Flynn (a pseudonym) v The Queen [2020] VSCA 173

CRIMINAL LAW - Appeal - Sentence - Two charges of digital rape - Sentence of 6 years' imprisonment on each charge - 2 years' cumulation - Total effective sentence of 8 years' imprisonment with non-parole period of 5 years - Whether sentence manifestly excessive -Rapes occurred within moments of each other - Single transaction rule - Order for cumulation manifestly excessive - Leave to appeal against sentence granted - Appeal allowed - Applicant resentenced to total effective term of 6 years and 6 months with non-parole period of 4 years.

1 In September 2018, the applicant stood trial in the County Court at Ballarat. He was tried on an indictment containing five charges accusing him of having raped his wife, 'Jane Flynn', on three separate dates in February 2017 (those being, 2, 3, and 7 February).

2 On 19 September 2018, the jury acquitted the applicant on charges 1-3, but convicted him on charges 4 and 5. On 20 November 2018, he was sentenced as follows:

Rape [s 38(1) - Crimes Act 1958]

Rape [s 38(1) - Crimes Act 1958]

Related summary offence (contravening a condition of bail) remitted to the Magistrates' Court

3 By notice dated 20 January 2019, the applicant applied for leave to appeal against his conviction on a number of grounds. They are as follows:

Ground 1

There was a substantial miscarriage of justice under s 276(1)(a) of the Criminal Procedure Act 2009 in that the verdict of the jury was unreasonable and/or could not be supported having regard to the evidence. The particulars of this ground are outlined below:

(i) The absence of the applicant's DNA in the area of the complainant's genitalia was sufficient to raise a reasonable doubt.

(ii) The jury found the applicant not guilty on the occasions when only the complainant gave evidence of the rape. The jury convicted the applicant of the two charges of rape, one of which ['Jack Flynn'] gave evidence about. [Jack] only gave evidence of one count of rape - digital penetration of the complainant's anus which had occurred shortly after the alleged vaginal penetration. Given the learned trial judge's further direction to the jury after its question, it is reasonable to assume that the jury convicted the applicant on the basis of [Jack's] evidence. His evidence could not support the count of digital vaginal rape.

(iii) [Jack] was not a credible or reliable witness. He gave a different account of what took place in the master bedroom to his brother, [Alex Flynn], to what he said in the VARE. He also said he saw the applicant push the complainant onto the bed in the master bedroom on two occasions. No one else gave this evidence. On the first occasion, he was looking in through the master bedroom window. The blind was down and the curtains drawn. He could not have seen in the window. On the second occasion, he said he was standing in the hallway looking in to the master bedroom. The jury could not have convicted the applicant on the evidence of [Jack] because he was not a credible nor a reliable witness.

Ground 2

There was a substantial miscarriage of justice under s 276(1)(b) of the Criminal Procedure Act 2009 because the jury fundamentally misunderstood the task required of it and His Honour's redirection on the meaning of 'beyond reasonable doubt' was a misdirection and, as a consequence, the jury was not disabused as to what was required of it.

Ground 3

There was a substantial miscarriage of justice under s 276(1)(b) of the Criminal Procedure Act 2009 because there were irregularities in the empanelment of the jury in that the informant was personally known to one juror. That juror was allowed to sit on the jury. The presence of a second juror who worked with ... the applicant's current partner, bolstered her reluctance to give evidence on behalf of the applicant.

Ground 4

There was a substantial miscarriage of justice under s 276(1)(b) of the Criminal Procedure Act 2009 because, over objection, the learned trial judge allowed [Jack] and [Alex]'s VARE tapes to become exhibits in the jury room.

Ground 5

There was a substantial miscarriage of justice under s 276(1)(b) of the Criminal Procedure Act 2009 because, after closing addresses, the learned trial judge directed the jury to disregard what [Jack] had told [Alex] about the alleged rapes because it was hearsay. That ruling denied the defendant the opportunity to effectively attack [Jack's] credit. The learned trial judge refused to allow the evidence in even subject to a warning about its nature as hearsay.

Ground 6

There was a substantial miscarriage of justice under s 276(1)(b) of the Criminal Procedure Act 2009 because when the applicant gave evidence, in the course of cross-examination, the prosecutor put a series of questions to the applicant inviting him to comment that [Jack] was wrong about key elements of his evidence. The questions called for the applicant to comment on the veracity of his own son. Defence objected and the questions then stopped. Such a line of cross-examination is simply not allowed. Such questions are a matter for the jury.

4 On 27 February 2018, the applicant also applied for leave to appeal against sentence, this time on a single ground. He complained that the sentence imposed was manifestly excessive.

5 For reasons that follow, we would refuse leave to appeal against conviction. We would, however, grant leave to appeal against sentence. We would allow the appeal, and resentence the applicant as set out later in these reasons for judgment.

6 In February 2017, the applicant and his wife had been married for about 10 years. By that stage, they had been separated for about three years, but were not yet formally divorced. They did, however, live quite separately and apart. They had four young children. The three eldest were their sons, 'Jack', 'Alex', and 'Oliver'. They also had a daughter, 'Emma'. The sons were aged 10, 8, and 5, respectively, and the daughter was aged 3.

7 Charges 1 and 2, on which the applicant was acquitted, each alleged that on 2 February 2017, he raped his wife. In the case of charge 1, the allegation was one of digital-vaginal penetration. In the case of charge 2, it was of penile-vaginal penetration. Charge 3, on which the applicant was also acquitted, alleged that on 3 February 2017, he raped his wife by penile-vaginal penetration.

Circumstances surrounding the commission of the offences set out as charges 4 and 5

8 In early 2017, the applicant and Ms Flynn agreed that the family home, that, at that time, he occupied alone, should be sold. They arranged for two real estate agents, separately, to attend the home in the early evening of Tuesday, 7 February 2017. The purpose was to discuss with them the details of the prospective sale.

9 On that evening, Ms Flynn had been caught up at work. She did not arrive at the house until about 5:15 pm. By that stage, the applicant, the four children, and the first estate agent, were all there awaiting her arrival.

10 At about 5:45 pm, the first estate agent left. At some stage before the second estate agent arrived, Ms Flynn sat down on the couch, next to the applicant. She suggested that they create a list of things to be done in connection with the sale of the house. According to Ms Flynn, the applicant was behaving in a peculiar manner. He was, at the time, resting his hand over his groin area, on the outside of his trousers. She asked him whether he needed to go to the toilet. He replied 'No, I'm horny because I can see your legs'.

