DPP v Macarthur [2019] VSCA 71

1 The respondent pleaded guilty, in the County Court, to eighteen charges of common assault, one charge of theft, one charge of rape, and two charges of attempted rape. He was sentenced to a total effective term of 7 years and 9 months' imprisonment with a non-parole period of 5 years. The Director has appealed that sentence to this Court on the single ground that the sentences imposed in respect of the charges of rape and attempted rape are manifestly inadequate.

2 The sentences imposed on the respondent by the County Court judge were structured as follows:

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

Theft [Crimes Act 1958 s 74(1)]

10 years' imprisonment [Crimes Act 1958 (Vic) s 74(1)]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

Rape [Crimes Act 1958 s 38(1)]

25 years' imprisonment [Crimes Act 1958 (Vic) s 38(2)]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

Attempted rape [Crimes Act 1958 (Vic) s 321M and s 38(1)]

20 years' imprisonment [Crimes Act 1958 (Vic) s 321P and s 38(2)]

Attempted rape [Crimes Act 1958 (Vic) s 321M and s 38(1)]

20 years' imprisonment [Crimes Act 1958 (Vic) s 321P and s 38(2)]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

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

11 years' imprisonment with a non-parole period of 8 years

• Sentenced as a Serious Sexual Offender in respect of charge 18.

• Reporting obligations under the Sex Offenders Registration Act 2004 for a period of 15 years.

3 As mentioned, the Director appealed to this Court in respect of the sentences imposed on charges 15, 17 and 18 on the following ground:

Ground 1 - The individual sentences imposed on charges 15, 17 and 18, the orders for cumulation as between those charges, the non-parole period and the total effective sentence are manifestly inadequate.

4 The offences, that were the subject of charges 1 to 14, were committed by the respondent between approximately 4.30 pm and 5.00 pm on 15 March 2017 in the central business district of Melbourne. During that time the respondent was observed to be behaving in a threatening and aggressive manner, and assaulting members of the public, by pushing, punching and kicking them. His conduct was reported to the police who arrested him at 5.20 pm.

5 The offences that were the subject of charges 1 to 14 were captured on CCTV footage obtained by police investigators. In short the footage depicts the movements and actions of the respondent during the period of those offences. At 4.32 pm he walked from LaTrobe Street in front of the Melbourne Central shopping complex on Swanston Street, pushing and jostling people. While doing so, he pushed an unknown male in the back causing him to lurch forward (charge 1). The respondent then approached a female who was standing with her back against the wall. He kicked her in the leg and then ran off in the direction of LaTrobe Street (charge 2). He then approached another female on the other side of the street and also kicked her in the leg (charge 3). The female ran away from him. The respondent then punched a male, who was then walking along Swanston Street, in the upper arm (charge 4). He then walked to the tram stop on Swanston Street where he pushed a male in the chest (charge 5).

6 The respondent then made his way from Swanston Street to Knox Lane. There he was depicted verbally abusing people around him. He kicked a woman from behind in the back of her leg (charge 6). He continued to walk down Knox Lane, using his backpack to assault other people walking in the laneway. In doing so, he struck a female over the head with the backpack (charge 7). He then elbowed a female in the jaw (charge 8), elbowed a second female in the shoulder (charge 9), and kicked a male in the leg from behind (charge 10).

7 The respondent then entered the Melbourne Central shopping complex, ascended a flight of stairs, and proceeded to the Pressed Juices store. There he removed a bottle of fruit juice without paying for it (charge 11). He departed, walking through the shopping centre to Little Lonsdale Street, and entering the adjacent section of the complex. He walked up to a food outlet where he spoke, in turn, to two females. While speaking to one of them, he lifted his shirt and rubbed his nipples, before putting his fingers in his mouth and licking them. He then touched another female on the arm with his fingers which he had just removed from his mouth (charge 12).

8 The respondent then departed from the food outlet, gesturing and pointing to the ceiling as he did so. Subsequently, at 4.48 pm, he was depicted approaching people on the footpath and moving towards them in such a way as to force them to deviate to avoid him. He approached a woman in Swanston Street who took fright and ran away from him. The respondent chased the woman to the tram that she caught, but did not board it himself. The respondent then, near the intersection of Bourke Street and Swanston Street, approached a couple who were walking together. He raised his fist in the air in front of the male. The female moved in order to avoid him, but as she walked past the respondent, he pushed her in the back (charge 13). The respondent then approached a woman in Bourke Street, blocked her path, and began to follow her. He desisted when another male intervened. He then stepped into the path of yet another woman walking on Bourke Street, and she avoided him. The respondent then spoke to another woman who was sitting alone on a bench and stood over her. He moved away when spoken to by a nearby male.

9 The respondent then walked to the intersection of Bourke and Exhibition Street, where he kicked a male from behind in the back of the leg in Exhibition Street (charge 14). He then was observed to approach another female and block her path. The female turned and fled.

10 The respondent then made his way to Little Bourke Street where he stood in the path of more females. He lay on the ground, where he pulled out money and began playing with it. At that point he was arrested by police. He was obviously intoxicated, and was arrested for being drunk in a public place.

11 The respondent was conveyed to the Melbourne West Police Station where he was lodged in a cell until he was sober. He was bailed on a warrant on his own undertaking and released from police custody at 9.37 pm.

