1 The appellant pleaded guilty to a single count of rape. He was sentenced to 3 years' imprisonment. The judge directed that 18 months of the sentence be suspended for a period of 18 months.

2 Having originally opposed (unsuccessfully) the application for leave to appeal against sentence, the Crown subsequently filed written submissions conceding that the appeal should be allowed, for reasons set out below. By the time of the appeal hearing, the appellant had served almost 6 months in custody. The Crown conceded that, in resentencing, the Court should not require him to serve any further time in custody. As will appear, these Crown concessions reflected a wholesale reversal of the position which the Crown had adopted at the time of sentencing.

3 The Court concluded that the concessions were properly made and that the appellant should be resentenced. The 3 year term of imprisonment was reimposed but we directed that the balance of the sentence - some 2 years 6 months - be wholly-suspended. These are our reasons for that decision.

4 The victim of the rape was the appellant's partner, with whom he had been in a relationship for almost a year at the time the offence was committed. One child had been born of the relationship, some seven weeks before the offence. For reasons which will become apparent, it is relevant to note that the birth had been by caesarean section.

5 On the night in question, the appellant and his partner, together with the new baby and his partner's daughter, were staying at a weekender belonging to the appellant. The sentencing judge described the circumstances of the offence as follows:

During the course of the night, you drank two thirds of a bottle of Bundaberg Rum and half a slab of beer. It is not disputed that you became significantly intoxicated. The victim only had one drink, as she was still breastfeeding.

Of importance, she said that before you and she went to bed together, at about 1.00 am, whilst you were drinking, you were talking about your mother. You told her that you had pneumonia on three occasions when you were young, about seven, and were hospitalised on one occasion. You said that both your legs were broken, just after you had learnt to walk and that, as a very young boy, you spent time in callipers. You were sent to your grandmother's home, as a teen, and raised by her, for some time. Your partner continued:

'The anger towards his mother was more in body language and looks - he seemed disgusted that his mother could allow things to happen to him and he felt she loved him less than his brothers and sisters. He doesn't know who his biological father was and insinuated that he was the product of an affair. There seemed to be some confusion as to whether a rape was involved.'

As I said, you then went to bed at about 1.00 am, while the other two children were in a bed in the same room. Consensual intercourse and other sexual activity commenced. Your partner was still recovering from the caesarean surgery and her stomach muscles were not fully healed. After about an hour, the intercourse started to hurt her and she asked you to stop and suggested that you try again in the morning. However, you continued to penetrate her vagina and on one occasion, her anus, with your penis. Although she was in a large amount of pain, she allowed you to do this, although she continually guided you away from her anus, as she found the penetration too painful.

When you tried to penetrate her anus with your penis on another occasion, the victim clearly said no. However, in spite of saying no to further anal intercourse, after a time, she allowed you to penetrate her anus again, with your penis. She was hoping, as she put it, that the pain would be over quickly. After a few thrusts, it became unbearable and she changed positions.

Consensual sexual activity of one kind or another, continued at various times between 1.00 am and 4.00 am. At about 4.00 am, your partner started crying, due to the pain in her vagina, and you stopped that penetration.

You then lay on your back and stroked your penis, whilst indicating to her that you would like to, again, penetrate her anus with your penis. She said, 'No, anal is painful, I don't want to ... you already did that', and, 'No, it hurts too much'. After then unsuccessfully trying vaginal penetration for a short time, you then kissed her goodnight and moved to your side of the bed.

It would have seemed all that activity was complete, but, shortly thereafter, and without warning, you rolled your partner onto her stomach and pinned her down with your body weight and held her arms above her head, preventing her from moving. You attempted to penetrate her anus with your penis, but she struggled and said, 'Adrian, no ... no, Adrian ... stop it ... no'.

