R v Brown 69/1987; R v Harland-White 23/1997, followed

R v Clarke [1996] VICSC 30; [1996] 2 VR 520; Griffiths v R [1977] HCA 44; (1997) 137 CLR 293; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227; Everett v R [1994] HCA 49; (1994) 181 CLR 295, considered.

Judgment ID Number: [1999] TASSC 30

3 Substitute a sentence of imprisonment of five years as from 8 July 1998.

1 This is a Crown appeal against sentence imposed by Evans J in the Criminal Court at Launceston on 31 July 1998, whereby he sentenced the respondent to four years' imprisonment upon the respondent's plea of guilty to two counts of aggravated assault, contrary to the Criminal Code, s183 and two counts of vaginal rape and two counts of anal rape contrary to the Criminal Code, s185. The ground of the appeal is that the sentence was manifestly inadequate, having regard to all the circumstances of the case.

2 The complainant was a 17 year old school leaver. She met the respondent, then aged 22 years, on the evening that the crimes were committed at a school leavers' party. Prior to the incidents complained of, the complainant and the respondent had danced, kissed and the respondent had rubbed the complainant's breasts. They moved away from the party into a paddock where more kissing and rubbing of the complainant's breasts occurred. The complainant then heard the respondent's zipper being undone and she indicated to him she did not want to do anything further. The respondent then perpetrated a sustained, depraved, violent and disturbing attack upon the complainant. He removed his belt and pulled his trousers down, lent his body against hers and pushed her to the ground. He then pulled up her skirt, pulled her pants down and lay on top of her between her legs. The complainant protested and kept saying "no" but he put both his hands around her throat and thereby prevented her from breathing or talking. He held her very tight and told her to "shut up". He touched the outside of her vagina and then inserted a finger or fingers into the vagina. A male voice, apparently some distance away, called out and inquired whether everything was all right. The respondent held the complainant's throat even more tightly and said, "yes, everything is fine". Again, the complainant found it impossible to breath and the respondent inserted his penis into her vagina. The complainant says that this was very painful. The respondent thrust his penis in and out forcefully about fifteen or twenty times. The complainant tried to induce him to desist by pulling his hair, but it had no effect. He removed his penis after a time and then started to release the pressure from her throat. He rolled her over and then tried to force his penis into her anus. She squirmed about, trying to stop him. Again, he grabbed her around the throat and she could feel saliva and bubbles of fluid in her mouth as he was strangling her. She also felt a considerable build up of pressure inside her head. Eventually, the respondent achieved his purpose and his penis penetrated her anus, causing extreme pain. He thrust his penis in and out approximately fifteen or twenty times. Whilst doing this, he released the pressure on the complainant's throat and he then alternated between penetrating her anus and her vagina about five times, thrusting his penis in and out of the relevant orifice approximately fifteen to twenty times each time. The complainant thought that the respondent was going to kill her and she was afraid for her life. It would appear from the circumstances described to the Court that the respondent did not desist from his brutal conduct until he had ejaculated. When this occurred, he collapsed on top of the complainant and said, "I'm sorry I can't believe I just did that" and he repeated that he was sorry on several occasions. To placate him and ensure that she was not further injured, the complainant reassured him that she would not say anything about what had occurred. She returned to the place where the party was being held, but her distress was evident to a friend and the complainant tearfully told her all that had happened. She was taken to the police station where she reported the rape and she was subsequently examined by a medical practitioner who found that the complainant's face was swollen and bluish in colour, attributable to multiple pinpoint bruises (petechiae). Both eyes had bled into the lower half of the conjunctiva and there was bruising over the upper eyelids. There was bruising on the inside of both lips and the nose had also been bleeding. Around the neck there were multiple thin red marks following the curve of the neck and there were a number of bruises to the complainant's body. A genital examination disclosed that the labia minora was red, swollen and tender and there were two large recent fissures in the anus, one anterior and one posterior. The injuries to the complainant's face were illustrated by photographs tendered both to the sentencing judge and the members of this Court. The examining medical practitioner expressed the opinion that the injuries were consistent with a severe strangulation injury which could have been life threatening. A scientific examination of swabs taken from the complainant's anus and vagina indicated the presence of spermatozoa.

3 The respondent was interviewed by police the following afternoon and admitted that he had had intercourse with the complainant, but alleged that it was consensual. He was charged and remanded on bail and, on 14 January 1998, he was committed to appear in the Supreme Court on 3 February 1998. On his appearance on that date, he was bailed to appear again on 17 March, but he absconded from bail and fled to the mainland where he was subsequently located living under a false name. He was extradited back to Tasmania and was remanded in custody on 8 July 1998.

4 After the incident, the complainant suffered flashbacks and quite dramatic mood swings. It is apparent that she still experiences nightmares and from time to time calls out in her sleep. She is afraid to go out on her own at night and she expressed concern about her safety when she learnt that the respondent had initially been released on bail. Her anxiety was increased when he absconded, as she was then unable to put the incident behind her, believing, no doubt, that she would need to give evidence when he was eventually apprehended. She has been materially aided by a supportive family and friends and fortunately she appears to have survived her dreadful ordeal somewhat better than might have been expected.

