CRIMINAL LAW - Appeal - Sentence - Sentencing principles - Relevance of intoxication of offender - Review of authorities - Intoxication not ordinarily a mitigating factor - Limited scope of 'out of character' exception.

CRIMINAL LAW - Appeal - Sentence - Current sentencing practice - Use of comparable cases and sentencing statistics - Consistency in sentencing - Identification of appropriate sentencing range - Role of instinctive synthesis - Sentencing discretion - Hili v The Queen [2010] HCA 45 and Hudson v The Queen [2010] VSCA 332 followed.

1 The appellant pleaded guilty to one count of rape and was sentenced to six years' imprisonment. He was also sentenced to six months' imprisonment for the summary offence of failing to answer bail. Three months of that sentence was directed to be served cumulatively on the sentence for rape. The sentences imposed can be summarised as follows:

2 He now appeals against the sentence, on a number of grounds. For reasons which follow, we would uphold the ground of manifest excess, but reject the other grounds. As will appear, the ground of manifest excess succeeds because the sentence imposed was beyond the range of sentences that was reasonably open to the sentencing judge, given current sentencing practices.

3 One evening in December 2005, the victim ('MK') was out drinking and dancing with her friends. In the early hours of the morning, she made the acquaintance of a male ('CJ') and, in due course, she and one of her female friends left with CJ. He took them to his friend's house, where the appellant was.

4 MK sat on a couch at the house. She was approached by a number of males, including the appellant, who tried to sit next to her and talk to her. She told them, quite abruptly, to go away because she was not interested. At one stage, CJ followed MK into the laundry, and kissed her. She became uncomfortable with his further sexual advances and walked off.

5 At about 4:00 am, MK was tired. She lay down on a mattress in the loungeroom and got under the blankets. She was fully clothed. She told the appellant and one other male to turn the light back on after one of them had turned it off.

6 The next thing MK recalled was waking up and feeling a male lying behind her having sex with her. She could feel his penis thrusting inside her vagina. As soon as she became aware of this, she pushed the male away. MK later became aware that the male had ejaculated inside her. She did not know who it was. It was dark and she could not see the man. She forcefully told him to go away, and he got up and went into the kitchen area. Another male tried to get into bed behind her and she told him to go.

7 MK's friend then came into the room, and MK told her that she had woken up to find someone having sex with her. She said she wanted to leave. The two women walked out of the house. CJ ran after them and MK told him what had happened to her. She was crying. He said he was sorry for her, but made no admission.

8 Several days later the appellant made a statement to police, in which he said he did not know that one of the girls had been raped and that he had not done anything to either girl. He provided a DNA sample. The appellant's DNA subsequently matched DNA obtained from a swab taken from MK.

9 On 30 July 2006, the appellant was arrested and took part in a record of interview. He denied raping MK. He said he had been drunk on the night and 'couldn't remember nothing'. He was granted bail on conditions which included that he not attend any points of international departure. In breach of that condition, the appellant left Australia on 3 August 2006. An application to revoke his bail was made and granted on 1 September 2006. More than two years later, on 3 September 2008, the appellant was arrested in the United Kingdom and returned to Australia as an illegal immigrant.

10 Under this ground, the appellant contends that the sentencing judge took into account, when sentencing him on the rape count, his failure to appear in answer to his bail.

11 It was common ground that the criminal proceeding had been delayed by the period of two years during which the appellant was in the United Kingdom. In the reasons for sentence, her Honour made several references to the delay and the appellant's failure to appear:

• 'It is fair to say that your victim has suffered significantly over the past two years as a direct consequence of your conduct.'[1]
• 'Although you pleaded guilty at the first opportunity following your return to Australia, you caused a delay of about two years when you fled the jurisdiction.'[2]
• 'In assessing the weight to be given to your guilty plea, I take into account the following matters:
  • You caused a two-year delay when you fled the jurisdiction ...'[3]
• 'I accept that you are remorseful. In assessing the extent of your remorse I must take into account ... the fact that you decided to flee the jurisdiction rather than face the consequences of your actions. You did not voluntarily return to Australia.'[4]

12 In our opinion, there is nothing in the double punishment point. The judge was entitled - indeed, bound - to take into account the effect on the victim of the two year delay,[5] and the fact that it was the appellant's own conduct which had caused the delay. But there is nothing in her Honour's sentencing reasons to suggest that she treated the appellant's absconding as an aggravating feature of the rape offence. On the contrary, her Honour specifically pointed out to the prosecutor on the plea that the absconding was 'not an aggravating feature of the offence'.

