Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, ... every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. 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. ...

1. That passage is instructive in the present case. It must be borne steadily in mind that a verdict of not guilty on one or other of charges 1, 2 or 3 does not necessarily indicate any overall lack of confidence in the complainant's evidence, or signify that the complainant generally was disbelieved. Verdicts of not guilty on charges 1, 2 and 3 may simply be an indication that a juror or jurors required supporting evidence before being prepared to convict on the evidence of the complainant; so that, even though a juror (or jurors) might have considered it to be probable that the complainant's evidence was truthful and accurate, that juror (or jurors) might have required something additional before being able to reach a conclusion on a disputed issue beyond reasonable doubt.
2. Factors that might have made jurors cautious about reaching a conclusion beyond reasonable doubt in relation to the disputed fact of penetration might have included that the complainant showed uncertainty on some matters of detail; that she was shown to have a faulty recollection of some matters; and that she appeared to be more reliable about some parts of her evidence than about others. It will be remembered in that regard that - quite apart from what could be observed of her demeanour in various pieces of CCTV footage that were before the jury - the complainant was, on her own evidence, intoxicated by alcohol during much of the time that she was in the applicant's company, so much probably impinging upon the jury's assessment of the reliability of aspects of her evidence.
3. In our view, the contention that the verdicts of guilty in the present case are an affront to logic and reasonableness - given the jury's acquittal of the applicant on charges 1, 2 and 3 - is unsustainable. As to that, it is significant that the CCTV footage in Lonsdale Street, which showed some of the interaction between the applicant and complainant, at a time proximate to the alleged incident founding charge 1, did not distinctly capture any conduct that would establish the charge (albeit that it did not necessarily establish that the conduct had not at some point occurred), and none of the interaction between the applicant and complainant in the first taxi ride, or in the park, was the subject of any specific supporting evidence whatsoever.[24] By way of contrast, the complainant's evidence on charges 4 and 5 was in some important respects supported by the CCTV footage of the second taxi trip.
4. Counsel for the applicant contended that the CCTV footage from the taxi showed that there was consensual physical contact between the applicant and the complainant during the trip to Templestowe. The complainant's evidence that sexual contact was non-consensual, counsel submitted, was not accurate. By way of example, counsel argued that the footage showed that, at different times, the complainant kissed the applicant and allowed herself to be touched.
5. An objective viewing of the CCTV footage reveals that these latter two propositions appear to be true. The footage also depicts, however, a significant amount of physical contact by the applicant which quite clearly was not consented to by the complainant, including showing the complainant more than once removing the applicant's hand away from her genital region.
6. But more importantly - given the narrow disputed issue of fact that the jury had to determine - the footage clearly demonstrates that there was ample opportunity for the applicant to have penetrated the complainant in the manner alleged. Relevantly to charge 4, at different times the video appears to show the applicant's hand inside the front of MI's pants - despite the suggestion by the applicant's counsel that getting a hand in her pants would have been difficult (if not impossible). And, relevant to charge 5, the footage shows the applicant leaning across the seat towards the complainant with his right hand and arm behind her back, low down in the region of her buttocks. In that regard, we would specifically reject the contention that the footage foreclosed a conclusion that the applicant penetrated the complainant's anus with his finger. To our observation, given the positions in which the two were situated, such a manoeuvre would not have been impossible (or necessarily particularly difficult).
7. In our view, the jury may well have considered that the CCTV footage from the taxi materially supported the credibility and reliability of the complainant's evidence on the critical disputed facts. (Indeed, the jury may well have considered that the footage resolved any hesitation they had in unequivocally accepting the complainant's evidence, such hesitation having been engendered by her state of intoxication.) It was open to them to do so, and to find beyond reasonable doubt that the applicant had penetrated the complainant in the manner alleged.
8. For these reasons, the applicant has failed to persuade us that the verdicts returned by the jury are an affront to logic or reasonableness, or otherwise cannot be supported by the evidence. The proposed ground of appeal against conviction must fail.

