Criminal division – sentencing

In R v Gill [2010] VSCA 64 in approving a 16 year sentence of imprisonment on a count of rape, Ashley, Bongiorno & Harper JJA said:

[52] “The rape was perpetrated by the appellant upon a person unknown to him. He was larger than she. She was, in substance, dragged off the street late at night whilst going peaceably about her own business. The incident took place over some time. The rape itself was unarguably savage. The injuries which the appellant inflicted upon EO were life-threatening. She suffered the physical and emotional sequelae to which we have referred. Her victim impact statement, reserved in tone but the more eloquent for that, highlighted her suffering.

[53] The circumstances to which we have referred explain why this rape fell into the category of extremely serious rapes. But this does not mean that matters relied upon for the appellant, to the extent that they are valid, can be disregarded.

[54] The maximum penalty for the offence of rape is 25 years’ imprisonment.

[55] The maximum penalty should be reserved for the very worst cases of rape: See, for instance, Markarian v The Queen (2005) 228 CLR 357, 372 [31], R v Sibic (2006) 168 A Crim R 305 [14] (Redlich JA) and R v AB (No 2) (2008) 18 VR 391, 403 [40](Nettle JA).

[56] Counsel for the appellant submitted that a rape involving violence similar to that used in the present case would have been worse if – (1) committed in company; (2) planned; (3) committed by a man with prior convictions for sexual offences; (4) committed by a ‘serious sexual offender’ (this term has a particular meaning in the criminal law in this State. It did not apply to the appellant.); (5) the offender had pleaded not guilty, and had been convicted after trial; (6) there had been a multiplicity of rapes; (7) gross injuries had been inflicted upon the victim in addition to any injuries inflicted in the course of the rape. Cases involving one or more of those circumstances are DPP v Devaldez [2003] VSCA 29, R v WCE [2004] VSCA 243 and R v Welsh [2005] VSCA 285.

[57] We agree with that submission. To that list may be added the case of a revenge rape attended by violence such as was here used; and, arguably also, rapes involving invasion of the sanctuary of the victim’s home, or the use or threatened use of a weapon.

[58] It follows from what we have thus far said that this rape, serious though it was, was not a rape which, other things being equal, could attract the highest of penalties.”

In R v Hasan [2010] VSCA 352 allowed an appeal against a sentence of 6y/4y on one count of rape. The victim had been asleep and the rape was unprotected penile intercourse. A DNA match had been obtained and the offender had fled the jurisdiction for two years. The offender had no prior convictions, had been intoxicated and had pleaded guilty. He was resentenced to 4y/3y. In the course of their joint judgment Maxwell P, Redlich & Harper JJA said:

[40] “Rape is a very serious offence, as the maximum of 25 years fixed by Parliament indicates. As Winneke P said in R v Mason [2001] VSCA 62 at [8]:

‘It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim’s person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim’s rights and freedoms.’

[41] This case was far from the most serious of its kind. It involved no violence, no threats and no weapon. The victim’s home was not invaded. On the other hand, advantage was taken of a sleeping woman. She was subjected not merely to an invasion of her body but to an invasion by way of unprotected penile penetration followed by ejaculation. While far from the worst, it was nevertheless a very bad case.”

In its judgment at [48] the Court of Appeal stated – with reference to dicta of Mason J in Lowe v The Queen (1984) 154 CLR 606, 611 and Gleeson CJ in Wong v The Queen (2001) 207 CLR 584, 591 – that “it is contrary to the rule of law for there to be unjustified inconsistency of sentencing between offenders in comparable circumstances”. It went on to detail at [56]-[58] a large number of cases illustrating current sentencing practice for the offence of rape. These included DPP v Maynard [2009] VSCA 129; DPP v Patterson [2009] VSCA 222; DPP v Moses [2009] VSCA 274; R v Schubert [1999] VSCA 25; R v Brown (2002) 5 VR 463; R v Mason [2001] VSCA 62; DPP v Fellows [2002] VSCA 58; Nous v The Queen [2010] VSCA 42; DPP v Sibanda [2010] VCC 605; Coulson v The Queen [2010] VSCA 146; Simon v The Queen [2010] VSCA 66; R v Yankovski [2007] VSCA 259. At [60] the Court of Appeal said that but for the constrains of current sentencing practice and the requirement for consistency, it would have dismissed the appeal. It went on to stress “the need for a review of current sentencing practices for rape”.

See also R v Balassis [2010] VSCA 296; DPP v Sibanda [2011] VSCA 285 at [90]-[106]; R v Werry [2012] VSCA 208; DPP v Roberts [2012] VSCA 313.

11.2.29 Sentencing for offences against the person committed on public transport

In DPP v Eli [2008] VSCA 209 the Court of Appeal (Vincent & Weinberg JJA and Mandie AJA) allowed a DPP appeal and increased the sentence on a charge of intentionally causing serious injury from 2y to 4y6m. The defendant and the victim, who were strangers to each other, were passengers on a train. Without provocation the defendant had struck the victim to the face about ten times with his fist and a glass beer bottle. In attempting to escape the victim forced the train doors open and jumped out of the moving train. In the incident the victim sustained an extremely serious permanent injury. At [32] the Court of Appeal said:

“The rights and safety of the members of this community who travel on the public transport system must be protected. It cannot be accepted that they will be exposed to abuse, violence or the threat of personal injury as they go about their ordinary activities using these facilities. Those who physically or verbally interfere with or endanger them must anticipate that the response of the courts will be stern. In short, there must be no doubt in anyone’s mind that conduct of the kind in which the respondent engaged will simply not be tolerated. General deterrence is an important sentencing consideration in cases of the present kind for this reason.”