2. During the course of the plea in mitigation, counsel for Mr S. put, as a fact going to mitigation, that consensual intercourse had occurred on four occasions during the eight months of separation; the last occasion being some fourteen days prior to the act of rape. This assertion was not accepted by the Crown and it was necessary to have evidence presented so that a determination of fact could be made.

3. The complainant gave evidence denying that any acts of consensual sex had occurred since separation. She gave evidence of a previous separation and subsequent reconciliation. She was cross-examined about the events which occurred during a weekend near a birthday celebration of her niece. The birthday was 12 March 1991 and the celebration held approximately a week or two after that date. Danny, the son of the couple, had returned home on leave from the Navy to attend the celebration. The complainant, her daughter and husband travelled to the Launceston airport to meet the son on the Friday evening. It was after midnight when the plane arrived, and the party returned to their home town. The complainant denied that she had spent that evening at the former family home. The party occurred on the following evening, a Saturday. She deposed that she again slept at her own house. On the Sunday evening, with the family still assembled, she spent the night at the former family home. Apparently her son was due to catch an early flight from Launceston and she was to drive him to the airport using her husband's vehicle. She said that she spent the night in a single bed in her daughter's room, her daughter sleeping in the other bed. She denied that any sexual contact had occurred with her husband.

4. Although she was not certain as to which night she slept at the family home, I am satisfied that it was during the weekend of the birthday celebration.

5. Mr S. gave evidence as to the events of that weekend. On his version, after the return from the airport, the complainant, without prior discussion, went into her house and came back to the car carrying a change of clothing. She slept that night and the following night in her daughter's room. On the Sunday evening, according to Mr S., he had gone to bed leaving the complainant and her son in the kitchen, talking. It was planned that the complainant would take her son to the airport early the following morning. He claimed that after he had gone to bed, his wife responding to an invitation, entered the bedroom, removed her clothing and that consensual sex occurred. After some five minutes she left and returned to her daughter's bedroom. He further said that at about 5.30am the following morning, he got up and in passing his daughter's room, noticed that his wife was awake. Following some jocular remark, he returned to his own bedroom and was surprised by his wife entering that room, whereupon further consensual sex occurred. He gave no evidence as to the presence or absence of the daughter.

6. Even given the dangers of attempting to predict or understand human behaviour, I would find it difficult to accept that account. If, late at night, the complainant had, because of the emotions of a family re-union decided to share a bed with an estranged husband, it is unlikely that she would leave after five minutes. It would be more likely that she would linger, discussing memories, children and the like. If she returned to the bed the following morning, it is unlikely that she would not have had some further emotional contact with her husband. She would be unlikely to wait (as Mr S. deposed) until his absence to remove, on the same day, all of her remaining personal items from the house. But my finding is not solely dependent on the above inferences. In cross-examination, Mr S. did not present as a credible witness. He said he needed to go to bed to sleep because he had to leave early the next morning, yet stated he was awake 1 and a quarter hours later when his wife entered the room. He knew that it was his wife who turned a light off in the kitchen, although he could not see that part of the room. He could not recount his wife's alleged conversations and generally his answers gave the appearance of inventiveness. I do not accept him as a credible witness.

7. I find that the complainant spent one evening at the family home. She did so because of a family reunion and of the necessity to drive her son to the Launceston airport. No sexual relations occurred between the complainant and her husband. I find that there has been no consensual act of sexual intercourse between the complainant and her husband since their separation.

8. The use of force itself demonstrates an attitude that the act of sexual violence was one of hostility rather than sexual desire. The words used to the complainant, "Well if it is over and we are finished, you are not getting out of this house until I get what I want", are illustrative of a desire for subjugation and humiliation rather than sexuality.

9. The attitude of Mr S. is expressed in the following questions and answers evidenced in the record of interview:

"Q. At the time you inserted your penis into V.'s vagina did

you believe that you were doing so against V.'s will?

A.Yes.

Q.At the time did you believe what you were doing was wrong?

A.No not really.

Q.Why not?

A.Because she's my wife.

