DPP v Moses [2009] VSCA 274

2 The offending took place over a period of approximately 50 minutes, between 6:00 am and 6:50 am on a Sunday morning in 2006, in a flat which P shared with others. The false imprisonment count covers the entire period. The successive rapes took place during that period. Counts 2 and 3 related to specific incidents, while counts 4 to 6 were representative counts. M was sentenced as follows.

M was sentenced on counts 4, 5 and 6 as a serious sexual offender.

3 The Director of Public Prosecutions has appealed against the sentence pursuant to s 567A of the Crimes Act 1958 (Vic), on the ground that the individual sentences, the total effective sentence and the non-parole period were all manifestly inadequate in the circumstances.

4 The Director contended that these were 'extremely grave' examples of the offence of rape. In order to put that contention and the issues raised on the appeal in proper context, it is necessary first to recount in some detail the circumstances of the attack. The prosecution's factual summary, given at the commencement of the plea, provided the factual foundation for the sentencing. That summary appears as an appendix to these reasons.

5 On the plea in mitigation, the Crown Prosecutor helpfully provided the sentencing judge with a document entitled 'General Outline of Sentencing Submissions', the content of which was as follows:

Calls for an immediate and substantial period of imprisonment given:

• Nature and seriousness of offending.
• Counts 4-6 are representative.
• Use of a knife.
• Within a private home.
• Persisted with force and threats.
• Number of degrading acts during the course of the rapes which caused humiliation to the complainant i.e taking a shower and directing her to wash herself to his satisfaction and removing the condom on the oral/penile rape and ejaculating into her mouth.
• Duration of offending (50 minutes).
• Need for general and specific deterrence.
• Punishment.
• Denunciation.

6 On the appeal, senior counsel for the Director sought to reinforce the points made in that outline. He highlighted the duration of 50 minutes, the commission of multiple rapes and the holding of a knife to P's throat. Senior counsel pointed out that M had asked P whether there was 'anyone else here', showing - he argued - that M had made sure that his victim would have no assistance.

7 Counsel for M submitted that the sentencing reasons showed that the judge had taken all relevant matters into account. According to their written submission:

There is nothing in the judge's reasons to indicate that he took into account an irrelevant consideration, failed to take into account a relevant consideration or otherwise gave weight erroneously to relevant considerations. The reasons were carefully expressed and balanced. It is plain that the sentencing judge was astute to weigh all competing considerations and structure a sentence that ensured the community would be best protected through the respondent's eventual rehabilitation.

Was there pre-meditation and could it be taken into account on appeal?

8 In his oral submissions on the appeal, senior counsel for the Director submitted that the circumstances of the offending disclosed an element of preplanning and that this should be viewed as an aggravating feature. According to the submission, M had formed the intent to commit a sexual offence before he set out to obtain entry to the unit in which P lived.

9 Counsel relied for this purpose on the fact that M had previously expressed a sexual interest in the girls living in that unit. In this sense, he argued, the offending could not be viewed as spontaneous. Moreover, he argued, M's picking up of the knife following his entry into the unit showed a degree of calculation. M had equipped himself for the crime which he was intent on committing. The court should take the view, according to the submission, that M had targeted his victim and had 'purposely gone about gaining entry' to the unit.

10 Senior counsel for M contended in response that this argument was simply untenable and should not be entertained. He pointed out that neither the notice of appeal nor the Director's written submission on the appeal had suggested that M had entered the unit with the intent of committing a sexual assault. This proposition was, counsel argued, contrary to the whole way in which the Crown had conducted the case to this point.

11 There was some debate in the course of the plea about M's state of mind as he climbed up the wall to make his entry. For the most part, the argument centred on the extent of M's intoxication at the time. It was argued on his behalf that he was 'severely intoxicated throughout the incident', as he had become 'extremely drunk during the course of the evening'. This was said to support the view that, when M entered the unit, he was 'disorientated and confused.' The judge made it clear, however, both in the course of the plea and in his reasons for sentence, that whatever M's level of intoxication 'he wasn't so drunk as he couldn't climb and perform that extraordinary feat.'[1]

12 At one point, defence counsel urged the judge to find that M 'thought he was climbing into his friend's house and then finding out that he wasn't he became disorientated.' In reply, the prosecutor said that the Crown 'rejected outright' the explanation as to how and why M found himself in the unit. His Honour responded: '[w]ith respect to that I think the only finding in all the evidence is that he set out to go to this woman's apartment and that's what he did.' Defence counsel then pointed out to the judge that there was no count on the presentment involving M 'intentionally going into this woman's house. The aggravated burglary count was taken off the presentment.' His Honour replied: 'And he won't be sentenced for it and you have made that submission very strongly already ...'

13 On the appeal senior counsel for M pointed out, correctly, that entry to the unit with the intent of committing a sexual assault would have constituted the offence of aggravated burglary.[2] If this had been the Crown case against M, that offence could - and should - have been charged separately. In fact, two counts of aggravated burglary were originally preferred against M, but formed no part of the presentment to which M ultimately pleaded guilty.