11 Ms Flynn said that she then stood up. The applicant also arose from the couch and, according to his wife, 'reached out towards [her] and with a firm hand quickly grabbed [her] bum and gave it a bit of a squeeze'. The prosecution relied upon this conduct as an 'uncharged act', relevant as to context. Ms Flynn said that she moved away, sat down again, and continued to work on the 'to-do' list.

12 At about 6:30 pm, the second estate agent arrived. By that stage, the children were said to be crying. According to Ms Flynn, they seemed 'crazy', 'tired', and 'hungry'. Her evidence was that 'Home and Away'[2] was still being shown on the TV while the second estate agent was at the house. She said that the children were watching that program in the main bedroom.

13 At about 7:30 pm, shortly after the second estate agent had departed, Ms Flynn began packing up. She told the children to do the same. The applicant grabbed hold of her mobile phone and told the children that he wanted 'to talk to Mum in the bedroom.' Ms Flynn said 'no'. The applicant, however, continued on towards the master bedroom, still keeping hold of her phone. That bedroom was located immediately adjacent to the front door.

14 Ms Flynn said that she followed the applicant into the bedroom, accompanied by their children. She told them 'come on, we've got to get the phone off Daddy.' Ms Flynn said that while in the bedroom, the applicant

was pushing against me while I was at the bed. [The applicant] put his hand up the front of my skirt and with his hand, touched my vagina over the top of my knickers. I was grabbing his hand, trying to pull it away. I was saying 'No.' I said 'No' more than once.[3]

15 According to Ms Flynn, while she and the children were all in the bedroom, her son, Alex, managed to retrieve her phone from the applicant. She said that the children then returned to the family room, and continued to pack up their belongings. She followed them into that part of the house, and told them that it was time to leave.

16 Ms Flynn said that she then went into the kitchen in order to pick up her keys from the kitchen bench. However, the applicant had, by then, already grabbed the keys and gone back into the master bedroom.

17 Meanwhile, the children left the house through the front door. They took with them their belongings, and began to load them into Ms Flynn's car. She said that she was not aware, at the time, that the applicant had, by that stage, locked the front door to the house. Her eldest son, Jack, later said that he was unable to get in. According to Ms Flynn, Emma could be heard crying from somewhere outside the house.

18 Ms Flynn said she went back into the bedroom in order to recover her keys. As she did so, the applicant suddenly pushed her face-down onto the bed. She said she resisted, and told him 'no'. She claimed that she continued to struggle as he attempted to pull down her underwear. After a number of unsuccessful attempts, he managed to slide her underwear down to her knees. He then tried to pull his own trousers down, but because Ms Flynn continued to struggle, he was unable to do so. However, he managed to pin her down.

19 Ms Flynn said that she felt the applicant's fingers rub along the front of her vagina. According to her, he then digitally penetrated her vagina for a second or so, saying 'oh you're wet, you want it.' Ms Flynn again said 'no.' This conduct gave rise to charge 4, the charge of digital-vaginal rape.

20 Ms Flynn said that after another brief struggle, the applicant again pushed her down onto the bed and penetrated her anus with his fingers. She resisted, and he withdrew his fingers. This conduct gave rise to charge 5, the charge of digital-anal rape.

21 After the applicant had removed his fingers from Ms Flynn's anus, he undid his trousers, and exposed his penis. She said, 'you know what this is? This is rape.' He replied 'it doesn't matter'. She said that although she could not see what was happening behind her, she felt his penis from behind, and it was erect. She described the applicant 'poking and rubbing his penis between my bum cheeks, it felt [like] he was trying to ... put it into my vagina but it didn't work ... ' This conduct was characterised by the prosecution as an 'uncharged act', once again relevant only as to context.

22 Ms Flynn said that at some point, Jack entered the bedroom. He had apparently gained access to the house through the laundry door, at the side of the property. In Jack's evidence, given by way of VARE and special hearing, he said that when he entered the bedroom he saw that the applicant had 'started to put his rude finger up Mum's bum.' He made no mention of having seen any earlier act of digital-vaginal rape. He said that he told the applicant to 'stop'. When the applicant saw Jack, he, at once, desisted. Jack said that he saw his mother then pull her underwear up. He said that he went to the front door and unlocked it. At that stage, Emma was still crying.

23 In the applicant's written case, it was submitted that the convictions on charges 4 and 5 should both be set aside as unreasonable, and unable to be supported, having regard to the evidence.

24 The applicant submitted, in particular (i) of Ground 1, that the absence of his DNA in the area of his wife's genitalia was, on its own, sufficient to have required the jury to have entertained a reasonable doubt. That submission was, self-evidently, devoid of merit. In the course of oral submissions before this Court, the applicant's counsel came to realise that and formally abandoned that argument. Nothing more need be said about it.

25 The applicant next submitted, by way of particular (ii), that it was important to note that the jury that had acquitted him on charges 1-3 but had, nonetheless, convicted him on charges 4 and 5. It was submitted, in the written case, that this apparent inconsistency between verdicts probably reflected the fact that Jack's evidence provided independent support for Ms Flynn's claims in relation to charge 5, but none in relation to charges 1-3. It was noted, however, that this made it difficult to understand how the jury had convicted on charge 4, in relation to which Jack had given no evidence at all.

26 Plainly, there were any number of difficulties with that particular submission. It was easily answered, as the respondent noted in its written case. Eventually recognising that this was so, counsel for the applicant formally abandoned any reliance upon this argument. Accordingly, once again, nothing further need be said about it.

27 Turning then to particular (iii), the applicant submitted that Jack's evidence lacked credibility. It was submitted that he was a wholly unreliable witness. In part, this was said to be because his version of events did not accord with what he was alleged to have told Alex on the night in question. More importantly, it was said that Jack's account differed in certain key respects from that of Ms Flynn.

28 In addition, counsel submitted that although Jack claimed to have been able to see into the master bedroom through the window, before he entered the house through the side laundry door, when police inspected that room, the blind was down, and the curtains drawn. Accordingly, so it was submitted, Jack could not have seen anything at all through the window, and his evidence must be false.

