R v Browne; DPP v Browne [2002] VSCA 143

6. John Gary Neil Browne (I shall call him the "applicant" throughout), who was born on 29 January 1973, pleaded not guilty in the County Court at Melbourne on 22 October 2001 to a presentment alleging one count of rape. After a trial lasting a week, the jury returned a verdict of guilty.

9. A plea in mitigation commenced on 26 October, and was continued on 2 and 11 November. Six witnesses were called to give evidence as to the applicant's character and a written reference was received from his commanding officer. On 30 November the applicant was convicted and sentenced to 2½ years' imprisonment, the sentence being wholly suspended for three years.

12. The applicant now seeks leave to appeal against conviction on the ground that the verdict was unsafe and unsatisfactory. And the Director of Public Prosecutions also appeals against the sentence imposed claiming that it was manifestly inadequate.

15. The Crown case at the trial was as follows. On Friday 18 August 2000 a toga party was held at McLeod at the house of a married soldier posted at the Simpson Barracks near the Watsonia Army Base. The applicant and the complainant were both guests at the party. They and most of the guests appear to have been soldiers. The complainant drove to the party with friends, arriving at about 9.30 p.m. She proceeded to drink six or eight shots of tequila and thereafter was seen drinking directly from the bottle. By her own account and that of several witnesses she became very drunk, falling over a few times and at one stage falling and cutting her hand on the tequila bottle. During the night she became aggressive and abusive to another soldier, Karen Penny, and they had an altercation during which some pushing and shoving occurred. Later that evening the complainant attacked and damaged Penny's car, causing damage estimated by Penny at $2,500.

18. Some time after midnight the complainant vomited on the lawn outside the house and collapsed on the wet grass. She was sick and tired and at about 1.30 a.m. was put into a bed in the children's room by Ursula Overall, whose house it was, and who also rested in a nearby bed while the complainant slept.

21. The applicant and the complainant knew each other after participating in training courses in the army but they were not friends, the complainant describing her relationship with the applicant as a "colleague" or "work mate". During that night the applicant went to the bedroom to check on the complainant and bring her water to drink. The party finished at about 2 a.m. The applicant was sleeping on the couch in the lounge room and was cold so he joined the complainant in the bed where she was sleeping. The complainant said that she was woken by someone kissing her on the neck and touching her, whereupon she asked, "Who is this?" She told the applicant to get off her and said she wanted to go home. She told Mrs Overall, who was in the nearby bed, that she wanted to go home and asked for her jacket. Mrs Overall gave the applicant the keys to the complainant's car and the applicant then assisted the complainant to walk to her car and drove her home. The applicant and the complainant arrived at the army barracks in Watsonia at about 4 a.m. She was then intoxicated and unsteady on her feet. She went in to her room where she changed into her pyjamas, which were a T-shirt and boxer shorts, and went to sleep. She did not lock her door. Some time later the complainant awoke to find the applicant in her room. She said she asked him to leave but he proceeded to touch her on the chest under her top. The complainant said she told the applicant to stop. He removed her boxer shorts and then rolled her over and inserted his penis into her vagina. The complainant said that she was on her stomach and unable physically to resist, however she told him to stop. The applicant continued to have sexual intercourse with the complainant, put her boxer shorts back on her, and then left the room, whereupon the complainant, being tired and drunk, fell asleep.

24. The next morning a friend of the complainant, Melissa Tuka, came to her room, and found her upset, crying and shaking. The complainant told Tuka that the applicant had done things to her that she did not want. She was later seen by other witnesses to be crying and shaking and was subsequently taken to hospital and examined by Dr Amanda Wilkin, a medical practitioner, at the Northeastern Centre Against Assault. Dr Wilkin identified a two-millimetre abrasion on the left vaginal wall posteriorly and stated that it could be caused by blunt trauma. Evidence was given by Mrs Overall that when she saw the complainant later that day she was happy and laughing about having kicked Karen Penny's car.