14 The court's attention was drawn to the decision in R v Newman & Turnbull.[3] In that case, a sentence imposed for aggravated burglary (which involved unlawful entry with the intention of causing injury) was set aside on the ground that the judge had impermissibly included in the sentence a component for the aggravated assault on the inhabitant of the house.[4] In effect, the court said, the offender had been sentenced for an offence (aggravated assault) with which he had not been charged and of which he had not been convicted.[5]

15 The exchange between the sentencing judge and counsel makes clear that he was fully alive to the fact that the counts of aggravated burglary had been removed from the presentment. There is no suggestion in the sentencing reasons that his Honour made any finding about M's intention at the point of entry into the unit, less still that he sentenced M on the basis that the rapes were premeditated. The only reference which his Honour made to aggravating features was the following:

The aggravating aspects of this offence are clearly that you entered the premises of your victim in the early hours of the morning; you found a knife and you threatened your victim with that knife and raped her over a protracted period.[6]

16 We reject the contention that the offending should now be viewed as aggravated by premeditation or preplanning. No such contention was advanced on the plea, as is apparent from the comprehensive list of aggravating circumstances in the prosecutor's 'Outline' reproduced above. The Director is not entitled to rely upon an aggravating circumstance if it was not relied upon before the sentencing judge. It is therefore unnecessary to consider whether a finding of premeditation would have been impermissible as contravening the principle in R v Newman & Turnbull.[7]

17 The adequacy or otherwise of the sentences imposed is therefore to be viewed by reference to the aggravating factors identified by the prosecution before the sentencing judge. Counsel did not suggest on the appeal that the statement of the judge - that M had undertaken the climb in order to arrive at the victim's unit - had no relevance to sentence. The contention had been made on the plea that M had found himself on the relevant balcony by mistake.[8] The sentencing judge rightly rejected that contention. We note that in a psychological assessment tendered on the plea, it was reported that at the time M entered the ground floor flat via a laundry window, he was aware that he had entered someone else's apartment.[9]

18 The effect on the victim, particularly in offences of this kind, is recognised as a significant sentencing consideration. Vincent JA spoke in Director of Public Prosecutions v DJK[10] (which concerned sexual offences against a child) of the important part played by victim impact statements in achieving

what might be termed social and individual rehabilitation ... of those persons who have sustained loss and damage by reason of the commission of an offence ...

The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.[11]

Eames JA agreed that, in sentencing, the interests of the victims and the consequences to them of the criminal conduct were matters of particular importance.[12]

19 In the present case, as the sentencing judge noted in his reasons, P has suffered considerably as a result of the attack by M. According to her victim impact statement, P feels 'as though my sense of trust, my independence and freedom have been taken away.' P describes not feeling safe anywhere, either in public or at home. She suffers from '[a]cute paranoia at all times,' and further states that 'during the night I suffer a loss of sleep because every sound scares me.' The statement goes on:

Flashbacks still occur frequently during the day resulting in depression and lack of concentration. Intimacy issues causes relationship stress between me and my partner.

Feelings of complete vulnerability and dependence on loved ones due to a considerable loss of independence.

Heightened stress and frustration due to the inability to function as normal. Particularly when I was attending Uni as I was approaching my graduation exams. Also at work because I was performing poorly.

20 In his submissions, the Director rightly emphasised the fact that Parliament has fixed a maximum penalty of 25 years' imprisonment for rape.[13] This is the highest maximum provided for by the Crimes Act 1958 (Vic).[14] The fixing of such a high maximum reflects the community's abhorrence of this crime.

21 In 1994, the Full Court in Hall v R[15] referred to the 1980 decision in R v Vaitos[16] ('Vaitos') and said that, since then, community concern about 'the prevalence and seriousness of rape and like crimes' had undoubtedly hardened, and there was a greater need for salutary sentences to punish those who committed such crimes. In our view, community concern about rape and like crimes is stronger than ever, and that reinforces the need for salutary sentences to punish and to deter, in the interests of community safety.

22 Like offences of burglary and aggravated burglary, rapes of this kind cause great disquiet in the community. They destroy the sense of security which every person is entitled to feel when at home.[17] This point was forcefully made in 2006 by Vincent JA (with whom Buchanan and Neave JJA agreed) in Director of Public Prosecutions v Short:[18]

The courts, when dealing with [rape] cases, must have regard to the vindication of the community's social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. They must punish, justly, those whose criminal conduct causes harm to others, and, through the sentencing process, endeavour to deter potential offenders from acting in this fashion ... When [these considerations] cannot be seen to be reflected in the responses of the courts, not only ... does the individual victim justifiably feel betrayed and devalued, but the criminal justice system itself fails to achieve its objectives.

23 As was pointed out in R v MacNeil-Brown,[19] the submission on a Director's appeal that a sentence is 'manifestly inadequate' is a submission that the sentence imposed falls outside the range reasonably open to the sentencing judge in the exercise of the sentencing discretion in the circumstances of the case. At the request of the Court, senior counsel for the Director provided a written submission identifying the sentencing range which - according to the Director - was available to the sentencing judge in sentencing this offender for these offences. We have found it of considerable assistance in this case to have had a clear identification by the Director of what the applicable sentencing range is said to be.

24 The applicable sentencing range identified by the Director was as set out in the table below. The Director's submission on range was helpfully supported by copies of the relevant Sentencing Snapshot published by the Sentencing Advisory Council;[20] corresponding statistics compiled by the Judicial College of Victoria;[21] and a series of sentencing decisions at first instance and on appeal.[22] (The submission stated that the figures had not been adjusted to allow for the reduction which the Court would make, on account of double jeopardy, were the appeal to be allowed and the respondent be resentenced).

Cumulation: 6 - 12m on count 1; 9 - 18m on remaining counts.

25 As the table indicates, the Director's submission was that the conduct constituting count 4 was the most serious of all.[23] Reliance was placed on M's insistence that P remove the condom before he penetrated her mouth;[24] on the fact that he humiliated her by ejaculating in her mouth and then asking if she liked it; and on the fact that this was a representative count.[25] In relation to counts 3 and 5, the Director's submission pointed out (as had the prosecutor on the plea) that M had 'humiliated and degraded' P by insisting that she shower - while he watched - before he resumed penetration of her vagina with his tongue.[26]

26 Senior counsel further submitted that, when account was taken of the three separate acts of penetration comprised within count 5,[27] and of the three further rapes comprised with count 6,[28] the course of conduct should be seen to have involved 10 individual acts of rape. On this analysis, he argued, this was 'very close to the worst case for a single episode involving a single victim.'

