R v Ahmet; DPP v Ahmet [2009] VSCA 86

Majority verdict - Whether trial judge erred in not seeking submissions of counsel before instructing jury that it could deliver majority verdict - Whether applicant deprived of his right to unanimous verdict - Application refused.

Criminal law - Sentence - Director's appeal - Whether individual sentences, total effective sentence of 5 years and six months' imprisonment with non-parole period of 2 years and 9 months' imprisonment manifestly inadequate - Whether judge made insupportable finding of fact - Appeal dismissed.

1 I have had the advantage of reading in draft the reasons prepared by Ashley JA of the orders made by the Court on 23 April 2009. I agree in those reasons.

2 I also agreed in that the application for leave to appeal against conviction by Bariyow Ahmet should be refused, and the appeal by the Director of Public Prosecutions against sentence dismissed for the reasons given by Ashley JA.

3 On 23 April 2009, after hearing oral argument, the Court made orders, for reasons later to be published, refusing Bariyow Ahmet's application for leave to appeal against conviction, and dismissing an appeal by the Director of Public Prosecutions against sentence. The following are my reasons for joining in those orders.

4 On 18 September 2007 a jury in the County Court found Ahmet guilty of the following offences:

• Intentionally causing injury (Count 3).[3]

5 All of the offences of which Ahmet (conveniently, 'the applicant') was found guilty were committed on 12 October 2004. The victim was KE.

6 On 20 November 2007 the applicant was sentenced as follows:

7 The learned sentencing judge cumulated 3 months of the sentence on count 1 and 3 months of the sentence on count 3 on each other and on the sentence imposed on count 5. The total effective sentence was thus 5 years 6 months' imprisonment. The judge fixed a non-parole period of 2 years and 9 months. He made a declaration in respect of pre-sentence detention, and an order for the taking of a forensic sample.

8 The applicant sought leave to appeal against conviction; and the Director of Public Prosecutions appealed against sentence.

9 As finally pursued, applicant relied upon the following grounds:

1. The learned trial Judge erred in allowing the prosecution to lead evidence of first complaint from Senior Constable Jardine as its reception was not justified according to the requirement of R v Freeman.
2. The learned trial Judge erred in informing the jury they could proceed to a majority verdict without seeking submissions from Counsel as to whether it was appropriate in the circumstances to do so.
3. The learned trial Judge erred in providing the jury with a perseverance direction and a majority direction at the same point in their deliberations.

10 The circumstances can be briefly described. For the most part, what follows is the evidence adduced for the Crown.

11 The applicant, a man aged 31 in October 2004, had been in a relationship with the complainant, a woman then aged 22, between 2000 and about May 2002. Their friendship resumed in August 2003. The complainant denied that the resumed friendship was of a sexual nature. That denial was challenged by the applicant in a record of interview.

12 On 11 October 2004 the complainant visited the applicant at his Carlton flat. Both of them consumed alcohol. On her account, the applicant became alcohol-affected; but she did not. The applicant stated in his record of interview that both of them became alcohol-affected.

13 The complainant's further account was that she fell asleep on the couch. She awoke to find the applicant kissing her. She went to the kitchen table and commenced to write a note, telling him that his behaviour was unacceptable and that she did not want to see him again. She decided to write the note because she knew that he was drunk and out of control. The note, I interpolate, went into evidence. It was not the work of a shrinking violet.

14 The applicant continued to kiss her. She pushed him away and he fell to the ground.

15 The complainant was unable to leave the flat by the front door. The applicant had got up and was blocking the exit (count 1).

16 The complainant walked around the room. The applicant grabbed her hair.

17 The complainant took hold of the applicant's hair, and pulled it very hard. She asked if he would let her go. He said that he would, but when she let go of his hair he grabbed her hair again with one hand, and made to hit her with his other hand. She was put in fear by this action (count 2).

18 Then the applicant struck the complaint's left eye three times with an open hand, and put his hand to her throat, restricting her breathing.

19 The complainant fell to the floor. The applicant lay on top of her. He continued to hold her hair and to slap her. A slap to the right side of her face was relied upon to make out count 3.[5]

20 The applicant told the complainant to take her pants off and that if she did so he would stop hitting her. She took off her pants and underpants. He took off his pants. Whilst doing so he let go of her hair, which he had been holding back.

21 The complainant told the applicant that if he was going to rape her, he should use a condom. He said that he would, but he did not do so. He penetrated her with his penis, and continued to do so for 10 minutes or so.[6] She screamed. Each time she did so, the applicant hit her on the face. He also told her to shut up or he would 'fuck her up harder'.

22 The police arrived. They had been called by a neighbour. They knocked at the (security) door. The complainant called for help. The applicant struck her. He said that he wanted to have sex in another position. He penetrated her from behind.

23 The police could not gain entry straightway. Eventually, they forced the security door open. They knocked on the front door. The applicant opened the door, naked from the waist down.

