R v Mason [2001] VSCA 62

5. Pursuant to leave, the appellant appeals against that sentence, contending that the judge was in error (inter alia) in failing to give sufficient weight to the pre-existing relationship between the appellant and his wife; failing to sufficiently recognise the fact that the victim was expressing a degree of sympathy for the circumstances of the appellant following the events in question; failing to have proper regard to the victim's post-incident behaviour which indicated that she was not as traumatised by the offences as would be the case if she had been assaulted by a stranger; and failing to give proper regard to the fleeting and limited nature of the act of penetration. In addition it is contended that the sentence imposed is manifestly excessive for a variety of reasons.

8. The case presented a difficult sentencing exercise for the learned judge, who recognised as much in his careful sentencing remarks. It was also a case in which the circumstances were such as to provoke substantial sympathy for the appellant. The appellant and the victim had known one another for many years. Indeed their relationship was one which had been in existence for nearly 13 years, from a time when he was about 19 and she was 16. They were married in 1992 and by the time of the offences they had two children - a girl aged six and a boy aged three - to whom the appellant was much devoted. It appears that the relationship commenced to turn sour in November 1997 or thereabouts, when the appellant lost his job with Cadburys - a job in which he had been well settled and which he had held for some ten years but which he lost as a result of his theft of some chocolate from his employer. This appears to have caused the appellant, a man of hitherto impeccable character, to become depressed. He started to use cannabis more heavily than he should have. For whatever reason, in May 1998 his wife commenced to have an affair with a married man (whom I shall call "F"). That event appears to have preyed heavily upon the appellant's mind. He commenced to brood and became increasingly depressed, and in June 1998 he attempted suicide. Very shortly after this depressing event, his wife chose to leave him and took the children with her. The appellant was clearly not in a state of mind to cope with the separation, and the relationship between his wife and F appears to have become an obsession, in part because his children had been removed from him and his belief that they were not being adequately cared for. He went to see the wife of F, an event which seems to have achieved little except the incitement of her antagonism towards the appellant's wife. Although his wife took out an intervention order against him, the appellant and she continued to have consensual contact. In the event, it would seem that the wife temporarily ceased her relationship with F towards the end of 1998 and thereafter, for a short period of time, it looked as if the parties might be able to reconcile. However, in 1999 the wife commenced to see F again, and this led to a further outbreak of depression and anger in the appellant, during the course of which he slashed the tyres of F's car. As the judge put it, it became clear that the appellant could not cope with his wife's involvement with F. Indeed, on one occasion, he went to F's house and an altercation ensued in the course of which F was assaulted. Although, no doubt, his underlying motive was jealousy, he believed that a married man was neither a good influence upon his wife nor upon his children. It was in this frame of mind that the appellant, on 12 February 2000, went to his wife's house to collect the children for access. An argument broke out between them before the appellant left with the children. Not long afterwards he returned to his wife's house in an agitated state, leaving the children outside in the car. He took his wife into the house, berating her about her conduct with F. In the bedroom he grabbed her by the crotch and lifted her up, slamming her into the bed on a number of occasions. This was the indecent assault alleged in count 1.

11. Nasty as this event was, it was a precursor to the more serious and prolonged events which occurred some three days later. In the intervening period the appellant had behaved in quite an irrational manner; following, pestering, phoning and attempting to intercept his wife. On 15 February the appellant drove to her house. He broke into the house through a window whilst his wife was absent taking the daughter to school. When she returned she found the appellant inside in a state of agitation over Valentine Day messages which she had received from F. The appellant appears then to have totally lost control. As his wife walked from the kitchen to the lounge room, the appellant threw her into a chair, put his hands around her throat and commenced to choke her. Clearly she was struggling to swallow and breathe, but the appellant continued to maintain the pressure, all the time screaming at her. This event constitutes the common assault alleged in count 2. Ultimately the appellant let her go. He continued to abuse her and slapped her hard across the face, telling her it was "her fault". He followed her into the bedroom, making loud and obscene remarks about her conduct with F. He tried to pull her pants down and she resisted. His wife believed he was going to rape her and said as much to him. He denied that he was, or would. The young son entered the room and the appellant left, going outside on the porch. Then he came back in, saying, "There's one more thing I want to see." His wife tried to flee the room but he grabbed her, pulling her pants down and saying, "This is what I want to see." He ripped her underwear and she went to her knees to prevent him from removing it. Then he pushed her backwards on to the floor, putting his hands between her legs, and penetrating her vagina with his finger. She picked up the wand of a vacuum cleaner to ward him off. He took it from her and threw it at her. By this time the young boy was in the room. The wife picked him up and ran from the house. She put the boy in her car, and they fled. The appellant pursued them in his car. She then drove to the police station where, later in the day and by arrangement with police, she made a call to the appellant during the course of which she secured admissions to the events which had earlier occurred. Those admissions were recorded. These events - at least that of the digital rape - were the subject of count 3.

14. The circumstances to which I have just referred appear to have acted as the "circuit breaker", following which the appellant has gradually pulled himself together, recognised that the marriage was no longer viable and has got on with his life. Much evidence was put before the judge to show that he was now settled and in a relationship with another woman. Relationships between him and the children have been re-established. With his customary thoroughness, the judge reviewed the events to which I have referred and the evidence of the appellant's behaviour between February 2000 and the date of sentence, and was able to conclude that he was over his obsessional jealousy and that specific deterrence was not a factor in the sentencing process. However, his Honour was of the view that the appellant's behaviour - particularly that of 15 February - was so serious that he could not accept the submission made on his behalf that any term of imprisonment imposed should be wholly suspended. After carefully analysing the competing principles to be weighed in the sentencing process, the judge took the view that immediate incarceration was necessary to give proper effect to general deterrence, denunciation of the appellant's conduct and just punishment of it. He believed, however, that the circumstances warranted a shorter than usual non-parole period and, hence, fixed a period a little more than one-third of the head sentence.

