R v Simon [2010] VSCA 66

1 The applicant, Daniel Simon, stood his trial in the County Court at Geelong on a count of indecent assault and two counts of rape. It was alleged by the Crown that the offences were committed on 28 April 2007, the indecent assault being a touching of the complainant's breast, and the two rapes being digital/vaginal and shortly separated in time. The jury found the applicant guilty on all counts. On 1 October 2008 he was sentenced to six months imprisonment on the count of indecent assault, and to four years imprisonment on each count of rape. The learned sentencing judge treated the applicant's offending as 'effectively . . . one continuous episode.' He made no orders for cumulation. The total effective sentence was thus four years. The judge fixed a non-parole period of two years.

2 Now the applicant seeks leave to appeal against both conviction and sentence.

3 There is a single ground on the conviction appeal. As amended without objection on the hearing of the appeal, it is as follows:

The learned trial judge erred in foreclosing for the jury a proper consideration of whether the Prosecution had proved the elements of the offences in counts 1 to 3 on the presentment by confining the jury's consideration of the evidence to the issue of whether or not the applicant entered the complainant's bedroom on the night in question.

4 The grounds of the sentence application are as follows:

1. The learned judge erred in sentencing on counts 2 and 3 on the basis articulated in paragraph 10 in the reasons for sentence.
2. The sentences imposed on counts 2 and 3 are manifestly excessive.

5 Many of the circumstances of the matter were not in issue. The applicant, a man aged 22 at the relevant time, was best friends with H. The latter was in a relationship with the complainant, a woman then aged 18. The three of them attended a birthday party for another friend on the night of 27 April 2007 at a club in Colac. All of them consumed a good deal of alcohol. At night's end, all were alcohol-affected, probably H to the greatest degree.

6 In the early hours of 28 April the three of them walked back to the home then occupied by H and the complainant. They sat and talked in the lounge room. After a while, the complainant went into the bedroom and changed into a nightie (but still wearing her underpants). She returned to the lounge room. She and H engaged in a play fight. Then H, and shortly thereafter the complainant, went to bed. Both of them went to sleep.

7 At the time when the complainant went to bed, the applicant remained in the lounge room.

8 What then followed was the subject of controversy. The complainant gave evidence in chief that she awoke (though she remained half asleep) to find a hand rubbing her left breast, and the finger[1] of another hand going in and out of her vagina. Those alleged acts were the subject-matter of counts 1 and 2.

9 Initially, according to the complainant, she thought that H was doing these things. But then she realised that this could not be so, because H was in front of her, and the hands were coming from behind. She was 'really confused', but 'after a bit' realised who it was. She tried to wriggle away, she said, and to push the (applicant's) hands away.

10 On her account, the finger was removed from her vagina 'for a minute'. She lay there 'real stiff'. Then he started to put 'his hands' - later 'his fingers' - 'in there again.' That act was the subject-matter of count 3.

11 The complainant gave evidence that at that stage she unsuccessfully attempted to wake H - who was 'just out to it' - by 'pinching him and scratching him all over his stomach, like really hard'.

12 According to the complainant, penetration lasted longer on the second occasion. '(I)t was probably 5 minutes, or - I don't know.' The applicant then tried to pick her up and carry her into the lounge room, saying that both she and H were 'uncomfortable'. She resisted, saying that she was 'fine'. After she had had repeated this more than once, and told him to 'piss off', 'he was like "fine" and left'.

13 The next morning, on the complainant's account, she told H that 'Dano fingered me.' She raised no complaint with the police, however, for about 3 months. She made that complaint, she said, when the applicant laughed at her after she remonstrated with another man about her house being 'egged'.

14 The complainant was cross-examined. The gist of the cross-examination was that the complainant's account was not about something that had really happened, but was rather something imagined - the product of a nightmare. The complainant denied the possibility that it had been a nightmare. Fitting the 'nightmare' scenario, parts of the complainant's evidence that might be said to be improbable, or fanciful, were highlighted by the cross-examiner. Counsel did not squarely suggest in cross-examination that the complainant had deliberately fabricated the story.