12 Charges 15 to 22 concerned offences committed by the respondent in the early morning of 16 March, subsequent to his release from Melbourne West Police Station. The victim of the offence was a young woman from Adelaide who had visited Melbourne for the Melbourne Fashion Week. During the preceding evening she had been socialising with friends in the CBD, but they had parted ways.

13 At approximately 4.49 am on 16 March, the respondent encountered the victim at a tram stop in Bourke Street. She was then making her way home to Carlton where she was residing during her stay in Melbourne. The respondent commenced to speak to the victim. He told her that she looked pretty and he invited her back to his place to drink alcohol. The victim responded that she had to go home for the night. The respondent then began to pull the victim by the arm, forcing her to come with him. She started to tell him that she needed to go home, and he said 'you're not going to leave me now are you?'

14 At about 5.00 am, a witness, who was at the intersection of Collins Street and Swanston Street, saw the respondent with the victim. The witness said that the respondent was 'all over' the victim, groping her and putting his hands over her body. He assumed that they were a couple, but he was uneasy about what he saw. He then observed the pair walk to a tram stop on Collins Street. After he had walked past them, he saw the respondent grab the victim on the buttocks.

15 During that time, the respondent and the victim had spent some time walking in the city together. At 5.20 am, the victim boarded a tram in Collins Street. The respondent followed her onto the tram. He continued to grab at the victim, and tried to pull her towards him to kiss her. The victim was frightened, and she thought that it was better to placate the respondent, so at one point she returned his kiss. She made eye contact with two male passengers and mouthed the word 'help', but they did not respond.

16 When the tram stopped opposite St Vincent's Hospital, Fitzroy, the victim took the matter into her own hands in order to escape from the respondent. She alighted from the tram and made her way to the entrance to the hospital, hoping to find safety there. When she made her way to the glass doors in the entrance alcove the respondent followed her. He told her he would not let her go into the hospital. The victim said that she was there to visit a friend. The respondent then became angry, and said 'we are going to fuck tonight'.

17 What followed was largely captured on CCTV footage, and constituted the offences that are the subject of charges 15 to 22. The respondent grabbed the victim around the shoulders and neck with his arm, and forcibly dragged her away from the hospital doors. He threw her onto the ground outside. In doing so, he also fell over. She got up off the ground and walked back to the glass entrance doors to the hospital. The victim located a bell on the side of the doorway and pressed it, hoping to gain access, but without success.

18 The respondent followed the victim to the door. He grabbed her face with his hand and kissed her on the lips. He began grinding his pelvis area into her in a sexual manner. While doing so, the respondent licked the fingers on his right hand, pulled up the victim's dress, and penetrated her vagina with his fingers (charge 15 - rape). At that stage, he had the victim trapped in the corner by the entry doors, and he continued to fondle and kiss her. He then put the victim in a headlock and dragged her around by the neck to the opposite side of the alcove. There he forced the victim onto her back, on the hand railing (charge 16 - common assault). The respondent again pulled up the victim's dress, tore off her underwear, and forced her to lean back over the hand railing. While she was in that position, he attempted to insert his fingers into her vagina (charge 17 - attempted rape).

19 As he was unable to penetrate the victim's vagina in that position, the respondent forcefully turned her around, and forced her to bend over the hand railing, but this time on her stomach, with her back towards him. He again attempted to penetrate her vagina with his fingers, this time from behind (charge 18 - attempted rape).

20 At that point, the respondent again put the victim in a headlock, and proceeded to drag her around, attempting to pull her away from the doors (charge 19 - common assault).

21 At least a part of that episode was witnessed by two members of hospital security, who, for no apparent reason, did nothing to intervene to assist the victim. The respondent then dragged the victim out of the entrance alcove and onto the street where she fell to the ground. There she was observed by a female hospital cleaner who was walking to work. She saw the respondent hold the victim by her hair. While the victim was on the ground, the respondent began to kick her in the legs (charge 20 - common assault).

22 At that point, the victim managed to break away from the respondent and ran to the hospital doors. At that stage, she was let into the premises. Hospital security staff tried to speak to her, but she was unresponsive and appeared to be in shock. The respondent followed her into the hospital and approached the victim, asking her to leave with him. She asked him to leave.

23 After some time, the respondent went to leave the hospital. However, the doors would not open. The security guard approached the respondent to assist him, but the respondent became aggressive and attempted to kick him (charge 21 - common assault). The respondent then again approached the victim. He handed her his telephone which she promptly returned to him. She began walking away from him, but he grabbed her by the arm and spun her around (charge 22 - common assault). The victim broke away from the respondent and walked across the foyer.

24 The respondent finally left the hospital after kicking and punching the glass doors. He made his way down Victoria Parade towards the Australian Catholic University. He was arrested by police at about 6.45 pm on the same day, 16 March, in Elizabeth Street.

25 When interviewed, the respondent told the police that he had met the victim in the city when she was a bit intoxicated. He made admissions to the attempted rapes and the other offences. He said to the police that he knew that he was being overly aggressive, but he believed that he had 'scored' with the victim, so he just 'went for it'. The respondent initially denied digitally penetrating the victim's vagina. However, when the police told him that that was what she alleged, he said that it was probably right, that she would not be lying.

