CRIMINAL LAW - Sentence - Application for extension of time within which to seek leave to appeal - Fresh evidence - Victim impact statement described difficulty trusting men - Where victim married shortly after sentencing - Whether marriage demonstrated true significance of facts existing at time of sentence - Extension of time refused.

CRIMINAL LAW - Sentence - Application for extension of time within which to seek leave to appeal - Manifest excess - Totality - Total effective sentence of 11 years - Base sentence of 5 years and 6 months for rape - 2 years' cumulation for another charge of rape - Offences occurred within 10 minutes of each other, in same location - Where applicant pleaded not guilty - Significant criminal history - Background of family violence - Principal sentencing purpose of community protection - Extension of time refused.

1 The applicant was convicted of four charges of rape, one charge of false imprisonment and two charges of common law assault. He was acquitted on one charge of rape and two charges of false imprisonment. He was sentenced to a total effective sentence of 11 years' imprisonment, with a non-parole period of 7 years and 6 months, as follows:

2. Declared a serious sexual offender on charges 9 and 10

2 The applicant now seeks leave to appeal both his conviction and his sentence.

3 The applicant's single ground of appeal[4] against his conviction is that the guilty verdicts on charges 9 and 10 are inconsistent with the verdict of acquittal on charge 8. Charges 8, 9 and 10 were all charges of rape that were alleged to have occurred in the complainant's bedroom within around half an hour of each other.

4 The application for leave to appeal against sentence is based on two grounds of appeal:[5]

Ground 2:

Fresh evidence demonstrating that the complainant married two weeks after sentence was imposed throws a different light on circumstances which existed at the time of sentence.

Ground 3:

The order for cumulation in relation to Charge 9 is manifestly excessive; and in particular, it fails to give sufficient weight to the principle of totality.

5 The applicant also applied for an extension of time in which to file his notices of application for leave to appeal.

6 For the reasons that follow, we would refuse the applications for an extension of time.

7 The applicant's notices of application for leave to appeal were filed some 27 months out of time. He thus seeks an extension of time, which was opposed by the respondent.

8 The principles applicable to the application are uncontroversial and were summarised by this Court in Madafferi v The Queen.[6] In particular, it is necessary to consider both the reasons for the delay and the prospects of success of the application for leave to appeal.[7] We also observe that this Court has recently had occasion to stress the importance of compliance with the time limits imposed in relation to applications for leave to appeal, and the necessity for an application for leave to provide an adequate explanation for the delay.[8] We endorse those remarks.

9 In the present case the applicant filed two affidavits from legal practitioners explaining the delay in some detail. It is apparent that, in some measure, the delay was the result of delays within Legal Aid; in some measure it appears to have been the result of trial counsel's failure to prepare advice and documents in a timely fashion following the applicant's conviction; and in some measure it was a result of errors in the provision of documents and material to the applicant's new solicitors, including by the Victorian Government Reporting Service. Without wishing to suggest that any of these matters provides a justification for the delay in question, which on any view is inordinate, we accept that the extent of the delay was not of the applicant's own making. To the contrary, he gave early instructions of his intention to appeal. In those circumstances, the merits of his grounds of appeal assume greater weight.

10 However, as is apparent, we have formed the view that none of his grounds have merit. For that reason we would refuse his applications for an extension of time for leave to appeal against conviction and against sentence.

11 It is necessary to set out some detail concerning the events that led up to, and the events that constituted, charges 8, 9 and 10, as well as various features of the complainant's evidence.

12 On 20 April 2015, the applicant (aged 40) and the complainant (aged 20) met on an internet dating site. Over the next few days they exchanged hundreds of messages and spoke on the telephone. They met in person on 24 April 2015, and commenced an intimate relationship. After around a month, the complainant moved in with the applicant. On around 8 July 2015, the complainant became pregnant; the applicant was the father. The applicant found out she was pregnant on 27 July 2015.

13 The relationship was tumultuous and, on the complainant's account, marred by intimidation, threats and violence on the part of the applicant. Some of the offences with which the applicant was charged occurred in the course of the relationship. Eventually, in October 2015, the relationship ended and the complainant moved out.

14 On 5 November 2015, the date on which the conduct the subject of charges 8, 9 and 10 occurred, the applicant was admitted as a psychiatric patient at the local hospital. One of the doctors rang the complainant to ask her to come and get the applicant, which she did. She took the applicant home in her car. He asked her to come in for a cup of tea, and she went inside his house with him, voluntarily. The applicant made cups of tea and they sat on the couch and talked for about half an hour.