15 In a record of interview conducted on 25 July 2007, which was put in evidence, the applicant denied that the events recounted by the complainant had occurred. There were these questions and answers -

Q: Tell me what happened then?

A: Well, we were in the lounge room for a while watching TV. They were mucking around on the floor just play fighting and whatever else, and from then they went to bed and I went home.

Q: Alright. You say they went to bed and that you went home.

A: Yeah. Well, [H] went to bed first and then [the complainant] shortly followed and then I left.

and

Q: Alright. So she told you she was going to bed.

A: Yeah, yeah.

Q: And off she went.

A: Yeah.

Q: And leaving you in the lounge room?

A: I actually took off pretty much as she was going into the room so - - -

Q: So you say you - you took off home pretty much as she went into the bedroom?

A: Well, she was heading in. I said, 'See ya', and left and closed the door.

and

Q: After she went to bed you went into her bedroom, didn't you?

A: No, I didn't. I left straight out the front door as I said.

16 The applicant, in response to specific questions, denied entering the complainant's bedroom and touching her in any way.[2]

18 There was this discussion between his Honour and applicant's counsel before the charge commenced:

HIS HONOUR: ... it strikes me that if it occurred in the way that she says it occurred; you haven't disputed that that would make out the offence. It's rather whether it occurred or not is what's the matter.

[COUNSEL]: That's right, Your Honour. The defence has put simply it didn't happen; however, what I would say is that, in my respectful submission, Your Honour should address them on the elements of rape and they have to be satisfied - - -

HIS HONOUR: I've got to tell them about all the elements, yes, but I wanted - I intend to tell them, and if it pans out that way that it strikes me that there has been no argument - in fact you put to her that it was a dreadful ordeal and a horrible offence and all that sort of thing.

[COUNSEL]: Yes, all that.

HIS HONOUR: If it occurred, there's no issue that it would constitute the offence in accordance with the elements as I've defined them. The real issue is whether it did occur.

[COUNSEL]: That's right.

HIS HONOUR: Two things.

[COUNSEL]: Sorry, to interrupt Your Honour, but Your Honour will have previously told them if you find it did occur, even though it's not been an issue, you still have to be satisfied of - - -

HIS HONOUR: Of all the elements, yes.

19 Relevantly, the judge instructed the jury as to the four elements of rape: (1) penetration; (2) which is intentional; (3) done without consent; and (4) accompanied by the relevant mens rea - that is, 'while being aware that the person is not consenting or might not be consenting'.

20 It is not in question that this aspect of his Honour's direction was unexceptional.

21 Having stated the elements in short form, his Honour expanded upon them at length.

22 The judge addressed the element of consent in detail. He drew the jury's attention to matters which it might consider relevant in that connection.[3] Then he said this:

In reality, this case is about whether it happened or not. If what [the complainant] said occurred and you are satisfied beyond reasonable doubt that it occurred, you should have no problem with the elements of the offence being established. The real issue is whether the acts occurred. That does not relieve me, as a matter of law, of the obligation to tell you what the elements are, because unless you know what the elements are, you cannot say whether or not the Crown have proved them to your satisfaction beyond reasonable doubt. So the defence case was that, well, it did not happen. There was no suggestion by [defence counsel] that if any of the things [the complainant] said occurred, that they did not constitute the offence alleged. Now it is important for you to remember that it is not for the accused to prove that [the complainant] consented. For this element to be satisfied, the prosecution must prove to you beyond reasonable doubt that she did not consent.

23 Addressing the fourth element, the learned judge said this, in part:

If the prosecution can establish beyond reasonable doubt that Mr Simon was aware that [the complainant] was either asleep, unconscious or [so] affected by alcohol as to be incapable of freely agreeing or was mistaken about the identity of the person penetrating her, he will have been deemed to know that [the complainant] was not consenting. In any event, in this case the prosecution allege the accused was well aware that [the complainant] was not consenting or might not be consenting and went ahead nonetheless. Again the defence responded it is not a question of his state of mind, he was not there, it did not happen.

