Clarke (a pseudonym) v The Queen [2022] VSCA 89

1 On 5 August 2021, a jury empanelled in the County Court found the appellant guilty of one charge of rape.[2] Following a plea, on 22 September 2021 the trial judge sentenced him to a total effective sentence of eight years' imprisonment with a non-parole period of five years.

2 The appellant was subsequently granted leave 'on the papers' to appeal against the sentence on a single ground, by which he contends that '[t]he sentence imposed and the non-parole period are manifestly excessive'.[3]

3 Having now had the benefit of full argument, we would allow the appeal; set aside the sentence imposed by the County Court; and substitute a sentence of three years' imprisonment, with a non-parole period of 18 months. Our reasons follow.

4 The appellant and the complainant, 'CRB', married on 10 October 2014. At the time of the offending, which occurred on an occasion between 14 and 18 February 2018, the appellant and CRB were separated, but continuing to live under the same roof. Also resident in the home were CRB's two children from a previous marriage; a child of the appellant and CRB; and a friend of the appellant's, 'GF', who had been a boarder since early January 2018.

5 In her sentencing remarks, the judge described the appellant's offending as follows:

[GF] was preparing to have an interview with MatchWorks employment placement services and the complainant, who is a hairdresser, offered to cut his hair and trim his beard in anticipation of the interview.

Whilst [GF] was sitting in a chair in the ensuite bathroom and the complainant was standing in front of him, leaning slightly forward to trim his beard, you entered the ensuite and stood behind the complainant. It was summertime, and the complainant was wearing a long free-flowing summer dress that went down to her ankles, and underwear. You quickly lifted her dress and pulled her underwear to the side, and inserted a small, motorised vibrator inside her vagina with force. She felt the vibration inside her vagina. She turned and asked what you were doing. You laughed and said 'I'll leave you guys to deal with that', and you then walked out of the ensuite.

6 More than a year later, on 8 April 2019, the police conducted a record of interview with the appellant. He confirmed that the incident had occurred, and did not dispute the complainant's version of events. The appellant told police that he considered the incident to be consensual because the complainant 'did nothing to try and stop [him]'. His subsequent evidence at trial was consistent with his record of interview.

7 In the course of cross-examination, CRB described the vibrator as being about the size of a large male thumb, with the silicon sheath that covers the motorised part removed. Her evidence was that it took her 'a long time to get it out'.

8 In her sentencing reasons, the judge discussed the circumstances of the offence, before noting that the complainant 'has been very traumatised by the rape', feeling that 'she was disrespected and treated like a piece of meat, worthless, totally violated'. The complainant, the judge said, 'felt worthless and degraded as a woman, not worthy of respect and love', her life having 'changed completely'. She still suffers 'features of post-traumatic stress trauma'.

9 The sentencing judge said that she considered the appellant's 'to be a serious offence, involving as it does a significant breach of trust on [his] behalf against [his] wife'. She observed:[4]

The nature of the rape is such that I do not consider it to be at the lower end of seriousness, which was submitted by your counsel, Mr Lawson. I consider this to be serious offending. However, I accept that it is not at the highest level of seriousness and I have assessed it as being less serious than the mid-point of seriousness for this type of offence.

10 Having discussed the appellant's history and personal circumstances, the judge said:

You come before the court with no prior criminal history. I have taken into account your general good character that is evidenced by the fact that at the age of 45 you have no criminal convictions.

11 The judge then set out the contents of supportive character references that had been tendered on the plea, and referred to a report received from a psychologist, Ms Lee Thurlow, who had been treating the appellant for depression, anxiety and stress. Ultimately, the judge said that she considered the appellant's prospects of rehabilitation 'overall' to be 'good'.

12 Earlier in her reasons, the judge had said that the appellant's 'actions must be condemned', and that denunciation and general deterrence 'are significant features of this sentence'. Returning to an assessment of the gravity of the offence, she said:[5]

I must sentence you having regard to the objective gravity of the offending and I have already indicated my view that I do not consider this as low-level offending, rather I consider that it is offending that sits at slightly below the mid-level of offending in terms of the objective gravity.

You have shown poor insight into your offending conduct and you have not demonstrated any remorse. I consider your moral culpability to be high.

In view of your lack of prior criminal history, it is accepted by the prosecution that the significance of specific deterrence and the protection of the community is not elevated in the sentencing exercise. Nevertheless, your lack of remorse and insight and the opportunistic nature of the rape committed by you means that these are still considerations that are relevant.

13 The judge said that she had taken into account the impact of the COVID-19 pandemic, and she discussed the relevance of the standard sentence. Finally, she said that she was 'asked to impose just punishment', a term of imprisonment with a non-parole period being the only appropriate sentence.

14 At the time of offending, the appellant was aged 42 years, and he is now 46.[6]

15 The appellant has no prior convictions, and several people attested to his good character. At the time of sentence, he had been self-employed for some 15 years, and, at the time of his offence, was operating a property maintenance business. That business was crippled when a fire at his property destroyed the main truck used by the business.