15 The complainant's evidence was that the applicant got up, grabbed one of her hands, and started firmly pulling her into his bedroom. He said something about having sex. The complainant said 'I don't think that's a good idea, we're not together.' The applicant said that sex was one of the best ways for them to start fixing their relationship, to which the complainant said again that they were not in a relationship. She said that she tried pulling back on his hand, but he kept pulling her into the bedroom. She said that she 'didn't really have much of a choice', and that it was 'more force than leading' her towards the bedroom.

16 The complainant also said that, while the applicant was pulling her into the bedroom, she again said that she 'didn't want to, it wasn't a good idea, that we weren't together'. She said she had repeated this 'a couple of times', but that he was ignoring what she was saying.

17 Once they were in the bedroom, the complainant's evidence was that '[o]bviously we took our clothing off', but that she did not remember 'that bit'. She accepted that the applicant removed his own clothes. She also accepted that her clothes were removed, but she could not remember whether she removed them, or whether the applicant had done so. The following exchange occurred during the complainant's cross-examination:

In any event, you got into the bedroom and I think you said you can't recall who got their clothes off first, is that correct?---I don't recall the undressing bit at all, actually.

All right?---I just remember after.

So [the applicant] certainly undressed himself all by himself, didn't he?---It wouldn't have been me, so yes.

You can't recall exactly who undressed you, whether it was you or [the applicant]?---I don't remember. He did undress me on a fairly regular occasion in situations like that, so it could have been him but---

All right?---I don't remember for sure.

So you're simply saying maybe you undressed yourself, maybe [the applicant] undressed you; it could have been either, is that correct?---It could have been, yes.

It's possible that you undressed - each of you undressed yourselves at the same time, isn't it?---Possibly, yes.

18 In re-examination, the complainant was permitted to refresh her memory by reference to her statement to police, in which she had said that the applicant had removed her clothes. At trial she did not unequivocally embrace that account. Rather, she said this:

That is what I thought would have happened, but because I couldn't remember off the top of my head I didn't want to say. But yes, that does - that is what I told the police and that does - that is what I thought would have happened.

19 After they were both undressed, the complainant's evidence was that the applicant was lying on his back on the bed, and then she 'climbed on to the other side of the bed and then he pulled me on top of him'.

20 Charges 8, 9 and 10 then arose from three incidents in the bedroom within a period of around half an hour.

21 In the first incident, the subject of charge 8, the complainant's evidence was that the applicant was lying on his back on the bed and, after she climbed onto the bed, he pulled her on top of him and they 'had normal sex', but 'the specifics of exactly who did what at that point I don't remember that well any more'. She said that she did not remember if she did anything to facilitate sexual intercourse. She did not think there was any kissing. As she sat on top of him, the applicant penetrated her vagina with his penis. In response to a question about her movements while she was on top of him, the complainant denied she was 'riding him'. She said she 'just kind of sat on top of him' until he ejaculated, at which point she 'rolled off'.

22 During the first incident, the complainant's evidence was that she said: 'This is a really bad idea, I don't think we should,' but 'that wasn't being listened to'. The complainant did not think the applicant said anything in response, he 'just kept having sex', but she agreed in cross-examination that she was saying those things as she was having sex with him. The complainant said that what she said during the first incident was similar to, but not the same as, what she had earlier said while she was being pulled into the bedroom.

23 Immediately after the first incident, the complainant tried to get off the bed to leave. The complainant's evidence was that she tried to leave, but the applicant stopped her. The applicant grabbed her wrist and pulled her back on to the bed, although it 'wasn't like ... a tug of war'. He 'jokingly' said that he was never going to let her go.

24 After the applicant had pulled the complainant back onto the bed, the second incident (the subject of charge 9) occurred, about 10 minutes after the first incident. The complainant was lying on her back, and he climbed on top of her and had sex with her again. The complainant stated in her evidence that she did not think she told the applicant not to have sex with her that time, because she was concerned that he might not let her leave. The applicant penetrated the complainant's vagina with his penis until he ejaculated. He then rolled to one side of the bed.

25 After the second incident, the applicant and complainant spoke for a few minutes before the complainant again told the applicant that she needed to leave. The applicant replied that he was never going to let her go. The complainant said she again attempted to leave but the applicant again stopped her, by grabbing her hand and pulling her back down.

26 The third incident (the subject of charge 10) occurred around 10 or 15 minutes after the second incident. The complainant was lying on her stomach (she could not recall if she started on her knees and was pushed down onto her stomach, or was only on her stomach). The applicant then penetrated her vagina with his penis from behind until he ejaculated. This did not last very long. During this time, the applicant kept hold of the complainant's hand, which she described as not being tight.

27 After the third incident, the complainant got up from the bed and told the applicant she was leaving. She was allowed to leave on this occasion.

