CRIMINAL LAW - Sentencing - Manifest excessiveness - Whether sentencing judge failed to give appropriate weight to youth and rehabilitation - Whether sentence consistent with current sentencing practices - Sentence of six years' imprisonment with a minimum term of three years and six months not manifestly excessive.

1 I have had the advantage of reading in draft the reasons for judgment of Sifris AJA and I agree with his Honour, for the reasons he gives, that the applications for leave to appeal against conviction and sentence should be refused.

2 The only point which ever caused me any concern about either application was the misdirection to the jury that, if they found the applicant believed the complainant was consenting to sexual intercourse, it would still be open to convict him of rape if satisfied that he believed it to be possible the complainant might not be consenting.[1]

3 As Sifris AJA demonstrates, however, because the Crown case was that the complainant was asleep and, therefore, could not consent, and the defence case and the applicant' evidence was unqualifiedly that she was wide awake and spoke her consent, there was never any room for an issue about whether the applicant believed that the complainant might not be consenting. The sole question for the jury was whether the complainant was asleep, as the Crown alleged, or accepted it was reasonably possible that she was awake.

4 In the result, it would be wholly unrealistic to suppose that the jury may have convicted the applicant on a basis that he believed the complainant was consenting but thought it possible that she might not be.

5 I wish also particularly to associate myself with his Honour's conclusion that the test for the application for the proviso to s 568(1) of the Crimes Act 1958, which was laid down by the High Court in Weiss v The Queen,[2] applies mutatis mutandis with equal force to the determination of whether there has been a substantial miscarriage of justice for the purposes of ss 276(1)(b) and (c) of the Criminal Procedure Act 2009. I agree with his Honour that there is nothing in the text of s 276 or in the extrinsic materials to suggest a Parliamentary intention to return to tests of yore.

6 I have had the advantage of reading the draft reasons of Sifris AJA and agree with him, for the reasons that he gives, that the applications for leave to appeal against conviction and sentence should be refused. In particular I agree with his Honour's conclusion that the only issue before the jury was whether the complainant was asleep or awake at the time she was penetrated by the applicant, that no issue as to his belief in her consent arose in the trial and that in these circumstances it is appropriate to apply s 276(1)(c ) of the Criminal Procedure Act 2009.

7 I also wish to comment that the decision in Worsnop v The Queen[3] and the cases following it, demonstrate the need for legislative change to clarify and simplify the required mens rea for rape. The current provisions have failed to implement the recommendations made by the Victorian Law Reform Commission, which were intended to ensure that a person who sexually penetrates another person, whilst being aware that the latter is not or might not be consenting to penetration, is guilty of rape.[4]

8 On 3 May 2009, after a trial in the County Court at Melbourne, the applicant was found guilty on one count of rape contrary to s 38(1) of the Crimes Act 1958 (Vic) ('the Act'). The applicant was sentenced to 6 years' imprisonment. The sentencing judge directed that the applicant serve a minimum term of 3 years and 6 months before being eligible for parole.

9 The applicant seeks leave to appeal against his conviction and sentence. For

the reasons that follow, leave should be refused in relation to both conviction and sentence.

B. Circumstances of the offending and the offender

10 The applicant was born on 17 December 1985 and was 22 years old at the time of the offending. He and the complainant knew each other prior to the incident and were in the same group of friends.

11 On Friday 14 November 2008, the complainant and her boyfriend were drinking alcohol in the complainant's room in a residential college at La Trobe University. In the early hours of the morning of Saturday 15 November 2008, they met up with the applicant and another man and drove to the Velour Nightclub in Flinders Lane, Melbourne. The group arrived at the nightclub at about 3.00am. They joined a group of about six more friends. They drank alcohol, danced and enjoyed themselves.

12 Between around 5.00am and 5.30am, the group left the nightclub and went to a flat in Thornbury rented by a member of the group, Stephen Moyo. The flat had one bedroom with a queen size bed, a lounge room and a kitchen. Ten people, including the applicant and the complainant, were present. The group continued drinking alcohol and the applicant was playing music on his laptop computer.

13 The complainant, who was tired and affected by alcohol, eventually went into the bedroom to sleep on the bed. A female friend was already asleep there.

14 At some time between 7.00am and 8.00am a number of other people, including the complainant's boyfriend, left the flat. Others had fallen asleep. The only people left awake in the flat were the applicant and Mr Moyo. Mr Moyo gave evidence that although he was trying not to sleep because people were in his flat, he kept falling asleep and waking up. He said he heard the applicant say words to the effect that he was going to have intercourse.

15 The prosecution's case at trial was that the applicant then went into the bedroom where the complainant and the other female were asleep. He had sexual intercourse with the complainant while she was asleep and incapable of consenting. The complainant gave evidence that she awoke to find the applicant on top and inside of her. She was not sure if she pushed him off or whether he got off her himself. She got up and ran out of the room crying and hysterical.

16 Mr Moyo gave evidence that he was woken by someone screaming and saw the complainant run out of the bedroom and towards the front door of the flat where some other people were standing. The complainant gave evidence that she saw two members of the group, Kweya Edebe and Opisa Edebe, outside the flat. She said she told them 'I woke up with [the applicant] inside me.' She asked where her boyfriend was, went down to the car in which he was sleeping and woke him up.