27 The submission for M, on the other hand, was that the sentences of five years' imprisonment on the individual counts of rape were

within the range available to the judge, particularly when regard is had to the respondent's pleas of guilty, his true remorse, the absence of prior convictions, the presence of positively good character and a non-violent disposition, his history of hard work and study, his progress towards rehabilitation whilst in custody and his depression.

28 Counsel pointed out that, according to the Sentencing Snapshot on which the Director relied,[29] the average sentence for rape in the period 2001-02 to 2005-06 ranged between four years and six months imprisonment (2001-02) and five years' and nine months' imprisonment (2004-05). It was contended that the amount of cumulation directed was also within range since

each offence occurred as part of the one episode, which dictated a degree of moderation. Requirements of totality also meant that there had to be a degree of moderation in the level of cumulation.

Counsel submitted that the total effective sentence of six years and eight months was 'nowhere near' the point where appellate intervention would be justified.

29 The principle of consistency in sentencing will generally require that some regard be had to comparable cases. So will the statutory obligation to have regard to current sentencing practices.[30] Nevertheless, each case must be judged on its own facts.[31] As this Court recently observed in R v Maynard:

care must be taken when making comparisons between individual cases and in using statistics. Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. The statistics cited provide guidance in only a limited way to the sentence that should have been imposed in this case. By themselves, statistics do not establish a sentencing practice.[32]

30 The statistics published by the Sentencing Advisory Council make clear that little assistance is to be derived from considering the median sentence for rape. The most recent Sentencing Snapshot, covering the period 2003-04 to 2007-08, shows that five years was both the median and the most common length of imprisonment imposed during that period.[33] The fact that the median was five years means, of course, that there were as many sentences greater than five years as there were sentences shorter than five years. In fact, in that period, 50 people were sentenced to imprisonment (for rape) for terms of between six and 10 years; another seven to terms between 11 and 14 years; one to a term of 16 years; and one to a term of 20 years.[34]

31 Senior counsel for the Director drew a parallel between the present case and R v Hyland ('Hyland's case').[35] In that case, the Court of Appeal concluded that a sentence of 12 years' imprisonment, for the rape of an 80 year old woman in her own home, was within the range applicable to the circumstances of the case. The offender, who was known to the victim, had demanded that she undress, saying: 'Do as you are told and you won't get hurt'. He told her to lie down on the bed and then penetrated her vagina with his penis. In contrast to the present case, no weapon was used. Following the rape, the offender left, though only after asking the victim for money. As in the present case, the offender pleaded guilty. Unlike the present case, he had a prior conviction for rape, and convictions for burglary with intent to rape. Like M, the offender had been drinking heavily before raping his victim.

32 Kellam JA noted in Hyland's case[36] - as counsel for M pointed out on this appeal - that the offender's prior convictions for sexual offences meant that the issue of specific deterrence 'loomed large'.[37] Like M, Hyland fell to be sentenced as a serious sexual offender, such that - by force of statute - the principal sentencing objective was the protection of the community. In rejecting the contention that the sentence was manifestly excessive, Kellam JA (with whom Dodds-Streeton JA and Hargrave AJA agreed) described it as: 'A horrifying rape upon a woman of 80 years of age in her own home causing her great fear, humiliation and mental anguish.'[38]

33 Senior counsel for the Director acknowledged that M's lack of criminal history represented a significant point of distinction between this case and Hyland's case. At the same time, he argued, there were other differences which made the present case significantly worse, since it involved multiple rapes and the use of a knife and the aggravating feature of M's having ejaculated in P's mouth. These features justified, he argued, the figure of 10 years which the Director had put forward as the top of the range applicable to count 4.[39]

34 The Director also relied on the decision of Kellam J in R v Hakeem.[40] That case concerned separate attacks, over three days, on three different victims. The relevant comparison, it was said, was with the attack on the second victim, a 63 year old woman (referred to in the judgment as 'KK'). Having first punched his victim in the eye with a clenched fist, the offender put his fingers around her throat and then penetrated her vagina with his penis. He was holding a knife in the other hand. He then used the knife to slash his victim's throat.

35 The offender pleaded guilty to multiple counts. He was sentenced to three years' imprisonment for aggravated burglary; two years for false imprisonment; three years for attempted rape; and six years for intentionally causing serious injury. For the rape, he was sentenced to 10 years. The judge said:

The circumstances of this callous attack upon KK in the sanctity of her own home are of the utmost seriousness. The level of violence you imposed upon a defenceless older woman in her home is simply beyond the comprehension of any decent person. Having inflicted injury on her face, you then obtained a knife which you used to inflict further serious injury on her. In the course of this horrendous attack upon her, you raped her. The use of a weapon to achieve your purpose is an aggravating factor. The depravity of your sexual attack upon a woman on whom you have just inflicted serious injury is contemptible indeed.[41]

His Honour imposed a total effective sentence of 14 years for the offending against KK.[42]

36 Plainly, there were important differences between that case and this. But those differences relate to aspects of the offender's conduct for which he was separately charged, and sentenced - in particular, the count of intentionally causing serious injury. The sentence of 10 years on the single count of rape is significant because, like M, the offender was holding a knife while he raped his victim and because, unlike the present case, there was but a single act of penile penetration.