13 Unsurprisingly, therefore, her Honour made no mention of the absconding when identifying the aggravating features of the offending:

It hardly needs to be said that rape must be regarded as a very serious offence, particularly having regard to the maximum applicable penalty. There are a number of aggravating features present in your case.

● You took advantage of [MK] while she was asleep in your cousin's home which you were minding. She had consumed a fair amount of alcohol.

● You did not use a condom. You ejaculated inside [MK], indifferent to the associated risks of pregnancy or transmission of disease.

In cases such as these, just punishment, general deterrence, denunciation and protection of the community are ordinarily the dominant sentencing factors.[6]

14 The failure to answer bail was a separate criminal act, properly warranting separate punishment. The appellant sought to escape criminal sanction for his conduct and evaded arrest for two years. This was a serious instance of the offence. In our view, it was well open to the judge in the circumstances to impose a six month sentence for that offence and to direct that three months of the sentence be cumulated on the sentence for rape. There was no element of double punishment.

15 As noted earlier, the appellant told police in his record of interview that he had been drunk on the night of the offending. On the plea, evidence was led from the appellant's sister that she had never seen him consume alcohol and had never been informed of him having done so. At best for the appellant, however, this evidence was of only limited relevance, since the appellant and his sister had not lived together since 2002. The rape was committed at the end of 2005, more than three years later. The appellant himself did not give evidence.

On this night in question, [the appellant] was looking after the house where this all happened on behalf of a family member. He had been ... drinking alcohol. He instructs me that he'd been consuming wine and that he also consumed some of the bourbon and coke that was purchased by the guests who arrived at the house. I asked him why he would make a statement ... where he voluntarily gave a DNA sample. He instructs me that he had no recollection of having done this and thought that the DNA sample would exonerate him. Of course, as it turned out, it implicated him ...

By way of explanation of his client's having left the jurisdiction, counsel added that he was 'ashamed to tell his family that he'd been consuming alcohol.'

17 Defence counsel invited the judge to 'view this incident as an aberration in an otherwise blameless life'. No submission was advanced, however, that the appellant's consumption of alcohol should be viewed as mitigating the seriousness of the offence. Counsel for the prosecution did, however, refer to some of the authorities dealing with intoxication (discussed below) and said:

I do not understand my friend's submission to urge upon this Court that there seems to be any mitigation by virtue of any amount of intoxication.

Defence counsel, in reply, did not dispute this statement.

18 In her sentencing reasons, the judge dealt with the issue of intoxication in these terms:

Your counsel has submitted that before the rape you had been drinking alcohol and that this was not your usual custom. You had been drinking wine and then bourbon and coke. As I said before, you told police you did not recall anything about that night because you were drunk. Your counsel suggested that you agreed to provide a DNA sample because you thought it would exonerate you.

...

Your conduct appears to be without explanation other than the possibility you must have acted whilst drunk.

In my judgment, your moral culpability is not reduced by reason of the effects of any alcohol you may have consumed.[7]

19 On the appeal, counsel for the appellant (who did not represent him on the plea) acknowledged that no submission had been made that the appellant's intoxication reduced his culpability. He submitted, however, that her Honour had proceeded to make an adverse finding on that issue and that it was therefore open to the appellant to attack the finding on appeal. To that end, counsel contended that the judge should have been satisfied that 'this was one of those cases where intoxication was a mitigating factor'. This was said to be so because:

• there was unchallenged evidence that the appellant was significantly intoxicated at the time of the offending, that he was not accustomed to drinking alcohol, and that he was a person of prior good character;
• there was no evidence that the appellant had previously behaved violently, lost his self-control or acted in any inappropriate sexual manner whilst intoxicated;
• there was no evidence to suggest that the appellant was in a position to foresee that he was likely to act in such a way whilst intoxicated, or to understand that he was predisposed to sexual violence whilst intoxicated.

20 It is notorious that intoxication of the offender is a common feature of violent offending in general, and of sexual violence in particular. Not infrequently, sentencing judges are faced with a submission that the offender's intoxication made him/her behave in a manner that was 'out of character' and that his/her moral culpability for the offending should be seen as lessened accordingly. As already indicated, that is the submission which was advanced on this appeal.