24 What happened then is not clear. Certain it is that capsicum spray was used against the applicant, and that there was some kind of a struggle involving the applicant and one or more policemen. Clear also it is that the applicant suffered some injuries. One of the policemen admitted striking the applicant to the face as hard as he could.

25 Arising out of the events subsequent to the applicant opening the door, a charge was preferred that he had resisted a police officer in the execution of his duty. The applicant was acquitted on that charge, which was count 6 on the presentment.

26 Medical examination of the complainant revealed injuries. In substance, there was extensive bruising to her face, neck, lower lip and left thigh, an abrasion of the left cheek, a scratch to the right upper eyelid, a scratch abrasion to the back of the left arm, bruising beneath the left thumbnail, a graze abrasion to the left hip, and an abrasion on the top of the left foot. Most of those injuries, assuming that they were the consequence of the applicant's conduct, were not of direct relevance. For count 2 was constituted by a putting in fear, and count 3 relied upon a slap to the right side of the complainant's face.

27 Medical examination did not reveal any injury to the complainant's external genitalia or the vaginal walls.

28 The applicant disputed a good deal of what the complainant said. In particular, it was put to her, and she denied, that she and the applicant had engaged in consensual sex that night, in the course of which an argument had broken out and she had pulled his hair. She denied also that she and the applicant had argued about other men in her life - a Sri Lankan and an older man.

29 Concerning the probable nature of the renewed relationship between the applicant and the complainant, the evidence of several of the applicant's neighbours was that the complainant often spent time at the applicant's one-bedroom flat; and she and the applicant drank alcohol and argued. The complainant admitted sleeping overnight at the flat - but not that intercourse took place. There was also evidence that on an occasion not long before 12 October she had been removed from the premises by the police because she was affected by alcohol and had otherwise been behaving in an unsatisfactory manner. In all, the evidence suggested that the relationship was volatile, and that alcohol played a significant part in it.

30 The applicant did not give evidence. But he participated in several records of interview on 12 October 2004. In the first, which was short, he continually complained of being assaulted by police. In the second, he again complained of being assaulted. Then, concerning the events which involved the complainant, he stated that -

• On 12 October 2004 he and the complainant both drank alcohol, and got drunk.

• A friend came to his flat. At the complainant's request, he sent the friend away.

• The complainant, in a drunken state, began to undress. She engaged in a partial striptease for nearly an hour.

• The complainant lay on a couch. She was naked under a doona. He penetrated her with a finger. She enjoyed it. Then he took his pants off and they had sex.

• Whilst they were having sex, the police knocked at the door.

• He and the complainant had an argument. It preceded him putting his finger into her vagina. The argument had been about her relationship with a Sri Lankan man, and advice which an older man had given her about improving her sex life.

• At one stage - he variously said that, it was before they began to have sex and whilst they were having sex - he pulled her hair. He was telling her not to come to his flat any more.

• Far from the complainant asking him to use a condom, he volunteered that he did not have one.

• It was incorrect that the police had been kept outside the front door for 15 minutes.

31 The jury's verdict shows that it must have rejected substantial parts of the applicant's account.

32 A policewoman named Jardine was one of two officers who first arrived at the applicant's flat. She gave evidence that they rang the bell and knocked on the door. A woman asked 'who is it?' Her companion said that it was the police. Immediately, the woman's voice yelled out 'Help. Help me'. The voice appeared to be muffled. She and her companion yelled out 'open the door, it's the police'. They could not gain entry. Other police were called, and attended. That was about 14 minutes after her first arriving. The other officers forced open the security door. The internal door was then opened (it was common ground, by the applicant). Capsicum spray was used. There was a struggle particularly involving the applicant and one of the policemen. She went into the flat, which was darkened and affected by the spray. She observed the complainant.

... she was kneeling down, first of all are you able to describe what she was doing so far as you could observe?

---Yes, she was kneeling down on her shins, like, kneeling, and I believe she was sitting there like this, kind of sobbing or looked upset.

I think I said to her, 'Are you okay?' She said, 'No, not really.' I think I asked her if she was affected by the spray. She said, 'Yes.' I asked her her name and she said Kathleen. Mind you, the flat still had a lot of OC spray everywhere. I could hardly breathe, my eyes - I could hardly open them. So I said we would open the balcony doors and take a seat outside to get some fresh air.

She looked very distressed. Her eyes were all red and puffy. I noticed she had a small cut near her right eye. She was crying. She was wearing a black jacket and I don't remember what it was but she was wearing something white just at the top that looked either ripped or like a shirt that was unbuttoned and I could see the top of her breasts and she just looked really distressed, and just in the nature of it I immediately said to her, 'Have you been sexually assaulted?' She said, 'Yes, he's raped me.'

