R v Yankovski [2007] VSCA 259

2 On 11 July 2006 a notice of application for leave to appeal against conviction and sentence was filed on behalf of the applicant. On 15 December 2006 the applicant's solicitors filed a Full Statement of Grounds of Appeal in respect of both applications. There were six grounds relating to the conviction application and two grounds that related to the proposed appeal against sentence. On 11 October 2007 the Court was informed that, because new solicitors and counsel had been retained by the applicant, an application would be made to substitute new grounds and submissions. The applicant's solicitors were told informally that, subject to hearing the Crown, it was minded to grant the application for amendment. When the matter came on for hearing before us on 15 October 2007, the applicant applied formally to substitute new grounds and submissions. Since there was no opposition to this course from the Crown, leave to make the amendments was granted.

3 In the result, the applicant pressed the amended grounds described later. Before examining them, it is necessary to set out briefly the relevant circumstances of the offending.

4 The offending occurred in the early hours of Sunday 11 April 2004. The complainant was then living at her mother's house with her younger sister. Their mother was overseas at the time. The complainant had known the applicant since late 2002 when the two met through an internet 'dating' site and, for about one month following their meeting, they had a relationship that included sexual activity. Thereafter, they remained friends and saw each other from time to time and kept in touch by telephone and email.

5 On Saturday 10 April 2004, as a result of a telephone call that the complainant made to the applicant, he came to her house at approximately 10pm and they watched a video in the lounge room. The movie continued for approximately 1½ hours and after that the two listened to music and had general conversation. In the course of their conversation the applicant told the complainant that he and his friend, Ivance Velkovski ('the co-accused'), who is almost two years older than the applicant, had recently met a girl at a nightclub and, later, they had a 'threesome' with her. The complainant said that she did not think that was an appropriate thing to do and that she would not have engaged in anything like that. She said that she was disgusted and shocked by this conversation because she did not think the applicant was that kind of person. It was not suggested to the complainant at the trial that this conversation did not take place or that the complainant's account of it was inaccurate.

6 At approximately 1am (on Sunday 11 April 2004) the applicant received a telephone call from the co-accused while he was still at the complainant's premises and, in the result, the three went to a pool hall in Preston where, it seems, the co-accused bought them drinks. The complainant said that the drinks were dark in colour and looked and tasted like Coke mixed with alcohol. They stayed at the pool hall for about an hour during which she had about three such drinks. All of them were, as has been mentioned, bought for her by the co-accused who declined the complainant's offer to pay for her share.

7 The complainant said that when they left the pool hall at approximately 3am she was starting to feel the effects of alcohol, although she was aware of her surrounds. At the suggestion of the co-accused, the three went to his house 'for coffee'. The complainant said that she intended only to have coffee there. The co-accused told the complainant that the house belonged to his parents, who were away, and that his two sisters also lived there and one of them was due to return shortly. The complainant said that after she was shown around the house she was given alcoholic drinks that looked to her as if they consisted of Coke mixed with spirits. She said those drinks tasted much stronger in alcohol content than those which she had at the pool hall. It was the complainant's evidence that it was the co-accused who provided the drinks, and that he obtained them from the kitchen notwithstanding that there was a bar in the lounge room where the three were seated that was heavily stocked with spirits and other alcoholic beverages. Later, the co-accused gave the complainant at least one 'shot' of strong alcohol from a bottle that was located in the bar. By about 4.30am, she said, she was feeling dizzy and very drunk. Her last memory of that occasion was dancing in the lounge room with the co-accused trying to put his tie around her neck and her attempts to take it off being unsuccessful.

8 The complainant said that her next memory was being in the co-accused's bed in the upstairs part of the house. She said that he was lying on top of her having sex with her, while the applicant, who appeared to be naked, was walking around the bed watching them. She said she could not move her arms or legs and thought that she started to make noises like 'no' or 'stop' whereupon the co-accused said she was making too much noise. The applicant told the co-accused to put a pillow on her head in order to 'shut her up'.

