The course of events
7 All the offences were committed on 29 August 2004, against the one victim. The respondent was arrested the same day. At interview, he either denied that the offences had occurred, or maintained that the complainant had consented to the impugned conduct. Thereafter the respondent remained in custody until he was bailed on 15 February 2005 following a contested committal hearing. The trial began on 27 September 2005. On 7 October the jury found the respondent guilty of the offences which I have earlier catalogued. A plea hearing took place on 9 November. The respondent was remanded into custody, and was sentenced, as I noted earlier, on 16 November.
Circumstances
8 The circumstances of and surrounding the offences were as follows: The respondent was aged 19 at the time, his date of birth being 28 August 1985, and thus his birthday having fallen on the day of the party which preceded the commission of the offences. The complainant was aged 17, was the mother of a young child, and was receiving treatment for post natal depression.
9 On the evening of 28 August 2004 the complainant attended a birthday party at Clifton Springs. Early on, she was involved in an altercation with the father of her child, and he left the premises.
10 The respondent was also at the party. He was known to the complainant, but only in incidental fashion. There had not hitherto been any romantic attachment between them.
11 The complainant and the respondent spoke at the party. The complainant showed the respondent photos of her baby. There was some evidence that the two of them physically embraced whilst lying on a bed at the premises, and some evidence also of talk between them which had a sexual connotation. The complainant disputed that evidence.
12 The complainant left the party some time after 3.00am. It could have been after 4.00am. At the time, she was affected by alcohol to an extent, and was overtired. She set off on foot towards the premises where she was staying for the night.
13 The respondent left the party at the same time, and commenced walking in the same direction. That is not to say that he and the complainant left in company.
14 At a point in the complainant's journey she was attacked by the respondent. She found herself on the ground, with the respondent trying to strangle her. She resisted, and the respondent told her to "stop or I'll fucking kill you." (Count 3).
15 The complainant lost consciousness. When she regained consciousness she was naked but for a pair of boots. She was lying face down in the grass with her legs spread apart.
16 The respondent was by then also naked. He said that he was going to "fuck," or "rape," her. He made her get up onto her knees, and attempted to penetrate her anus with his penis (Count 4).
17 The respondent then rolled the complainant onto her back and lifted her legs. He penetrated her vagina. This went on for some time (Count 5). Meantime, he called her a "dirty slut."
18 The respondent then put the complainant into a somewhat different position, and again raped her (Count 6). He required her to say that she was a dirty slut.
19 At the time of this conduct, it is convenient here to note, the complainant was menstruating for the first time since the birth of her child. She had been wearing a sanitary pad, as well as nursing pads in her bra. She had not engaged in intercourse since the birth of her child. Penetration was painful.
20 After the second incident of penile - vaginal rape, the complainant lay on her side, resting. The respondent moved in front of her, and forced her to engage in oral sex (Count 7).
21 Sometime later, as the complainant lay on her back, the respondent penetrated her vagina with his tongue (Count 9).
22 A little later, the respondent again forced the complainant to engage in oral sex. On this occasion he ejaculated into her mouth (Count 10). Whilst engaging in oral sex, the respondent grabbed her breasts, hurting her (Count 11).
23 After these things had been done to the complainant, the respondent threatened her that if she said anything, or went to the police, he would hunt her down, slit her child's throat in her presence, and kill her (Count 14).
24 By the time that the complainant arrived at her brother's house it was about 5.30am.
25 The complainant was medically examined later on the 29 August 2004. Her injuries included:
• Haematoma and abrasions of the left cheek.
• Subconjunctival haemorrhage of the left eye and bruising of the adjacent area.
• Similar injuries to and in the vicinity of the right eye.
I pause to say that, at examination, the complainant's eyes were swollen shut.
• Bruising of the left ear.
• Bruising and bleeding of the right ear.
• Bruising and abrasion of the neck.
• Bruising, a piercing wound and deep abrasion of the chin.
• Bruising and swelling of the mucosa.
• Bruising of the right forearm.