28 At one point in her evidence, the complainant said that she had struggled against the applicant during one of the incidents, but not during a further incident, because she 'didn't see the point' and was worried about what the applicant might do if she 'didn't just go along with what was going on'. It was somewhat unclear whether her evidence was that she had struggled during the first incident or the second incident. The applicant contends it was the former. However, we consider that it would have been open to the jury to understand the complainant's evidence as being that she had struggled against the applicant during the second incident, rather than the first, and that she had not struggled against the applicant during the third incident.

29 In cross-examination, the complainant accepted that, during the three incidents, the applicant did not yell or make any threats of violence (other than refusing to let her leave, which she described as being said in a 'normal voice ... level-wise'). She also accepted that the applicant did not grab her 'very hard' and she did not sustain any bruising or similar injuries. Further, the complainant accepted that she was disappointed the relationship had ended and still cared for the applicant as her daughter's father and as a 'fellow human'. She denied making the complaints to gain an advantage in family law matters, noting that she would have already gone to the Family Court if that was her motive.

30 The complainant's evidence was that the sex was non-consensual. In contrast, at trial the defence was that the sex was consensual. Further, the judge quite properly instructed the jury that, even if they were satisfied that the sex was non-consensual, they also had to be satisfied that the applicant did not have a reasonable belief that the complainant was consenting.

The application for leave to appeal against conviction

31 Although the applicant seeks to have each of his convictions set aside, his appeal against conviction turns on a single ground, namely an inconsistency of verdicts between charge 8 and charges 9 and 10.

The applicant's submissions on inconsistency of verdicts

32 The applicant submitted that charges 8, 9 and 10 involved the same 'incident' or course of conduct. He submitted that the guilty verdicts on charges 9 and 10 were inconsistent with the acquittal on charge 8 and, accordingly, those convictions could not stand. He submitted that there was a 'factual' or 'logical' inconsistency between the verdicts returned by the jury on charges 8, 9 and 10, such that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion they did. He submitted that the present case was on all fours with R v JGVR:

[T]his is a case of factual inconsistency where the verdicts cannot stand together in that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion that [the charge on which the jury convicted] had been established beyond a reasonable doubt whereas at least a reasonable doubt existed in respect of all the other counts. Convictions on all the counts depended upon the evidence of the complainant being accepted as true beyond reasonable doubt. The jury's finding of not guilty on all but one count entailed a rejection of the complainant's account of the events said to have given rise to the counts ... [I]t was not open to the jury to be convinced beyond a reasonable doubt of the guilt of the applicant with respect to [the charge on which the jury convicted]. There is nothing in the complainant's evidence or the surrounding circumstances or in the evidence of other witnesses which gave any ground for supposing that the complainant's evidence was more reliable in relation to that count than it was in relation to the other counts.[9]

33 The applicant submitted that the prosecution case in relation to all of the charges depended upon the complainant's reliability and credibility, and that no reasonable jury could have made a distinction between the complainant's reliability and credibility regarding charges 9 and 10, on the one hand, and charge 8 on the other hand. He submitted that, had the jury believed the complainant's evidence, they would have convicted the applicant on charge 8. Having not been satisfied beyond reasonable doubt on that charge, the jury must necessarily have had a reasonable doubt in relation to charges 9 and 10. Thus, he submitted, the conviction on charges 9 and 10 should be set aside and verdicts of acquittal entered on those charges.

34 The applicant contended that, if he is successful in setting aside the conviction for charges 9 and 10, then all of his convictions ought to be set aside because they would have been based on jury deliberations that were not reasonable.

The respondent's submissions on inconsistency of verdicts

35 The respondent submitted that in the present context, where there was no issue that the sexual penetration alleged in relation to charges 8, 9 and 10 occurred, it was open to the jury to find that the prosecution had not proved beyond reasonable doubt the element concerning the applicant's absence of a reasonable belief of consent in respect of charge 8, but that all elements had been proved beyond reasonable doubt for charges 9 and 10. The prosecution pointed to the following matters concerning charge 8:

(a) there was no evidence that the complainant tried to leave after she was undressed or that she was effectively restrained or resisted having sex with the applicant;

(b) the applicant was not lying on top of the complainant or holding her hands or wrists;

(c) the complainant was seemingly not held in place while she sat on top of the applicant;

(d) after being pulled on top of the applicant, the complainant sat there until the applicant had ejaculated before rolling off and then trying to leave, thus she seemingly had an opportunity to leave, or at least resist having sex, but did not do so; and

(e) the complainant did not expressly tell the applicant that she was not consenting in those moments; she only expressed the view that having sex was unwise.