16 At age 28 the appellant was diagnosed with penile cancer. Although the cancer is now in remission, the appellant endures ongoing anxiety and uncertainty as to his prognosis. Further, as indicated, a psychologist, Ms Lee Thurlow, had been treating the appellant for depression, anxiety, and stress since 30 July 2018 pursuant to a mental health care plan. Ms Thurlow noted that the appellant enjoyed a close and supportive relationship with his father. She stated that the appellant had significant and ongoing anxiety and depression relating to not being able to see his daughter for some years. Further, she noted the difficulties that the appellant suffered associated with the loss of his business and the difficulties relating to the deterioration of his marriage. Finally, she noted the appellant's strong work ethic and commitment to gainful employment.

17 Counsel for the appellant submitted that both the head sentence and non-parole period were wholly outside the range available in the sound exercise of the sentencing discretion, given the appellant's good character; his good prospects of rehabilitation; the absence of a need for specific deterrence or community protection; the short duration of the offending; and the judge's finding that the offending was 'less serious than the mid­point of seriousness for this type of offence'.

18 Moreover, counsel submitted that many of the features identified in Jurj[7] that are typically taken into account in assessing the gravity of a particular offence of rape were absent in the present case. He submitted that: there was no evidence of premeditation; the offending conduct was of relatively short duration; the offending conduct involved no violence, or threat of violence, additional to the act of penetration; no weapon was used; apart from some discomfort, no physical injury was caused; the offender did not ignore pleas to stop; and the conduct created no risk of pregnancy or sexually transmitted disease.

19 As to current sentencing practices, counsel submitted that sentencing cases since the introduction of the standard sentence for rape was introduced demonstrate that the sentence of eight years' imprisonment imposed in this case is 'significantly out of step with those sentencing practices'.[8]

20 Ultimately, counsel submitted that the sentence of eight years' imprisonment, and the non-parole period of five years, imposed upon an offender with no prior convictions and good prospects of rehabilitation, is explicable only on the basis that the sentencing judge mischaracterised the gravity of the offending, and gave excessive weight to the standard sentence.

21 Counsel for the respondent submitted that the appellant's offence was serious and his moral culpability was high. He had treated CRB like 'a piece of meat'. The offending, counsel submitted, was designed to humiliate the complainant, and was aggravated by the fact that it was committed in the presence of another person. It had a profound effect on the complainant, who had in fact suffered significant humiliation.

22 Further, counsel submitted, the appellant was lacking in insight and had not demonstrated any remorse. There was no mitigation to be had from a plea of guilty. General deterrence and denunciation, counsel submitted, were important.

23 Finally, counsel submitted that the cases decided since the introduction of the standard sentence scheme do not support the contention that the sentence in this case is out of step with current sentencing practices. He submitted that most of the cases on which the appellant relied involved a plea of guilty and were in that sense not comparable to the present case. He also submitted that the offenders in several of those cases were able to call upon greater mitigatory factors than the appellant. The sentence imposed, so the respondent's counsel submitted, falls within the permissible range.

24 In submissions on the plea, the prosecutor contended that 'the offending was designed to humiliate and degrade the victim'. The judge made no finding, however, as to what motivated the appellant's offending, and did not find that the appellant intended to humiliate and degrade his wife.

25 The appellant's version of events was contained in his record of interview with police, which effectively stood as his evidence-in-chief on the trial. He told police that he had challenged CRB to maintain her concentration when cutting GF's hair whilst he inserted the sex toy. On his version, 'at no time did [he] consider it to be not consensual or anything like that'. Indeed, so he told police, CRB, GF and he 'were all having a laugh about it openly'. By their verdict, the jury must be taken to have rejected the appellant's assertion that he did not believe there was an absence of consent. His motivation, however, remains obscure, complicating any determination of his moral culpability and the objective gravity of his offending.

26 When discussing the objective gravity of the crime of rape generally, the Court observed in Lawrence:[9]

By virtue of s 38(1) of the Crimes Act 1958, there is but one offence of rape, which may be committed in a variety of ways.[10] As the cases demonstrate, the crime of rape covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity. Hence, a sentence that is clearly just and proportionate in one instance of rape will be manifestly excessive - or, indeed, manifestly inadequate - in another.[11]

But no matter the manner of its commission, the maximum penalty of 25 years' imprisonment for rape is reserved for the worst class of case.[12] The provision of the same maximum penalty for rape - however committed - cannot carry with it the necessary implication that, divorced from its surrounding circumstances, one form of penetration must be punished in the same way as another. Self-evidently, the sentence for rape in any given case must turn on an individual consideration of the circumstances and features of the particular offence (and of the offender). So much was made clear in Ibbs,[13] a case of sexual penetration without consent, where the relevant statute embraced different forms of sexual penetration. In allowing an appeal from the Court of Criminal Appeal (WA), the High Court said:[14]

Although ... the judgments in this case suggest that the particular facts of each case are to be disregarded, the judgments appear to adopt as a sentencing principle the proposition that, 'divorced from the circumstances',[15] each kind of sexual penetration as defined in s 324F [of the Criminal Code (WA)] is neither more nor less heinous than another. That proposition cannot be accepted. The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s 324D: Reg v Tait and Bartley;[16] Bensegger v The Queen.[17] The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s 324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.