9 The complainant said that a pillow was then put over her head and that stopped any words coming out and she was concerned that she might suffocate. She could just move her head to the side to get some air. She thought that she then passed out and when she awoke the applicant was behind her, having sexual intercourse with her with his penis in her vagina. His hands were on her breasts and then on her hips. He was trying to kiss her neck from behind and she was saying 'no, don't'. The complainant said that she told the applicant to stop at least four times and, although he stopped thrusting for a short period, his penis remained in her vagina and he then 'just kept going'. The complainant then passed out. When she awoke, she said, the co-accused was playing a game on the television set that was in the bedroom. She said in her evidence that she had not agreed to have her clothes taken off or to have any sexual relations with the two men. The complainant said that when she regained consciousness she saw that her clothes were all over the room and when she got dressed she felt disgusted and shocked that the offenders would do this to her. The complainant said that, to some extent, she was afraid of them and did not want to make them angry.

10 Her next memory was that she was in the applicant's car. She asked to be dropped off at her mother's house. When she got out of the car she said that she did so without saying goodbye to the applicant. She took out her mobile telephone, noting that the time was 7.30am, and deleted his number from the memory card.

11 The applicant then walked to a church which was around the corner from her mother's house. There was no one there when she arrived and she sat in one of the pews and cried but stopped when people started arriving for the 8 o'clock Mass. She sat through the Mass and did not talk to anybody there because she was shocked and still coming to terms with what had happened to her. She felt hurt, confused, angry and sad. At the conclusion of the Mass she walked home, arriving there at approximately 10am. She there saw her sister who was leaving the house with a friend, but the complainant only had a short conversation with here and did not mention the incident. She said she did not want to talk to anybody about this. The complainant went into her mother's room and went to sleep fully clothed. She awoke at approximately 3pm, feeling sore and still very drowsy. She said that her head hurt, she could not think straight and her body felt exhausted. When she went to the toilet and urinated she felt a burning sensation. Her vagina was painful and the bones behind it, the pelvis and the pubic bones felt bruised on touching. Later, she walked to the police station and reported the incident. She was then examined by Dr Nicholas John Childs, a physician.

12 Dr Childs said in evidence that he was trained to carry out examination of victims of sexual assault and confirmed that he had examined the complainant at approximately 7.10pm on 11 April 2004. He found that there was small area of tenderness on the lower right abdomen and that in the area of the genitalia the injuries that were noted were a tear abrasion on the posterior fourchette and the posterior part of the vaginal vestibule. The area around the abrasions was tender and the area of tenderness extended to include the lower thirds of both labia minora on the inside and the outside. The tear abrasion along with the tenderness confirmed to him that there was some sort of trauma that caused it. He said that the tearing abrasion could have been caused by penetration of the vagina by blunt object such as a penis, fingers or an inanimate object. The injuries were inside the labia majora, which indicated to him that there was penetration of the vagina.

13 The co-accused's sister gave evidence to the effect that she came home at about 5am on 11 April 2004 and noted that the co-accused, the applicant and the complainant were there. She had a conversation with the complainant about various matters and noted that the co-accused was making coffee for them. The three seemed to be having a good time and she noted that her brother was tipsy but not overly intoxicated. A little while later she saw the complainant and the applicant walking up the stairs. He was just behind her. She said that the complainant looked intoxicated and was slurring her words. While the complainant and the applicant were walking up the stairs, she said, she was in the kitchen talking to her brother, the co-accused. Thereafter, she said, he went upstairs into his bedroom and, when she walked past it at about 6am, the three of them were there. She could hear noises coming from the room, including laughter and a girl's giggles and some moaning. The witness said that she had gone to bed but the noise from her brother's room kept her awake so she knocked on the door to tell them to be quiet. She knocked twice and her brother partially opened the door. He was wearing jeans but no top. She told him to be quiet and let her go to sleep. After that, she did not hear any more sounds. She said in her evidence that she has a hearing deficiency that requires her to wear a hearing aid. She said that she was wearing it that night.

14 Both the applicant and the co-accused were interviewed by the police and each denied having non-consensual sex with the complainant. Their case was that the complainant consented to intercourse. In his record of interview, the applicant contended that the complainant was sensitive to touch and that, when he was in bed with her on the occasion in question and was stroking her hair, she started making hip movements that resulted in his placing her penis in her vagina. He said that after a short time the complainant said 'Please stop' and he did. He said that she then rolled over and pressed against him and this caused him to insert his penis into her vagina again. The applicant claimed that 'this didn't last for even five minutes' because the complainant then said 'stop' and he did just that.

