1 On 5 November 2009 the appellant was sentenced by a judge in the County Court to a term of 9 years and 6 months' imprisonment with a minimum term of 7 years' imprisonment after he had pleaded guilty to two charges of rape and one charge of false imprisonment.

2 On 12 April 2012, the appellant was arraigned in the County Court and pleaded guilty before another judge to an indictment containing one charge of rape and was sentenced to be imprisoned for a term of 9 years. The appellant was sentenced as a serious sexual offender. The rape occurred five days before the offences for which the appellant was sentenced on 5 November 2009. The sentencing judge on 12 April 2012 ordered that 4 years and 6 months of the sentence he imposed be cumulated on the earlier sentence, creating a total effective sentence of 14 years' imprisonment. He fixed a new non-parole period, dating from the day of sentence, of seven years and eight months' imprisonment. His intention was that the appellant serve a minimum term of 11 years' imprisonment - the appellant having by then served three years and four months' imprisonment under the 2009 sentence.

3 The appellant appeals, by leave, against the sentence imposed on 12 April 2012.

4 On 19 December 2008, the complainant, a girl aged 18 years, was sitting alone on the footpath near a nightclub in Frankston.

5 The appellant, who had driven from his house in Tullamarine to Frankston, came across the complainant. He walked up to her and commenced to talk to her. The complainant explained that she had been left behind by friends and after she spoke on the telephone to them, the appellant offered to drive her to a hotel in Mornington where her friends were.

6 In fact, the appellant drove the complainant some distance from Mornington. The girl became concerned for her safety and twice sent text messages to friends. The appellant stopped his car on a street some distance from Mornington and took the complainant's phone from her. He threatened her as she began to cry. The appellant attempted to kiss the complainant and told her to take her clothes off. The victim screamed and the appellant covered the complainant's mouth and put his hand around her throat. After removing her clothing, the appellant forced his penis into the complainant's vagina. While the appellant was raping her, the complainant asked if the appellant was going to kill her.

7 After he ejaculated, the appellant put on his clothes and drove the complainant to the house of a friend of the complainant in Frankston. The complainant arrived at around 4 am and immediately reported the offence to the police.

8 The circumstances which we have set out at [5]-[7] above present the factual skeleton of the offending. But they do not make mention of conduct of the appellant before, during and after the rape which was of a distinctive, and potentially significant, character. This is a matter to which we will return.

9 Material adduced for the appellant on the plea, much of it explicitly accepted by the judge, revealed the following.

10 The appellant is 32 years' old. He was born in Afghanistan. The appellant's family are Shia Muslims of Hazara ethnicity, who are at odds with the Taliban, who are Sunni Muslims of Pashtun ethnicity.

11 When he was a child, the appellant saw soldiers take away his father. He never saw his father again. His father's brother also disappeared. Later on, the appellant's older brother was killed by the Taliban, apparently to facilitate a petty theft. The appellant was an eye-witness to this killing. He also witnessed other killings and atrocities by the Taliban. Hazaras were targeted. On four occasions, he appellant was beaten with cables by the Taliban, twice losing consciousness. On two of these four occasions the beatings were administered in a government district office. In 2007, when living in Australia, he learnt that one of his younger brothers had been murdered by the Taliban.

12 The appellant left Afghanistan and travelled to Pakistan, Indonesia and then to Australia. In 2005, he gained a permanent protection visa and lived with other refugees from Afghanistan in Melbourne.

13 The appellant has never received an education. He began working at the age of about nine with his older brother - the brother whom the Taliban later killed in his presence - in an automobile mechanical workshop. After being released from the detention centre in Australia, the appellant obtained work in a plastics factory and then as a welder. He lost jobs because of his illiteracy. He applied for other jobs, but his illiteracy and very limited spoken English worked against him. In 2008, however, he obtained work as a mechanic. He remained in that employment at time of offending, working long hours, but becoming increasingly isolated from other members of the Afghan community in Melbourne.

14 Shortly before fleeing from Afghanistan, the appellant became engaged. It was an arranged engagement, but the appellant was apparently not unhappy about it on that account. In accordance with custom, he and his fiancée did not have sexual relations. Indeed, on his account, he had no relationships with girls in his adolescence and no sexual experiences.

15 After arriving in Australia, the appellant kept in contact with his fiancée and his mother. It was his intention to bring them to Australia once he had permanent residency. But after he gained that status, lack of money stood in the way. Nonetheless, once he obtained the mechanic's job, he repatriated a substantial part of his income to his mother and fiancée.