The application for leave to appeal against sentence

1. Turning to the application for leave to appeal against sentence, on 23 August 2023 the trial judge sentenced the applicant, now aged 59 years,[25] to a total effective sentence of nine years and nine months' imprisonment, with a non-parole period of six years and three months, in accordance with the following table:

Pursuant to Part 2A of the Sentencing Act 1991, sentenced as a serious sexual offender on charges 6 and 7

1. In contending that the individual sentences imposed on each charge, and the orders for cumulation, were manifestly excessive and resulted in a total effective sentence that is too great and lies outside the permissible range of dispositions open to the trial judge, counsel for the applicant (in summary) relied upon the following factors:
   • first, the gravity of the rape offences (charges 4 and 5) fell 'somewhere between the low and middle of the range of objective seriousness for such offences', in circumstances where 'they were of relatively short duration' and there was an absence of a number of features which would usually be aggravating;[26]
   • secondly, the applicant had no prior convictions;[27]
   • thirdly, imprisonment will be more burdensome for the applicant as a consequence of his physical and mental health issues as well as the response to the COVID-19 pandemic;[28]
   • fourthly, the delay of two years between the applicant's police interview (12 August 2021) and sentencing (23 August 2023);[29]
   • fifthly, the applicant had made 'significant steps towards rehabilitation' and had 'very good prospects for rehabilitation',[30] such that community protection was 'best served by [him] continuing on that path of rehabilitation rather than through prolonging the period [he spends] in custody';[31]
   • sixthly, rape covers such a wide spectrum of criminal liability as to make the notional 'mid-range' very difficult to identify, so that the standard sentence applicable to charges 4 and 5 was an intangible concept that did not fall to be given too much weight in the sentencing exercise;[32]
   • seventhly, the principle of parsimony; and
   • eighthly, the principle of totality was important, given that there was a factual interrelationship between the offences arising from their temporal link, each offence having been committed within a period of about 20 minutes.
2. Counsel for the respondent submitted that, given the individual sentences were imposed following a trial, they were unremarkable. The sentences imposed for rape (charges 4 and 5) equated to 30 per cent of the available maximum, and those imposed on charges 6 and 7 represented approximately 20 per cent of the available maximum. Moreover, the orders for cumulation were 'modest', and did not result in a manifestly excessive total effective sentence.

1. The judge's reasons for sentence were careful and thorough.
2. Having noted the impact of the offending on the complainant as revealed by her victim impact statement, the judge turned to the gravity of the offending. She then cited a passage from Mokhtari,[33] and, having noted that 'there were many aggravating features which were not present in this case', noted two that were: first, the applicant's insistence that MI not be dropped off by the taxi first, placed the complainant in a position where she could not escape from the applicant's conduct; and, secondly, the offending conduct commenced shortly into the taxi ride and continued despite the complainant indicating both verbally and physically that she was not consenting.[34]
3. With respect to the charges of rape, the judge expressed the view that, although each was serious, 'they do fall somewhere between the low and middle of the range of objective seriousness for such offences'[35] (later observing that on those charges 'a sentence lower than the standard sentence is appropriate').[36] By way of contrast, the judge considered the conduct constituting charges 6 and 7 'was of a higher level of objective seriousness for offences of that type', the conduct on charge 7 being 'particularly serious'.[37]
4. The judge noted that, at age 57, the applicant had no prior convictions and no subsequent offending;[38] and, having set out in some detail the applicant's personal and employment history,[39] noted that until approximately 2016 the applicant's life was progressing in a very positive manner.[40] Between February 2021 and 13 July 2021, however, the applicant's life 'spiralled', in the context of underlying mental health issues, isolation from his support network and over-reliance on alcohol, related to his wife in the intervening years being diagnosed with lymphoma (and undergoing aggressive treatment); discovering that his wife was having an affair (and divorce proceedings commencing); losing his father; and his business coming to a 'standstill' due to the pandemic. The applicant drank heavily, and sought treatment for anxiety and depression.[41]
5. With respect to the applicant's physical health, the judge noted that various reports that she had received showed that the applicant suffers from mild coronary heart disease; poorly controlled type 2 diabetes; high cholesterol; sleep apnoea; episodic asthma; and anxiety and depression, for all of which he needs to receive ongoing treatment and medication.[42] And as to the applicant's mental health, the judge noted that three reports that she had received from psychologists revealed that the applicant presented with symptoms consistent with major depressive disorder and anxiety; had developed an adjustment disorder with depressed mood; and had also developed clinically significant symptoms of depression due to a maladaptive reaction to his life stressors.[43] Ultimately, the judge concluded that the applicant's physical and mental health issues (and the remaining limited restrictions in custody due to COVID-19) in combination meant that the applicant would find his time in custody 'more burdensome than someone without those same issues'.[44]
6. The judge noted that the delay in finalising the charges had caused the applicant 'ongoing anxiety' - which was a relevant matter in mitigation of sentence - 'the weight of this matter and the uncertain suspense as to the possible consequences hanging over [his] head since mid-2021'. Moreover, the applicant had taken significant steps towards rehabilitation in the meantime, and concluded that the applicant had 'very good prospects for rehabilitation'.[45]
7. Next, the judge discussed the effect of the various serious offender provisions (ss 6B(2)(a), 6D and 6E) and standard sentence regime (ss 5A(1)(b), 5A(3) and 11A), in the Sentencing Act 1991;[46] and, having referred to principles of just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community, observed that in the applicant's case 'the protection of the community is best served by [the applicant] continuing on that path of rehabilitation rather than through prolonging the period [he spends] in custody'.[47]
8. Finally, the judge stated that the sentence to be imposed on each of charges 4 and 5 is lower than the standard sentence for those charges. The judge said that she had considered the standard sentence as one of the factors in her instinctive synthesis of the relevant facts and principles, but, having regard to all of the matters she was required to take into account in sentencing the applicant, she was of the view that 'a sentence lower than the standard sentence is appropriate'. She was not, however, of the view that it was in the interests of justice to impose a non-parole period of less than 60 per cent.[48]

