DPP v Fellows [2002] VSCA 58

12. It is now necessary to set out in summary form the facts of this matter.

15. The victim was a married woman related to the respondent and about ten years younger than he. During the evening before the rape the respondent had consumed a considerable quantity of beer in the backyard of the victim's home. He entered her bedroom in the early hours of 20 May 2001. She was in bed wearing the clothes she had been wearing during the day, save for her bra which she removed - underwear and long pants, shirt and cotton cardigan. She was almost asleep.

18. The victim awoke and asked the respondent, who had entered the room, what he was doing. He was fully clothed. He moved close to her and said, "I want you, I've always wanted you, just say it because I want to be with you." The victim said to him, "Do you mind". He sat on the edge of the bed and leant across her forcing his chest against her shoulder.

21. He repeatedly endeavoured to kiss her and she protested. She was lying on her back and the respondent was lying across her. He said: "I want your pussy, I've always wanted your pussy" and grabbed her hand and asked her to hold his penis. She screamed out for him to get off her and tried to push him away. He ignored her plea and continued to kiss her. He took hold of her pants. He then removed her slacks and underpants and grabbed her hard on her vagina. He was lying partially on top of her and she could not push him away. He then penetrated her by inserting his finger into her anus. She asked him to stop because it hurt but he pushed his finger harder into her anus. She freed herself and ran outside in a semi-naked condition to her family and husband upset and crying hysterically. The respondent followed her from the house and became involved in an altercation with the victim's husband in which he was beaten.

24. The police were brought into the matter and the respondent essentially made a "no comment" record-of-interview. At subsequent proceedings in the Magistrates' Court the respondent reserved his plea but told the prosecuting authorities that he did not want to put the victim through a trial. After lengthy discussions with those authorities the respondent indicated, in November 2001, that he would plead guilty.

27. The respondent later maintained that he had drunk a considerable amount of beer and had taken Panadeine Forte. He asserted no recollection of the rape but accepted that the victim was blameless. The sentencing judge received a Victim Impact Statement made by the victim in December 2001. In it, she described tearing of the skin around her anal margin, blood loss and a terrific amount of pain. She said she could not go to the toilet without extreme pain and that she suffered from migraines for about two months from stress. She lost weight and, as at the date of writing, cried a lot. When she did talk about what happened to her she got the shakes. She said her home had become unbearable to her and she and her husband did not sleep in the room where the rape occurred. She said she became suicidal and went inside herself. She was so unhappy she didn't want to take her children to the kindergarten, she got depressed very easily and found it hard to express what she felt. She was lost in herself and did not enjoy her children as she used to. She was apprehensive about being alone and distrusted men. She did not see her family - possibly those other than her husband and children - any more. She and her husband rarely made love and when they did she experienced awful flashbacks and repulsion. She found going to sleep difficult and could still see the face of the respondent.

30. I have intentionally gone into the detail of this Victim Impact Statement by reason of the views expressed by his Honour about it.

"I have before me a victim impact statement which eloquently describes the feelings that your victim has about the matter and what has happened to her since. The stress and difficulties in her everyday life, which are described within that document, are the very reasons why the charge of rape almost inevitably attracts a custodial sentence of substantial proportion. I note within that impact statement that she says that she does not see her family any more. I do not know the basis behind all that, but I simply make very clear that in this circumstance there is only one person at fault and that, Mr Fellows, is you."

34. It is apparent, in my view, that apart from the matter of what was behind her "not seeing her family any more", his Honour totally accepted the content of this statement.

40. It became apparent in argument that there was but one issue raised in this appeal. That issue was whether or not the total suspension of the respondent's prison term resulted in a sentence which was manifestly inadequate. The Director of Public Prosecutions made it clear that at this stage of the proceedings he was not minded to attack the three year sentence.

43. Mr Coghlan, the appellant, submitted that rape is an offence which is regarded by the courts as a grave insult to the victim. This crime, he contended, will result in a non-custodial sentence on the offender in extremely rare circumstances. The circumstances of the respondent's rape, he submitted, were serious. Matters personal to him did not constitute such circumstances.

