R v D T R [2005] VSCA 291

2 The appellant was granted leave by a judge of this Court to appeal against a sentence of four years' imprisonment with a minimum term of two years' imprisonment which was imposed upon him when he pleaded guilty in the County Court to a charge of rape.

3 The appellant is now 29 years old. In 2001 he commenced to live with the complainant. Their de facto relationship, which appears to have been volatile, persisted for some three-and-a-half years and ended early in 2004. The appellant was unwilling to accept his rejection by the complainant.

4 On 24 September 2004 the appellant and the complainant visited the Royal Show. They returned to the appellant's house. The complainant said that she had a sore back. The appellant offered to massage her back and the complainant agreed. She lay on the bed in the bedroom fully clothed. The appellant massaged the complainant's back and took off her bra and top, although she protested that that was inappropriate. The appellant continued to massage the complainant and then they both fell asleep. Some two hours later the complainant awoke and began to get out of bed, telling the appellant that she was going home. The appellant became agitated and the complainant became upset. An argument developed. The appellant placed his hand over the complainant's mouth and slapped her across the face. She yelled and screamed at the appellant to stop. The appellant then got up, closed the bedroom window and returned to the bed. He pulled off the complainant's jeans, opened her legs and inserted his penis into her vagina. The complainant was lying motionless and crying. The appellant immediately withdrew, apologised, and sat on the end of the bed crying. The complainant rose, dressed and returned to her home. She did not report the matter to the police. The appellant later told a psychiatrist that he said to the complainant: "If you leave I'll rape you so you will hate me so much you'll never come back."

5 The sentencing judge found that the appellant, overcome with remorse, rang the police and confessed to the crime. He said to the police that he knew the complainant would not report the matter. In a number of conversations with the police the appellant repeated his confession and insisted that he be charged. The police eventually made contact with the complainant, who made a statement acknowledging that the appellant had raped her, but stating that she did not wish to take the matter any further. The appellant was subsequently interviewed by the police and again made a full confession, describing his behaviour as "completely irresponsible, irrational and completely degrading to her".

6 The appellant's parents divorced when he was four years old and he has had a difficult relationship with his stepfather. The sentencing judge found that he had had an unhappy childhood. His father remarried, but the appellant has had no association with his father's new family. The appellant left school after completing year 11 and has been substantially employed since then. The appellant's father suffers from chronic back pain and Parkinson's disease. At the time he was sentenced the appellant was engaged as a full-time carer of his father.

7 The appellant has a number of prior convictions for motoring offences. He was also convicted in 1995 of charges of attempted escape from custody, assault by kicking, causing wilful damage, failing to answer bail and assaulting a police officer, and was sentenced to be released on a community-based order. In 2001 the appellant was convicted of resisting a police officer and being drunk in a public place. The sentencing judge ascribed the appellant's prior convictions to problems with alcohol and anger.

8 In the course of the plea a report by a psychiatrist was tendered. The psychiatrist described the appellant as severely depressed and suicidal and said that he was in urgent need of ongoing psychiatric treatment. He had attempted suicide on two occasions by taking an overdose of tablets and on another occasion had slashed his arms. The psychiatrist was of the opinion that it was unlikely that the appellant would reoffend.

9 The appellant was able to rely upon mitigating factors of considerable weight. He pleaded guilty at the first opportunity. He regretted his actions immediately and was clearly truly remorseful. Despite a difficult upbringing he had a good work record. The offence arose from an emotional relationship with which the appellant was unable to cope. The appellant suffered from severe depression. He was the full-time carer of his disabled father, who was accordingly entirely dependent upon the appellant.

10 The grounds of appeal are as follows:

"1. The total effective sentence of four years' imprisonment and the minimum term of two years' imprisonment are manifestly excessive.

2. The learned sentencing judge erred by giving insufficient weight to the fact that the appellant's conviction was based on his own report of the offence and volunteered confession.

3. The learned sentencing judge erred by giving no or insufficient weight to a submission of the Crown that a partially suspended sentence was within range.