36 In light of those matters, the respondent submitted, the jury may have accepted that the complainant did not consent to sexual penetration during the first incident, and only agreed to have sex out of a fear of force. However, the jury may not have been satisfied that the prosecution had proved beyond reasonable doubt that the applicant did not reasonably believe that the complainant was consenting during the first incident. On this basis, the jury could return a verdict of acquittal.

37 In contrast, the respondent submitted, the circumstances of charges 9 and 10 were sufficient to permit the jury to be satisfied beyond a reasonable doubt both that the complainant had not consented and that the applicant did not reasonably believe that she had consented.

38 Thus, the respondent submitted, the three verdicts can be reconciled in a manner that is both logical and reasonable.

39 There was no dispute between the parties as to the relevant legal principles in relation to factually inconsistent verdicts. In order to succeed on this ground, the applicant must show that the verdicts on charges 8, 9 and 10 cannot stand, in that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the various verdicts.[10] The test focuses on logic and reasonableness.

40 It is well established that courts are reluctant to overturn a jury's verdict on the basis that it is inconsistent with another verdict rendered in the same trial. Thus, as Gaudron, Gummow and Kirby JJ said in MacKenzie v The Queen:

[T]he respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.[11]

41 The courts have recognised that juries 'cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them'. Sometimes juries 'apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law', so that, 'although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number'. Appellate courts therefore should not be too ready to conclude that, 'because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty'.[12]

42 Although there will be cases where the different verdicts are 'an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty', it is only where the inconsistency rises to the point that intervention is necessarily required to prevent injustice that the relevant conviction will be set aside. There are no 'hard and fast rules'; rather, whether particular verdicts are inconsistent will depend upon the facts of the particular case.[13]

43 Related to that final proposition, there is no general rule that, in cases where several offences depend upon the evidence of a single complainant, an acquittal on one or more counts compels the conclusion that the jury must necessarily have regarded the complainant as an untruthful witness, or that the complainant's credibility was undermined, in respect of the counts upon which it has returned guilty verdicts.[14] Thus, in MFA v The Queen, Gleeson CJ, Hayne and Callinan JJ observed that a verdict of not guilty 'does not necessarily involve a rejection of the complainant's evidence':

A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.[15]

44 Turning, then, to the applicant's ground of appeal against conviction, in our opinion it has no merit when regard is had to the principles just articulated. In short we consider that there is a proper way by which the verdicts may be reconciled.

45 On a charge of rape, the prosecution must prove not only a lack of consent by the complainant, but also that the accused did not reasonably believe that the complainant was consenting. In the present case, where the sexual penetration the subject of charges 8, 9 and 10 was admitted by the applicant, there were thus two questions for the jury: did the complainant consent to the sexual penetration? And, if not, did the applicant nonetheless have a reasonable belief that she was consenting?

46 In relation to charges 9 and 10, the jury accepted that the complainant did not consent to the sexual penetration, and that the applicant did not have a reasonable belief that she was consenting. To reach those conclusions, they must have accepted the complainant as a credible and reliable witness. However, contrary to the applicant's submissions, it is not the case that, had the jury believed the complainant's evidence they would necessarily also have convicted the applicant on charge 8. Or, to put it differently, the fact that the jury acquitted the applicant on charge 8 did not mean that they must have disbelieved the complainant's evidence in relation to the first incident. That is because the jury could well have accepted the complainant's evidence concerning charge 8, so as to conclude that she had not consented to the sexual penetration that constituted that charge, but nonetheless concluded that, given the circumstances the complainant described, the applicant may have had a reasonable belief that she was consenting. That is, there is a logical basis on which the verdicts can be reconciled.

47 That this pathway of reasoning was open to the jury is apparent from the facts set out above. In particular, there were sufficient differences between the circumstances in which the first incident occurred, and the circumstances in which the second and third incidents occurred, that meant that it was open to the jury to reason that the applicant had a reasonable belief in consent for the first incident, but not for the latter two incidents.

48 First, there were important differences between the events that occurred prior to each of the three incidents.

49 The complainant's evidence concerning what occurred prior to the second and third incidents was to the effect that, before the applicant engaged in sexual intercourse with her, she had made clear that she wished to leave, but in each case the applicant had stopped her from doing so by grabbing her wrist or hand. There was nothing in her evidence that suggested any willingness to engage in sexual intercourse in relation to those incidents.

50 In contrast, the complainant's evidence about what she had said and done prior to, and during, the first incident was quite different. It may be accepted that the applicant had pulled the complainant into the bedroom by her hand, which bears some resemblance to the events that occurred prior to the second and third incidents. However, there are other, more significant aspects of the events prior to the first incident that involved conduct that the jury might have regarded as indicating to the applicant a willingness to engage in sexual intercourse.