26 The respondent has remained in custody since his arrest. He offered to plead guilty to the charges on the indictment on 25 July 2017. The prosecution accepted that that plea offer had been made at the earliest opportunity.

27 The victim completed a victim impact statement. In it she described the feelings of shame, guilt and anger that she experienced arising out of the offences that had been committed against her. She stated that she felt anger and disappointment towards the rest of the world, but most particularly to men. She said:

With my feelings of anger and guilt contradicting one another so strongly, I'm nothing more than a ball of constant frustration.

28 The respondent was born on 16 February 1968, and was 49 years of age at the time of the offending. He had come before the Melbourne Magistrates' Court on three previous occasions between January 2003 and May 2015, on charges that included theft, unlawful assault, criminal damage and being drunk in a public place. On the first two occasions the charges were adjourned without conviction. On the third occasion (in May 2015), when he was charged with a number of offences of criminal damage, theft, failed to answer bail and being drunk and disorderly in a public place, he was fined with conviction.

29 The respondent was born and raised in Auckland, New Zealand. He came from a difficult background. His mother had alcohol and mental health problems, and his father was a strict disciplinarian. The respondent's parents separated when he was 8 or 9 years of age. Subsequently, he spent different periods of time in the care of both parents. When he was approximately 12 years of age he was placed for a few weeks in a boys' home.

30 The respondent left school before completing Form 3 at the age of 14 years. He worked in a number of short term positions. He completed a course at one stage in labouring and horticulture, and he had some employment in a series of low skilled jobs. However, he did not hold any employment for a period longer than one year.

31 The respondent moved to Australia on his own in 1991. He lost any substantial contact with his family during the 1990s. At the time of the offending, he had been unemployed for approximately twenty years in receipt of the Newstart allowance.

32 In the course of the plea, the judge requested a report to clarify whether the respondent suffered from a diagnosable psychological condition. As a consequence, Dr Simon Vincenzi, a clinical and forensic psychologist, employed by Forensicare, interviewed the respondent in custody and provided a report in relation to him.

33 In summary, Dr Vincenzi noted that the respondent had been raised in a high conflict environment. His parents were erratically present and would frequently argue and abuse alcohol. When his parents separated, the respondent's 'oppositional behaviour' increased and he became involved in minor incidents of anti-social conduct. During that time, the respondent was sexually abused as he was entering puberty. Dr Vincenzi noted that scientific literature indicates that boys, who were abused during that period of their life, are at greater risk of engaging in future sexual offending than children of either gender who have not suffered such abuse.

34 Dr Vincenzi concluded that the respondent met the criteria for a diagnosis of a major depressive disorder, that was mild, and in partial remission, and also for a diagnosis of alcohol use disorder, that was in sustained remission while he was in custody. Dr Vincenzi considered that, at the time of the offending, the respondent's depression had led to feelings of fear about his future and safety, and anger, directed towards the world generally and people he encountered indiscriminately. On 15 March 2017, he expressed that anger through aggressive acts, while he was experiencing reduced behavioural inhibition while under the influence of alcohol. Dr Vincenzi noted that the respondent denied that the rape of the victim was an act of aggression, stating to Dr Vincenzi that he did not feel angry at the time. Accordingly, Dr Vincenzi concluded that the offence appeared to have been 'motivated by desire'.

35 Dr Vincenzi concluded that the respondent's depression had responded well to the structured environment of prison. He considered that the respondent fell into the moderate risk category for future sexual offending, and recommended that while he was in custody, he engage in an offence specific treatment program.

36 A pre-sentence clinical assessment report was also completed by Dr Alana Harridge, a senior clinician at the Specialised Offender Assessment Treatment Services, Corrections Victoria. She assessed the respondent as being of a moderate to high risk of perpetrating sexual violence in the future. Dr Harridge noted that the respondent presented with some understanding of the factors that had contributed to his offending, but that he did not demonstrate insight into the cognitions and emotions associated with his decision to sexually offend.

37 Ms Anne Haynes, a research assistant with Turning Point Eastern Health, gave evidence on the plea. Ms Haynes had known the respondent for about twenty years in a social rather than professional capacity. She expressed the view that the respondent was 'quite a tender soul', and that she had never known him to be aggressive or to show any hostility to women. Dr Haynes visited the respondent while he was in custody. She said that he was having trouble believing how he had behaved. She said that he had expressed the 'profoundest shame and distress and concern for the victim'.

38 At the time of sentence, the respondent did not have permanent residence status in Australia. As a consequence of being sentenced to a term of imprisonment of at least one year, his visa would be subject to mandatory cancellation, so that unless the Minister was persuaded to revoke that cancellation, he would be deported at the conclusion of his sentence.

