Director of Public Prosecutions v Sims [2004] VSCA 129

5. The prosecutor opened the case and then his Honour heard a plea in mitigation of penalty during which 12 exhibits were tendered, including two psychological reports.

8. On 1 April 2004 his Honour recorded convictions and sentenced the respondent to be imprisoned for 18 months on each of counts 1, 2 and 4 and for nine months on count 3 and in substance directed that six months of the sentence imposed on each of counts 2 and 4 and three months of that imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1, so that the total effective sentence was imprisonment for a term of two years and nine months. He ordered that that term be wholly suspended for a period of three years from 1 April 2004. Although his Honour stated that in making his decision to suspend the whole sentence of imprisonment he took into account the fact that the respondent was to be sentenced as a serious (sexual) offender on counts 3 and 4, he did not comply with the requirement in s.6F(1) of the Sentencing Act 1991 to cause to be entered in the records of the sentencing court the fact that the offender had been sentenced as a serious offender for a relevant offence.

11. By notice served on 27 April 2004 the Director of Public Prosecutions has appealed pursuant to s.567A of the Crimes Act 1958 against the sentence imposed, on the ground that it is manifestly inadequate. By way of Particulars it is claimed that in fixing the individual sentences, making the directions with respect to cumulation and ordering that the total effective sentence be wholly suspended the sentencing judge failed to take, or to take sufficiently, into account the gravity of the offences, the aspect of general deterrence, the aspect of specific deterrence or the effects of the offences upon the victim; gave too much weight to factors in mitigation; and failed to give sufficient weight to the fact that the respondent fell to be sentenced as a serious sexual offender in relation to counts 3 and 4 and the consequent obligation to regard the protection of the community as the principal purpose of sentencing.

14. Before the ground of appeal as particularised can be considered it is necessary to state the facts of the offending and desirable to summarise his Honour's sentencing remarks. Late in the evening of Saturday 29 November 2003 the complainant, a woman then of 21 years, returned home to her St Kilda flat after an afternoon at the beach with friends and some exercise. She had consumed some alcohol and was feeling tired. She showered and changed into a nightgown and dressing gown. At about 11 p.m. she lay down on the couch in the lounge room of her flat with a book. The head of the couch was close to the large window of the lounge room and the foot furthest from it. The light in the lounge room was on and no blind or curtain was drawn over the window. The front door to the flat, which opened into the lounge room, was closed, but not locked. The flat was on the ground floor and was the flat nearest to the security gate giving access to the complex of flats, so that anyone entering the complex by that gate immediately passed the flat and in particular the lounge room window.

17. At about 2 a.m. the next day, Sunday 30 November, the complainant awoke to find a male person in the act of cunnilingus upon her. Her legs had been pulled off the couch and the male was kneeling on the floor between them. The room was in darkness. The complainant did not know who the person was. She grabbed his head and pulled it away. At that point he forced a kiss upon her, placing his tongue inside her mouth. (This constitutes the indecent assault.) The complainant pulled away and said "No" and turned her face away from his face. She believed he took that to mean that she wanted more oral sex. He went to do that again and she grabbed his head and pulled it away and said "No, no," a few times. She thought he might have said that he was sorry. By that time she had got up off the couch and was asking him to leave. However, while she was still on the couch, he had put his fingers deep into her vagina. She was aware that it was more than one finger, as this hurt her. She could feel that his fingers were all the way inside her, as she pulled his hand away and said that she did not want to do that. Trying to remain calm and polite for fear that the intruder might become violent, the complainant several times asked him to leave or told him to go. She walked over and opened the front door and told him to leave, but he remained seated on the couch. Eventually he came over to her at the door and, incoherently and after a few attempts, said that he would really like the chance to explain himself. She at first said that she was not interested, but in the end allowed him to do so. He told her that he had entered the complex and seen her exposing herself through the window and so had come in. He said that he was drunk and "stoned" on drugs. She then asked him to leave a few more times and he did. It was about 2.30 a.m. The complainant was very scared. She cried throughout a telephone call made to a male friend after the intruder left. The police had difficulty understanding her when she called them as she was crying hysterically.

