is understandable why the jury would have regarded him as an unsatisfactory witness, and preferred the complainant's account to his.
84 We recognise that mere rejection of the applicant's version of events does not, of itself, constitute positive evidence of his guilt. However, there were two significant features of the complainant's account which gave her evidence a ring of truth.
85 First, there was the strongly worded text message sent to her friend from the car. That text signified genuine apprehension on her part. It in no way suggested that she would welcome the applicant's sexual advances, as he suggested she had. Secondly, there was her spontaneous and immediate complaint of having been raped after she returned to the hostel. That was coupled with her evident and obvious distress.
86 In combination, these two factors, the first of them relevantly independent of the complainant, provided considerable support for her account of having asked the applicant on a number of occasions to take her home.
87 We do not ignore those factors in the evidence that might be thought to cast some doubt upon the complainant's credibility. First, she was obviously affected by alcohol on the night in question. Secondly, there is the fact that she appears not to have objected to or resisted the applicant when he began to massage her back. Thirdly, there is the unusual feature associated with her having given her phone number to the applicant upon their return to the hostel.
88 The complainant was cross-examined at length about this last matter. She explained that she was, at the time, shocked by the events that had taken place earlier that night. She said that, at the time she got out of the car, she was fearful of the applicant becoming aggressive. She therefore wanted to appease him.
89 In our view, it was open to the jury, acting reasonably, to accept the complainant's account of what took place in the apartment that evening in preference to that of the applicant. It was certainly open to the jury to accept that she had told him repeatedly, before he had sex with her, that she either wanted to go home or just wanted to go home.
90 Having considered the evidence for ourselves, we would have come to the same conclusion in that regard as did the jury. The language of the text message, and the evidence of recent complaint, were telling in support of the complainant's credibility.
91 We therefore proceed on the basis that the complainant told the applicant several times, both before and during sexual intercourse, that she wanted to go home. That was sufficient, in our view, to put him on notice that she may not have wanted to have sexual intercourse with him. It was incumbent upon him in those circumstances, to take some steps in order to ascertain whether she was prepared to have sex with him, or to put the matter another way, whether there was 'free agreement' to sexual intercourse. Otherwise, given those circumstances, any belief in consent would not have been a reasonable belief.
93 As regards ground 2, the applicant relies upon so-called 'fresh evidence', contained in the Victim Impact Statement tendered on the plea. It was submitted that, as a consequence of what the complainant said in that Victim Impact Statement, a serious issue regarding her credibility now arises.
94 The complainant claimed that, as a result of having been raped, she had suffered ongoing harm. She said that she could no longer travel on her own. The applicant contends that it can now be seen, having regard to other evidence of her having subsequently travelled within Australia, and to the United Kingdom, that she is not a credible witness.
95 In addition, the Victim Impact Statement is said to be misleading. In that statement, the complainant contrasted her wellbeing both before and after having been raped by the applicant. Yet, she had done so without referring to her previously having been raped in Belgium. This was said to have been a pivotal matter which the complainant should have disclosed. Absent such disclosure, any harm that she suffered might have been conflated through the two separate and unrelated incidents.
96 Lastly, it was said that the various claims of physical injury set out in her statement, being marks and bruises to her wrists, and general soreness to her vagina and thighs, were not supported by the medical evidence in Dr Smith's report.
97 Counsel for the applicant (and the judge) took particular issue with the following assertion contained in the Victim Impact Statement:
Before the rape, I was a young, carefree and fun loving young lady. I embraced challenges in life, which for me principally involved lone travelling, as far afield as Australia. However, being raped has stopped all that.
98 It was submitted that this statement was entirely at odds with the complainant's evidence at trial indicating that she had visited Uluru at some point following the rape.
99 In our view, there was nothing contained within the Victim Impact Statement that suggested that after the rape she had ceased travelling altogether. Rather, there was reference to her having ceased 'lone travelling'. More particularly, there was nothing in the complainant's evidence that contradicted her statement that she was no longer a 'carefree and fun loving young lady', who embraced challenges in life, and travelled on her own.
