PHILLIPS CJ, SOUTHWELL AND VINCENT JJ The applicant applies for leave to appeal against conviction and the Director of Public Prosecutions appeals on the ground that the sentence imposed upon the applicant was manifestly inadequate.

2. The applicant, who is now aged 34 years and was at the time of the offence aged 32, was on 1 December 1994 presented in the County Court upon one count of rape. He pleaded not guilty and after a trial occupying 12 days was convicted. The applicant had no prior convictions. After hearing a plea for leniency the learned trial judge on 21 December 1994 sentenced the applicant to be imprisoned for three years, and fixed a non-parole period of 12 months.

3. The Crown case was that on 1 September 1993 the applicant raped the 17 year old complainant, by penile penetration of her vagina. The only issue at the trial was whether the intercourse which had admittedly occurred had been proved by the Crown to be non-consensual.

4. Early on the morning of 1 September 1993 a group of ten men of whom the applicant was one, assembled at Moorabbin Airport from where the applicant, who held a pilot's licence, was to fly a chartered twin engine aircraft to Birdsville Races in Central Australia. The aircraft left at about midday but due to bad weather conditions, the applicant diverted it and landed at Bendigo Airport. The men went to a hotel where considerable quantities of liquor were consumed by many of them. However, it would appear that the applicant did not commence drinking until later in the day when it was decided that the flight could not continue on that day. The men arranged to spend the night at a hotel in Bendigo. Thereafter some of the men at least, including the applicant, consumed more alcohol.

5. The complainant was a school student who worked part-time as a vacuum cleaner demonstrator. She was to give a demonstration at a home in Casey Street, Bendigo at 8 p.m., to which address she was driven by her supervisor, who gave evidence that the complainant was then properly dressed, looking well and not in any way under the influence of alcohol or drugs. It was arranged that the supervisor would return later to pick the complainant up. The householder, Mrs Gretgirix, gave evidence that the complainant was in no way intoxicated; the demonstration finished at about 9 p.m. but she remained until 10 p.m. waiting for the supervisor. During that period the complainant was offered home brewed beer, of which she had two glasses. She had coffee and toast with Mrs Gretgirix. The complainant went outside to have a cigarette, and not long afterwards decided to walk down Casey Street to a nearby intersection, since the supervisor had earlier had trouble finding the householder's address. She stood on the corner and then noticed two of the applicant's group nearby; they approached and spoke to her and she then noticed most of the remainder of the group walking towards them. All of them appeared to her to be very drunk, indeed so intoxicated that she did not regard them as an immediate threat.

6. However, shortly thereafter, several of the men gathered around her, one of them offering her a cap of "speed", an amphetamine. When the complainant saw a car driving along the road she attempted to get the driver's attention and indeed banged on the car, but, according to the driver, she appeared to be happy and smiling and the driver did not stop. The applicant stood behind the complainant with his hands on her stomach and tried to push her under a tree. The applicant and the other men then took her to the bathroom of a nearby service station. She was eventually permitted to leave the bathroom and she walked away, followed by the applicant. She walked up to the front of a nearby house and knocked on the front door; this woke the occupant but when he got up from his bed and opened the door he saw nobody there.

7. The complainant walked away from the house; the applicant put his arms around her and tried to push her under a tree on the nature-strip. She resisted and told him to leave her alone. The applicant then pushed her into the front garden of another house. By this time it was raining quite heavily. The applicant pushed her against a fence and banged her head against the fence, took off his jacket, threw it on the ground and pushed her down onto it. He undid the complainant's belt and jeans and pulled them down, while she was trying to push the applicant away. She tried to yell out but he kept his hands over her face. He placed his hand on her breasts, pulled up her T-shirt and bit her on the breasts, then inserted his finger into her vagina. He took her hand and placed it on his then flaccid penis requesting her to "wank" him. The applicant obtained an erection and inserted his penis into her vagina. She was trying to yell out but she was by then crying and hysterical. The applicant ejaculated as he withdrew his penis, he then stood up and walked away. She pulled up her jeans but her underpants were left around her ankle. She went back towards Mrs Gretgirix's house and there saw the applicant who said "Come to a party my friends would enjoy you" or words to that effect.