20. When they arrived, the police instituted a door-to-door canvass of the immediate vicinity and about 5 a.m. found a man asleep in a chair in a ground floor flat two doors along who exactly matched the description of the offender given by the complainant. The man was the respondent and, although the intruder had told the complainant that he did not live in the complex, the flat in which the respondent was found was that which he shared with his de facto.

23. The respondent was arrested and conveyed to the St Kilda Criminal Investigation Unit for interview. Interviewing police quickly formed the view that he was too intoxicated to be interviewed immediately. He was allowed to sleep for some five hours and then interviewed. In the course of the interview he explained that he had worked a 13-hour shift as a chef - he was highly regarded - at a South Yarra restaurant on the Saturday, from 10 a.m. to 11 p.m., during which he had consumed three stubbies of beer. At the conclusion of the shift he had gone to a nearby hotel, where he had consumed at least another six pints (600 mls) of full-strength draught beer. He had then smoked a small "joint" of cannabis on the way home. (He also told the two psychologists whom he consulted that he then took an Ecstasy tablet to raise his level of alertness and arousal.) In the interview he made full admissions of the offences charged except that he could not remember digitally penetrating the complainant. He said that he was walking past her flat when he observed her through the window asleep on the couch naked from the waist down. He thought to himself, "That looks inviting", and tried the door, which opened. It was clear that he was remorseful.

26. The complainant did not sustain any physical injuries as a result of the offences, but was very distressed.

29. At the commencement of his sentencing remarks the County Court judge stated that the respondent's remorse was shown by his conduct shortly after offending, by his full admissions[1] to the police and by his cooperation at the committal mention and pleas in the County Court. His Honour said that the respondent's admissions would earn him a reduced sentence. After setting out the facts of the offending succinctly, his Honour stated that the respondent's counsel had not attempted to minimise the serious nature of his client's offending. The respondent had invaded a home in the early hours of the morning and there sexually assaulted the sole female occupant. She was not known to him. His Honour continued, addressing the respondent:

"Your action was a spontaneous response to an unusual situation and your inhibitions were reduced by your alcohol and substance abuse. When repelled, you desisted.[2] No force or violence was used although, of course, at no time did you have any reason to believe that you could have consensual sex with the victim."

33. His Honour noted that the respondent's previous convictions for cultivation and use of cannabis were relevant only to the extent that cannabis had played some small part in the commission of the present offences. His Honour traced the respondent's employment history. He noted that he had no psychiatric or psychological disability. He referred to the favourable references that had been tendered. His Honour noted that, after his release on bail in relation to the present charges, the respondent had sought drug and alcohol counselling and that tests for drug use on 3 and 26 February and 15 March 2004 had all been negative. The judge accepted that the respondent had good prospects of rehabilitation. "In fact," he said, "provided that you control your alcohol and drug addiction you are unlikely to re-offend."

36. His Honour noted the rival submissions as to the appropriate sentencing disposition as being that the prosecution sought an immediate sentence of imprisonment whilst counsel for the respondent submitted that a wholly or partially suspended sentence of imprisonment was warranted.[3] His Honour said that his task was to weigh the serious and invasive nature of the respondent's offending against his assessment of the respondent's rehabilitation prospects and the need to condemn his conduct. He had decided, he stated:

" ... that, as a hardworking and responsible person, who has been convicted for the first time for offences of this kind, I shall impose a wholly suspended sentence of imprisonment."

His Honour then made the reference to the respondent's being sentenced as a serious sexual offender that I have already mentioned. Then he pronounced the sentences already referred to. He ended his sentencing remarks as follows:

"You are fortunate that you will not immediately serve a period of imprisonment. You must guard against any use of illicit drugs. ... I wish you success in the future."