5 The respondent has no prior convictions for sexual offences, although he has previously been charged with rape. This fact was disclosed to the Court of Criminal Appeal by his counsel for the purpose of sustaining an argument that this Court, if satisfied that the sentence imposed was manifestly inadequate, should nonetheless, as a matter of discretion, refrain from increasing the respondent's sentence. I will return to this matter later.

6 Generally speaking, the respondent's background is unremarkable. It was claimed that he was substantially affected by alcohol at the time of committing the present offences. It was suggested that he legitimately expected to have sexual intercourse with the complainant in light of the heavy petting in which she had indulged prior to the rapes, but I do not accept this submission, having regard to the point at which the complainant made clear her lack of consent. He expressed shame and contrition, although his counsel conceded that it was "a bad case of rape". The respondent, in an unusual move, personally addressed the sentencing judge, saying:

"I have the deepest regret and sorrow for all affected from the crime that I've committed for I realise the impact not only falls upon the victim, [complainant], but upon anyone close to her; her family, friends, and anyone known to her or her family. I myself have become a victim of my own stupidity for having committed these atrocities. I'm at a loss to explain why. I lost all self-control and wouldn't take no for an answer. Maybe they were learned processes deep within subconscious as I have been a victim of child sexual abuse a long time ago. I shall be seeking counselling to aid in my rehabilitation. I apologise for the drawing out of the processes of justice by my absconding and the extra stress on all involved. I ran because I couldn't accept what I had done. I was suicidal and I could not cope. I now understand my acceptance and admission is all part of healing the wounds that I inflicted and the wounds within. During my travels in soul-searching I met a wonderful woman and found love. Within a short period of time be became engaged and now she plans to move to Tasmania at the end of the year. We will be married before I leave jail. Never at any time have I set out to hurt anyone. And for what it is worth I am deeply sorry."

7 The learned sentencing judge in imposing sentence commented that the respondent's crime was "most serious and repugnant to our society." He continued, "It warrants a penalty which recognises the community's outrage at this sort of violation of a young person." The sentence of four years' imprisonment was backdated to 8 July 1998, being the date on which the respondent was first taken into custody.

8 The concession by the respondent's counsel that this was a bad case of rape was plainly correct. Rape is a crime which can vary significantly in its seriousness, depending upon such things as the age of the offender and his victim, the existence of any prior relationship between them, the duration and nature of the ordeal inflicted upon the victim, the degree of violence employed and the nature and depravity of the acts and offences committed during the criminal episode. In R v Brown 69/1987, I referred to R v Billam [1986] 1 ER 985, as providing useful guidance as to those factors which should be considered when imposing sentence for rape. Neasey J agreed with my comments. We were invited by both Crown counsel and counsel for the respondent to peruse details of convictions and comments made by sentencing judges when imposing punishment for rape in this Court in recent years. I find such a process of limited assistance. As was illustrated during the presentation of argument, those sentences imposed by individual members of the present Court often had significant features, either of aggravation or mitigation, which were not fully apparent from the comments made.

9 I think Ms Geason was correct when she said that the general range of sentences imposed in respect of one criminal episode involving rape has been between three and eight years. This, however, does not mean that a sentence falling within those extremities can be said to fall "within range" as that phrase is understood in respect of sentencing appeals as contended by Mr Ellis. I am left in no doubt that if I had been sentencing the respondent at first instance, I would have imposed a sentence of not less than six years in duration. That, in my opinion, is the lower end of the range for a brutal and depraved attack of this kind involving, as it did, the very significant aggravating circumstance that the complainant suffered strangulation during a significant period of the relevant events. In my opinion, the sentence imposed fell so far below that which I would regard as being appropriate, that I cannot do other than consider it to be manifestly inadequate.

10 This, however, is not an end of the matter because, as was acknowledged in R v Harland-White 23/1997, there is a significant discretion residing in an appellate Court as to whether or not it should intervene to impose a heavier sentence. Counsel for the respondent submitted that there were two matters which should cause the Court to decline to increase the sentence. Firstly, he submitted, that there had been a delay between the imposition of the sentence and the hearing of the appeal. If the period of time involved, that is approximately six months, can properly be termed "delay", I do not regard it as of any significance. Arguably, the matter could have been brought on for determination during a previous sitting of the Court of Criminal Appeal but, with the acquiescence of the respondent, this was not done.

11 The second argument advanced in favour of our declining to increase the sentence was based upon the previous charge of rape. The respondent was imprisoned from 16 February 1996 to 15 March 1997 when the High Court overturned his conviction on that previous rape count and ordered a new trial. The retrial never took place and a nolle prosequi was entered by the Crown. The circumstances of this decision by the Crown were explained by Ms Geason and, without examining the same in detail, it seems that the reasons for dropping the matter had nothing to do with any perceived deficiencies in the Crown case but, on the contrary, depended significantly upon the consideration that the respondent would have had only four months to serve before being eligible for parole if he had served out his three year sentence. The circumstances as described to us would, in my opinion, not warrant this Court in giving credit to the respondent for the period of time served between February 1996 and March 1997 against any sentence that he should properly serve in respect of the current offences.