24 His Honour then repeated that the Crown must prove all four elements, before adding -

The issue in this case is whether the act occurred, as I said. And that is the same in relation to Count 1, the count of indecent assault.

25 With respect to the count of indecent assault, the learned judge correctly identified the five elements of the offence.

26 Expanding upon the first element, that is, whether the alleged touching occurred, his Honour said -

The first element, as I say, relates to what the accused man did. He must have touched the complainant. The touching, to be an indecent assault, does not have to be violent or to cause any physical harm or injury. Touching, no matter how slight, any touching is enough. As I said, in this case it is said that the accused man touched the complainant's breast. The defence, of course, responded that it did not happen, it was all a nightmare, or it had been made up, but the accused man did not touch her in any way. For this element to be met, you must be satisfied beyond reasonable doubt that the accused did in fact touch [the complainant] in the way alleged.

27 With respect to the applicant's state of mind, his Honour said this:

... the prosecution must prove that at the time the accused allegedly touched [the complainant], he was aware that she was not freely agreeing to be touched or might not have been freely agreeing.

Those same circumstances that I told you about apply equally here. If he was aware that she was asleep, unconscious or [so] affected by alcohol or other drug as to be incapable of freely agreeing, or was aware that she might be in one of those states, or he was aware that she may be mistaken about the identity of the person touching her, the accused will have been taken to be aware that she was not consenting. In this case the prosecution allege again that the accused was well aware that she was not consenting and again the defence say, of course, it did not happen. That is the sole basis upon which the argument was run. At no time did [defence counsel] suggest to you that the accused man might have been labouring under some belief of consent or anything of that sort. He simply said it did not happen. In order to determine whether the prosecution has proved that the accused had the level of awareness necessary for this element to be satisfied, you must consider all the circumstances, that includes what was said and done, what was not said and what was not done, as you find them to be, and indeed you must consider what the accused said in his record of interview in relation to this, as to whether it occurred or not.

28 His Honour then summarised the evidence. He did so expansively, particularly bearing in mind the fact that only three witnesses - one of them formal - had been called, and that the evidence, addresses and charge were completed within a day and a half.

29 Having summarised the evidence, the judge adverted to the arguments of counsel in closing addresses. With respect to the prosecutor's submissions, his Honour said this:

The issue, of course, for you to determine primarily is whether you are satisfied beyond reasonable doubt that the incidents as outlined by [the complainant] did in fact happen. [The prosecutor] suggested to you that you have got to put all - and he correctly said you have got to put all your emotions aside and deal with this logically. He submitted that [the complainant] was a good witness. She withstood cross-examination. She came out undamaged, strong and firm in what she said. He said that what was suggested to be prior inconsistent statements were not inconsistent. They were totally consistent with what she said here.

In relation to her failure to scream out or shake or do anything to [H] he said that you have got to remember she was only 18 years of age. She was scared. She did not know what to do and it was never suggested to her that she made it up. It was all a bad dream, and he said it is not nightmare. He said nightmares do not happen like this. She physically felt what occurred to her and you should be satisfied beyond reasonable doubt by her evidence that the acts as alleged by her did in fact occur.

30 Then, with respect to the arguments advanced for the applicant, his Honour said this:

[Counsel for the applicant] said, look, it just did not happen, was his submission to you. He said, really, what he is saying to you, you cannot be satisfied beyond reasonable doubt by [the complainant's] evidence that it did happen. He reminded you of the presumption of innocence and said that [the complainant's] version just does not sit with commonsense, he submitted.

He told you that the accused was forthright with the police. He spoke to the police when he did not have to and maintained his innocence right from the time he was confronted with these allegations.

He said that when you look at what she says occurred her reactions just are not real. If it was a complete stranger apparently putting his finger in her vagina in the way she alleges you would have expected her to act differently. She would not say, go away, I am trying to sleep. She would have run for the door or jumped over her boyfriend or something similar.