29 The respondent submitted that none of the matters raised in support of that argument cast any doubt upon the safety of the jury's verdict. Jack had explained that, although the blinds to the window of the master bedroom were down, and the curtains drawn, he was nonetheless able to see into that room through a small slit that had not been closed off. It was submitted that the jury were entitled to accept Jack's evidence in that regard.

Ground 2 - direction as to 'beyond reasonable doubt'

30 The applicant's written case attributed to the judge answers to several questions posed by the jury that bore no resemblance to what his Honour had actually said. The transcript makes that abundantly clear. The judge's answers were unimpeachable. This ground was formally abandoned within minutes of the commencement of oral argument. It should never have been pressed.

Ground 3 - failure to discharge individual jurors

31 In his written case, the applicant relied upon two, quite separate, matters in support of this ground.

32 First, it emerged, when the jury were empanelled, that a juror was acquainted with the informant in this proceeding. It seems that the police officer in question had been in charge of an investigation into an aggravated burglary committed at that juror's home. We were told from the Bar table that defence counsel had seen the juror smile at the informant, just as the juror was in the process of entering the jury box.

33 Having seen what occurred, defence counsel submitted that the judge should discharge that particular juror. That application seems to have been made pursuant to s 43 of the Juries Act 2000. It was said to be significant that the prosecutor at trial had not opposed that application.

34 The judge refused the application. His Honour said:

I am not satisfied that there is a reason, let alone a good reason, to discharge this juror. The fact that she knows, because of a previous complaint in relation to a completely unrelated matter of aggravated burglary where she as the complainant has had contact with the informant, that provides a basis for this application.

The police, as I understand it, evidence is not to be called into question. There is no suggestion in the defence response that there is any issue with the police investigation. The issues as between the parties relates to the witnesses - in particular, the complainant and her eldest son, and the observations made by the son as to certain sexual activity.

Thus, this seems to me, in my view, absolutely no basis to exclude her. She indicated that she did know some police officers and wanted to clarify whether that was a basis for applying to be excused. I indicated not, on that basis, and I am of the view that having given her the opportunity to, as with all the other members of the panel, the opportunity to apply to be excused because of an inability to bring a fair and open mind to this trial, she did not do so on that basis.

And in those circumstances, where others did, I am satisfied that she is a person who is a member of the jury and will approach her task as with any other member of the jury in the appropriate way, in accordance with my directions of law. So I do not intend to discharge that juror.

35 Counsel for the respondent submitted, before this Court, that his Honour's ruling refusing to discharge the juror was unimpeachable.

36 The second matter giving rise to Ground 3 concerns an incident which involved another juror. After empanelment, it came to light that this other juror worked at a retail outlet with the applicant's current partner. She had been listed as a prospective witness to be called to give character evidence on behalf of the defence.

37 Notably, it was the prosecutor, and not defence counsel, who objected to that particular juror remaining on the jury. Nonetheless, it is now said, on behalf of the applicant, that the continued presence of that juror had 'bolstered [the partner's] reluctance to give evidence on behalf of the applicant', thereby occasioning a miscarriage of justice.

38 Ultimately, the applicant's partner did not testify. No evidence was led before this Court as to why she was not called to give evidence at the trial. It was simply asserted from the Bar table that it should be inferred that this was, in some way, connected to her having discovered that a fellow worker happened to be a member of the jury.

39 The respondent submitted that this second limb of Ground 3 was as devoid of merit as the first limb of that ground. It was entirely speculative to infer that the applicant's partner may have been influenced, in some way, in her decision to refuse to give evidence, by the presence, on the jury, of her fellow employee.

40 The applicant next submitted that the judge had erred by permitting the VARE tapes of Jack and Alex to be tendered as exhibits, rather than merely being played to the jury. The tapes were tendered over the objection of defence counsel. That, of course, meant that they were available to the jury to view, as often as they wished, during the course of their deliberations.

41 It was submitted that there was a risk that the evidence given by the boys, in their VARE recordings, would be afforded undue weight. That would be to the detriment of the defence case, since the exculpatory evidence, including that given by the applicant himself, might be undervalued.

42 In that regard, counsel for the applicant drew attention to several decisions of this Court. He referred, in particular, to R v BAH,[4] R v Lewis,[5] and R v MAG.[6] These cases had all held that VARE tapes, and any transcripts of those recordings, should not ordinarily be received as exhibits. Nor should the jury be given unrestricted access to material of that kind during the course of their deliberations.

43 The judge ruled that, as a result of legislation, the position had altered since these cases had been decided. His Honour referred, in that regard, to s 29(4) of the Evidence Act 2008, and s 66 of the Jury Directions Act 2015. It was on that basis that he permitted the VARE tapes to be tendered as exhibits and, of course, allowed the jury to have unrestricted access to them during their deliberations. It is to be noted that his Honour refused a certificate sought by the applicant to allow an interlocutory appeal to be brought on this issue.

44 The respondent observed that s 223(1) of the Criminal Procedure Act 2009 specifically empowers a trial judge to provide documents to a jury in any form considered appropriate. Section 223(1)(i) makes it clear that the term 'documents' in that sub-section includes audio-visual recordings of evidence.

45 The respondent further noted that the judge had specifically permitted the jury to have with them during their deliberations, not merely the VARE tapes, but also the recordings of all the evidence given in the trial. That, of course, included the evidence given by the applicant.

46 The respondent submitted that, in these circumstances, the concerns raised in some of the earlier authorities, dealing with the risk that VARE tapes might be given undue weight, had no application.

Ground 5 - Judge's direction to disregard evidence of what Jack had supposedly told Alex about the events of 7 February 2017

47 In his closing address, defence counsel sought to attack Jack's credit by focusing upon what were said to be discrepancies between his evidence regarding the events of 7 February 2017, and Alex's account of what Jack had told him about those events.

48 To that end, defence counsel sought to rely upon two passages, specifically, in Alex's VARE.

49 The first involved Alex having described what Jack had said to him shortly after the events in question. According to Alex, Jack had told him that he had entered the house through the laundry door, and then gone into the master bedroom. In that passage, Jack made no mention of having first looked into the bedroom through the window, as he claimed in his VARE. This was said to be, in some way, damaging to Jack's credibility.

50 The second passage was, essentially, a reiteration of the first. Once again, the sparse detail of what Jack had said to Alex was supposedly detrimental to Jack's credibility.

