1 The appellant, MC, pleaded guilty in the County Court at Melbourne to three counts of rape and one count of unlawful imprisonment. All offences occurred on 18 and 19 October 2008. The appellant was arrested on the morning of 19 October, made full admissions to the police and was remanded in custody. A plea was offered at the earliest opportunity, and the matter proceeded by way of hand-up brief at which he entered pleas of guilty.

2 The appellant's plea was heard on 29 June 2009 and adjourned to 3 July 2009 for further plea. On 8 July 2009, he was sentenced as follows:

The sentencing judge cumulated nine months of the sentences on counts 1 and 3 and six months of the sentence on count 4 upon each other and upon the sentence imposed upon count 2. That made a total effective sentence of seven years' imprisonment. His Honour directed that the appellant serve a period of four years and six months' imprisonment before being eligible for parole.

3 The appellant was sentenced as a serious sex offender pursuant to Pt 2A of the Sentencing Act 1991 in respect of count 3. His Honour declared, in compliance with section 6AAA of the Sentencing Act, that, but for the plea of guilty, the appellant would have been sentenced to a term of ten years' imprisonment with a non-parole period of seven years and six months.

4 The circumstances of the offending were outlined by the sentencing judge at [3]-[16] of his sentencing remarks. In short compass, they were these. The appellant and the complainant had been married for a number of years. They had two children, who at the time of sentencing were aged approximately 16 and 14 respectively. They had been separated for some eight or nine years. The complainant had a new partner with whom she resided.

5 In the complainant's statement, she summarised her relationship with the appellant in the following terms:

Obviously I never asked [MC] to do this to me. This is so out of character for him to do something like this. I have never seen him like this before. He and I are pretty good friends and get on better now than when we were married, but not in a sexual way.[1]

On the plea, it was submitted on behalf of the appellant that at the time of the offending, he had been living with the complainant and her partner at their home for some time and was actively involved in the care of the children.

6 On 18 October 2008, a Saturday, the appellant and the complainant were present at the house, drinking beer and conversing generally. The children and the complainant's partner were absent. The conversation, at some point, degenerated into an argument. The complainant slapped the appellant hard across the face. According to the complainant, that was when the appellant 'lost it'. He dragged the complainant into the master bedroom, struck her across the face and punched her to the left side of the forehead. No charges were laid in respect of these assaults.

7 The following then occurred. The complainant was forced onto the bed. The appellant pulled her pants down, removed her underwear and fondled her breasts and her vagina. He then inserted his fingers into her vagina, giving rise to count 1.

8 The appellant continued to hold the complainant down on the bed by putting his hand around or over her neck. He then forced his penis into her vagina and had sexual intercourse with her. At all times, the complainant was resisting and pleading for the appellant to stop. At different stages, she was crying. The appellant acknowledged that this act of sexual intercourse took place over a period of some time. The evidence does not establish precisely how long all of this took, but, at some stage, both the appellant and the complainant fell asleep. They slept through the night. This offending constitutes count 2.

9 Count 3 occurred at some stage during the rape which began on 18 October 2008 and was the subject of count 2. The appellant, at one time during the course of having sexual intercourse with the complainant, inserted his penis into her mouth. He then resumed sexual intercourse with her.

10 When the appellant and the complainant awoke on the Sunday morning, he proceeded to follow the complainant around the house. When she sought to leave the house, he took her by the hand and led her back into the bedroom. After he did so, he removed her pyjamas and forced her to have sexual intercourse again.

11 Count 2 therefore encompassed both incidents of penile/vaginal penetration that we have described.

12 The circumstances of count 4 were that, on the Saturday night, the appellant, having raped the complainant, kept hold of her top so that she could not get dressed and escape from him. Whenever she attempted to leave the bedroom, he followed her and prevented her from leaving the house. After both the appellant and the complainant had woken the following morning, he continued to follow her about and again prevented her from leaving.

13 After the rape which took place on the Sunday morning, the complainant asked the appellant if she could leave the house. He permitted her to do so and indeed, gave her the keys to his car. She left and immediately contacted the police. The appellant remained in the house until the police arrived and arrested him.

14 It is clear that the appellant was fully aware of the wrongfulness of his actions. He made unequivocal admissions to the police to that effect. When asked about his having detained her at the house, his answers were as follows:

Q 73: What happened when she tried to leave the house?

A: I just dragged her back. Took her by the hand and she just went back to bed and laid there. She tried numerous times to get out and I said 'Just stay there'. Had to try and think things what to do. Not like kill her or anything, just thinking 'How can I get out of this situation' when I've already you know I've already - done the damage.

Q 74: So is it fair to say that it appears that although she wanted to leave the house she wasn't allowed to. Is that a fair comment?

A: Yeah in a way yeah.

Q 75: Did you ever make any threats in relation to that?

A: I didn't threaten her, nuh, not at all. She wanted to use me phone to ring her daughter and that and I said, 'No, don't ring no one yet.' And I said, I had, just a bad situation got myself in, I don't know how to get out of it.