34 At the outset of the trial, counsel for the applicant submitted, by reference to the witness's statement - which was generally to the same effect - that the evidence of the complaint should be excluded, although the policewoman was able to give evidence of the complainant's apparent distress and injuries. The complaint, counsel submitted, had been elicited by a leading question.

35 The judge ruled that the conversation was 'admissible as part of the res gestae, if not a complaint'.

36 When charging the jury, the learned judge gave this direction -

You will recall when the police took the accused man from the flat, that is after he came to the door and was semi naked and they took him down after the wrestle he had with [one of the police officers], downstairs to - there was a divisional wagon, and then Jardine returned to the flat where she saw [KE], she said that [KE] was showing signs of distress and she asked [KE] whether she had been sexually assaulted, and [KE] said she had been raped.

That evidence is an exception to the ordinary rules of evidence which excludes self serving or hearsay evidence. One of the reasons for the exception in this case is that generally people who are compelled to sexual conduct complain about it, so the evidence is permitted to be given in order to test the consistency of the victim's conduct. It is for you to say in any particular case whether in all the circumstances the presence, or it may be absence, of a timely complaint, does constitute behaviour consistent or inconsistent with the happening of the offence.

There are a number of things you should bear in mind. It was not necessarily [KE] telling the police in an unprompted fashion that she was raped. Jardine says to her, 'Have you been sexually assaulted?' And [KE] says she was raped.

As I understand Jardine's evidence, [KE] was fully clothed at that time when she went back, but the inference that arises out of the evidence I suspect on any view of it was that some sexual activity took place because the accused man opened the door with no trousers on when the police knocked.

So Jardine asking the question and [KE] answering that she had been raped, I suppose is she is replying - one of the matters you have got to consider is whether she is replying according to the circumstances that confront [KE] in the circumstances that confront Jardine.

37 His Honour also detailed, at some length, the response made by applicant's counsel to the evidence of complaint.

38 In this Court, counsel for the applicant submitted that the evidence of complaint should have been excluded because it was not a 'spontaneous and unvarnished narrative'. It had been put into the complainant's 'mind and mouth' by a suggestive and leading question. There was a high risk that the response was 'contrived or induced' having regard to the relationship between a police officer and the complainant. Counsel relied upon R v Freeman.[7] He described the complaint as 'a reply to a question of a suggestive character'.

39 According to the submission for the Crown, the judge rightly admitted the evidence as part of the overall narrative of events, these particularly including the policewoman's evidence of the complainant's distress and dishevelment. The admission of the evidence did not depend upon Freeman. Moreover, the learned trial judge had given detailed directions after seeking counsel's submissions as to how the evidence should be treated in his charge.

40 The precise basis upon which the judge determined to receive the evidence is not very clear from the ruling. His Honour referred to it being 'admissible as part of the res gestae, if not a complaint'. There was debate in this Court whether counsel for the applicant made the concession that the critical questions and answers - they were reduced in evidence at trial to a single question and answer - were part of the res gestae. But even if he had done so, that alone would not have made it the fact.

41 Before the judge charged the jury, he discussed with counsel the direction which he proposed to give. I have considered both the discussion and the charge with a view of clarifying the reason why evidence of the complaint was admitted.

42 In discussion, the judge proposed that he would give a somewhat abbreviated direction of the orthodox direction about complaint. He paraphrased what he intended to say. He explained why he proposed to give the abbreviated direction by observing that 'in this case it's really part of the res gestae, isn't it?' Counsel for the applicant said that he was content with what was proposed. That was said against the background that his objection to admissibility of the evidence had been rejected.

43 The discussion, in the event, was not very enlightening. It appears that the judge on the one hand recognised that the evidence was of recent complaint, for which reason it could only go to consistency, but on the other hand he still clung to the idea that the evidence had been admissible as part of the res gestae. He did not then say, nor did he ever say, what purpose the evidence could serve if so admitted.

44 I have already set out the relevant part of the charge. Depending upon what view the jury took of its spontaneity, a matter which the judge specifically addressed, the jury was instructed that the evidence could be treated as showing recent complaint, and so as bearing upon consistency. That was a conventional way of viewing the matter. No point was raised by ground 2 as to the adequacy of the direction in that connection.

45 Was the evidence admissible as evidence of recent complaint? In the immediate sense, the policewoman was confronted by a woman who was kneeling down, sobbing, and who appeared to be distressed. The complainant's eyes were 'red and puffy'. She had a small cut near her right eye. Her top was either ripped or unbuttoned. The top of her breasts were visible. More distantly, the policewoman had attended the flat in response to a call suggesting that an altercation was in train. She had been unable to gain access. A woman had called out 'help me'. When the door was eventually opened, the man who opened it had been naked from the waist down.

