R v Rowley [2007] VSCA 94

2 The appellant appeals by leave against sentence for rape imposed by a judge in the County Court. The offence occurred on 7 March 2003, when the appellant was aged 26 years. He was not sentenced until 19 June 2006, when he was aged 29 years. The long gap between the commission of the offence and the date of sentence is but one unusual feature of this case. The appellant was sentenced to four years' imprisonment and a non-parole period of 18 months was fixed.

3 As his Honour rightly said in his very careful and thorough sentencing remarks, the circumstances surrounding the offence were very serious.

4 The victim was aged 22 years at the time of the rape. She had known the appellant from teenage years. They commenced a relationship some 12 to 14 months prior to the offence. The appellant had his own key to the flat where the complainant lived with her small child and he regularly stayed there overnight, perhaps three or four nights a week. In about September 2002 he moved into the flat on a permanent basis. In December 2002 the appellant asked the complainant to marry him and she agreed.

5 After commencing to live together, numerous arguments occurred between the couple, the appellant's jealousy being a major factor. In January 2003 the complainant became pregnant and she told the appellant that she wanted time to herself and asked him to move out of the house. He refused to do so and she obtained an intervention order which forced him to leave. After he had left, she terminated the pregnancy, obtaining funds for that procedure by pawning her engagement ring.

6 Notwithstanding the terms of the intervention order, the complainant maintained telephone contact with the appellant, and he told police that he was frequently invited to come to the flat. On some occasions he had sexual intercourse with the complainant.

7 In March 2003 the complainant phoned the appellant at work to announce that a man, Tom, was going to stay at her home for several days, but she said, falsely, that his girlfriend would also be residing there. The appellant, having been told this, immediately left work and spied on the complainant, observing her kissing Tom. He rang the complainant and told her what he had seen. She was concerned as to his possible reaction. He threatened that he would place on the Internet sexually explicit photographs that they had taken together and said he would send those to her grandparents.

8 After discussing the matter further, the complainant agreed that the appellant could come to dinner on 6 March 2003. The appellant, the complainant and her child drove to dinner, arriving back at the flat at about 9 p.m. After some discussion, it was agreed that the appellant could sleep on the floor or on a couch in the lounge room. The complainant went to bed, leaving the appellant watching television. He came to the bedroom and asked if they could have sex, and she said no. She asked him when he had last showered, and said that he was filthy. He left the bedroom and a few minutes later she heard him having a shower, but then she fell asleep. In his statement to police, the appellant later said that the complainant had agreed to sex if he showered first, but by the time he did shower she had fallen asleep and he returned to the lounge room, where he slept. No finding was made as to the correctness of his account, but the complainant agreed that he had returned to the lounge room.

9 At about 1.40 a.m. on the morning of 7 March, a car containing several men drove to the house and one of the occupants approached the complainant's bedroom window. She whispered to the person that the appellant was present, and the man then left. The appellant heard these events and became enraged, believing that one of the persons in the car was a person with whom the complainant was having an affair. The complainant told him to leave, and she got out of bed and put on some clothes. The appellant grabbed her arm and threw her on the bed. He unhooked the wires from the telephone. The complainant was frightened and crying. The appellant pretended to punch her, causing her to flinch. He threatened that he was going to assault her. He then undid the pants that she was wearing and said, "Want to be raped, do you?", at which he pulled off her pants, forced her legs apart and penetrated her vagina with his penis for about a minute. He then straddled her, pinning her arms against the bed by his knees. The appellant masturbated, then ejaculated over the complainant's neck and face and her windcheater. As he got up, he said, "You whore, for someone who was just raped, you didn't put up much of a fight."

10 The complainant was crying and said she could not believe that he had just done that to her. The appellant then himself broke down and started crying, saying, "Why do you do this to me?" and "I love you so much". He kept saying that he was so sorry, but he refused to allow the complainant freedom of movement, apparently concerned that she would report what had occurred. He told her not to go to the police. He took her purse, for the purpose, as he later told police, of collateral to ensure that his property which was still at the house would not be damaged.

11 The appellant asked to be driven to his residence, and the complainant did so, accompanied by her child. After she drove him home she immediately drove to the Croydon police station, where, barefooted and feeling humiliated, she reported the rape.