17. In support of the principal grounds of appeal to which I have earlier referred, Mr Croucher, who appeared in this Court for the appellant, submitted that his Honour had erred in the exercise of his sentencing discretion, particularly in fixing a sentence of three years for the rape alleged in count 3. He referred to a number of authorities, both in England and Australia, which he said supported the proposition that where rape occurs against the background of a previous settled sexual relationship, it should be regarded by a sentencing court, at least in circumstances such as existed here, as less serious than a rape by a total stranger. The cases to which he referred include Berry[1] and the authorities referred to therein, Wiren[2] and Halliday[3]. It was Mr Croucher's submission that his Honour had failed to take account of this significant mitigating factor.

20. I have read these cases, to which Mr Croucher referred, with some care and, as I think one would probably suspect, the sentencing remarks in each of them, with the exception perhaps of Halliday, are closely confined to the facts of the case in question. I do not regard them as laying down a sentencing principle of inflexible or universal application. A rape committed in the context, and against the background, of a previous settled relationship may in certain circumstances be a factor which a court can take into account in mitigation where it can be seen that the impact upon the victim has, for that reason, been less traumatic than otherwise it might have been. But, equally, it is not difficult to imagine a rape, committed by a man who has been in a previous relationship with his victim, which would be every bit as frightening as a rape committed by a stranger. The one thing which the authorities to which this Court has been referred 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[4].

23. It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms. In a society in which there is an increasing number of couples becoming estranged, the courts have a heightened obligation to deter those who have previously lived in a stable relationship with a wife or partner from regarding such wife or partner as akin to a chattel devoid of rights or freedoms, and as an object readily available for their sexual gratification. These principles, in my view, were correctly applied by this Court in R. v. Harris[5], particularly by Charles, J.A. (with whom Phillips, J.A. agreed) at 27 and by my brother Tadgell, J.A. at 28. It is worth repeating what Tadgell, J.A. said:

"In particular it might be said that his Honour purported to apply a principle to the effect that rape by a man of his wife or former wife or a person with whom he is or has been in a close relationship is to be treated more leniently than rape by a stranger. The authorities do not appear to support any such principle. The most that can be said, in my opinion, is that the penalty to be imposed for the crime of rape cannot be regarded as necessarily conditioned by the relationship of the parties to it. Any relationship, or lack of it, between them will no doubt usually fall to be considered as one of the circumstances to be taken into account in a determination of the appropriate penalty. In some circumstances a prior relationship may serve as a factor of mitigation, but it need not, and it may indeed serve to aggravate the offence."

These principles have been applied, as Mr Salek, who appeared with Ms Apsitis for the respondent, has correctly observed, by other courts in other States[6].

28. His Honour's sentencing remarks demonstrate that he correctly applied these principles. I cannot accept Mr Croucher's submission that he overlooked the existence of the pre-existing relationship as a mitigating factor. The judge was, as his sentencing remarks demonstrated, acutely aware of the relationship between the parties and it is clear, in my view, that that relationship played a large part in influencing him to the penalties which he imposed. He was fully alert to the victim's post-incident behaviour, upon which Mr Croucher so heavily relied, and the fact that that behaviour did not indicate the degree of physical trauma which might be expected to be found if the violation had been perpetrated by a stranger. Indeed, I agree with Mr Salek that his Honour's interpretation of that behaviour was more charitable to the appellant than perhaps was warranted by the material before the Court.

31. Nor can I agree with the appellant's submission that his Honour over-characterised the nature of the rape in this case, which counsel on the trial had described as "an aggravated indecent assault". It was put that this episode should have been viewed as an act of "non-sexual violence born of jealousy and loss of self-control accompanied by a digital penetration at the lower end of the scale of seriousness", and that this should not have been punished seven times more severely than the count of common assault which had preceded it. I cannot agree. The submission overlooks the degrading nature of the act and the humiliation to which the victim was subjected. It seems to me to matter not what the motive was, but his Honour was entitled to regard it as an act of self-assumed dominance in which lust, a desire to humiliate, jealousy, punishment and anger all played a part. The statement which the victim made to the police on 16 February 2000, a copy of which was before the judge and which has been provided to this Court, bears eloquent testimony to the state of fear to which the victim had been reduced.

34. Finally, it was put that the sentence on count 3 was manifestly excessive when one takes into account the admissions made, the plea of guilty, the remorse, the otherwise good character of the applicant and his personal circumstances. All of these matters were taken into account by his Honour. I can detect no error in his Honour's appraisal of the offences, nor the manner in which he exercised his discretion. Despite the sympathy which the appellant's plight necessarily provokes, I can detect no error in the exercise of his Honour's sentencing discretion. Accordingly I must dismiss the appeal.

38. I agree that the appeal ought to be dismissed.

46. The formal order of the Court will be that the appeal is dismissed.

[1] (1988) 10 Cr.App.R.(S) 13.

[4] Schubert [1999] VSCA 25; Latham [1999] VSCA 132.

[6] See for example R. v. Harradine (1991) 61 A.Crim.R. 201 at 204 per White, J. (S.A.); and R. v. Stephens (1994) 76 A.Crim.R. 5 at 6 (Qld); R. v. McCauley [2000] QCA 265.