R v Schubert [1999] VSCA 25

Court of Appeal (Vic)|1999-02-23|Before: WINNEKE, P., BROOKING and ORMISTON, JJ.A.

The applicant pleaded guilty at the committal. Much character evidence was placed before the judge on the plea, in the form both of testimonials and of oral evidence. In addition there was a report and oral evidence from a psychologist. The psychologist blamed the applicant's behaviour on sexual frustration following the death of his wife.

The wife had died in tragic circumstances in 1993 at the age of 37. The couple had two sons and two daughters who, by the time of sentence, were aged between 14 and 21. At the time of sentence all but one of them were living with their father. There was evidence that he was devoted to his children, having brought them up alone after his wife's death, that he was an excellent family man, having changed his work in order better to be able to care for his family, and that he had been for many years very active in the affairs of his church. The judge found that he had displayed real remorse. It may be said that the applicant had an excellent character at the time of the offence.

(a) the personal circumstances of the applicant prior to and at the time of the offence, namely -

(i) the sexual repression of the applicant since the death of his wife;

(ii) the personal anxieties and concerns of the applicant regarding his son Matthew.

(b) the spontaneity of the offence;

(c) the remorse of the applicant;

(d) the previous good character of the applicant.

But the reasons for sentence show that all these matters were considered, and so the ground really gives particulars of the complaint of manifest excess.

Ground 2 is that the judge erred in concluding that the circumstances of the offence did not place it at the lower end of gravity of offences of this kind for sentencing purposes. The sentence itself shows that this suggestion is unsound. Moreover, what the judge said is: "This instance was not at the upper end of gravity but neither is it of minimal gravity." I see nothing wrong with that remark. I certainly do not accept the further submission of Mr Kent, senior counsel for the applicant, that the judge fell into the remarkable error of thinking that any digital rape was, regardless of the circumstances, necessarily to be dealt with as severely as a penile rape.

Ground 4 is that the judge erred in giving too much weight to general deterrence in the circumstances. This really comes down to an argument in support of the manifest excess ground. General deterrence was beyond doubt a relevant consideration, and nothing in what the judge said suggests to my mind undue emphasis.

Then there is ground 3, that the judge failed to give proper consideration to a wholly suspended sentence. Plainly the judge gave consideration to this possible disposition. It was discussed at some length with counsel. Despite the passages to which Mr Kent drew attention in this discussion, I do not think it should be said that the transcript shows that the possibility of a suspended sentence was not given proper consideration.

Notwithstanding everything that has been said on the applicant's behalf, I am certainly not prepared to say that it was not open to the judge to determine that an immediate custodial sentence was appropriate. I have a clear view on this question. I think it was well open to the judge to form the view that the appropriate sentence was one of imprisonment coupled with the fixing of a non-parole period. To my mind that was the obvious disposition. The head sentence is of four years. It is put that this is an unduly severe sentence for this offence when regard is had to everything that can be said in mitigation, both with regard to the offence and with regard to the offender. But I have come to the conclusion that a sentence of four years, while high, is within the permissible range.

We were pressed with the decision in R. v. Soo, unreported, Court of Appeal, 30 October 1997. Soo was a 37-year-old businessman, married with two children. The parents of a 21-year-old girl who had just completed her studies in computer technology ran a small shop at which Soo was a customer. They, like he, were immigrants from Malaysia, and they felt a certain affinity with him. They asked him if he could help her find a job, knowing him to be a businessman with a family and trusting him as a respectable person. They made the mistake of introducing him to their daughter. He got her to prepare a resume for him, as he said, to show to possible employers, and asked her out to dinner. She accepted, knowing him to be married and believing that they would be discussing her career prospects and that others would be present. Soo made detailed preparations, including obtaining two kinds of stupefying drug and a hotel room for the night. They had dinner at a restaurant. She resisted his amorous advances. She was not used to drinking liquor, but he filled her up with liquor, some of it laced with the two drugs, until she became stupefied. He drove her to the hotel and somehow got her into the bedroom and lifted her on to the bed. A long and violent struggle ensued. She told him (as was the fact) that she was a virgin and had a boyfriend. He overpowered her and raped her digitally. After pleading guilty, he was sentenced to two years' imprisonment for rape, wholly suspended, with a fine of $800, such as might have been imposed for a significant traffic offence. The Director of Public Prosecutions appealed. Against the forceful dissent of Tadgell, J.A. the appeal was dismissed.

Each case is different. Soo is a striking case, and I do not find it of assistance in the determination of the present case. My own view is that, generally speaking, a digital rape should result in an immediate custodial sentence of substantial duration, and that the sentencer should ensure that a substantial part of that sentence will be actually served. Of course, there are no absolute rules, but, generally speaking, notwithstanding a plea of guilty, previous good character and genuine remorse, a rapist, whether the rape is digital or of a different kind, stands in very grave danger of an immediate custodial sentence.

In this case the non-parole period fixed was, as I have said, short in relation to the head sentence. There is certainly no occasion to interfere with it. I would allow this sentence to stand.

I agree that the application should be dismissed for the reasons given by Brooking, J.A. I will simply add this. Although I think the head sentence is a high one having regard to the sympathy-provoking circumstances as found by the judge, I cannot say that the sentence itself falls outside the range of sentences available to him.

I cannot entirely agree with Mr Kent that this rape was "the least serious example" of the offence, because the offence cannot be wholly separated, in my opinion, from its effect on its victim, and in this case the victim has clearly suffered emotionally as a consequence of the uninvited invasion of her body. This, of course, is why this crime, no matter how one categorises its circumstances, is punishable by such a heavy maximum sentence. I thus cannot agree that this crime, with all its attendant circumstances, was too highly penalised by a sentence which, after all, was less than one quarter of the maximum.

Notwithstanding the majority decision of this Court in Soo (which, after all, was a Director's appeal), there will be very few crimes of rape, digital or otherwise, which in my opinion will warrant a non-custodial sentence.

Although I have been impressed by the powerful arguments put by Mr Kent on behalf of the applicant, I am in the long run of the view that the exercise of his Honour's sentencing discretion has neither been disclosed as erroneous, nor can the sentence be shown to be manifestly excessive. I would accordingly dismiss the application.

I agree. I agree in particular as to the comments made about the unreported case of R. v. Soo. I would reiterate my comments made as to the definition of rape and the circumstances which must always be taken into account, which I expressed in R. v. Lomax [1998] 1 V.R. 551, at 558-9.

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

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