(a) First, the complainant was unable to say who had removed her clothes once she was in the bedroom with the applicant, and she accepted that it was possible that she might have done so.

(b) Secondly, the complainant's evidence was that, after their clothes had been removed - that is, it seems, when both of them were naked - the applicant had got onto the bed and was lying down on his back, and then the complainant had climbed onto the bed next to him.

51 Secondly, there were important differences between what happened during each of the three incidents.

52 The complainant's evidence about the second incident was that the applicant had pulled her back onto the bed when she tried to leave and had restrained her by holding her wrists. His body had been on top of hers. As discussed above, it was open to the jury to understand her evidence as being that she had struggled against the applicant. In relation to the third incident, the complainant was on her stomach and the applicant penetrated her from behind. He had kept hold of her hand while he did so.

53 In contrast, the complainant's evidence about the first incident was that, after she got onto the bed next to him and he had pulled her on top of him, they had 'normal sex'. She said that she had 'just kind of sat on top of' him until he ejaculated. She did not say that he had restrained her or held her hand or wrist. Nor was the applicant's body on top of her.

54 In light of the above features of the applicant's evidence, in particular her evidence about how she came to be on the bed with the applicant, naked, immediately prior to the first incident, we consider it is entirely plausible that the jury considered that the prosecution had not proved beyond a reasonable doubt that the applicant lacked a reasonable belief that the complainant was consenting to the sexual intercourse the subject of charge 8. That pathway of reasoning reconciles the different verdicts on charges 8, 9 and 10.

55 That view of the jury's reasoning process should not be understood to say that a reasonable jury, properly instructed, could not have convicted the applicant of rape in relation to the first incident. Rather, our conclusion should be understood as reflecting the well-recognised ability of a jury to take a view of the facts that is beneficial to the accused, so as to conclude that the charge in question has not been proved beyond a reasonable doubt.

56 Because the applicant's challenge to the jury's verdicts for charges 9 and 10 has failed, it follows that his contention that his other convictions must be set aside must be rejected.[16]

57 For these reasons, we would refuse the applicant's application for leave to appeal against his conviction.

The application for leave to appeal against sentence

58 As we have already stated, the applicant relied on two grounds to support his application for leave to appeal against sentence. Ground 2 concerned fresh evidence concerning the complainant's marriage, which occurred after the sentence had been imposed. Ground 3 concerned the order for cumulation in relation to charge 9.

Ground 2: fresh evidence concerning the complainant's marriage

59 Ground 2 is that fresh evidence demonstrating that the complainant married two weeks after sentence was imposed throws a different light on circumstances which existed at the time of sentence. The fresh evidence consists of hearsay evidence from a 'close family friend' to the effect that the complainant had married in February 2019, and screenshots from the complainant's Facebook page.

60 The complainant had signed a victim impact statement dated 30 August 2018, which was tendered on the first day of the plea hearing, 5 September 2018. In that statement the complainant said that the few times she had dated since the offending she had struggled to trust, and that in the future the offences would affect her ability to trust others, especially men. She said that she struggled in social settings, spent most of her time at home, and had dated two men in the three years since the offences. The sentencing judge took the victim impact statement into account and quoted several passages from it.[17]

61 The applicant did not challenge the truthfulness of the complainant's victim impact statement, rather he submitted that the fresh evidence[18] obtained after the applicant was sentenced indicates that the basis upon which he was sentenced was incorrect. He relied upon the principles concerning the reception of fresh evidence on an appeal against sentence where that evidence 'demonstrates the true significance of facts in existence at the time of sentence'.[19]

62 The applicant submitted that the judge had sentenced him on the basis that the effect of his offending on the complainant had been 'extreme', and had affected her ability 'to date, trust and find love'. He submitted that the fresh evidence concerning the complainant's marriage indicated that that was not correct. That was because on 27 November 2018 - prior to the completion of the plea hearing on 16 and 17 January 2019, and prior to his sentencing on 18 January 2019 - the complainant had become engaged (it was unknown on what date that relationship started). Neither the Court nor the defence was informed of the engagement. Further, the complainant married on 2 February 2019, two weeks after the applicant was sentenced.

63 In contrast, the respondent submitted that the applicant had misconstrued the judge's remarks and that the fresh evidence does not shed any significant new light on the pre-existing facts which would warrant re-enlivening the sentencing discretion. The respondent submitted that the evidence reveals nothing more than the fact that the complainant had commenced a relationship with another man, whom she later married. It does not reveal, or cast doubt on, whether the complainant still has difficulty trusting men, or has difficulties in social settings. It does not reveal anything concerning the history of the complainant's current relationship or whether she had difficulties in developing and maintaining that relationship. The respondent also challenged the admissibility of the fresh evidence.