12 When interviewed by police, the appellant said he had known the complainant since she was 14 years of age. He said that the intervention order had been taken out five weeks before these events. He agreed that he had had intercourse without her consent. He said he had ejaculated on her jumper. He agreed that she was crying and that she wanted to ring the police, but he would not let her. He agreed, too, that he had pulled the phone cord from the phone. He said that despite the intervention order he had frequently been to the flat with the agreement of the complainant. He said what occurred this evening was a result of his jealousy. He said that during the evening he had taken ecstasy and amphetamine.

13 The appellant claimed that on this evening the complainant had agreed to having intercourse if he had had a shower, but that by the time he had had the shower it was late in the evening and she had gone to bed. He claimed to have cuddled her before departing the bedroom. He slept in the lounge room until he was later awoken by the sound of the vehicle arriving.

14 The appellant told the police that he and the complainant had frequently played sexual games as part of their love-making ritual. He said that the sexual games included games at the request of the complainant, where they acted out rape fantasies. Asked what the complainant's attitude was to what had occurred on this night, he said:

"I feel she might have been a bit uncomfortable with it, but as I've said before, we had a strange sexual relationship and some of those acts took place with her consent, but her pretending that she didn't consent, and there was a lot of, I don't know, games, bedroom games, one might say, and I think one's just been taken too far."

He immediately agreed, however, that the complainant was not consenting on this occasion and had been in tears.

15 After being charged by the police with rape, the appellant quickly notified his intention to plead guilty. Although the offence had occurred on 7 March 2003, the appellant only came before the judge for sentencing on 22 August 2003. At that time, and notwithstanding his plea of guilty, his Honour expressed concern as to whether the plea was properly informed, having regard to the statements made in the record of interview, suggesting that the appellant may have believed that he was engaged in sexual role playing with which the complainant consented, despite giving the appearance that she did not.

16 In his sentencing remarks, his Honour said that he intervened out of concern, not only as to what was said in the record of interview but also because evidence had been placed before him from psychologist Mr Bob Ives about the appellant, disclosing, as his Honour said, "his intellectual deficiency to be marked". His Honour said he was concerned that, notwithstanding his intellectual limitations, the appellant had been interviewed by police without having received any legal advice.

17 As a result of his Honour's intervention, the matter was adjourned and the appellant took advice from senior counsel. He subsequently maintained his intention to plead guilty, notwithstanding apparent advice that he not do so. As counsel for the respondent has conceded, not only was the appellant entitled to full weight for providing an early plea of guilty, but it had particular utility in that a conviction was by no means assured had the case been contested.

18 Remarkably, the case did not return before his Honour until 24 May 2006, by way of mention, the plea itself being completed on 13 June 2006. The extraordinary length of the delay has not been fully explained. As his Honour said, there were circumstances about the case which made it unique, and the delay was one of them.

19 There are five grounds of appeal, ground 1 contending that his Honour gave insufficient weight to the relationship between the appellant and the complainant, ground 2 complaining that his Honour gave insufficient weight to the factor of delay. Ground 3 complains that insufficient weight was given to the early plea of guilty, and ground 4 complains that insufficient weight was given to mitigating factors. Ground 5 contends that the sentences were manifestly excessive.

20 During the period that elapsed between the plea of guilty and sentencing, significant events occurred.

21 Most remarkably, in August 2003, the relationship resumed. Indeed, it had resumed at the time the submissions on the plea of guilty were made to his Honour, on 22 August 2003. The resumed relationship was not without disputation, and the intervention order remained in existence throughout. As a result of the resumed relationship, a child was born to the appellant and the complainant. They remained together until Christmas 2005, when, once more, the relationship broke down.

22 As his Honour noted in his remarks on sentence, one reason for the delay was that the complainant advised the police that she did not wish the matter to proceed. However, after the relationship had again broken down, the complainant advised that she did want the prosecution to continue. Notwithstanding that decision and despite being requested to do so, she refused to provide a victim impact statement.