He says that you might think it is impossible for it to have occurred the way she says, with one hand on the breast and the other hand down the back of her pants, penetrating her vagina. He does not know whether she is making it up or whether it was a dream but the only thing he says it can be is one or the other. Or there are three possibilities, are there not? It is either a dream, she is making it up or it happened. They are the three alternatives that you have to consider.

He said the scratches could equally have come from the tickling or the wrestling that occurred and, indeed, [H] admitted that there was some degree of pinching that went on with that wrestling. He said what happened before the incident, what happened during the incident and what happened after the incident, going around the next morning, he said, is not the actions of a rapist. Why would a rapist go back there if he had raped her the night before?

So he said nothing happened afterwards, consistent with it. If there was a genuine belief that she had been raped Mr Simon's safety would have been in issue, I think was the way [his counsel] put it, and it is significant, he said, that it took three months to report to the police and you could not be satisfied that was because she was anything else than annoyed that her house had been egged, and that itself means that the whole story should be suspect.

He said you should apply your commonsense and look at what was said before, what happened before, what happened on the night and what happened afterwards, and that should leave you with grave doubts as to her evidence. You could not be satisfied beyond reasonable doubt that she is telling you the truth and you should acquit the accused on all charges.

31 There were no exceptions to his Honour's charge.

32 Counsel for the applicant submitted that although the judge had correctly described the elements of the offences, and although his comments[4] that the jury should have no problem with the elements of the offences being established if it accepted the complainant's evidence accorded with the way that the case had been run, nonetheless those comments had foreclosed the jury's consideration whether the Crown had proved the elements of the offences.

33 Counsel developed his argument this way: the judge had directed the jury that if it was satisfied that the applicant had entered the bedroom, then it should have no difficulty in finding the elements established. The jury might well have been dubious about accepting the complainant's evidence as to what had gone on in the bedroom, and yet have been satisfied that the applicant, contrary to his record of interview, had indeed gone into the bedroom. The jury might have felt itself compelled in those circumstances to conclude that the offences had been proved.

34 Counsel submitted that there were six features of the complainant's evidence which might have led the jury (had its consideration not been circumscribed) not to be satisfied to the criminal standard that such evidence - critical to the Crown case - ought be accepted. The features, as advanced by counsel, were as follows:

1. The length of time, on the complainant's account, that the applicant engaged in the offending conduct whilst all three of them were lying on the bed, during which time she said and did virtually nothing to make the applicant desist.

2. Variations in the complainant's evidence as to when it was that she first realised that the applicant was doing the things of which she gave evidence. The longer the whole incident extended, counsel submitted, the more improbable became her evidence of late awareness that it was the applicant who was doing these things.

3. The improbability of one possible sequence of events which emerged in cross-examination - that the complainant awoke to find someone kissing her on the neck, that she realised it was not H, but that she nonetheless went back to sleep, only to awake again to find a hand on her breast and a finger in her vagina.

4. The improbability that the complainant, had these events really happened, would not have roused H, but would rather have gone back to sleep and told him about the matter the next day.

5. The fact that the complainant saw the applicant the next day, but did not broach the matter with him (neither, for that matter, did H).

6. The delay in going to the police, and the reason why, on the complainant's account, eventually she did so - that is, that the applicant had laughed at her when she told another man to stop 'egging' her home.

35 In support of his submission that the learned judge had foreclosed full consideration of the complainant's evidence, counsel argued that a number of pages of the charge, read overall, were to that effect. But then he focused upon the passages which I have italicised at [22]-[27] above.

36 Senior Counsel for the Crown submitted that the learned trial judge had focused on the issue exposed by the case as it had been conducted. The charge, viewed overall, had been wholly unexceptionable. The onus had been correctly stated. There had been no exception. Now the applicant wished to say that, if the acts had occurred, even so the Crown had not made out want of consent or the presence of the relevant mens rea. To have conducted such a case at trial would have been forensically disastrous. If the evidence had opened up one or both of those issues, the judge would nonetheless have been obliged to so direct the jury. But on the facts the judge had not been so obliged. Moreover, his Honour had very fully recounted the attacks on the complainant's evidence made by counsel in his final address, which were similar to criticisms made by applicant's counsel in this Court.