She continued to struggle, by pushing her legs together and moving her bottom, but you grabbed her hips and pushed your penis into her anus. You commenced to thrust your penis in and out of her anus, whilst pushing her head down, into the pillow, telling her, 'It hurts, doesn't it? Say it. It hurts', and forcing her to admit that what you were doing to her was hurting her. She said as you demanded. You then withdrew your penis and ejaculated on the outside of her anus and fell asleep.

6 Any act of rape is a very serious matter. By his plea of guilty, the appellant acknowledged that, when the act of anal penetration took place, he knew that his partner was not consenting. There were, however, a number of highly unusual features of the surrounding circumstances, noted by the sentencing judge as follows:

(a) the appellant and his partner had engaged in consensual anal intercourse both before and after this incident, including on the night in question. As the judge noted in his reasons, 'the offence was preceded by a long bout of consensual vaginal and anal intercourse and oral sex';

(b) after separating for a period following the incident, the victim and the appellant resumed their relationship, which then continued for another 3 years;

(c) the offence was 'aberrant conduct and involved a one-off incident in what was otherwise a very lengthy relationship with the victim. Significantly [the appellant] did not repeat it in the years following its commission';

(d) the victim informed police of the rape soon after it occurred but said that she did not want the appellant charged. When told by police that if she made a report the appellant could be charged, she decided not to proceed with the report. In the event, the victim did not report the matter to police until almost 4 years later, following the acrimonious break-up of the relationship; and

(e) at the victim's request, the appellant sought counselling shortly after the offence. He candidly acknowledged to the counsellor what he had done, and that he felt very guilty about it. He continued in counselling for several years thereafter.

7 There were, in addition, a number of strong mitigating factors. First, the judge accepted that the appellant had been subject to sexual abuse as a child and, critically, that there was 'a nexus of a significant kind' between that abuse and this offence. It is instructive to examine the careful process by which his Honour arrived at this conclusion.

8 In the course of argument on the plea, defence counsel relied on a report from Ms Carla Lechner, clinical and forensic psychologist, which recorded that the appellant had been the victim of sexual abuse as a child but that he found it 'very hard to disclose the sexual abuse of which he was a victim, preferring not to discuss details, but revealing that it was a family member and that the abuse occurred several times'. Ms Lechner expressed the view that those childhood experiences might 'possibly' have some bearing on his offending behaviour.

9 Noting that Ms Lechner had not expressed a definitive view on this question, his Honour referred both counsel to the decision of this Court in GEM v The Queen,[1] in which the issue had been addressed. His Honour drew counsel's attention to the following passage in the joint judgment of Maxwell P and Weinberg JA:

The weight properly to be given to childhood sexual abuse as a factor in sentencing 'will vary greatly from case to case', as Ormiston JA explained in R v AWF. Expert evidence, as to whether or not there is a nexus between the abuse and the offending, will usually be critical. In the present case, as noted earlier, the expert made clear in response to the judge's questions that he could only say that the appellant 'perceived' there to be such a nexus. This may be contrasted with the example, given by Ormiston JA in AWF, of a case where the evidence before the court confirms an objective link between the earlier abuse and 'a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious ...'[2]

10 Quite properly, his Honour informed defence counsel that he could make no finding on the issue without expert evidence establishing a 'relevant nexus between the abuse and the offending'. The plea was then adjourned to enable the defence to obtain a supplementary report from Ms Lechner which squarely addressed the sexual abuse issue. In her second report, Ms Lechner recorded the appellant's account of his having been sexually abused between the ages of five and 11 by his mother and, between the ages of seven and eight by his maternal grandmother whilst he was residing in her care. Ms Lechner noted the 'high level of distress, shame, embarrassment and anger' experienced by the appellant as he grew up, and other sexual and emotional difficulties resulting from the abuse.