64 In our opinion this ground has no merit. In circumstances where there is no challenge to the truthfulness of the complainant's victim impact statement, and thus no suggestion that the matters it set out were incorrect, the judge did not err in relying on it. Further, the fresh evidence, even taken at its highest, does not require or permit an inference that, since the time she signed her victim impact statement, and before the imposition of sentence, the psychological and social impacts of the offending on the complainant had altered to such a degree that the sentencing discretion should be re-opened. We accept the respondent's submission that the Facebook posts do not shed any light on whether the complainant still has difficulty trusting men or has difficulties in social settings. They do not reveal anything about the nature or history of the complainant's current relationship. Nor do they reveal anything about whether she had difficulties in developing and maintaining that relationship.

65 Further, even if the psychological impacts on the complainant had reduced over time, that would not be a basis to re-open the sentencing discretion.

66 In light of these conclusions, it is unnecessary to consider whether the fresh evidence is admissible.

67 Ground 3 is that the order for cumulation in relation to charge 9 is manifestly excessive; and, in particular, that it fails to give sufficient weight to the principle of totality.

68 The applicant submitted that the order that two years of the sentence on charge 9 be served cumulatively upon the sentence on charge 10 is manifestly excessive given that these two offences occurred within a space of minutes, in the same location, and involved the same type of penetration. He also submitted that it is relevant that 'the jury found that the offence the subject of charge 9 occurred just minutes after consensual sexual intercourse between the applicant and the complainant'.

69 The applicant further submitted that, if a lesser degree of cumulation were to be ordered in respect of charge 9, a lower total effective sentence would result, and a lesser non-parole-period should be fixed.

70 In contrast, the respondent submitted that the degree of cumulation on charge 9 was not excessive. The respondent pointed out that the offending constituting charge 9 was serious and called for a significant term of imprisonment, as reflected in the maximum penalty for rape of 25 years' imprisonment. The offending occurred against a background of significant family violence and was aggravated by the fact the complainant was pregnant. The applicant's moral culpability was 'high'.

71 The respondent disputed the proposition that the offending the subject of charge 9 was preceded by consensual sexual conduct. Rather, it was submitted, it was more likely that the jury was not satisfied beyond reasonable doubt that the applicant did not reasonably believe the complainant was consenting, rather than finding the incident the subject of charge 8 was consensual.

72 The respondent submitted that specific deterrence and community protection were very significant in the applicant's case, given his considerable criminal history, particularly for violent offences committed against current and former domestic partners. Further, after November 2015, the applicant continued to victimise the complainant and his previous wife (a victim of separate offences) in 'extremely intimidating and violent ways', and in breach of bail. The judge had described the applicant's prospects of rehabilitation as 'guarded'. The respondent also submitted that general deterrence, denunciation and just punishment loomed large.

73 More specifically, in relation to cumulation, the respondent submitted that the judge was aware of the principles of totality and parsimony. The respondent submitted that some level of cumulation on charge 9 was required, to reflect its distinct criminality, and submitted that:

while Charges 9 and 10 occurred within about a quarter of an hour of each other, the incidents occurred successively - and did not comprise one continuous incident. Each act of penetration was punctuated by a lull before the victim was prevented from leaving and another rape occurred. Each time the applicant refused to let her go, [the complainant's] fear was heightened. The fact that the rapes involved the same type of penetration makes no difference. Charges 9 and 10 were separate and distinct offences, and needed to be treated as such. To account for the temporal proximity between Charges 9 and 10 and the overall criminality of the applicant's offending, the order for cumulation was appropriately moderated as is reflected in [the] degree of concurrency on Charge 9.[20]

74 The respondent also pointed out that, in relation to charges 9 and 10 (but not charges 1 and 2) the applicant fell to be sentenced as a 'serious sexual offender'. That required the Court to treat protection of the community as the principal purpose for which the sentence was imposed,[21] and required that the sentences were to be served cumulatively, unless otherwise ordered (thus reversing the ordinary presumption of concurrency found in s 16A). This, it was submitted, assisted in explaining the greater cumulation ordered in relation to charge 9, compared with charges 1 and 2. Furthermore, the respondent submitted, charges 1 and 2, having occurred earlier in the relationship between the applicant and the complainant, did not have the same aggravating features as charge 9, namely a history of family violence perpetuated by the applicant against the complainant.