37 In my opinion, for the reasons which follow, the application for leave to appeal against conviction should be refused.

38 First, the premise upon which the ground of appeal rests is that the jury was directed that the issue upon which the case turned was whether the applicant had 'entered the complainant's bedroom'. That this is the premise is shown not only by the language of the amended ground of appeal, but also by a comparison of that language with the language of the ground as originally stated - which proposed that the judge had foreclosed the jury's consideration of mens rea. The ground as amended opens up the question whether the judge effectively reduced consideration of all elements of all offences to the question whether the jury was satisfied that the applicant entered the complainant's bedroom.

39 Second, the premise upon which the ground rests cannot be sustained. The learned judge did not so reduce the issue. In passages relied upon by the applicant, his Honour did not give a direction that further consideration of the complainant's evidence would become unnecessary if and when the jury concluded that the applicant had entered the bedroom. His Honour's reference to the case being 'about whether it happened or not' was a shorthand for the jury needing to decide whether it was satisfied that the conduct allegedly engaged in by the applicant had occurred, not simply whether he had entered the bedroom.

40 Third, in directing as to the elements of want of consent and mens rea, the learned judge focused upon factual circumstances which were relevant to proof of those matters. He could hardly have been understood by the jury to be foreclosing its consideration whether those elements had been established. They remained for proof, although once the jury was satisfied that the acts had been committed, it would evidently have been at least very difficult for the jury not to have been satisfied that want of consent and mens rea had not been established. The fact that those elements did remain for proof can be seen inter alia, from his Honour's direction that -

You must consider the action or lack of action of [the complainant], together with all the surrounding circumstances, in order to decide whether the prosecution has proved beyond reasonable doubt that [the complainant] did not consent to the accused's penetration.

In determining whether [the complainant] did not freely agree to be sexually penetrated, you must consider all the relevant evidence including what she is alleged to have said and done at the time of the alleged penetration, as well as the evidence she gave in court about her state of mind at the time. You can also consider what she did not say or not do at the time of sexual penetration.

41 Likewise, having pointed out that counsel for the applicant had not suggested, in the context of indecent assault, that -

the accused man might have been labouring under some belief of consent or anything of that sort

his Honour went on to say -

In order to determine whether the prosecution has proved that the accused had the level of awareness necessary for this element to be satisfied, you must consider all of the circumstances, that includes what was said and done, what was not said and what was not done, as you find them to be, and indeed you must consider what the accused said in his record of interview in relation to this, as to whether or not it occurred or not.

42 This passage was in my view sufficient to alert the jury to matters not raised by applicant's counsel - that is, that the complainant's relative lack of physical or verbal response to the alleged assaults might have led the applicant not to be aware that she was not, or might not be, consenting.

43 Fourth, the judge gave extensive directions to the jury relevant to evaluating the complainant's credibility. He referred to the use which can be made of recent complaint, delay in complaint, distress, and prior inconsistent statements. He referred also to acceptance of all, part, or none of a witness's evidence. I do not consider that what his Honour said about those matters would have been understood by the jury, after he had identified the main area of controversy, to be limited to the question whether the complainant should be believed when she said that the applicant had entered the bedroom.

44 Fifth, I should refer to the direction which the learned judge gave about the consequences of not accepting the applicant's account. Thus -

Before you could convict the accused man, you have to be satisfied beyond reasonable doubt that what he told the police in this regard was untrue and even if you accept that what he told the police was untrue, that is not enough reason alone to convict him. You would have to be satisfied not only that what he told the police was untrue, but that what [the complainant] told you in relation to each of the alleged counts, you have to be satisfied beyond reasonable doubt that it is true before you could convict him of any of the counts on the presentment.