11 Ms Lechner expressed her conclusion in these terms:

In respect of these disclosures, it would appear that a nexus does exist between his experience of abuse and his engagement in sexual offending, in that his sexuality is tainted by his early childhood experiences, with discussions about his mother leading to strong feelings of confusion and hostility that in turn impede his judgement and ability to inhibit angry impulses. Although he has no direct memory of discussions about his mother, if this indeed occurred, this would no doubt trigger specific adverse memories and feelings, at either a conscious or sub-conscious level. Whilst I am not suggesting that Mr Bourne deliberately set out to be sexually aggressive in response to his feelings, at some level he felt immensely angry, these feelings most likely precipitated by memories of his mother, with his capacity to inhibit his feelings severely compromised by alcohol abuse/intoxication.

I am satisfied that in committing the offence, your judgment was impeded and you lacked the ability to adequately inhibit your angry impulses, as a result of the impact of the childhood abuse that you suffered.

Hence, applying the principles set out in GEM, there is a proper basis for viewing your criminality as less serious than might otherwise be the case.

Although no claim to the Verdins[3] principle has been made for this reason by your counsel, I do consider this factor reduces your moral culpability and ameliorates the importance of the principle of general deterrence. However, I do not consider it has any bearing on the service of any term of imprisonment that might be imposed.

13 This was, with respect, an exemplary approach to a difficult issue. Sentencing judges are entitled to insist on an appropriate level of rigour when submissions are made about the mitigating effect of past experiences of this kind. It was very much to the appellant's benefit that his Honour pointed out the deficiency in the expert evidence and allowed sufficient time for the deficiency to be remedied.

14 His Honour accepted the following additional mitigating factors:

(a) the appellant was the product of 'a dysfunctional and dislocated family';

(b) despite problems at school, he had completed Year 11 successfully and had been in productive, full-time employment all his adult life;

(c) despite the absence of family support from his siblings, the appellant had shown great devotion in caring for his father (who was unwell) and his mother, over a four year period when they lived with the appellant and his first wife;

(d) at the age of 39, the appellant had no prior or subsequent conviction and, in particular, had no convictions for sexual or violent offences;

(e) the appellant had pleaded guilty at the earliest opportunity, which was of benefit both to the victim and to the Court and, in his Honour's view, warranted a significant sentence discount;

(f) the appellant was ashamed and remorseful for his conduct and had demonstrated victim empathy; and

(g) the appellant had excellent prospects of rehabilitation: 'You have a proven positive track record since the offence, over many years. And there is no need for a sentence which addresses the principle of specific deterrence.'

15 It was submitted on the plea that, because of the unusual circumstances, the offence should be treated as falling 'at the lowest end of the degree of seriousness'. A wholly-suspended sentence was therefore appropriate. His Honour rejected this submission, referring to what he described as 'particular disturbing features' of the offending, as follows:

[T]hat you caused pain to the victim, to the point of bleeding. That this pain and discomfort was clearly known to you, because you cruelly forced the victim to verbalise the hurt that she was experiencing. You breached the trust of the relationship between you. You were aware of the victim's particular fear of anal rape by an intruder. Of course, you were not an intruder, but this knowledge on your part must have highlighted the victim's intense fear of forced anal penetration without consent. Finally, the violence was used to effect penetration, you held the victim down and you pushed her head down. You persisted when she was in obvious discomfort, knowing that she had had a caesarean section some seven weeks earlier and was still recovering, and after you had about three hours of consensual sex.

To these matters, may be added the fact that you offended against the victim in her own home, indeed, in her own bed, in the presence of her two children, one of whom was yours. There was a serious lasting victim impact of the kind that I have described and you breached the victim's fundamental right not to engage in sexual activity with you if she did not want to, whether you were her partner or not.

