DPP v Elfata [2019] VSCA 63

1 The respondent was convicted by a jury of rape and stalking with intent to cause physical harm. He was acquitted of reckless conduct endangering serious injury and common law assault. The table below sets out the sentences imposed.

[Crimes Act 1958 s 38(1)]

[Crimes Act 1958 s 23]

[Crimes Act 1958 s 21A]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Forensic order pursuant to s 464ZF of the Crimes Act 1958

Ground One: The individual sentence imposed on Charge 1, the total effective sentence and the non-parole period are manifestly inadequate in all the circumstances.

Particulars: The sentences imposed:

1. failed to have sufficient regard to the maximum penalty prescribed for the offence;

b) failed to properly reflect the objective gravity of the offending;

1. failed to have sufficient regard to the impact of the offending on the victim;

1. failed to give sufficient weight to protection of the community, principles of general deterrence, specific deterrence, denunciation and the need for just punishment; and

e) gave excessive weight to factors in mitigation.

3 On 27 August 2015, the complainant and the respondent were together in the car park of their apartment complex when the respondent removed certain property from the complainant's car. The complainant and respondent had conducted a relationship over the two preceding years. The couple had argued that morning and the complainant drove from the car park. The respondent returned to the apartment but discovered that he had been locked out without any means of re-entry. He sent various aggressive and offensive text messages to the complainant. Later that day, the complainant moved out of the apartment.

4 The respondent contacted the complainant that evening and apologised. The complainant agreed to move back into the apartment on the understanding that they 'would not have sex until [she] was ready'. On 30 August 2015, the complainant found a Skype message which she interpreted as indicating that the respondent had been unfaithful to her. She became upset.

5 The respondent approached the complainant and began to kiss her. He led her to the bedroom and they lay together. The respondent touched the complainant's breasts and moved his hand to inside the complainant's tracksuit pants.[1] He placed his fingers inside her vagina. The complainant said on a number of occasions, 'I don't want this'. She said she felt frozen. The respondent told her to relax. She did not know what made him stop. (Charge 1 - Rape)

6 The respondent left the bedroom and went to the kitchen area, took a large knife and threw it to the floor. The respondent was acquitted of charges 2 and 3 (reckless conduct endangering serious injury and common law assault, respectively). The respondent left the apartment in an emotional state; he returned shortly after and sometime later, the complainant left the apartment. The respondent walked with her to her car. The complainant went to her parents' house.

7 Some two and a half weeks later on 15 September 2015, the complainant contacted the respondent by text message. The following exchange occurred:

Complainant: Can I ask you something, and do you promise you'll answer me honestly?

Respondent: Yes.

Complainant: On that Sunday, when you were fingering me, did you honestly believe I wanted you to do it?

Respondent: No.

Complainant: Do you regret it?

Respondent: All your signs were saying no, but stupid me, I kept forcing.

8 On 17 November 2015, the complainant sent a letter to the respondent asking him to cease all contact, as it was scaring her. During the intervening months, the respondent had contacted the complaint very often, giving her unwanted gifts and letters.

9 The respondent ignored the complainant's November request and continued to contact her by text message and telephone. He also continued to mail gifts to her parents' house. (Charge 4 - Stalking)

10 The complainant applied for an intervention order in January 2016.

11 At the time of offending, the respondent was 33 years old and the complainant was 21.

12 On 18 October 2016, the respondent was interviewed by police. He accepted that he had made the statements in the text message we have set out above. He denied placing his fingers in the applicant's vagina. He accepted that he had received a letter from the complainant in which she requested that all communications cease. He accepted that he continued to contact the complainant after receiving the letter. At trial, the respondent did not dispute that he placed his fingers in the complainant's vagina, but contended that either the complainant was consenting or he reasonably believed she was consenting.

13 The respondent's senior counsel provided written submissions, and supplemented them with oral submissions and exhibits, including reports from Patrick Newton (psychologist), Margaret Hodge (family violence counsellor) and Danny Talia (psychologist), as well as character references and a bundle of certificates of course completion gained by the respondent in custody during the days between the verdict and plea. The appellant tendered a victim impact statement and the respondent's prior criminal record.

14 In summary, counsel for the respondent outlined his client's background. He was born and raised in Jakarta. The respondent's parents are both alive and he has two younger siblings. He completed high school and a three year hotel management course at Trisakti University. At 19 years old, he moved to Nevada in the United States of America and undertook a chef's apprenticeship. After three years, he qualified and in 2005, at 24, he moved to Melbourne where he has lived since. He has worked in many well-regarded restaurants and hotels.

15 He is health conscious, does not drink alcohol and regularly engages in physical training. He became an Australian citizen in 2009 but remains in close contact with his Indonesian family, who were present at his trial. He has conducted a previous long-term relationship and was married in 2010. The relationship broke down when his then wife wished to return to Brazil. He commenced his relationship with the complainant in 2013. This lasted for about two years and concluded with the events for which he was tried.