27. The applicant in a record of interview with the police admitted having sexual intercourse with the complainant, but claimed that it was consensual. He gave evidence at his trial, and stated that the complainant had consented to sexual intercourse. His evidence was that he had consumed about ten cans of bourbon and coke but did not become very intoxicated. He claimed that the complainant showed sexual interest in him when he took her home. He said he surprised her by going to her room where she let him in and was dressed only in a towel. He stated that they talked for over an hour to an hour and a half. He further stated that she was kissing him and that he performed oral sex upon her. He claimed that he placed moisturiser on her vagina and proceeded to have consensual intercourse with her. This evidence was in effect all disputed by the complainant in her evidence.

30. During the trial four witnesses gave evidence of the applicant's good character and reputation.

33. Mr Hore-Lacy for the applicant summarised his argument to this Court as to the conviction as follows. He put it that we should remember that there was no evidence capable of corroborating the complainant and the jury had to be satisfied beyond reasonable doubt as to the reliability of her testimony. The evidence as to her complaint (to Tuka) was at best "wishy-washy". The applicant had given evidence on oath consistent with the answers in his record of interview and it should not have been rejected. The evidence of the complainant was, he said, inherently unreliable and the conviction should not stand. He did not argue that there was no evidence upon which a conviction could have been based. Rather it was argued that the conviction was unsafe and unsatisfactory.

36. Mr Hore-Lacy based his argument that the applicant's conviction was unsafe and unsatisfactory principally on the submission that the evidence of the complainant was too unreliable to support a conviction. He argued that she claimed lack of memory of much of the night and the following day. For example, she had no idea what she told the doctor the next morning, had been told details of her behaviour of which she had no memory, did not remember whether she asked the applicant to drive her home, had no memory of seeing him at the party and did not know what time he came to her room or how long he remained there. She was unsure whether or not she had damaged Penny's car and did not know whether she had admitted doing so. Under cross-examination she said that her evidence was a combination of what she remembered and what she had been told. Mr Hore-Lacy argued that the complainant demonstrated an inability to distinguish memory and knowledge from what she had been told, and her accounts of what happened had varied considerably. Her evidence was said to be unreliable, both in its vagueness and in the inconsistencies between her evidence and other witnesses. Mr Hore-Lacy argued that accepting the complainant's evidence at its highest, the applicant had touched and kissed her at the house where the party occurred, she had asked him to drive her home, had been able to walk back to her barracks, and had told the applicant "Don't do it and stop and I wasn't interested". However, there had been no physical resistance on her part, she did not attempt to stop the applicant undressing her and did not struggle whilst being undressed, and had allowed him to redress her. Mr Hore-Lacy submitted that there was no evidentiary basis for the assertion by the prosecutor that "she could not physically look after herself and physically resist". He submitted that there was no evidence that the complainant did anything to stop or dissuade the applicant after the initial objection. Taking all these matters together, along with what were submitted to be reasons for making a false complaint, on all the evidence the complainant either knowingly consented to intercourse or did not remember whether or not she did so.

39. Mr Hore-Lacy then put it that it was, on the other hand, inherently improbable that the applicant committed rape in such circumstances. He had given evidence on oath, was unshaken in cross-examination and was corroborated on many matters by other witnesses. The applicant had ample evidence of his good character and had been able to give details of the contents of the complainant's room, including finding and using a moisturising cream for use as a lubricant in a room which the complainant asserted was at all times in darkness. It was also argued that there was a lack of evidence consistent with rape, such as no evidence of physical injury or of the complainant having tried to escape, and no evidence of her having called for help even though she was in a women's dormitory building full of girls in other rooms.

42. Accordingly, it was submitted that it had not been open to a jury to exclude a belief of consent on the part of the applicant and no basis on which the jury could decide that the applicant was aware that she may not have been consenting.