46. Turning to his Honour's reasons for judgment, Mr Coghlan submitted that his Honour appeared to focus on the respondent's personal circumstances and as a consequence failed to give adequate weight to the need for just punishment; the breach by the respondent of the fundamental right of the victim not to engage in sexual activity; the indignity, humiliation and fear suffered by the victim at the time of and subsequent to the rape and the physical and psychological damage incurred by the victim - particularly to her relationship with her family.

49. Mr Coghlan, citing DPP v. Burgess[1] and other well known authorities, submitted that the general rule is that intoxication is not a mitigating factor for an offender who is prone to lose control and become violent under the influence of alcohol. In this case, the respondent had previously engaged in criminal activity following the consumption of alcohol, viz: his conduct giving rise to his conviction for culpable driving in 1986. Counsel also suggested that some aspects of the evidence were inconsistent with alleged spontaneity of conduct by the respondent and that his asserted lack of memory at least warrants careful scrutiny.

52. I now turn to the submissions of Mr Tehan for the respondent. It is appropriate, because of its nature, to resolve an early point he made. As I have previously indicated, the real question thrown up by the appeal is whether it was open to the judge to suspend the whole of the sentence. When the transcript of the plea is read, counsel contended, it becomes apparent that the Crown Prosecutor conceded that it was so open, providing his Honour found exceptional circumstances - and these he did find. It was said this concession was made against a background of consultation with a senior permanent prosecutor.

55. I am unpersuaded that the Crown Prosecutor's position on the plea was a concession so simply stated. The transcript records the following exchange with the learned judge:

Crown Prosecutor: "It is a matter for Your Honour whether it's desirable to suspend the sentence in the circumstances and that's something which, probably, the Crown should not interfere with." His Honour: "Well, you argue that I shouldn't, obviously?" Crown Prosecutor: "Yes, yes."

The Crown Prosecutor had earlier stated to the judge, "...what we are stuck with literally, Your Honour, is to the actual seriousness of this offence". In his reasons for sentence the learned judge, referring to total suspension said, "The Crown concede that I can do so, but in all the circumstances should not do so."

60. Mr Tehan proceeded to remind the Court that the sole claim of the appellant Director is that the sentence on the respondent is manifestly inadequate. Each of the particulars pleaded, he said, were merely argumentative of that claim. He said there was no error of law or principle involved in the appeal. (I here interpolate that I disagree. If a sentence is manifestly inadequate there is error of principle. R. v. Clarke[2].)

63. Mr Tehan submitted that, in any event, the learned judge said he took into account each of the matters referred to in the particulars. Citing DPP v. Buhagiar and Heathcote[3], he contended that it is difficult to make good a Director's appeal on the ground of alleged insufficiency of weight being given to particular matters.

66. Counsel went on to list a number of matters which, he said, compelled the conclusion that an entirely suspended sentence was proper. These included the following. The offence, which occurred in a room with the door open and family members nearby, was not premeditated; it was of relatively short duration; the respondent had consumed much alcohol and had also taken Panadeine Forte as a result of injury; the combination of alcohol and medication was such as to produce loss of judgment; the respondent accepted the offence was his fault; the actual commission of the offence was short lived and the respondent immediately received summary punishment; the respondent, who had no convictions for sexual crimes had little recollection of the offence; the respondent was of good character - a 34 year old in a secure marriage with three young children; the respondent had pleaded guilty and exhibited a considerable level of remorse, as to which there was "powerful" evidence from both experts and lay-people; the respondent was hard working with an excellent record and was a good provider for his family; since the offence the respondent had given up alcohol and undertaken a substantial rehabilitation programme; the judge thought the respondent unlikely to re-offend and was worth "a chance".

69. Counsel also submitted that the imposition of a custodial element in the sentence would cause considerable hardship to the respondent's family and that, within a small community, he had already suffered significant disapproval and consequent shame.

72. Mr Tehan then took the Court to the transcript of the plea, pointing out that the learned judge had given some indications, variously, that the respondent's conduct was an aberration which would not have occurred but for intoxication, that it involved no planning and was not typical of the respondent; that in this case, matters of community protection were not as dominant as they might be in others and the respondent was entitled to call in very much his previous good character. None of these findings, counsel said, had been attacked by the Director.