42. In support of the appeal it was submitted for the appellant, correctly, that the respondent's criminal conduct constituted both an uninvited invasion of the complainant's own home and an uninvited invasion of her own body. The commission of offences of this nature in the sanctity of the victim's home constituted an aggravating factor. The submission continued that the offences the subject of counts 2, 3 and 4 were committed in circumstances where she was both alarmed and extremely frightened. The violation of her in breach of her right not to engage in any sexual activity was particularly grave. She suffered indignity, humiliation, distress and fear. Offending of the nature in question was offensive, repugnant and intolerable. The foregoing matters were, it was said, scarcely recognised in his Honour's sentencing remarks. It was submitted that in a case such as the present the sentencing principles of retribution, denunciation, general deterrence and punishment assumed a real significance and each ought to have been given much weight by the sentencing judge. Condign punishment was required. Turning from the offending to the offender, it was submitted that, although a number of matters in mitigation were relied on, this was nevertheless a case in which weight was required to be given to the sentencing principle of specific deterrence. It was then submitted that, notwithstanding the mitigating factors relied on for the respondent on the plea and accepted by the judge, when regard was had to the nature of the sentence imposed, the overall sentence and each of the four individual sentences, they could only each and all be described as manifestly inadequate. The offences (presumably excluding that the subject of count 3, considered by itself) were serious examples of offences of this nature and his Honour failed to impose sentences commensurate with the degree of criminality involved. In short, they were each and all so disproportionate to the gravity of the criminal conduct that the exercise of the sentencing discretion had miscarried to such an extent that this Court must intervene in the interests of maintaining appropriate sentencing standards for offences of this type. The fact that the respondent fell to be sentenced as a serious sexual offender on counts 3 and 4 was certainly not reflected in the individual sentence imposed on count 4 for a rape committed after the complainant had told the offender to stop[4] and in a particularly bold and gratuitous manner in callous disregard for her. Orally, Mr Holdenson, summing up the appellant's case, submitted that the wholly suspended sentence was manifestly inadequate both in its term and in its suspension. There should have been no suspension both because the aggregate period of imprisonment should have exceeded three years[5] and because his Honour could not properly have been satisfied that suspension was "desirable ... in the circumstances".[6]

45. For the respondent it was submitted that the appellant needed to show such inadequacy of sentence as to demonstrate error in point of principle. It was acknowledged that at first blush the total effective sentence - wholly suspended as it was - appeared to be lenient. The circumstances of the case were, however, it was submitted, highly unusual. It was submitted that the individual sentences on each count and the total effective sentence were within the range of those properly open, and that the orders for cumulation were unimpeachable. On the assumption that that was accepted, a matter to which I shall return, the only live question was whether the order for total suspension rendered the sentence manifestly inadequate. It was submitted that it did not. It was said that in particular cases, of which this was one, protection of the community was not necessarily accomplished by a long sentence of imprisonment immediately to be served, but by a sentence that otherwise promoted rehabilitation. Echoing the contention that the circumstances of this case were highly unusual, it was submitted that there were several features of it which, when taken in combination, divorced it from the ordinary. They included -

* the offences were impulsive, opportunistic and unplanned;

* the offences resulted from diminished inhibition resulting from tiredness and ingestion of alcohol and drugs;

* the respondent desisted upon being asked to do so;

* the respondent was apologetic and attempted to explain himself;

* there was no force or violence, or threat of violence, other than that necessarily involved in the offending;

* the interview with police was "unusually frank";

* it was clear to investigating police that the respondent was remorseful: he showed "extraordinary" remorse.

Orally, reliance was placed also on the fact that the respondent was hard-working and industrious. To the above was added the fact that the respondent had pleaded guilty at the committal mention. Reliance was placed on his Honour's findings that the respondent had good prospects of rehabilitation and was unlikely to re-offend, which, it was pointed out, correctly, bore directly upon considerations of specific deterrence and community protection. "Apparently in order to promote rehabilitation", it was said, the judge imposed a suspended sentence, with actual imprisonment being the almost inevitable result of breach. In other words, it was submitted, the protection of the community was best served by a sentence which was directed to the respondent's rehabilitation. It was thus "desirable" (within s.27(1) of the Sentencing Act) to suspend the sentence of imprisonment. The discussion in Director of Public Prosecutions v. Buhagiar and Heathcote[7] as to the nature and desirability of a suspended sentence was cited.