8. Not long afterwards the supervisor arrived to collect the complainant, and found her seated on the ground holding her knees to her chest. She noticed that the complainant's underpants were still around one of her ankles, and the complainant was very shaky and quiet. The supervisor decided to take her to her home where she saw that the complainant had dirt on her jacket and jeans, which were wet and muddy. She saw that the complainant was very pale, upset and teary eyed. Another witness at the supervisor's house said that the complainant was shaking and seemed to be in total shock. The complainant then cried loudly and appeared hysterical, huddled up with her arms and legs folded close together. After a quarter of an hour the complainant was still shaking, the witness took her into the bedroom and there observed a large lump on the back of the complainant's head. The supervisor then contacted the police. When seen by the police the complainant was upset, red-eyed and dazed, rambling in conversation but exhibiting no sign of ingestion of drugs or alcohol.

9. Medical examination of the complainant revealed mud and dirt on her navel and on her legs, and dirt around the crutch area where there was a perineal abrasion and seminal fluid. The doctor found no sign of trauma to the breasts or head. In due course, police interviewed the applicant who in a tape-recorded interview, admitted having intercourse with the complainant but claimed that it was with her consent, she appearing to be either drunk or on drugs and in a happy, carefree, easy-going mood. He claimed that the complainant had initiated their sexual activity, kissing him in a sexually passionate manner, that they laid on the ground and had consensual intercourse, that she acted "as if she wanted more"; and that she gave the applicant a tongue kiss and sucked his lip before he left.

10. At the trial the applicant gave a similar version of events.

"1. The verdict of guilty is against the evidence and the weight

of the evidence.

2. The verdict of guilty is unsafe and unsatisfactory in all the

circumstances.

3. The honourable trial judge failed to adequately direct the

jury on the appropriate onus of proof in light of the

prosecutor's final address to the jury."

Ground 1 was not argued. The complaint in ground 2 was not that there was insufficient evidence to support the conviction or that the evidence was unsatisfactory but rather that by reason of the matters the subject of ground 3 the conviction was unsafe and unsatisfactory. Ground 3 was first argued and it is to that ground we now turn.

12. Since the impugned comments should be seen in proper context, we had better set out most of the references to the subject of the onus of proof and the critical issues in the trial which were made by each counsel and by the judge.

13. In his opening to the jury the prosecutor said:

"It is important for you to realise right throughout the course

of this trial, that the onus of proving Mr Pearson's guilt is on

me. That onus rests on the Crown and it never shifts..."

Then after referring to the presumption of innocence counsel continued:

"The accused ... or his counsel ... don't have to prove a thing,

in particular the accused doesn't have to prove his innocence

doesn't have to prove he's not guilty. It is my function to

prove he is guilty ...".

Counsel then went on to discuss the standard of necessary proof.

14. During his cross-examination of the applicant, the prosecutor was at pains on several occasions to show that there was such marked diversion between the version given by the complainant and that given by the applicant as to demonstrate that one or other must have been lying, or to put it another way, that there was no room for mistake. In the course of these questions, the prosecutor extracted answers from the applicant that the complainant was "a blatant liar" ... "she's definitely telling lies". The applicant agreed with the proposition that there were only two possibilities - either the complainant or he, the applicant, was a liar.

15. Doubtless the prosecutor was anxious to ensure, inter alia, that there could be no room for a submission by counsel for the applicant in his address to the jury that having regard to the considerable quantity of alcohol imbibed by the applicant, the latter may have been mistaken in his belief that the complainant was consenting to intercourse. Be that as it may, the black and white nature of the issue was pointed to in cross-examination on not less than four occasions.

16. In his address to the jury the prosecutor made a number of references to this topic. We set out those references. At p.740 after stating that the defence did not claim a mistaken belief in consent the prosecutor said:

"So it seems that the real issue in this case is that question

of consent ... now to prove those elements as I have indicated,

the accused does not need to prove or disprove anything. That

onus never shifts from the Crown ...".

"You heard me put that to Mr Pearson in cross-examination and

what I was trying to put to Mr Pearson and get across to him

was that it is a situation where it is really black or white.

Either ... she didn't consent and he's lying or she did consent

and she's lying. Well Mr Pearson says (the complainant) is

telling a pack of lies and the Crown says that when you are

looking at the question of consent, which is really the

important element here, the Crown says, that what you've got

to decide in this case, who is lying about what happened in the

front yard of No. 3 Casey Street, that is the question, isn't

it? Well, it's a matter for you..."