45. In her evidence-in-chief the complainant said that there was a rule (presumably in the armed services) about males going into female quarters, in that if a male went into a female's bedroom they would both be charged. She said she went to her room which she did not lock because it was a female building block full of girls, and that the applicant came in. Her evidence then continued -

"Where were you when he came in?---In bed. What happened then?---And then he came in and I was asleep and then I woke up and then I asked him to leave because of the charges. You asked him to leave?---Yes, and then he, and then he started, he was like touching me and I told him not to. Touching you where?---On my chest, under my top. Did you say you told him to stop?---Yes. Did he stop?---No. What happened then?---Then he rolled me over and did it. What did he do?---He had sex with me. You will have to tell us exactly what he did. What did his body do to your body?---He went in me. I don't think there is any dispute about that. I think I can lead on this point. He told police in a record of interview of this he placed his penis in your vagina, is that what happened?---Yes. ... Did you want him to do that?---No. Did you agree to him doing that?---No. Did you ever tell him he could do that?---No. You said that you told him to stop when he touched you on the chest, did you ever say anything else to him on along those lines?---Yes. What did you say?---To don't do it and stop and I wasn't interested. Could you see any reason why he would not be able to hear what you said?---No. He should have been able to hear you?---Yes. Were you able to resist him?---No. Why is that? HER HONOUR: What does that mean? [Prosecutor]: Were you able to physically resist him?---I was on my side and then I was on my stomach and no, if I could have stopped it I would have but I couldn't. In terms of alcohol, how were you feeling at this stage?---I was so tired and I just wanted to go to sleep the whole time and I was really drunk. Were you still aware of what was going on around you?---Yes."

49. There was an abundance of evidence, supported by other witnesses from the party, that the complainant ended up in bed at Ursula Overall's home because she was "too drunk" and "sick" from drinking tequila. The complainant's evidence of the rape was heard by the jury who were able to assess her memory of the events of the evening and the following day. The complainant's evidence of the rape itself was reasonably detailed and she denied that oral intercourse had taken place, saying "I know what happened and that didn't happen". The applicant had alleged that a lengthy conversation had taken place prior to sexual intercourse, which the complainant denied and she gave specific reasons why the alleged topics would not have been discussed. It is true that a number of matters were not specifically remembered by the complainant but this is certainly not surprising in the circumstances and the jury were in a position to assess all of her evidence including what she could remember and what she could not.

52. Evidence was given by Melissa Tuka, who saw the complainant at midday on the day after the party. Tuka said that when she saw the complainant "she seemed upset and said that something happened to her at the party that night" and "that Brownie had done things to her". Tuka said that the complainant repeated to her that "he touched her and did things to her that she didn't want him to". Tuka said that "she [the complainant] was very upset ... because she was crying. She kept shaking and didn't stop". Tuka gave her impression as being that sexual intercourse was without consent.

55. Evidence was also given by Tracey Beard that she saw the complainant at the barracks the next morning and that the complainant was in a "pretty messed up state. She was crying and couldn't really talk properly and she was shaking".

58. When the applicant gave evidence he agreed that the complainant had not displayed a sexual interest in him prior to that evening. He accepted that he had not been invited to her room, that he just went there and surprised her. He said that the complainant kissed him on the path outside the building. Then, after kissing the complainant, he said he left her there, went into the building to locate his cigarettes, returned outside and had a cigarette and watched the complainant having a conversation with one Matthew Meeuwsen from approximately 30 metres away without approaching them, despite his allegation of the earlier kiss. He said that the complainant "never asked him for sex" and that he "never asked for sex" and didn't ask her if she would be agreeable to having sex. He said that when he went to the complainant's bedroom, he was not expecting to have sex. He had previously said during the record of interview that having sex with her didn't enter his mind, that "I came there to talk to her". He said he talked to the complainant in her bedroom for one to one and a half hours before sexual intercourse, and disagreed with the evidence of Ursula Overall that the complainant was "very very tired". He said that at the barracks, as far as alcohol was concerned, the complainant "was good". He repeated several times that her sobriety was good and that she walked to her room without a problem. He denied that the complainant was "very very drunk".