45 That was unlimited in its application to the issues which were left for the jury's consideration.

46 Sixth, the obligations of the trial judge were, in my respectful opinion, clearly outlined by Chernov JA in R v Alexander[5] as follows:

It must be accepted that mere failure by the applicant's trial counsel to put to the jury that even if they accepted the complainant's version they could not be satisfied beyond reasonable doubt that he did not believe that she was, or might, not be consenting would not have absolved his Honour from the obligation to tell the jury that such a finding was open to them, providing there was evidence on which such a conclusion could have been reached. As Nettle JA pointed out in R v Tran,[6] despite the way in which the defence case was conducted at trial, if there was a basis on which the jury could have reached a conclusion favourable to the offender, it was incumbent on the judge to leave that to the jury as a possibility and to direct them accordingly. In the same case, Redlich JA said[7] that the mere fact that defence counsel does not stress an alternative case before the jury (which he or she may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it. Importantly, for present purposes, his Honour went on to say that the obligation of the judge is to identify and to direct the jury only on "real issues" that plainly arise from the evidence as distinct from a remote or artificial possibility. Thus, it is apparent enough that a judge is not required to deal with a possible alternative defence not put by counsel for the accused to the jury where there is no evidence on which they could properly reach the conclusion to accept the alternative scenario.

47 Seventh, compatibly with that obligation, it was in accordance with authority that the judge should attempt to assist the jury by identifying and focusing upon the substance of the dispute at trial. In identifying the substance of the dispute, his Honour was righty guided by the way in which applicant's counsel had conducted the trial. In my opinion, it is clear that his Honour did correctly identify the key area of dispute - that is, whether the applicant had done the acts of which the complainant gave evidence. But having done so, his Honour, conscious that it nonetheless remained for the Crown to establish each element of the offences, instructed the jury to that effect. Moreover, although it may be doubted that the issues of want of consent and mens rea emerged as real questions from the evidence,[8] his Honour, albeit succinctly, related the evidence to those issues.

48 Eighth, although the conduct of counsel at trial cannot be decisive if there was an evident defect in the charge, the failure to take an exception suggests that the complaint made in this Court is more apparent than real.

49 There is one other aspect of the submissions of counsel for the applicant to which I must refer. Counsel contended that parts of the charge which I have set out above might have been regarded by the jury as directions, not comments. They had not been specifically identified as comments.

50 In my opinion, there was no substance to the submission. The particular remarks were self-evidently comment. The jury should not be taken to have been too foolish to understand that this was so. Early, in his charge, I add, his Honour said that if he made any comment, or the jury thought that he had done so, it would be 'in exactly the same boat as any comment ...by counsel'.

51 Counsel for the applicant submitted that the judge had erred in sentencing his client on this basis:

As discussed with your counsel, there is no difference between digital rape, penile/vaginal rape and oral rape. The parliament says that each of them carries a maximum penalty of 25 years, and the Court of Appeal in this state has said that there is no distinction to be drawn between the various forms of rape.

52 The gist of the submission was that his Honour had been distracted from sentencing the applicant on the correct principle, stated thus: 'When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case'.[9]

53 By statute, there is but one offence of rape, however committed; and the maximum penalty, reserved for the worst class of case, is 25 years. The question is whether the impugned passage shows that his Honour proceeded on the basis that the statute mandated the maximum penalty for the worst case of each of the various kinds of sexual penetration. To have done so would have been contrary to Ibbs.

54 What his Honour said could definitely have been better expressed. But in the end I am not persuaded that he misdirected himself. The passage upon which counsel relied immediately followed a passage in which his Honour said that each of the offences of which the applicant had been convicted was a serious offence. One of those offences was indecent assault. I think that Honour was simply making it clear that statute draws a distinction between indecent assault on the one hand and rape constituted by digital penetration on the other.