39 In her reasons for sentence,[1] the judge characterised the respondent's offending, on 15 March, as being serious, involving multiple innocent victims whom he assaulted in a public place. Her Honour also considered that the offences of rape and attempted rapes were very serious, in that they concerned attacks on a stranger in a public place in circumstances which would have been terrifying for the victim.[2] The judge rejected the submission made on behalf of the respondent that he mistakenly believed that his advances were being tolerated by the victim. The judge stated that the respondent's conduct, after leaving the tram, and following the victim, was 'brazen, predatory and unwanted'.[3]

40 The judge was satisfied that the moral culpability associated with the offending, involving the victim of the rape and attempted rapes, was high. The respondent had been persistent in his pursuit of the victim, he was aggressive in his actions, and he had persisted in exploiting her for his own sexual gratification, without concern for her.[4]

41 In those circumstances, the judge considered that there was a real need to emphasise general and specific deterrence, and to provide for the protection of the community. In addition, her Honour considered that significant weight should be given to denouncing the respondent's behaviour, so as to send a message to the community that such offending would not be tolerated by the Courts.

42 In mitigation, the judge accepted that the respondent's plea of guilty was entered at an early stage and had real utility. Her Honour also accepted that the respondent had demonstrated genuine remorse, which was reflected in his admissions and a letter of apology that he had provided for the victim. Additionally, the judge took into account that the respondent had come from a difficult family background, and that the respondent had been sexually abused as a young child by an older male who lived nearby. In that regard, the judge referred to the opinion expressed by Dr Vincenzi as to the effect of sexual abuse on boys at the time that they are entering puberty.

43 The judge also noted that the respondent had been in receipt of treatment for a heroin addiction in the past, and that he had been prescribed medication to manage that addiction by his general practitioner. The judge took into account that as a result of the prospect that the respondent might be deported at the end of his sentence, he would experience additional anxiety whilst undergoing sentence.

44 The judge noted that while the respondent had some mental health issues in the past, they were not relied on by counsel to mitigate sentence in any of the respects discussed by this Court in R v Verdins.[5] On the other hand, the judge, having regard to the decision of the High Court in Bugmy v The Queen,[6] considered that the effect of the respondent's significantly deprived upbringing should be given full weight in formulating the sentence.

45 In conclusion, the judge considered that the charges of rape and attempted rape were 'very serious examples' of those charges, and the fact that the offending occurred while the respondent was on bail for the earlier offending (from the previous day) was another aggravating feature.[7] Her Honour noted that it was accepted that on conviction and sentence with regard to charges 15 and 17, the provisions under s 6B(2)(a) of the Sentencing Act 1991 applied, so that the respondent fell to be sentenced as a serious sexual offender with regard to charge 18 (attempted rape). In sentencing the respondent, the judge noted that, in the recent decision in Shrestha v The Queen,[8] this Court has acknowledged that current sentencing practices for digital rape indicated that sentencing for that species of offence were substantially below what is necessary to reflect the objective gravity of the offence and the moral culpability of the offender.

46 In support of the appeal, the Director commenced by submitting that the offending contained a number of aggravating features, including the following: the offending was predatory and persistent; it was protracted and involved a completed offence and two attempted offences; the victim was vulnerable, and the offending took place despite her protests and resistance. The respondent was on bail at the time of the offending; the offending degraded and humiliated the victim, and as a consequence of it she suffered both physical and mental injury.

47 Accordingly, it was submitted that the objective gravity of the offending and the respondent's moral culpability were high. In particular, counsel noted that the victim was vulnerable, being a visitor to the city of Melbourne, alone and disoriented in the early hours of the morning. Her attempts to initially placate the respondent and later to resist him were futile. The respondent overcame her by using force and violence, putting her in a headlock on multiple occasions, and, in respect of the offence the subject of charge 20, kicking her when she fell to the ground.

48 Counsel further submitted that the judge correctly rejected the submission made on behalf of the respondent on the plea that the offending was impulsive, involving the respondent initially misinterpreting the victim's attitudes to his advances. It was contended that the judge was correct to reject that submission and to find that his behaviour was 'brazen, predatory and unwanted'.

49 In those circumstances it was submitted that the sentences imposed on charges 15, 17 and 18, and the orders for cumulation, did not demonstrate that sufficient weight was given to the objective gravity of the offending. In particular, it was submitted that the sentence was manifestly inadequate, in light of the maximum sentences prescribed for those offences, and the significance of general deterrence and protection of the community as a sentencing factor in offending of this nature. Further, it was noted, the respondent's motivation for the offending was desire, and there is no evidence of any psychiatric illness or disorder which would be the basis of a mitigating circumstance of the kind discussed in R v Verdins. Rather, the offences were committed in the context of alcohol abuse when the respondent was disinhibited.

50 Finally, it was submitted that it was apparent from the sentences imposed that the judge gave excessive weight to sentencing practices before the decisions of DPP v Dalgliesh,[9] and the decision of this Court in Shrestha v The Queen,[10] in which the Court stated that the 'general run of sentences' for digital rape is well below what is necessary to reflect the objective gravity of that offence and the moral culpability of the offender.[11]

51 In response, counsel for the respondent took issue with the submission made by the appellant that the gravity of the offending was elevated by what was said to be its predatory, persistent and protracted features. Notwithstanding the findings by the judge, that the offending was brazen and predatory, it was contended that the respondent's conduct should not be assessed on the basis that he knew that the victim did not want him to follow her to the front of St Vincent's Hospital. In light of the respondent's answers in his interview with the police, and taking into account the victim's overtly friendly and affectionate conduct towards him before the offending, it was submitted that the Court should conclude that the respondent, when he approached the victim at St Vincent's Hospital doors, was oblivious to the fact that by that stage she was concerned about him.