Finally, it should not be assumed that rape committed in an existing relationship necessarily reduces the gravity of the offence and here, I do not consider that it has.[4]

16 Under s 27(2B) of the Sentencing Act 1991 (Vic), the sentencing court must not suspend the whole of a sentence of imprisonment imposed for rape (it being a 'serious offence' as defined) unless satisfied that the making of such an order is:

(a) appropriate because of the existence of exceptional circumstances; and

17 The submission for the appellant on the plea was that the circumstances were indeed exceptional and that it would be in the interests of justice for the sentence to be wholly-suspended. Defence counsel placed particular emphasis upon the delay between the offence and the laying of the charge. But, despite what the judge described as a 'spirited, very well prepared and professional plea', he rejected the submission:

...[R]egrettably, I consider your offending too serious an offence to be wholly suspended, particularly having regard to the context of sentencing for this offence, which I have already set out. However, I am satisfied that the combined effect of the mitigating circumstances are a powerful argument and justify the fixing of a much lower sentence than that submitted by the prosecution, particularly in view of the evidence and expert opinion involving the issue of your sexual abuse as a child.

18 The submission of the Crown on this appeal was that, when the unusual features referred to in paragraph 6 above were combined with the 'powerful mitigating factors', the end result was:

a truly unique or exceptional case. As a consequence, a sentencing judge ought to have been driven to the conclusion that a wholly-suspended sentence was the only appropriate sentence in the circumstances.

19 This submission represented a wholesale reversal of the position which the Crown had adopted on the plea. When asked by the judge for a submission on sentencing range, the prosecutor had submitted that the appropriate range for the head sentence was between 5 years 6 months and 6 years 6 months and, for the non-parole period, between 3 years 6 months and 4 years 6 months. The question of range was revisited on the second occasion, following the obtaining of the supplementary report from Ms Lechner which verified the nexus between the appellant's sexual abuse as a child and the commission of this offence. Defence counsel had again submitted that the circumstances were 'highly exceptional' and justified full suspension. The prosecutor told the judge that the Crown's submission on range remained unchanged. He said:

It is certainly the prosecution's submission that this is not at the lowest end of the scale, nor is there anything exceptional about this case, at least nothing exceptional that is in the accused's favour.

The judge told the prosecutor that he thought the range put forward by the Crown was too high.

20 The Crown's position on the plea could not have been clearer. Even partial suspension was out of the question, since the range nominated for the head sentence was effectively double the maximum sentence (3 years' imprisonment) above which there is no power to suspend. The Crown's position on the appeal was equally clear but could hardly have been more different. As already noted, the submission for the Crown (through different counsel) was, in effect, that a wholly-suspended sentence was the only sentencing option reasonably open to the judge. In other words, a sentence of 3 years' imprisonment was the upper end of the available range, and the judge must necessarily have come to the conclusion that exceptional circumstances existed and that full suspension of the sentence was in the interests of justice.

21 This is a remarkable - and concerning - sequence of events. It is not the change of position which is of concern. Though belated, it was both appropriate and necessary. Rather, what is troubling is the position first taken. How, it must be asked, could a Crown submission on range, provided in response to a sentencing judge's request, be so badly wrong?

22 As the majority judgment in R v MacNeil-Brown[5] explained, the function of Crown submissions on sentencing range is to promote consistency of sentencing and reduce the risk of appellable error. This case is a salutary reminder that an ill-judged Crown submission on range can have exactly the opposite effect, and may lead to sentencing error where otherwise there would have been none. Had the Crown's submission on the plea been as emphatically in support of a wholly-suspended sentence as was the appeal submission, there is every likelihood that the judge would have acceded to the defence submission that full suspension was appropriate. The very fact of the Crown adopting such an unusual stance on sentence would, we have no doubt, have been of considerable significance in his Honour's deliberations. As it was, the judge was confronted by a Crown submission which treated the question of suspension as not even open for consideration.

23 As noted earlier, the appellant has spent 6 months in custody when, on the changed view of the Crown, he should have spent none at all. That is a matter of very grave concern and it should prompt a careful review of the process by which the Crown's position on sentencing range is determined.

24 The appellant's first ground of appeal complained that the judge erred by failing to give sufficient weight to delay as a mitigating circumstance. The Crown conceded that this ground, too, was made out. This concession was correctly made, in our view.