16 In all of the circumstances which we have described, it is perhaps no great surprise that in 2007 the appellant was diagnosed with post-traumatic stress disorder and major depressive disorder. His general practitioner prescribed anti-depressant medication. Unfortunately, the appellant did not persist in attending his doctor. Further, he only attended Foundation House, a counselling and mental health service for refugees and asylum seekers, on one occasion.

17 The appellant's prior convictions were limited to driving offences and a conviction for loitering for the purpose of prostitution in a public place.

18 A report dated 13 March 2012 by a psychologist, Mr Coffey, was tendered in the course of a plea. The report was, in our view, conspicuously even-handed.

19 On the one hand, Mr Coffey stated that the appellant's ability to work full-time in 2008 suggested that he was not then suffering from a seriously disabling mental illness. At interview in 2012, there was no marked cognitive impairment. Nor was there evidence of personality disorder. The full diagnostic criteria for major depressive episode were not then made out, likewise the full picture of post-traumatic stress disorder was not disclosed by the symptoms which were then present. It was improbable that mental illness at time of offending resulted in a significant impairment in judgment or disinhibition. On the other hand, the witness stated, it appeared that the appellant continued to suffer from some post traumatic anxiety symptoms. It was likely that he experienced such symptoms at the time of offending.

20 Further, having noted the appellant's assertion that he had believed, albeit wrongly, that the sex he had with the complainant was consensual, the witness stated that the facts outlined in the prosecution opening made it 'very difficult to accept [the appellant's] assertion as anything other than an attempt to diminish hi s responsibility.'

21 It was in the context of his detailed assessment of the offending and the offender that Mr Coffey said this:

Mr Sharifi has no experience in forming relationships with women out of which a real relationship might develop. In discussing the forming of consensual sexual relationships he appeared unsophisticated and uncertain....

And

...while [the appellant] did not suffer from a mental disorder which explains the offence, his anxious and depressed state; his alienation and sense of failure; his social isolation and lack of support; his emotional immaturity and complete inexperience of sexual relations as part of courtship and friendship - these variables in combination probably heightened the risk that [the appellant] would engage in non-consensual sex and that he would be reckless as to whether the victim was consenting.

And

The psychological sequelae of his childhood experiences have been post-traumatic stress symptoms and depression in adulthood. These mental disorders remained largely untreated after his arrival in Australia, and this affected his ability to settle and adapt to his new environment. He did not find stable employment for seven years, he was unable to bring his family to Australia, and he became socially estranged and very isolated.

[The appellant] suffered depressive and post-traumatic symptoms at the time of the offence. He was very isolated. He was inexperienced in forming relationships with women and possessed an unclear concept of what constitutes consent in sexual relations. These factors in combination heightened the probability of the commission of the offence.

22 We mentioned earlier that there was certain conduct of the appellant proximate to the time of offending which was of a distinctive, and potentially significant character. Having noted Mr Coffey's opinion as set out in the preceding paragraph, it is convenient to refer to that conduct.

23 We can do so by first referring to an observation made by the prosecutor in the course of her opening address at the plea. She said that the complainant 'had the impression that despite her tears and protests [the appellant] was acting as if she was a willing participant'. That impression was evidently based upon remarks made by the appellant to the complainant before, during and after the rape, as noted by the prosecutor.

24 Secondly, there is the fact that, after the rape, the appellant drove the complainant to her friend's home.

25 Thirdly, we refer to the Crown's written case on the application for leave to appeal. The case was signed by the prosecutor who had appeared on the plea. It stated:

There were aspects of [the appellant's} conduct which were strange. In particular his attitude, as described by the complainant, was of a man who treated the complainant as somehow a willing participant, in circumstances when it would have been obvious that she was not. He drove her home which suggests that the [appellant] had no appreciation - despite the objective features demonstrating that he had just raped the victim - that his conduct was wrong.

26 In granting leave to appeal, Redlich JA observed that, based upon the material before the sentencing judge, that description of the appellant's apparent attitude appeared appropriate. It provided a basis upon which to justify pursuit of most of the grounds of appeal. The Chief Crown Prosecutor, who had appeared on the return of the application, very fairly had not argued against grant of leave.

1. The learned sentencing judge erred by failing to properly apply the sentencing principle of totality.

2. The individual and total effective sentences are manifestly excessive.

1. The learned sentencing judge erred in finding that the appellant intended to commit the rape when he offered the victim a lift.
2. The learned sentencing judge erred in finding that the appellant's prospects of rehabilitation were poor and that the community needed protection from him.
3. The learned sentencing judge erred in giving no weight to or rejecting, the opinions expressed by Mr Coffey about the appellant's risk of reoffending.
4. The appellant should be re-sentenced in the light of the fact that he is serving his sentence in protection.