52 Counsel further submitted that notwithstanding the more serious features of the offending - including that it was persistent and protracted over a period of some minutes - there were important mitigating factors that the judge was required to take into account. In particular, the plea of guilty was made early, and the judge accepted that it was accompanied by genuine remorse. The respondent had written a letter of apology to the victim. In addition, the respondent had a disadvantaged background, and he had been the victim of sexual abuse while a child. Further, there was uncertainty about his immigration status which, the judge found, would bear more heavily on him while he was in prison. It was submitted that the individual sentences imposed on charges 15, 17 and 18, and the orders for cumulation, were not manifestly inadequate. In particular, it was noted that the base sentence (imposed on charge 15) of five years, was equivalent to the median sentence for cases in which rape was a principal offence for the period from 2011 to 2016. It was contended that the sentences of four years and six months' imprisonment imposed on charges 17 and 18 should be treated as being of appropriate proportionate severity to that imposed on charge 15.

53 Counsel further submitted that the total effective sentence for all of the offences committed against the victim, that were the subject of charges 15 to 20, of seven years and three months' imprisonment, was substantially greater than the six year median total effective sentence for cases in which rape was the principal offence. Counsel submitted that, notwithstanding the observations of this Court in Shrestha, and the decision of the High Court in Dalgliesh, nevertheless s 5(2)(b) of the Sentencing Act 1991 requires that the Court take into account current sentencing practices.

54 Counsel for the respondent contended that notwithstanding that the respondent was to be sentenced as a serious sexual offender in respect of charge 18, the orders for cumulation made, in respect of that charge, were not manifestly inadequate. In particular, he noted that the offending, that constituted charge 18, was not as serious as the offending in charge 17, and that it occurred within a period of 15 seconds of the acts which constituted charge 17.

55 Counsel further contended that even if the Court were to conclude that the sentences imposed on the respondent were manifestly inadequate, it should apply the residual discretion, and not increase the sentences, on the basis that the appeal by the Director did not raise a matter of principle. It was submitted that as the case involved the offence of digital rape of at least mid-level seriousness, it fell 'squarely' within the category considered by the Court in Shrestha, so that the decision in this case would not involve any point of principle.

Manifest inadequacy - applicable principles

56 The principles, which apply to the ground of appeal relied on by the Director in this case, are well established and they are not controversial. They need to be borne carefully in mind in an appeal by the Director where, as in this case, the offending was so blatant, confronting and reprehensible.

57 It is trite, but fundamental, that in each case the imposition of a sentence is the product of a discretion exercised judicially in accordance with established sentencing principles. The determination of the appropriate sentence, in each case, involves assessment of the gravity of the offending, the offender's moral culpability, the harm to the victim, and relevant factors relating to the offender, such as age, health, background, antecedents and character. Those factors are significant in the sentencing judge's assessment of the relative importance of the sentencing purposes of general deterrence, specific deterrence, denunciation and rehabilitation. All of those considerations are factored into the judge's discretionary judgment, which ultimately is formed by a process of instinctive synthesis. It follows that, in any case, there can be no 'correct' sentence; reasonable minds can, and regularly do, differ as to what the appropriate sentence might be.

58 Accordingly, in a case in which an offender seeks leave to appeal against a sentence, it is necessary to demonstrate either specific error in the exercise of the judicial discretion or, in the absence of such error, to establish that the sentence imposed on the offender was manifestly excessive. Where the offender seeks to rely on manifest excess, it must be demonstrated that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[12] In other words, the sentence, that was the subject of the appeal, must be demonstrated to be so excessive as to bespeak error by the judge in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence given by the judge.[13]

59 The same principle applies, with at least equal force, to an appeal by the Director based on the ground that the sentence imposed below was manifestly inadequate. In order to succeed on that ground, the Director must persuade this Court that the sentences, under consideration, were wholly outside the range of sentences reasonably open to the sentencing judge in the circumstances of the particular case. That test, by its nature, is a stringent one, which is difficult to make out. In an appeal such as this, it is insufficient if this Court were to conclude that it would have, in the circumstances, imposed a higher sentence, in respect of charges 15, 17 and 18, than those imposed by the sentencing judge. Rather, it must be demonstrated that those sentences were wholly outside the range of sentences available, taking into account the facts of the case, and applying appropriate sentencing principles to them, while bearing in mind that, as in any sentencing case, reasonable minds might differ, quite substantially, as to what is the appropriate sentence.

60 Those principles, to which we have referred, were authoritatively stated by this Court almost one decade ago in DPP v Karazisis[14] and bear repeating. There the Court stated:

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[15]

61 In considering the competing submissions made, in respect of the ground of appeal relied on, it is first necessary to address the submission made by counsel for the respondent that the Court should, in effect, not accept the finding made by the sentencing judge that the respondent's conduct was 'predatory'.