37 Reference should also be made to R v Fisher.[43] There the appellant had pleaded guilty to one count of rape and one count of indecent assault. On the count of rape, he was sentenced to seven years' imprisonment, which this court concluded was not manifestly excessive. That appellant had grabbed his victim while she was jogging. He pushed her into the bushes, removed her clothing and penetrated her vagina with his tongue. When the victim feigned pregnancy, the appellant desisted from further acts of penetration. As in the present case, the offender was heavily intoxicated. Noting the depression and shame which the victim had suffered as a result of having been raped, Warren CJ (with whom Buchanan and Nettle JJA agreed) concluded that the sentence, though stern, was not beyond the range, having regard to 'the degrading and humiliating circumstances of the offending and the suffering and its impact upon the complainant.'[44]

38 Earlier this year, in Director of Public Prosecutions v Dowie,[45] this Court upheld an appeal by the Director against sentences imposed (relevantly) for abduction with intent to rape and rape. Although the offending in that case occurred outdoors, there are many similarities with the present case. There the offender abducted his victim by putting a knife to her throat and threatened to kill her unless she remained quiet. He forced her to undress and penetrated her vagina three times, first with his tongue, then with his finger and then with his penis. Afterwards, when the victim made to leave, the offender detained her at knife point, threatening further sexual assault. Unlike the present case, there was no charge of false imprisonment. Defence counsel acknowledged on the appeal that the offender's conduct following the rapes was properly to be characterised as false imprisonment, and was properly to be regarded as aggravating the seriousness of the sexual offence itself.

Senior counsel for the respondent conceded, properly, that his client's conduct before and after the rapes significantly aggravated the seriousness of his conduct. As appears from the prosecutor's summary, the respondent abducted the victim at knifepoint. Holding the knife to her throat, he threatened to kill her if she made any noise. These threats were repeated, and would have been quite terrifying. After the rapes, the respondent continued to torment the victim, detaining her while he picked up and put down the knife repeatedly. When she tried to leave, he raised the prospect of raping her again.

...

In this case, a young woman left her home and went to a shop only 10 minutes walk away. ...

That she suffered and continues to suffer profoundly over the years that have followed is hardly surprising. ...

...

We ... emphasise not only the actual implications of the respondent's behaviour, from the perspective of the victim, but also the importance of general deterrence as a sentencing consideration in cases of this kind. The members of our community are entitled to go about their ordinary activities - in this case to walk to a shop - without fear of exposure to physical or sexual attack. Those who offend against them, and thereby deny their victims and (through them) members of the community generally the right to do so, must anticipate that the response of the Courts will be stern. It must also be understood that an attack of the kind actually perpetrated here will be regarded with the utmost gravity.[46]

40 After allowing the usual discount for double jeopardy on a successful Director's appeal, the Court resentenced Dowie to five years and six months imprisonment on each of two of the rapes and to six years and six months on the third. The total effective sentence was increased from seven years and two months to 10 years and six months, after cumulation of one year of a sentence for a quite separate offence of intentionally causing serious injury. The non-parole period was increased from five years and two months to seven years and six months.

41 On the issue of cumulation, the Court was referred to the decision in R v O'Rourke.[47] There the offender was convicted of rape, threat to kill, two counts of indecent assault and intentionally causing injury. The victim was a young female medical resident at a hospital. She was brutally assaulted over a period of some twenty minutes in the private medical residents' quarters at the hospital. The offender was sentenced to five years' imprisonment for the rape conviction, two years for the threat to kill, two years for each of the indecent assault convictions and one year for intentionally causing serious injury. His appeal succeeded on the ground that the judge had erred in directing that all sentences be served concurrently.

42 The Court (Winneke P, Brooking and Callaway JJA) said that the failure to direct any cumulation had produced a total effective sentence which was

wholly disproportionate to the gravity of the respondent's conduct. The essence of the criminality of that conduct is to be found in the commission of sequential acts of a violent, degrading and humiliating kind, each of which combined to produce the state of terror into which the victim was so clearly driven.[48]

Their Honours cited what had been said by the Court of Criminal Appeal in R v Richardson,[49] where the accused had committed a series of sexual assaults upon a woman in her own home. In that case, rejecting a complaint about excessive cumulation, Young CJ (with whom Crockett and Southwell JJ agreed) said:

Each offence involved an additional violation of the woman and contributed to the aggregate of her debasement and humiliation. It was plainly proper ... for his Honour to recognise this in the directions he gave [as to cumulation], as indeed he did.[50]

The Court in O'Rourke said that a similar approach was required in that case:

Serious though the rape may have been, it was but one component of an aggregation of acts which together contributed to the debasement and humiliation of the complainant over a significant period of time during which the respondent was well aware of her resistance and distress.[51]

43 These remarks have obvious application here, given the extended 'debasement and humiliation' to which P was subjected. In resentencing, the Court in O'Rourke imposed a sentence of five years for the rape, noting that it represented 30 per cent of the applicable maximum of 16 years and eight months.[52] Applying that same percentage to the 25 year maximum applicable in the present case would produce a sentence of seven and a half years. In contrast to the present case, however, O'Rourke was convicted after a trial.

44 There was debate on the appeal about whether the conviction and sentence of M both for the offence of false imprisonment and for offences committed during the imprisonment contravened the rule against double punishment. The court was referred to the decision of this Court in R v King.[53] In that case, the offender had forcibly detained his former girlfriend for approximately two hours, during which he made a number of threats to kill her and perpetrated a number of serious assaults upon her. Following a trial, he was found guilty on six different counts, and sentenced as follows:

45 The Court dismissed a complaint of double punishment. Noting that the crime of false imprisonment was a continuing one, Redlich JA (with whom Vincent JA and Habersberger AJA agreed) said:

An assessment of the gravity of the complainant's imprisonment required some identification of the nature of the experience to which [she] was exposed. In the two hours of her confinement, she was subjected to a growing fear that she would not leave the appellant's premises alive. The escalation in the threats and violence over that period made her imprisonment ever more terrifying.