28 We begin with consideration of ground 3. The sentencing judge said:

I am satisfied that you made the offer to drive [the complainant] to Mornington for the purpose of detaining her in your car and raping her.

29 Counsel for the appellant submitted that bearing in mind the attitudes of the culture in which the appellant was raised, his limited experience of women and his isolation, the sentencing judge could not have been satisfied beyond reasonable doubt that the appellant planned to detain the complainant, and to rape her, from a time before she entered his vehicle.

30 The appellant's actions were capable of suggesting that early on he formed the intention of engaging in sexual intercourse with the complainant irrespective of her wishes. Consider what happened when they were in the vehicle. The appellant made no attempt to engage the victim in consensual sexual activity. He parked the car, took the complainant's mobile telephone, telling her that she could have it later when she stopped making a noise, immediately moved on top of her, put one hand over her mouth and the other around her throat and told her, 'If you shut up, I'll move my hands' and proceeded to rape her.

31 On the other hand, there needed to be considered the appellant's behaviour as described at [23]-[25] above, and the opinion of Mr Coffey set out at [21].

32 The judge did not accept Mr Coffey's opinion that the offending was the product of 'an unclear concept of what constitutes consent in sexual relations'. He concluded that the appellant 'well knew that the victim was not consenting' to the act of sexual penetration. Two points should be made. First, Mr Coffey did not express the opinion that the appellant did not know that the complainant was not consenting. Indeed, he rejected the appellant's assertion to that effect. Second, the real gist of Mr Coffey's conclusion was that the various circumstances which he identified had heightened the risk that the appellant would engage in non-consensual sex and that he would be reckless whether the victim was consenting - this explaining, though not excusing, the appellant's conduct (a matter relevant to moral culpability).

33 The latter point linked in with the aspects of the appellant's observed behaviour on the night in question. It did not depend upon the opinion which the judge rejected. Nor did it depend upon the judge's satisfaction that, at time of penetration, the appellant well knew that the complainant was not consenting.

34 In the event, it appears to us that the judge erred by concluding to the criminal standard that the appellant intended to rape the complainant before she entered his vehicle. Having regard to the entire picture, other inferences could not be safely excluded. The fact that, some days later, the appellant raped another victim in circumstances which were somewhat different to those with which this appeal is concerned, did not enable the his Honour to arrive at the impugned conclusion.

35 The conclusion, adverse to the appellant, bore upon the extent of his moral culpability and criminality. In the instinctive synthesis, it is inevitable that it affected the sentence imposed.

37 The sentencing judge said that the appellant's 'prospects for rehabilitation are poor' and that 'the community does, in fact, need protection from you'. One matter relevant to both those conclusions was the extent of the risk that the appellant might relevantly re-offend.

38 Mr Coffey dealt with the risk of recidivism this way:

I would consider [the appellant's] risk of re-offending as moderate, in the absence of targeted interventions which reduce the risk. I arrive at this assessment in consideration of his offending history; the identified problems with mental health; is inexperience in negotiating relations with women; his less than clear concept of consent in sexual relations; and his isolated and alienated social circumstances. I also take into account his apparent inability to take full responsibility for the current offence. I am assuming that he does not suffer from a paraphilia, specifically that he is not primarily aroused by sexual violence. My exploration of whether this is an attribute of [the appellant's] psychosexual functioning was not comprehensive. If, contrary to my conclusion, he does suffer from paraphilia, the likelihood of him re-offending without appropriate interventions would be moderate to high.

39 The judge said that, although Mr Coffey was aware of the two episodes of sexual offending, it appeared that he did not consider the appellant's prospects for rehabilitation in the context of the earlier offending. The appellant had denied any instance of non-consensual sex prior to the event 'currently prosecuted'. His Honour was evidently much influenced by the circumstances of the later offending. He repeatedly referred to it in the course of argument, and again in his sentencing remarks. But regardless of what interpretation might be put upon the words 'currently prosecuted' - words which were obviously not those of the appellant - it is apparent from Mr Coffey's report that he was fully alive to the gist of the offences committed by the appellant on the two occasions. In our opinion, his Honour erred in concluding that Mr Coffey had apparently not considered the appellant's prospects for rehabilitation by having regard to the rape for which sentence was imposed in 2009. The conclusion was flawed regardless where the onus of proof lay. The conclusion was pertinent to the judge's very gloomy assessment of the appellant's prospects for rehabilitation and the particular weight which the judge attached to the need for community protection. His Honour said that 'the community does, in fact, need protection from you.'