51 Defence counsel sought to rely upon these two short passages in Alex's VARE, not because they differed materially from what Jack said in his own VARE, but rather, because Jack had said so little to his brother about what he had seen. This was said to cast doubt upon the credibility and reliability of his evidence.

52 The use, if any, to be made of these two passages became a contentious issue at several points during the trial. In the course of playing Alex's VARE to the jury, the judge intervened and told them that they were to disregard Alex's account of what Jack had said to him. His Honour directed the jury that the two passages in question were 'not evidence'. Plainly, he had in mind, without using the term, that they were hearsay. Accordingly, he directed the jury that when they considered Alex's evidence, they should confine themselves to what Alex, himself, had seen and done.

53 The same issue as to Alex's evidence arose when defence counsel sought an unreliability warning in relation to Jack, as a witness. That application had been based on Jack's failure to mention a number of matters to Alex, on the night in question, that he later, in his own VARE, had given evidence about.

54 In discussion in the absence of the jury, defence counsel accepted that he was seeking to rely upon Alex's evidence, regarding his conversation with Jack, in order to attack Jack's credibility. At this stage, both defence counsel and the prosecutor were, clearly, approaching the matter on the basis that Alex's account of his discussion with Jack was, somehow, inadmissible hearsay. The judge seems to have been of the same view. However, defence counsel indicated that he wanted the jury to be able to act upon this 'hearsay', with appropriate warnings.

55 The point arose again on the following day. Defence counsel pressed for the jury to be permitted to have regard to Alex's evidence, though he again conceded that a warning should be given as to its probative value. The judge invited him to formulate the direction that was sought. Defence counsel subsequently did provide a draft direction containing the warning in question.

56 As previously indicated, in the course of his closing address, defence counsel referred to Alex's evidence of what Jack had said to him as part of his attack upon Jack's credibility. He did so notwithstanding the judge's direction to the jury that they were to disregard these two passages in Alex's evidence.

57 At the conclusion of defence counsel's closing address, the prosecutor took exception to the argument that had been put to the jury regarding Alex's evidence, and how it might bear upon Jack's credibility.

58 The prosecutor then, and for the first time, raised a different point in opposition to defence counsel's submission to the jury. He argued that there had been a failure to comply with the rule in Browne v Dunn[7] in that it had never been suggested to Jack, in cross-examination, that his account differed materially from what he had told Alex about the details of the events of 7 February 2017.

59 This marked a shift from reliance upon the hearsay rule, to reliance upon non-compliance with Browne v Dunn as the basis for the jury being told to put aside Alex's evidence on this point. Defence counsel replied that he had been 'happy with what [Jack] told [Alex]. Everything [Jack] said suited me to ground.' This was because he had elicited from Jack that there had been no discussion of any kind between himself and Alex, or any of his other siblings, for that matter, on this subject. Accordingly, counsel submitted, he had not been obliged to go any further in order to comply with the rule in Browne v Dunn.

60 The judge indicated that he had already ruled that Alex's evidence on this subject was inadmissible, making it clear that he would not revisit that ruling. The prosecutor then stepped in and supported his Honour's earlier ruling. He submitted that the judge should say nothing more on that subject.

61 Defence counsel, somewhat aggrieved by this, replied that the entire case was 'replete with hearsay'. He thereby, impliedly, argued that a little more hearsay would do no great harm. He then, somewhat inconsistently, submitted that the two passages in Alex's VARE were admissible as an exception to the hearsay rule. He did not specify the particular exception that he had in mind. He next added that Alex's evidence involved 'a credit issue', no doubt reverting to his earlier argument that Jack's failure to outline in detail, in his discussion with Alex, what he had seen in the bedroom, somehow impinged upon his credibility.

62 The prosecutor again submitted that Alex's evidence was hearsay, and inadmissible. He reiterated that there had also been a breach of the rule in Browne v Dunn, which, he submitted, meant that the jury should be told, yet again, to disregard Alex's evidence on this issue.

63 The judge, in his charge to the jury, reminded them to disregard Alex's account of what Jack had said to him on the night in question. He told the jury that Alex's evidence on that subject was 'irrelevant' and, therefore, to put it entirely to one side.

64 The applicant submitted, in support of Ground 5, that he had wrongly been denied the use of a potentially powerful weapon with which to attack Jack's credibility.

Ground 6 - cross-examination of the applicant

65 The applicant submitted that he had been subjected to improper cross-examination by the prosecutor because he had repeatedly been invited to comment upon Jack's evidence. In that regard, the prosecutor had asked the applicant whether Jack had been 'wrong' about certain aspects of what he had said.

66 The applicant submitted that this form of questioning was closely akin to the type of cross-examination deprecated by the High Court in Palmer v The Queen.[8] There, the accused had been asked by the prosecutor whether he could proffer any reason why, in a rape case, the complainant should have told lies about him. It was held that such cross-examination was unfair, and that it had a tendency to reverse the onus of proof. Counsel submitted that, by analogy, the same should be said of the cross-examination in the present case.

67 The respondent submitted that the defence case had been conducted on the basis that Jack had always sided with his mother, and that he had lied about the events of the night in question. The applicant's own evidence could only be viewed as amounting to an attack upon Jack's credibility, implying that Jack's evidence was a complete fabrication.

68 Accordingly, so the respondent said, it was incumbent upon the prosecutor at trial to put the Crown case to the applicant so that he could comment upon it. This was part of the prosecutor's own duty, in accordance with the rule in Browne v Dunn.

69 It was noted that defence counsel had not objected to the prosecutor's cross‑examination of the applicant. Indeed, he had told the judge that he had no difficulty with the prosecutor phrasing the question as '[Jack's] wrong on your account?'

70 Clearly, whatever little remains of Ground 1 is, itself, devoid of merit. Though there are criticisms that might legitimately be levelled at parts of Jack's evidence, it was well open to the jury to accept his account.

71 There was ample evidence upon which the jury were entitled to find that charges 4 and 5 were made out. The fact that the applicant was acquitted on charges 1-3 does not cast any doubt upon the other verdicts. The acquittals were understandable. Ms Flynn's evidence in support of those earlier charges was vague, and somewhat equivocal, on the issue of consent. There was no such uncertainty with regard to her evidence as to charges 4 and 5.