Q.Do you believe that that gives you a right to have sexual

intercourse with her at any time you want to, even though she

doesn't want you to?

A.No, I don't."

10. It was put in mitigation that account should be paid to the moral dimension of rape within marriage insofar as it touched upon public perception of the crime. The contention was dependent upon the proposition that since Parliament had only recently reformed the law of rape within marriage, the sentencing process should reflect an understanding of the time in which it takes for the community to accept change, and the sanctions which accompany that change. In other words, if rape within marriage has been non-criminal for much of legal history, then a person convicted of a recently amended law should be dealt with more leniently than one who knew that the crime had always been one warranting sanction. The argument touches the question that a cultural acceptance of behaviour should be reflected in the sentencing process.

11. I reject that approach. The law has never accepted the use of violence in sexual relations between man and woman. It is true that by a process of illogicality it has been accepted that a male could not rape his wife. Without seeking to defend, in any way, that conclusion, it should be pointed out that the law never intended to countenance the use of violence in the determination of sexual relations between husband and wife.

12. The legal process reflected the problem of one sex determining and interpreting a law which was applicable to one half of the population which was precluded from any say in such determination. That process was compounded by the attempt of the common law to define criminal responsibility in an area of human behaviour which was intimate, subject to human passions but dependent upon the consent of one of the parties. The report of the English Law Revision Committee in 1984, quoted in part by the Lord Chief Justice in Billam v. The Queen (1986) 82 Cr App R 347, at p 349, refers to this aspect in the following way:

"We also attach importance to the fact that the crime of rape

involves abuse of an act which can be a fundamental means of

expressing love for another; and to which as a society we

attach considerable value."

13. Most forms of human criminal behaviour - robbery, wounding, theft, etc. - contain no elements of pleasure irrespective of the attitude of the complainant. The human being does not regard a killing as potentially pleasurable. Rape, on the other hand, is a perversion of an otherwise ordinary human act. Its perversion is not sexual but violence or a desire for subjugation of another human being. It was into that complexity that the common law wandered and attempted to erect a philosophical fabric which eventuated in a doctrine that rape within marriage was not criminal. But violence to effect sexual relations did not form part of that process. According to Blackstone's Commentaries, "Rape was punished by the Saxon laws, particularly those of King Athelstan with death ... but this was afterwards thought too hard, and in its stead another severe, but not capital punishment, was inflicted by William The Conqueror, viz., castration and loss of eyes ...". Blackstone, Commentaries, Book IV, (1836) 19th edn. p 211.

14. Probably because of the harshness of the penalty, it was held by law that the woman might redeem the offender from the execution of his sentence, by accepting him for her husband. Given that this was at her option the reasoning, albeit fallacious, was that once she married she could not withhold consent. Given that a person would be reluctant to be responsible for blindness and castration, there would be a logic to the law recognising that "forgiveness" in an effort to ameliorate punishment. The second strand of the law concerned an attempt to ameliorate the status of a concubine (that is, in modern terminology, a de facto partner). At common law, concubinage was a defence to rape because the fact of unlawful cohabitation carried a presumption of law that the intercourse was not against the will of the woman. Therefore it was contended that it would be unfair to give to a de facto husband defences not available to the de jure husband. So it became the law, "... and the reason was, because that unlawful cohabitation carried a presumption in law, that it was not against her will. But this is no exception at this day, it may be evidence of an assent, but it is not necessary that it should be so, for the woman may forsake that unlawful course of life." 1 Hale PC 628.

15. But in the process of that change of law, the legal relationship between husband and wife was forgotten and remained a legal proposition unsupported by the exception upon which it was originally dependent.

16. The third strand concerned the "so called" rights of the marriage contract, which included the sexual relationship. But that concerned the right of implied consent, e.g. the asleep spouse, and did not countenance violence. Hale in his statement, "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract", quotes no authority in support of the proposition.

17. In Lord Leigh's Case [1685] EngR 2135; (1676) 3 Keble 433, Hale (the alleged fountain of the doctrine of the legitimacy of rape within marriage) granted an application for surety of the peace to Lady Leigh for the security of her peace against her husband on the ground of hard usage and fear of life.

