R v Fisher [2008] VSCA 11

2 The circumstances of the offending were that the appellant attacked a 42 year old woman, the complainant, approaching a footbridge in Eltham at approximately 7.15 am on Saturday 4 March 2006. The complainant was running on a shared footway that follows the course of the Diamond Creek in Eltham. The appellant was drinking a can of beer at the time. As the complainant approached the appellant, he glanced over his shoulder a couple of times and looked at her. When the appellant crossed the bridge, he stood to the side and started to pat his jeans as if he was looking for something in his pockets. The complainant was using an iPod, which she had turned down to be able to hear if the appellant approached her. As the complainant went past him, she looked over her left shoulder and the appellant lunged at her. He grabbed both her arms and she screamed and ran to the middle of the nearby road. The complainant pushed her iPod towards the appellant and asked him to take it. The appellant pushed the complainant off the roadway towards the left side of the footbridge, into some bushes. The complainant was screaming for help. She begged the appellant not to hurt her. The appellant held her by the arms, pushing her, and said, 'Don't make me kill you.' She was pushed to the ground, landing on her back. The appellant removed the complainant's running shoes. Meanwhile, she continued to call for help, and so the appellant placed his hand over her nose and mouth such that she was unable to breathe properly. The complainant turned over onto her knees and made noises as if she was going to vomit. The appellant then stood up and grabbed her arm, intending to drag the complainant further down towards the creek. The complainant realised her vulnerability and told the appellant that she would stop screaming. At the time of the attack, the complainant was wearing three-quarter length gym pants and a running singlet. The appellant removed the complainant's lower clothing while she was on the ground, including her underwear - a pair of beige underpants. The appellant spread the complainant's legs, which she resisted and begged him not to do so. He pushed her legs backwards over her head and performed oral sex, penetrating the complainant's vagina with his tongue. He did this a couple of times, applying intense pressure to the complainant's labia. This act constituted count 1. The complainant told the appellant that she needed to vomit again and she was allowed to turn over, kneeling on all fours. The complainant was in fact pretending to vomit at the time. Meanwhile the appellant undid his belt and trousers and knelt down behind the victim. He commenced rubbing his penis and genitals on her right buttock. At this stage the complainant feigned that she was pregnant. She asked the appellant not to proceed because of her pregnancy. However, he continued rubbing himself on her and she repeated, 'Please don't hurt my baby, please don't hurt my baby.' Apparently the statement by the complainant to the effect that she was pregnant caused him to stop further acts of penetration. Thereafter, the appellant ejaculated on to the complainant's right lower buttock and upper leg. This act constituted count 2. The appellant then picked up the complainant's garments and commenced to leave, running up the embankment away from her. The complainant asked to have her underwear returned, at which point the appellant separated her clothes and threw the gym pants back and ran off with her beige underpants.

3 The complainant sought help and the police attended. She suffered a number of injuries including a four-centimetre bruise to the right arm, a three-centimetre graze on the left elbow, oozing blood and serous fluid and a small abrasion below the middle finger nail on the left hand. She also suffered a small wound below the ring and little finger nails on her left hand. An incised flat wound on the side of her left hand just below the finger was suffered, together with a cluster of superficial linear scratches and abrasions on the right leg, a small graze above the left knee, and a two-centimetre green bruise on the lateral hip. The complainant also suffered aching pain as if she had suffered a beating. She had pain in her back, neck, legs and wrists.

4 The circumstances of the identification and arrest of the appellant are relevant. A little over six weeks after the attack, the complainant was, with her husband, in a public place, the Eltham RSL, attending an Anzac Day function. She saw the appellant on the premises and alerted the police. The appellant was taken for questioning and in due course his residence was searched. Police located in his bedroom, on the floor under his bed, a pair of beige coloured women's underwear of the same style, colour and size as worn by the complainant at the time of the attack. They were subsequently identified as the complainant's underpants. Also located were another pair of ladies' underwear, being black G-string style underpants, and a quantity of cannabis and a firearm. The possession of the cannabis and the firearm related to the remaining counts.

5 During the record of interview the appellant denied any involvement in the assault. He denied being at or near the location at the time the assault occurred. He explained to the police that the black G-string underwear belonged to a person who had been introduced to him by a friend. He also said that the G-string undergarment was left by a woman one night, a friend of his best friend, and that had occurred some time earlier, and he could not recall his friend's surname but that the woman who owned the underwear was "Jess". He said that he woke up one morning and found the beige underpants in his room. He said they could have been left there some months beforehand and could have been anyone's. He said he had never seen the underwear before. He refused or was unable to provide any information to verify the identification or circumstances relating to his best friend and the woman concerning the black G-string underwear. The appellant also said in his record of interview that at the time of the attack he was working at Sunbury, or else was at his home doing renovations. With respect to the marijuana, he maintained that he had found the subject bag at the Eltham Mall approximately two-and-a-half years earlier but had not smoked any of it. Subsequently, DNA testing of the relevant garments implicated the appellant.

