CRIMINAL LAW - Sentence - Rape - Finding of poor rehabilitation prospects open - Seven years' imprisonment with non-parole period of five years not manifestly excessive - Leave refused.

1 I have had the advantage of reading the draft reasons of Hansen JA. I would refuse the applications for leave to appeal against conviction and sentence for the reasons that his Honour gives.

2 On 5 March 2010 a County Court jury, by majority verdict, found Lambrose Violatzi ('the applicant') guilty of one count of rape. Following a plea in mitigation, the applicant was sentenced on 30 April 2010 to seven years' imprisonment with a non-parole period of five years.

3 The applicant seeks leave to appeal against conviction and, if the conviction is sustained, against sentence.

4 In essence, the applicant complains that the trial miscarried by reason of the judge directing the jury in the manner held to have been erroneous in Worsnop v The Queen.[1] That is, the judge told the jury that even if they were satisfied beyond reasonable doubt that the applicant believed the complainant was consenting, the jury still needed to consider whether (and might yet find that) the applicant was aware of the possibility that she was not consenting, in which case the fourth element (mens rea) of the offence of rape would be met.

5 The respondent submits that in the particular circumstances of the trial, the judge's directions could not have affected the jury's verdict.

6 The relevant facts and evidence are in short compass.

7 On 13 February 2008 the applicant, then aged 43, approached the 17 year old complainant, who was working as a street prostitute in the Dandenong CBD. She

told the applicant that her price was $50 for 'straight sex', meaning vaginal intercourse, and $70 for 'half and half', meaning vaginal intercourse plus oral sex. The complainant got into the applicant's car, and the applicant drove to an isolated reserve about 1.6 km from the Dandenong CBD. Upon arrival, they got into the back seat of the car.

8 The complainant deposed that the applicant produced only $40 and suggested making up the difference by providing the complainant with drugs. The complainant refused. She thought that the applicant was going to get more money from his wallet. By this time, she had taken off her top but not her bra, and the applicant had taken down his pants. The applicant then grabbed the complainant violently by the hair and forced her head down into his crotch, telling her to suck his penis. The complainant struggled but was unable to resist the applicant's aggression. The applicant forced her to keep her mouth on his penis for four to five minutes, apart from an occasion when he allowed her head to go back up for a few seconds. All the while, he repeatedly told her that 'all hookers are smartarse sluts' and told her to lick and suck his penis. Ultimately the applicant withdrew his penis and ejaculated. No condom was used. The complainant deposed that she would never have unprotected sex with a client. She was intimidated by and terrified of the applicant. Further, the applicant did not pay her at all. The applicant drove the complainant back to the Dandenong CBD, telling her on the way that 'it wasn't rape because we didn't have sex', meaning vaginal intercourse. After being dropped off, the complainant walked to the police station in a distressed state and immediately made a complaint.

9 Nine days later, the applicant was interviewed by police. He claimed that he gave the complainant $50 and she gave him oral sex. He initially claimed that he had worn a condom but later said that he had not. During the oral sex, he pushed her head down a bit. She told him to stop and he stopped straightaway. They had an argument, she then continued on (with the oral sex) for a couple more seconds but he did not want to continue as 'it just didn't feel right any more' so he told her to stop. He then dropped her off. He denied being violent or rough, although later in the interview he agreed that he might have been 'a bit rough with her'. He also denied ejaculating. He said that it had been agreed that he would pay $20 extra for oral sex without a condom, but he did not pay her the extra $20 because they had stopped having oral sex. He denied offering the complainant drugs, raping her or otherwise abusing her. He claimed the complainant was telling lies against him because she was upset he had not paid her the extra $20.

10 At trial, the applicant deposed that the answers in his record of interview were true. However, he expanded on the interview, thus giving a somewhat different version of events. He said that they first had vaginal sex with a condom for about four or five minutes, but he could not get an erection. So, at the complainant's suggestion, she gave him oral sex with a condom on, and finally oral sex without a condom. Defence counsel asked the applicant to comment on particular answers in his record of interview. As to the incident where he pushed her head towards him, it was during the final stage, that is during the oral sex without a condom. He did not intend to be rough, and did not pull her hair. He agreed, however, that he told the police that he may have been a bit rough with her. That caused a disagreement because 'she said to me not to touch her'.[2] She continued to give him oral sex but he did not feel like continuing because they were 'not getting anywhere' and her attitude was 'terrible'. He told her to stop and get dressed. He did not pay her the $20 extra because he did not think it was fair because 'we didn't finish'. No other evidence was called by the applicant.