These circumstances aggravated the complainant's imprisonment and were matters which the sentencing judge properly took into account. Her Honour treated the appellant's offending conduct in relation to the other charged and uncharged acts only as a general circumstance of aggravation of the complainant's unlawful confinement. The different sentences imposed on each of the counts indicates that her Honour carefully identified the criminal conduct relating to each count and avoided any error of double punishment of the appellant for the same conduct.[54]

46 In our view, the false imprisonment of P involved serious criminality separate and distinct from that involved in the successive rapes. As the Crown summary makes clear,[55] P was continually hoping that M 'would finish and leave'. But her ordeal continued. After each act of penetration, there was a lull - and then a further rape. P was, quite literally, being kept prisoner. She was hostage to M's sexual demands. And she was constantly in fear. She was scared that if M did not ejaculate he would hurt her.[56]

47 There is a separate point to be made about the seriousness of the successive rapes. What the Court said in Director of Public Prosecutions v DDJ,[57] about repetition of sexual abuse in the course of an abusive relationship, can also be said of its repetition in the course of a lengthy episode like the present:

The repetition of the sexual abuse is likely to heighten the victim's fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened.[58]

48 As the sentencing judge fully appreciated, M fell to be sentenced on counts 4 to 6 as a serious sexual offender, in accordance with Part 2A of the Sentencing Act 1991 (Vic). His Honour noted that he was obliged to regard the protection of the community from M as the principal purpose for which sentence was imposed, and that he had power under s 6D(b) to impose a disproportionate sentence if necessary in order to achieve that purpose.[59] His Honour concluded that the likelihood of M's re-offending was limited 'in view of your commitment to your rehabilitation as revealed in the time you have spent in custody thus far.'[60]

49 At the same time, the judge granted the prosecutor's application for an order that M be registered under the Sex Offenders Registration Act 2004 (Vic). As the prosecutor pointed out to his Honour, an order for registration can only be made if the court 'is satisfied beyond reasonable doubt ... that the person poses a risk to the sexual safety of one or more persons of the community.' His Honour was so satisfied and ordered that M be registered for a period of 15 years.[61] That was, in our view, a very significant conclusion about the risk to the community which M presented, and it bore directly on the statutory requirement that community protection be treated as the principal purpose of the sentence.

50 The material before the sentencing judge included two reports - one from a forensic psychologist, Mr Ian Joblin, and the other from a consulting psychiatrist, Dr Lester Walton. Mr Joblin's report was based on an interview with M 10 months after the offences were committed.[62] The report set out what Mr Joblin described as an 'extraordinary' account given by M, of P having consented to have sexual relations with him. On his account, M had found himself in P's unit by mistake. When he saw the knife, he picked it up 'because he was concerned others in that unit may have become aggressive if he disturbed them.'[63] He tried to find a way out but could not find the front door. He then saw the door to the bedroom, and could see P 'who was frightened and screaming'. Mr Joblin's report continued:

Mr Moses reported that he placated the girl by sitting and talking to her about his life. He believed that she felt sorry for him. He reported that he told her about his previous girlfriend and about the incident at the bottle shop that night. He maintained that he was still very intoxicated. Mr Moses acknowledged that she was wearing a thin nightdress. He acknowledged that he became sexually aroused. He reported that he asked her if he could have sexual relations with her and that she agreed. He acknowledged that he had had no sexual relations with a female for some time. It seems to me that as a result she had become very attractive to him. He reported that had she indicated she did not want to participate in sexual relations with him, he would have asked her to show him the door, which he did subsequently in any case. She apparently told him how to find his friend's unit internally.[64]

51 Mr Joblin reported that he had reviewed with M the psychological bases of rape - anger, rage, aggression, frustration, disappointment and sexual deviation. M denied all of them. According to the report:

[M] acknowledged that he was somewhat sexually frustrated but he did not take that frustration out on the female in the absence of her permission. He denied any sexual deviation per se. He reported that there has been no suggestion of any such behaviour previously. ... He reported that prior to what he believed was consent, there was no suggestion of having sexual relations with her at all. However, when he noticed her sexual presence, on his report he asked her to have sexual relations with him and she agreed.

able to discuss the important concept of contrition and remorse. He is able to indicate that if he upset and hurt the girl, he is extremely contrite. At a more emotional level, he reported remorse. When I suggested to him that the agreement he believed she made with regard to having sexual relations with him may have, in fact, been based on her fear at the time, M agreed with that and acknowledged that it may well be possible that this formed the basis of what he interpreted as consent.[65]

[M] is obviously extremely concerned about his future now but he can report an awareness of the impact of such behaviour on a victim. He further expressed considerable contrition and psychological distress if he caused her any harm, acknowledging that such behaviour could easily result in psychological harm.[66]

52 Eight months later, M was interviewed by Dr Walton.[67] His account of the circumstances of the offending was much the same:

Mr Moses has a recollection of attempting to climb up and enter through the bedroom window, which he did, but once he had done so he realised that he was in the wrong unit. He became increasingly frightened as he was unable to locate the front door to exit, including arming himself with a knife from the kitchen for protection.

Mr Moses disturbed the victim and she began to scream. His recollection is that he attempted to reassure her that he meant her no harm and he tried to explain his mistaken entry. He stated that she offered him money but he insisted that he was no thief. He stated they engaged in conversation and he asked her for sex and she complied. Soon thereafter he left the premises.

Mr Moses insists that the act of sexual intercourse was not forcible but he does freely acknowledge that the victim was not in the position to give free consent, he being armed with a knife.