16 He received psychological treatment after the breakdown of this relationship and he had been prescribed anti-depressant medication in the past. He has a history of substance abuse but has been completely abstinent since 2006.

17 In 2009, the respondent was placed on a good behaviour bond for throwing a rock at his then partner's car door. She was not in the car. The event was prompted by his belief that she was with another man. He paid $380 in restitution. He complied with the undertaking and the matter concluded in May 2011. He has no other prior offences.

(a) The offending behaviour was at the lower end of seriousness for both offences.

(b) The respondent has taken significant steps towards rehabilitation through counselling and psychological treatment.

(c) The respondent still suffers from depression and remains at risk of further episodes of depression.

(d) His psychological prognosis means any custodial sentence will be more onerous that it would be for other prisoners unaffected by psychological illness. General deterrence 'may be mitigated somewhat due to his mental functioning which is directly related to his service of imprisonment'.

(e) The conduct of the trial was efficient. This can only come from instructions.

(f) General and specific deterrence and denunciation are relevant sentencing principles to be applied, mitigated by the psychological evidence. The offending is related, and principles of concurrency and totality should be applied.

(g) In relation to the stalking offence, it is more likely that the jury proceeded on the basis that the respondent ought to have understood that his actions would be likely to harm or frighten the complainant, or make her apprehensive about her safety.

(h) The court ought not make the respondent subject to the Sex Offenders Registration program.[2]

19 In oral submissions, the respondent's senior counsel advised his Honour that the applicant has formed another relationship with a young woman and they had been living together up until the time of the plea. He submitted that it is clear that the respondent has suffered depressive episodes in the recent past, is in need of further treatment and is at risk of self-harm. Senior counsel pointed out that his client, since incarceration, had been placed in protective custody at Ravenhall Correctional Facility.

20 The respondent called character evidence from three witnesses, including his current partner and his sister. His counsel indicated, by consent from the bar table, the effect of evidence that other witnesses could have given. The effect of it was that the respondent is a generous and warm man with ambition for his future.

21 Senior counsel submitted that his Honour ought consider a combined term of imprisonment with a Community Correction Order ('CCO'). He correctly observed that this type of disposition was only open if the term of imprisonment imposed was not greater than one year. He submitted that there was ample scope for this type of disposition, given that the offences were both at the lower end of the range of seriousness.

22 The prosecutor at the plea submitted that it was evident from the respondent's history that when a relationship ended, the respondent seemed very reluctant to accept this fact. He submitted that imprisonment for a maximum of one year, as required for the imposition of a combination imprisonment and CCO sentence, was insufficient. He submitted that the offending involved serious offences, albeit at the 'lower end of seriousness', but serious offending nonetheless.

23 His Honour summarised the circumstances of offending. He noted that the respondent had been in a relationship with the complainant for two years before the offending conduct. He set out the circumstances of the rape offence:

You approached her and started to kiss her. You then led her to the bedroom where you laid on the bed with her. You touched her breasts. You placed your hand down her pants. She told you to stop. You proceeded to insert your fingers into her vagina. When you had your fingers inside her, she told you to stop and she told you, 'I don't want this.' You told her to relax. She was trying to move her hips away, she was scared, she felt like she could not get away from you. You stopped when she managed to get off the bed.[3]

24 His Honour then summarised the stalking offence in similar terms to paragraphs 8 and 9 of these reasons. He set out the respondent's background and his circumstances at the time. He correctly noted the maximum penalties and reviewed Mr Newton's report. His Honour stated that he accepted that the respondent:

(a) has a history of mood disorder;

(b) will experience mood disturbance at levels higher than prisoners without the respondent's pre-existing problems;

(c) has been isolated within the prison;

(d) has a history of suicidal ideations with an attendant concern for self-harm while incarcerated;

(e) has a history of relationships characterised by conflicted dependence and attachment problems;

(f) continues to maintain his innocence; and

(g) has a moderate to low risk of recidivism.

25 His Honour reviewed counsel for the respondent's submissions. His Honour accepted the offence 'could properly be described as a breach of an agreement as to the limits of intimacy in the context of a long-standing relationship in which intimacy, including sexual intercourse, occurred throughout'.[4] His Honour concluded the fact that the respondent had been in a relatively long-term relationship 'in no way permitted him to engage in sexual activity against the complainant's will'.[5] His Honour noted, correctly, that the Court of Appeal in Shrestha[6] has recently stated that there needs to be an uplift in sentences for serious instances of digital rape. His Honour concluded that in this case, the actions of the respondent did not display the same degree of criminality as was the case in Shrestha. He assessed the respondent's moral culpability as high.

26 His Honour found that both the rape and the stalking fell into the lower end of seriousness for those offences. Insofar as the stalking is concerned, his Honour found that the respondent's motivation was the product of naivety and a deluded attempt to restore a broken relationship.