62 In considering that submission, it is important to keep in mind that, in the relevant passage of her sentencing reasons, the conduct, that was described by the judge as predatory, consisted of the respondent's actions after he had left the tram and followed the victim to the doors of the hospital.[16] Notwithstanding the submissions made by the respondent, it is clear that the judge was plainly correct to describe the respondent's conduct, from the time that he left the tram, until the completion of the offences, to be 'brazen, predatory and unwanted'. It is clear from the CCTV footage that the victim left the tram before the respondent, and walked to the doors of the hospital. As she did so, the respondent jogged behind her. In his interview, the respondent said that while he was on the tram, and when they departed from it, he wanted and intended to have sex with the victim. It is plain that he followed the victim to the doors of the hospital for that purpose. As we have stated, when the victim reached the doors of the hospital, the respondent told her that he would not let her go into the hospital. When the victim responded that she wanted to visit a friend there, the respondent became angry and said that they were going to 'fuck tonight'. It was at that point that the respondent took hold of the victim and forced her to the ground. The offending, which we have earlier described, followed upon that incident. In those circumstances, the judge was plainly well justified in describing the conduct of the respondent, after he left the tram, and in following the victim, as 'predatory'.

63 The offences of rape, and attempted rape, are, by their very nature, serious criminal offences, as reflected by the prescribed maximum sentences of imprisonment of 25 years and 20 years respectively for each of those offences.

64 In this case, the offending by the respondent had a number of features which reflected on the objective gravity of the offending, and the respondent's moral culpability for it. As noted, the respondent's conduct was, in the immediate lead up to the incident, predatory. When the victim made it plain, at the doors of the hospital, that she did not wish to have sexual relations with him, the respondent acted violently and brazenly. Having forced the victim to the ground, he again followed her to the doors of the hospital where she was trying to gain entry. At that point, whatever his desires, it was plain to him that the victim no longer wished to associate with him, let alone have sexual relations with him. Notwithstanding her opposition, the respondent took hold of the victim, and used significant force, particularly in committing the first two sexual offences, that of rape (charge 15) and the first attempted rape (charge 17). The substantial degree of force, and the degrading manner in which the respondent acted towards the victim, in committing the attempted rape that was the subject of charge 17, added markedly to the gravity of the offending.

65 The fact that the respondent had known the victim for little more than half an hour, yet considered that he was entitled to act in the manner in which he did to her, added to the seriousness of the offending. It must have been plain to him, or, had he bothered to reflect about it, it would have been, that the ordeal to which he subjected the victim was terrifying and degrading. The victim's embarrassment was compounded by the fact that the offending took place in public, and, at least the latter aspects of it occurred in the full view of other people who were nearby.

66 Taking those matters into account, the sentencing judge was correct in characterising the offending as being 'very serious examples' of the charges of rape and attempted rape.[17] Further, her Honour was correct to consider that the fact, that the offending occurred while the respondent was on bail for the offending that he had committed the previous evening, was an additional aggravating feature of it.

67 It must be acknowledged that there were a number of mitigating factors, referred to by the sentencing judge, which were required to be taken into account in determination of the sentences to be imposed on the respondent. The respondent's plea of guilty was made at the earliest possible opportunity. It had clear utilitarian value, and facilitated the course of justice. More significantly, it spared the victim the ordeal of a contested trial in which she would have been required to give evidence and be cross-examined. In the interview, that was characterised by the respondent's loquacity, he made frank admissions, and in effect took responsibility for his offending. The judge found that the respondent was genuinely remorseful for his offending, and her Honour noted that he had written a letter to that effect. The contents of that letter were read to her Honour on the plea.

68 Although the respondent had some previous convictions, they were for relatively lesser matters, and, importantly, he did not have any previous conviction for sexual offending. The judge accepted that the respondent had experienced a dysfunctional upbringing, and that he had been sexually abused by an adult when he was on the point of puberty. Applying the principles discussed by the High Court in Bugmy v The Queen,[18] the respondent's difficult background was relevant for two reasons. First, as Dr Vincenzi noted, it has been established that boys who were abused at about the time of puberty are at greater risk of engaging in future sexual offending than other persons. Secondly, as also noted by Dr Vincenzi, the respondent developed an alcohol dependency to avoid feelings of anxiety and low mood resulting from the abuse to which he had been subjected when he was young. It is clear that his offending, in the present case, was committed while under the influence of alcohol. While that of itself is not a mitigating factor, nevertheless it is relevant to take into account, in his favour, that his resort to alcohol (which played a relevant causative role in his offending) was of itself due to the trauma to which he had been subjected when young. In addition, as a result of the convictions for the offences, the respondent's migration status was in doubt. As the judge correctly accepted, the risk that the respondent might be deported, on completion of his sentence, would be the cause of some anxiety to the respondent during the term of his imprisonment, and in that way served as a mitigating factor to be taken into account.[19]

69 In cases of this kind, the sentencing purposes of general deterrence and denunciation are given particular weight. In such a context, it is the duty of the Court to impose sentences which can provide some protection to members of the community, particularly women, who may otherwise be vulnerable when going about their business in public on their own at night. Accordingly, the sentences to be imposed in a case such as this must make it clear that any person, who is minded to exploit the vulnerability of members of the public, particularly women, in such circumstances, by sexually interfering with them, will suffer a deprivation of their right to be at liberty within society for a substantial period of time. As an associated consideration, it is important that the Court make it plain that offending of the kind that was engaged in in this case is entirely unacceptable and reprehensible. In that way, in a case such as this, the Court, by the sentences imposed by it, has a duty to express its denunciation of such offending in clear terms.