In relation to his misconduct, Mr Moses stated to me 'I feel terribly ashamed of what I did, I feel very very sorry for that girl. She didn't deserve anything like that. I have two sister of my own', he further elaborating that he was very aware of the adverse effects upon a rape victim because one of his sisters had been raped.

Mr Moses remains perplexed as to why he has engaged in such out-of-character behaviour. He is insightful to the extent that he does not see his state of intoxication as a comprehensive explanation. He believes it is likely that he was seeking to offset a fairly intense feeling of loneliness and the fact that it had been several years since he had been involved in a relationship after being hurtfully rejected.[68]

53 In Dr Walton's opinion, M appeared clinically depressed at the time of the interview but it was unlikely that this condition had obtained at the time of the offending. Rather, the depression was a reaction to 'his current legal predicament' and to death and illness affecting close family members. Noting that M had 'either provided a somewhat exaggerated account of his alcohol intake, as was suspected by Mr Joblin, or he has an unusual tolerance to alcohol', Dr Walton said:

While I would not see this man's state of intoxication as the sole explanation for his offending, I certainly do regard it as centrally relevant in disinhibiting aggressive and sexual urges which might otherwise have been contained but you will be aware that the reaching of such a conclusion is regarded as not being a matter of expertise.[69]

There is little from my area of expertise which pertains immediately to disposition. Generally speaking the prognosis would be regarded as favourable because Mr Moses is not addicted to alcohol and there is not only a background of no criminal offending but otherwise he seems to be a thoroughly responsible individual, successfully completely (sic) his course of study and clearly he is not work-shy.[70]

In a second report, a month later, Dr Walton said that M 'certainly does impress as appropriately remorseful.'[71]

54 In our view, it was relevant to an assessment of the risk which M presented that in two separate interviews, conducted many months after the offending, M's account of what had occurred revealed serious cognitive distortions of the reality. The version of events which he gave, first to Mr Joblin and then to Dr Walton, shows a marked lack of insight into the gravity of his repeated sexual violation of P at knife -point. His account of P having consented to sex was indeed extraordinary. Equally significant was the conditional nature of M's contrition, that is, his stating that he was regretful if he caused P any distress.

55 On the other hand, as his counsel pointed out on the plea, M had undertaken a number of programs while in custody. At the time of the plea, he had his name down for an anger management program at Port Philip Prison and for a new sex offender's program which was about to commence. In the course of the plea, the judge accepted that M had:

clearly done all that he can since he's been in prison by way of rehabilitation, it seems he has certainly chosen to accept his responsibility for what he did and to make the best of the situation that he now finds himself in, which of course, all goes well for his rehabilitation.

In his sentencing reasons, the judge referred to these matters and said:

Clearly, you have sought to occupy yourself in prison by doing whatever you can to rehabilitate yourself and come to terms with your depression. I am, on balance, satisfied that the chances of your rehabilitation are reasonably good.[72]

56 In our view, the defence submissions advanced on the plea reflected M's continuing refusal to accept responsibility for what he had done. The accounts he was recorded as having given in psychological assessments were consistent with a belief that P was consenting and that, at best, he had come to realise that such a belief was not reasonable. His counsel submitted that when M entered the unit he was 'disorientated and confused', and that he had a 'variable state of mind through the incidents'. This state of confusion was said to have been the product of finding himself in the wrong unit by mistake - a version which the judge rejected - and of his intoxication.

57 The contention that M was confused and disorientated - and, by implication, had no real idea of what he was doing when he raped P - could never have succeeded. The facts as set out in the Crown summary were quite to the contrary. M's behaviour was rational, methodical and ruthless, as illustrated by his checking that no-one else was present; threatening P in order to force her to comply; keeping the knife strategically placed at all times; directing P to shower; and, above all, keeping her prisoner quite effectively for almost an hour. In the circumstances, the fact that those submissions were even put on the plea - reflecting M's instructions, no doubt - raised a real question about the true nature of M's remorse. The prosecutor was quite right, in our view, to argue on the plea that M was 'downplaying his actions' in saying that he was lost and disorientated, and that the purported explanation was 'unacceptable in the circumstances of the case'.

58 On the basis of Dr Walton's diagnosis of clinical depression (as at February 2008), it was likely that any sentence of imprisonment would weigh more heavily on M than it would on a person of normal health. This was correctly pointed out by defence counsel on the plea, as a matter to be taken into account in sentencing.

59 In our view, the sentences here imposed were manifestly inadequate and must be substantially increased. We referred earlier[73] to the need for salutary sentences to deter and punish offending of this kind, to vindicate the community's abhorrence of the crime of rape and to advance public safety. Here the offender fell to be sentenced for five separate rapes, committed at intervals over almost an hour, and also for imprisoning his victim in the periods between the successive rapes, which he did in order to continue his attacks on her.

60 The sentencing judge drew no distinction between the different rapes. While sentencing judges should be allowed great latitude in tailoring an appropriate total effective sentence, particular care is required where there are numerous offences. As Callaway JA (with whom Winneke P and Buchanan JA specifically agreed) pointed out in R v McCorriston,[74] there is a risk that the sentence will fail to register the seriousness of one or more of the offences.

61 In the present case, some of the offences plainly warranted greater individual sentences. Moreover, the total effective sentence of six years and eight months, for all of the rapes and for the false imprisonment, was only just above 25 per cent of the maximum fixed by Parliament for a single rape. So viewed, the sentence is, in our view, so disproportionate to the seriousness of the crime as to shock the public conscience.[75]

62 We would direct a measure of partial cumulation.[76] The sentences fixed and the orders for cumulation must also be reduced to provide for the conventional discount for double jeopardy. We would resentence M as follows:

M will be sentenced on counts 4, 5 and 6 as a serious sexual offender

1. On previous occasions M had commented to one of his friends that they should have parties at the unit and invite the girls who lived in the unit below because 'they were so beautiful'. During the night M was observed dancing in his work shirt and a pair of boxer shorts with the words 'sexy beast' written across them. He was making comments about being a 'sexy beast'.