Q 76: Okay so ---

A: It wasn't till this morning when she put her jumper on and I said 'You might as well go down to the police station. Do you want to do that?' And she goes, 'Yeah' and at that stage I knew it was - was too far gone, really, to get out of it. I just sat there and waited.

15 In relation to the offending that was the subject of count 1, that offence, like the violence perpetrated by the offender, was not disclosed in the complainant's statement. It came to light only as a result of a question and answer in the record of interview.

Q91: Was there - both this morning and last night was there any other form of sexual intercourse that you undertook with Tracey?

A: Yeah I did put my penis in her mouth last night it comes back to me now.

Q92: Was that before or after you put your penis in her vagina?

A: That was before.

Q93: Which point was it. The night that it occurred, you've talked about - - -?

A: Yeah.

Q94: Fondling her breasts, pulling her pants off and fondling her vagina and putting your fingers in her vagina?

A: Probably 'cos of - 'cos she was fighting so much I pulled - we pulled out and then I did - yeah, I laid round the other way and - and she had her head over the bed and I inserted my penis in her mouth.

Q95: That was after you put your penis in her vagina?

A: Yeah, we took it out and then we changed and then that's pretty much - yeah, that's pretty much that part.

Accordingly, the appellant not only volunteered answers to the police upon which a specific charge was founded, but he also pleaded guilty to that charge. The fact that he did so was obviously relevant to the issue of remorse.

16 Having been granted leave to appeal, the appellant challenged the individual sentences imposed, the total effective sentence and the non-parole period on two grounds:

Ground 1: The learned sentencing judge erred in his consideration of the appellant's mental state.

Ground 2: The sentence imposed is manifestly excessive.

17 It was submitted that, although the sentencing judge had accepted that the appellant had suffered chronic depression following the breakdown of his marriage, and that his condition would make his imprisonment more burdensome for him, his Honour had erred in failing to accept that the appellant's psychological problems had any causative link to the offending. It was further submitted that, even though his counsel on the plea did not specifically draw the sentencing judge's attention to the relevant parts of Mr Patrick Newton's psychological report, wherein he opined that there might be a causal link between the appellant's psychological state and his offending, his Honour was bound to consider that possibility and explain why he rejected it.

18 In our view, there is no substance to that ground. It should be noted that the sentencing judge specifically asked counsel who appeared for the appellant on the plea whether he sought to rely upon the moral culpability limb of Verdins.[2] Counsel expressly disavowed any such submission. The transcript reads as follows:

COUNSEL: (Verdins) under paragraph 1 talks about the issue of moral culpability of the offending conduct. Now on the evidence that I have before the court and that I have tendered, in my submission that paragraph, on the evidence, doesn't appear to loom that large. Here (sic) is no connection made by Mr Newton directly between his mental state at the time and actually having a causative role in the offence, although Mr Newton does talk about problems that he has in relation to the way he copes with things.

It is difficult to precisely put much weight on the evidence that I have tendered on paragraph 1, depending on the view that your Honour takes of that report.

HIS HONOUR: It does not seem to me to suggest that there was a causal connection or a causation between whatever depression he was suffering at the time, symptoms of depression and the offending. There is nothing...

COUNSEL: That nexus isn't directly drawn by Mr Newton, I concede that. [3]

19 There are considerable difficulties, to put it mildly, in attempting to persuade this Court to act upon matters that counsel for the appellant expressly disavowed during the course of the hearing below. Ultimately, counsel who appeared for the appellant sensibly did not press this ground.

20 Putting to one side the forensic difficulties associated with a ground of this kind having regard to the way the matter proceeded below, the respondent submitted that there was no merit in the point in any event. Counsel referred to the observation of the sentencing judge that:[4]

(e) I am not satisfied on the balance of probabilities that that any psychological symptoms you experienced leading up to the criminal offending was such that it caused you to offend in the way you did or had any substantial impact on your criminal offending.

Counsel submitted that there was nothing Mr Newton's report that required or supported a different conclusion.

21 We agree. Having read that report, it is our view that his Honour was correct in his assessment. There is nothing in it that provides support for the argument relied upon, apart from a minor passage contained in one paragraph on page nine. The passage contains but a passing reference, and not one of such weight as would have justified the sentencing judge in finding that both limbs of Verdins[5] were satisfied, and not merely one.

22 The second ground of appeal was that of manifest excess. In relation to that matter, it should be noted that his Honour found affirmatively that the appellant had:[6]

• the support of his family and the two children of the marriage who intend to reside with him upon his release,

• was, if able to remain alcohol free, capable of being a contributing member of the community, and

• would serve his term of imprisonment under more difficult circumstances than the average prisoner, as a result of his significant depressive disorder.

The sentencing judge also found that hardship would attach to the appellant's children as a result of his imprisonment. The children had been put into care during the his period of incarceration, because their mother was unable to care for them by reason of her problems with alcohol.

23 Counsel for the appellant submitted that these factors, when taken together with the principle of totality, and considered in the light of current sentencing practice, demonstrated that the sentences imposed in respect of both maximum and non-parole periods were manifestly excessive.