46 Given the circumstances which obtained, it was far from surprising - which is not to say that it was desirable - for the policewoman to ask the question which she did. The answer was entirely unremarkable. In all the circumstances, it bore the stamp of an unvarnished and spontaneous response. At the very least, it was open to the jury to so regard it.

47 R v Freeman & Ors does not, in my opinion, stand in the way of concluding that the evidence was admissible. The court there summarised the applicable principles, and their application in the instant case, this way:

The ultimate question must always be does the 'complaint', in the circumstances in which it was uttered, tend to buttress the prosecutrix's credit as a witness.

This, of course, is a jury question, and that question can only arise if the trial Judge has first determined to admit the complaint. That decision involves the formation by the trial Judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proffered evidence, of a judgment whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge.

Looked at in this way, it appears to us that on the facts of this case it was proper for the learned trial Judge to have considered:--

(1) how proximate was the complaint when first made to the event;

(2) what happened in the interval between the events complained of and the making of the complaint;

(3) what likelihood there was that the 'complaint' was not the spontaneous and unvarnished narrative of the prosecutrix either because the statement had been put into the prosecutrix's mind and mouth by questions of such a character as to have suggested to the prosecutrix the answer she in fact gave, or that the questioner desired the answer given rather than another, or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind;

(4) whether the complaint could have been induced as a consequence of the relationship existing between the prosecutrix and the person to whom the complaint was made (cf. R v Adams and Ross, [1965] Qd R 255) so that it was not spontaneous but contrived or induced;

(5) all the circumstances alleged to exist; and

(6) whether the 'complaint' in those circumstances had or tended to have the effect of buttressing the complainant's credit by demonstrating consistency. [8]

48 The Court also pointed out that, despite a question being in leading form, the whole context may nonetheless enable a conclusion that the answer was arguably a spontaneous complaint, and so consistent with the complainant's sworn evidence.[9] Counsel for the applicant submitted, however, that such a conclusion was not available in the present case. Here, the critical question had been asked by a policewoman, not - as in Freeman - a male acquaintance whose suggestive question had been provoked by what he said he regarded 'as a rather strange request for a girl to make to a man'.

49 Such a factual difference exists. But it far from persuades me that the jury could not have regarded the complainant's answer as a spontaneous complaint. In every case, context will matter; and in every case context will have unique features. Here, the woman's calls for help, the applicant's undress when he answered the door and the complainant's distress and signs of injury when seen by the policewoman provided a context in which a pretty obvious question elicited a very obvious and apparently reliable response.

50 For the reasons which I have stated, I concluded that ground 2 was not made out.

51 The jury retired on the morning of Monday 17 September 2007.

52 On the afternoon of that day, the jury asked for an 'example' of the difference between reckless and intentional conduct, and as to the impact of alcohol on those states of mind.

53 On 18 September, at about midday, the foreperson asked the judge whether there was 'a process to help resolve a stalemate'. Then the following was said:

Some of us are adamant on one version of events or we are undecided - not undecided, there are some of us that have made this decision on one Count and some of us have made - and it's very hard for us to sway either party as to our reasonings and all that sort of stuff. At the moment we are at a stalemate on one of the Counts, and I can't see any light at the end of the tunnel in either side coming to the other side, if that makes sense.

HIS HONOUR: Yes, what about the other Counts, are you - - -

FOREPERSON: We've progressed well.

HIS HONOUR: Yes, so there's one count that's - well, members of the jury I can say this to you, it's not an uncommon thing for juries to have differences of opinions and the usual advice is that there's no formula as to how to break it. The advice that the judges would traditionally say to the jury is look to each other's points of view, see if you can resolve it by discussion, but ultimately of course, you are all sworn to bring in a verdict according to your own views of the evidence and you should be open to persuasion but ultimately it's a matter of your own conscience as to what you decide.

You've got your own view and that's a view that you firmly hold, well that's a view you keep but on the other hand, it's not uncommon for juries to come in and say, look, well we are deadlocked, we can't make a decision one way or the other, what do we do and judges usually say, well, it's a two week trial and it's very expensive to run the trial, see what you can do by discussing the matter further and if you can't bring in a verdict, well, so be it. You can't be locked up forever in relation to that issue. The other thing I can say to you, members of the jury, at this time of the trial it would be open for you to bring in a majority of verdict of 11/one.

If that was the case, 11 of you had a verdict and there was one who had a different view, well then you could bring on a majority verdict on that basis, but it has got to be 11/one, nothing 10/two or 7/five or anything like that, it has got to be 11/one. I don't know whether that helps you but all I can say is continue with your discussions. Mr Foreman, if it becomes very obvious to you that further discussion is not going to resolve the issue, that's a situation that the court has often experienced - sometimes experienced.