18. At p.754, after suggesting to the jury that this was not a case where the applicant might be acquitted because of a "doubt over his state of mind" (suggesting, in effect, the possibility of a mistaken belief in consent), said:

"Now that is different to this case, isn't it? There are no grey

areas here. This case is black or white. The way the defence has

been run, one or other of these two people is lying to you ...

it is either (the complainant) or it is Mr Pearson, that's the

way the defence has been run. He was adamant that she's lying.

There's only two possibilities, the Crown says, he's lying or

she's lying. Which one is it? Now if you are satisfied it's her

make no bones about it, you should acquit him. If you are

satisfied it's him the Crown says you should accept what she

says about what happened at No. 3 and you should convict him,

that's a matter for you but that's how the Crown put's its case

to you."

It will readily be seen that this was a misleading way in which to express the issue, since counsel omitted to refer to the important question as to whether there was an intermediate position where the jury might not be satisfied that the complainant was lying but not might be satisfied beyond reasonable doubt that she was not.

19. At p.765, after briefly setting out and comparing the contrasting versions, counsel said:

"Who is lying? No middle ground here. Who is lying about what

happened there? All the Crown ask you to do is to apply your

commonsense to what you heard in this court, that's all we ask.

Thank you, ladies and gentlemen."

20. Counsel for the applicant immediately applied for a discharge of the jury in that they had been mislead in a manner which could not be cured by anything that he, counsel, or the judge were to say. Counsel submitted that the prosecutor told the jury constantly time and time again that the real issue for them was who was lying. After some discussion the judge said:

"It must be clear to the jury and if it's not I'll certainly

make it clear to them that it is not a competition as to which

is the more truthful of the witnesses (the complainant) or Mr

Pearson. But the Crown has to prove beyond reasonable doubt the

elements in the offence of rape, and I agree with (the

prosecutor) that if the jury are satisfied Mr Pearson is lying

then they can more readily accept (the complainant's) evidence

as being truthful."

"I'm not persuaded at all that anything (the prosecutor) is such

that the jury will not at the end of my charge have a clear

picture as to what their task is, namely to be satisfied beyond

reasonable doubt, the burden resting on the Crown, of the

constituent elements in the crime of rape, in this case

particularly, the question of consent."

"I must say at times I thought you might have been going close

to the line, but I think it's fair to say to you that you

quickly steered away from it and reminded the jury that the

burden rests with the Crown."

With respect, it appears to us that the prosecutor did not always do what the judge said he did.

21. Counsel for the applicant, as might well have been expected in the circumstances, gave a strong answer to the prosecutor's observations on this topic. It is as well to set out his first response which was in these terms:

"Now, numerous times during the course of his address to you,

the prosecutor erred, in my submission. He told you, 'Who is

lying? That is the question.' He repeated similar things several

times. At a later stage he said this, or words to this effect,

'Either one of them has lied, it is for you to decide which

one.' He told you about the boys on the plane that their

evidence, you might think, wouldn't assist you in determining

who is lying. He told you right at the end immediately before

he sat down, 'Who is lying? No middle ground. Who is lying?'

You see, because of the age old principle of proof beyond

reasonable doubt, and the onus of proof being on the accuser,

and the presumption of innocence, it is not your function to

decide who is lying. He said, 'Who is lying? That is the

question.' Ladies and gentlemen, that is not the question. The

question is, have you been persuaded beyond reasonable doubt

that this man is guilty? The question might be, are you

satisfied beyond reasonable doubt that you can rely upon (the

complainant's) evidence as being the truth beyond reasonable

doubt? That does not mean that you have to decide that someone

has lied. It does not mean that you have to decide that someone

has told the truth. It might be that one of you, or some of you,

in the end can't decide who has lied, I'm not suggesting that

for a moment, but for the sake of the argument even if you

couldn't decide, that doesn't mean you can't reach a verdict

because you mightn't be able to decide, and if you can't decide

that means you're not satisfied beyond reasonable doubt, if your

inability to decide is based on a reasonable doubt it means

you're not satisfied. In the end - I don't know, I can't read

your minds, but one of you might think, 'Well, I just don't

know. I've got doubts', or, 'I've got a doubt', and it's based

on reason about whether or not (the complainant) can be relied

upon. If you had a doubt, that's as to the issue of consent and

what happened in that front yard. If you had a doubt about her

evidence you'd be bound to acquit. And that's a different thing,

I hope I've explained to you, from deciding what my friend said

was the question, 'Who is lying?' Who is lying is not the

question at all. It may be that you decide that she is lying.