75 The respondent submitted that the order for cumulation imposed on charge 9 reflected the nature and gravity of that individual offence, its distinct impact on the complainant, and the primacy to be given to community protection, denunciation, general and specific deterrence and just punishment. This degree of cumulation, it was submitted, does not infringe the principle of totality, and two years' cumulation on a sentence of five years for a serious example of rape is not wholly outside the range reasonably available to the judge.

76 In considering a ground of appeal based on manifest excess it is important always to bear firmly in mind that, in order to succeed on such an application, it is necessary for an applicant to establish that the sentence imposed by the judge was wholly outside the range available in the sound exercise of the sentencing discretion.[22] As Callaway JA observed in R v McCorriston, sentencing judges should be allowed great latitude in tailoring an appropriate total effective sentence, although they must, of course, fix the total effective sentence by reference to the principle of totality.[23]

77 Further, this Court has repeatedly emphasised that manifest excess is a difficult ground to establish. It is not enough that an appellate court might conclude that it would have imposed a different order for cumulation, or a different total effective sentence, from the judge: reasonable minds frequently differ as to appropriate sentences. Rather, the order or sentence must be so far outside the range of a reasonable discretionary judgment as to itself reveal error.[24]

78 In relation to cumulation, in Nguyen v The Queen the plurality recognised that the exercise of achieving an appropriate total effective sentence 'involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case'.[25] And in Pasinis v The Queen this Court said as follows:

The question of whether the order for cumulation was appropriate cannot be determined simply by looking at the proportion of the individual sentence that must be served. While the proportion of 60 per cent may appear high, it must be remembered that there are no minimum or maximum proportions. The duty of the sentencing judge is to impose an appropriate total effective sentence. That duty can be discharged in a variety of ways. One way is to moderate the individual sentences. Another - and preferable - way is to moderate the orders for cumulation.[26]

79 That is, cumulation and concurrency play an important role in assisting a sentencing judge to impose appropriate sentences for multiple offences involving distinct criminality, yet still achieve a total effective sentence that is consistent with the principle of totality. It is thus difficult to assess orders for cumulation in isolation from the totality of the offending and the total effective sentence imposed. Counsel for the applicant accepted as much in oral argument, and emphasised that her submission was that the total effective sentence is manifestly excessive.

80 Returning to the present case, it is plain that some degree of cumulation was necessary in relation to charge 9, and the applicant made no submission to the contrary. Rather, the debate centred on whether an order for cumulation of 2 years, leading to a total effective sentence of 11 years' imprisonment, resulted in a sentence which offended the principle of totality and was manifestly excessive.

81 Bearing in mind the discretionary nature of the judge's decision in relation to cumulation, and the fact that cumulation is not simply fixed in some objective sense, but may be used to achieve an appropriate total effective sentence that reflects the overall criminality of the offending, we are of the view that ground 3 of the appeal against sentence is not made out.

82 The total effective sentence of 11 years, imposed for four charges of rape, two charges of common law assault and one charge of false imprisonment, cannot be regarded as manifestly excessive. That is particularly so when regard is had to the following matters:

(a) the applicant did not plead guilty;

(b) the applicant had a significant relevant criminal history;

(c) there was a need for both specific and general deterrence;

(d) the offending the subject of charges 9 and 10 occurred against a background of significant family violence; and

(e) as required by s 6D(a) of the Sentencing Act 1991, community protection was the principal purpose when sentencing on charges 9 and 10.

83 Having regard to the above considerations, the sentences for each of the four rape offences - 4 years' imprisonment for charge 1, 4 years and 6 months' imprisonment for charge 2, 5 years' imprisonment for charge 9 and 5 years and 6 months' imprisonment for charge 10 - must be considered moderate.

84 The question whether the cumulation of 2 years' imprisonment for the sentence of 5 years for charge 9 is manifestly excessive must be addressed in the context of the above considerations. Viewed in that context, whilst that level of cumulation might, on first impression, appear high, it cannot be regarded as manifestly excessive, in the sense that it suggests that something has gone 'obviously, plainly and badly wrong in the exercise of the sentencing discretion'.[27]

85 In our opinion, it is readily apparent that the sentencing structure that the judge adopted to give effect to the principle of totality was to impose moderate individual sentences for the four charges of rape and to make appropriate orders for cumulation for charges 1, 2 and 9 to reflect the separate and distinct offending represented by those charges.

86 In that regard, we do not consider that the rape the subject of charge 9 was part of a 'single incident' together with the conduct the subject of charge 10. Rather, we consider that these were distinct incidents, involving distinct criminality. They were separated by at least 10 minutes, in which time the complainant sought to leave but was again prevented from doing so by the applicant.