21 In the circumstances, it is timely to review the state of the law regarding intoxication as a sentencing consideration. As will appear, courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender's culpability. An 'out of character' exception is acknowledged to exist, but it has almost never been applied. On the other hand, it is recognised that intoxication can be an aggravating factor where the offender is shown to have had foreknowledge of how he/she is likely to behave when affected by alcohol.[8] No issue of that kind arises here.

22 The starting point for most modern discussions of the subject is Bradley,[9] where Lord Widgery CJ said:

This Court finds nothing in the case to indicate that that sentence was other than entirely correct. It is said that he was in drink. So he was. But the day is long past when somebody can come along and say "I know I have committed these offences, but I was full of drink." If the drink is induced by himself, then there is no answer at all. It is said it is out of character. So it was. He has a clean character. He had no previous convictions at all. It was said that he is a good son to his mother and he has a number of other skills as a citizen.

The plain fact is that on this afternoon he behaved himself in such a manner as to make it absolutely imperative that some suitable condign punishment should be imposed upon him. That was done and the appeal is dismissed.

23 This dictum was applied by the South Australian Court of Criminal Appeal in R v Lane,[10] by the Victorian Court of Criminal Appeal in R v Redenbach,[11] by the Queensland Court of Appeal in R v Rosenberger; ex parte Attorney-General (Qld)[12] and by the Western Australian Court of Criminal Appeal in De Jesus.[13] In Redenbach,[14] the Court of Criminal Appeal said:

Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence.[15]

24 In Rosenberger,[16] the Queensland Court of Appeal said:

... [I]t appears that ordinarily intoxication, whether by alcohol or other drugs, will not mitigate penalty. The courts deal with many cases involving offences, particularly of personal violence, said to have been committed by people who are drunk and sometimes drunkenness is put forward as an excuse for a rape, as it seems to have been here. The proper policy appears to be generally to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence.[17]

25 The 'out of character' exception was enunciated by the South Australian Court of Criminal Appeal in R v Sewell and Walsh,[18] as follows:

... At the common law the taking of drink was an aggravation both in relation to mens rea and as to penalty. The motto of the common law was qui peccat ebrius luat sobrius.[19] We have moved away from that concept as far as mens rea is concerned, but there are still many offences in which drink is an aggravation in relation to penalty. There are others in which it is not. For example a person under the influence of liquor who is otherwise of a blameless character may do something which is quite out of character and the liquor may be both an explanation and a factor in mitigation, but in other cases it may swing the penalty towards deterrence. In crimes of violence one may have some hope of putting rational arguments to deter a sober would-be assailant. That chance is much diminished if the assailant is under the influence of drink or drugs. Certainly an assault by a person under such influence is more frightening to the average person.[20]

26 The exception was likewise recognised by the New South Wales Court of Criminal Appeal in R v Coleman,[21] a case involving sexual violence. Speaking for the Court, Hunt J said:

The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character.[22]

In the case at hand, however, the offender had been an alcoholic over a long period of time and the violence which he had exhibited 'was sadly not out of character'.

27 In Victoria, the existence of the exception was accepted in R v Fletcher-Jones[23] and in R v Gordon.[24] But in neither case was the exception found to be applicable. In Fletcher-Jones,[25] the Court of Criminal Appeal (McInerney J) said:

It has been pointed out by this Court on many occasions that whilst being affected by alcohol may explain why an offence occurred, it is not a licence to commit crimes, particularly in the nature of these [violent sexual] offences.[26]

More recent appellate decisions in Victoria have been to much the same effect. In three successive decisions - R v Walker,[27] R v Laffey[28] and R v Groom[29] - the Court of Appeal acknowledged the existence of the 'out of character' exception but held that it did not apply to the case at hand.

28 A 1980 decision of Young CJ, which in effect applied the exception, has been treated as confined to its own facts. In Attorney-General v Davis,[30] Young CJ said:

Intoxication is, of course, not an excuse for crime. Sometimes, however, it does reduce the culpability of a particular offender. I think that it does in this case. There was no premeditation in this offence. It appears to have been a stupid act committed on the spur of the moment. I do not think the [offender] would have done it if he had not had too much to drink. He had not had any previous experience of sexual intercourse before the commission of this offence.