59. It was pointed out for the respondent that sentencing judges are entrusted with a substantial discretion, which should not be unduly circumscribed. The fact that members of this Court would have exercised the sentencing discretion differently is not determinative. So much may be accepted.

62. Finally, it was submitted that the element of double jeopardy was exacerbated in this case because the respondent had had his freedom since being sentenced. Even if it be thought that intervention was otherwise warranted, in the exercise of discretion this Court should decline to interfere. I agree that the fact that an offender has been at large since sentencing or since some date subsequent to sentencing is a relevant discretionary consideration. But, as Mr Priest accepted and as the cases[8] confirm, it cannot, logically, preclude the allowance of a Director's appeal.

65. In my opinion, for the reasons which follow, the sentence imposed below was manifestly inadequate in the length of the individual terms for three of the offences and in the directions for cumulation and also was clearly inappropriate[9] in its mode of disposition, that is, by way of total suspension.

68. The immediate reasons which his Honour gave for his decision to impose a wholly suspended sentence of imprisonment are, with respect, unsustainable. They were that the respondent was a hardworking and responsible[10] person who had been convicted for the first time for offences of the kind in question. Neither of those factors nor the combination of them could justify the decision. Counsel for the respondent appeared from their written outline of argument to accept this view, for they made the suggestion, by the word "apparently", that his Honour's order was made in order to promote rehabilitation. It is proper to say that in the immediately preceding sentence of his Honour's reasons he had referred, amongst other things, to his assessment of the respondent's rehabilitation prospects. I have in these reasons considered the appeal on this basis.

71. On any view the sentence was very lenient. As already indicated, counsel for the respondent conceded at least the appearance of leniency. His Honour recognised the leniency, as it appears to me, in the concluding paragraph of his sentencing remarks and particularly in his description of the respondent as "fortunate". It is to be borne in mind that on the plea the respondent's counsel stated that he

"certainly wouldn't submit ... this is at the lower end of the scale. I think it's clearly not. I would, however, say that it's probably somewhere in the mid-range ... "

I do not suggest that the particular offences were near the upper end of the scale of seriousness, but the fact that three of the four offences carried a maximum penalty of 25 years' imprisonment shows that they are considered by the Parliament to be inherently very serious. Moreover, the respondent fell to be sentenced on counts 3 and 4 as a serious offender[11], so that, leaving entirely aside s.6D(a) of the Sentencing Act, s.6E prima facie required cumulation of the sentences on counts 3 and 4.[12]

76. The seriousness of aggravated burglary and rape requires general deterrence, denunciation and just punishment to be the paramount purposes to be served by a sentence for them. As I have already indicated, that does not mean that rehabilitation is not also a purpose to be served. Whilst I accept that there are no absolutes, my assessment is that, in the absence of exceptional circumstances, a sentence which permitted a person who had raped another twice in the other's own home to avoid immediate imprisonment is "so disproportionate to the seriousness of the crime" that it would "shock the public conscience"[13]. In R. v. Schubert[14] Brooking, J.A. said:

"My own view is that, generally speaking, a digital rape should result in an immediate custodial sentence of substantial duration, and that the sentencer should ensure that a substantial part of that sentence will be actually served. Of course, there are no absolute rules, but, generally speaking, notwithstanding a plea of guilty, previous good character and genuine remorse, a rapist, whether the rape is digital or of a different kind, stands in very grave danger of an immediate custodial sentence."