61. When one considers the view likely to have been taken by the jury as to whether to accept the complainant's evidence as establishing the guilt of the applicant beyond reasonable doubt, there are at least four areas of the applicant's evidence on which the jury would have been entitled to have reservations. First, there was an abundance of evidence that the complainant was very drunk and very tired when she was taken back to her barracks to return to her room. Yet the applicant maintained in evidence that her state of sobriety was good when he entered her room, and that they then embarked on a conversation for more than an hour before consensual sex occurred. Secondly, having regard to the evidence of other witnesses as to the complainant's state when she was taken back to her barracks, it would have been surprising indeed if she was then in a fit condition or willing to embark on a long conversation with the applicant. Thirdly, his evidence of having left the applicant standing outside the building at about 4.00 a.m., after which he went inside to get some cigarettes, and then returned to watch her talking to Matthew Meeuwsen from a distance of 30 metres while he remained unobserved, might reasonably have led the jury to infer that he was biding his time, waiting until the coast was clear, before following her up to her room. Fourthly, the jury may well have disbelieved his evidence that when he went to the complainant's bedroom, he was not expecting to have sex, but went there to talk to her.

64. The thrust of the cross-examination of the applicant was that he was lying about the complainant's state of intoxication and that, having regard to the evidence of other witnesses as to the complainant's tiredness and drunkenness, it was extremely unlikely that the applicant's version - that they spoke for an hour to an hour and a half in her bedroom before having intercourse - was true. It was vigorously put to the applicant that he took advantage of a female who was so drunk as to be unable physically to resist him. The jury would, I think, have been entitled to be highly sceptical of his version of what occurred in the complainant's bedroom and to reject it.

67. Since the fact of intercourse was admitted, the only issues for the jury were whether the complainant consented to intercourse, and, if she did not, whether the applicant believed that the complainant was consenting or was aware that she may not have been consenting. The jury had before them the complainant's evidence that she did not consent, and specifically told the applicant not to have intercourse with her, together with the evidence from Melissa Tuka of the complainant's first complaint within a few hours of the event itself. Then there was the applicant's own evidence and his answers in the record of interview with the police, which were both inconsistent with evidence given by others at the party and also gave a version of the events which I think the jury would have had every justification for rejecting.

70. In M. v. The Queen[1], Mason, C.J., Deane, Dawson and Toohey, JJ. said that in determining whether a jury's verdict such as the present is unsafe -

"The question is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand' ... Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations."

74. Applying these tests, and making my own independent assessment of the evidence, it seems to me that there was evidence upon the whole of which it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty as charged. It was, I think, plainly a matter for the jury to decide whether they accepted the evidence of the complainant or the applicant, and they were entitled to prefer the complainant's. In my opinion the application for leave to appeal against conviction should be dismissed.

77. I turn then to the Director's appeal against sentence. In sentencing reasons, the judge said that the commission of this offence was totally out of character for the applicant and accepted that his prospects of rehabilitation were excellent. Her Honour said that there had been some delay in the matter coming before the court, through no fault of the applicant. The judge said that the crime of rape called for the imposition of a custodial sentence but, in deciding to suspend the whole of it, held that there had been no violence, no threats and no verbal or physical abuse of the complainant and that the rape had been of short duration. Furthermore, her Honour said that in deciding what part of the sentence should be suspended -

"The considerations that I must take into account are matters more relevant to the issue of your lack of prior convictions, your prospects of rehabilitation, your character, my view that you are highly unlikely to ever re-offend, the punishment you have already received by the total loss of your career and the delay."

81. I should say at once that in my view delay in this case was not a relevant sentencing consideration. The rape occurred on 19 August 2000, and a contested committal was heard on 27 and 28 June 2001. The trial commenced on 22 October 2001 and sentence was handed down on 30 November 2001. Delay of this nature could not, I think, be said to be relevant to the question whether the sentence should be suspended either in part or in whole.

84. The case is a particularly sad one. The impact upon the complainant can be seen by a reading of her victim impact statement which shows the very significant impact that the applicant's behaviour had upon her. One might add that the making of her complaint to the police may well make it impossible for the complainant to continue her career in the army. On the other hand, the applicant himself had previously been a man of impeccable reputation, his character witnesses all spoke glowingly of him and his prospects of rehabilitation must be excellent. The judge was in my view entitled to take into account that the effect of the jury's verdict was the total loss of his career.