55 There is more substance, in my opinion, to the complaint of manifest excess. It was rightly accepted by senior counsel for the Crown that these rapes were at the

55 lower end of seriousness. They, and the indecent assault, were committed in unusual circumstances. Those circumstances included the complainant's response - rather, lack of response - to the applicant's acts. Alcohol, though not a circumstance of mitigation, seems likely to explain the applicant's behaviour on this occasion, which was quite out of character. Nothing in the applicant's antecedents, his relationship with the complainant and H, or his minor criminal record, hinted that the applicant would offend in such a way; or, in my opinion, carried any implication that he would be likely to do so in the future. Again, readily accepting that his offending understandably caused the complainant continuing distress, that was but one of the considerations bearing upon sentence.

56 I take into account the fact that the applicant stood his trial. That eliminated any reduction in sentence for a guilty plea; or for remorse thereby, or in some other way, demonstrated.

57 I take into account also such guide to 'current sentencing practices' for the offence of rape as may be provided by Sentencing Snapshot No 83 (June 2009). The statistics that, over a 5 year period, the median sentence for the offence was 5 years, whilst the average sentence varied between 5 years and 1 month and 5 years and 9 months, support a conclusion that the sentences in the present case were not manifestly excessive. But the snapshot also shows, inter alia, that not every offender was given an immediate custodial sentence; and that quite large numbers of offenders were sentenced to terms of 2 and 3 years imprisonment. Other matters touching on the usefulness or otherwise of statistics such as I have mentioned do not require elaboration in this case.

58 All in all, recognising the burden which an applicant faces when arguing that a sentence was manifestly excessive, I consider that the sentences which the judge imposed on the rape counts were of that kind. I would grant the application for leave to appeal against sentence, allow the appeal, and sentence the applicant on count 1 to 6 months' imprisonment, and on each of counts 2 and 3 to 3 years' imprisonment. I would make no orders for cumulation. The total effective sentence

would be 3 years' imprisonment. I would fix a non-parole period of 18 months. I would otherwise confirm the orders made below.

59 I agree with the disposition of the appeal as to conviction proposed by Ashley JA for the reasons his Honour gives.

60 As to the appeal against sentence, I am satisfied that the sentence imposed by the trial judge was manifestly excessive in the circumstances. The crime of rape, like many other crimes in the criminal calendar, covers a very wide spectrum of criminal culpability. A sentence which is clearly appropriate in one case of rape will be manifestly excessive in a different case and even manifestly inadequate in another.

61 Sentencing, as a process, involves a serious consideration of all the surrounding circumstances of the individual case, an evaluation of those circumstances and the fixing of a sentence according to law. In this case, although the trial judge engaged in this process, he assessed the culpability of the applicant as being somewhat higher than was warranted in the circumstances.

62 I agree with Ashley JA that the applicant should be granted leave to appeal, the appeal should be upheld and sentences as proposed by his Honour imposed in lieu of those imposed below.

[1] The prosecutor and the witness sometimes referred to penetration by 'a hand', 'hands' and 'fingers,' as well as by a 'finger'. Nothing was said to turn on the variation. I will refer consistently to penetration by a finger.

[2] See, inter alia - Question 91 (denial, that he kissed the complainant); 93 (denial, that he touched her breast); 95 (denial, that he inserted a finger into the complainant's vagina); 99 (denial, that he lay on the bed with the complainant and H); 103 (denial, that he asked the complainant to go with him into the lounge room); 110 (denial, that the complainant told him that she was 'fine', and to 'piss off.')

[3] This passage is set out at [40] below.

[4] Later I will deal briefly with an argument, only developed orally, that the comments were apt to be understood by the jury as directions.

[5] [2007] VSCA 178, [18].

[6] [2007] VSCA 19, [9].

[8] See R v Luhan [2009] VSCA 30, [25]; and, with respect to the question whether a lesser alternative verdict should be left, the analysis of Neave and Redlich JJA and Lasry AJA in R v Nous [2010] VSCA 42, [32]-[50]. See also the converse situation which arose in R v SAB [2008] VSCA 150; (2008) 20 VR 55.

[9] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452. Ibbs was distinguished in R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269, 278 [38] on a basis which is presently not in point.