15 The presentment, to which the applicant pleaded not guilty, contained two counts which were framed such as to allege that, respectively, each of the offenders unlawfully sexually penetrated the complainant's vagina with his penis while the other aided and abetted the offending. Thus, count 1 alleged that both offenders raped the complainant by the co-accused sexually penetrating her. A like charge was made by way of count 2 except that it was there alleged that the sexual penetration was committed by the applicant. The jury acquitted the co-accused on both counts. The applicant was also acquitted on count 1, but was convicted on count 2.**

Grounds 7 & 8: latent duplicity or uncertainty

**16 It was first argued for the applicant under cover of grounds 7 and 8 that the verdict was afflicted with latent duplicity or uncertainty given that it was not clear whether the verdict was based on 'either or both of two possible acts of sexual penetration by the applicant'. In that regard, counsel pointed to the complainant's evidence that, when she woke up after the co-accused had sex with her, the applicant was sexually penetrating her from behind and that when she told him to stop he stopped moving his penis but it remained in her vagina, and he then commenced to move it within her. As I understand it, the applicant's argument came down to this, namely, that on the complainant's version and the jury's verdict there were essentially two possible acts of penetration that were unlawful in the sense that the complainant did not consent to them - the first occurred when the applicant inserted his penis into the complainant's vagina while she was asleep, and the second was when he 'kept going' after she told him to stop. But it was uncertain, so the argument went, as to which of the two possible acts of unlawful penetration committed by the applicant the jury were unanimous. It was said that it was possible that some jurors considered that the applicant's penetration of the complainant commenced while she was asleep and that this was a sufficient basis for conviction but were not satisfied that he did not cease penetration when told to do so. Yet other jurors, it was argued, may not have been satisfied that the complainant was asleep at the time the penetration began and found that the sexual penetration that resumed or occurred after the complainant said 'no' amounted to rape. Counsel argued that such disparate conclusions by the jury would not be sufficient to amount to a valid verdict of guilty. A valid verdict, it was said, requires the jury to have been unanimous as to which of the claimed two acts of penetration amounted to rape. In those circumstances, it was submitted, the verdict on count 2 is afflicted with latent duplicity or uncertainty and must be set aside. In support of that argument reference was made to R v Trotter[1] ('Trotter') and R v Rigoli[2] ('Rigoli').

17 As was pointed out in R v Senese: [3]**

The term 'latent duplicity' was explained by Phillips and Buchanan JJA, with whom Ormiston JA agreed, in R v Walsh:

As we apprehend it, a count is bad for duplicity if it charges more than one offence; on the other hand, if the count charges but one offence and evidence is led of more than one instance of such offending, then the verdict, if against the accused, will be uncertain. This last is sometimes called latent uncertainty because it depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown.

... the question of unanimity can arise when only one offence is charged and only one offence is proved but the jury is presented through the evidence led with more than one route by which to determine guilt. The question which has then arisen, in a number of cases, is whether the jury must be directed to be unanimous, not only in the verdict, but also in the route by which the verdict is reached.

Their Honours then examined a large number of cases, in each of which the question whether there was sufficient unanimity in the verdict was considered and summarised their review of the authorities in the following terms:

... it seems that the cases give rise to two situations at least. ... The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on 'unanimity' about one or other or more of those bases, at least if they do not 'involve materially different issues or consequences'. ... The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend 'upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence'.

18 In Trotter, for example, where the applicant was charged with one offence, the uncertainty was as to which of the two offences that were disclosed by the evidence the applicant was convicted. More specifically, the accused was charged with one count of indecent assault upon a child, but in the course of the trial the child gave evidence of an assault in the bedroom and an assault in the bathroom. The Crown made no election between the two and, when the jury found the accused guilty, the verdict was set aside on appeal on the ground that it was tainted with uncertainty. As Phillips and Buchanan JJA pointed out in R v Walsh,[4] there was no way of knowing of which assault the jury had been persuaded; it might have been the first or the second or both, as each of the incidents relied upon, one in the bathroom and one in the bedroom, constituted, in itself, the offence as charged. Although there was no duplicity in the charge an ambiguity arose out of the evidence. In the course of its judgment the court in Trotter said that it was:

... impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of the indecent assault. All members of the jury might have been unanimous on the fact that the applicant had committed an indecent assault on [the child], but some members of the jury might have arrived at that conclusion on the basis of the bathroom assault and others on the basis of the bedroom assault.[5]

In that case there was one offence, but the discrete acts established by the evidence - the assault in the bedroom and the assault in the bathroom - went to the proof of matters beyond the essential ingredients of the crime charged and, therefore, before the jury could convict, they had to be agreed as to the act which constituted the offence. As their Honours said, the real vice in the case was that the prosecution was not required to specify which of the two assaults described in the evidence was the subject of the relevant count,[6] which left it open to the Crown to prove the offence on the basis of either of the assaults, where each should properly have been the subject of a separate count.

**19 And in Rigoli, the uncertainty was brought about because it was not clear from the verdict whether the jury were unanimous as to when the offender defrauded the Revenue by unlawfully obtaining the pension - some jurors may have found that he received the disentitled income at one time during the nine year period, others may have found that he did so at another time or times within this period. Each unlawful receipt of the money constituted a separate offence so that the jury had to be unanimous as to the occasion on which the offender acted unlawfully.

20 Similarly, in R v Cascone[7] Charles JA, with whom the other members of the court agreed, pointed out that the fatal uncertainty was brought about by the inability to discern from the jury's verdict of which of the two offences the applicant was convicted - was it the offence when he first dragged the complainant by the hair for some 20 to 30 feet or was it the second offending when, a little later, he again grabbed her by the hair and pushed her to the floor after she tried to move to the front door? The applicant in that case was charged with one count of recklessly causing injury but it seems that the evidence disclosed there were two separate incidents of assault. His Honour said:**

The argument made by Ms Sexton [for the Crown] in this Court divided this alleged assault into two separate incidents, during both of which the complainant had been seized by the hair and pulled from one position to another. The consequence of this separation was, however, arguably to introduce into counts 1 and 2 a question of latent ambiguity, and hence of possible duplicity. If there were two distinct assaults, the evidence given by the applicant involved a denial that the first assault happened at all, and suggested that the second occurred by accident, or when the applicant was acting to defend himself. Accordingly, the jury may have convicted the applicant on count 2 on the basis of the evidence of either incident, while not having been convinced of his guilt on the other. The jury may have believed the accused's denial of the first incident and rejected his defence of accident, they may have rejected his version of both incidents, or they may have accepted his defence of accident and rejected his denial of the happening of the assault at the front door. If the evidence was to be viewed as having disclosed two incidents, either of which could have justified a conviction on the relevant count, the applicant could not know of which assault he had been found guilty; as to which, see Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, per Dixon J at 486-490; S v The Queen [1989] HCA 66; (1989) 168 CLR 266, per Dawson J at 274. The applicant was entitled to be informed of the particular act, matter or thing which was the foundation of the charge against him. If Ms Sexton's argument that there were two incidents is correct, it is possible that the jury were not persuaded by the complainant's evidence of what happened at the front door (which the applicant contested) but, in light of the applicant's admission that he pulled her hair in the dining-room, found the second assault proved beyond reasonable doubt. If so, a reversal of the onus of proof on the question of accident would have had critical importance. Alternatively the jury may have been led to disregard the applicant's denial of what happened at the front door, because they were persuaded to prefer the evidence of the complainant as to what happened in the dining-room. Either of these possibilities only goes to emphasize the difficulties which a misdirection on the subject of accident may have caused the defence.[8]

**21 In those and like cases, where the presentment charged the applicant with one offence, the latent uncertainty in the verdict was usually brought about because it was uncertain to which of the two or more of such of offences that were disclosed by the evidence the verdict related. This is not the case here. Given the verdict on count 2, the jury must have rejected the applicant's claim that the intercourse was consensual and that when she asked him to stop he did and took his penis out of her vagina.