6 At the time of sentence the appellant was 24. He had been in custody for a period of seven months. Prior to his arrest he was in full-time employment with a bricklaying firm. He lived at home with his parents. His history was that he left school at 14 after completing year 9 and started, but did not complete, an apprenticeship in bricklaying.

7 Returning to the circumstances of the offending, on the night before the offending the appellant engaged in the consumption of alcohol throughout the evening and into the morning, indeed all night. He also used cannabis. Prior to commencing the drinking of alcohol, he took antidepressant medication in the afternoon.

8 The appellant indicated his preparedness to plead guilty at the committal hearing. He was assessed by a forensic psychologist, Mr Ian Joblin, who observed that the appellant could offer no reason for his behaviour and, indeed, had a lack of recall of the events. Mr Joblin assessed the lack of recall as consistent with excessive alcohol and drug use. As for the matter of remorse, Mr Joblin reported that the appellant was 'virtually incredulous that he would have committed this type of offence', and further that 'he has always abhorred the concept of such offending'. Mr Joblin also observed that the appellant was 'able to indicate considerable regret and sympathy for the victim'.

9 The sentencing judge also had before her victim impact statements made by the complainant, her husband and two teenage children. The complainant was aged 42 and was, subsequent to the offending, diagnosed with post-traumatic stress disorder and prescribed medication. Subsequent to the assault she had suffered difficulty sleeping, abandoned her employment and lost her job, and thereby suffered financially. She also described that she feared being on her own or anyone coming from behind her and was generally fearful of her environment. She further described suffering depression and shame at having been raped. The complainant also set out a description of the impact on her children, who had been upset and traumatised by the events that occurred to their mother. The husband of the complainant was also affected by the attack. He described in his statement that he suffered depression and received medication. He said there had been an impact on the relationship of he and the complainant and that he too was fearful for his wife under the circumstances. Similar fears were echoed by the complainant's two children.

10 The appellant was sentenced as follows: on count 1, the rape, seven years' imprisonment; on count 2, the indecent assault, two years' imprisonment; count 3, the possession offence, two months' imprisonment; and count 4, the firearm offence, one month imprisonment. It was further ordered that one year of the sentence imposed upon count 2 be served cumulatively upon the sentence imposed on count 1. The total effective sentence imposed was eight years' imprisonment, with a minimum term of five years and six months before becoming eligible for parole.

11 The appellant appeals on three grounds. I will deal with them successively. Ground 1 asserts that the judge erred in failing sufficiently to have regard to the circumstances and timing whereby the appellant desisted from his attack. Counsel for the appellant made the point during the course of his submissions that, whilst there was delay by his client in desisting, ultimately his client did desist, and therefore that of itself constituted a very significant mitigating factor. Having considered the agreed summary before the court below, the transcript on the plea and the reasons for sentence of the sentencing judge, it is apparent, in my view, that there is no basis for this ground. Clearly the sentencing judge acknowledged the discontinuation of further penetration once the complainant stated she was pregnant and begged the appellant not to hurt her baby. Indeed the sentencing judge specifically referred to 'in the complainant's view, you desisted'. The judge then proceeded in her reasons to note that the appellant desisted 'at least to some extent'. The qualification at most, in my view, must then be taken on the plain meaning of the words used in the reasons for sentence to refer to the matter of further penetration of the complainant. It is further relevant that, whilst the appellant desisted from further penetration, he nevertheless proceeded to embark upon the indecent assault that constituted count 2. Doubtless this factor was to the fore of the sentencing judge's mind in making the comments that she did with respect to the appellant desisting. In my view, ground 1 is not made out.