29 In Walker,[31] Hayne JA (with whom Southwell AJA agreed) set out this passage and said:

That case, which was an Attorney-General's appeal against sentence, concerned a young man who became intoxicated and committed rape. It is not a case in which I understand the Court to have been laying down any general principle about the significance to be attributed in the course of sentencing to the fact that an offender was intoxicated at the time of the offence. It was, as the passage from the judgment of Young CJ that I have cited makes plain, a decision in which the Court formed a view about the moral culpability of the particular offender which took into account the fact of his intoxication at the time of the offence.[32]

30 A few months earlier, in R v Argus,[33] Southwell AJA had likewise quoted Davis and said:

That observation does not, in my view, stand as authority for the proposition that the judge in the present case was obliged to regard the applicant's intoxication as a mitigating factor. There have been a number of cases since Davis where the Court has declined to regard intoxication as a mitigating factor. Some of them are referred to in Part C.17.7 of the Victorian Sentencing Manual. Where an innocent citizen is set upon and savagely attacked, it would, in my opinion, be a rare case indeed where a court would be persuaded to extend leniency to the culprit upon the basis that he was intoxicated.[34]

31 Nor - with the exception of Davis - have attempts to rely on intoxication in mitigation of sexual offending found favour in this Court. In R v Phillips,[35] the trial judge had found that the offender was drunk when he raped his victim. This Court held that the judge had not erred in refusing to treat the intoxication as a mitigating circumstance.[36] In Director of Public Prosecutions v G,[37] which concerned an offender's sexual abuse of his 14-year-old step-daughter while affected by liquor, Winneke P said:

Nor, in my view, is the [offender's] conduct to be explained, excused or ameliorated by the fact that his lust had been provoked by the liquor which had disinhibited him.[38]

32 Our research has identified only one other instance of the application of the 'out of character' exception. As will appear, the circumstances were atypical. In Stanford v The Queen[39] the New South Wales Court of Appeal (Rothman J, with whom McClellan CJ at CL and Hulme J agreed) said:

In this instance, the applicant became inebriated at his place with friends. He was consuming alcoholic drinks mixed by others and became uncharacteristically drunk to an extent that overwhelmed him. He went to bed and was awoken by the victims in search of Mr Davis. He then proceeded to prevent an assault on Mr Davis. The comment by his Honour the sentencing judge that the reaction to the disturbance and agitation by the victims was possibly affected by his inebriated state, is an inference with which it is difficult to cavil. The aberrant nature of the conduct supports the proposition that the applicant's overreaction was induced by the alcohol. The criminal conduct, however reprehensible, was an irrational response to the conduct of the victims, which irrationality was brought about by the effect of the alcohol. In those circumstances the intoxication is properly used as a mitigating factor.

Having come to that view, it cannot be stressed enough that the use of a firearm once intoxicated must be understood as conduct of the most serious and dangerous kind. The mitigation, in this case, does not derogate from that principle. The mitigation arises, not because the intoxication ameliorates the use of the weapon, but because the intoxication ameliorates what is otherwise an irrational reaction to the conduct of the victims, part of which reaction was the use of the weapon.[40]

33 Because the out of character exception has been so rarely applied, there has been almost no judicial exploration of the circumstances in which the exception might be applicable. It seems clear enough, however, that the circumstances must be quite exceptional before intoxication at the time of offending can mitigate the offender's moral culpability.

34 On ordinary principles, the offender would bear the onus of showing that he/she did not know what effect alcohol would have on him/her.[41] Given the widespread use of alcohol, and the fact that even a non-drinker would be well aware of its effects on a person who becomes intoxicated, this is doubtless a difficult burden to discharge. Moreover, an attempt to invoke the exception also carries with it the forensic risk that an investigation of the offender's drinking habits might lead to the conclusion that the state of intoxication was an aggravating rather than a mitigating circumstance.

35 In our opinion, the evidence led on the plea fell far short of discharging the burden of proof which rested on the appellant to show that this conduct was out of character. As pointed out earlier, the evidence given by his sister was essentially of historical relevance only. The most obvious, and persuasive, way for the point to have been made was for the appellant himself to give evidence as to his lack of experience with alcohol and as to its unexpected effect on him on the night in question. As noted earlier, however, he chose not to give evidence. In the circumstances, the judge was fully entitled to reach the conclusion which she did.