27 Rape is a standard sentence offence.[18] By virtue of s 5A(1)(b) of the Sentencing Act 1991, the period specified as the standard sentence - for rape, 10 years' imprisonment - is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. In the same way that the maximum sentence is a factor in the application of the intuitive synthesis, so too is the standard sentence, no more, no less.[19]

28 Determining the middle range of seriousness for rape is difficult, since, as was observed in Lawrence (and has been observed in other cases), 'the crime of rape covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity'.[20] And notwithstanding the standard sentence, by reason of s 5(2)(c) of the Sentencing Act 1991 a sentencing judge is still required to assess the nature and gravity of the offence in the conventional way.[21]

29 Rape accomplished by use of an object is, in the Court's experience, very often accompanied by significant violence additional to the act of penetration.[22] The present case does not have that feature. Thus, although the judge said that the 'act of itself was violent and caused physical discomfort as well as hurt and humiliation', no violence was employed by the appellant beyond the level of force required to effect penetration. Hence, a significant aggravating factor often present in case of rape by an object was absent in the present case, as were other features of aggravation identified in Jurj.[23] The appellant's offending: was not perpetrated against a victim vulnerable as a result of intoxication or mental impairment; was accompanied by little or no premeditation; was of limited duration; was attended by no overt violence (or threat of violence); caused no physical injury; was not effected following pleas to stop; and created no risk of pregnancy and little risk of infection.

30 The sentencing judge considered that a sentence of shorter duration than the standard sentence should be imposed. Although we agree that a sentence of shorter duration than the standard sentence should be imposed, we consider that the sentence of eight years' imprisonment selected by the judge was altogether outside the range of sentences available in the sound exercise of the sentencing discretion. We have concluded that, when proper regard is had to the factors which bear upon the objective seriousness of the offence, and when the features going in mitigation are taken into account - including the appellant's previous good character and prospects of rehabilitation - the sentence imposed is manifestly excessive. That view is reinforced by consideration of the comparable cases to which we were taken in argument, even noting the features that distinguish those cases from the present case.

31 It thus falls to this Court to resentence the appellant. We have had regard to the objective seriousness of the offence, including the fact that the offending occurred in CRB's own home, a place where she was entitled to feel safe, and the fact that the offending has had a significant effect on CRB. We have also had regard to the features going in mitigation, discussed earlier. We have concluded that, when proper regard is had to the factors which bear upon the sentencing exercise, a period of imprisonment is required. In our opinion, a sentence of three years' imprisonment is appropriate.

32 Having regard to the reduced importance of specific deterrence and community protection in the appellant's case, coupled with his prospects of rehabilitation, we consider that it is in the interests of justice not to fix a non-parole period otherwise required by s 11A(4)(c) of the Sentencing Act 1991. We would fix a non-parole period of 18 months.

33 For those reasons, we would allow the appeal; set aside the sentence first imposed; and, in lieu, impose a sentence of three years' imprisonment, with a non-parole period of 18 months.

[1] These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

[2] Crimes Act 1958, s 38(1). By virtue of s 38(2) the maximum penalty is 25 years' imprisonment, and by virtue of s 38(3) the standard sentence as 10 years' imprisonment.

[3] DPP v Clarke (a pseudonym) (Unreported, Court of Appeal, Priest JA, 25 March 2022).

[6] His date of birth is 24 January 1976.

[7] Jurj v The Queen [2016] VSCA 57, [80] ('Jurj'). See also DPP v Lian [2019] VSCA 75, [70].

[8] Counsel referred to: Lockyer (a pseudonym) v The Queen [2020] VSCA 321; DPP v Beck [2021] VSCA 88; and DPP v Frank (a pseudonym) [2021] VSCA 163; and to two sentences: DPP v Dat (a pseudonym) [2020] VCC 344; and DPP v Flancey [2021] VCC 1225.

[9] Lawrence (a pseudonym) v The Queen [2021] VSCA 291, [21]-[22] (Priest and T Forrest JJA) ('Lawrence') (citations as in original).

[10] See s 35A(1), which sets out the various ways in which a person may sexually penetrate another.

[11] R v Simon [2010] VSCA 66, [60] (Bongiorno JA).

[12] R v Kilic [2016] HCA 48; (2016) 259 CLR 256, 265-6 [25]-[26] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[13] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447.

[14] Ibid 451-2 (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ) (citations as in original).

[15] [R v Ginder] (1987) 23 A Crim R, at p 4.

[16] [1979] FCA 32; (1979) 46 FLR 386, at p 398; [1979] FCA 32; 24 ALR 473, at p 484.

[17] [1979] WAR 65, at p 68.

[19] McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).

[21] Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 473 [37], 479 [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[22] See, eg, R v Fuller-Cust [2002] VSCA 168; (2002) 6 VR 496; DPP v Granata [2016] VSCA 190.

[23] See [18] above.