22 Counsel argued, however, as I understood him, that even on the complainant's evidence there were two relevant incidents in the course of the applicant's sexual encounter with her. As I have mentioned, the first was when he penetrated her when she was asleep and the second when, on her account, he did not stop after she told him to do so. Thus, it was argued, as has been noted, his Honour should have asked the Crown to elect whether it contended that the rape occurred on the first such occasion or the second and, given that there was no such election, it was uncertain if there was necessary unanimity by the jury as to the occurrence of either (or both) of the incidents.

23 It is plain, I think, that the applicant's arguments must be rejected. The two 'incidents', so characterised by the applicant, were but part of the one penetration of the complainant and, as the jury found, there was absence of consent from the complainant as to that. The situation here is, in this respect, materially different from that which occurred in each of the cases to which reference has been made. Here, there were no two discrete penetrations/offences. As was pointed out in argument by Vincent JA, if in the course of sexual intercourse the offender stops momentarily and then continues, the continued sexual intercourse does not constitute a new penetration. On the jury's finding, there was but one continuing penetration and it was in the course of it that the applicant was told by the complainant to stop but he 'kept going'. And assuming that the offender had the requisite intent during the penetration, it is irrelevant at what point or points during that period the various jurors considered there was lack of consent. Thus, lack of consent could have been found to exist at the point the applicant commenced his offending act when the complainant was asleep. It could also have been concluded, additionally or in the alternative, that there was lack of consent when the complainant asked the applicant to stop but he nevertheless continued. And it is irrelevant for present purposes at what point in time the various members of the jury considered that there was absence of consent, providing they were unanimous in the conclusion that during that act of penetration there was absence of consent prior to its termination. It seems to me that it is clear that the jury were unanimous on that issue.

24 Consequently, as I have said, the claim that the verdict is affected by latent uncertainty should be rejected.

25 For essentially the same reasons, I would reject the applicant's alternative argument under these grounds, namely, that his Honour failed:**

(a) to identify for the jury that there were two possible separate acts of sexual penetration;

(b) failing to direct the jury that if they took that view of the evidence they must be unanimous as to one or both of those acts of penetration;

(c) in failing to require the Crown to elect which of those acts of penetration formed the basis of the count.

Ground 2: summary of evidence and relating same to issues

**26 It was asserted under ground 2 that the judge failed adequately to summarise the evidence and to relate it to the issues and the applicable law and, in particular, to the requirement that the Crown establish mens rea on the part of the applicant. Counsel submitted that, although his Honour's charge concerning the elements of the offence that related to the complainant's state of mind was adequate, his Honour did not sufficiently direct the jury on matters that related to mens rea. In particular, it was said, his Honour did not draw the jury's attention to the applicant's prior sexual experience with the complainant and his understanding of her 'signals' that indicated to him her agreement to engage in the sexual intercourse. Counsel emphasised that this evidence was highly relevant to whether or not the Crown could exclude the possibility that the applicant believed the complainant was consenting. It was plain that the judge did not sufficiently relate the evidence to that issue and the directions of law. His Honour's failure to give proper directions in that regard, it was said, created a real risk of miscarriage of justice.

27 I consider that this complaint is baseless. In the first place, his Honour took considerable care in making it quite apparent to the jury that an element of the offence, which the Crown had to establish beyond reasonable doubt, was the applicant's state of mind. His Honour said:**

The prosecution must prove that at the time of sexual penetration the accused was either aware that the complainant was not consenting or aware that the complainant might not be consenting but decided to sexually penetrate her whether or not she was consenting.

His Honour later elaborated on this requirement and spent a considerable part of the charge in explaining the difference between the requirements of consent and mens rea. I consider that it is plain that there was no relevant deficiency in his Honour's charge as the applicant contends under ground 2.