In the same case Winneke, P. stated[15], "[T]here will be very few crimes of rape, digital or otherwise, which in my opinion will warrant a non-custodial sentence." It is clear from the context, in my opinion, that by "non-custodial" his Honour meant "not immediately custodial". Those two passages have been cited with approval in several subsequent decisions of this Court.[16] Indeed, in Director of Public Prosecutions v. Fellows[17] Phillips, C.J. said that it was appropriate that their Honours' views be affirmed and also that Schubert stood for the proposition that the setting in which non-custodial sentences for rape should be imposed is to be described as "in exceptional circumstances". Again, it is clear that his Honour used "non-custodial" as meaning "not immediately custodial". In Mason Winneke, P. stated[18] that the crime of rape, whatever the circumstances, and upon whomsoever committed, is regarded by the courts as a grave insult to its victim and a crime which can rarely give rise to a non-custodial sentence.

81. I understood Mr Priest to accept the propositions quoted from the cases cited and also the applicability of the three sentencing purposes referred to a little earlier, but to contend that in this case there were exceptional circumstances. I take the submissions, already summarised, that the circumstances of this case were highly unusual and that there were several features which in combination divorced it from the ordinary to mean that. I turn to consider whether the contention is made out. Looking at the features enumerated by counsel, I am bound to say that I do not regard the fact that the offences resulted from diminished inhibition so far at least as that resulted from the ingestion of alcohol or drugs (including a drug of arousal) as in any way mitigatory. As to the brevity of the offending, that is by no means an unusual feature of rape. Nor is the frankness of an interview by any means unusual. It is not correct that the respondent left the premises when asked, but only after numerous requests. It is true that there was no force or violence, or threat of violence, other than that necessarily involved in the offending, but it is clear from the victim's statement that the digital rape hurt her. Whilst the respondent's remorse was genuine and undoubtedly great, I am not satisfied, to judge by what I have seen in my judicial experience, that it is right to call it "extraordinary". (The judge made no such finding or evaluation.) Having considered the individual features relied on I now consider them in combination, as, naturally, they must be considered. I do not regard them when so considered as amounting to circumstances that are extraordinary, highly unusual or out of the ordinary. In the context of this case, the very seriousness of the offences, involving as they did the invasion of the home and security, and the body, of the young woman victim, overwhelmed other considerations, including rehabilitation. It follows that immediate imprisonment should have been ordered. Inasmuch as the judge was satisfied (as, implicitly, he must have been) that it was desirable in the circumstances to suspend the sentence of imprisonment totally, his Honour's discretion accordingly miscarried. Further, in my view, that discretion should not have been available because an aggregate period of imprisonment exceeding three years should have been imposed for the sentence to be within the range available in the exercise of a sound discretionary judgment. A term of 18 months was manifestly inadequate for each of the two rapes, if not also for the aggravated burglary. With appropriate directions for cumulation upon the sentence on count 4 the aggregate sentence had, I consider, to exceed three years comfortably. The cases show that silence of the prosecutor on this point in no way binds this Court.

84. In amplification of the final written submission for the respondent summarised earlier, Mr Priest submitted orally that, even if the sentence was considered manifestly inadequate, there were two factors which should lead the Court to the view that the proper exercise of its overriding discretion in appeals by

the Director was to decline to intervene. Those factors were that the respondent had been in custody for 38 days after his arrest and had had his freedom between the date of sentence and the determination of the appeal. The second factor constituted an "exacerbation" of the double jeopardy the respondent faced and that was exacerbated further by reason of the first factor, the combination constituting "an exquisite feature". I acknowledge that those two factors bear upon the court's discretion, but, whatever might be the position in another case, this case is, to my mind, one in which there is a clear duty on the Court to intervene, a duty not only clear but insistent. For the reasons I have given earlier I consider that the sentence here reveals such manifest inadequacy as to constitute error in point of principle, that it is so disproportionate to the seriousness of the offences as to shock the public conscience and that intervention is required to maintain adequate standards of punishment.[19]

88. I would therefore allow the appeal and impose a sentence of imprisonment. I understand that my view is a minority one. Accordingly I shall not state the specifics of that sentence.