2 During the night some of the males at the party fell asleep whilst M and two others remained awake. At approximately 4:00 am they went to a McDonalds. The two other males requested that M remain in the car because he was drunk. After returning to the unit the other two males went to bed whilst M remained awake.

3 Early on 3 September, P heard a noise which woke her and she noted the time as being 6:00 am. It went silent and a short time later she heard some noises like rattling, as though someone was falling. The noise she had heard was M who had broken into the unit via the laundry window. He had climbed a brick veneer exterior wall and climbed up the laundry window which was open. The distance of the window to ground level was measured at 3.85 metres. As he entered the premises he knocked over a number of items. He walked to the kitchen and took possession of a 30 centimetre carving knife, the blade being 20 centimetres long.

4 P's door suddenly opened and she assumed it was one of her housemates returning home. She looked over and saw M enter her room. He was holding a large knife which she recognised as coming from their kitchen and was holding it in front of him with the blade pointing down as if in a stabbing motion.

5 P moved to the other side of her bed to get away from M and said, 'No, please, no'. M jumped on the bed and started crawling towards her. She said to him, 'What do you want, you can have anything in the house you want, I won't scream, do you want money?' He replied, 'No I just want sex'.

6 P pleaded with him saying, no, please, no. She was flailing a bit with her arms and edging away. M had the knife in the air the whole time. She was trying to ward him off. M without warning leapt on top of her and was crouched on top of her.

7 P was lying on her back and M turned her body around nearly side-on to the bed. This happened very quickly and P felt tangled. M grabbed her right wrist with his left hand and held her wrist over her body. M was on top of P pressing her to the bed. M remained in possession of the knife, and the struggle continued for a short period of time.

8 P was saying no, no and wriggling a bit. He said something to the effect, 'be quiet or I'll kill you'. He went on and asked if anyone else was home. He was very insistent in this, P replied that there was not. He replied by saying 'don't lie to me. I'll kill you if you lie to me. I don't want to hurt you, I'm a good person.' He repeated this twice. M also stated 'I'm a professional, I've done this before, I've hurt people but I don't want to hurt you. I won't hurt you unless you make me mad. If you lie to me or if you upset me I'll kill you'. Again this was repeated on a number of occasions. P repeated that she was home alone.

9 M moved P's head so that it was on the pillow. At this time P saw M's face for the first time. When M was moving her on the bed he held the point of the knife to the left side of her neck. P ceased struggling as she was terrified that he would hurt her. M also made comments such as saying 'I know you're scared, I'm not going to hurt you, I just want sex, I'm a good person.'

10 M told P that he had not had sex for 10 years and he liked white girls. He also stated that, 'God does not love me as so many bad things have happened to me and God does not give me nice things like you' - referring to P.

11 M got off P and stood before her holding the knife and took his clothes off very quickly, dropping his clothes next to the bed. After doing this he told P to take her clothes off. P begged him to use a condom as she did not want to catch anything or fall pregnant. He agreed to this.

12 M got angry as he felt that P was not removing her clothes quickly enough. He again repeated to her to remove her clothes and warned her not to make him angry.

13 P was scared of the knife which M was pointing at P. P removed her clothes and took hold of a box of condoms which were under her bed head. She took one condom and held it. M leapt on top of her and straddled her.

14 P was on her back and M had his knees quite high up on her chest on either side of her body. M was leaning right over her and had the knife in his right hand pointing to the left side of P's neck. P noted that M's penis was not erect, however, she tried to place the condom onto it. P was visibly shaking as she did this; M said to her 'not now, do you think we are having sex now. Not now.' As he said this the knife was still at her neck.

15 M noted that she was scared and told her she did not need to be. As he said this he patted and stroked her left arm. P pleaded with him to put down the knife. M agreed to this and placed the knife under the pillow. M got off P and was stroking her legs and breasts. He said to her 'come here'. He made her sit up on the bed and give him a hug. He went on to say again that God did not love him. They hugged and he laid P down.

16 M asked whether P was a student and what she studied; she told him what course she was completing. He told her that she was a nice girl and that he was not going to hurt her and that she will grow old, have children and will be happy. He again stated that God did not love him and that he might commit suicide later on. He said that for now he wanted to be loved and have a girlfriend, and for now she could be his girlfriend.

17 P was still laying on her back and M was straddling her, his legs almost under her armpits. He demanded that she suck his penis. He placed his penis into her mouth. During this time he did not move but said to her 'deeper, deeper'. M pulled away and grabbed the knife and moved down towards her legs. He put the knife down near her feet, at the corner of the bed.

18 M performed oral sex on P. He licked her vagina inside and out and bit her. He pushed P's legs up over his shoulders. He stopped licking her vagina and said that he wanted P to wash, motioning towards the shower.

19 P got off the bed and walked to the bathroom. He told her to get into the shower and clean herself. P went into the shower and scrubbed her genitals with shower gel. M stood and watched this. She got out of the shower and dried herself. M hugged her and walked her back to the bedroom.

20 P sat on the side of her bed near her pillow. M pushed her legs back so that they were hanging over the side of the bed and he again performed oral sex on her by licking inside and out of her vagina.

21 M licked and bit her nipples and slapped her breasts. He scooped up her legs and swung her around so that her head was on the pillow. He said that he wanted to see her in the light.

22 M was on top of her with his head near her vagina which he was licking and biting. P at the same time was sucking his penis; it was being moved in and out of her mouth. During this time M did not have an erection whilst in this position he scratched her knees to her ankles.