**28 The claim that his Honour's summary of the evidence was inadequate must also be rejected. The summary was, in my view, comprehensive and emphasised that the jury should look at all the evidence and not merely focus on one factor and ignore the rest. I also consider that it is unsurprising that his Honour did not specifically draw the jury's attention to the applicant's statement in his record of interview about his previous sexual experience with the complainant and his perception of her body language as indicating her willingness to have intercourse. As Redlich JA pointed out in argument, the resolution of the question whether the applicant stopped as he claimed he did would not have been affected by his previous experience with the complainant. Secondly, the defence case at trial was not that the applicant misunderstood that the complainant was not consenting because of the movement of her body, but that he stopped having intercourse when she told him to do so. Thus, the relevant issue that was defined by the parties for resolution by the jury was whether the applicant stopped his penetration when asked to do so. In the circumstances, there was no requirement for his Honour to remind the jury of the applicant's claimed previous sexual experience with the complainant[9] as that was set out by him in answer to question 311 in the record of interview. This is particularly so given that the jury had the record of interview before them. Moreover, no exception was taken to that aspect of the charge by the applicant's experienced trial counsel who was in a better position to determine whether absence of specific reference in the charge to the applicant's prior sexual experience with the complainant might give rise to a miscarriage of justice.

29 Thus, as I have said, I consider that there was no relevant inadequacy in his Honour's summary of the evidence and no miscarriage of justice arose by his Honour not referring specifically in his charge to the applicant's claimed previous sexual experience with the complainant. I would dismiss ground 2.**

**30 The applicant further contended under cover of grounds 5 and 6 that the verdict of guilty on count 2 should be set aside for two reasons. First, it was said, the verdict is unreasonable or cannot properly be supported by the evidence or is unsafe and unsatisfactory. Secondly, it was argued in reliance on MacKenzie v The Queen[10] and MFA v The Queen[11] that, in view of the acquittals of the co-accused on both counts and the applicant on count one, the verdict of guilty was 'an affront to logic and commonsense and strongly suggests a compromise of the performance of the jury's duty ... [or] confusion in the minds of the jury or a misunderstanding of their function ... or lack of clarity in the judicial instruction on the applicable law'. It was submitted that the verdicts are inconsistent and should therefore be set aside. Counsel highlighted that the jury deliberated for three full days before returning the verdict notwithstanding that it was a relatively simple trial involving only four days of evidence. It was also said that the acquittal of the co-accused and the applicant on count 1 must have meant that the jury rejected very important aspects of the complainant's evidence and accepted a substantial part of the account of the co-accused and the applicant, or at least declined to accept that of the complainant on such matters. It was also put that the evidence of the co-accused and the applicant was similar in relevant respects and that it borders on the incomprehensible that the jury found that only the applicant was guilty on count 2.

31 Counsel also pointed to the above matters as indicating that the verdict is unsafe and unsatisfactory. Furthermore, it was said that there were a number of other factors that demonstrate that the verdict is unsafe and unsatisfactory, including the following:**

(a) There were unsatisfactory aspects of the complainant's evidence, including gaps in her memory of critical events and her prior inconsistent statements;

(b) The fact that the complainant initially told the police that she did not know whether the applicant had penetrated her;

(d) The absence of corroboration or evidence that might have been expected to support the complainant's version, such as medical or toxicological evidence or witnesses from the church or the night club who might have seen the complainant at the relevant time;

(e) The applicant's frank admissions about the less savoury aspects of the occasion, including that the complainant was affected by alcohol when he had sexual intercourse with her, but his denial of rape;

(f) The fact that the three of them were, in various degrees, affected by alcohol;

(h) The applicant's prior experience with the complainant in sexual matters, more particularly, her 'stop go' behaviour;

(i) The evidence of the co-accused's sister supporting the applicant's account that the complainant was apparently consenting to go to the bedroom.

**32 In my view, however, the claim that the verdict is unsafe and unsatisfactory cannot be sustained. In the end the critical issue for the jury's determination was in very narrow compass, there being no dispute that the applicant sexually penetrated the complainant when she was asleep and that she told him to stop. The only relevant issue that remained alive was whether the applicant stopped the penetration when asked to do so. The resolution of this question was obviously one for the jury and I consider that, on the whole of the evidence, it was open to them to be satisfied beyond reasonable doubt that the applicant did not comply with the complainant's request to stop.