91. I now invite Eames, J.A. to give the next judgment.

96. The approach which an appeals court should take in considering whether to allow an appeal against sentence by the Director of Public Prosecutions is one of restraint[20]. Only in a very clear case of error by the sentencing judge will intervention be justified, and even then the court retains an overriding discretion, having identified error, not to increase the sentence imposed by the court below[21]. The reasons for this restraint have been elaborated and re-stated in a long line of authority arising out of such appeals. The restraint is exercised not to spite justice

but to promote it, and in recognition of the fact that the sentencing judge is more often in a better position than an appeals court to perform the very difficult task of balancing all relevant factors in the sentencing of an offender. The restraint also acknowledges the very significant factor of double jeopardy whereby an offender, having been dealt with by the sentencing judge, is brought back before the courts to face possible re-sentencing. That latter factor is of particular significance in a case where the offender had been released into the community by the sentencing judge and where, many months later, the Director, on appeal, sought his immediate imprisonment.

100. Although complaint is made on behalf of the Director that the periods of imprisonment which were imposed as to each individual count, and in totality, were manifestly inadequate, the primary complaint is with the order of total suspension of the term of imprisonment. In my opinion, applying the principles which relate to a Director's appeal, neither the individual sentences nor the total effective sentence have been shown to be manifestly inadequate. It is significant, in my opinion, that the prosecutor did not submit to the judge that a total effective sentence of less than three years would constitute sentencing error, as is now asserted on this appeal. The prosecutor had been fully alerted to the fact that defence counsel was seeking a suspended sentence, which meant that he was urging the judge to impose a sentence, before suspension, that was not longer than three years.

103. The judge in this case was faced with a very difficult sentencing exercise. His Honour was very conscious of what he described as the serious and invasive nature of the offending conduct which took place in the victim's own home. The experience was undoubtedly a terrifying one for the victim. With considerable fortitude, she endeavoured not to show her fear to her attacker, and told police that she spoke to him politely, and acted as though she knew him, in her efforts to persuade him to leave her flat. Although he did not attempt, at all, to minimise his conduct, the respondent told the police that he was unaware at the time that the victim was frightened.

106. The legislation which governs the sentencing task requires the sentencing judge to have regard to a wide range of relevant factors, but in this case, as the judge was well aware, the respondent fell to be sentenced as a serious offender. By virtue of s.6D of the Sentencing Act 1991, that meant that the judge had to regard the protection of the community from this respondent as the principal purpose for which the sentence was to be imposed.

109. As to the protection of the community from this respondent, the judge concluded that the respondent had good prospects of rehabilitation and was unlikely to re-offend. In reaching that conclusion the judge had before him not only a wide range of very powerful evidence which disclosed that he had no psychiatric or psychological disability, but also very strong character evidence attesting to the non-violent character of the respondent. That evidence disclosed that he had strong support from his partner and family, and had undertaken counselling as to his drug and alcohol use. In addition, the evidence demonstrated that the respondent, from the very outset, was deeply remorseful for his conduct. Whilst it could be well understood that for the victim his immediate apology to her was of no comfort, the fact remains that he offered it, and did so sincerely. Notwithstanding the fact that he had received legal advice, he chose to participate in the interview with the police and did so with complete frankness. The investigating police acknowledged that his remorse was clear during that interview. At the earliest opportunity he pleaded guilty and avoided the victim having to undergo the trauma of a trial.

112. Counsel for the Director submitted that this was a case calling for full weight to be given to considerations of retribution, denunciation, general deterrence and punishment. All of those were important factors in this case, but they were not the only factors which the judge had to weigh. The offender's previous character and prospects of rehabilitation were also factors to be weighed, and those were factors of particular importance when the judge was considering whether suspension of the sentence, in whole or part, was justified. The courts have recognised that where unusual circumstances permit, the court might, as a merciful course, give to an offender, by way of a suspended sentence, a special opportunity for reform, so as to rebuild his life, and, by seizing that opportunity, to thereby make some recompense to society for the wrong he has done[22].