It's not an uncommon thing for people to have different views on just about every aspect of life, I suppose, and the deadlock can't be broken, well then if you can let me know in relation to that I can take verdicts on some of the Counts maybe but not necessarily on that Count. Ideally, it's better to be able to resolve the issues by further discussion. But at some stage - you know, you can't be sitting in there for days on end but at this stage I'd be asking you to continue on with your deliberations. There's nothing else can assist you with or - - -

FOREPERSON: That was it, thank you.

54 The judge appears to have directed the jury that -

(a) it should attempt to reach a unanimous verdict on all counts.

(b) it was able to give a majority verdict of 11/1 on any count on which there was not unanimity.

(c) If there was a stalemate, then 'so be it'.

55 The jury had been deliberating for a period sufficient for a majority verdict to be taken. Trial counsel agreed that this was the case. He submitted, however, that -

... in terms of whether your Honour directs the jury in respect of it, Your Honour firstly has to consider the nature and complexity of the trial, the fact that there's still only one dissident juror and further, Your Honour, Your Honour has a discretion as to whether or not you should actually direct the jury that they should go to a majority verdict.

The thing that dissuades me against all those things, [counsel] - and you might notice I, unlike a lot of judges, don't tell the jury to start off with -majority verdicts are available but they say they have arrived at verdicts on all Counts except one I got the impression really that there's more than one holding out; that there's a number of them with a different view on it and I suspect that in the fullness of time we are going to have a hung jury the way they are going at the moment. But it seems to me that if there's one Count out of six that they are having difficulties with, the majority verdict should be offered to them.

57 In the event, the jury gave its verdict about two hours later. All the verdicts were unanimous, except that there was a majority verdict on count 3. It can be surmised that one juror favoured convicting the applicant on the alternative count 4 - a count of recklessly, rather than intentionally, causing injury. Counsel for the applicant accepted that this was the likely analysis.[10]

58 In support of ground 3, counsel for the applicant submitted that the judge failed to seek the submissions of counsel before instructing the jury that it could deliver a majority verdict. He cited R v Muto and Eastey[11] in contending that this was an error.

59 In support of ground 4, counsel submitted that the conflation of the perseverance direction and the majority direction may have deprived the applicant of his right to a unanimous verdict, because the jury might have proceeded straight to the majority verdict, which they had been directed was available. The perseverance direction, he submitted, was in fact very weak. The jury had been invited, in effect, to reach a majority verdict.

60 Opposing those grounds, counsel for the Crown submitted that no exception had been taken to the direction, that the matter which was raised at trial concerned matters which, under s 46(3) of the Juries Act 2000 (Vic), were for the judge to consider before determining whether to exercise his discretion to direct that he would take a majority verdict, that this was the first occasion upon which the judge had mentioned the possibility of a majority verdict, and that the direction, viewed overall, emphasised the virtue of unanimity.

61 In my opinion, for the reasons which follow, neither of grounds 3 or 4 was made good.

62 The judge did not comply with the 'authoritative guidance' given by this Court in R v Muto and Eastey[12] in several respects. He did not inform the jury at the outset of his charge that circumstances might arise in which a majority verdict could be taken; and, when the jury sought advice - it having deliberated for more than six hours - he did not respond in the manner commended by Muto and Eastey as follows:

The third topic concerns the course that the judge should follow if at least six hours' deliberation has taken place and it appears to the court that the jury have had a period of time for deliberation that the court thinks reasonable having regard to the nature and complexity of the trial. Because there is a residual discretion to be exercised, counsel should be invited to make submissions as to the appropriateness of a majority verdict at that stage. After hearing any submissions that are made the court should consider whether to exercise its discretion in favour of taking a majority verdict at that stage or to defer the matter. We put to one side exceptional cases where it may be appropriate not to take a majority verdict at all.

When the judge considers that the time for a majority verdict has arrived, the jury should be directed along the following lines: At the beginning of my charge I told you that circumstances might arise in which I could take a majority verdict. In the circumstances of this trial that means a majority of 11 out of 12 [or as the case may be]. It is still preferable that you endeavour to reach a unanimous verdict of guilty or not guilty and, when you resume your deliberations, you should endeavour to do that unless you consider that it is hopeless. If you cannot all agree, the verdict of 11 of you [or as the case may be] may be taken as the verdict of you all[13].

Literal compliance with that advice would have been impossible, of course, because his Honour had not flagged the possibility of a majority verdict when first charging the jury. No complaint was made by grounds 3 and 4, however, in that connection.

63 The Court stated in Muto and Eastey, in the passage cited above, that counsel should be invited to make submissions whether the judge should exercise his or her discretion to direct the jury that a majority verdict could be taken, the judge being satisfied that the preconditions for the exercise of the discretion were met.[14] It did not contemplate that counsel should be invited to make submissions whether the judge should be satisfied that the preconditions were met - although it might be, in submitting that the discretion should not (yet) be exercised, that counsel for an accused would revisit them.