4. The learned sentencing judge erred in determining that a wholly suspended sentence was outside the range.

5. The learned sentencing judge gave no or insufficient weight to the appellant's psychiatric illness."

11 A striking aspect of the offence was the appellant's immediate and continued reaction to it. In R. v. Ellis (1986) NSWLR 603 at 604 Street, C.J. said:

"Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward to sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence."

His Honour went on to say that the disclosure "merits a significant added element of leniency". In the present case I would proceed on the basis that the offence would not have come to light but for the appellant's disclosure of it. As to the importance of a disclosure of crimes that otherwise would not be detected, see Ryan v. R. (2001) 206 C.L.R. 267, especially at 295; R. v. Brazel [2005] VSCA 56; (2005) 153 A.Crim.R. 152; R. v. Doran [2005] VSCA 271.

12 It was contended on behalf of the appellant that the sentencing judge failed to give sufficient weight to the appellant's reaction to the offence. It was suggested that her Honour did not accept that the circumstances were truly exceptional. In the course of her reasons for sentence she said:

"I am satisfied that although it is not common for people to confess and surrender to justice in the way that you did, it is nonetheless not unusual or exceptional for offences of this kind to be committed in the context of a disintegrating relationship and with consequent genuine regret and remorse."

I do not think that the sentencing judge displayed any reluctance to accept that the circumstances were exceptional. Her Honour distinguished between the commission of the offence in the context of the relationship between the appellant and the victim and the remorse which followed on the one hand and the uncommon confession and submission to the authorities on the other hand. In my view the distinction was a valid one and does not indicate that the sentencing judge devalued the appellant's confession and insistence that he be charged.

13 The appellant's conduct after the offence did more than reveal remorse. Combined with the act of rape, it was symptomatic of the mental instability later diagnosed by the psychiatrist.

14 The sentencing judge canvassed the conduct of the appellant after the offence in some detail. She did not state in terms that she was giving a discount for the confession, but in my view it is apparent that she did. Rape is a very serious crime, punishable by a maximum term of 25 years' imprisonment. This rape was accompanied by the application of force and was due not simply to unbridled lust but also to hostility to the victim.

15 The fact that the victim did not report the rape to the police was not an indication that it was of little moment to the victim. Her statement to the police and victim impact statement make it clear that her reticence was due to a desire not to have any further contact with the appellant. She said:

"I don't want to make a detailed complaint statement about what happened on that night because I am finally away from Damian, finally removed from that situation and I don't want to do anything to bring that back. It's time to move on and I knew he is trying to move on as much as he can and if I made a statement and go to court it will be like a reason for him to keep on at me."

16 The fact that sentencing judge did not wholly or partially suspend the sentence in my view was not an error. Her Honour was not bound by the concession of the prosecutor that a partially suspended sentence was within range, although the concession was a relevant factor. Having regard to the appellant's prior convictions for offences of violence and his fragile mental state, I think her Honour was warranted in forming the view that the appellant should not simply be released into the community: his release should be supervised by the Parole Board. Counsel for the appellant at the plea effectively conceded that a parole period was appropriate.

17 The sentencing judge was aware of the appellant's depression and suicidal tendencies and made references to the psychiatrist's report in the course of her sentencing remarks. The appellant's mental condition was not as severe as that of Tsiaras[1]. In such a case it is often sufficient if the judge takes mental illness into account only in a general way; but, in this case, it should have moderated at least to some extent the need for a sentence effecting general deterrence. It does not appear, however, that the sentencing judge granted the appellant's mental state even limited relevance to the need for general deterrence. She said:

1 "Further, due regard must be given to general deterrence so that like minded members of the community will know that they can expect condign punishment if they commit an offence such as this."

I interpret this statement as one ruling out any factor moderating the need for a sentence that would deter others.

18 Accordingly, I am of the opinion that the sentencing discretion has been reopened. There can be no doubting the gravity of the offence of rape. Nevertheless, there are present in this case the mitigating factors to which I have referred. I would resentence the appellant to be imprisoned for a term of three years. I would fix a non-parole period of 18 months.

21 The formal orders of the Court will be as follows:

3. In lieu thereof, the appellant is sentenced to three years' imprisonment and a non-parole period of 18 months is fixed.

4. It is declared that the period of 134 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

[1] R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398.