12 Under ground 2, it is complained that the judge was in error in describing the answers given by the appellant in his interview with the police as 'a concocted web of lies'. In fact, the reasons for sentence record that the judge said, 'You in effect gave police a concocted web of lies in an attempt to cover your offending.' Consideration of the record of interview confirms as much. The appellant denied involvement in the offending and then proceeded to tell the police fabricated stories to explain the presence of the two items of underwear in his bedroom, his location at the time of the offending and the presence of cannabis in his bedroom. In the course of submissions, counsel for the Crown identified five aspects of the record of interview that confirm the trial judge's finding. First, he identified the false alibi, the explanation put forward by the appellant that he was working for the bricklayer on the day of the offence. It was emphasised that there was some hesitation and then that assertion was firmed up. Counsel drew the Court's attention to the fact that the offences occurred on 4 March, whereas the employment by the appellant with the bricklaying firm did not arise until some days later, and the record of interview occurred seven weeks after the offending. It was asserted that when the alibi became shaky the appellant said he was at home. Subsequently, when the parents of the appellant were questioned, that alibi was not made out. Secondly, counsel for the Crown pointed out that in the record of interview the appellant sought to place himself away from the scene of the crime. He said that he had not been to the relevant bridge for a period of six years. That later changed to four weeks previously, then six weeks previously, and then, later, to two weeks previously. He then said he may have been at the site drinking a beer but he could not be sure. Counsel relied upon these matters to indicate the way in which the appellant conducted himself to evade the establishment of his guilt, but, more importantly, all versions contradicted his earlier statements. The third matter relied upon by counsel for the Crown was the taking of drugs. The appellant initially said in his record of interview that he did not take any drugs, not even paracetamol. When confronted with the drugs and some medication found in his bedroom, he gave a version of events to the police that four to five years earlier he had been prescribed the relevant drugs as antidepressant medication and that he had had the prescription filled 2 years earlier. He then said in the record of interview that he used cannabis but that it was for a medical condition. Counsel relied upon these inconsistencies to demonstrate that the matters established the contradiction by the appellant of his statement at the outset with respect to the taking of drugs. The fourth matter identified and emphasised by counsel was the circumstances and explanation provided by the appellant concerning the women's black G-string found in his bedroom. He gave stories already described as to whom the item belonged, then, it was submitted, was vague and imprecise and indeed unconvincing as to the identification of the best friend of his who connected the woman known as Jess to the black G-string. Lastly, and most importantly, emphasis was placed upon the beige underwear. Counsel for the Crown pointed out that the relevance of the black G-string was largely to provide background to the circumstances in which the beige underwear was found. At the outset, there was no surprise at its finding, and then the appellant proceeded to provide a story of the numbers of people coming into his bedroom, notwithstanding that the garment bore his DNA and that of the complainant. Counsel for the Crown submitted that it was open to her Honour to conclude that all of these matters, when considered, amounted to a concoction of lies. I accept this submission.

13 It was said by counsel for the appellant that his client had no recollection of the circumstances and that it was reasonable for his client to endeavour to provide the explanation as he did, being only a young man. However, that causes the postulation of the question that if the appellant had no recollection, then surely it was open to her Honour to conclude that he concocted those explanations and told lies? In my view ground 2 is not made out.

14 I turn then to the main ground of appeal, ground 3, namely that the sentence was manifestly excessive. Applying the usual principles with respect to manifest excess,[1] I do not consider that error has been made out. In her careful and considered reasons for sentence, the sentencing judge set out the facts and circumstances of the offending, the behaviour and explanations of the appellant when detected, the nature of the injuries suffered by the complainant, the relevant parts of the victim impact statements of the complainant and her family members, the report of Mr Joblin, the prior criminal history of the appellant, and all relevant mitigating and aggravating circumstances as presented. In particular, the sentencing judge took account of deterrence, the plea of guilty, and also, as she was entitled to do, the remorse of the appellant. In addition, her Honour took account of the prospects of rehabilitation and the age of the appellant, together with his prior criminal history.**

**15 Counsel for the appellant submitted that the mitigating and aggravating circumstances in effect cancelled each other out and that the court below was in a position to weigh up all matters. However, he submitted that particular emphasis should have been placed on the youth of his client. Nonetheless, this was a serious example of rape and, as described by her Honour, constituted a brazen attack in public. Of course it is not the role of this Court to substitute the sentence that it considers appropriate unless it can be established that there has been error on the part of the sentencing judge. There were a series of circumstances that occurred successively in this particular offending. When one weighs up and considers all those circumstances, in my view manifest excess is not made out. It was submitted before us that the sentence was at the high end but not excessive. The sentence was a stern sentence in all the circumstances, but in my view not beyond the range. A number of matters were submitted to the Court by counsel for the Crown that bear this out. I have adverted already to the seriousness and gravity of the offence. In particular, it was open to her Honour to take account of the degrading and humiliating circumstances of the offending and the suffering and its impact upon the complainant. So far as the sternness of the sentence is concerned, counsel for the Crown pointed out that the sentence on the rape count was less than one third of the maximum and that the sentence of seven years was still significantly below the 90th percentile. With respect to count 2, the indecent assault was described by counsel as serious, and he emphasised that the sentence was 20 percent of the available maximum and that it was generally well below the 90th percentile. Ultimately I conclude that, whilst the sentence was stern, it was not so high as to suggest sentencing error.

16 In all the circumstances, I am unable to be satisfied that any error has been made out. I do not consider ground 3 as being established. Accordingly, I would dismiss the appeal.

19 The Court orders that the appeal is dismissed.**

[1] See eg R v Clarke [1996] VICSC 30; (1996) 2 VR 520; R v Allpass (1993) 72 A Crim R 561.