75. Continuing this process, counsel submitted that in considering the question of total suspension the judge had had regard to the seriousness of the offence; had resort to his "instinctive synthesis" and correctly formed the view that a component of actual custody would serve no useful purpose in this case. Further, Mr Tehan said, his Honour was well aware that a suspended sentence should not be treated as a "soft option" and had exercised his discretion in a way which would most benefit the community. (In other words, he did not solely or excessively have regard to the respondent's personal circumstances.)

78. Mr Tehan submitted that his Honour's approach was consistent with R. v. Dinsdale[4] and he was alert to look at matters beyond the respondent's rehabilitation and including the seriousness of the offence and deterrence. He also understood, counsel asserted, the need to find exceptional circumstances if total suspension was to occur.

81. Counsel also argued that the judge correctly formed the view that he should exercise his discretion in a way which would most benefit the community. This approach was consistent with R. v. Davey[5] cited with approval by Batt and Buchanan, JJ.A. in Buhagiar and Heathcote supra.

84. Counsel further contended that some of the appellant's submissions were misconceived. The sentencing remarks showed that in considering the matter of suspension, his Honour plainly applied the test set out in s.21(1) of the Sentencing Act, viz satisfaction that "it is desirable to do so in the circumstances". In the matter of the seriousness of the offence, upon which the appellant laid store, a suspended sentence - upon the scale of sentencing options - is the highest sentence which might be imposed short of actual imprisonment, which should be imposed if all other sentencing options are not appropriate. The Sentencing Act made it clear that a court should not impose a more severe penalty than warranted to achieve the purpose for which the sentence is formulated.

87. Mr Tehan argued that the learned judge had correctly dealt with the issue of the respondent's intoxication. His condition at the time of the offence was affected by both alcohol and medication and the prescribing doctor, according to the evidence, was not able to say that he had given the respondent a warning about the effects of such a combination. His giving up alcohol completely properly impressed the judge who was entitled to conclude that the respondent was "fragile" in the matter of rehabilitation. In the matter of specific deterrence, counsel submitted that his Honour was entitled to conclude it warranted less weight than in other cases.

90. In his written outline of argument, Mr Tehan submitted that there was in fact no statutory basis for the view that "exceptional circumstances" are required before the imposition of a totally suspended sentence. He drew attention to the provisions of s.27 (3) of the Sentencing Act requiring a court not to impose a suspended sentence of imprisonment unless the sentence, if unsuspended, would be appropriate in all the circumstances. The tests of "desirability" (see s.27 (1)) and "appropriateness", so the argument went, do not bespeak the need to show exceptional circumstances. The test as to "appropriateness" is a very wide one and essentially a matter for discretion in all the circumstances. He drew to the Court's attention that a test of "exceptional circumstances" had recently been incorporated into the provisions of the Sentencing Act touching suspended sentences. (See s.31(5A).) This had occurred after a full review of that Act. This amendment, he said, was not related by the legislature to the questions of whether a suspended sentence of imprisonment should be imposed and the quantity of suspension if it is.

93. My account of Mr Tehan's submissions cannot, I am afraid, convey the zeal and spirited fashion in which they were delivered. The case for the respondent lacked for nothing in its presentation.

96. Other cases dealt with in argument included R. v. Soo, unreported, Court of Appeal, 30 October 1997; R. v. Latham[6] and R. v. Schubert[7]. Mr Tehan relied on these cases as establishing the proposition that "it may be that the appellate court would say it would not suspend the whole of the sentence, but that is not the test". Soo was a case where, by a majority and on a Director's appeal, this Court declined to interfere with a sentence of two years' imprisonment wholly suspended for a digital rape and the appeal was dismissed. Save for one matter, I do not find Soo of assistance in determining this case. In his dissenting judgment, Tadgell, J.A., made it clear that the consideration of whether a sentence should be totally suspended must include "an assessment of the quality of the respondent's behaviour to which the victim was subjected or a classification of the criminality of the conduct constituting the offences" (7). With that view, I respectfully agree. Indeed, in such consideration the necessity for an even-handed examination of the whole of the circumstances is manifest.

99. I have found the decision in Schubert, to which the sentencing judge was not referred, very instructive. That matter concerned an application for leave to appeal against a sentence of four years' imprisonment with a non-parole period of 18 months for a digital rape. The application was dismissed. Booking, J.A. (with whom Winneke, P. and Ormiston, J.A. agreed), stated:

"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."