64 In the present case, the judge must be taken to have been satisfied that the preconditions for the exercise of the discretion were met. It was not contended that he could not have been so satisfied. Self-evidently, he determined to exercise his discretion to instruct the jury that it could give a majority verdict on the one count in respect of which the jury could not unanimously agree.

65 In my opinion, the exercise of the discretion was not aberrant. In context, it was readily understandable. I do not accept that, by exercising the discretion without giving counsel an opportunity to be heard, an error of any substance occurred. That is so for these reasons.

66 First, the judge gave a unanimous verdict direction at the outset. He said nothing at that time about the possibility of taking a majority verdict. The first time he did so was after the jury had deliberated for more than six hours, in which circumstances, subject to consideration of the matters set out in s 46(3) of the Juries Act 2000, he had a discretion to take a majority verdict.

67 Second, in compliance with his initial instructions, the jury evidently attempted to reach a unanimous verdict on all counts. It achieved that result in respect of 5 of the 6 counts. There could be no suggestion that the jury had not applied itself throughout the period of its deliberations to an attempt to achieve a unanimous verdict. The circumstances strongly suggested that the judge should be satisfied that the requirements of s 46(3) were met, and that the discretion to take a majority verdict should be exercised.

68 Third, at the time when the judge instructed the jury that he would take a majority verdict, he also instructed it to reach a unanimous verdict on the one outstanding count if it could do so. His language was not exemplary in that connection; but its meaning was clear. The fact that the jury deliberated for a further two hours before delivering its verdict implies that it strove to reach a unanimous verdict.

69 Fourth, contrary to the import of ground 4, it was correct to give a majority verdict direction and a perseverance direction at the one time. To do so accorded with Muto and Eastey.

70 Fifth, the judge ascertained that there had been a majority verdict on a particular count. The verdict, and the earlier jury question, clearly exposed the area of disagreement within the jury. It also showed that the applicant must have been convicted on count 3, whether it was by unanimous or majority verdict.

71 I consider that it would have been better if the judge had given a perseverance direction before, if it proved to be necessary, he instructed the jury that he would take a majority verdict. It is also clear that he should have invited submissions from counsel before deciding to exercise his discretion to instruct the jury that he would take a majority verdict. But, for the reasons which I have stated, I do not consider in all the circumstances that the exercise of the discretion miscarried; or that, if there was error, it occasioned any miscarriage.

1. The individual sentences imposed in respect of counts 1, 2, 3 and 5, the total effective sentence and the non-parole period were all manifestly inadequate.

Particulars

In fixing a term of 12 months imprisonment in respect of count 1, 6 months imprisonment in respect of count 2, 6 months imprisonment in respect of count 3 and 5 years imprisonment in respect of count 5, and in fixing a total effective sentence of 5 years 6 months imprisonment and a non-parole period of 2 years 9 months imprisonment, the sentencing Judge -

(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b) failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d) failed to sufficiently protect the community from the offender;

(e) failed to have sufficient regard to the maximum penalties prescribed for the offences;

(f) failed to have sufficient regard to current sentencing practices in respect of the offences;

(g) failed to have sufficient regard to the nature and gravity of the offences;

(h) failed to have sufficient regard to the impact of the offences on the victim of the offences;

(i) failed to have sufficient regard to the offender's previous character; and

(j) gave too much weight to mitigating factors concerning the offender.

1. In imposing sentence, the sentencing Judge erred in having regard to facts which were not reasonably open on the evidence in light of the verdict of the jury.

Particulars

In imposing sentence, the sentencing Judge erred in having regard to the following facts -

...

(b) that the offending on the night of 11 October 2004 may have been contributed by some aspect of the behaviour of the prosecutrix (see paragraph 15 of the Sentence.

73 According to the Director's submissions in respect of ground 1, the case was one in which the sentence revealed manifest inadequacy or inconsistency in sentencing standards such as to constitute error in principle. Weight given to various matters resulted in a sentence that was manifestly inadequate.

74 Enlarging upon this general proposition, counsel submitted that -

(1) There were a number of aggravating features of the offending:

• the continuation of the offending after, as the applicant knew, the police had been notified;

(2) The applicant's prior convictions had in some instances involved violence, and that the rape was accompanied by offences of violence;

(3) The judge had overweighed mitigating circumstances - the applicant's efforts at rehabilitation, his family and personal history, and delay.

75 The applicant's response in respect of ground 1 was short: the judge had taken all relevant matters into account, and had given them proper weight in each aspect of the sentence imposed.

76 Counsel provided a note of sentences imposed in a number of cases of convictions for rape. He submitted, accepting their disparate circumstances, that they gave support for his contention that the sentence was 'within range'.

77 Ground 2 alleged specific error. Counsel for the Director contended that the judge had sentenced the applicant on the basis of a factual finding which was not available: that the applicant's offending might have been contributed to by some aspect of the complainant's behaviour. Counsel further submitted that, had the finding been open, it would have been of limited weight or assistance in sentencing the applicant.