115. The judge in this case, having carefully weighed all of the special features in the case, concluded that the exercise of mercy of a suspended sentence was justified. It must be kept in mind that the imposition of a suspended sentence does not mean that an offender has not been punished or that principles of deterrence must not have been served[23]. The respondent has spent 38 days in custody and he knows that should he commit an offence during the period to which his suspended sentence relates he is liable to serve that sentence. But more importantly, in my opinion, the respondent must live forever with the fact that, by his own admission, he is a rapist, twice convicted, and stands convicted, too, of other serious offences. That is something that remains on his record for the rest of his life, notwithstanding the fact that he had, prior to this, no relevant convictions, and had conducted his life, generally, with industry and dignity.

118. As the authorities cited by Batt, J.A. demonstrate, in most instances a crime of rape will result in a sentence of immediate imprisonment, notwithstanding the presence of mitigating factors. But each case must be judged according to its own circumstances[24]. To succeed on this appeal the Director must clearly demonstrate

that it was not open to the judge to take the course he did, having regard to all of the special features of this case which, in my opinion, he carefully weighed. I am not persuaded that the judge failed to have regard to any relevant factor in this case. Nor am I persuaded that it was not open to the judge to adopt the course that he did, in the exercise of his discretion. I would dismiss the appeal.

124. Essentially for the reasons advanced by Eames, J.A., I would also dismiss this appeal.

127. I would add a few comments of my own. The task of the sentencing judge in this matter was, in my opinion, a particularly difficult one. On the one hand, the offences committed by the respondent were of their nature extremely serious and committed in circumstances that clearly and inevitably induced terrible fear in his victim. Only rarely would such conduct not result in the imposition of condign punishment. This Court has on a number of occasions spelled out with clarity the proper approach to be adopted. Brooking, J.A. in R. v. Schubert[25] said:

"Of course there are no absolute rules, but, generally speaking, notwithstanding a plea of guilty, previous good character and genuine remorse, a rapist, whether the rape is digital or of a different kind, stands in very grave danger of an immediate custodial sentence."

But, as Eames, J.A. has pointed out, the sentencing judge here had to take into account a number of factors which militated powerfully in mitigation of penalty and which may have moved this matter into that rare or exceptional category recognised by all of the judges who have addressed this matter in the various authorities. Included in the considerations which had to be taken into account, among other matters, were the absence of any relevant prior criminal history of the respondent, the judge's assessment that the respondent would be unlikely to re-offend, the remarkably frank fashion in which the respondent accepted responsibility for his conduct, his evident and deep remorse for what he had done, and his plea of guilty entered at the earliest opportunity. Whilst the protection of the community assumed primary significance as a sentencing consideration in this matter, as a practical proposition, neither that need nor the need for specific deterrence in the case of this respondent could be seen to present problems. The respondent had no psychiatric or psychological disability. He had a good employment and social history. No question arose as to his level of responsible living generally, and in summary his prospects for rehabilitation were good.

132. Notwithstanding all of those matters, the judge correctly formed the view that a term of imprisonment had, nevertheless, to be imposed. The length of that term did not fall outside the range available to him, in my view, and I also note, as did Eames, J.A., that the overall length of that term did not appear to be seriously challenged by the prosecutor in the court below. His Honour then decided that, in the particular circumstances of the case before him, the service of that sentence should be suspended. There is nothing in the material before this Court which could reasonably be perceived as raising the possibility that his Honour, an extremely experienced judge, failed to have regard to or misapplied any relevant sentencing principle or circumstance in adopting this course, or that he approached his task with other than great care. I am not persuaded that he fell into error in arriving at, what would ordinarily be regarded as, an unduly lenient sentence in what was clearly an exceptional situation in a number of respects.