18. Immunity from rape carried no implication that the husband, in forcing attentions on his wife, was free from the law of wounding or causing grievous bodily harm. R v Clarence (1888) 22 QBD 23 (dissenting judgment of Hawkins J at pp 51-53). R v Miller (1954) 2 QBD 282, at p 292.

19. In R. v. Jackson (1891) 1 QBD 671 the Court of Appeal held that a husband was not entitled to keep his wife captive to enable him to insist on his right to conjugal rights. In his judgment, Lord Halsbury stated, at p 678:

"I confess that some of the propositions which have been

referred to during the argument are such as I should be

reluctant to suppose ever to have been the law of England.

More than a century ago it was boldly contended that slavery

existed in England; but, if any one were to set up such a

contention now, it would be regarded as ridiculous. In the

same way, such quaint and absurd dicta as are to be found in

the books as to the right of a husband over his wife in

respect of personal chastisement are not, I think, now

capable of being cited as authorities in a court of justice

in this or any civilized country."

And at p 680:

"The return seems to me to be based on the broad proposition

that it is the right of the husband, where his wife has

wilfully absented herself from him, to seize the person of

his wife by force and detain her in his house until she shall

be willing to restore to him his conjugal rights. I am not

prepared to assent to such a proposition."

"A series of propositions have been quoted which, if true,

make an English wife the slave, the abject slave, of her

husband. One proposition that has been referred to is that a

husband has a right to beat his wife. I do not believe this

ever was the law. ... I do not believe that this contention

is the law or ever was. It was said that by the law of

England the husband has the custody of his wife. What must

be meant by 'custody' in that proposition so used to us? It

must mean the same sort of custody as a gaoler has of a

prisoner. I protest that there is no such law in England."

21. The point of the above is that it has never been accepted that violence can be used by a male to force his will upon his wife.

22. This approach is borne out in the more modern cases dealing with the question of the penalty appropriate in cases involving rape within marriage. It is succinctly expressed in a decision of the Court of Appeal of New Zealand in the case of R v N (1987) 2 NZLR 268, where it was said, at p 270:

"We are firmly of the view that in cases of this nature no

separate regime of sentencing is called for simply because

the parties are married or have been in a continuing sexual

relationship. To do so would deny to a woman in that

position the rights over her body which are accorded to every

other woman. ... Parliament has made no distinction in the

penalties between spousal and other kinds of rape, and the

sense of outrage and violation experienced by a woman in that

position can be equally severe."

23. That approach is consistent with authorities in the United Kingdom, see R. v. Cox (1985) 7 Cr App R (S) 422 and Australian States, see R. v. McMinn [1982] VicRp 5; (1981) 38 ALR 565.

24. The existence of marriage cannot be regarded as a matter going to mitigation. In Bellchambers v. The Queen Tas. Unreported No. 94/1982, Neasey J and Everett J, in a joint judgment dealing with an indecent assault within marriage, stated at p 5:

"In our opinion it is beyond doubt that in Tasmania the law

is such that the applicant in this case cannot mitigate the

nature of the act of indecent assault to which he pleaded

guilty by involving a generally discredited and obsolete

principle of the common law in respect of rape. For the

reasons expressed, such a principle is not part of the law of

Tasmania."

25. It cannot be said that the use of violence in the act of rape can be countenanced when the victim of the violence is the spouse of the attacker. It cannot be said that there is cultural acceptance of that fact. It cannot be said that the abhorrence of the law to an act of violence upon a spouse is a new attitude.

26. It was contended that the existence of a prior sexual relationship could be regarded as a mitigating factor, in that it was likely that there would be less trauma associated with the violation of body. I reject that proposition. In R v Clark (1987) 1 NZLR 380 it was contended that because the victim was a prostitute and therefore used to sex with strangers, she would be less likely to suffer trauma as a consequence of the rape. The trial judge had made some allowance for the occupation of the victim. The Court stated in its judgment, at p 382:

"We cannot agree with the judge's approach. Perhaps there is

an instinctive tendency, when a prostitute plying her trade

has been raped, to allow some idea that she may be fair game

to influence the sentence; but, if so, it has to be

carefully restrained."