78 For the applicant, counsel submitted that the judge made no finding as to the complainant's state of sobriety or contributory behaviour on her part. Whilst his Honour had said that he could not exclude the possibility that the events of the night in question may have been contributed to by the complainant's behaviour, he had recognised that the jury's verdict established the substance of the complainant's evidence. The analysis had been balanced and correct.

79 It is convenient to immediately deal with ground 2. I consider that it was not made out.

80 In my opinion, the finding complained of was not a finding at all. The learned judge briefly reviewed the circumstances of the continuing relationship. He evidently did so, as Vincent JA observed in argument, in order to place the applicant's offending in context. But the judge, observing that the police had made an unsatisfactory assessment of the complainant's state of sobriety at the relevant time, had been left in a state of uncertainty. He could not make a positive finding in respect of context. All that he could do was not 'exclude the possibility' that whatever happened may have been contributed to by some aspect of the complainant's behaviour.

81 The judge's inability to reach a positive conclusion may have worked adversely to the applicant. But whether that was so need not be speculated upon. It is enough to conclude that the judge made no positive finding that the complainant's conduct provided part of the context in which the applicant offended. Further, I see nothing to suggest that, if what his Honour said could be accounted a finding, he took it into account in the applicant's favour in the sentencing synthesis.

82 Ground 1 sought to establish that the judge below erred by reference to the 'last category of case identified in the well-known classification stated in House v The King.'[15] The ground was 'not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect [him], had mistaken the facts or had not taken into account some material consideration'.[16] The particulars to ground 1 were 'no more than some explanation for what was alleged to be a sentence which', in the words of House v The King 'on its face, was unreasonable or plainly unjust'.[17]

83 Against that background of principle, I turn to his Honour's sentencing remarks.

84 I have already detailed the circumstances of the offending. They were encapsulated in [15] of his Honour's sentencing remarks, whilst the arrival and eventual entry of the police was recounted at [16].

85 His Honour accepted, as he must have done, that rape is a serious offence, and that general and specific deterrence, as well as denunciation, are important sentencing considerations.

86 His Honour directed attention to the applicant's personal circumstances, both positive and negative.

87 As to the latter, the applicant had been before the courts on three earlier occasions. On 18 November 1999, in the Magistrates' Court, the applicant had been convicted of threatening to inflict serious injury and damaging property intentionally. He had been fined $1,000 and his driver's licence had been suspended for three months. On 27 March 2000 he had been convicted in the Magistrates' Court of failing to produce a valid ticket on request, refusing or failing to comply with a request, and resisting or inciting others to resist a Public Transport Commission Officer. The upshot of an appeal to the County Court was that he had been fined, in all, $450. Finally, in the Magistrates' Court on 30 June 2004 the applicant had been convicted of reckless conduct endangering serious injury, unlawful assault, possessing a controlled weapon and failing to answer bail. He had been fined a total of $800.

88 The judge noted these prior convictions. Indeed, he did so virtually at the outset of his remarks.

89 Turning to matters either neutral or else going in mitigation, his Honour noted that the applicant was a man of 34 years, born and educated in Somalia, who had come to Australia in 1995 via Nairobi and Kenya after civil war has broken out in his country of birth. It was implicit in that sequence of events that the applicant's personal circumstances had been attended by difficulty in his adolescence.

90 His Honour then recounted the applicant's work history in Australia. It had been fairly good, but had been interrupted when in early 2002 a Melbourne newspaper wrote articles which drew the attention of the authorities to the applicant's conduct as a taxi driver.[18] The applicant had lost his licence. Those events had led on to the applicant bringing a defamation proceeding against the newspaper. It had been settled some time in 2003 by the payment of an undisclosed sum in damages. His Honour stated that 'it seems that that incident has (sic) an effect on you and hindered your development in the community and perhaps set you back in your personal development and in part led you to alcohol abuse.'

91 His Honour found, in effect, that the applicant's use of alcohol escalated after his relationship with the complainant first failed in 2002, the applicant becoming 'close to an alcoholic or problem drunker'. But I do not detect in his Honour's remarks any indication that he considered that use or abuse of alcohol, including on the night of the offending, diminished the significance of the offending conduct. Rather, his Honour stated -

I am prepared to accept as put by [your counsel] that the reason for your behaviour on the night and your prior convictions could at least be partly attributed to you losing your way by your experience with the Herald Sun which, in part, led you into drink and losing your grip on your self control and past pattern of good behaviour.[19]

92 His Honour concluded, however, that the applicant's antisocial behaviour, including his offending conduct on 12 October 2004, was in truth out of character. A cause of that behaviour, the judge concluded, was the newspaper affair, and its contribution to the applicant drinking too much and 'losing his grip on his self-control'.