23 His Honour accepted that, immediately after the offences and throughout the course of the proceedings, the appellant had expressed genuine remorse. His Honour accepted that delay in particular was a very important factor, and he held that no responsibility for the delay could properly be attributed to the appellant. Indeed, his Honour accepted that it was his own intervention which was the primary reason for the delay. His Honour accepted that where a process of rehabilitation had commenced during the course of a period of delay, there was a vested interest in the community assuring that the rehabilitation process was not impeded. His Honour accepted, too, that the appellant had the court proceedings hanging over his head for some three years. As I shall later discuss, Mr Dann submitted that, notwithstanding his Honour's acceptance of those propositions, he none the less failed to give full weight to the factor of delay.

24 The appellant had only one prior court appearance with respect to minor offences of possession and use of cannabis, which did not result in convictions being recorded. In effect he was a person of good character when he fell to be sentenced.

25 When the case first came before the learned sentencing judge in August 2003, his Honour gave particular attention to the report of the psychologist. As a result of testing conducted with the appellant, Mr Ives recorded that he had an overall IQ of 91, which placed him in a low average range. Mr Ives reported that he had limited education but had maintained himself in full employment since the age of 16 years. Character references from employers spoke highly of him. Mr Ives made enquiries of a range of people who had contact with the appellant, and he recorded that "his friends appeared to be unusually adamant in their support of him", their comments being consistent with those provided by employers, who spoke highly of his discipline and stability at work and his easy-going nature.

26 At the age of 20 he had established a relationship with another woman, with whom he had a child, but that relationship broke down. As to the later relationship with the complainant, Mr Ives noted the sexual games that apparently occurred. He reported the appellant's statements that both he and the complainant had on some occasions together used amphetamine and ecstasy. The appellant expressed confusion to Mr Ives as to the rules concerning the enforcement of the intervention order. He said that sometimes the complainant had asked him to visit her and sometimes she told him he was not welcome. Sometimes they had sexual intercourse and sometimes it was denied to him. Mr Ives reported that the appellant "experiences considerable feelings of guilt, sorrow and remorse over his action". Although the complainant told police that the appellant's anger consistently marred their relationship, other persons interviewed by Mr Ives described the appellant as being of a non-aggressive personality.

27 In the course of submissions, the Crown prosecutor advised his Honour that a sentence of imprisonment which was partially suspended would not be inappropriate. In other words, the prosecutor conceded that a maximum sentence not exceeding three years' imprisonment was properly open to the judge. Notwithstanding that significant concession, his Honour concluded that the circumstances of the rape were so serious as to require a sentence longer than three years being imposed, notwithstanding the many mitigatory factors which could be called in aid by the appellant.

28 Mr Dann accepted that it was indeed a very bad rape offence, committed in the complainant's home with a child nearby. He submitted, however, that it was significant that no victim impact statement had been provided by the victim. In my opinion, the absence of a victim impact statement does not demonstrate that there were no adverse long-term consequences for the victim. In this case it is plain from her statement made to police soon after the rape happened that the complainant was terrified by the events that occurred, was greatly upset at the time they occurred, and remained angry and fearful when interviewed by police. She expressed the anger and fear that she felt and said that she was living on edge. She said:

"I hate him and feel sorry for him at the same time. I want someone to stand over him so that he's absolutely powerless. I want revenge like that. I want him to pay for what he's done to me. I'm worried about my friends and family and what Mark could do to them to get to me."

29 It could not be assumed in this case that the failure to make a victim impact statement demonstrated that the complainant no longer had those concerns or any feelings of hostility towards the appellant. None the less, the fact that they had resumed cohabitation raises the possibility that she had been willing to forgive the appellant, perhaps conditionally: see R v Skura[1] and R v Wise[2]. It also raises the possibility that the trauma which she had undoubtedly experienced did not leave permanent or other debilitating emotional consequences. The Court can not speculate, however. The fact that no victim impact statement has been made could be explained on many bases. As noted above, the complainant expressed fear of retribution from the appellant in August 2003, when she made her statement. It would not be fair, however, to draw a conclusion that that remained a consideration for her later decision not to provide a victim impact statement.

30 His Honour was obliged to exercise his own discretion and not to allow it to be overridden by the concession by the prosecutor that in effect a maximum three-year sentence would not be inappropriate. His Honour conscientiously concluded that the circumstances of the rape were so serious that only a sentence of four years' imprisonment would be appropriate, notwithstanding the many mitigating features of the case. Mr Dann conceded that ordinarily a sentence of four years' imprisonment for a rape of this character would not be outside the appropriate range.