27 It seems that his Honour accepted the submission that the respondent had 'relatively good' prospects for rehabilitation but he was troubled by the respondent's apparent lack of remorse and the emotional injuries inflicted on the complainant referred to in the victim impact statement.[7] His Honour declined to make an order under s 11 of the Sex Offenders Registration Act 2004. His Honour imposed a sentence of two years' imprisonment for rape, which was the base sentence, six months' imprisonment for stalking and declared that three months of this sentence be served cumulatively on the base sentence. A minimum term to be served before parole eligibility was set at one year.

28 The appellant contends that the individual sentence on charge 1, the total effective sentence and the non-parole period are manifestly inadequate in all of the circumstances. The appellant particularises this contention by resubmitting the sentences imposed:

(a) failed to have sufficient regard to the maximum penalty prescribed for the offence;

(b) failed to properly reflect the objective gravity of the offending;

(c) failed to have sufficient regard to the impact of the offending on the victim;

(d) failed to give sufficient weight to protection of the community, principles of general deterrence, specific deterrence, denunciation and the need for just punishment; and

(e) gave excessive weight to factors in mitigation.

29 The appellant submitted that rape is an inherently serious offence involving total disrespect towards another with the perpetrator exhibiting a sense of entitlement. It has an impact on the general community and that community expects condign punishment.

30 The appellant noted that the judge accepted that the offending was 'at the lower end of seriousness', that it was a single impulsive act that did not appear to be premeditated and did not involve excessive violence.

31 The appellant accepted that these factual findings were open to his Honour; however, counsel for the appellant submitted that the seriousness of the offending was not diminished by the fact that the penetration was digital. The appellant cited Sheriff[8] and Brown[9] in support of this proposition.

32 The appellant further submitted that the sentence imposed on charge 1 was eight per cent of the available maximum sentence for rape, the sentence failed to reflect sufficiently the impact on the complainant of the offending, and the sentence imposed particularly failed to recognise sufficiently the important principle of general deterrence. The appellant noted that the respondent was not entitled to the discounting factors of remorse or for a guilty plea.

33 Senior counsel for the appellant reminded this Court that the respondent had run a contested committal and criminal trial, and had demonstrated no remorse in the process. In answer to a question from the Court, senior counsel accepted that had the respondent pleaded guilty and exhibited remorse, a combination CCO and gaol sentence would have been open to the sentencing judge, provided the imprisonment component was at the maximum level available for that type of sentence (12 months).

34 In oral submissions, senior counsel for the respondent relied on his written outline of submissions, which emphasised the matters raised at the plea hearing. He submitted that an agreement that there be no sexual penetration was reached between the couple, and after some protracted kissing and touching, the respondent breached that agreement over a relatively short period. Senior counsel contended that the sentence imposed was well open to his Honour; he accepted, however, that the impugned sentence was a lenient disposition.

35 Manifest inadequacy is not an easy ground to make out. In this type of appeal, the prosecutor assumes a burden of establishing that it was not reasonably open to the sentencing judge to come to the sentencing conclusion reached, assuming proper weight has been accorded to all of the relevant circumstances of the offending and the offender. The prosecutor must establish that the sentence imposed is 'wholly outside the range of the sentencing options available'.[10]

36 After anxious consideration, we have concluded that this appeal ought be dismissed. We consider that the concession made by the prosecutor[11] at the plea was appropriate. The objective gravity of the offending in this case is lower, in our view, than is often seen in this type of offence. The means of penetration is only one of the many factors that will determine the objective criminality of an offender guilty of rape. The circumstances which attended the offending in this case, in our view, are significantly different and objectively less grave than, for instance, was the case in Shrestha.

37 We agree with the sentencing judge's characterisation of this offending:

The incident was a single, impulsive act. It does not appear to have been premeditated. It did not involve excessive violence. The duration of the incident was relatively brief. The rape was digital penetration and did not involve penile penetration...[the respondent's] counsel submitted, and I accept, that the offence could properly be described as a breach of an agreement as to the limits of intimacy, in the context of a longstanding relationship in which intimacy occurred throughout.[12]

38 The respondent exhibited little, if any, remorse and ran a trial; those are not, of course, aggravating factors. They are, however, important mitigating factors, often present in this type of sentencing exercise and absent in this case. His Honour noted their absence and made appropriate findings as to the aggravating factor of the complainant's distress. In our view, the sentence imposed, while lenient, is within the range of sentencing options available for this offence.

[1] The complainant was unsure whether she was wearing pyjama pants or tracksuit pants; however, they were loose fitting 'comfy home pants'.

[2] Bowden v The Queen [2013] VSCA 382.

[3] DPP v Elfata [2018] VCC 1345 ('Reasons') [5].

[6] Shrestha v The Queen [2017] VSCA 364.

[8] R v Sheriff (Unreported, Supreme Court of Victoria, Tadgell, Callaway and Buchanan JJA, 19 March 1998).

[9] R v Brown [2002] VSCA 207; (2002) 5 VR 463.

[10] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662 [127].

[11] That this case was at the 'lower end of seriousness'.