40 In our opinion, the judge's erroneous view of the relevant part of Mr Coffey's report vitiated his Honour's assessment of the appellant's prospects of rehabilitation, and of the level of danger which he posed to the community. It is no answer to say that, on a balanced consideration of the appellant's offending on the two occasions and the appellant's entire circumstances, his Honour might possibly have arrived at the same assessment - which is not to say that we consider such an assessment should have been made. Indeed, in our opinion such an assessment would be too harsh.

41 In the event, we consider that grounds 4 and 5 have been made out.

42 His Honour's findings with respect to the appellant's prospects of rehabilitation, and the actual need for the community to be protected from the appellant, were adverse to the appellant. That is so regardless that the burden lay upon the appellant to establish that his prospects of rehabilitation were favourable. As with the finding which is the subject of Ground 3, those findings must have weighed in the instinctive synthesis, although the Crown did not seek the imposition of a disproportionate sentence.

43 The first ground and second grounds may be considered together.

44 The instant offence was a serious example of the crime of rape and the sentence might have been warranted if the circumstances of the offending were considered in isolation, without regard to the character and antecedents of the appellant. But that approach is impermissible.

45 It was relevant to bring into the sentencing synthesis the circumstances of the offending for which the appellant was sentenced on 5 November 2009. They were as follows.

46 Early in the morning of Christmas Day 2008, the appellant asked the complainant for directions. He forced the complainant into his car and during the ensuing struggle he slapped her and held her as she tried to get out of the car. While still holding the complainant by the wrist, the appellant forced two fingers into her vagina. He then pushed his penis into her vagina. The complainant struck the appellant on the face and he struck her back. Eventually, the complainant managed to escape from the car. She reported the registration number of the car to the police. A few days later the appellant was arrested. He admitted penetration in a record of interview but said that it was consensual.

47 This was a very serious episode. It involved features not present in the commission of the offence with which this appeal is concerned. The appellant forced the complainant into his motor vehicle. He acted more violently towards her than he did towards the complainant in the case now under consideration. There was both penile and digital penetration. Rather than being delivered to the home of a friend, that complainant had to make an escape.

48 Knowing of the circumstances of the offending on the other occasion as well as the circumstances of the offending in the instant case, recognising that the appellant fell to be sentenced as a serious sexual offender, and specifically having regard to totality, the prosecutor advanced a head sentence range of between six and eight years' imprisonment, and a new minimum term of two to three years more than that fixed by the first judge. That would have yielded a new non-parole period of between nine and 10 years' imprisonment. The judge made it clear that he considered the figures to be inappropriately low. That was before he heard submissions from the appellant's counsel.

49 Counsel for the appellant also made submissions as to totality. He also addressed the question of a new minimum term. As we understand it, he supported the prosecutor's submission respecting a new minimum term.

50 Although the sentencing judge did not expressly refer to the totality principle in his sentencing remarks, we would not infer that such a fundamental consideration was absent from his mind. The question is whether the sentence is greater than the principle of totality required.

51 In this Court, apprised of the sentencing remarks, senior counsel for the Crown stood by the sentencing range advanced by the prosecutor below. That does not answer the question whether the sentence which the judge imposed was manifestly excessive, or infringed totality, just as the sentencing judge was not bound by the range advanced by the prosecutor. But the re-stated position of the Crown, made with a full appreciation of all sentencing considerations, should not simply be ignored.

52 The judge made findings adverse to the appellant which we consider, for reasons already discussed, were erroneous. As we have indicated, he underweighed mitigating circumstances. Beyond what we have thus far said, although he accepted that the appellant 'suffer[ed] from a post-traumatic stress disorder, as a result of [his] experiences in Afghanistan and consequent depression and anxiety', his Honour does not appear to have related this finding to the burden of imprisonment upon the appellant.

53 All things considered, in our view the appellant has established both grounds 1 and 2. On that account, even if specific error had not been established, the appellant would fall to be re-sentenced.

54 We would allow the appeal and re-sentence the appellant to be imprisoned for a term of 8 years on the charge of rape. We would cumulate 3 years upon the sentence imposed on 5 November 2009, creating a total effective sentence of 12 years and 6 months' imprisonment. We would fix a new minimum term such that the appellant would be required to serve not less than eight years and six months imprisonment in respect both of the offences for which sentence was passed in November 2009 and the offence the subject of this appeal.