Singh v The Queen [2014] VSCA 250

2 The appellant sought leave to appeal against his sentence. He relied initially upon two grounds, one of which was subsequently abandoned. During the course of oral argument before Redlich JA, a further two grounds of appeal emerged. His Honour granted the appellant leave to appeal on the following three grounds:

(2) The head sentence and the non-parole period are manifestly excessive.

(3) His Honour erred in treating the offending as a breach of trust of the employer/employee relationship.

(4) His Honour erred by wrongly treating context and relationship evidence (including the app[ellant]'s sexual interest in the victim) as a relevant matter adverse to the appellant.

3 The appellant, was aged 32 at the time of his offending. He owned and operated a service station and car wash. In October 2011, he employed the victim as a customer service assistant. She had turned 18 two months earlier. This was her first job, having just completed her VCE studies.

4 The victim began working for the appellant in early November 2011. While explaining her work duties, the appellant told the victim that she should not treat him like a normal boss, and that she should tell him her 'stories'. During the course of conversation, they spoke about alcohol, and the effect that it had upon her. She told the appellant that she went 'crazy' when intoxicated. He told her that he would have to take her out to see how 'crazy' she could get. At the time, the victim thought that the appellant was a 'cool' boss.

5 About a week later, the appellant invited her to attend a party with him two days later. It was agreed that she would not tell her mother or boyfriend (with whom she had been in a relationship for six months), and that she would instead tell them that she was attending an 18th birthday party.

6 The following day the victim was particularly quiet at work. When the appellant asked her what was wrong, she explained that she had not heard from her boyfriend for a number of days. She told him that she was feeling particularly upset. He then invited her out for drinks that evening in order to cheer her up.

7 After work the appellant took the victim to a bar. He bought her three vodka drinks. He drank only water.[1] The victim started to feel the effects of those drinks and the two began to have a sexually explicit conversation.

8 The trial judge's sentencing remarks summarised the contents of that conversation as follows:

This included asking her what she found attractive in males; discussing the possibility of one of her friends with large breasts working at the car wash so as to attract more men; telling her about an affair you had with a married woman; describing yourself as 'the horniest bastard'; and asking how many times she could have sex in one night, proudly claiming that you had sex with a girl 12 times on the one occasion. When you were leaving the bar you alluded to having had an erection whilst speaking to her. This comment made her feel uncomfortable.[2]

9 The following evening, the appellant took the victim out. However, they went to a city bar, rather than to a party as previously discussed. He invited a friend along. The appellant purchased six or seven vodka drinks for the victim while he, once again, drank only water. She became extremely intoxicated, to the point of needing the assistance of both the appellant and his friend in order to be able to walk. She recalled at one point the appellant telling her that she was too young to be in a relationship. She said that she felt uncomfortable and awkward when the appellant put his arm around her and touched her thigh.

10 The three left the bar and got into the appellant's car. After he dropped his friend home, he drove the victim to a dead-end street at the rear of his business premises. The appellant climbed on top of her in the back seat of the car. She protested, saying, 'please stop, I can't do this. I have a boyfriend'. He ignored her pleas, and penetrated her vagina with his penis. She blacked out, but regained consciousness on several occasions during the course of the rape. She was able to recall asking him, on two occasions, to stop what he was doing. He again ignored her protestations. He said to her that she was 'horny'. He did not wear a condom.

11 After this, the appellant drove the victim to her home. She told her family and her boyfriend what had occurred, and the police were informed. When questioned, the appellant admitted to having had sexual intercourse with her in his car. He told police that the penetration had lasted for 10 minutes. He claimed that it had been consensual, and that it had followed on from his having kissed the victim in the car whilst driving his friend home.

12 The appellant's friend gave evidence. He denied having seen any such kissing. He further stated that he had not seen the victim make any advances towards the appellant during the course of the evening.

13 The victim, her family and her boyfriend all experienced significant psychological trauma as a result of the appellant's offending. In a powerful victim impact statement, she spoke of the very deep wounds this offending had inflicted upon her, and of being haunted by daily memories of the rape. She said that as a result of the appellant's conduct, she suffered from nightmares, anxiety and anorexia, and that she found it very difficult, even years later, to go out in public. She was unable to trust people, and could not undertake studies as she had planned. She also spoke of the additional trauma caused by the trial process (namely, the exposure, as part of the defence, of semi-naked photographs taken of her, for her and her boyfriend's private enjoyment).

14 The appellant was born in India. He came to this country in 2005 with his wife, whom he had married in 2003. He had completed an Arts degree in India and had accompanied his wife to Australia so that she could pursue tertiary studies in information technology. In 2007, his sister moved to Australia. Their mother remained in India. However, she visited her children on a regular basis.

15 Initially, the appellant drove taxis for a living. Subsequently, he obtained a part-time job in building services. In August 2011, he purchased the service station and car wash business. He sold that business in April 2012, finding that he could no longer cope with running it in light of the ongoing rape allegations. He eventually returned to the building services industry, and obtained additional hospitality work so that he could fund his trial.

16 The appellant's relationship with his wife deteriorated and the two eventually divorced. They remained living under the same roof, caring for their daughter, who was aged 4 at the time of sentencing. The appellant continued to provide financial support to his ex-wife and daughter up until the date of his conviction.

17 Counsel for the appellant on the plea referred specifically to his client's anguish at being separated from his daughter, and not being able to provide for her and his ex-wife financially. He also tendered a number of good character references attesting to the appellant's strong work ethic, and his non-violent disposition.

18 Counsel for the appellant submitted that both the sentence of seven years' imprisonment, and the non-parole period of five years, were manifestly excessive. While he accepted that this offence was serious, he submitted that it fell within what he described as the 'medium' category of seriousness for an offence of this kind. He further submitted that the particular conduct fell towards the 'lower end' of that category. He based that argument on a number of factors.

19 First, as had been conceded by the Crown on the plea, there was no evidence to suggest that the offending was in any way pre-meditated. While the appellant undoubtedly developed a sexual interest in the victim in the days prior to this incident, there was nothing to indicate until almost the very moment that he committed this offence that he was contemplating having sex with her against her will. In other words, the offending was opportunistic, rather than planned.

20 Secondly, counsel referred to what he characterised as the aggravating features of this case. He submitted that they too fell towards the lower end of the spectrum. He noted that while the appellant had not used a condom, the weight to be given to that factor was diminished because the victim had been fitted with a contraceptive implant. That was a matter that had been discussed between them in the period leading up to the offence.

21 Next, counsel contended, the appellant had withdrawn before ejaculating. It was submitted that this had reduced the risk of the victim contracting a sexually transmitted disease.

22 Counsel then referred to the imbalance of power associated with the employer/employee relationship, as well as the age difference between the appellant and the victim. He acknowledged that these two factors were properly to be regarded as aggravating features of the offending. However, he submitted that, in the particular circumstances of this case, they should be given limited weight. He relied, in support of that submission, upon the fact that the offence had occurred during a social outing, outside of work hours, and that there was nothing to suggest that the appellant had coerced the victim to go out with him.

23 Counsel submitted that such aggravating features as were present were relatively moderate when compared to those sometimes found in cases of rape. He referred, in that sense, to cases involving actual violence, home invasion, abduction, use of weapons, gratuitous humiliation, repeated or prolonged abuse and perverse sexual practices.

24 Finally, counsel referred to a number of mitigating factors said to support the ground of manifest excess. These included the appellant's lack of prior convictions, as well as his excellent work history and previous good character. The sentencing judge had remarked that the appellant had 'good prospects of rehabilitation'.[3] That was borne out, to some degree, by the fact that he had not reoffended, and had complied fully with all bail conditions.

25 Counsel further submitted that the appellant had already suffered significant extra-curial punishment, having lost his wife and, effectively, his daughter as well. He had also been forced to sell his business.

26 Finally, counsel pointed to the fact that there had been a delay of some two years and four months between the incident itself, and the time that the appellant came to be sentenced.

27 It was submitted that these factors, in combination, meant that the sentencing judge had erred in imposing a sentence that was significantly higher (some 40 per cent, it was said) than what was described as the 'median sentence for rape' in this State.

28 Counsel for the respondent first submitted that the sentencing judge had delivered careful reasons for the sentence that he imposed. He submitted that his Honour had weighed all the relevant aggravating and mitigating circumstances appropriately. Though he acknowledged that a sentence of seven years' imprisonment was 'stern', he contended that it was 'within range'.

29 Counsel noted the sentencing judge's assessment that this was a 'serious example of the offence of rape'. He referred to the aggravating features of the offending, particularly, the age difference between the appellant and the victim, and the appellant's cruel exploitation of her naivety and vulnerability in the context of the employer/employee relationship. He noted further that she had 'reposed trust' in the appellant, and that, as her employer, he had breached that trust.

30 Counsel referred to the sentencing statistics cited by the appellant. He submitted that these were, at best, only a crude guide as to range. The fact that the median sentence for rape, as disclosed in the Sentencing Advisory Council's Snapshot 145 for that offence, might be five years' imprisonment did not indicate that the sentence imposed was 'wholly outside the range' reasonably open in the circumstances.

31 Sentencing statistics are indeed only a rough guide as to the appropriate range in any given case. They certainly do not, of themselves, 'establish a sentencing practice'.[4] There are limitations upon the utility of such statistics.[5] In relation to the figures produced by the Sentencing Advisory Council Snapshots, they are of limited value because they do not differentiate between sentences imposed after contested trials, and those imposed after pleas of guilty.[6]

32 Comparable cases, on the other hand, can be of considerable assistance to sentencing judges.[7] As Maxwell P said in Ayol v The Queen:

... occasionally it will be possible to demonstrate, by the identification of one or more relevantly comparable cases, that the particular offender has been treated inconsistently and unfairly, that is to say, has been given a heavier sentence than in comparable cases where there is no reasonable basis for differentiating between them.[8]

33 Sentencing an offender such as the appellant, in a case such as this, is never a simple task. In Hudson v The Queen, 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 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.

'Like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that 'comparable cases' can only provide limited assistance to this court. They may however be used in search of unifying principles.[9]

34 Of course, the gamut of circumstances surrounding each offence of rape will vary from case to case. That said, Redlich JA, in the course of granting the appellant leave in this matter, referred to the fact that the sentence of seven years' imprisonment was some 40 per cent above the median range for rape. That figure is borne out by a chart contained in the Victorian Sentencing Manual, published by the Judicial College of Victoria. It is also confirmed by a table, apparently produced in Ayol, and relied upon by the appellant before this Court. That table makes it clear that in respect of rape cases that came before this Court between 2006 and 2014, the median sentence, where the matter went to trial, was five years.

35 It is fair to say that sentences of seven years' imprisonment, or more, were only imposed in cases where the aggravating features were significantly worse than those apparent in the present case.[10]

36 The matter does not end there. The test for manifest excess is, as has been said repeatedly, a stringent one. It is a ground that is particularly difficult to make good. The appellant must be able to demonstrate that the sentence was 'wholly outside the range' of sentences reasonably available.[11]

37 In our opinion, giving due weight to all of the matters put forward before this Court, a sentence of seven years' imprisonment with a non-parole period of five years was 'wholly outside the range', in the sense spoken of above. We can see nothing about this case that takes it entirely outside the cluster of cases that go to make up current sentencing practice for cases of rape in this State. Indeed, it seems to us to fall squarely within that category.

38 The appellant's conduct was undoubtedly appalling. It resulted in profound suffering on the part of the victim, and trauma for her family. She has conducted herself throughout with great courage and dignity.

39 Nonetheless, the appellant is entitled to be treated on the basis that his sentence will fit the general pattern of those imposed in broadly similar circumstances. Like cases are to be dealt with alike. That is why sentencing judges are required by s 5(2) of the Sentencing Act 1991 to take into account 'current sentencing practices'.

40 To allow a sentence such as this to stand, when it is so far out of line with what we understand to be current sentencing practice for rape, would be to perpetrate an injustice. We would therefore allow the appeal on ground 2 and set aside the sentence imposed below. We would substitute a sentence of five years and six months' imprisonment with a non-parole period of three years and three months. We would otherwise confirm the orders made by the sentencing judge below.

41 Accordingly, grounds 3 and 4, each of which assert specific error, need not be separately considered.

42 It is declared that the period of 221 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

[1] Uncontradicted evidence was led at the trial that the appellant did not generally drink alcohol.

[2] DPP v Singh (Unreported, County Court of Victoria, Judge Howard, 3 March 2014) [6].

[4] Director of Public Prosecutions v Maynard [2009] VSCA 129, [35].

[5] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 ('Hili').

[6] Blair v The Queen [2014] VSCA 175, [109].

[7] Hili [2010] HCA 45; (2010) 242 CLR 520, 522.

[8] [2014] VSCA 151, [33] (citations omitted) ('Ayol').

[9] (2010) 30 VR 610, 616-7 [27]-[29] (citations omitted).

[10] See, eg, R v Sotto [2009] VSCA 70; R v Vella [2008] VSCA 28; Allen v The Queen [2013] VSCA 263; R v Fisher [2008] VSCA 11; Director of Public Prosecutions v Werry (2012) 37 VR 524 ('Werry'); Violatzi v The Queen [2011] VSCA 424. These cases, by any objective measure, all involved greater moral culpability than does the present case. They were all accompanied by violence, or other particularly aggravating features. They should be contrasted with cases such as Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28 ('Hasan'), which involved a sleeping victim. There, the Court reduced a sentence of six years' imprisonment for rape, to one of four years. The present case seems to fall about midway between Hasan and Werry in terms of its objective gravity.

[11] Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634.