17 Mr Kweya Edebe gave evidence that after the complainant spoke to him, he went into the flat and saw the applicant sitting on the toilet. The applicant was holding his head in his hands and when asked what happened, he said 'I think I messed up.' Mr Edebe gave evidence that the applicant said he and the complainant's boyfriend had an agreement to swap girlfriends. Mr Edebe left to ask the complainant's boyfriend about the agreement. When he returned, he found the applicant telling other people that he had not done anything. Mr Ebede asked the applicant if he had penetrated the complainant and the applicant told him that he had had sex with her. He told other members of the group variously that he was holding the complainant but could not remember anything else and that he had a deal with the complainant's boyfriend.

18 On Sunday 16 November 2008, the applicant was arrested and interviewed by the police concerning the allegation of rape made by the complainant. He denied having sexual intercourse with the complainant. He was interviewed again on 22 November 2008 and again denied having sexual intercourse with the complainant.

19 At trial, the applicant admitted that he had sexual intercourse with the complainant. However, he contended that she was awake and consented. He gave evidence that after having sex, he got up and went to the lounge, then the bathroom and fell asleep smoking while sitting on the toilet seat. He awoke to find people coming into the bathroom and asking what had happened. He gave evidence that he initially told them nothing had happened because he was embarrassed that he had had sex with his friend's girlfriend. He said he told the police he did not have sex with the complainant because he was afraid, had never been arrested before and thought no one would believe him.

20 The first ground of appeal raised by the applicant concerns the trial judge's direction to the jury about mistaken belief of consent. It states:

1. The trial miscarried by reason of the trial Judge's having directed the jury that:

(a) even if they found that the applicant believed that the complainant had consented to her sexual penetration by him the jury still needed to decide whether the prosecution had proved that the applicant knew she was not consenting or might not be consenting; and

(b) the prosecution would have proved mens rea if the jury found that the applicant believed the complainant was consenting but still were satisfied beyond reasonable doubt that the applicant was aware of the possibility that she was not consenting or might not be consenting.

21 The parties agree that in light of the decision of this Court in Worsnop v The Queen,[5] the direction given by the trial judge must be regarded as erroneous. The dispute relates to the effect of the erroneous direction.

22 The applicant submits that failure to give the correct direction resulted in a substantial miscarriage of justice. After consideration and debate during the trial, a determination was made by the trial judge and counsel that the direction was necessary in light of the evidence. The applicant contends that the corollary of this determination is that failure to give the correct direction deprived the applicant of a fair chance of acquittal.

23 The Crown rejects this contention. It submits that the issue at trial was actual consent, not belief in consent. It was the Crown's case that the complainant was asleep, therefore incapable of giving consent and woke to find the applicant on top and inside her. The applicant's evidence was that the complainant was awake, communicating and a willing participant in the sexual activity.

24 According to the Crown, the jury was only directed in relation to mistaken belief of consent because of evidence that the applicant was intoxicated on the night of the incident and the evidence of Kweya Edebe. Mr Edebe gave evidence that the applicant told him that the complainant initially wanted to have sex, but then got upset and changed her mind halfway through. The Crown contends that this version of events was never part of the applicant's case at trial. It submits that in these circumstances, the misdirection about belief of consent could not have been operative in the verdict of guilty and no substantial miscarriage of justice has occurred.

25 Section 38 of the Act provides that a person commits rape if he or she intentionally sexually penetrates another person without that person's consent while being aware that a person is not consenting or might not be consenting, or while not giving any thought to whether or not a person is not consenting or might not be consenting.

26 Section 36 of the Act provides that a person who is asleep is to be taken to not consent to an act.

27 Section 37 of the Act provides that, '[i]f relevant to the facts in issue in a proceeding', a judge must direct a jury as to the matters set out in ss 37AAA and 37AA.

28 Section 37AA provides:

For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider -

(a) any evidence of that belief; and

(b) whether that belief was reasonable in all the relevant circumstances having regard to -

(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and

(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

(iii) any other relevant matters.

29 In Worsnop, the applicant was convicted of rape and a number of other offences. He sought leave to appeal and in respect of the conviction for rape, argued that there had been a miscarriage of justice by reason of the trial judge's direction that a finding by the jury that the applicant positively believed that the complainant was consenting would not necessarily provide a defence.

30 The Court held that the direction was erroneous. It accepted the applicant's argument that if the jury concluded the applicant believed the complainant was consenting, the Crown had failed to establish the fourth element of the offence of rape. It did not matter if the belief was unreasonable. However, the Court nonetheless dismissed the appeal on the basis that no substantial miscarriage of justice had actually occurred in the case.

31 The Court held that the misdirection could not have been of any significance in the verdict which was returned.[6] In the case before the Court, the applicant had admitted to sexually penetrating the complainant, but said it was consensual. He gave evidence that the incident occurred against a background where he and the complainant had engaged in sexually charged conduct towards each other, in particular, making suggestive comments. The complainant denied that there had been any such background relationship and her account of the incidents could not possibly have suggested that she consented .

32 In these circumstances, where there were two starkly different accounts of the events, the Court held that the jury's conclusion about the belief held by the applicant was entirely dependent on the reliability of the evidence he gave. The jury verdict showed that it must have found beyond reasonable doubt that the complainant's version of events should be accepted. Further, neither the applicant nor his counsel submitted at trial that the case was one of mistaken belief in consent. Rather, the applicant gave evidence about consent in fact. In these circumstances, the Court held that the misdirection could not have been operative on the jury verdict.