1. Contrary to the submissions of the applicant's counsel, we consider that the individual sentences on charges 6 and 7 are within the range of sentences open to the sentencing judge in the sound exercise of discretion. In particular, the offending embraced by charge 7 merited a sentence of the order imposed. The CCTV footage from the taxi shows the applicant on multiple occasions forcibly pushing the complainant's head down towards his exposed penis. On more than one of those occasions, he is seen to place one hand behind her head, and the other over her face, using substantial force in an attempt to achieve penile-oral penetration. We agree with the sentencing judge's characterisation of this offence as 'particularly serious'.
2. Moreover, taking into account the objective factors affecting the relative seriousness of the offence of rape,[49] we agree with judge's characterisation of the offending on charges 4 and 5 as being 'somewhere between the low and middle of the range of objective seriousness for such offences', albeit we would put it towards the lower end. That being so, individual sentences on charges 4 and 5 that are somewhat lower than the standard sentence of 10 years' imprisonment - all other things being equal - may be warranted, the standard sentence being, of course, but a legislative guidepost, based purely on the objective factors that affect the relative seriousness of the relevant offence.[50]
3. Although the judge's sentencing remarks cannot be faulted, having regard to the particular circumstances of this case, approaching the issue in the manner mandated by authority, we have concluded that the individual sentences on charges 4 and 5 are manifestly excessive. It was observed in Leimonitis:[51]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument, since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long. A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate. But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.

1. In the present case, although the offending was inherently serious, there were a number of mitigating factors:

(a) the conduct founding the two offences of rape occurred in the course of a single occasion, occurred close to each other in time, and each offence was of relatively short duration;

(b) the applicant did not use force over and above the force involved in the offending itself, and other aggravating features were also absent;[52]

(c) the applicant previously had been of good character until a number of factors beyond his control caused a downward spiral in his life to spiral out of control;

(d) imprisonment will be more burdensome for the applicant as a consequence of his compromised physical and mental health;

(e) there was a delay of two years between the applicant's police interview and sentencing which caused the applicant ongoing anxiety; and

(f) the applicant has 'very good prospects for rehabilitation'.

In these circumstances, we have concluded that the sentences imposed by the judge on charges 4 and 5 are beyond the range of those open to the judge in the sound exercise of the sentencing discretion.