• Abrasions of the abdomen.
• More than 100 superficial abrasions of the back.
• Superficial abrasions of the right buttock.
26 Further there was blood and foreign matter at the opening of the vagina, and grass on the surface of the labia minora and inside the vagina.
27 Further still, there was erythema of the vaginal lip, two superficial abrasions at the back part of the vaginal opening, and an abrasion on the anterior vaginal wall.
28 In respect of the anus, there was grass and dirt around the perianal area.
29 Investigations confirmed that the complainant had been menstruating at the time of the attack.
30 All of the injuries which I have catalogued, save for a few abrasions which the Crown conceded were not attributable to the respondent's assault upon the complainant, were caused by that attack.
31 The complainant required medication and rest. She suffered a lot of pain from her injuries.
32 The various injuries, evidently inflicted upon the complainant during the period of the attack, were the subject of count 2.
33 Not surprisingly, a victim impact statement made by the complainant showed that she had suffered, and continued to suffer, from very substantial emotional upset attributable to the attack.
34 What I have thus far said about the circumstances of the offending shows that the respondent, as counsel for the Director submitted before this Court,
• Subjected the complainant to a brutal and prolonged attack.
• Committed offences upon a victim who was subdued by force, who was unconscious for a period, and whose sight was affected by injuries inflicted upon her.
• Acted in a way calculated to instil fear into the complainant.
• Continued on with his lengthy attack although, as must have been apparent, the complainant was distressed and frightened.
• Engaged in acts which were of a gross and degrading nature, apt to humiliate the complainant - such as ejaculating into her mouth, and requiring her to describe herself as a dirty slut.
• Caused the complainant, by his acts, both physical and continuing mental injury.
• In all, treated the complainant with absolute contempt, as an object for his own sexual gratification.
Submissions on the plea. Sentencing remarks
35 The prosecutor submitted at the plea hearing that the respondent's offending was at "the highest end of the scale". Counsel for the respondent did not, as I read it, contend to the contrary. The prosecutor's submission, in my opinion, was well-justified, having regard to the circumstances of and attending the offences which I have described.
36 The learned sentencing judge found that the offences were "serious", that they had been committed "to a significant degree", that they "tend[ed] towards the higher end of offences of this kind", and that the respondent's "culpability was high". She said that weight was to be given to denunciation of the respondent's conduct, punishment, and general deterrence.
37 The learned judge heard evidence as to the respondent's antecedents. He came from a stable family background, his family being loyal, supportive and caring. He was described as gentle; a friendly, loving boy, who had never displayed violence over the years. Testimonials put in evidence described him as polite, courteous, well-mannered, honest, reliable, well-respected and with empathy for others. He had completed year 12 - although he had not passed - and had then embarked upon work as a kitchen hand, with an ambition of becoming a chef.
38 The learned judge also received into evidence two reports of a forensic psychologist, Mr Joblin.
39 In consultation with Mr Joblin, the respondent denied that he had used cannabis on the night of the offences, although he admitted use of cannabis in earlier years. He admitted to drinking alcohol on the afternoon of 28 August, and at the party.
40 It was not alleged against the respondent on the plea that he had any prior convictions. Mr Joblin noted, however, an incident - apparently described by the respondent as a "push and shove" - arising out of which he had been charged with assault. The learned sentencing judge was informed by counsel that the respondent had been found guilty of assault at a Magistrates' Court hearing in February 2004; and had been fined $450 without a conviction being recorded. There seems to have been no enquiry at the plea hearing as to how it was that an inconsequential push and shove, as the respondent would have it, led to police involvement, the laying of a charge and ultimately the imposition of a fairly substantial fine.
41 The respondent's account of the events the subject of the present appeal, when he was first seen by Mr Joblin, was entirely exculpatory. It could be reconciled neither with the injuries inflicted upon the complainant nor with the jury's verdict.
42 In substance, having interviewed and assessed the respondent, Mr Joblin was unable to offer any explanation for the offending conduct. In his first report, he said this: