Shrestha v The Queen [2017] VSCA 364

CRIMINAL LAW - Sentencing - Current sentencing practice - Rape - Digital penetration - Whether sentencing practice for upper mid-level category is adequate - Need for sentencing practice to be adjusted upward - DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063 considered - Crimes Act 1958 s 38; Sentencing Act 1991 s 5(2)(b).

1 Following a trial before a County Court jury, the appellant was convicted of one charge of rape (by digital penetration). He was sentenced to six years' imprisonment, with a non-parole period of four years.

2 He was granted leave to appeal on two grounds, namely, that the judge took into account an irrelevant consideration and that the sentence imposed was manifestly excessive.[1] For reasons which follow, we would dismiss both grounds of appeal.

3 The Director submitted that this appeal provided 'a proper occasion' for the Court to state that current sentencing for digital rape was inadequate and that sentences should increase hereafter. For reasons which follow, we have concluded that there must be an upward adjustment in sentences for digital rape offences in this category of seriousness, that is, offences whose objective gravity is broadly comparable to that of the present case.

4 At about 2:00 am on Sunday 24 August 2014, the appellant drove his car to the carpark of a nightclub. He intended to spy on his girlfriend, who he believed may have been involved with other men.[2]

5 The victim, WS, and her sister, had also attended the nightclub that night. At about 2:06 am, they left the nightclub intending to walk to a friend's house nearby. The appellant followed them in his car with the headlights off.

6 The victim separated from her friends and went to purchase some chips from a nearby kebab shop. The appellant parked his car in a remote corner of a car park, to which he knew the victim would walk after leaving the shop.[3]

7 The appellant called out to the victim as she walked past, but she did not respond. The appellant then grabbed her from behind and pushed her to the ground. The victim landed on her back. The appellant mounted her and held her down, calling her name and saying that he had her on Facebook.

8 The victim managed to push the appellant off and stand up. The appellant grabbed her, forced her to the ground a second time and again straddled her with his legs. He forced his right hand under the victim's skirt and inside her underwear. He inserted two fingers into the victim's vagina and moved them in and out on a few occasions. The victim estimated that it was five times.[4]

9 The victim then managed to force the appellant off her. He stood up, ran to his vehicle and drove away.[5]

The sentencing judge erred, in the exercise of his sentencing discretion, by taking into account an irrelevant consideration, namely whether current sentencing practice for the offence of rape sufficiently reflects the maximum penalty.

Particulars:

1. From the moment the [appellant] was convicted the sentencing judge indicated that, in his opinion, current sentencing practice for the offence of rape was insufficient when regard is had to the maximum penalty.
2. His Honour called for specific submissions to address his concerns regarding current sentencing practice and adjourned the plea hearing.

1. The issue of current sentencing practice assumed such a significance, during the plea, as to have infected His Honours sentencing discretion in its entirety, despite statements by the sentencing judge that it had not done so.

1. The prosecutor made submissions, which contributed to the sentencing judge falling further into error, supporting the concerns raised by His Honour and which seemed to suggest the prosecution was of the view current sentencing practice was inadequate.
2. The question as to the adequacy of current sentencing practice was not a matter properly to be considered by the sentencing judge. This was a matter for the Court of Appeal when raised by an appropriate case.

11 This ground relied on statements which the judge had made, after the jury had returned the guilty verdict but before the plea in mitigation had commenced. The judge said to the prosecutor that he had been examining Court of Appeal decisions in relation to sentences for rape.[6] His Honour said:

I am concerned, and I am putting this on transcript, that I may not be able to impose an appropriate sentence on this man, given what the Court of Appeal have said in those cases. That's the way I see it at the moment. So I am going to require from both parties some assistance in relation to the range ...

I am concerned, about that having reviewed the authorities, about the current state of the law in relation to digital penetration rape. ... And I'd be really interested to hear from the Director about what is an appropriate range for this man's offending.

I have a concern about my perception of the way in which the Court of Appeal is setting current sentencing practices and obviously I am bound by the Court of Appeal. So there's two ways we can go about this, bluntly. I can give him what I think he deserves, or I can give what I think the Court of Appeal thinks he deserves, and either party can end up over there. But let's see where it goes. I need help, that's all I'm saying.

It is not for me to say that the range of sentences imposed for like offending is too low. That is for the Court of Appeal to make any such statements and indeed, on other occasions they have said so. It is also clear that digital rape is not to be regarded as less serious than other forms of rape. It may well be in a particular case that the circumstances of the digital rape are objectively less grave than other examples of the offending.

The Court of Appeal decisions in Simon [2010] VSCA 66 and Coronado [2016] VSCA 86 referred to by your counsel, are clearly examples of offences the Court of Appeal assessed as being of low level offending. It is clear that your offending is substantially more serious than the offending in those cases.

Were it not for the limitations arising from the requirement to sentence you in accordance with current sentencing practices, I would have to consider a considerably higher sentence than the one I am about to impose.

You stalked, attacked and violated a young woman. You lied repeatedly about what occurred. You repeatedly falsely impugned the conduct of your victim. You have demonstrated absolutely no remorse and you represent a serious risk of reoffending in the future. You have shattered the life of your victim. Given that Parliament has set a maximum penalty of 25 years for the offence of rape, it is hard to justify any sentence less than double figures.

However, fortunately for you, current sentencing practices constrain the sentence this court can impose. In my view, there is a gross disconnect between your offending and the maximum penalty and current sentencing practices.[7]

13 The submission for the appellant was that the judge's expressed dissatisfaction with the current state of sentencing for rape - at least in this category of seriousness - had diverted or distracted him from the proper exercise of the sentencing discretion. According to the written case:

It is the Court of Appeal's role, not a sentencing judge's role, to determine if current sentencing practice is adequate. The issue assumed such a significance, during the plea, that it infected the exercise of his Honour's sentencing discretion in its entirety.

14 This submission must be rejected. Obviously enough, the judge expressed strong views about what he considered to be the inadequacy of current sentencing for rape offences of this kind. As his Honour noted, this Court in the past has expressed similar views.[8] But, by their very nature, they were not remarks which had any bearing on the sentencing task which the judge had to perform. As his Honour correctly recognised, and as counsel for the appellant conceded, he was bound by statute to have regard to current sentencing practices in arriving at an appropriate sentence.[9]

15 Moreover, it is apparent from the plea transcript and from his Honour's sentencing reasons that he correctly addressed himself to all of the relevant features of the offending, as well as to all of the matters in mitigation on which the appellant was able to rely. There is simply nothing to suggest that his Honour's references to the current state of sentencing for rape impeded the discharge of the sentencing discretion in any way.

17 The submission for the appellant acknowledged the aggravating features of the offending, namely, that:

• the attack was premeditated;
• the victim was a stranger;
• when the appellant attacked the victim, she had her hands full and was alone (and was therefore particularly vulnerable); and
• this was a violent rape.

18 At the same time, it was said, the judge was required to take into account the following matters, which should have moderated the assessment of the objective gravity of the offending:

• there was a single act of penetration;
• the offending took only 'a very short period of time';
• there was no 'gratuitous additional violence';
• there was no risk of pregnancy or sexually transmitted disease; and
• the offender acted alone and did not use a weapon.

19 As the Director's submission pointed out, defence counsel on the plea agreed with the judge's statement that 'on any view of it, stalking a woman at night and attacking her when she's on her own in the dark is incredibly serious'. Nor did defence counsel contest the proposition that the conduct was predatory in nature.

20 On the plea, the defence relied on a report from Mr Jeffrey Cummins, forensic psychologist. Mr Cummins said that the appellant's offending 'would appear to reflect him having a sense of sexual entitlement.' He assessed the appellant's risk of re-offending as 'moderate-high'. Self-evidently, that assessment required that significant weight be given to the sentencing purpose of protection of the community.

21 We should also make reference to the victim impact statement, which the judge summarised as follows:

She described how her life has changed completely subsequently to your attack upon her. She no longer feels safe and is in constant fear that you may find her. She has been subsequently diagnosed with post-traumatic stress disorder and has experienced high anxiety and depression as a result. She has required medication. She describes how she has become hyper vigilant, regularly cries and breaks down in social environments. She says she has not gotten over the incident and does not know whether she ever will. She has found the criminal justice process confronting and points out what is obvious, you have displayed not the slightest amount of remorse during the course of the criminal proceedings. I take the contents of the victim impact statement into account in sentencing you.[10]

22 It was also significant, in our view, that the appellant was convicted after a trial. He had not shown any remorse, nor was he entitled to the discount which attaches to a plea of guilty.

23 The judge described the offending in these terms:

Your attack was premeditated. Your victim was a stranger to you. Your attack took place late at night in a secluded place. You attacked her when her hands were full and she was alone and your rape offending involved associated personal violence. You persisted in digitally penetrating her in the face of her violent and determined resistance. You only ceased your offending against her because of her ability to fight you off. She suffered some minor injury to her vagina as a result. You took steps to conceal your offending by changing your Facebook details.[11]

24 His Honour concluded that the offending should be seen 'as an upper mid-level example of the offence of rape'.[12] We respectfully agree with that characterisation. In the circumstances, it was well open to his Honour to impose the sentence which he did. Indeed, we regard this as a lenient sentence, given the aggravating features of the offending, and given also that the appellant was not entitled to rely upon a plea of guilty, or any remorse, by way of mitigation.

The inadequacy of current sentencing for digital rape

25 In his written case in response to ground 1, the Director submitted that:

current sentencing practices for the crime of rape are inadequate and it was open to the judge to so conclude.

The submission noted, as had the sentencing judge, the previous expressions of concern by this Court about the inadequacy of current sentencing for rape.

26 In a supplementary submission, the Director contended that this appeal provided

a proper occasion to consider the adequacy of current sentencing practices ('CSP') for the crime of rape for the following reasons:

• in this case the issue of CSP for the crime of rape was squarely raised by the judge, both during the plea hearing with counsel and in the reasons for sentence;
• the judge expressed the view that CSP for the crime of rape were inadequate; and
• in fixing sentence, the judge declared that he was required to impose what he considered to be an 'inadequate' sentence due to the constraints of CSP.

27 The submission noted an additional reason why this Court should examine the adequacy of sentencing for rape, namely:

to ensure that there is not a discernible gap in CSP for the crimes of rape and incest (in regard to the latter offence, this Court has recently in DPP v Dalgliesh (a pseudonym)[13] expressed the view that CSP for the offence should be uplifted by sentencing courts).

In DPP v Dalgliesh (a pseudonym), the High Court described as 'clearly correct' this Court's view that current sentencing for incest reflected 'a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence, and the moral culpability of the offender'.[14]

28 The submission filed on behalf of the Director reviewed a substantial number of appellate decisions involving sentencing for digital rape. This survey was said to demonstrate

a pattern of sentences clustered at the lower end of the scale - this pattern is well-entrenched and it is the [Director's] thesis that appellate correction is now required.

...

There is little distinction to be made in the forms of penetration - however, it is accepted that as a general proposition, unprotected penile penetration constitutes an aggravating factor which will often lead to slightly higher sentences. But everything turns on the facts of each case - it is easy to imagine other forms of penetrative conduct deserving of lengthy sentences (such as The Queen v Gill). However, a comparison of decisions reveals a pattern of consistently (and substantially) lower sentences when digital penetration is involved.[15]

29 The Chief Crown Prosecutor appeared at the hearing of the appeal on behalf of the Director. He submitted that, if this Court came to the view that current sentencing for digital rape was inadequate, the Court should express that view and that this would undoubtedly be of assistance to sentencing courts.

30 The High Court decision in Dalgliesh has made it clear that sentencing judges and intermediate appellate courts should not consider themselves constrained by current sentencing practice to impose a sentence they consider to be inadequate in the particular circumstances. We have considered the decisions included in the Director's survey. It is clear that the general run of sentences for digital rape is well below what is necessary to reflect the objective gravity of that offence, and the moral culpability of the offender.

31 In each of its previous decisions calling for an uplift in sentencing for particular offences, the Court has confined its remarks to offences of the same type, or falling into the same category of seriousness, as the offending the subject of the appeal(s) before the Court.[16] Consistently with that approach, we consider that there must be an upward adjustment in sentences for offences of digital rape committed in circumstances that are broadly similar in objective gravity to the offence of which the appellant was convicted.

32 In all the circumstances, the appeal must be dismissed.

[1] Shrestha v The Queen (Unreported, Victorian Court of Appeal, Maxwell P, 3 March 2017).

[2] DPP v Shrestha (Unreported, County Court of Victoria, Judge Chettle, 14 September 2016) [2] ('Reasons').

[6] His Honour referred specifically to R v Simon [2010] VSCA 66 ('Simon') and Coronado v The Queen [2016] VSCA 86 ('Coronado').

[8] See Leeder v The Queen [2010] VSCA 98 [37]; Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28, 38 [42], 43 [60].

[9] Sentencing Act 1991 s 5(2)(b).

[13] [2016] VSCA 148.

[14] [2017] HCA 41; (2017) 91 ALJR 1063, 1073 [53] ('Dalgliesh').

[16] Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658, 669 [53]-[54] ('glassing'); Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, 673-4 [58]-[62] (confrontational aggravated burglary); Harrison & Rigogiannis v The Queen [2015] VSCA 349; (2015) 49 VR 619, 650 [137]-[140] (negligently causing serious injury by driving); Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289, 333 [152] (cultivation of commercial quantity of cannabis); DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [128] (incest); Gregory (a pseudonym) v The Queen [2017] VSCA 151 [100] (trafficking commercial quantity of drugs).