36 In arguing the ground of manifest excess, counsel conceded that the offending was serious and warranted a substantial term of imprisonment. The concession was rightly made, in our view. Although - as the Crown acknowledged - the offending was opportunistic rather than premeditated, the matters of aggravation identified by the judge were significant.

37 First, the appellant took advantage of his sleeping victim. His earlier advances having been rejected, he pursued his own sexual gratification at a time when she could neither protest nor resist. In circumstances such as these, raping an unconscious woman is an act of high culpability.

38 Secondly, the appellant had unprotected sex, and ejaculated inside the victim. This reckless behaviour created for the victim the risk both of unwanted pregnancy and of sexually-transmitted disease, and inevitably caused MK great anxiety on both counts.

39 There were, at the same time, mitigating factors on which the appellant could rely. The sentencing judge noted his plea of guilty, his remorse, the absence of prior convictions and his 'good general reputation in the community.' Her Honour also described at length the appellant's traumatic past. In 1990, when he was only eight, he and his siblings had had to flee Somalia in 1990, because of violent conflict. They spent five years in various refugee camps in Ethiopia and eventually reached Australia as refugees in 1998. He still does not know whether his parents, who remained behind in Somalia, are alive or dead. The judge was satisfied that the appellant's prospects for rehabilitation were reasonably good.

40 Rape is a very serious offence, as the maximum of 25 years fixed by Parliament indicates. As Winneke P said in R v Mason,[42]

It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms.

41 This case was far from the most serious of its kind. It involved no violence, no threats and no weapon. The victim's home was not invaded. On the other hand, advantage was taken of a sleeping woman. She was subjected not merely to an invasion of her body but to an invasion by way of unprotected penile penetration followed by ejaculation. While far from the worst, it was nevertheless a very bad case.

42 This sentence is just over 20 per cent of the maximum. Were it not for current sentencing practice, the aggravating features of the appellant's conduct would, in our view, indicate that a sentence of six years' imprisonment was merciful, even when full account is taken of his previous good character and his plea of guilty.

43 But current sentencing practice cannot be left out of account. On the contrary, it is an essential reference point in determining the available sentencing range in a particular case. The Sentencing Act 1991 (Vic) makes this perfectly clear.[43] Moreover, as a matter of basic fairness, an offender who decides to plead guilty does so in the reasonable expectation that he/she will be sentenced consistently with current sentencing practice.[44]

44 The first task of the sentencing judge when seeking to ascertain an appropriate sentence in a particular case is to assess the objective gravity of the particular offence. The maximum sentence prescribed by Parliament will give a definitive answer to the question where the most serious example of the offence in question stands in the catalogue of criminal behaviours. An examination of comparable cases will then assist the judge to make an objective assessment of the range of sentences applicable in cases where the gravity of the offence is of a similar nature to the particular offence for which the offender is to be sentenced; but the limitations of this exercise must be borne in mind.

45 Tables or graphs showing average or mean sentences across the full spectrum from the statutory maximum to nothing, while important, will also be of limited use because they cannot of themselves identify the appropriate range for an offence of the particular gravity of that for which the particular offender is to be punished. Indeed, their limitations are conveyed by the description given to them by the Sentencing Advisory Council of Victoria as 'snapshots'.

46 The tables, therefore, have a part to play; but they must be used with their limitations in mind. As to the limitations in using comparable cases, this Court said in Hudson v The Queen:[45]

To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a "like" case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of "like" cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.

47 Following an appropriate study of comparable cases, together with the application of the relevant sentencing principles, the judge will be in a position to identify the boundaries marking the range within which the particular sentence must fall. Up to this point, the exercise will have been a largely objective one, but with an element of the subjective introduced by the process of instinctive synthesis without which the case for which, and the offender upon whom, the sentence is to be imposed cannot be assessed. Beyond the point at which the boundaries are identified, however, the judge must exercise his or her discretion in deciding where within the range the particular sentence should fall.

48 It is contrary to the rule of law for there to be unjustified inconsistency of sentencing between offenders in comparable circumstances. As Mason J said in Lowe v The Queen,[46] such inconsistency is 'regarded as a badge of unfairness and unequal treatment under the law'. To this, Gleeson CJ added the following in Wong v The Queen:[47]

All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.