23 He turned around so that he was straddling P again. He made her suck his penis again. As this occurred his penis became erect. P went to put the condom on, which she had removed prior to the shower, but M told her to get a new one. P got another condom and placed it on his penis.

24 M removed his penis from P's mouth. He placed her legs above his shoulders and placed his penis into her vagina. M pressed down on P with such force that her knees were near her head - she was completely pinned down. They remained in this position for a period of time until he removed his penis.

25 During the entire time that M was raping P she was looking at the ceiling hoping that he would finish and leave. She was scared that if he did not ejaculate he would hurt her. At one point he said to her 'I can't even satisfy a woman'. He kept saying that he was sorry.

26 There was a noise outside the unit like a rubbish bin or something. M asked P was someone home. She replied that she did not know when the other girls would be home. M was shaking his head.

27 M pulled P into a sitting position and hugged her. He forced her to sit on his penis, and his penis penetrated her vagina. This did not seem to work well so M lay down on his back. He moved the knife from the corner of the bed and put it on the floor close to his head, within reach.

28 M again penetrated P with his penis, with her straddling on top of him. M grabbed her bottom and was pulling her up and down so that his penis was going in and out of her vagina. M failed to maintain an erection and P moved off and away from M. She asked if he wanted to watch television. He said that he did not want to watch television as he wanted to leave before her girlfriends came home.

29 Throughout the incident P said she was being nice to him and 'pretending' to be his girlfriend.

30 M again demanded that P suck his 'cock'. His penis still had the condom on and he told her to take if off, which she did. M placed his penis into P's mouth. She was kneeling between his legs and he was on his back. M ejaculated into P's mouth which she tried to wipe away. M asked her if she liked it and told her not to be scared.

31 They both sat up. P backed away from him. M said 'Thank you I will go now. Will you walk me to the door?' P got off the bed. M dressed and they walked to the door. He asked her not to tell anyone and that he would not be back. He left the house.

[1] See R v Moses (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008), [4].

[2] Crimes Act 1958 (Vic) s 77.

[5] R v Moses (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008), [12].

[8] The respondent was staying in a first floor unit. The complainant's unit was on the ground floor.

[9] Report of Ian A Joblin, 10 July 2007.

[10] DPP v DJK [2003] VSCA 109.

[13] As to the significance for sentencing purposes of the maximum penalty, see R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391.

[14] The same maximum is provided for armed robbery, aggravated burglary and for trafficking in a commercial quantity of a drug of dependence (the last being found in the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[15] (1994) 76 A Crim R 454, 475.

[16] (1981) 4 A Crim R 238.

[17] See DPP v El Hajje [2009] VSCA 160, [34]-[35].

[18] [2006] VSCA 120, [42]. See also Maynard [2009] VSCA 129; Patterson [2009] VSCA 222.

[19] [2008] VSCA 190; (2008) 20 VR 677 (Maxwell P, Vincent and Redlich JJA).

[20] Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria 2001-02 to 2005-06, Sentencing Snapshot No 26, June 2007. See now Sentencing Snapshot No 83, June 2009, which covers the period 2003-04 to 2007-08.

[21] Judicial College of Victoria, Victorian Sentencing Manual (online, last updated 1 July 2007) 24.9.3.1; 25.8.1. See also Judicial College of Victoria, Victorian Sentencing Manual (online, last updated 20 November 2009) 26.11.1.1-26.11.1.4.

[22] DPP v Avci [2008] VSCA 256; R v Hakeem [2007] VSC 5; R v Khem [2008] VSCA 136; R v King [2007] VSCA 38.

[24] Cf R v Khem [2008] VSCA 136.

[27] See [20], [22], [23] of Appendix 1.

[28] See [24], [27], [28] of Appendix 1.

[29] Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria, 2001-02 to 2005-06, Sentencing Snapshot No 26, June 2007, 3.

[30] Sentencing Act 1991 (Vic) s 5(2)(b). See DPP v CPD [2009] VSCA 114, [78]-[80].

[31] R v Teichelman [2000] VSCA 224.

[32] DPP v Maynard [2009] VSCA 129, [35] (Ashley, Redlich and Kellam JJA) (emphasis added).

[33] Sentencing Advisory Council, Sentencing Trends in the High Courts of Victoria 2003-04 to 2007-08 Rape, Sentencing Snapshot No 83 June 2009, 4.

[35] [2008] VSCA 220.

[39] See [24] above.

[40] [2007] VSC 5.

[42] With cumulation of the sentences on the counts relating to other victims, the total effective sentence was 24 years with a non-parole period of 17 years.

[43] [2008] VSCA 11.

[45] [2009] VSCA 154.

[46] Ibid [8], [28], [29], [31].

[47] [1997] 1 VR 246 ('O'Rourke').

[48] O'Rourke [1997] 1 VR 246, 252.

[49] (Unreported, Supreme Court of Victoria Court of Criminal Appeal, Phillips CJ, Crockett and Southwell JJ, 30 April 1992).

[51] R v O'Rourke 1997 1 VR 246, 252.

[52] Ibid 254-5. The lower maximum was the result of the abolition of remissions: 248.

[53] [2007] VSCA 38.

[57] [2009] VSCA 115.

[59] R v Moses (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008) [24].

[62] Report of Ian A Joblin, 10 July 2007.

[67] Report of Dr Lester A Walton, 12 February 2008.

[71] Report of Dr Lester A Walton, 17 March 2009.

[72] R v Moses (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008).

[74] [2000] VSCA 200, [13].

[75] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522.

[76] R v Izzard [2003] VSCA 152; (2003) 7 VR 480.