70 In addition, in the present case, as acknowledged by the sentencing judge, it was important that the sentence imposed on the respondent be such as to protect the community, and to serve the purpose of specific deterrence by teaching the respondent that conduct, of the kind that he engaged in, will not be tolerated. In light of the assessment, by Dr Harridge, that the respondent constituted a moderately high risk of re-offending, specific deterrence and protection of the community were important sentencing considerations.

71 In determining the outcome of this appeal, the views expressed by this Court in Shrestha v The Queen[20] are relevant. That case involved a serious instance of rape by digital penetration. The sentencing judge felt constrained, by current sentencing practices, to impose a sentence of imprisonment which he regarded as being most inadequate. The offender's appeal to this Court was, unsurprisingly, dismissed. In its reasons for judgment, the Court expressed the view that the 'general run' of sentences for digital rape is well below what is necessary to reflect the objective gravity of that offence and the moral culpability of the offender. The Court considered that there must be an 'upward adjustment' in sentences for offences of digital rape committed in circumstances that were 'broadly similar' in objective gravity to the offence of which the offender in that case was convicted.[21]

72 The views, thus expressed by this Court in Shrestha, are pertinent to the present case.

73 In the course of submissions, we were not referred to any recent decisions of this Court from which it might be possible to discern a relevant current sentencing practice in relation to cases of this kind. A brief review of a sample of some of the cases involving digital rape since Shrestha [22] reveals that the sentences imposed, particularly on charges 15 and 17, were lower than those which have been imposed in recent decisions.[23] However, while comparable cases may assist to reveal a possible pattern of previous sentences, that does not have the consequence that a range or pattern of sentences, indicated by such cases, is necessarily correct.[24] Further, as the High Court has recently emphasised in DPP v Dalgliesh,[25] while s 5(2)(b) of the Sentencing Act provides that current sentencing practices are relevant to the determination of a sentence, nevertheless that factor is but one of a number of matters which must be taken into account in determining the appropriate sentence in each case.[26]

74 The question, then, is whether, in the circumstances, the Director has demonstrated that the sentences imposed on the respondent on charges 15, 17 and 18, and the orders for cumulation, were manifestly inadequate.

75 As we have discussed, the offending, in each instance, was, as the sentencing judge correctly found, a very serious example of a particularly grave offence. On any view, a sentence of five years' imprisonment for the offence of rape, and sentences of four years and six months' imprisonment for offences of attempted rape, are particularly low, in a case in which the offender, who is hitherto unknown to the victim, publicly commits such offences against the victim. The circumstances which rendered this case a very serious instance of such offences - the force and violence involved, the respondent's total disregard and disrespect for the victim's repeated resistance, the degrading nature of the acts performed by the respondent on the victim, and the humiliating manner in which those acts were committed by him in public - impel the conclusion that, notwithstanding the mitigating circumstances to which we have referred, the sentences imposed on the respondent on each of charges 15 and 17 were manifestly inadequate. Giving full weight to the mitigating circumstances in this case, and bearing in mind the stringency of the test to be applied in a case in which the Director contends for a conclusion of manifest inadequacy, we are nonetheless well persuaded that the sentences imposed in respect of those two charges were not just at the lower end of the permissible range, but were wholly outside the range of sentences available to the sentencing judge.

76 The sentence imposed by the judge on the respondent on charge 18 was, on any view, particularly lenient. However, there was significantly less violence and force used in committing it, although it may be observed that, by that stage, the victim seemed resigned to her fate, and she obviously felt that it was better to submit rather than to continue to resist. In those circumstances, while, as we have stated, the sentence of four years and six months' imprisonment imposed in respect of charge 18 is particularly low, we are not persuaded that it was wholly outside the range of sentences available to the judge in the circumstances of the case.

77 The judge directed that twelve months of the sentences imposed on each of charges 17 and 18 be served cumulatively on each other, and on the base sentence imposed in respect of charge 15. Having concluded that the sentence, imposed on charge 17, was manifestly inadequate, we also consider, for the same reasons, that the order for cumulation, made in respect of that charge, was manifestly inadequate. It failed to properly signify the additional offending involved in that offence. Having already raped the victim (charge 15), the respondent was not content with what he had done, but then launched on a second bout of offending, in which, in the degrading circumstances already described, he attempted again to rape the victim. In those circumstances, and taking into account the manner in which the offence that was the subject of charge 17 was committed, we consider that the order for cumulation of twelve months in respect of that offence was manifestly inadequate.

78 In sentencing the respondent in respect of charge 18, the judge was required to, and did, treat him as a serious sexual offender under Part 2A of the Sentencing Act 1991. The prosecution did not seek a disproportionate sentence in respect of that charge pursuant to s 6D of the Act. Section 6E, however, was applicable to the sentence, as acknowledged by the sentencing judge. It provides that every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

79 In the present case, the judge did 'otherwise direct' under s 6A of the Sentencing Act, and the Director did not contend that the judge erred in doing so. It has been recognised that while provisions such as s 6E of the Sentencing Act moderate, and reduce, the weight to be given to the sentencing principle of totality, nevertheless that principle is not excluded.[27] The offending, that was involved in charge 18, occurred almost immediately after the offending that was involved in charge 17. As discussed, the respondent used less force, and acted in a less degrading manner, in committing that offence, than he did in the offending in charge 17. The order for cumulation of twelve months' imprisonment, in respect of the sentence imposed on that offence, while light, could not be regarded as being manifestly inadequate.