33 There have been several cases dealing with the erroneous direction since Worsnop and the ultimate outcome of each case has varied depending on the application of the proviso in s568(1) of the Act, which allows a court to dismiss an appeal if it considers that, despite any erroneous ruling, there has been no substantial miscarriage of justice. The first case was Gordon v The Queen.[7] The trial judge directed the jury on the accused's belief of consent in accordance with the model direction in the Victorian Charge Book. The direction was similar to the impugned direction in Worsnop. Regrettably, the Charge Book was in error and the Court accepted the applicant's argument that the direction was erroneous. The proviso in s 568(1) of the Act was not argued. Consequently, the appeal was successful on this ground.

34 In Wignall v The Queen[8] the applicant was convicted of one count of rape and a number of other offences. During the charge to the jury, the judge gave a direction on consent which accorded with the model direction in the Victorian Charge Book, but which was erroneous in light of Worsnop. The Crown conceded that the charge was erroneous and that the direction led to a substantial miscarriage at trial. The Crown submitted that there had been a 'fundamental defect in the conduct of the trial on the only real issue to be determined by the jury and in circumstances where the applicant had a viable defence.'[9] Consequently, the conviction was quashed by consent.

35 Similarly, in Walker v The Queen; Kormez v The Queen[10] the applicants had been found guilty of multiple counts of rape and other sexual offences. The Crown conceded that the convictions should be set aside and a retrial directed on the basis of the erroneous direction to the jury concerning belief in consent.

36 In Roberts v The Queen,[11] belief in consent was a central issue in the case. The applicant admitted having sexual intercourse with the complainant, but told police in his record of interview that he believed the complainant was consenting. He said he did not think the complainant was asleep when the intercourse occurred. He maintained this assertion during the trial and it was a key basis of his defence.

37 The Court accepted that the direction given by the trial judge was erroneous. Further, it refused to apply the proviso despite being urged to do so by counsel for the Crown. The Crown submitted that a review of the evidence revealed that the applicant's version of events was implausible. However, the Court held most of the matters referred to by the Crown were contentious and needed to be considered by the jury. Further, consent and the applicant's perception of consent were at the heart of the case. The jury had asked a number of questions in relation to those issues. In these circumstances, the Court held that it could not be said that there was no substantial miscarriage of justice, when the jury were required to consider these matters following an erroneous direction.

38 Finally, in Neal v The Queen[12] the Court held that the direction given by the trial judge about belief in consent was erroneous. Counsel for the Crown had conceded that the impugned direction was erroneous on the basis of Worsnop, but submitted that the proviso should be applied. Further, in counsel's submission, convictions on the counts of rape were inevitable because of the overwhelming strength of the Crown case. However, it was not disputed that at and around the relevant time, the applicant had frequently engaged in penetrative sexual activity with each of the complainants.

39 While the Court accepted that the Crown case was strong in some respects, it considered that depending on the view taken of each of the complainants' evidence, there was also room for reasonable doubt. The Court considered that much was likely to turn on the jury's assessment of the complainants' credibility and reliability. The Court concluded:

Faced with the natural limitations which exist in the case of an appellate court proceeding wholly or substantially on the record,[13] we are not persuaded that either rape was proved beyond reasonable doubt. We would not be prepared to decide one way or the other without first hearing and seeing [the complainants] give their evidence.[14]

40 In Getachew v The Queen[15] the first ground of the applicant's appeal was that:

The learned trial judge erred in his directions to the jury on the mental element required for proof of the offence of rape and in particular the learned trial judge erred by directing that such element would be established, if the accused was aware that the complainant might be asleep.[16]

41 It is immediately apparent that the direction differs from the erroneous direction given in Worsnop. However, the case is of relevance so far as belief as to consent is concerned and also in relation to the application of the proviso.

42 In Getachew the complainant gave evidence that as she was going to sleep, the applicant touched her leg. She told him to go away. He touched her again and the complainant said she told the applicant that if he did not stop touching her, she would sleep in the car. The applicant offered to sleep somewhere else but the complainant told him 'Don't worry about it. Just don't touch me and let me sleep.'[17] The complainant gave evidence that after she went to sleep, she woke up and the applicant was lying behind her, her clothes were dishevelled, her underwear was down and the applicant was thrusting into her. She said the applicant was holding her on the hips and thrusting his penis into her anus. When she awoke and realised what was happening, she immediately clenched her muscles and 'removed him'.[18] She pushed the applicant away, got up and went out to the car.

43 The trial judge told the jury that the Crown was required to prove beyond reasonable doubt that at the time at which he sexually penetrated the complainant, the accused was either aware that she was not consenting or that she might not be consenting. His Honour said that this element would be satisfied if the prosecution could prove beyond reasonable doubt that the applicant was aware that the complainant was either asleep, unconscious or so affected by alcohol as to be incapable of freely agreeing or was aware that she might be in one of those states.

44 The applicant argued that the directions conflated the complaint's lack of consent with mens rea. He further submitted that it was open to the jury to be persuaded beyond reasonable doubt that the applicant thought the complainant might be asleep and yet think it reasonably possible that the applicant positively believed that the complainant was awake.

45 The Court held[19] that the trial judge erred in his instructions on the element of mens rea in telling the jury that the requirement to prove mens rea was met if it concluded that the applicant was aware that the complainant might be asleep. It did not apply the proviso.

46 The Court held that despite the fact that during his record of interview the applicant failed to advance a version of facts that disclosed a belief of consent and stood mute at trial, the facts were capable of founding an inference that the applicant believed the complainant was consenting. There was evidence that the applicant placed his body immediately behind the complainant, raised her skirt, pulled down her underwear and began to penetrate her and the complainant did not protest. The jury may have found that this was because she was asleep. However, if properly instructed, it may also have concluded that the applicant thought the complainant might have fallen asleep, but accepted that it was a reasonable possibly that the applicant believed the complainant had finally consented.

47 The cases referred to above are of limited assistance. In Wignall and Walker, the Crown conceded that the proviso should not be applied and in Gordon it appears that the proviso was not argued. That is not the case here.

48 Roberts is distinguishable because belief in consent was a central issue. In the present matter, the applicant's case like that of Worsnop was based on actual consent as a fact and the direction on belief in consent was only given because of the evidence that the applicant was intoxicated and the evidence of Mr Edebe.

49 Finally, Getachew and Neal are also distinguishable. In both cases, there were facts capable of founding an inference that the applicant believed the complainant was consenting.

50 Contrary to the submissions put by counsel for the applicant, I find that the present case is very similar to Worsnop. The differences referred to by counsel, namely the fact that there was no discussion in Worsnop between counsel and the judge concerning the need for the direction and that there was no evidence of intoxication, are irrelevant to the conclusion. The result must be the same.

51 In my opinion, even if the jury had been properly directed there was no reasonable possibility that the verdict might have been different. The critical issue in the case was consent in fact. Indeed, this was the entire basis of the applicant's defence and the trial was conducted on this basis. The applicant's evidence was to the effect that the consent was express, clear and unequivocal. He said that immediately prior to the incident, the complainant was awake and they were talking and kissing. However, the guilty verdict indicates acceptance by the jury that the complainant had not consented because she was asleep.

52 Of course, this is not the end of the matter. If there was no consent as a fact, but upon the evidence there remains a reasonable possibility that the applicant believed there was consent, the Crown will not have established a critical element of the offence.

53 The applicant did not raise the issue as to belief in consent and gave no relevant evidence as to belief. Rather, the trial judge raised the issue of intoxication and any belief in consent arising therefrom as his Honour was obliged to by s 37AA of the Act.

54 An accused's belief that the complainant is consenting usually arises out of a pre-existing relationship or some act or conduct. There must be some evidence underpinning the belief beyond assertion and speculation. Depending on the circumstances, kissing, hugging and undressing might induce such a belief. In the present case, there was a pre-existing relationship between the parties but it was not of a nature that could instil in the applicant a belief that the complainant was consenting to sex. On the applicant's own evidence, there was no lead-up to the sexual intercourse earlier in the night. It was the applicant's case that the sex just happened and was spontaneous without any prior conduct or expectation.

55 During the hearing of the appeal, counsel for the Crown took the Court to numerous passages in the evidence and I have read all of the evidence. It supports a conclusion beyond reasonable doubt that at no stage prior to the applicant walking to the bathroom did he expect to have sex with the complainant. The first time that the applicant considered that he and the complainant would have sex was when he went to the toilet a matter of minutes before the incident took place and the expectation was based, he said, on the complainant being awake and giving actual consent. There was simply no evidence of any positive conduct by the complainant (other than the alleged consent itself, which was rejected by the jury) which might have led the applicant to believe that his sexual approach was welcome.

56 None of the evidence before the jury other than perhaps the consumption of alcohol and the evidence of Mr Edebe (which contradicts the accused's evidence) supports the notion of any belief as to consent. However, the applicant was not so intoxicated that he could possibly have believed, independent of the alleged actual consent, that the complainant consented. For example, he was sufficiently cognisant that, immediately before penetrating the complainant, he left the bedroom and asked Mr Moyo for a condom.

57 In the final analysis, the applicant did not assert any such belief and there is no evidence of any act or conduct to found such a belief other than intoxication which was suggested by the trial judge. Further, the suggested belief was contrary to the specific evidence given by the applicant.

58 The erroneous part of the direction is a corollary to the first part. Even if the applicant did have a belief as to consent, the jury were instructed that he could still be guilty, despite such belief, if he was aware of the possibility that the complainant was not consenting. The later instruction only arises and has any relevance if there was a reasonable possibility of belief. The evidence does not establish any basis for such belief for the reasons given and the jury would not have considered the rider. Put another way, if they rejected (as they must have) the reasonable possibility of belief arising out of intoxication the issue as to the quality of the belief, the subject of the rider, was irrelevant. To my mind, it is inconceivable and fanciful to suggest that a jury would consider the reality of the very belief they have, by their verdict, clearly rejected.

59 The only way that the erroneous direction could theoretically have been operative in the verdict is if the jury determined that there was a belief as to consent, based on the applicant's intoxication, but that he was aware of the possibility that she was not consenting (the erroneous direction) and, as a consequence, the Crown had established the fourth element. For the reasons given this proposition is fanciful in the extreme in light of the evidence, the conduct of the applicant after the event, the defence and the way in which the trial was conducted.

60 In the circumstances, the erroneous direction did not play any operative part in the jury's verdict. Had the correct direction been given, the verdict would have been the same.

61 During the hearing of the application, counsel for the applicant raised a new argument to the effect that the introduction of s 276 of the Criminal Procedure Act 2009 (Vic), which replaces s 568(1) of the Act, had the effect of changing the test for an appeal and '[did] away with Weiss'. Counsel was given leave to file a supplementary submission in relation to the new argument and that submission was filed on 12 September 2011. The essence of the submission is that different tests are to be applied in relation to s 276(1)(a) on the one hand and ss 276(1)(b) and (c) on the other.

276 Determination of appeal against conviction

(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that -

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.

63 In Weiss, the High Court held that the task of an appellate court in applying the proviso was to be undertaken in the same way that an appellate court decides whether the verdict of a jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. The court must make an independent assessment of the evidence and ascertain whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, it was proved beyond reasonable doubt that the accused was guilty of the offence on which the jury returned its guilty verdict.[20]

64 It was submitted by the applicant that the use of the words 'substantial miscarriage' in sub-ss 1(b) and (c), and the absence of those words in sub-s 1(a), indicates that a different test is imposed by sub-ss 1(b) and (c). The applicant submitted that unlike sub-s 1(a), where the test or task of an appellate court is set out in Weiss at paragraph 41, the test should depart from that stated in Weiss and be one of materiality, in the sense of an error or irregularity depriving the applicant or appellant of a fair or real chance at acquittal.

65 I reject the submission. The effect of the amendment was to reverse the onus and simplify the appeal grounds.[21] There is nothing in the language, context or structure of the section or in the explanatory memorandum to indicate that a different test is to be applied. A change in the onus and simplification of the appeal grounds does not indicate any substantive change to the test or the approach to be taken by the appellate court. For the reasons given, the applicant has not discharged the onus.

66 Consequently, in my opinion, ground 1 must fail. Although there has been an error or irregularity in relation to the trial, the applicant has not satisfied the Court that there has been a substantial miscarriage of justice.[22]

67 Grounds 2A and 2B in the conviction appeal concern the treatment of evidence that the applicant failed to explain 'what happened' when given the opportunity to do so. The grounds are framed in the following terms:

2A. The trial miscarried by the Prosecutor's address, and the Judge's direction to the jury, on the applicant's alleged conduct by silence or failure to take up the opportunity - when asked "what happened" - to assert that he and the complainant had had consensual sex. In particular, the Prosecutor and the Judge erred by inviting the jury to find that the evidence was capable of evidencing on the part of the applicant a consciousness of his own guilt.

2B. The trial miscarried by reason of the Prosecutor's cross-examination of the applicant in a manner prone to have reversed the onus of proof. In particular, the miscarriage resulted from the Prosecutor's impermissible interrogation of the applicant on his alleged failure to tell his friends - when asked "what happened" - that he and the complainant had engaged in consensual sex.

68 The applicant contends that it was improper to conduct the trial on the basis that his silence was capable of amounting to an implied admission or consciousness of guilt. He submits that silence by an accused in response to an open ended question, such as 'what happened?', cannot found an inference that the accused has impliedly admitted to an offence. In this respect, the applicant relies on cases concerning 'the doctrine of adoptive admission.'[23] He submits that these cases demonstrate that the threshold question is whether the terms of the statement or question uttered in the presence of a defendant disclose an accusation which, if true, inculpates the defendant in the offence before the court. If this threshold question is answered in the affirmative, the accused expressly or impliedly adopts the accusation by his or her silence.

69 The applicant contends that the prosecutor and the trial judge failed to consider this threshold issue. Instead, they incorrectly treated as sufficient the fact that the accused was given an opportunity to state his defence or profess his innocence and did not. The applicant contends that he admitted nothing by failing to respond to the question 'what happened?' and, at most, this could impact on an assessment of his credit.

70 Further, the applicant contends that the manner in which he was cross-examined, other witnesses were examined and the jury was addressed, erroneously suggested to the jury that he had an obligation to say something about the incident when asked about it. According to the applicant, this eroded or reversed the onus of proof.

71 The Crown rejects the applicant's characterisation of the evidence. It submits that the relevant conduct relied on by the prosecution was not silence on the part of the applicant, but rather his failure to proclaim his innocence in the circumstances of the case. Those circumstances included that:

(a) after the incident, the complainant was visibly distressed and had complained to various witnesses that she had been raped by the applicant and woke up to find him inside her;

(b) the applicant had been asked by others what happened;

(c) the witnesses, the applicant and the complainant were friends;

(d) there was evidence of the applicant saying at the flat 'if only I had the opportunity to tell my side of the story';

(e) the applicant lied to two of the witnesses, saying he touched the complainant or held her from the side but did not do anything else;

(g) the applicant's evidence at trial was that he had consensual sex with the complainant.

72 The Crown contends that as in R v Alexander,[24] it was open to the jury to accept that the failure of the applicant to proclaim his innocence in these circumstances amounted to conduct inconsistent with innocence.

73 Further, the Crown submits that even if the evidence was inadmissible as evidence of consciousness of guilt, the applicant has failed to demonstrate that it resulted in a substantial miscarriage of justice.

74 In my opinion, ground 2 fails. This follows from the application of Alexander.

75 In Alexander, the Court of Criminal Appeal said that the failure of an applicant to proclaim innocence can amount to conduct inconsistent with innocence and that the circumstance where such proclamation would be expected (in cases where parties are on even terms) involved in assessment of human behaviour best made by a jury. The court said:

In the first place, it should be observed that special rules have been developed with respect to statements made to police or other persons in authority. No case has been cited, nor have we seen one, where those rules have been applied to statements made to persons "on even terms". Indeed the references made above to Parkes and Petty affirm that distinguishing feature. The issue here concerns an assessment of human behaviour. That assessment is best made by a jury. In our opinion, it was open to the jury to accept that in the context of the whole of the relevant conversation, the failure of the applicant to proclaim his innocence amounted to conduct inconsistent with innocence. Taken out of context, different considerations may well apply. It is true that this evidence has no great probative value, and we think it would have been wise for the judge to have so advised the jury, and to have given some assistance to the jury as to the use which might be made of the evidence. However, his failure to do so cannot in our view lead to a finding of error.[25]

76 Accordingly and subject to proper directions to the jury, the trial judge was correct in the view that the jury were entitled to consider the circumstances and conduct of the applicant in order to determine whether the circumstances called for a proclamation of innocence. The matter was a proper matter for the jury and the trial did not miscarry in this regard. The evidence was clearly capable of constituting conduct inconsistent with innocence if the jury determined that such a proclamation was required.

77 The directions given to the jury about the manner in which such failure to proclaim innocence could be used, in the event that the jury found that in the circumstance such proclamation was called for, were adequate, appropriate, clear and repeated on more than one occasion. In my opinion, there was no error in the direction in this regard.

78 The third ground in the Full Statement of Grounds of Appeal provides:

1. The trial miscarried by reason of the trial Judge's having failed properly or adequately to direct the jury on the law as it related to consciousness of guilt. In particular, the Judge erred by failing adequately to direct:

(a) on the possible reasons which the jury were bound to consider for why a person might lie or conduct themselves in a manner which might prima facie evidence on their part an implied admission; and

(b) that the jury could only find that a lie told, or material conduct engaged in, by the applicant amounted to an implied admission, if satisfied that there did not exist some other explanation for the lie or conduct which they could not exclude as a reasonable possibility.

79 The applicant submits that the trial judge failed to properly direct the jury in relation to alleged lies and guilty silence. He submits that his Honour:

(a) failed to provide the jury with any direction as to how it was obliged to assess and interpret the applicant's silence;

(b) failed to adequately direct on the possible reasons which the jury were bound to consider might innocently explain why a person might lie; and

(c) did not direct the jury that it could only find that the applicant's conduct or a lie he told amounted to an implied admission if they were satisfied that there was not some other explanation for the conduct or lie.

80 The applicant contends that failure to provide such directions amounted to a substantial miscarriage of justice because the case was essentially one of oath against oath and the alleged lies and guilty silence were critical to the prosecution's case.

81 The respondent submits that the trial judge's directions on lies and conduct capable of evincing consciousness of guilt were consistent with Edwards v R[26] and the Victorian Criminal Charge Book. They were therefore not erroneous. Further, it submits that if this Court accepts that the conduct relied on by the prosecution was not silence, but failure to proclaim innocence in the circumstances, the direction was not even necessary.

82 The directions relating to inferences, lies and consciousness of guilt in the context of the whole of the charge were adequate. The jury were consistently reminded, relevantly, that they could only act on lies if there was no other explanation. All other explanations or possibilities had to be excluded. Nothing more or different was required to be said. The previous directions as to inferential reasoning were adequate.

83 For the reasons set out above, this ground must fail.

84 The final ground raised by the applicant on the conviction appeal is that 'the trial miscarried by reason of a cumulation or aggregate of the errors alleged under cover of Grounds 1 to 3.' The respondent submits that no aggregation of errors causing a miscarriage of justice has occurred.

85 Given my finding that the trial judge did not make the errors alleged in grounds 2A, 2B and 3 and that the misdirection on the belief in consent did not cause a substantial miscarriage of justice, ground 4 must also fail.

86 The first ground raised in the application for leave to appeal against sentence concerns the sentencing judge's treatment of material in the complainant's victim impact statement. In her statement, the complainant described the emotional impact of having people judge her and form an opinion about her, based on what she believed the applicant had told them about the offence.

87 The applicant contends that the sentencing judge erred by weighing, in a manner adverse to his interests, the fact that the complainant felt that people in their group gossiped about her and believed that she had lied. He submits that while the sentencing judge found that he was not the cause of the complainant's ill treatment, his Honour nevertheless stated that the applicant's crime was at the heart of what brought about the complainant's distress. The applicant submitted that the sentencing judge therefore erred by indirectly holding him responsible for events which extended beyond the scope of his moral culpability and offending.

88 The respondent submits that it is clear from the discussions that occurred at the plea hearing that the sentencing judge did not regard the applicant as responsible for the actions of others in the group. Further, the sentencing remarks expressly state that the applicant did not cause the gossiping and other actions of people in the group. The respondent contends that in these circumstances, the sentencing judge's comment 'your crime is still at the heart of what brings about her distress' cannot be interpreted as indicating that his Honour sentenced the applicant on the basis that he bore responsibility for the actions of others.

89 In my opinion, the submission made by the respondent is correct. It is clear that the sentencing remarks state that the applicant did not cause the gossiping and the sentencing judge cannot be taken to have sentenced the applicant on this basis.

90 The second and third grounds on the sentence appeal provide that:

1. The sentencing Judge erred by finding, in the circumstances of the Applicant's case, that rehabilitation had to yield to deterrence and denunciation.
2. In all the circumstances:

(a) the total effective sentence imposed; and

(b) the non-parole period fixed

are manifestly excessive.

91 The applicant's principal argument is that, apart from the reference to the gravity of the offence, there is no explanation in the sentencing remarks as to why considerations such as the applicant's youth and rehabilitation had to yield to deterrence and denunciation. The applicant submits that the determination is inexplicable and erroneous in light of the sentencing judge's subsequent comments that the applicant's prospects are 'excellent' and it is expected he 'will do the right thing in the future'.

92 The applicant further contends that the sentencing judge failed properly to have regard to the matters in mitigation and weighed other matters too heavily. Finally, the applicant contends that the head sentence and non-parole period are not consistent with current sentencing practices for the offending and are manifestly excessive.

93 The respondent submits that the sentencing judge imposed a sentence that was within range and consistent with current sentencing practices for the offence of rape. It contends that the sentencing judge correctly identified the aggravating features of the applicant's offending, took into account the maximum penalty of 25 years' imprisonment and the need for general deterrence and denunciation of the applicant's conduct. Further, the respondent submits that the sentencing judge must be assumed to have taken into account all relevant matters in mitigation raised during the plea.

94 In my opinion, the sentencing judge properly took into account all relevant considerations. His Honour properly considered both youth and rehabilitation and deterrence and denunciation. The passage relied upon by the applicant in paragraph 2.1 of his submissions (paragraph 39 of the reasons for sentence) to the effect that 'considerations of youth and rehabilitation had to yield to deterrence and denunciation' is taken out of context. The whole passage is in the following terms:

You committed the offence when you were 22 years old and are now only 24. You are still a young man. My task is to do what can be done to facilitate your rehabilitation. Because of your youth, and additionally that you are a first offender with good prospects for the future, this would ordinarily mean that your rehabilitation would be the most important sentencing consideration. However, because of the gravity of the offence and the need to send a clear message of deterrence and denunciation, your rehabilitation must be balanced with these other considerations and, to a degree, yield to them.

95 In addition, paragraph 40 is in the following terms:

Your rehabilitation nonetheless remains important, and I consider the shock of these proceedings and your underlying good character all give a good indication that you will be able to do the right thing in the future. I consider your prospects for permanent rehabilitation to be excellent.

96 These passages referred to, far from demonstrating error, reveal a balanced and considered approach. The reference to the gravity of the offence and the need to send a clear message of deterrence to the community ties into other detailed remarks made by the sentencing judge about the consequences of rape for the community. In these circumstances, the second ground in the sentence appeal is not made out.

97 It is further argued that the sentencing judge failed properly to have regard to matters in mitigation favourable to the applicant. I do not accept the submission. In my opinion, his Honour properly had regard to matters in mitigation. His Honour referred to and dealt with, among other things:

• the applicant's underlying good character, including that he is a loving and dedicated parent and had no prior convictions;
• that the applicant's moral culpability was diminished to some extent because he acted spontaneously and opportunistically in committing the offence; and
• that conviction and incarnation will cause the applicant, a talented singer, to lose many musical opportunities.

98 Finally, it is suggested that the sentence is manifestly excessive in that it is at odds with current sentencing practices. In the recent case of Hasan v The Queen,[27] this Court considered in detail the principles that govern sentencing for the offence of rape and in particular, the use that can be made of comparable cases and sentencing statistics.

99 Hasan concerned the rape of a sleeping woman by a stranger who had unprotected sexual intercourse with her. The sentencing judge had sentenced the appellant to six years' imprisonment. The appellant successfully appealed the sentence and the Court, which was comprised of Maxwell P, Redlich and Harper JJA, substituted a sentence of four years' imprisonment.

100 In assessing whether the case involved a sentencing error, the Court considered a series of sentences imposed for rape. It referred to the relevant principles upon which sentencing ranges are capable of use by first instance and appellate courts. It said:

...current sentencing practice cannot be left out of account. On the contrary, it is an essential reference point in determining the available sentencing range in a particular case. The Sentencing Act 1991 (Vic) makes this perfectly clear. Moreover, as a matter of basic fairness, an offender who decides to plead guilty does so in the reasonable expectation that he/she will be sentenced consistently with current sentencing practices.[28]

101 Next, the Court considered the issue of consistency of sentencing, referring to the High Court's decision in Hili v The Queen.[29] In Hasan, the Court said:

Following an appropriate study of comparable cases, together with the application of the relevant sentencing principles, the judge will be in a position to identify the boundaries marking the range within which the particular sentence must fall. Up to this point, the exercise will have been a largely objective one, but with an element of the subjective introduced by the process of instinctive synthesis without which the case for which, and the offender upon whom, the sentence is to be imposed cannot be assessed. Beyond the point at which the boundaries are identified, however, the judge must exercise his or her discretion in deciding where within the range the particular sentence should fall.

It is contrary to the rule of law for there to be unjustified inconsistency of sentencing between offenders in comparable circumstances. As Mason J said in Lowe v The Queen, such inconsistency is 'regarded as a badge of unfairness and unequal treatment under the law.'[30]

102 Further, the Court reiterated and relied upon the principles that had been established in Hudson v The Queen,[31] where the Court said:

The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The correct method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.

Sentences imposed in 'like' cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the 'instinctive reaction' when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of "current sentencing practices" which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.[32]

103 These passages from Hassan and Hudson were recently cited with approval by this Court in MC v The Queen.[33]

104 In Hasan, the Court reviewed a significant number of cases of rape and stated that these were indicative of current sentencing practices. Of particular relevance to the present case are the cases which concern sleeping victims, namely:

Nous v R.[34] The victim awoke to find the defendant penetrating her vagina with his tongue. The defendant was convicted of rape after a trial and sentenced to four years' imprisonment with a non-parole period of two years.

Coulson v R.[35] The defendant digitally penetrated the victim while she was asleep. After a trial he was convicted of rape and sentenced to three and a half years' imprisonment, with a non-parole period of one year and three months.

Simon v R.[36] The victim woke up to find the defendant penetrating her vagina with his finger. The defendant was convicted on two counts of digital rape, following a trial, and sentenced to four years' imprisonment on each count. On appeal, those sentences were held to be manifestly excessive and sentence was reduced to three years on each count. The Court referred to the fact that the offender had been intoxicated and said:

Alcohol, though not a circumstance of mitigation, seems likely to explain the applicant's behaviour on this occasion, which was quite out of character.[37]

In R v Yankovski[38] there was once again penetration of the victim while she was asleep. The offender was convicted, after a trial, on one count of rape and was sentenced to five years' imprisonment with a non-parole period of three years.[39]

105 To this list may be added the following relevant cases:

• R v Ion Pau.[40] The defendant penetrated the vagina of his 13 year old future sister-in-law while sitting in his car in a public park. After a two day trial, he was convicted of one count of penile vaginal rape and was sentenced to six years' imprisonment with a non-parole period of four years and six months. On appeal, the Court held that the sentence was within range given its nature and gravity.
• R v Halit Bastan.[41] The defendant, masquerading as another man, tricked his ex-wife into allowing him into her house. He then dragged her into the bedroom, forced her onto the bed and penetrated her vagina with his penis. The defendant pleaded not guilty, but was convicted of one count of rape. Following an appeal by the Director of Public Prosecutions, the defendant was resentenced to a term of five years and six months imprisonment with a minimum term of three years and six months.
• R v Smith.[42] The victim fell asleep while travelling alone on a train after a night out. She awoke to find the defendant digitally penetrating her vagina. Following a trial, the defendant was convicted and sentenced to five years' imprisonment with a minimum term of three years. The sentence was upheld on appeal.
• R v Griffin.[43] The case involved a non-violent digital rape of a 54 year old intellectually and physically disabled woman in her home. The defendant, a qualified nurse, pleaded guilty and was sentenced to five years and six months' imprisonment with a non-parole period of three years. The defendant's appeal against sentence was dismissed.

106 In the present case, a head sentence of six years' imprisonment is stern. However, given the particular circumstances of this case, the plea of not guilty and the aggravating circumstances referred to by the sentencing judge, including that the applicant abused the trust of the complainant in circumstances where she was out with friends and was entitled to feel safe as she went to sleep, the sentence was not so stern as to be beyond range.

107 The application for leave to appeal against conviction is refused.

108 The application for leave in appeal against sentence is refused.

[1] Cf Worsnop v R [2010] VSCA 188.

[2] [2005] HCA 81; (2005) 224 CLR 300.

[3] [2010] VSCA 188.

[4] Victorian Law Reform Commission, Sexual Offences: Law and Procedure (2004) 426-431.

[5] [2010] VSCA 188 ('Worsnop').

[7] [2010] VSCA 207 ('Gordon').

[8] [2010] VSCA 327 ('Wignall').

[10] [2011] VSCA 160 ('Walker').

[11] [2011] VSCA 162 ('Roberts').

[12] [2011] VSCA 172 ('Neal').

[13] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [40] ('Weiss').

[15] [2011] VSCA 164 ('Getachew').

[19] Buchanan and Bongiorno JJA. Lasry AJA dissented on the basis that the agreed error did not lead to any miscarriage of justice. One of the reasons given by his Honour was that there was no evidence which might have raised the issue of belief in consent.

[21] Explanatory Memorandum, Criminal Procedure Bill 2008, 101.

[22] Criminal Procedure Act 2009 (Vic) s 276(1)(b).

[23] Woon v R [1964] HCA 23; (1964) 109 CLR 529, 541, R v Salahattin [1983] VicRp 49; [1983] VR 521, 531-32, R v Gallagher (1997) 96 A Crim R 300, R v Cuenco [2007] VSCA 41; (2007) 16 VR 118, R v MMJ (2006) 166 A Crim R 50.

[24] [1994] VicRp 58; [1994] 2 VR 249 ('Alexander').

[26] [1993] HCA 63; (1993) 178 CLR 193.

[27] [2010] VSCA 352 ('Hasan').

[29] [2010] HCA 45.

[30] Hasan [2010] VSCA 352, [47]-[48] (citations omitted).

[31] [2010] VSCA 332 ('Hudson').

[32] Ibid [27]-[29] (citations omitted).

[33] [2011] VSCA 2.

[34] [2010] VSCA 42

[35] [2010] VSCA 146.

[36] [2010] VSCA 66.

[38] [2007] VSCA 259.

[39] [2010] VSCA 352.

[40] [2007] VSCA 239.

[41] [2009] VSCA 157.

[42] [2009] VSCA 85.

[43] [2006] VSCA 60.