49 Consistency is to be achieved by the application of the appropriate range, and not from the application of single instances of 'like' cases.[48] The requirement that, for sentencing purposes, like cases be treated in like manner, will be met if they are placed within the same (appropriate) range. Unjustified inconsistency does not arise when like cases are so placed, even if the sentences imposed differ (albeit that they each fall within the proper boundaries) as between each other. The inconsistency about which Sir Anthony Mason and Gleeson CJ spoke arises when a sentence falls outside the range which is objectively open to the sentencing judge.

50 The notion of 'reasonable consistency' was considered by the High Court in its very recent decision in Hili v The Queen.[49] After setting out the above passage from Wong,[50] the majority (French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form.[51]

... the consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence. Consistency in sentencing federal offenders is achieved by the proper application of the relevant statutory provisions, having proper regard not just to what has been done in other cases but why it was done, and by the work of intermediate courts of appeal.[52]

52 Application of the relevant legal principles, together with an examination of 'like' or comparable cases[53] and the due employment of the process of instinctive synthesis, will direct the sentencing judge to the applicable range. At that point, the judge will exercise his or her discretion, again informed by that instinctive synthesis which is central to the sentencing task, and so reach the particular sentence to be imposed in that particular case. As this Court said in Hudson v The Queen:[54]

The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.

Sentences imposed in "like" cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the "instinctive reaction" when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of "current sentencing practices" which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

"Like" cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that "comparable cases" can only provide limited assistance to this Court. They may however be used in search of unifying principles.

53 In summary it may be said, therefore, that consistency in sentencing is not to be achieved by a search for the matching case or cases. It requires the placement of the sentence within the correct range. That task is a matter for objective determination, leavened only to the extent that the process of instinctive synthesis is properly employed at that stage, and by the application of the relevant principles. Once the correct range has been determined, however, the fixing of an appropriate sentence within that range is within the discretion of the sentencing judge. There is no 'right' or 'wrong' sentence so long as the proper boundaries are observed. Reasonable minds will differ on what precise sentence should be delivered. Accordingly, even if the offence under consideration were in its material facts to be matched with precision by another or others, the sentencing judge would still be bound to exercise his or her own discretion.[55] That might result in a matching sentence, or it might not: both former and present sentence being (on this hypothesis) within the range, any difference would be unimpeachable. There would, to adapt the words of Mason CJ in Lowe v The Queen,[56] be no 'badge of unfairness', and no 'unequal treatment under the law'.

54 The principles to which a sentencing judge must have regard include those laid down by relevant legislation. In Victoria, the most important repository of sentencing principles is the Sentencing Act 1991 (Vic). Section 5(2) of that Act prescribes the matters to which a court must have regard when sentencing an offender. First among these is the maximum penalty prescribed for the offence. The second is current sentencing practice.[57]

55 As the Court pointed out in CPD,[58] the ascertainment of current sentencing practice will usually require a consideration of comparable cases, balanced against a keen appreciation of the necessity to do justice in the particular case. These cases provide an important, though limited, guide to the range of sentences reasonably open to the sentencing judge.[59] We were accordingly assisted by the appellant having pointed to a number of cases said to be comparable, in which - as here - the victim was raped while asleep.[60]

56 Consideration of those cases, and of sentencing practice for the offence of rape as discussed in cases such as Director of Public Prosecutions v Maynard,[61] Director of Public Prosecutions v Patterson[62] and Director of Public Prosecutions v Moses,[63] reveals that this sentence was outside the range reasonably open to the sentencing judge dealing with this offender for this offence. Other decisions of this Court further illustrate the point.[64] (All of these decisions are summarised in Appendix 'A'.)

• Nous v The Queen.[65] The victim awoke to find the defendant penetrating her vagina with his tongue. The defendant was convicted of rape after a trial and sentenced to four years' imprisonment with a non-parole period of two years.
• Director of Public Prosecutions v Sibanda.[66] The victim awoke to find the defendant penetrating her vagina with his penis. He had ejaculated. He was convicted of rape after a trial and sentenced to six years' imprisonment, with a non-parole period of three years and six months. Like the present appellant, the offender had no prior convictions and had excellent prospects of rehabilitation. The judge found that he had taken advantage of a 'particularly vulnerable' victim, and his conduct had created the anxiety of sexually transmitted diseases.
• Coulson v The Queen.[67] The defendant digitally penetrated the victim while she was asleep. After a trial he was convicted of rape and sentenced to three and a half years' imprisonment, with a non-parole period of one year and three months.
• Simon v The Queen.[68] The victim woke up to find the defendant penetrating her vagina with his finger. The defendant was convicted on two counts of digital rape, following a trial, and sentenced to four years' imprisonment on each count. On appeal, those sentences were held to be manifestly excessive and sentence was reduced to three years on each count. The Court[69] referred to the fact that the offender had been intoxicated and said:

Alcohol, though not a circumstance of mitigation, seems likely to explain the applicant's behaviour on this occasion, which was quite out of character.[70]

• In R v Yankovski,[71] there was once again penetration of the victim while she was asleep. The offender was convicted, after a trial, of one count of rape and was sentenced to five years' imprisonment with a non-parole period of three years.