12 There remains, of course, the question of double jeopardy discussed in the decision of R v Clarke [1996] VICSC 30; [1996] 2 VR 520 and which was referred to by this Court in R v Harland-White (supra). Giving due recognition to that principle, I am of the opinion that the sentence of four years' imprisonment imposed upon the respondent should be set aside and in lieu thereof a sentence of 5 years' imprisonment should be substituted to run as from 8 July 1998. The victim of crime compensation levy ordered by the sentencing judge should remain undisturbed.File No CCA 71/1998

13 I have found it difficult to resolve the question whether the sentence of four years' imprisonment was so erroneous that the Court must intervene and increase it. Eventually I have concluded that because I am not positively persuaded that the Court must do so, the appeal should be dismissed.

14 If the sentence had been imposed following a trial at which the complainant had given evidence, I would not have hesitated from concluding that the sentence was manifestly inadequate and required the intervention of this Court. I concur with the condemnation of the respondent's crimes which was expressed by the learned sentencing judge and which has also been expressed by the other members of this Court. The respondent violated the young woman in dreadful ways, with no sympathy for her until after it was all over. He used brutal force. It is obvious that substantial imprisonment was called for and with respect to the learned sentencing judge, the sentence of four years' imprisonment was light for these crimes.

15 Nevertheless, it is not the function of this Court to overturn sentences merely because they are light. The sentencing discretion is a wide one and particularly on the hearing of Crown appeals a sentence must be shown, at the very least, to be manifestly inadequate to the point of clear error before this Court should consider intervening.

16 The respondent was entitled to have the length of the term of imprisonment reduced from what would otherwise have been an appropriate length because he pleaded guilty, thereby saving the Crown from having to prove its case and the complainant from having to give evidence, both at a committal hearing and at trial. The learned sentencing judge gave no indication of the discount he applied, but there is no reason to think that his Honour did not have regard to those matters. Counsel for the respondent, a respected and senior counsel, informed the learned judge that following his arrest and police interview, the respondent was distraught and remorseful (although not making full admissions of what he had done) and instructed counsel to waive committal proceedings on the basis that he did not wish the complainant to have to give evidence. Following his absconding and subsequent arrest, he quickly pleaded guilty and was sentenced within about a month of that arrest. These matters were all material and justified a reduction in the length of the sentence of imprisonment.

17 Concerning whether this Court should exercise its discretion not to allow the appeal and increase the length of the term of imprisonment, counsel for the respondent urged the Court to have regard to the fact that the respondent was imprisoned from 16 February 1996 to 15 March 1997 following his conviction for a previous charge of rape which was subsequently overturned by the High Court. A retrial did not take place because the Crown entered a nolle prosequi. The law deems him to be innocent of that crime, his guilt not having been proved. That he served thirteen months' imprisonment for a crime of which, by law, he is deemed to be innocent and that the period of such imprisonment ended only about sixteen months before his present imprisonment commenced, are matters to which the respondent is entitled to draw to this Court's attention when determining whether or not to intervene on this occasion. Because he was not accorded justice, he spent thirteen months in prison with regard to a crime which he was not proved to have committed. On this occasion, the Crown complains that justice was not done because he was not sentenced to a term of imprisonment which was long enough for the crimes which he has been proved to have committed, on his own pleas of guilty. I agree with his counsel's submission that there may fairly be a balancing of the scales in his favour having regard to justice not being done to his detriment, not long before.

18 In all the circumstances, therefore, I am not persuaded that the sentence of four years' imprisonment was so inadequate as to warrant the intervention of the Court and I would dismiss the appeal.

19 I have read in draft form the reasons for judgment of Wright J and agree with both his reasoning and his conclusion. The principles of appellate review of sentence as stated by the High Court in Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 and Everett v R [1994] HCA 49; (1994) 181 CLR 295, are met by the substitution of a sentence of imprisonment of five years, rather than a longer term. A sentence of imprisonment of four years for rape might be immune from review because of the principles of double jeopardy and respect for judicial discretion. The residual limitation governing the approach to Crown appeals against sentence remains, despite the amendment to the Criminal Code, s401(2)(c), (R v Harland-White 23/1997). But in the circumstances of this case the degree of violence used by the respondent, which was greater than that required to achieve the purpose of rape, shows the conduct was an exercise in power and degradation rather than sexual gratification simpliciter. The act of strangulation and physical injuries inflicted on the complainant required the sentence to be towards the upper level of the range of sentences imposed in respect of a single act of rape.

20 In my opinion, the sentence of four years' imprisonment should be set aside and in lieu thereof a sentence of five years imposed, such sentence to commence as and from 8 July 1998.