Well, so be it, and if you did you would acquit. It may be in

a case that a jury might feel that the accused might be lying.

If that be the case, so be it, but that's not the end of it,

in the end taking all those matter sand all the evidence into

account, the final question, the question is, have I been

persuaded beyond reasonable doubt that this woman was raped?"

22. This passage presents not only as an accurate statement of the issues for the jury to consider, but also as a strong correction of some of the observations of the prosecutor which are quoted above.

23. In his charge to the jury the learned trial judge gave a conventional direction relating to the "comments counsel make about the evidence or arguments they make about the evidence". His Honour reminded the jury that they were not bound by such comments and went on:

"You consider those arguments and comments to see if they help

you. If they do not help you, it is your duty to reject them

from further consideration."

24. We might observe here that the first complaint on behalf of the applicant in this court is that those directions might in the circumstances of this case have served as an invitation to the jury to adopt the test as it was posed by the prosecutor. In other words, that the jury might have thought that it was being invited by the judge to consider the issue merely as one of "who is lying".

25. We cannot accept that there is any significant risk that the jury so reasoned. If no more had been said by the judge, the risk might have been real. However, in the light of the directions later given we are quite unpersuaded that the jury would have been mistaken about the issue they had to resolve.

26. After directing the jury that the onus lay upon the Crown to prove the applicant guilty the judge said:

"Now a verdict of not guilty means one of two things. It means

either that you believe the accused is innocent or that you are

not satisfied that he is guilty and see the distinction."

After discussing the standard of proof the judge said:

"So if when you come to the end of your deliberations your state

of judgment of this I am satisfied by the evidence beyond

reasonable doubt that the accused is guilty, then your verdict

should of course be guilty. But if at the end of your

deliberations your state of judgment is this, I am not satisfied

by the evidence beyond reasonable doubt that he is guilty,

then your verdict should be not guilty ... but remembering

always at all times, that any process of reasoning that you

use, and the conclusions that you arrive at, must be consistent

with the rule of law that the prosecution bears the onus of

proof and that proof of guilt means proof beyond reasonable

doubt."

27. A little later the judge referred to the central issue in the case as being the issue of consent. In dealing with the elements of the offence of rape the judge directed the jury that -

"The Crown must prove that at the time of the act of sexual

penetration she was not consenting ... each of those three

elements must be proved by the prosecution beyond reasonable

doubt ... remembering always it is for the prosecution or the

Crown to prove beyond reasonable doubt in this case that she

was not consenting."

28. In referring to the way in which the parties had put their cases the judge said:

"Essentially you heard the way each party put its case

yesterday. (The prosecutor) outlined to you the way in which

the Crown invites you to accept the evidence of (the

complainant) in all essential respects as being reliable and

truthful, and invites you to form the view that beyond

reasonable doubt the intercourse that took place, took place

without her consent ... the Crown invites you to stand back

and look at this story and decide whether you are satisfied

beyond reasonable doubt that the story (the complainant) tells

is the one you should accept. The Crown says you should accept

it as being the story that has credibility and that you

should be satisfied beyond reasonable doubt that this

intercourse took place without her consent and that the

accused knew she was not consenting."

29. After referring to the inconsistencies in the complainant's story which had been relied upon by counsel for the applicant and summarising the defence submission the judge said:

"But remember it is up to the Crown to satisfy you beyond

reasonable doubt as to the three elements involved in the

alleged offence against Mr Pearson. Mr Pearson does not have

to prove his innocence, the Crown has to prove his guilt."

After a few more sentences the jury retired to consider the verdict.

30. Counsel for the applicant raised some objections to the charge but none here relevant. We think it tolerably clear that counsel for the applicant, who had earlier shown himself to be alive to the risk that the jury might adopt the wrong approach suggested by the prosecutor, felt at that time at any rate that his own response and the directions given by the trial judge had eliminated any risk that the jury would misunderstand the issue which fell for their resolution. It is true that a little later, after the jury had requested the replaying of a tape of some of the evidence of the complainant and the applicant, that counsel again spoke of his concern "about the potential for this jury to be working under a misapprehension, notwithstanding your Honour's directions, that some part of their process is deciding whose lying or weighing up the competing versions." In response to a question from the judge counsel said that he was not applying for a discharge of the jury but added, "It may be that at some later stage that I will apply for a discharge ...". At no time did counsel apply for a redirection upon this aspect, although after the jury had requested to hear the tape of the complainant's evidence in the jury room and were told that that could not occur but that the tape could be played in the court room, a discussion occurred in which the foreman of the jury said, "We basically listen to both sides of the story." A discussion then ensued in which counsel again expressed his concern as to whether or not the question the jury was considering was "who was lying". The judge responded that "Their desire to compare the two versions I don't think is necessarily inconsistent with that understanding of their task".