58 The following decisions of this Court do not involve sleeping victims but are indicative of sentencing practice:

• R v Schubert.[72] The offender pleaded guilty to digital rape. He had persisted against the victim's resistance. He was otherwise of excellent character and genuinely remorseful. The sentence of four years was viewed by this Court as 'high' but not manifestly excessive.[73]

• R v Brown.[74] This case involved a violent, forcible rape by an offender with significant prior convictions for violence. The offending occurred while he was on parole. He had pleaded not guilty. The rape 'was a terrifying and humiliating experience' for the victim. The sentence for rape was six years, the same as that imposed on the present appellant. A complaint of manifest excess was rejected by this Court.

• R v Mason.[75] This case also involved a violent, forcible rape. In this case, however, the offender was of excellent character and had pleaded guilty. The rape sentence of three years (50 per cent of that imposed on the present appellant) was upheld by this Court.

• Director of Public Prosecutions v Fellows.[76] Again, this was a violent, forcible rape. The offender, who was heavily intoxicated, had prior convictions for culpable driving and theft. He pleaded guilty to one count of rape. The victim had suffered great pain and long-term psychological consequences. On appeal by the Director, the Court held that the sentence of three years' imprisonment 'while lenient' was within 'the range of sentences properly available'. The Court noted that the Director had not contended otherwise.[77]

59 No submission on sentencing range was made to the judge, beyond the prosecutor's stating that immediate imprisonment was required. Her Honour's attention was not drawn to any comparable cases. The present case may be thought to exemplify the importance of properly-informed Crown submissions on range. Had the sentencing judge been given a submission on range which took into account the sentencing practices exemplified by these decisions, appellable error may well have been avoided.[78]

60 As we have said, but for the constraints of current sentencing practices and the requirement of consistency, we would have dismissed this appeal. This brief survey of recent sentencing decisions underlines, in our view, the need for a review of current sentencing practices for rape. We note that, in a forthcoming Crown appeal against sentence, the Director is seeking just such a review.

61 For these reasons, the rape sentence must be set aside. We would sentence the appellant to four years' imprisonment on that count. We would reimpose the sentence of six months' imprisonment for failure to answer bail, and make the same direction for cumulation. That gives a total effective sentence of four years and three months. We would fix a non-parole period of three years.

Coulson v The Queen [2010] VSCA 146

R v Simon [2010] VSCA 66

R v Nous [2010] VSCA 42

DPP v Sibanda [2010] VCC 605

R v Yankovski [2007] VSCA 259

R v Brown (2002) 5 VR 4623

DPP v Fellows [2002] VSCA 58

R v Mason [2001] VSCA 62

R v Schubert [1999] VSCA 25

[1] R v Hasan (Unreported, County Court of Victoria, Judge Morrish, 3 April 2009), [15].

[5] Sentencing Act 1991 (Vic) s 5(2)(daa).

[6] R v Hasan (Unreported, County Court of Victoria, Judge Morrish, 3 April 2009), [13]-[14].

[7] R v Hasan (Unreported, County Court of Victoria, Judge Morrish, 3 April 2009) [28], [31] and [32].

[8] See, for example, R v Hay [2007] VSCA 147, [18] (Buchanan JA), [33] (Maxwell P); R v Martin [2007] VSCA 291; (2007) 20 VR 14, 20 and the cases there cited.

[9] [2008] EWCA Crim 2746; (1980) 2 Cr App R (S) 12.

[10] (1990) 48 A Crim R 161, 165.

[11] (1991) 52 A Crim R 95, 99 ('Redenbach'); see also R v Howell [2007] VSCA 119; (2007) 16 VR 349, 355 (Nettle JA) and R v McRae [2008] VSCA 74, [15] (Vincent JA).