11 The trial was conducted on the basis that there was a stark conflict between the evidence of the complainant and the applicant. In essence, the Crown case was that, accepting the complainant's evidence as to (a) her lack of consent, (b) the way the applicant grabbed her head and forced her despite her struggling, and (c) his violent insults which accompanied the act, the applicant could not have believed that the complainant was consenting. In contrast, the defence case was that the complainant was a vindictive liar who ought not be believed. Accepting the applicant's evidence, the complainant consented at all times. As soon as she told the applicant to stop, he did so. And although the applicant admitted that he was rough and pushed down the complainant's head, he did not intend to intimidate her into giving him oral sex. In short, he always believed that she was consenting.

12 Originally, there were seven grounds. At the hearing, counsel abandoned grounds 1, 2, 3 and 7. He focused oral argument on ground 6. He relied also on grounds 4 and 5 which, taken together, raised the Worsnop error.

13 Ground 6 was premised on the judge having directed the jury on an alternative basis for convicting (not raised by either party), namely the suggestion in the applicant's record of interview that the complainant initially consented to oral sex but subsequently withdrew her consent. At the end of the hearing, counsel indicated that there was further transcript relevant to ground 6 which he had requested but not yet seen. In that context, the Court granted the applicant leave to file a further written submission addressing the relevance of that transcript. Counsel subsequently filed a written submission advising that the transcript revealed that, at the request of the parties, the judge removed from the jury's consideration the alternative basis for convicting which he had previously directed upon. It followed that the premise of ground 6 fell away, and the ground ought be abandoned.

14 That left only grounds 4 and 5, which may conveniently be dealt with together as the Worsnop ground. Counsel conceded that his oral submission on the Worsnop ground was predicated on the same alternative factual scenario underlying ground 6. That scenario having fallen away, counsel advanced a further argument in writing in support of the Worsnop ground, which he 'did not consider necessary to make while labouring under the misapprehension' referred to above. The respondent did not object to that course. The Court did not consider any further oral hearing to be necessary.

15 In the result, the applicant's sole argument on conviction was as follows. Counsel submitted that there was a version of the facts open to the jury in which the complainant did not consent to the oral penetration, and which still left doubt as to the applicant's mens rea. That was because the applicant's belief in consent was not dependent on the reliability of his evidence, but rather may have depended on some intermediate view taken of the complainant's evidence. Counsel noted that the judge told the jury that they were 'completely at large' as to whether they accepted or rejected in whole or in part the evidence of the complainant. Further, the judge told the jury that it was conceivable that 'you could have a case' where there was a lack of consent, but still a failure to prove mens rea. Importantly, the judge did not tell the jury that the present was not such a case.

16 Counsel submitted that there were aspects of the complainant's evidence that the jury might readily have doubted, particularly as to how the alleged rape commenced. For example, given the complainant's evidence that her price for vaginal sex was $50, and that the applicant showed her $40, 'the jury might readily have doubted that the applicant would have raped the complainant in the manner described over a potential difference of opinion concerning price extending no further than $10'. And if the jury doubted this particular aspect of the complainant's testimony, it was open to accept as a reasonable possibility that the sexual acts occurred as described by the applicant. That is, vaginal sex, followed by oral sex with and then without a condom, and all acts being completed without the applicant obtaining an erection. Counsel submitted that the 'rational appeal' of this version of events was that it 'perhaps provided a more likely explanation as to why the applicant might have applied some force to the complainant's head in the manner described: he was desirous but unable to obtain an erection and was frustrated about this matter'. If the jury accepted that the applicant's version of the chronology of events was reasonably possible, but that the complainant did not consent to the final act of penetration because of the applicant's failure to wear a condom, 'it was well open to the jury to consider that the present case was one of those cases described by the judge where there was proof of lack of consent but a failure to prove mens rea'.

18 The judge directed the jury squarely in accordance with the way the case was conducted. At the request of the parties, the judge removed from the jury's consideration the alternative factual scenario about a withdrawal of consent, and told the jury to put out of their mind 'any directions that I've given that relate to that factual scenario'.[3] As the judge stated, the real issue was whether the jury was satisfied of the complainant's account beyond reasonable doubt. If so, the applicant was guilty, 'so long as [they] were satisfied that he had the necessary state of mind, because [they] would be satisfied that there was an act of non-consensual penetration and that in the circumstances it must have been obvious to the accused that she was not consenting. On the other hand, if [they] are not so satisfied then [they] should find him not guilty'.[4]

19 The factual scenario posited by the applicant's submission is entirely inconsistent with the complainant's evidence. The scenario is that the jury might have accepted as a reasonable possibility that (a) there was vaginal sex, and (b) the complainant consented to sex (both vaginal and oral) with a condom, and (c) she only withdrew her consent once the condom was removed. The complainant emphatically rejected each of these suggestions, which were central aspects of her evidence. The judge's directions made it clear that if the jury had a reasonable doubt as to her account, the applicant was entitled to be acquitted. If the jury had entertained the factual scenario posited by the applicant's submission, the applicant would have been acquitted. The guilty verdict demonstrates that the jury must have accepted the complainant's evidence. Once the jury accepted the complainant's evidence, there was no basis on which the factual scenario posited by the applicant's submission could have existed.

20 More importantly, once the complainant's evidence was accepted, there was no basis on which the jury could have concluded that the applicant believed that the complainant was consenting. In these circumstances, the impugned direction could not have affected the verdict, because the reasoning process described by the direction only arose if the jury first accepted that the applicant had a belief in consent. If he did not have that belief, mens rea was established without the need to consider any further question as to his awareness that the complainant might not have been consenting.

21 In my view, the impugned directions went to an issue that was irrelevant to the case as conducted. In these circumstances, it is artificial to consider that the directions constituted a wrong decision on a question of law within the meaning of s 568(1) of the Crimes Act 1958.[5] In truth, the 'decision' was irrelevant to the verdict. Nor did the directions result in a miscarriage of justice.

22 Lest, however, I be wrong in these conclusions, the present is an appropriate case in which to apply the proviso. Considering the whole of the evidence, and having due regard to the fact that the jury must have accepted the complainant's evidence and noting further that the impugned direction could not have affected the jury's assessment of the witnesses' credibility,[6] I am satisfied that the applicant was proved guilty beyond reasonable doubt. Once the complainant's evidence is accepted, the applicant could not be acquitted regardless of any misdirection as to mens rea. It follows that no substantial miscarriage of justice was occasioned.

23 I would refuse the application for leave to appeal against conviction.

24 Ground 1 complained that the sentence of seven years' imprisonment with a non-parole period of five years was manifestly excessive. Counsel noted that the sentencing snapshot indicated that the median sentence for rape was five years' imprisonment. He noted further that the sentence exceeded the Crown's range which was a head sentence of four and a half to six and a half years with a non-parole period of three to four and a half years. He submitted that having regard to the mitigating factors - particularly the applicant's ongoing employment, and that he had not used heroin for the past year - a more lenient sentence ought to have been imposed.

25 I do not accept this submission. The judge's careful sentencing remarks indicate that he had regard to all relevant aggravating and mitigating factors. The median sentence referred to by counsel is of limited assistance, as it is a statistical mid-range figure which includes sentences imposed on offenders who pleaded guilty and who did not have prior convictions. In the present case, while there were some mitigating factors, particularly the applicant's employment record, he had extensive prior convictions, and had demonstrated no remorse for the present offending, which had caused significant trauma to the complainant. Further, the judge was not bound by the Crown range, but rather was obliged to impose the sentence which he regarded as appropriate in all the circumstances. Quite properly, the judge forewarned counsel that he did not consider that the Crown range adequately reflected the gravity of the offending. In my view, it cannot be said that the head sentence here was so high as to indicate that the sentencing discretion miscarried. I consider also that the non-parole period was within the range of that which might properly have been imposed in the circumstances.

26 Ground 2 complained that the judge erred in finding that the applicant's prospects of rehabilitation were poor. It was submitted that while the judge was entitled to be 'guarded' as to rehabilitation prospects, it was not open to find that they were 'poor', particularly given that the applicant had had steady employment over the past four years and had 'all but given up heroin' in the past two years.

27 There is no substance in this submission. The applicant had an extensive criminal history, which included offending in periods during which he was in steady employment. Accepting that much of his prior offending related to his heroin addiction, the evidence as to the cessation of heroin use was far from convincing. The judge did not make an express finding about the matter, although he noted that

there were no urine tests to back up the assertion. Further, the plea was adjourned for a month to enable psychological reports to be obtained, but upon resuming defence counsel stated that he would not be leading any such evidence. In these circumstances, the question as to whether the applicant had ceased heroin use was left up in the air. But even accepting that the applicant had ceased heroin use, his many prior convictions - including sex related offences against women in 1983 (indecent assault and false imprisonment), 1994 (having sex with a prostitute then running away without paying), and 2008 (soliciting) - and recurring failures to take advantage of the lenient dispositions extended to him in the past, bespoke poor rehabilitation prospects.

28 I would refuse the application for leave to appeal against sentence.

[1] (2010) 28 VR 187.

[5] Cf Worsnop v The Queen (2010) 28 VR 187, 196 [36].

[6] See Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 317 [43], 318-9 [50].