100 It was further submitted by the applicant that the complainant's credibility was in some way seriously impugned by the fact that she made no mention, in her Victim Impact Statement, of having previously been raped in Belgium. There is no merit whatever in that submission. The complainant, in contrasting her welfare before and after the rape, was not expected to make reference to the aftermath of a previous rape, unconnected with this offence.
101 Lastly, it was submitted that the complainant's assertion that she suffered injuries to her wrists was not supported by the medical evidence. That fact, even if true, does not materially assist the applicant's case. It is possible that the injuries that she described had not yet fully manifested by the time of the medical examination. In any event, the injuries that she described in her statement were consistent with her account of the details of the rape, it being recalled that she said that the applicant had gripped her wrists and held them up next to her head. She had also said, it will be recalled, that she had told the applicant, 'it hurts' during the act of penetration.
103 It follows that the application for leave to appeal against conviction must be dismissed.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
104 As previously indicated, the applicant was sentenced to five years and six months' imprisonment with a non-parole period of three years. The maximum penalty for rape is 25 years' imprisonment.
105 The judge found that the complainant was somewhat affected by alcohol on the night in question. His Honour did not consider, however, that this was an aggravating feature of the offending. The complainant appeared to be steady on her feet before getting into the applicant's car in Chapel Street. Moreover, she did not seem to be heavily intoxicated because she entered his apartment 'voluntarily', and had the capacity to consume further alcohol.
106 The judge found that the applicant's offending was opportunistic, as it plainly was. There was no suggestion that he set out to commit rape. Having regard to the complainant's obvious vulnerability, the fact that the applicant took advantage of her meant that the objective gravity of this offence was significant.
107 On the plea, the judge sought written submissions as to whether the applicant should be sentenced on the basis that he was aware that the complainant was not consenting, or on the basis that he may have believed she was consenting, but that there were no reasonable grounds for that belief. In the end, his Honour was not satisfied to the requisite degree that the applicant was aware that the complainant was not consenting. Accordingly, he sentenced the applicant on the basis that although he did have a belief in consent, that belief was not reasonable in the circumstances. That finding, according to the judge, reduced the applicant's legal and moral culpability.
108 As to the consequences of the rape upon the complainant, the judge declined to act upon the contents of the Victim Impact Statement. That was primarily because the complainant made no reference in that statement to having been raped in Belgium at some stage in the past, or to the effect that previous rape had had upon her. His Honour also mentioned that the evidence contained in the statement, with respect to the complainant's ability to travel following the rape, did not accord with her evidence that she visited Uluru soon after the incident.
109 Turning to the applicant's personal circumstances, the judge noted that he was born in India. He had attended university in that country, as well as in Russia and Australia. He spoke fluent Hindi, Punjabi, English and Russian. Further, he had a lengthy history of working in the IT industry. The judge found the applicant to be an able and well-educated man, who had worked hard throughout his life. A number of character references were tendered on his behalf.
110 It was noted in the sentencing remarks, that the applicant had previously been charged with entering a private place without lawful excuse, and with unlawful assault. Those charges arose out of events that occurred in December 2012, when the applicant twice entered the St Kilda motel room of a young woman visiting Australia from Chile. The unlawful assault charge arose out of his having approached her, and touched her abdomen while she was sleeping. It seems that she awoke and chased him out of the room. The applicant had been sentenced to a 12 month Community Correction Order without conviction for those offences.
111 The judge noted that there were some 'disturbing similarities' between that earlier offending, and the events giving rise to the applicant's conviction for rape. For that reason, he considered specific deterrence to be relevant to the sentencing synthesis. That was particularly so given the dramatic escalation in the gravity of the offending.
112 In a report dated 14 July 2016 written by the applicant's psychologist, Dr Boris Goloub, it was noted that the applicant suffered severe symptoms of chronic 'Adjustment Disorder', with 'Mixed Anxiety and Depressed Mood'. In a later report dated 30 March 2017, Dr Goloub diagnosed the applicant with Persistent Depressive Disorder, noting that he had been suffering from that condition for several years.