72 Ground 3, concerning the refusal to discharge the two individual jurors, is equally without merit. The judge's ruling in relation to the first limb of that ground speaks for itself. It was, as the respondent submitted, unimpeachable. If anything, the applicant's argument in support of the second limb of this ground is even more tenuous. It is based upon nothing more than supposition, surmise, and conjecture.

73 Equally, ground 4, concerning the tender of the VARE tapes, is without substance. For the reasons put forward on behalf of the respondent, and set out above at [44]-[46], this ground is plainly untenable.

74 This takes us to Ground 5. It is something of an understatement to say that the debate that took place below, concerning the two passages from Alex's VARE, was confusing. Nonetheless, the following points can be made.

• The evidence upon which the applicant sought to rely, contained in the two passages from Alex's VARE, was not hearsay. It was evidence concerning what Jack had not said, rather than evidence of what he had said, tendered to prove the truth of what he had said. Accordingly, it was to be relied upon as original evidence, and provided it met the general test of relevance, was admissible.[9]
• Contrary to the prosecutor's submission, defence counsel was under no obligation to cross-examine Jack about any failure, on his part, to mention the details of the events in question in his discussions with Alex. That was because defence counsel had already elicited, from Jack, in cross-examination, that he had not discussed with his brother any of the events of the evening of 7 February 2017.

75 It follows that, technically, the judge should not have directed the jury to disregard the two passages in Alex's VARE that concerned his discussion with Jack. They should, instead, have been reminded that Jack had made no mention of what he had seen in the master bedroom when he spoke to Alex. Of course, the jury were well aware of that fact in any event as Jack's own evidence was that he had not discussed the events of that evening with his brother. Still, the jury could make what they thought of defence counsel's argument in that regard.

76 Of course, a misdirection to the jury as to how they were to view Alex's evidence could, in the right circumstances, have given rise to a substantial miscarriage of justice. However, in our view, it plainly did not do so in this case.

77 As a matter of common sense, we can hardly conceive of a jury taking a seriously adverse view of the credibility of a 10 year old boy merely because it transpired that he had not discussed the details of his father's anal penetration of their mother with his 8 year old brother.

78 The evidence of what Jack may not have said to his brother seems, to us, to have been of little weight when considering Jack's credibility as a witness. It was perfectly apparent, from Alex's VARE, that Jack had barely spoken to him at all on the night in question. He had merely described the process by which he had managed to enter the house. It is a far cry from the fact that Jack was reticent in his description of what he had seen and done to come to a conclusion, legitimately to be reached, that his evidence was unreliable, and should have been rejected.

79 In arriving at this conclusion regarding Ground 5, we have borne in mind s 276(1)(b) of the Criminal Procedure Act, which provides that this Court must allow an appeal against conviction if the appellant satisfies the Court that, as the result of an error in, or in relation to, a trial, there has been a substantial miscarriage of justice. As the High Court said in Baini v The Queen,[10] an error of this kind will constitute a substantial miscarriage of justice unless the error had no bearing on the result of the trial. We are satisfied that the judge's direction to disregard the two passages in question was, in the context of this case, innocuous and had no bearing on the result of this trial.

80 Finally, Ground 6 cannot be sustained. The cross-examination of the applicant was conducted in a manner that was carefully designed to ensure that the error identified in Palmer was not replicated. Nothing said or done by the prosecutor could have had the effect of suggesting to the jury that the onus of proof rested upon the applicant, and not the prosecution.

81 We would therefore refuse leave to appeal against conviction.

82 Dealing with the applicant's personal circumstances, the judge recognised his 'excellent work record', which he characterised as 'exemplary.'[11] His Honour also observed that the applicant was of good standing in the community, and noted that he had no prior convictions. He had the support of his parents, his brother, and a number of friends, some of whom wrote letters of support that were tendered on the plea.

83 Of the letters, the judge said that their contents

provide mitigating circumstances in terms of the absence of any prior criminal history. This, therefore, must be seen in that context and in the context of an isolated incident, with qualifications that I have made and which I am going to come to.[12]

84 The judge then turned to two forensic reports that were tendered on the plea. The first was prepared by a psychologist, Dr Roy Wyatt. He saw the applicant on four occasions in early 2018. He observed that the applicant presented with symptoms consistent with an adjustment disorder, with mixed anxiety and depressed mood. He said that the outcome of the trial would likely result in 'significant worsening of symptoms'.[13] He concluded that 'incarceration is likely to have a significant impact on [the applicant] and his mental health.'[14]

85 The second report was that prepared by Dr Lester Walton, a psychiatrist of vast experience. He saw the applicant on one occasion in October 2018. Dr Walton concluded that the applicant was suffering from 'a diagnosable depressive disorder.'[15] He noted, however, that that condition did not seem to be significantly aggravated as a result of his conviction. He also observed that the applicant exhibited a 'relatively minor ... cognitive deficit'.[16]

86 Dr Walton concluded that the applicant's condition 'could not be described as major, psychotic or very serious.'[17] He noted, however, that the applicant's 'conviction and incarceration has had a deleterious effect upon his mental health.'[18]

87 Counsel on the plea submitted that any sentence imposed ought to be moderated, in accordance with the principles laid down in Verdins.[19] He submitted that imprisonment would be more burdensome for the applicant than for others of normal health.

I am not satisfied that you are in a situation where, if you are currently suffering depression, it is anything other than an unremarkable consequence of your recent incarceration.[20]

89 The judge then turned to the objective gravity of the offending. In that regard, he first referred to R v Brown,[21] where Chernov JA (with whom Eames JA and O'Bryan AJA agreed) held, in line with previous decisions of this Court,[22] that the offence of digital rape should not be viewed as necessarily less serious than that of penile rape.[23] Of course, it was accepted in Brown, and is still the law, that the objective gravity of the offending must always depend upon the individual circumstances of the case.[24]

90 Turning to the specific circumstances of the offending in the present case, the judge commented that there had been a 'prolonged' lead up to what took place. He said that that lead up had involved several attempts at sexually touching Ms Flynn, without her consent.

91 The applicant had then taken Ms Flynn's personal belongings (her phone and, subsequently, her keys) in what was said to be an attempt to lure her into his bedroom. The offending was described as 'brazen', 'humiliating[,] and degrading'.[25] It was noted that the two rapes had caused great harm not just to Ms Flynn, but also to the children, and particularly Jack and Alex.