87. The offence was, however, a very serious one. The jury's verdict shows that they accepted the complainant's version of what occurred and rejected the applicant's. On this view, the jury accepted that the applicant took advantage of the complainant's state of intoxication in order to have sexual intercourse with her after she had asked him to stop. The jury must have accepted also that the complainant due to her state of intoxication was vulnerable and unable physically to resist the applicant.

90. 29 This Court has repeatedly said that a person convicted of rape stands in very grave danger of an immediate custodial sentence. In R. v. Schubert[2] the applicant was a 44-year-old widower who was convicted of a digital rape, in a brief incident. The offender pleaded guilty, was of excellent character and remorseful. He was sentenced to imprisonment for four years and a non-parole period of 18 months was fixed. An application for leave to appeal against sentence was rejected. With the concurrence of Winneke, P. and Ormiston, J.A., Brooking, J.A.[3] said -

"My own view is that, generally speaking, a digital rape should result in an immediate custodial sentence of substantial duration, and that the sentencer should ensure that a substantial part of that sentence will be actually served. Of course, there are no absolute rules, but, generally speaking, notwithstanding a plea of guilty, previous good character and genuine remorse, a rapist, whether the rape is digital or of a different kind, stands in very grave danger of an immediate custodial sentence."

Schubert was applied in R. v. Latham[4] and both Schubert and Latham were referred to by Winneke, P. in R. v. Mason[5], where the President said -

"The one thing which the authorities ... demonstrate is that the crime of rape, whatever the circumstances, and upon whomsoever committed, is regarded by the courts as a grave insult to its victim and a crime which can rarely give rise to a non-custodial sentence."

See also Director of Public Prosecutions v. Fellows[6].

97. In these circumstances it is, I think, with respect, clearly established that the sentence imposed was manifestly inadequate. The Director's appeal therefore must succeed and the sentence imposed below should be set aside.

100. This Court's approach to re-sentencing must be moderated by a number of factors. First the Court must take into account the element of double jeopardy. Secondly there are powerful factors in mitigation to which the judge referred, and which include the destruction of the applicant's career in the army. An important third consideration is that the applicant when first sentenced on 30 November 2001 was set at liberty and we are asked now, more than nine months later, to order his immediate incarceration. The applicant bears no responsibility for this considerable and unfortunate delay, and Mr Coghlan readily accepted that this Court should take it into consideration.

103. 32 Bearing these matters in mind I propose the following sentence, which is substantially less than I should myself have thought appropriate, if first sentencing the applicant. I would leave standing the sentence of 2½ years' imprisonment imposed by the judge on the count of rape. I would order that 2 years of this sentence be suspended for 2 years from today's date.

107. I agree that the application for leave to appeal against conviction by the applicant should be dismissed. I also agree that the Director's appeal against the sentence should be allowed. I agree in the proposed orders suggested by Charles, J.A. and I do so for the reasons which he has given.

111. I agree, and for the reasons advanced by Charles, J.A., that the disposition of these matters proposed by him should be adopted.

119. The formal orders of the Court are as follows:

The application by the applicant for leave to appeal against conviction is dismissed.

The appeal by the Director against the sentence imposed is allowed. The Court sets aside the sentence imposed by her Honour. In lieu thereof we re-impose the sentence of 2½ years' imprisonment which her Honour imposed.

Pursuant to s.27 of the Sentencing Act we suspend 2 years of that sentence for a period of two years from today's date.

I am required by the Act to explain to you, Mr Browne, that after serving six months of this sentence you will be released and you will thereafter be under the operation of a suspended sentence for the period of two years; that your sentence continues after the date of your release. If, within that period, you commit any other offence punishable by imprisonment you are at risk of being called back and punished both for the breach of suspended sentence and also made to serve the remainder of the suspended sentence. Do you follow that?

MR McIVOR: We apply for an indemnity certificate for Tuesday 3 September.

[1] [1994] HCA 63; (1994) 181 C.L.R. 487 at 492-493.

[2] [1999] VSCA 25.

[4] [1999] VSCA 132.

[5] [2001] VSCA 62 at [7].

[6] [2002] VSCA 58.