31. When the jury returned to court the judge explained that the jury could hear any evidence they wished to hear but the foreman said that the jury did not at that time wish to hear more of the evidence.

32. On the afternoon of that day the jury requested to hear again the evidence in chief of the complainant, and the tape was then played. After the jury retired, counsel for the applicant renewed his application for a discharge of the jury, since he had interpreted some remarks of the jury foreman as "reinforcing our concern that this jury has mistakenly, wrongly and given the impression, and has the impression, that their function is concerning with weighing up the two versions and deciding which one they accept". That application was rejected by the judge.

33. In this court it was said for the applicant that the prosecutor's address to the jury invited the jury to adopt an approach which is contrary to law, a proposition for which a number of authorities were cited. Among them was Liberato v. R. [1985] HCA 66; (1985) 159 CLR 507; R. v. Lapuse [1964] VicRp 7; (1964) VR 43; and R. v. Smith [1964] VicRp 31; (1964) VR 217.

34. In Liberato at p.515 Brennan J (the fact that his Honour was in dissent is for present purposes irrelevant) said:

"When a case turns on a conflict between the evidence of a

prosecution witness and the evidence of a defence witness, it

is commonplace for a judge to invite a jury to consider the

question: who is to be believed? But it is essential to ensure,

by suitable direction, that the answer to that question (which

the jury would doubtless ask themselves in any event) if adverse

to the defence, is not taken as concluding the issue whether

the prosecution has proved beyond reasonable doubt the issues

which it bears the onus of proving. The jury must be told that,

even if they prefer the evidence for the prosecution, they

should not convict unless they are satisfied beyond reasonable

doubt of the truth of that evidence. The jury must be told that,

even if they do not positively believe the evidence for the

defence, they cannot find an issue against the accused contrary

to that evidence if that evidence gives rise to a reasonable

doubt as to that issue. His Honour did not make that clear to

the jury, and the omission was hardly remedied by acknowledging

that the question whom to believe is la gross simplification'."

"It is your problem to decide who is lying, because either five

policemen in this case are lying or the accused is lying."

"Someone is not telling the truth and it is for you to decide

who it is."

The court there upheld the submission that the trial judge had failed to make plain to the jury that if they could not determine where the truth lay, the benefit of the doubt must be given to the accused. The court said at p.46:

"We think that the charge in presenting the case as it did was

calculated to mislead the jury into asking themselves which

body of evidence they preferred and in that way determining

the problem as it was posed to them. In a sense, of course,

it is true that it was the function of the jury to ascertain

where the truth lay, but what was said in that regard was by

no means a complete or an accurate definition of the task.

The jury may have been satisfied beyond reasonable doubt to

accept one or other of the opposing versions, but their

attention was at no time directed to the fact that they might

find themselves in an intermediate position in which they

were not satisfied beyond reasonable doubt that the version

of the Crown witnesses was true ... it was necessary to bring

clearly to their minds the application to the problem of the

onus of proof and the course they should follow in the event

of their not being satisfied of the truth of the evidence

relied upon by the Crown. The charge, however, contain no

direction whatever of this nature."

In the present case, of course, as has already been shown, the judge did advert to the "intermediate position", although not referring to it in those terms.

36. In R. v. Smith the trial judge had told the jury in substance:

"That one side was telling the truth and the other was telling

lies, and that it was for the jury to say who was telling the

truth and who was lying."

And the judge added words to the effect that the jury had to decide "where the truth lay as between the witnesses called by the Crown and the defence witnesses". As the court said at p.218 the complaint was that the judge "failed to direct them that if they had a reasonable doubt as to where the truth lay they should acquit the accused, or to put it more precisely, that if the evidence of the accused and the witnesses produced a reasonable doubt of the accused guilt, they should acquit him."