27. In the English case of R. v. Berry (1988) 10 Cr App R (S) 13, the existence of a previous sexual relationship was not regarded, of itself, as being a substantial mitigating factor. Any suggestions made in the earlier cases of Cox (1985) 7 Cr App R (S) 104 and Stockwell (1984) 6 Cr App R (S) 4 to the contrary were rejected.

28. That disinclination to pay regard to the previous sexual relationship was maintained in two subsequent decisions of R. v. Mills (1988) 10 Cr App R (S) 16 and R. v. Workman (1988) 10 Cr App R (S) 329, these decisions being given by different Benches of the Court of Appeal to the one which was comprised in Berry. The above view was expressed by the Court of Criminal Appeal in the Tasmanian case of R. V. Laredo and Enright Tas. Unreported No.82/1977 in which, in a case where the victim had had a previous sexual relationship with one of the respondents, the court did not regard that relationship as being one which mitigated the penalty.

29. In my opinion, the fact that there has been a prior sexual relationship should not operate as a mitigating factor. It may be that because of a prior relationship there was, in fact, less harm caused to the victim, but the test is to determine the effect of the rape on the victim, and that effect is to be determined by the degree of harm suffered irrespective of its reason. Indeed, a rape victim who had been involved in a previous sexual relationship, may suffer greater harm because of the betrayal of trust or the humiliation of the abuse of physical power. She may have just commenced the process of living a new life, such process being destroyed by the act of betrayal and violence.

30. In this case the complainant suffered trauma. She felt compelled to leave her town of residence. She felt dirty and humiliated by the act. She suffers from an exacerbation of headaches and has trouble sleeping.

32. The entry of a plea of guilty in a rape case can be a proper matter going to mitigation. This is so where the plea can be taken as evidence of a desire to avoid causing further distress to the victim. Discussion of the principles relevant to that process can be found in

Costen v. The Queen (1989) 11 Cr App R (S) 182,

Billam v. The Queen (1986) 8 Cr App R (S) 48, and

Schumacher v. The Queen (1981) 3 A Crim R 441.

33. However, in this case the principle has no application. Although a plea of guilty was entered, it was still necessary for the victim to give evidence in relation to an alleged incident concerning her sexual relationship with her husband. Although this was peripheral to the act of rape, it still necessitated her appearance during the hearing on sentence. It could not be said that she was spared the stress of giving evidence. See Stevens v. The Queen (1986) 8 Cr App R (S) 297, at p 300.

34. I do not intend to attempt to apply a tariff and then adjust the penalty according to factors of mitigation and aggravation. I do not believe that there is a tariff accepted by the courts in Tasmania applicable to the crime of rape. There is a range of penalties dependent upon the particular circumstances of the nature and form of the criminal conduct, the effect on the victim and the subjective characteristics of the offender. See the judgment of Underwood J in O'Brien v. The Queen Tas Unreported No.43/1987, and Reynolds Tas. Unreported No.46/1974, Nettlefold J, at p 12. It can be said that a custodial sentence is warranted in all but the most exceptional cases.

35. In this case the rape was accompanied by acts of physical violence and the humiliation of the victim. The trauma suffered by the victim, although not destructive of her being, was substantial. I accept that the violence used was not over and above the force necessary to commit the rape. I note that in many of the reported cases violence was used on the victim after the rape was completed. That should always be regarded as a matter of aggravation. See Billam v. The Queen (supra).

- Mr S. has no previous relevant convictions.

- He has a good work record and had been a provider for his

wife and family for many years.

- His lack of education and limited experience which may have

contributed to a social attitude concerning the rights of his

wife.

- Evidence of remorse as shown in his asking for the

forgiveness of his wife.

- Absence of threats to life or health.

- No weapon or object was used to effect violence.

- He is unlikely to reoffend.

37. Applying the principles of sentencing as set out above to the range of penalties appropriate in Tasmania, and taking into account the factors applicable in this case, I regard the appropriate penalty as being a term of imprisonment for three years.