25 As the appellant's submission correctly pointed out, the authorities make clear that delay is of special relevance where the offender has used a period of delay to rehabilitate and 'has ordered his affairs during the period of the delay with a view to reorganising his life.'[6] As noted earlier, the offending occurred in November 2004 but it was not until November 2008 that the victim made a formal report to police. The appellant was interviewed in January 2009 but not charged until November 2009. And, although he indicated at the earliest opportunity that he would plead guilty, he was not sentenced until July 2010.

26 There was thus a delay of more than 5 years 6 months between offence and sentence. During that period, the appellant had an unblemished record and, as noted earlier, had undertaken a sustained period of counselling commencing soon after the offence. Given the central importance of rehabilitation when delay is being considered, the appellant's case based on delay was powerful indeed.[7]

27 There was a further, distinct, aspect to the delay submission, as counsel for the appellant pointed out in his appeal submission:

[T]here is another powerful aspect to the delay in this case. The victim made a deliberate decision to not report the matter to the police at the time. The matter was discussed between the appellant and the victim and apparently resolved in that they both undertook counselling - she at CASA, he at a men's behavioural change program. Their relationship continued for several more years, and even intensified. There was no further violence or sexual assault perpetrated by the appellant. By any objective measure, the appellant had been forgiven. That forgiveness was withdrawn and the matter was reported to police - 4 years after the event - after the relationship had broken down in acrimonious circumstances, for reasons unrelated to the rape.

Given the way the rape had been dealt with between the applicant and victim, the applicant was allowed to develop an expectation that he would not be charged. He conducted his affairs accordingly, including pursuing the relationship, attending at counselling and making admissions to his counsellor.

As Kenny JA observed in Schwabegger (in the context of taxation offences):

'By entering into a settlement agreement with the commissioner in May 1991 and effecting payment pursuant to that agreement by 1992, the applicant may well have been led to believe that he had set about his rehabilitation and that he might thereafter order his affairs upon the basis that he would no longer be pursued by the authorities with respect to his earlier offending. This impression was, no doubt, confirmed by each passing year in which no charge was laid against him. Schwabegger [1998] 4 VR 649 at 656.'

Allowing for the change in context, those observations apply exactly in the present case.

28 In his sentencing reasons, the judge noted that there had been 'significant delay in the case, which must be taken in your favour.' After noting the delay between the commission of the offence in November 2004 and the report to police in November 2008, his Honour said:

Then there was a further unacceptable delay of ten months from the time of your interview, until you were charged in November 2009. This was said to be due to the need to obtain further evidence and have, the charge approved. But, in truth, a charge could have and, I think, should have been laid immediately after the record of interview, based alone on the word of the complainant. Then, of course, further enquiries could have been made in the interim.

All this means, you had, for many years, the threat hanging over you, that you would eventually end up in this trouble and then had further delay once police came into the matter.

Particularly emphasis was placed by your counsel upon the delay between the offence and your ultimate charge and, indeed, before dealing with the matter today. Although there was a significant delay in complaint, which is relevant for the purposes that I have already set out, I do not consider that that delay lessens the severity of impact on the victim or the seriousness of the offence.

30 With respect, it is was plainly correct to say that no amount of delay, and no amount of rehabilitation during the period of delay, could alter the seriousness of the offending. But the argument from delay is of quite a different character. What makes delay such a 'powerful mitigating factor' in a case such as the present is that considerations of rehabilitation and fairness weigh heavily in the sentencing synthesis, mitigating the punishment which the seriousness of the offence might otherwise warrant.[8]

31 In the present case, the judge did not address in his reasons either aspect of the defence submission on delay - first, that the appellant had rehabilitated himself in the long period between offence and sentence; and secondly, that the course of events, including the appellant's willing attendance at counselling, had induced in him a reasonable expectation that the victim would not report the matter to police. The fact that the report to police was made only after an acrimonious relationship breakdown was itself an important aspect of the context.