1. In the result, we would set the sentences on those charges aside. In lieu, endeavouring to synthesise the circumstances of those offences and those of the applicant, and paying due regard to the factors going in aggravation and in mitigation, we would impose individual sentences of four years and six months' imprisonment on each of those charges.
2. As we have also indicated, however, we are not persuaded that the sentences on charges 6 and 7 are infected by error, so that they should be confirmed.
3. Attempting to accommodate the principle of totality in the resentencing exercise, we would make orders for cumulation that differ from those of the sentencing judge, so as to arrive at a total effective sentence of six years and six months' imprisonment, upon which we would fix a non-parole period of four years. In fixing the individual sentence on charges 4 and 5, and arriving at the orders for cumulation, we have had regard to ss 6D and 6E of the Sentencing Act 1991. Furthermore, in fixing the non-parole period we have had regard to s 11A(4)(c) of the Act.
4. It is convenient to reflect our overall intention in the following table:

Pursuant to Part 2A of the Sentencing Act 1991, sentenced as a serious sexual offender on charges 6 and 7

1. We would make orders granting the applicant leave to appeal against sentence; allowing the appeal; and resentencing the appellant in the manner set out above.

[1] Crimes Act 1958, s 40. The maximum sentence is 10 years' imprisonment.

[2] Crimes Act 1958, s 38(1). By virtue of s 38(2), the maximum sentence is 25 years' imprisonment; and by virtue of s 38(3), the standard sentence is 10 years.

[3] Crimes Act 1958, s 41. The maximum sentence is 10 years' imprisonment.

[4] Crimes Act 1958, s 42(1). The maximum sentence is 15 years' imprisonment.

[8] See [33]-[43], and [47]-[52], below.

[9] An edited version of the record of interview, which was audio and video recorded, was tendered as Exhibit AO. During deliberations, the jury was also provided with a transcript of the interview as an aid. In her Charge, the judge directed the jury that '[t]he evidence is the recording of the record of interview, not what is in the typed version'.

[10] See [24] above.

[11] See [29] above.

[12] Counsel cited R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 517-8 (Dixon J) and MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 365-8 (Gaudron, Gummow and Kirby JJ).

[13] Counsel cited M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494; Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728; Coughlan v The Queen [2020] HCA 15; (2020) 267 CLR 654; Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219; Irwin v The Queen (2018) 262 CLR 626; Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380; R v Baden-Clay (2016) 258 CLR 308; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; R v Hillier [2007] HCA 13; (2007) 228 CLR 618; MFA v The Queen (2002) 213 CLR 606; De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85; Gipp v The Queen (1998) 194 CLR 106; and Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439.

[14] During the course of deliberations, the jury asked a question whether charge 1 'related to any time on the street between leaving Men's Gallery through to getting into the first taxi or any time on 13 July [2021] or any time prior to existing the Men's Gallery'. In response, the judge told the jury that the charge 'relates to the incident which [MI] alleges occurred in the street in the period between leaving the Men's Gallery and getting into the first taxi'.

[15] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, 144 [36] ('Pell').

[16] Counsel had contended that, unless the CCTV footage is said to demonstrate that the conduct founding charge 5 was impossible, there is no merit in this Court viewing the CCTV footage for itself.

[17] Counsel who appeared for the respondent in this Court had not authored the written submissions.

[18] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) ('M').

[19] M, 492-3; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405-6 [11]-[14] (French CJ, Gummow and Kiefel JJ) ('SKA'); Pell, 147 [45]-[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[20] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 (Gaudron, Gummow and Kirby JJ) ('MacKenzie').

[22] MFA v The Queen (2002) 213 CLR 606, 618 [36] (Gleeson CJ, Hayne and Callinan JJ) ('MFA').

[24] In so observing, we do not ignore the potential for the complainant's observed distress to be independent supporting evidence of a general nature.

[25] His date of birth is 27 August 1965.

[32] McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).

[33] DPP v Mokhtari [2020] VSCA 161.

[49] See Sentencing Act 1991, s 5A(1)(b).

[50] Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 464-5 [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[51] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weinberg JA agreeing) (footnotes omitted).

[52] We do not quibble with the two matters that the judge identified as going in aggravation. See [83] above.