113 His Honour also considered the psychiatric report of Dr Paul Brown, who expressed the opinion that the applicant suffered from 'generalised and panic anxiety', 'dissociative disorder' and 'immature, schizoid personality'.
114 The judge was satisfied that, in the circumstances, imprisonment would be more burdensome for the applicant than it would be for others not suffering from those conditions. He moderated the sentence accordingly.
115 Before this Court, counsel for the applicant largely adopted her written submissions when she came to deal with the matter of sentence. She argued that the applicant's offence should be viewed as being at the 'very lowest' end of culpability for the offence of rape, having regard to the judge's finding that he had been convicted merely because his belief in consent was not reasonable.
116 Counsel also drew attention to the various mitigating factors set out in the proposed ground of appeal, and submitted that, in all the circumstances, this sentence was manifestly excessive.
117 Counsel for the respondent also relied primarily upon the written submissions filed on behalf of the Crown. He did not advance any additional oral argument regarding the matter of sentence. His submission, put briefly, was that this sentence was not wholly outside the range reasonably available to the sentencing judge. He acknowledged, however, that the applicant's moral culpability for this offence could properly be regarded as being towards the lower end, though not the lowest end, for rape.
118 The Crown's written submission noted the applicant's previous involvement in an encounter with a young woman visiting this country, which had resulted in the imposition of a Community Correction Order. It was said that this made specific deterrence a particularly relevant factor in the sentencing synthesis.
119 We consider that this sentence was within range, and certainly not wholly outside the range. We do so essentially for the reasons advanced by the Crown in its written submission.
120 As discussed earlier in these reasons for judgment, we do not accept the judge's reasons for not acting upon the contents of the Victim Impact Statement. On any view, and irrespective of what was contained in that statement, the complainant must have gone through a traumatic ordeal. It is hard to imagine that she would not have suffered harm of an ongoing nature from what was done to her.
121 There were few genuinely mitigating circumstances available to the applicant. There had been a fully contested trial, in the course of which the complainant's evidence had been challenged. There was no semblance of remorse. The offending was opportunistic, but also serious. For the reasons set out earlier, it involved a significant degree of moral culpability.
122 The applicant took advantage of a young and vulnerable woman, who was a visitor to this country. She was obviously under the influence of alcohol. The jury must have found that she told the applicant on several occasions that she either wanted to go home or just wanted to go home. By doing so, she made it tolerably clear that she did not want to have sex with him.
123 The applicant had hoped to 'get lucky'. He may have discounted what the complainant said when she asked to go home. He may have believed that she could be persuaded to have sex with him, and that in the end, she had agreed to do so. However, the jury must have found that he had no reasonable basis for a belief, at the moment of sexual penetration, that she was consenting.
124 The legislature has made it clear that a person in the applicant's position is guilty of rape, irrespective of any belief in consent, unless such a belief is reasonably held. The judge undoubtedly would have imposed a heavier sentence had he not been prepared to give the applicant the benefit of the doubt in that respect.
125 It follows that the applicant must face the consequences of having been convicted of this serious offence. We would refuse the application for leave to appeal against sentence.
[1] R v Prasad (1979) 23 SASR 161.
[2] Section 37G was repealed by Crimes Amendment (Sexual Offences) Act 2016 which relevantly came into force on 1 July 2017.
[3] [1994] HCA 63; (1994) 181 CLR 487 ('M v The Queen').
[6] [2007] HCA 30; (2007) 230 CLR 559 ('Libke').
[7] Ibid 596-7 (citations omitted) (emphasis in original).
[8] See also R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.
Bakshi
The Queen [2018] VSCA 83
(1994) 181 CLR 487
(2007) 230 CLR 559
(2008) 18 VR 644
(1979) 23 SASR 161
(2016) 258 CLR 308