80 Having reached those conclusions, it is necessary to address the submission made on behalf of the respondent that, notwithstanding that the Court has concluded that the sentences imposed were manifestly inadequate, this Court should, in the exercise of its discretion, dismiss the appeal, on the ground that the case does not involve a point of principle.[28]

81 In the present case, the short answer to that submission is that the case does, on analysis, involve an important point of principle. As we have noted, in Shrestha, this Court expressed concern about the sentences that had, hitherto, been imposed in offences of digital rape. While such offences do not fall into a discrete category of rape, nevertheless an evaluation of the offending involved in such an offence, and its gravity, is of importance. Certainly, the offence of digital rape does not ordinarily involve some of the aggravating features of penile rape, including the risk, and the fear of the risk, of unwanted pregnancy and sexually transmitted disease. However, that does not necessarily mean that a particular instance of digital rape is less serious. Obviously, an assessment of the gravity of such offending must, as in this case, depend on the particular facts of the case. While the facts of each case - including the present case - are individual and particular, nevertheless, in the context of previous sentencing decisions involving this form of rape (or attempted rape), the conclusion by this Court, that the sentences imposed on charges 15 and 17 were manifestly inadequate, does, we consider, involve an issue of principle.[29]

82 For the foregoing reasons, the Director has established, on this appeal, that the sentences imposed on charges 15 and 17 were manifestly inadequate. In lieu of those sentences, we would re-sentence the respondent on those charges as follows:

Charge 15 - Six years and six months' imprisonment

Charge 17 - Five years and 6 months' imprisonment

83 We would direct that eighteen months of the sentence, imposed on charge 17, be served cumulatively on each of the other sentences imposed by the sentencing judge. Consequently, taking into account the other sentences imposed by the sentencing judge, and the orders for cumulation made by her Honour, the respondent would be re-sentenced to a total effective term of nine years and nine months' imprisonment. We would direct that the respondent not be eligible for parole for a period of six years and four months.

84 Accordingly, in resentencing the respondent, the sentences imposed on the respondent, including those not the subject of this appeal, are as follows:

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

Theft [Crimes Act 1958 s 74(1)]

10 years' imprisonment [Crimes Act 1958 (Vic) s 74(1)]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

Rape [Crimes Act 1958 s 38(1)]

25 years' imprisonment [Crimes Act 1958 (Vic) s 38(2)]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

Attempted rape [Crimes Act 1958 (Vic) s 321M and s 38(1)]

20 years' imprisonment [Crimes Act 1958 (Vic) s 321P and s 38(2)]

Attempted rape [Crimes Act 1958 (Vic) s 321M and s 38(1)]

20 years' imprisonment [Crimes Act 1958 (Vic) s 321P and s 38(2)]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

5 years' imprisonment [Crimes Act 1958 (Vic) s 320]

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

12 years and 6 months' imprisonment with a non-parole period of 8 years and 9 months' imprisonment

• Sentenced as a Serious Sexual Offender in respect of charge 18.

• Reporting obligations under the Sex Offenders Registration Act 2004 for a period of 15 years.

[1] DPP v Macarthur [2018] VCC 851 ('Reasons').

[5] (2006) 16 VR 269.

[8] [2017] VSCA 368.

[9] [2017] HCA 41; (2017) 349 ALR 37 ('Dalgliesh').

[10] [2017] VSCA 364 ('Shrestha').

[12] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[13] House v The King (1936) 55 CLR 499, 505; R v Tait (1979) 24 ALR 473, 476 (Brennan, Deane and Gallop JJ).

[14] [2010] VSCA 350; (2010) 31 VR 634.

[15] Ibid 662-3 [127]-[128] (Ashley, Redlich and Weinberg JJA).

[19] Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 294 [25] (Maxwell P, Bongiorno JA and Beach AJA); Konamala v The Queen [2016] VSCA 48 [34]-[36] (Maxwell P, Redlich and Priest JJA).

[20] [2017] VSCA 364.

[21] Ibid [30]-[31] (Maxwell P, Weinberg and Whelan JJA).

[23] See, eg, Zhao v R [2018] VSCA 267; Wheeldon v R [2018] VSCA 344; Cao v R [2018] VSCA 68; Kalofolias v R [2017] VSCA 308.

[24] Hili v The Queen (2010) 244 CLR 520, 535-537 [48]-[54]; Hudson v The Queen (2010) 30 VR 610, 617-18 [28]-[33].

[25] [2017] HCA 41; (2017) 349 ALR 37.

[26] Ibid [5]-[9] (Kiefel CJ, Bell and Keane JJ), [82] (Gageler and Gordon JJ).

[27] RHMcL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 476-7 [76] (McHugh, Gummow and Hayne JJ); Gordon v The Queen [2013] VSCA 343 [74] (Redlich JA); Zhao v The Queen [2018] VSCA 267 [94] (McLeish, Niall and Weinberg JJA).

[28] DPP v Walsh [2018] VSCA 172, 66 (Maxwell P, McLeish JA), [110] (Ashley JA).