[12] [1995] 1 Qd R 677, 678 ('Rosenberger'); see also R v Dwyer [2008] QCA 117, [2] (de Jersey CJ).

[13] (1986) 20 A Crim R 402, 405 (Smith J).

[14] (1991) 52 A Crim R 95.

[16] [1995] 1 Qd R 677.

[18] (1981) 5 A Crim R 204.

[19] Let those who sin when drunk be purged when sober.

[20] R v Sewell and Walsh (1981) 5 A Crim R 204, 207 (emphasis added).

[21] (1990) 47 A Crim R 306 ('Coleman').

[22] Ibid 327; see also R v Gordon (1994) 71 A Crim R 459, 467 (Hunt CJ).

[23] (1994) 75 A Crim R 381, 387 ('Fletcher-Jones').

[24] (1994) 71 A Crim R 459, 467.

[25] (1994) 75 A Crim R 381.

[27] (Unreported, Victorian Court of Appeal, 31 May 1996) ('Walker').

[28] [1998] 1 VR 155, 162.

[30] (Unreported, Victorian Court of Criminal Appeal, 9 May 1980) ('Davis').

[31] (Unreported, Victorian Court of Appeal, 31 May 1996).

[33] (Unreported, Victorian Court of Appeal, 1 February 1996).

[35] [2000] VSCA 225.

[37] [2002] VSCA 6.

[38] Ibid [10] (Buchanan and Vincent JJA agreed).

[39] [2007] NSWCCA 73.

[40] Ibid [56]-[57] (emphasis added).

[41] See DPP v Arvanitidis [2008] VSCA 189, [34] (Redlich JA, with whom Buchanan and Nettle JJA agreed); R v Shafik-Eid [2009] VSCA 217, [30].

[42] [2001] VSCA 62, [8].

[43] Section 5(2)(b).

[44] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 549 ('CPD').

[45] [2010] VSCA 332, [32] (citations omitted).

[46] [1984] HCA 46; (1984) 154 CLR 606, 611.

[47] [2001] HCA 64; (2001) 207 CLR 584, 591 ('Wong').

[48] Hudson v The Queen [2010] VSCA [32].

[49] [2010] HCA 45.

[50] [2001] HCA 64; (2001) 207 CLR 584.

[53] CPD [2009] VSCA 114; (2009) 22 VR 533, [77]-[78].

[54] [2010] VSCA 332, [27]-[29].

[55] The search for a case matching precisely in all material particulars with that under sentencing consideration is often likely to be fruitless. Even if such a match exists, finding it would be enormously burdensome. And it cannot be that if, by chance, two matching cases were heard at the same time, and two sentences - both within the objectively determined range, but otherwise different - were subsequently handed down, the offender upon whom the more severe sentence is imposed would have a good ground of appeal.

[56] [1984] HCA 46; (1984) 154 CLR 606, 611.

[57] As to the relationship between the two, see CPD [2009] VSCA 114; (2009) 22 VR 533, [71]-[74] and [81].

[58] [2009] VSCA 114; (2009) 22 VR 533, [77]-[78].

[59] Hudson v The Queen [2010] VSCA 332.

[60] Nous v The Queen [2010] VSCA 42; DPP v Sibanda [2010] VCC 605; Coulson v The Queen [2010] VSCA 146; Simon v The Queen [2010] VSCA 66; R v Yankovski [ 2007] VSCA 259.

[61] [2009] VSCA 129.

[62] [2009] VSCA 222.

[63] [2009] VSCA 274.

[64] R v Schubert [1999] VSCA 25; R v Brown [2002] VSCA 207; (2002) 5 VR 463; R v Mason [2001] VSCA 62; DPP v Fellows [2002] VSCA 58.

[65] [2010] VSCA 42.

[66] [2010] VCC 605.

[67] [2010] VSCA 146.

[68] [2010] VSCA 66.

[69] Ashley JA (with whom Bongiorno and Harper JJA agreed).

[70] Simon v The Queen [2010] VSCA 66, [55].

[71] [2007] VSCA 259.

[72] [1999] VSCA 25.

[73] Ibid [14] (Brooking JA), [18] (Winneke P).

[74] [2002] VSCA 207; (2002) 5 VR 463.

[75] [2001] VSCA 62.

[76] [2002] VSCA 58.

[78] R v McNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, 6789, 691-2.