92 Despite being told by his wife that his actions amounted to rape, the applicant was undeterred. He desisted only when Jack came into the bedroom and intervened. The judge concluded that the offending 'represents a serious example of rape' and that a 'stern punishment must be imposed.'[26]

93 The judge said that general deterrence was the 'principal sentencing consideration'[27] to be taken into account. He noted, however, that he must also consider specific deterrence. However, he assessed the applicant's prospects of rehabilitation as 'good'.[28] His Honour then sentenced the applicant as set out above at [2].

94 With regard to Ms Flynn's victim impact statement, the judge characterised that document as 'restrained but telling.'[29] His Honour set out several passages from that statement, which detailed her feelings of guilt, stress, and humiliation about what had occurred. That was so, particularly with regard to the children having been exposed to the offending.

95 The judge also turned briefly to the victim impact statements prepared by Jack and Alex. The boys spoke of their fear of the applicant. Jack also spoke of the effect the offending had had on his schooling and social life, as he had not gone to school at all throughout 2017.

96 The applicant's overall submission was that the sentence on each of the two charges of rape, the order for cumulation, and the total effective sentence were all manifestly excessive. In support of that submission, counsel referred to his client's clean record, so far as prior convictions were concerned. He described the applicant as having 'led a blameless life until his current offending.' It was submitted that the judge appeared to have given the absence of any prior convictions little or no weight.

97 Likewise, counsel submitted that the judge had 'ignored' the applicant's good character (which was supported by the evidence on the plea) and, in particular, his strong employment history.

98 Further, it was contended that the judge had given no weight to the evidence of Dr Wyatt and Dr Walton. Counsel noted that neither of these witnesses had been cross-examined by the prosecutor on the plea. Yet, the prosecutor had proceeded to criticise their reports in her submissions before the judge.

99 Counsel next submitted that it appeared that both offences had been committed within literally moments of each other. It was submitted that this fact, of itself, warranted a high degree of concurrency. More specifically, it was said that the level of cumulation that had been ordered was out of kilter with current sentencing practice for offences of this character.

100 Counsel next submitted that the judge had given too much weight to the need for specific deterrence. There was nothing in the material to suggest that the applicant posed any further threat to any other woman, and particularly to his wife. In that regard, counsel even went so far as to submit that the judge had treated the applicant's plea of not guilty as an aggravating feature,[30] rather than as merely disentitling him from a discount for the utilitarian value of that plea.

101 Finally, counsel submitted that in the event that the sentencing discretion was found to have miscarried, and was therefore reopened, the following documents were relevant, with regard to the applicant's medical condition: an extract of the applicant's Justice Health record for the period of 24 February 2017 to 5 January 2020, a letter from the Cardiology Registrar at St Vincent's Hospital dated 14 March 2019, and results of a treadmill stress echo and an echocardiogram conducted by Central Victorian Cardiology on 6 December 2019.

102 The tenor of those records was that the applicant had an ongoing heart condition that resulted in him feeling dizziness and breathlessness following physical exertion. That was supported by the results of the treadmill stress echo. He had a device implanted in 2016, prior to the offending, to monitor that condition. The Justice Health record indicated that he also, occasionally, felt chest pain or tightness, which seemed to be alleviated when he took asthma medication, via a puffer.

103 The Cardiology Registrar's letter detailed past instances of the applicant having 'black[ed] out' after severe chest pain and breathlessness. That letter detailed the applicant had not suffered from any further episodes since being sentenced.

104 The respondent submitted that the individual sentences of 6 years on each charge of rape, the order for 2 years' cumulation, and, therefore, the total effective sentence, were all within range. In oral argument, counsel acknowledged that the sentence might be viewed as stern, but submitted that it could not be said to be 'wholly outside the range'.

105 Counsel submitted that the applicant had failed to demonstrate any remorse for his actions. Nor had he shown any insight into his offending. He had failed, in particular, to acknowledge the effect of what he had done on Ms Flynn and on the children. Counsel submitted that the judge

was correct to treat the applicant's lack of remorse, not as an aggravating factor per se, but rather as a matter relevant to the assessment of the need for specific deterrence.

106 In response to the applicant's submission regarding the supposed failure of the judge to give proper weight to his lack of any prior criminal history, counsel argued that his Honour had taken this into account. He had also taken into account the applicant's positive employment history and the evidence of his prior good character. This was reflected in the judge's assessment of the applicant's prospects of rehabilitation as 'good'.

107 Finally, with regard to the reports prepared by Dr Wyatt and Dr Walton, counsel submitted that they were of little utility in the sentencing calculus. They went no further than to note that the applicant had 'a diagnosable depressive disorder'. There was nothing particularly significant or unusual about such a conclusion.

108 In our view, the individual sentences of 6 years' imprisonment on each of the two charges of rape were within range. Sentences for rape have increased significantly in recent years. It can hardly be said that sentences of this order, imposed after a trial, were wholly outside the range reasonably available to the judge.

109 Of course, a total effective sentence of 8 years' imprisonment in respect of the applicant's offences would have to be described as stern. Counsel for the respondent fairly conceded that this was so. The question to be determined is whether, having regard to the particular circumstances of this case, that sentence was manifestly excessive.

110 Having carefully considered this matter, we are of opinion that this ground of appeal is made out. It seems to us that the judge's decision to cumulate a full two years of the sentence on charge 5 upon the sentence on charge 4 is, as the applicant rightly submitted, out of kilter with the way in which principles of cumulation ought ordinarily to apply in cases of this type.

111 In arriving at that conclusion, we note that the two acts of rape of which the applicant was convicted both took place within literally moments of each other. It is reasonable to infer, and there is no reason not to do so, that the time that elapsed between them was a matter of perhaps seconds.

112 In the past, there would have been applied to a case of this kind what has sometimes been called the 'one transaction rule'. That rule, as stated by Professor D A Thomas in his classic work Principles of Sentencing,[31] can be formulated simply. Where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent, rather than consecutive. The essence of the rule appears to have been that cumulative sentences are inappropriate when all the offences, taken together, constitute a single invasion of the same legally protected interest.[32]

113 That one transaction rule was regularly applied, in the past, to cover a sequence of offences involving a repetition of, essentially, the same behaviour towards the same victim, at about the same time. Of course, it was recognised that the fact that the two offences were committed simultaneously, or close together in time, did not necessarily mean that they amounted to a single transaction. Obviously, if there was more than one victim, the case for cumulation in such circumstances was all the greater.