33 In relation to the claim that the verdicts are inconsistent, as the majority in MacKenzie v The Queen noted, courts have expressed**

... repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way in which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[12]

And, as the respondent submitted in this case, the verdicts are clearly reconcilable. The charges against the co-accused were dismissed and, necessarily, so was the charge against the applicant acting in concert with him. Importantly, there were significant differences in the respective evidence against the two offenders that constituted a rational basis for different verdicts. Thus, in relation to the co-accused, it was clear that the complainant and the co-accused were significantly intoxicated, although the co-accused's sister said in her evidence that the complainant was 'functioning'. She also said that the co-accused went upstairs a few minutes after the applicant had taken the complainant to the bedroom. Furthermore, the complainant said in relation to many aspects of the incident between the applicant and the co-accused that she could not remember what happened thereby arguably affecting the reliability of her evidence. More particularly, her credit was also damaged in respect of the co-accused because of her failure to describe her intercourse with him in circumstances where the co-accused contended in his record of interview that the sex between them was consensual and was initiated by the complainant in a setting of flirtation when both were under the influence of alcohol. Thus, it was open to the jury to have a reasonable doubt about whether the complainant consented and whether, if the complainant did not consent, the co-accused was aware of that. These circumstances, if accepted, would lead to a verdict of not guilty.

**34 The applicant's position, however, was relevantly different in the sense that the complainant's account was that she asked him to stop but he did not. As I have noted, that he was asked to stop was admitted by him in his record of interview as was the fact of his penetration. He also admitted that the complainant had indicated to him in previous conversation that she was not interested in engaging in a threesome. In the circumstances, I consider that the impugned verdict can stand by itself without being an 'affront to logic and commonsense' as the applicant claimed.

**36 I know turn to the application for leave to appeal against sentence on the ground that it is manifestly excessive. It was pointed out by counsel that in light of the complainant's evidence it appears that she was awake for only a very short time so that it is not safe to say how long the rape lasted and, it was claimed, it is not open to exclude the possibility that the applicant desisted virtually immediately after he was asked to do so. It is convenient to mention at this point that I consider that the latter observation is without substance - it is inconsistent with the complainant's evidence that the applicant 'kept going' after she told him to stop. Counsel also pointed out that there was no suggestion of violence by the applicant towards the complainant beyond that which is inherent in the offence, or of threats before, during or after the offence. Similarly, it was said, no weapons or objects were employed in the offending and there is no suggestion that the applicant set out to humiliate or degrade the complainant, although that may well have been the effect upon her. Furthermore, it was pointed out, there was no evidence of ejaculation. Counsel also highlighted matters personal to the applicant and other mitigating factors that were plainly taken into account by the sentencing judge. Be that as it may, it was submitted for the applicant that these factors were are not adequately reflected in the impugned sentence.

37 Whilst acknowledging that close comparisons of the impugned sentence with those in other cases is of limited utility, it was argued for the applicant that some assistance may be gained from the sentences that were recently imposed upon a re-sentencing by this Court in R v Cardamone.[13] In that case, it was said, the Court imposed sentences of four, six and six years' imprisonment respectively on two counts of digital-vaginal and one digital-anal rape by a 37 year old man upon a 15 year old girl. The rapes were accompanied by threats to kill or seriously injure, the brandishing of a weapon and a particular degree of humiliation by his ejaculating on the complainant's back, forcing her to undress and his use of abusive language. The offences were committed in the complainant's own home, which the applicant had entered uninvited for the purpose of raping her. The applicant had prior convictions for violence, dishonesty and drug offences and he fell to be sentenced as a serious sexual offender. It is necessary, however, to put the sentences in R v Cardamone in context. The applicant in that case was convicted of eight counts arising out of his brutal offending. Three of those counts have been mentioned and the others were threats to inflict serious injury, two counts of indecent act with a child under the age of 16 years and two counts of threat to kill. The impugned total effective sentence was ten years and three months with a non-parole period of seven years. This Court considered that the sentencing judge erred in his orders for cumulation and substituted different orders for cumulation, thereby reducing the total effective sentence to nine years imprisonment with a non-parole period of six years. Given the multiplicity of counts in that case, that necessarily brought into consideration the principle of totality, and given that the total effective sentence for the offending conduct was nine years' imprisonment, I consider that the sentences in that case on which the applicant relied as a springboard for the argument that the sentence here is plainly excessive are not a useful guide for determining whether the present sentence is so vitiated.