37. The court went on to consider a number of authorities including Lapuse and said at p.224:

"The principle to be gathered from all these decisions we think

is this. In cases where the decision as to the accused's guilt

depends principally upon the assessment by the jury of evidence

called by the Crown as opposed to evidence called by the

accused, it is particularly necessary that the jury should be

clearly directed that if in the final result they have a

reasonable doubt as to the accused's guilt they must acquit

and bring in a verdict of not guilty. The necessity for such

a clear direction is emphasised when in such a case the jury

has been told by the trial judge that they had to decide who

is telling the truth, the Crown witnesses or those called by

the defence, or that they had to decide between the two sets of

witnesses where the truth lies. ... the task of a court of

appeal is to decide whether, on a consideration of the charge

as a whole, the jury has been clearly instructed that if they

have a reasonable doubt as to the accused's guilt they must

acquit."

38. Pausing there for a moment, in our view the jury were clearly instructed on several occasions that if they entertained a reasonable doubt of the applicant's guilt they must acquit.

"It is also clear from the foregoing cases that although a judge

may give a clear statement of the general proposition that the

onus lies upon the Crown to establish the guilt of the accused

beyond reasonable doubt, he nay in the subsequent course of his

charge so overlay that general direction by statements that

the issue before them is to decide whether they believe the

Crown witnesses or the accused and his witnesses or that it

is for then to decide where the truth lies, that the direction

on onus nay become confused and there nay in a particular case

be a danger that the jury will misconceive their function and

overlook the consequence of what they had earlier been told,

viz. that if they cannot decide who is telling the truth they

must acquit on the basis that there is a reasonable doubt as

to the accused's guilt and that they must not convict on the

basis that one version is simply more credible than the other."

40. Here, the complaint is, of course, not that the judge said things which "overlaid" earlier correct directions on the burden of proof, but, first, that the judge had invited the jury to approach its task in the manner suggested by the prosecutor and secondly, that his Honour failed to correct that erroneous approach.

41. We have already said that we are unable to accept the first proposition. As to the second proposition, we are not persuaded that the failure of the judge specifically to disapprove of the statement of the issue as put by the prosecutor created a risk that the jury might have approached its task upon the basis which counsel for the applicant has suggested. We think it would have been preferable for the judge to have given judicial imprimatur to the correct response of counsel for the applicant in his address to the jury, and to have told the jury that the ultimate test is not "who is lying", or "which version do you prefer". We might add that it is desirable that a prosecutor who can quite properly address himself to the question of "who is lying" should thereafter remind the jury of what follows if the jury were to find themselves in "an intermediate position". However, as has so often been said, the directions to the jury must be looked at as a whole, and in the light of submissions made by counsel, and this court must then ask itself (as was said in Smith) "whether, on a consideration of the charge as a whole, the jury has been clearly instructed that if they have a reasonable doubt as to the accused's guilt they must acquit".

42. We think such an examination of the charge leads to the conclusion that the judge made it abundantly clear to the jury that before convicting the applicant the jury must be satisfied beyond reasonable doubt that the complainant's version was substantially true and correct and that the jury were satisfied beyond reasonable doubt that the act of intercourse was non-consensual.

43. We do not think that there is any risk that the jury reached such satisfaction by an impermissible approach as is suggested for the applicant.

44. Accordingly, this ground has not been made out.

45. Ground 2, as we have indicated, was dependent upon a finding that ground 1 was made out. It follows that the application for leave to appeal against conviction must be dismissed.

46. The Director of Public Prosecutions appeals against the sentence imposed on the grounds-

"1. The sentence was manifestly inadequate in all the

circumstances.

2. The minimum term was manifestly inadequate in all the

circumstances."

47. This court was reminded that in submissions to the trial judge the Crown had contended that this was "a mid range case".

48. It was said that there were aggravating circumstances in the present case in that the rape was committed by a nature man upon a very young woman who was a stranger to him; and that there were particularly humiliating circumstances in the manner in which she was pushed down in what was virtually a public place, being the front garden of a house. In those circumstances, it was said that notwithstanding favourable matters personal to the respondent, both the head sentence of three years and the non-parole period of one year were manifestly inadequate. Further, it was said that those sentences are inadequate to the extent that this was a rare and exceptional case amounting to "error in point of principle". This last submission was made to overcome the decision in Malvaso v. Re [1989] HCA 58; (1989) 168 CLR 227. In that case Deane and McHugh JJ (their dissent is presently irrelevant) said at p 234 that although Crown appeals have become commonplace in Australia and the common law world -

"nonetheless, it should not be forgotten that it represents a

departure from traditional standards of what is proper in the

administration of justice in that, in a practical sense, it is

contrary to the deeprooted notions of fairness and decency

which underline the principle against double jeopardy".