114 In more recent years, the one transaction rule has come to be regarded as less of an inflexible precept, and more as a guideline, or limiting principle.[33] The practice now seems to be to charge almost every sexual act, even those committed within literally seconds of each other, as a completely separate offence. It may be that the reason for doing so lies in a misunderstanding of the principles laid down by the High Court in R v De Simoni[34] (and applied by this Court in R v Newman[35]), whereby matters that ought reasonably to be treated merely as aggravating factors are, instead, the subject of separate, and sometimes numerous, additional counts. Whether or not these cases have been misunderstood need not be further addressed at this point.

115 On any view, in cases of multiple sexual offending, even those which involve the same victim, and where the offences are closely associated in time, some level of cumulation is, today, very much to be expected. The Sentencing Act 1991, and its treatment of serious sexual offenders, supports that approach.[36]

116 Two acts of digital penetration, the first being vaginal and lasting a second or so, and the other anal, both committed within moments of each other, would normally be expected to result in a substantial degree of concurrency. Here, one third of the sentence imposed on charge 5 was cumulated upon the sentence imposed on charge 4. In the particular circumstances of this case, that is a high degree of cumulation. That, of itself, gives reason for pause.

117 There is no criticism to be made of the way the indictment was drafted in this case. It was entirely appropriate for the prosecution to bring separate charges of rape against the applicant, one vaginal, and the other, anal. Recently, in Director of Public Prosecutions v Mokhtari,[37] this Court commented upon the seriousness with which the offence of rape should be viewed.[38] However, each case must be considered in the light of its own particular circumstances. Here, the close proximity of the acts giving rise to each charge necessarily warranted a substantial degree of concurrency, which was insufficiently afforded to the applicant.

118 When considering other relatively recent decisions of this Court involving sentences for multiple sexual offences, all essentially committed at the one time, and against the same victim, it becomes apparent that there needs to be significantly less cumulation than the 2 years ordered in this case.

119 In Jurj v The Queen,[39] an appeal which involved two co- offenders, and multiple acts of rape perpetrated by each offender upon the one victim, this Court allowed a Crown appeal. It resentenced the two respondents to terms of 9 years and 6 months, and 12 years and 2 months, respectively. What is important, for present purposes, is that the two base sentences of 8 years and 6 months, and 9 years, respectively, each had, cumulated upon them, terms no greater than 6 months for each additional rape.

120 Of course, the limited degree of cumulation imposed in that case largely reflects the significant number of rapes that were being considered. Because there were so many offences, the totality principle played a central role in assessing the amount of cumulation that should be ordered.[40] Obviously, the greater the number of offences for which an offender is to be sentenced, the stronger will be the argument for moderating cumulation, if a crushing sentence is to be avoided.

121 In Di Giorgio v The Queen,[41] the applicant brought an application for leave to appeal against conviction and sentence on, inter alia, two charges of rape against a female colleague. The pair had been drinking in a hotel room with two other colleagues. The complainant became significantly intoxicated, and had to be placed into bed. She was aware of what was happening, but had been unable to move. When the applicant's colleagues left the hotel room to smoke, the applicant digitally penetrated the complainant's vagina, then lifted her head and penetrated her mouth with his penis, orally raping her to ejaculation.

122 Di Giorgio was sentenced to a term of 6 years' imprisonment on the charge of penile-oral penetration, which formed the base sentence. On the charge of digital-vaginal penetration, the applicant received a sentence of 3 years and 9 months' imprisonment, with 7 months cumulation ordered on the base. The appeal was dismissed.

123 Mulligan (a pseudonym) v The Queen[42] was another application for leave to appeal against conviction and sentence. The applicant in that case was convicted of, inter alia, two charges of rape against a former domestic partner. The applicant had barged into the room where the complainant had been sleeping. He told her that she was going 'to suck his cock'.[43] He then forced his penis into the complainant's mouth before swinging her body around, pushing her knees to her chest, and penetrating her vagina with his penis.

124 In the County Court, Mulligan was sentenced to 7 years' imprisonment on both the charge of penile-oral rape, and that of penile-vaginal rape. The 7 years on the penile-oral rape formed the base sentence. 2 years of the sentence for the penile-vaginal rape was cumulated on the base.

125 On the sentence appeal, Mulligan argued that the orders for cumulation on the rapes were manifestly excessive. The Court found no error in the individual sentences imposed, but held that 'given that the two penetrations were in effect part of a single continuing transaction, substantial concurrency was also called for.'[44] Leave to appeal against sentence was granted and the appeal was allowed. The individual sentences imposed by the court below were undisturbed. The orders for cumulation, however, were reduced. Relevantly, on the charge of penile-vaginal rape, the order for cumulation was reduced to 12 months.

126 In Zhao v The Queen,[45] the applicant had been convicted of, inter alia, three charges of rape. The complainant was a woman whom he was interested in sexually. After the complainant had told him that she was not interested in being his girlfriend, they began to argue. At some stage, it became physical, and the applicant pushed the complainant onto the bed, attempting to remove her clothing. She struggled throughout the altercation. At one stage, the applicant pushed the complainant onto the bed and penetrated her vagina with his penis. He then penetrated her mouth, and, again, her vagina, with his penis.

127 In the County Court, the judge imposed a base sentence of 8 years and 6 months' imprisonment on the initial penile-vaginal rape. Sentences of 8 years' imprisonment, with 12 months' cumulation, were imposed on both of the subsequent rapes.

128 Before this Court, leave to appeal against sentence was granted, and the appeal was allowed. It was held that the sentencing judge had erred in 'failing properly to apply both the principle of totality, and the approach to be taken to the 'one episode principle'.'[46] There had also been a concession by the prosecutor on the plea that the offending giving rise to the subsequent penile-vaginal rape had been a 'continuation'[47] of the first. The applicant was resentenced to 7 years and 6 months' imprisonment on the initial penile-vaginal rape, which remained the base sentence. On the penile-oral rape, he was resentenced to 6 years' imprisonment, with 6 months' cumulation. On the subsequent penile-vaginal rape, he was resentenced to 7 years' imprisonment, with 3 months' cumulation.