136. Accordingly, the order of the Court is that the appeal is dismissed.

The respondent is granted a certificate under s.15(1) of the Appeal Costs Act 1998.

[1] As explained earlier, however, the respondent was unable to remember the digital penetration.

[2] There may be some doubt whether this is true of the digital penetration, but I find it unnecessary to explore the question.

[3] The alternative to total suspension actually sought was imprisonment with a significantly reduced minimum term: see T7 (where "longer" is clearly a slip for "shorter") and T25.

[4] She had undoubtedly already told him to stop the cunnilingus, but whether he had understood may be doubtful.

[5] Sentencing Act, s.27(2)(a).

[6] Sentencing Act, s.27(1). Compare sub-s.(3).

[7] [1998] 4 V.R. 540 at 547-8.

[8] For example, Director of Public Prosecutions (Cth) v. Wright (1994) 74 A.Crim.R. 152 at 160; Director of Public Prosecutions (Cth) v. Reynolds [1999] VSCA 224 at para.[24]; and Director of Public Prosecutions (Cth) v. Milne [2001] VSCA 93 at para.[10].

[9] As that expression is explained in R. v. Mantini [1998] 3 V.R. 340 at 349.

[10] Presumably his Honour meant ordinarily responsible.

[11] The aggravated burglary satisfied the terms of sub-para.(xviii) of para.(a) of clause 1 of Schedule 1 to the Sentencing Act.

[12] This would, however, be of less significance if count 4 were used (as I consider it should have been) as the base count for cumulation as containing the most serious offence.

[13] R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522, para.2(e).

[14] [1999] VSCA 25 at para.[16].

[16] R. v. Latham [1999] VSCA 132 at para.[15]; R. v. Mason [2001] VSCA 62 at para.[7]; Director of Public Prosecutions v. Fellows [2002] VSCA 58 at para.[32]; R. v. Browne; Director of Public Prosecutions v. Browne [2002] VSCA 143 at para.[29]; and Director of Public Prosecutions v. Stewart [2003] VSCA 197 at para.[24], referring to the cases in para.[22]. In Fellows and Browne the Director's appeal against a wholly suspended sentence was allowed, whilst in Stewart it was dismissed in circumstances described by Winneke, A.C.J. in para.[33] as "exceptional". The cases of R. v. Sheriff (unreported, Court of Appeal, 19 March 1998) at p.12, Schubert, and R. v. Brown [2002] VSCA 207; (2002) 5 V.R. 463 at para.[57] rejected as heretical the contention - not, I hasten to add, advanced by Mr Priest - that digital rape was inherently less serious than penile rape, making it clear that in that regard each case depended on its own circumstances.

[19] R. v. Clarke at 522, paras.(a), (c) and (e).

[20] DPP v. Buhagiar and Heathcote [1998] 4 V.R.540, at 547, per Batt and Buchanan, JJ.A.

[21] R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520, at 522.

[22] See R. v. Buhagiar and Heathcote, at 547; R. v. Osenkowski (1982) 30 SASR 212, at 212-213, per King, C.J.

[23] See DPP v. Carter [1998] 1 V.R. 601, at 607-8, per Winneke, P.

[24] In all but one of the cases cited by Batt, J.A. in par.[20] and in fn.16 the sentencing judge, and the appeal court, had the benefit of a victim impact statement, to which reference was made by the appeals court. The one exception was R. v. Mason, but that was not a Director's appeal and, in any event, was a rape which was accompanied by a violent assault and other aggravating circumstances. In the present case no victim impact statement was provided to the sentencing judge and the sentencing judge and the judges on appeal were necessarily confined as to any inferences which might properly be drawn as to the consequences of the offences for the victim. [The present case may be compared and contrasted with DPP v. Brown [2004] VSCA 133, a case which was heard by the same Judges of Appeal on the day before the hearing of the present appeal. The Director's appeal was allowed in Brown, and my reasons for decision in that case should be read with those given by me in the present case. - G.M.E.]

[25] [1999] VSCA 25 at para.[16].