"Notwithstanding the majority decision of this Court in Soo (which, after all, was a Director's appeal), there will be very few crimes of rape, digital or otherwise, which in my opinion will warrant a non-custodial sentence."

105. It is appropriate, I think, for those views to be affirmed.

108. I should add two things about Schubert. Mr Tehan sought to derive some assistance from it by the description by Brooking, J.A. of the four year sentence as "high". Secondly, Schubert has a marked similarity to the instant case in that the Victim Impact Statement in it revealed lengthy and severe emotional trauma in the victim as a result of a digital rape of relatively short duration.

111. It seems to be the case (as I think both counsel agreed) that in none of the relevant authorities are the words "in exceptional circumstances" used to describe the setting in which non-custodial sentences for rape should be imposed, but in my opinion, Schubert and Buhagiar stand for that proposition.

114. It is true, as Mr Tehan emphasised, that the learned judge in his reasons for sentence adverted to the maximum penalty for rape; described the offence as "serious"; dealt with the respondent's plea and his remorse; detailed the many personal matters favourable to him including his good character, work and family record and mentioned the matters of general and specific deterrence and the excellent prospects for the respondent's rehabilitation. But, at the end of all argument, in the resolution of an appeal such as this, one must, after identifying all the relevant circumstances, turn to the face of the sentence imposed and examine it in order to see if it is, as alleged, manifestly inadequate.

117. Performing that exercise I have come to conclude that, by reason of its component of entire suspension, it is manifestly inadequate and that, accordingly, his Honour's sentencing discretion has miscarried. I would uphold particulars (a) and (d). It is unnecessary to deal with the others. Put another way, error in these respects makes the sentence explicable. In my opinion, this rape was attended by a number of aggravating circumstances. The victim was in her own home - indeed in her own bed. She was entitled to feel herself safe from any unwelcome attentions by any man - let alone a member of her extended family. The attack was not without some persistence. It had very, very grave consequences. The mitigating circumstances, while substantial, were not, in my opinion, such as to justify total suspension when considered as part of all the circumstances.

120. 38 Accordingly, I would propose that the appeal of the Director of Public Prosecutions be allowed. Should the other members of the Court agree, I would propose that the sentence imposed on the respondent in the Court below be varied. In my opinion, the sentence of three years' imprisonment, while lenient, does not fall outside the range of sentences properly available to the learned judge. Indeed, the Director of Public Prosecutions has not contended otherwise. Accordingly, I would propose that that sentence be confirmed. I consider that some suspension of sentence is appropriate and, again, the Director has not contended otherwise. I have not overlooked the word "substantial" in the passage already cited from the judgment of Brooking, J.A. in Schubert. But, as to the amount of suspension, it is necessary to have regard to the doctrine of double jeopardy developed, in relation to appeals such as this, by the High Court. The consequence of that doctrine is succinctly stated by the Court of Criminal Appeal of New South Wales in R. v. Allpass [8]:

"When, in response to a Crown appeal, the Court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance."

Applying that doctrine and taking into account that the respondent has been at liberty since his sentencing in the County Court, I would further propose that two years of that sentence be suspended from and after the expiration of one year of the sentence which shall be reckoned from this date, 2 May 2002.

126. I agree substantially for the reasons given by the Chief Justice that this appeal should be allowed and the respondent re-sentenced as his Honour proposes. Having been a member of the Court which decided R. v. Soo[9], I should add that the circumstances of that case were quite different from those in this case. Each case

must depend upon its own facts and the decision in Soo, although also on a Director's appeal, cannot govern the result in this. Both Kenny, J.A. and I emphasised in Soo that the circumstances there as a whole were most exceptional.

131. I have read in draft form the judgment of Phillips, C.J. and for the reasons he gives I too would allow the appeal, confirm the sentence of three years' imprisonment and order that two years of that sentence be suspended for two years from and after the expiration of one year of the sentence which shall be reckoned from this date, 2 May 2002.

[2] [1996] VICSC 30; (1996) 2 V.R. 520

[4] [2000] HCA 54; (2000) 115 A. Crim. R. 558

[5] [1980] FCA 134; (1980) 2 A. Crim. R. 254 at 260/1

[6] [1999] VSCA 132

[7] [1999] VSCA 25

[8] (1994) 72 A. Crim. R. 561 at 562

[9] [1999] VSCA 132.