31 This is in many ways a troubling case, as no doubt it was for his Honour. The question whether the sentence was within range is difficult. Absent sentencing error, this Court is not entitled to merely substitute its own discretion for that of the judge, and the care with which his Honour approached the task necessitates caution on our part. I have, however, decided that the disposition of this appeal is determined by the outcome of the ground concerning the factor of delay. I have concluded that his Honour fell into error in addressing that factor.

32 In R v Cockerell,[3] Chernov JA (with whom Winneke P and Buchanan JA agreed) held that inordinate delay which occurs between the offending and sentencing, and which cannot be attributed to the offender, should be regarded as being "a powerful mitigating factor on a number of levels". The primary mitigating circumstance arises where, in the period of the delay, the offender has taken significant steps towards his rehabilitation. A second consideration is one of fairness towards the offender, who has had the matter hanging over his head, unresolved, for such a prolonged period. In the present case, those considerations merited great weight.

33 The delay was on any view inordinate. It was not caused by the appellant. In the interim, he took significant steps towards rehabilitation.

34 The appellant was sentenced to a three-months intensive correction order for breach of the intervention order, which order commenced on 22 May 2003 and expired on 21 August 2003. That breach was a relatively minor event, the appellant having come across the complainant in the street at a time when they were estranged, and then swearing at her. The imposition of the intensive corrections order did, however, have positive benefits for the rehabilitation of the appellant. A community corrections officer, who reported on his progress under the ICO, recorded that the appellant had satisfactorily performed all conditions. He had completed 12 hours of community service each week. He performed that work with a Christian church group, providing a barbecue to homeless children and also providing meals to members of the church community. He was described by a pastor as being "fantastic, serving the community in this way". The pastor described him as "a blessing to have around". That was powerful supporting evidence.

35 During the course of the plea in August 2003, his Honour heard evidence from the appellant's mother. She agreed that, notwithstanding the intervention order, the complainant had contacted the appellant on occasions, and she said she was aware that that contact had continued notwithstanding his being charged with rape. She said, as to the intensive correction order, that her son had undertaken it with a great deal of responsibility and he had learned a lot during the course of it. He had learned to exercise tolerance and he had undertaken an anger management course.

36 The victim in this case not only agreed to a resumption of the relationship, but they had a child together. The relationship finally broke down, but there is no reason to doubt the genuineness of the appellant's desire for it to have succeeded. All of those are powerful pointers towards rehabilitation. The process of the appellant's rehabilitation within the community was brought to an abrupt halt by his imprisonment, but the appellant has not conducted himself in prison in a way harmful to his prospects of rehabilitation. The appellant's efforts at rehabilitation have been confirmed in evidence and were accepted by his Honour to be sincere. That is impressive for a person whose intellectual capacity is modest, as Mr Ives attested.

37 The appellant has indeed had these proceedings hanging over his head. By virtue of his exceptionally early guilty plea, the case came before the judge for sentencing only five months after his being charged with the offence. So far as the appellant was concerned, being completely remorseful, he was prepared to receive his punishment in 2003. Instead, he was sentenced in 2006. In the meantime he knew that at any time the sentencing process might be resumed upon the initiative of the complainant, with whom, for much of the time, he was living. Thus, he lived for years without his future being resolved and knowing that at any time he might be called upon to commence a term of imprisonment.

38 In my opinion those factors deserve very great weight being given to them. Of course, so too should the circumstances of the offence and the ordeal of the complainant have attracted full weight by way of denunciation on behalf of the community. In the final analysis, however, and notwithstanding the care with which his Honour approached the task, I am persuaded that the sentence which he imposed, especially the head sentence, did not give the factor of delay in particular the weight it deserved. Mr Dann submitted that the explanation for that emerges from the transcript of the plea hearing. In the course of the plea his Honour observed that it had not been the fault of the Crown that there was delay, and he twice made that observation during his sentencing remarks. It seems to me that his Honour did accord less weight to delay by virtue of the fact that he regarded it as not being the fault of the Crown. That is a wrong approach, as was made clear by Maxwell P in R v Tiburcy and Others[4], a decision of the Court delivered after his Honour had sentenced the appellant. I would uphold ground 2 of the grounds of appeal.