38 Whilst it is acknowledged that the offending here was not accompanied by violence or threats, and although there is no suggestion that the applicant was disposed to act aggressively towards the complainant if he did not get his way, these matters must be viewed in the context where the complainant was helpless by reason of having been overcome by alcohol with which she was plied by the offenders. There is no doubt that the applicant took advantage of the complainant's intoxicated state to gain sexual satisfaction and that, in the process, humiliated and degraded her. In the process, he breached her trust given that she considered him to be her friend, as he well knew, and trusted him. The considerable, detrimental, impact that the experience had on the complainant is evident from what seems to me to be a sincere victim impact statement. The offence of rape is plainly a very serious crime and the offending conduct here was also very serious. In my view it went beyond mere 'spur of the moment' conduct between two inebriated young people. The sentencing principles of condemnation of the conduct and general deterrence were of some significance in this sentencing disposition. In the circumstances, and not withstanding the mitigating factors to which counsel so ably pointed, I consider that it cannot be said that the sentence is outside the range of sentences that were open to his Honour to impose in the proper exercise of his sentencing discretion.**

39 Consequently, I would dismiss the applications for leave to appeal against conviction and sentence.

40 I agree that, for the reasons advanced by Chernov JA, the applications for leave to appeal against conviction and sentence should be dismissed.

**41 I agree for the reasons given by Chernov JA that the applications for leave to appeal against conviction and sentence should be dismissed.

42 I wish to make some additional observations about the circumstances of the offence. By the time the offence occurred, the complainant, the applicant and the alleged co-accused, V, had been together for some three and a half hours and had consumed a substantial amount of alcohol. The complainant by her own admission was very intoxicated. There was evidence that both the applicant and V were also affected by alcohol although the state of their inebriation is less clear. It appears that the applicant accompanied the complainant upstairs to V's bedroom, and V followed. The complainant lay on V's bed. A short time later V had intercourse with the complainant. The complainant said that at the time that V was having intercourse with her, the applicant was present by the bed and he was naked. This constituted the first count of rape on the presentment. The Crown alleged that the applicant had aided and abetted V. Both V and the applicant in their respective records of interview had alleged in some detail that the complainant was a willing participant in that act of intercourse. The jury acquitted V and the applicant on this count. The jury's verdict was thus consistent with the view that the complainant had**

consented to intercourse with V or, at least, that the jury had a reasonable doubt as to the question of her consent or as to V and the applicant's state of mind. The sentencing judge in his remarks made no finding as to this issue. The complainant's next recollection was of the applicant having intercourse with her. That constituted the rape the subject of count two. The jury's verdict was consistent with the jury either concluding that the applicant had the necessary mens rea, that is to say he knew or at least believed that she might not be consenting when he commenced to have intercourse or that he formed the necessary belief when he continued to have intercourse with her after she told him to stop. Given the complainant's lack of recollection of how the applicant commenced to have intercourse with her, the latter explanation for the jury's verdict appears more likely.

43 The crime of rape is inherently serious. But the circumstances of its commission and the gravity of the offending will vary significantly. When one has regard to the circumstances described, it appears to me that the sentence that was imposed was a stern one. The circumstances are an example of offending that falls within the range of sentences open at the low end of seriousness for this offence. The question, however, is not whether I would have imposed a lesser sentence but whether it has been shown that the sentence imposed was outside the range of sentences that were open to the learned sentencing judge. Chernov JA has identified those features of this crime which, notwithstanding those mitigating features, has led him to conclude that the sentence is not manifestly excessive. I have, after considerable deliberation, reached the same conclusion.

[1] (1982) 7 A Crim R 8.

[2] [2006] VSCA 1, [15].

[3] [2004] VSCA 136, [16] (citations omitted).

[4] [2002] VSCA 98.

[5] (1982) 7 A Crim R 8, 18.

[7] Unreported, Court of Appeal, Phillips CJ, Charles and Buchanan JJA, 4 June 1998.

[9] See Doggett v The Queen (2001) 208 CLR 343, 346 (Gleeson CJ).

[11] [2002] HCA 53; (2002) 213 CLR 606, 616, 631.

[12] (1996) 190 CLR 348, 367 (citations omitted). See also, eg, R v BT [2004] VSCA 44, [6]-[8] (Vincent JA).

[13] [2007] VSCA 77 (Warren CJ, with whom Nettle and Neave JJA agreed).