129 Likewise, in Mokhtari, a total effective sentence of 11 years for multiple rapes involving a single victim (together with a charge of false imprisonment) was increased, on appeal, to 13 years. However, it is significant to note that the orders for cumulation that were made for each subsequent rape, upon the base sentence of 9 years, were 6 months, and 12 months, respectively. Yet, unlike the present case, Mokhtari was not a 'single transaction rule' case.

130 In short, a sentencing judge should always strive to impose the sentence that is appropriate to each charge in a multi-charge indictment. The judge should deal with the principle of totality by making appropriate orders for cumulation. In some cases, it may be proper, and indeed necessary, to order little or no cumulation. That would be so where the offences are, basically, of the same order, and all committed at the same time, against the same victim.[48]

131 In the present case, which was a 'single transaction' case, if ever there was one, we consider that the order made for cumulation was excessive. The cumulation of one third of the sentence on charge 5 on the sentence for charge 4 was significantly out of kilter with the way in which most orders for cumulation are made in relation to cases of this type. The principle of equality of treatment warrants the intervention of this Court.

132 Accordingly, we will grant leave to appeal against sentence. We emphasise, however, that we do so solely on the basis that there ought to have been less cumulation ordered than the 2 years that the judge directed.

133 We consider that the sentences on each of charges 4 and 5 should be affirmed. However, we would set aside the order for cumulation made below and, instead, direct that 6 months of the sentence on charge 5 should be cumulated on the sentence for charge 4, which is the base sentence. That makes a total effective sentence of 6 years and 6 months. We would fix a non-parole period of 4 years.[49]

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Which aired at 7:00 pm, as we understand the position.

[4] (2002) 5 VR 517; [2002] VSCA 164.

[5] (2002) 137 A Crim R 85; [2002] VSCA 200.

[6] [2005] VSCA 47.

[8] (1998) 193 CLR 1; [1998] HCA 2 ('Palmer').

[9] That is not to say that silence can never, under any circumstances, constitute hearsay. Failure to speak, or act, may, rarely, be offered as evidence of the truth of what are sometimes described as 'implied assertions'. See the discussion of this issue in M Weinberg, 'Implied Assertions and the Scope of the Hearsay Rule' [1973] MelbULawRw 21; (1973) 9(2) Melbourne University Law Review, 268, 282-3.

[10] (2012) 246 CLR 469; [2012] HCA 59.

[11] DPP v Flynn (a pseudonym) (Unreported, County Court of Victoria, Judge Stuart, 20 November 2018), [42] ('Reasons').

[19] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[21] (2002) 5 VR 463; [2002] VSCA 207 ('Brown').

[22] R v Sheriff (Unreported, Court of Appeal, Tadgell, Callaway and Buchanan JJA, 19 March 1998), [12]; and R v Schubert [1999] VSCA 25, [11] (Brooking JA), [19] (Winneke P).

[23] Brown [2002] VSCA 207; (2002) 5 VR 463, 478 [57].

[24] Ibid. See, generally, DPP v Dalgliesh (2017) 262 CLR 428; [2017] HCA 41.

[30] This was notwithstanding the fact that the applicant had been acquitted on charges 1-3.

[31] D A Thomas, Principles of Sentencing (Heinemann Educational Books, 2nd ed, 1979), 53-4. See also, Sir Rupert Cross, The English Sentencing System (Butterworths, 3rd ed, 1981), 100-3.

[32] It should be noted that at common law, there was a strong view that consecutive sentences should never be imposed. See, generally, Castro v The Queen (the Tichborne claimant case) (1880) 6 App Cas 229, where the House of Lords traced the history of the law on this subject in upholding two consecutive terms of 7 years' imprisonment for entirely different perjuries, in circumstances were the maximum penalty for a single perjury was 7 years. See also, R v Blake [1962] 2 QB 377, where three consecutive sentences of 14 years' imprisonment for offences under the Official Secrets Act 1911 were upheld by the English Court of Criminal Appeal.

[33] R v Bagnato (2011) 112 SASR 39; [2011] SASCFC 161, 61 [83] (Peek J). See also R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115, 48-50 [52] where the New South Wales Court of Criminal Appeal postulated a test of whether the offences in question were 'distinct and separate', as the basis for justifying some cumulation despite the fact that each might have been described, in broad terms, as part of a single transaction. Finally, see Eves v Western Australia [2008] WASCA 7, [7] (Steytler P) where it was said that the 'one transaction rule' should be applied flexibly, and in such a way as to ensure that an offender was adequately punished for the totality of his conduct. This might justify some measure of cumulation, in any given case. See further, Arie Freiberg, Fox and Freiberg's Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 788-92, where it was noted that this rule 'provides no simple guide and is only one factor to be taken into account in arriving at a proportionate sentence'.

[34] (1981) 147 CLR 383; [1981] HCA 31.

[35] [1997] 1 VR 146. See, however, Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, 624 [46]-[50] ('Pearce').

[36] Sentencing Act 1991, ss 6E, 16(1A)(c).

[37] [2020] VSCA 161 ('Mokhtari').

[39] [2016] VSCA 57.

[40] See DPP v Grabovac [1998] 1 VR 664, 680 (Ormiston JA, Winneke P agreeing at 665, Hedigan AJA agreeing at 690). See also, Pearce [1998] HCA 57; (1998) 194 CLR 610, 624.

[41] [2016] VSCA 335.

[42] [2017] VSCA 94 ('Mulligan').

[45] [2018] VSCA 267.

[48] Cf Wheeldon v The Queen [2018] VSCA 344, where the applicant pleaded guilty to, inter alia, four representative charges of rape against the same complainant, all taking place within a 48 hour period. He was sentenced to 6 years on each charge of rape, with one 6 year term forming the base sentence. 2 years' cumulation was ordered on each of the remaining charges. The offending in that case was protracted and involved multiple separate and degrading acts against the complainant. See, further, Bolton v The Queen [2019] VSCA 21, where, on an indictment charging, inter alia, two charges of rape, sentences of 10 years and 12 years' imprisonment, respectively, were imposed. The latter term of imprisonment formed the base sentence, and 7 years of the 10 year sentence was ordered to be served cumulatively. The offending there was of an entirely different order to that in the present case, and involved rapes that, while committed on the same night and against the same complainant, were temporally and contextually distinct.

[49] We should make it clear that in arriving at these figures, we have taken into the account the additional medical material provided to the Court after the hearing, to be used for the purpose of resentencing the applicant.