39 Having reached that conclusion as to ground 2, it becomes unnecessary to express a concluded view on the other grounds, but I make some observations concerning matters raised under those grounds.

40 I observe that, despite the fact that it was the possibility of sexual role playing as raised in the report of Mr Ives that led to the delay, there seems to me to be, by his own admission, no basis for concluding that the appellant believed sexual role playing was involved at the time of these offences. Indeed, it is plain from his answers to the police that the appellant, albeit affected by drugs, was angry and jealous and knew that the complainant was not consenting. His plea of guilty confirms that. That is not to say that the sexual role playing had no part to play in the occurrence of the rape.

41 The sexual game playing was acknowledged by his Honour, but he made no finding as to its significance in this offence. However, he quoted an extract from the report of Mr Ives, who said that, whilst many couples indulge in sado-masochistic rituals as a prelude to sexual intercourse, there is an inherent danger, which he described as follows:

"Nevertheless, even at a low level, engagement by couples in such activities has certain potential dangers, namely, once one boundary is crossed it becomes easier to cross subsequent, more extreme boundaries. The relationship becomes somewhat coarsened in that such rituals of rough sex may become all-exciting in themselves and become addictive to the detriment of a couple's satisfaction with more straightforward sex and relationship."

42 As I have said, although the sexual game playing was referred to by the appellant in his interview with police, the sexual penetration on this occasion was not a game. It was done violently, in anger, and with knowledge that the complainant was not consenting. To his credit, the appellant admitted that. As I read the record of interview, he appeared to be querying in his own mind how it was he came to rape someone he professed to love. Whether the past game playing was a factor, when coupled with his drug consumption and his intellectual disability, need not be resolved. What is certain is that the rape was conducted in jealous rage and the appellant knew that it was not a game, either for the complainant or himself.

43 As I have said, it is unnecessary to decide the other grounds of appeal. Having concluded that the sentencing discretion has been re-opened by upholding ground 2, I turn then to the question of re-sentencing.

44 In granting leave to appeal, Callaway JA emphasised that the appropriateness of a head sentence must be assessed on the assumption that the prisoner will serve every day of it.[5] The sentence must reflect the seriousness of the offence of rape generally and the particular circumstances of this offence. The sentence must therefore accord weight to general deterrence and denunciation of the appellant's conduct. On the other hand, there are powerful mitigating factors. As his Honour found, there was no history of past violence and the appellant had what his Honour

described as "a prior unblemished character with high references from friends". Full allowance must be given to the very substantial delay which arose in this case through no fault of the appellant, and the other significant mitigating factors which I have addressed. In my opinion, in the situation that now pertains, the appropriate sentence would be a sentence of three years' imprisonment.

45 His Honour fixed a non-parole period of 18 months. Counsel submitted that if the head sentence was reduced to three years or less, then, save for the period already served, it should be wholly suspended, or at least substantially suspended. In my opinion, it is appropriate that a parole period be maintained. The appellant is a person who, in my opinion, would benefit from the supervision which parole would allow, and it is in the community's interest that that degree of supervision be maintained so as to enhance his prospects of rehabilitation.

46 In my opinion it would be appropriate to order that the appellant not be eligible to be released on parole until the expiration of twelve months.

47 In my opinion, therefore, the appeal should be allowed, the sentence be quashed and in lieu thereof the appellant be sentenced to three years' imprisonment and he be ordered to serve twelve months' imprisonment before being eligible for parole.

2. The sentence imposed in the court below is set aside and, in lieu thereof, the appellant is sentenced to imprisonment for a period of three years.

4. It is declared that the period of 327 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] [2004] VSCA 53 at [47]- [50].

[2] [2004] VSCA 88 at [36].

[3] [2001] VSCA 239; (2001) 126 A Crim R 444 at 447 [10]; see too R v Miceli [1997] VSC 22; [1998] 4 VR 588 at 591; R v Schwabegger [1998 4 VR 649 at 659; R v Tiburcy [2006] VSCA 244.

[4] [2006] VSCA 244 at [25]- [26].

[5] See R v Yates [1985] VicRp 3; [1985] VR 41 at 44-5 and s 5(2AA)(a) of the Sentencing Act 1991.