32 As the Crown's appeal submission argued, the powerful delay considerations in the present case called for a 'tempering of the punitive purposes of punishment', in the way suggested by the Western Australian Court of Criminal Appeal in R v Duncan:[9]

[W]here prior to sentence, there has been lengthy rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.

33 Accordingly, we concluded that this ground also succeeded.

Aggravating feature - finding on disputed facts

The learned sentencing judge erred in making a finding beyond reasonable doubt that:

(a) the victim had previously confided in the appellant that her greatest fear was to be anally raped by an intruder; and

(b) the appellant remembered or was actually conscious at the time of the offence that that remark had previously been made.

35 The Crown summary, which the prosecutor read out at the beginning of the plea, contained this statement:

The victim had previously confided in the accused that her greatest fear was to be anally raped by an intruder.

Defence counsel drew attention to this paragraph and told the judge that the statement was disputed. Counsel said:

He denies that was said, your Honour, but no doubt if she was called and did give evidence, she'd say it happened, and if I were to cross-examine her and say it didn't, she'd say it did, and we wouldn't get anywhere. I simply add, your Honour, that they are my instructions ...

36 The judge pointed out that defence counsel had earlier accepted his Honour's proposition that, by making the victim say that the penetration was hurting her, he was 'subjugating her completely'. The following exchange then took place:

HIS HONOUR: It seems to me that that conduct on his part is consistent with him knowing that her greatest fear was to be anally raped by an intruder and - - -

DEFENCE COUNSEL: Your Honour, if he was an intruder or a stranger - - -

HIS HONOUR: Yes, not an intruder. Yes.

DEFENCE COUNSEL: - - - or an unknown person, that comment would have some real meaning. But equally if she was a person who was horrified by the thought of anal sex and said look, anal sex is just completely out and if anyone did that, particularly an intruder, it would end my life, then it has some merit, but here that isn't the case, he's not a stranger - - -

HIS HONOUR: He's never going to be an intruder and he's not a stranger.

DEFENCE COUNSEL: He's not a stranger but also it is an act that they consented to as part of their repertoire.

37 Defence counsel was thus making two distinct points. The first was that the appellant denied that the victim had ever said anything to him about this being her 'greatest fear'. The second was that, even if the statement had been made, it could not be viewed as having any relevance to the offence with which the Court was concerned, since the appellant was neither an intruder nor a stranger, and anal intercourse was an accepted part of the consensual sexual relationship between him and the victim.

38 Axiomatically, when a matter is relied on by the prosecution as aggravating the seriousness of an offence, that matter - unless conceded - must be established beyond reasonable doubt. Where the matter relied on is disputed by the defence, no finding can be made to the requisite standard without the Crown calling evidence to substantiate the fact, and opportunity being afforded to defence counsel to cross-examine the relevant witness.[10]

39 There was no dispute but that the appellant had insisted that the victim acknowledge the pain she was experiencing. That was a very serious feature of the offending, as his Honour correctly noted. But, with respect, it was not open to his Honour to draw a factual connection between that feature and the alleged confiding of a fear of anal rape, given that the dispute of fact had been squarely identified and the prosecution had not called evidence to substantiate the disputed fact. Moreover, as the Crown's submissions acknowledged, there was only the most tenuous connection between an asserted fear of rape by an intruder and a rape occurring within an established sexual relationship and at the conclusion of a lengthy period of consensual sexual activity.

[1] [2010] VSCA 168.

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[4] Emphasis added. The highlighted passage is the subject of a separate ground: see [34]-[40] below.

[5] [2008] VSCA 190; (2008) 20 VR 677, [4].

[6] R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591.

[7] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, [35]-[40].

[8] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, [35]-[36].

[9] (1983) 9 A Crim R 354, 356.

[10] Ashton v The Queen [2010] VSCA 329, [22]-[23].