93 His Honour addressed the applicant's attempts to rehabilitate himself. He stated that testimonials received and evidence adduced -

Allowed me to come to the view that you have got good support in the Somalian community and ... accept that your behaviour was perhaps out of character with the general way that you have conducted yourself in the past.

94 That statement, in terms, was somewhat qualified. But his Honour later made his finding plain:

You have, I accept, done your best to rehabilitate yourself.

Even so, he did not state how favourable he considered the prospect of rehabilitation to be.

95 Having regard to the fact that the applicant would now have to serve 'a further period of goal sentence' - presumably, the adjective 'further' reflected the fact that the applicant had periods of pre-sentence detention - the judge said that -

I propose to discount the appropriate sentence to take those matters into account.

96 His Honour dealt specifically with delay. There had been a delay of nearly almost three years between charge and trial. The judge said that -

Whatever the reason, it seems to me, the delay has been extraordinary and does call for some adjustment to be made to the sentence to be passed ...

97 Quite apart from the fact that the applicant had a charge hanging over his head for nearly three years, the elapse of time between charge and trial, no offending conduct being alleged in the interim, was a circumstance favourable to the applicant. It bore upon prospect of rehabilitation.

98 Of the three circumstances of alleged aggravation relied upon by the Director, the judge mentioned the second and third. He did not, however, mention the longer-term effects of the offending upon the complainant, to which she referred in a victim impact statement. This is not to say that his Honour did not have any regard to those asserted effects. Ground 1 did not so contend, and it could not have so contended.

99 Consistent with the ambit of ground 1, the judge's sentencing remarks must be understood to have adverted, by inference if not specifically, to the pertinent sentencing considerations. The question was whether any aspect of the sentence showed that something must have gone wrong in converting those circumstances into the sentence. I was not persuaded that this was so, although I was concerned about two matters: first, that the rape was (as the jury found) preceded by an act giving rise to fear of violence, and by an act of actual violence; and second, that the judge did not refer to the longer-term consequences of the offending, as asserted by the complainant.

100 Concerning the first of those matters, it must be remembered that the Crown chose to rely upon two confined incidents, neither of them intrinsically serious. It brought no count which asserted violence in the course of the rape.

101 As to the second of those matters, s 5(2) (daa) of the Sentencing Act 1991 (Vic) required the judge to have regard to the impact of the offence on the complainant. The complainant made a victim impact statement which asserted longer-term consequences which were of considerable severity. The applicant could have requested the court to call the complainant for cross-examination. No such request was made.

102 It would definitely have been better had the judge referred to the statement and stated what weight he gave to its contents. But it can be inferred, in the particular case, that his Honour was inclined to treat it with some caution. Having seen and heard the complainant give evidence, having seen the note which she wrote to the applicant on the night of the offending, and having heard other evidence about the complainant's lifestyle and conduct before the offences took place, he was evidently inclined, in the sentencing synthesis, to discount the weight to be attributed to the asserted impact of the offending upon the complainant. I could not say, having regard to the entirety of the pertinent circumstances, that any aspect of the sentence showed that his Honour must have reduced the weight to be attributed to the impact of the offending upon the complainant to an impermissible extent.

103 What I have thus far said is enough to show why, in my view, the Director's appeal against sentence failed. But I add, for sake of completeness, that in my opinion the submission of counsel for the applicant that the relatively low non-parole proportion of the total effective sentence did not bespeak error was correct. In that connection, the evidence of the applicant's rehabilitation - his ceasing to use alcohol, his engagement in community work, his non-offending during the lengthy period of delay, his long period of compliance with bail reporting conditions - provided a sensible explanation why the applicant should be required to serve, as a minimum, only half the total effective sentence which was imposed upon him.

[1] Contrary to common law, maximum penalty 10 years' imprisonment.

[2] Contrary to common law, maximum penalty 5 years' imprisonment.

[3] Contrary to s 18, Crimes Act 1958 (Vic), maximum penalty 10 years' imprisonment.

[4] Contrary to s 38(1), Crimes Act 1958 (Vic), maximum penalty 25 years' imprisonment.

[5] Or the alternative count 4, which alleged that the applicant had recklessly caused the complainant injury.

[6] The first penetration was relied upon to establish count 5. According to the applicant's record of interview, he penetrated the complainant both with his finger and his penis, in each instance on multiple occasions, and on every occasion consensually.

[7] [1980] VicRp 1; [1980] VR 1.

[8] [1980] VicRp 1; [1980] VR 1, 6.

[10] A possible alternative is that the dissident juror wished to acquit the applicant on counts 3 and 4.

[11] [1996] VicRp 21; [1996] 1 VR 336.

[14] They are now contained in s 46(3) of the Juries Act 2000.

[15] Carroll v The Queen [2009] HCA 13, [8].

[18] Apparently, the applicant was said to be Melbourne's worst taxi driver.