49. Their Honours then referred to the oft-quoted passage from the judgment of Barwick CJ in Griffiths v. The Queen [1977] HCA 44; (1977) 137 CLR 293 at p 310 where his Honour said:

"On my view of the proper meaning of s.5D in the context of the

Criminal Appeal Act, an appeal by the Attorney General should be

a rarity, brought only to establish some matter of principle and

to afford an opportunity for the Court of Criminal Appeal to

perform its proper function in this respect, namely, to lay down

principles for the governance and guidance of courts having the

duty of sentencing convicted persons."

"That statement of the rare circumstances in which an appeal by

the Attorney General against sentence can be justified should,

in our view, be expanded by the inclusion of express reference

to the need to avoid the kind of manifest disparity or

inconsistency in sentencing standards which Barwick CJ saw

as being 'error in point of principle'. Otherwise it should be

accepted as representing general and authoritative guidance to

the courts of criminal appeal of this country."

51. The subject was again considered in Everett v. R. [1994] HCA 49; (1994) 68 ALJR 875 where the two earlier decisions cited above were applied and where the majority of the court (Brennan, Deane, Dawson and Gaudron JJ) (in referring to the jurisdiction conferred upon the Court of Criminal Appeal in Tasmania to grant leave to the Attorney General to appeal against sentence) said at p.877:

"Such a jurisdiction has become commonplace throughout this

country and the common law world. Nonetheless in its exercise,

a court of criminal appeal must, in the absence of clear

statutory direction to the contrary, recognised that there are

strong reasons why the jurisdiction to grant leave to the

Attorney General to appeal against sentence should be exercised

only in the rare and exceptional case."

(In R. v. Inglis (unreported 31 March 1995) Crockett J with whom Hampel and Smith JJ agreed, saw no reason to distinguish between a case where leave is necessary for an Attorney General to prosecute an appeal and the case where, such as in this state, no such leave is necessary.)

52. As it seems to us the question for this court to consider is whether there is such an inadequacy in the sentences imposed as to constitute this a rare and exceptional case where it can be said that the inadequacy is so manifest as to constitute the type of error in principle to which Barwick CJ referred in Griffiths v. The Queen.

53. A bare statement of the facts in this case appears to us amply to justify a finding that the sentences imposed were grossly inadequate. A sober, well behaved 17 year old girl was at night walking along a street in a country town when she was forced from the roadway by a 32 year old man, a complete stranger to her; she was roughly handled, forced to the ground, partially disrobed, and then subjected to penile rape. It would in our view be a quite extraordinary and perhaps unprecedented case if such an offender, even one who, such as the applicant, has no prior convictions and is able affirmatively to prove previous good character, were to receive sentences such as were passed in this case. There can be little doubt that it is unlikely in the extreme that the applicant would have committed this offence had he been sober or reasonably so. While that fact might explain his crime, it cannot excuse it. We are driven to the view that the sentences imposed were so inadequate, and so inconsistent with sentences generally regarded in this state as appropriate for this crime, that this case should be regarded as rare and exceptional in the sense to which reference has earlier been made.

54. We are accordingly of the view that the appeal should be upheld, and that it is for this court to pass sentence upon the applicant. However, the fact that the applicant has now been put in double jeopardy is one which has been held as justifying, if not demanding, that the court pass a more lenient sentence than would normally be called for in all the circumstances. Bearing that and all other relevant considerations in mind, we think the appropriate sentence to pass is one of imprisonment for 4 1/2 years and that a non-parole period of 2 years be fixed.

The application for leave to appeal against conviction stands dismissed.

The appeal of the Director of Public Prosecutions is allowed. The sentence

imposed on the respondent in the court below is set aside and in lieu thereof he is sentenced to be imprisoned for four-and-a-half years. The Court fixes a non-parole period of two years.

The Court declares that the period of 171 days is the period of pre-sentence detention already served by the respondent as part of the said sentence and directs that the making of this declaration and the contents thereof be entered in the records of the Court.