24 It was submitted on behalf of the Crown that the sentencing judge had correctly taken into account all of those matters to which counsel for the appellant had referred, but in addition, had also taken into account the serious nature of the offending. It was submitted that the sentence imposed had to reflect the need for general deterrence, the number of counts to which the appellant pleaded guilty and the need to ensure adequate punishment for each offence.

25 This Court, in the recent case of Hasan v The Queen[7], gave careful consideration to the relevant principles that govern sentencing in relation to the offence of rape. The Court also considered the use that can properly be made of comparable cases and sentencing statistics. It commented upon and identified the appropriate sentencing range for offences of this nature.

26 In a joint judgment, Maxwell P, Redlich and Harper JJA considered a series of sentences imposed for rape when determining whether the particular case before them involved sentencing error. That case concerned the rape of a sleeping woman by a stranger who had unprotected sexual intercourse with her. There, the sentencing judge had imposed a sentence of six years' imprisonment for the offence. The appeal against sentence was allowed and a sentence of four years' imprisonment was substituted.

27 The Court referred to the relevant principles upon which sentencing ranges are capable of use by first instance and appellate courts. It said:

...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. 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.[8]

28 In Hasan the Court next examined the aspect of consistency of sentencing, a matter also dealt with recently by the High Court in Hili v The Queen[9], to which the Court in Hasan referred. In Hasan, the Court said:

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.

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, such inconsistency is 'regarded as a badge of unfairness and unequal treatment under the law'.[10]

29 In Hasan the Court also reiterated and relied upon the principles that had been established, a week or so earlier, in Hudson v The Queen:[11] In that case, the Court said:

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.[12]

30 In Hasan the Court reviewed a significant number of cases of rape and stated[13] that these were indicative of current sentencing practices for this offence in this State. It referred firstly to the cases of sleeping victims and then to offences that it classified as cases of violent rape. In that category, the references were:

• R v Schubert:[14] a plea of guilty to digital rape, which had persisted against the victim's resistance. The appellant was otherwise of excellent character and genuinely remorseful. The sentence of four years was viewed by this Court as 'high' but not manifestly excessive.

• R v Brown:[15] a violent, forcible rape by an offender with significant prior convictions for violence. The offence occurred while he was on parole. He pleaded not guilty. The rape 'was a terrifying and humiliating experience' for the victim. The sentence for rape was six years. A complaint of manifest excess was rejected by this Court.

• R v Mason:[16] a violent, forcible rape. The offender was of excellent character and had pleaded guilty. The rape sentence of three years was upheld by this Court.

• Director of Public Prosecutions v Fellows:[17] 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 of Public Prosecutions, the Court held that the sentence of three years' imprisonment, 'while lenient', was within 'the range of sentences properly available'. It noted that the Director had not contended otherwise.

31 Consideration of these cases, and of the sentencing principles for the offence of rape as discussed in Hasan,[18] reveals that the sentence imposed in this case was outside the range reasonably open to the sentencing judge in dealing with this offender for these offences. That is particularly so when it is noted that the sentencing judge indicated that he would have sentenced the appellant to a term of ten years' imprisonment with a minimum of seven years and six months but for his plea of guilty.

32 I was noted in Hasan[19] that, in a forthcoming Crown appeal against sentence, the Director of Public Prosecutions will be seeking a review of current sentencing practices for rape. While there may be changes as a result of such a review, and this appellant may turn out to have been fortunate to have had this appeal determined before that case is decided, this Court is bound by such sentencing practices as currently exist.

33 For these reasons, the sentences must be set aside. We would impose the following sentences:

34 We would order that count 2 be the base sentence and direct that six months of the sentences imposed on counts 1, 3 and 4 be served cumulatively upon count 2 and upon each other. That makes a total of five years and six months' imprisonment. We would direct that the appellant serve a minimum of three years and six months before becoming eligible for parole.

35 Pursuant to s 6AAA of the Sentencing Act 1991 we declare that, but for the plea of guilty, the total effective sentence would have been seven years with a minimum term of four years and six months.

36 We further declare that, pursuant to s 6F of the Sentencing Act, the appellant is to be regarded as a serious sexual offender in respect of count 3, and we direct that this be noted in the records of the court.

37 Pursuant to s 464ZF(b) of the Crimes Act 1958 an order is made for the retention of an intimate forensic sample.

[1] Page 15 of the plea of 29 June 2009.

[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269

[3] Transcript of plea of 29 June 2009, 34.

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

[7] [2010] VSCA 352.

[9] [2010] HCA 45.

[10] Hasan v The Queen [2010] VSCA 352, [47]-[48] (citation omitted).

[11] [2010] VSCA 332.

[12] Ibid [27]-[29] (citation omitted).

[13] Hasan v the Queen [2010] VSCA 352, [58].

[14] [1999] VSCA 25.

[15] [2002] VSCA 207; (2002) 5 VR 463.

[16] [2001] VSCA 62.

[17] [2002] VSCA 58.

[18] Hasan v The Queen [2010] VSCA 352.