87 It follows that the order for cumulation on charge 9 is not manifestly excessive if it is understood - as we consider the judge intended - as a mechanism by which she achieved an appropriate total effective sentence. The principle of totality required the judge to impose a total effective sentence which reflected the applicant's overall criminality. In accordance with that principle, it was open to the judge to arrive at a total effective sentence of 11 years' imprisonment by a combination of individual sentences and orders for cumulation. It may have been possible for the judge to have adopted a different sentencing structure to arrive at the same total effective sentence, which resulted in a lower level of cumulation for charge 9. However, the fact that the judge adopted a particular sentencing structure, rather than another structure that may have been available to achieve the same sentencing outcome, does not bespeak sentencing error.

88 It follows that, in our opinion, the total effective sentence is not manifestly excessive and neither are any of the individual sentences or orders for cumulation that gave rise to it.

89 In light of the above, we would refuse the applicant's applications for an extension of time in which to file the notices of leave to appeal.

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

[2] Contrary to Crimes Act 1958, s 38.

[4] In these reasons, proposed grounds of appeal are referred to as grounds of appeal.

[6] [2017] VSCA 302 ('Madafferi').

[7] Madafferi [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

[8] See, eg, Bolton (a pseudonym) v The Queen [2021] VSCA 117, [14]-[23] (Niall JA); Bolton (a pseudonym) v The Queen [2021] VSCA 237, [21]-[22] (Kyrou and Kennedy JJA); Longley v The Queen [2021] VSCA 288, [11]-[13] (Priest, Kyrou and T Forrest JJA); Ali v The Queen [2022] VSCA 31, [18], [20]-[22] (T Forrest, Emerton and Walker JJA); Cavanaugh (a pseudonym) v The Queen [2021] VSCA 347, [18]-[19] (Kaye JA, Maxwell P agreeing at [2], Walker JA agreeing at [204]).

[9] [2001] VSCA 8, (Buchanan JA, Callaway and Chernov JJA agreeing at [22]-[23]).

[10] MacKenzie v The Queen (1996) 190 CLR 348, 366 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35 ('MacKenzie'), quoting R v Stone (Court of Criminal Appeal (England), Lord Devlin, 13 December 1954).

[11] MacKenzie (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35 (citations omitted).

[12] MacKenzie (1996) 190 CLR 348, 367-8 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35, quoting R v Kirkman (1987) 44 SASR 591, 593 (King CJ).

[13] MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.

[14] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 618 [35] (Gleeson CJ, Hayne and Callinan JJ), 632 [89] (McHugh, Gummow and Kirby JJ); [2002] HCA 53 ('MFA'), discussing the effect of the High Court's earlier decision in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56. See also Booth v The Queen [2022] NSWCCA 113, [36] (Beech-Jones CJ at CL, Hamill J agreeing at [55], N Adams J agreeing at [65]).

[15] MFA [2002] HCA 53; (2002) 213 CLR 606, 617 [34]; [2002] HCA 53.

[16] See [34] above.

[17] DPP v Landale (a pseudonym) [2019] VCC 19, [7].

[18] That is, evidence that was not reasonably available to the applicant at the time of sentence.

[19] The applicant referred to the summary of principles set out in the judgment of Redlich JA, with whom Maxwell P and Neave JA agreed, in R v Nguyen [2006] VSCA 184, [36]-[37]. That summary was not in dispute and has been accepted in other decisions of this Court (see, eg, Rout v The Queen [2016] VSCA 126, [49] (Whelan, Priest and Beach JJA); Arnold (a pseudonym) v The Queen [2013] VSCA 298, [11] (Coghlan JA, Warren CJ agreeing at [1], Priest JA agreeing at [28])).

[21] Sentencing Act 1991, s 6D(a). Under s 6D(b) a court may, in order to achieve that purpose, impose a disproportionate sentence; however, no question of a disproportionate sentence was raised in the present case.

[22] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich, and Harper JJA); [2011] VSCA 157 ('Clarkson'); DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.

[23] [2000] VSCA 200, [13].

[24] DPP v Macarthur [2019] VSCA 71, [57]-[59] (Ferguson CJ, Kaye and Weinberg JJA); Clarkson [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA) ('Young'); Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA, Redlich JA agreeing at [26]).

[25] [2016] HCA 17; (2016) 256 CLR 656, 677 [64] (Gageler, Nettle and Gordon JJ); [2016] HCA 17.

[26] [2014] VSCA 97, [50] (Neave JA and Kyrou AJA) (citations omitted). See also DPP v Grabovac [1998] 1 VR 664, 677, 680-1 (Ormiston JA, Winneke P agreeing at 665, Hedigan AJA agreeing at 690).

[27] Young [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).