Henson (a Pseudonym) v The Queen [2018] VSCA 283 (7 November 2018)

Last Updated: 7 November 2018

SUPREME COURT OF VICTORIA

COURT OF APPEAL

	S APCR 2017 0231

EMYR HENSON (a pseudonym)^[1]	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, HARGRAVE JJA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2018
DATE OF JUDGMENT:	7 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 283
JUDGMENT APPEALED FROM:	DPP v [Henson] [2017] VCC 1568

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CRIMINAL LAW – Conviction – Application for leave to appeal – Prosecutor’s closing address – Whether prosecutor’s closing address reversed onus of proof – Whether prosecutor’s address undermined stature of defence counsel – Whether prosecutor’s address encouraged emotive or speculative reasoning – Whether prosecutor’s address contained submissions not supported by evidence – Whether prosecutor’s address otherwise impermissible – Proposed ground of appeal not reasonably arguable – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Application for leave to appeal – Rape (3 counts), threat to kill and common assault – Total effective sentence 8 years and 6 months, with non-parole period of 6 years and 3 months – Whether sentences, orders for cumulation or non-parole period manifestly excessive – Complaints of manifest excess not reasonably arguable – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue + George

For the Respondent	Ms E H Ruddle	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA

HARGRAVE JA

ALMOND AJA:

1 In June 2017, the applicant was tried in the County Court on eight charges involving the one complainant. On 16 June, the applicant was convicted on five of the charges: making a threat to kill, common assault and three charges of rape (charges 3, 4, 5, 6 and 7). The applicant was acquitted on the three other charges on the indictment: making a threat to kill, aggravated burglary and rape (charges 1, 2 and 8).

2 On 21 August 2017, following a plea hearing, the applicant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
3	Make threat to kill [Crimes Act 1958 s 20]	10 years’ imprisonment	2 years	4 months
4	Common assault [common law]	5 years’ imprisonment	1 year	2 months
5	Rape [Crimes Act 1958 s 38(1)]	25 years’ imprisonment	6 years	12 months
6	Rape [Crimes Act 1958 s 38(1)]	25 years’ imprisonment	6 years	12 months
7	Rape [Crimes Act 1958 s 38(1)]	25 years’ imprisonment	6 years	Base
Total Effective Sentence:		8 years 6 months’ imprisonment
Non-Parole Period:		6 years 3 months

3 The applicant now seeks leave to appeal against his conviction and sentence. The sole proposed ground of appeal against conviction is:

A substantial miscarriage of justice has occurred because of the intemperate, inflammatory and prejudicial closing address by the prosecutor.

The sole proposed ground of appeal against sentence is that:

The individual sentences imposed, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in that they failed to take into account and/or give adequate weight to the mitigating factors of the applicant.

Background

4 The events giving rise to the charges occurred between 9 and 10 October 2014 at the complainant’s unit. At the time, the complainant was the ex-girlfriend of the applicant. The offending was alleged to have occurred while the complainant’s six-year old son was present in the unit. At the time of the offending, the complainant and the applicant were 26 and 52 years’ old respectively. They were both born in Burma. In summary, the Crown case in relation to the charges on which the applicant was convicted was as follows.

5 On Thursday 9 October 2014, the applicant went to the complainant’s unit. He was aggressive and intoxicated at the time, and the complainant was afraid. Once inside, the applicant grabbed the complainant’s mobile phone and told her, ‘If you dare call the police, I will kill you ... I’m not afraid to go to prison’ (charge 3 — make threat to kill).

6 The applicant repeatedly asked the complainant to have sex with him. He grabbed her by the hand and held her forcefully against his chest. When the complainant attempted to break free, the applicant kicked her on the shin, causing her to fall to the ground and land on her back. The applicant then stomped on the complainant’s stomach, causing her to feel pain and a loss of breath (charge 4 — common assault).

7 The applicant then grabbed the complainant by the wrist and dragged her into the second bedroom. In the second bedroom, the applicant forcefully removed the complainant’s pants, and then removed his own pants. He laid down on top of her and penetrated her vagina with his penis. The complainant begged him to stop, and the applicant told her to shut up and not to say anything. He placed a hand over the complainant’s mouth and the other hand over her neck (charge 5 — rape). The complainant felt like she was being strangled. The applicant ejaculated in the complainant’s vagina.

8 Sometime after this, the applicant forced the complainant’s mouth open with his hand and put his penis in her mouth (charge 6 — rape). He had his other hand around the complainant’s neck. She could not breathe and asked the applicant to let go of her neck. He did so and ejaculated into the complainant’s mouth. He told her to swallow his sperm, and slapped her on the face for holding his semen in her mouth, causing her to swallow.

9 Sometime later again, the applicant laid down on top of the complainant and penetrated her vagina with his penis (charge 7 — rape).

10 On the evening of 10 October 2014, the complainant reported the offending to a friend. The friend accompanied the complainant to the Werribee Police Station, where the matter was reported to police.

11 A forensic medical examination was then conducted at the Sunshine Hospital on 10 October 2014. At this examination, the complainant reported tenderness over various parts of her body, but there was no obvious bruising or injury. With respect to the genital examination, small abrasions were found on the inside of the bottom right labia minora and the right side of the bottom part of the vagina. While the doctor who examined the complainant concluded that the abrasions were caused by frictional trauma from a penetrative event, she could not say whether they were due to consensual or non-consensual sexual intercourse.

12 On 11 October 2014, the applicant was interviewed at the Footscray Police Station. He admitted to being at the complainant’s unit on the evening of 9 October 2014. He denied that any sexual acts occurred between himself and the complainant on 9 or 10 October 2014. He said that, while he was at the complainant’s unit, they shared instant noodles together, and happily conversed, with both of them laughing and smiling.

13 Subsequently, DNA testing of a forensic sample yielded evidence that the applicant was a contributor to sperm found in the complainant’s cervix and high vagina.

The trial

14 At trial, the complainant gave evidence^[2] in conformity with the Crown case. The friend to whom the complainant complained on 10 October 2014 and the medical practitioner who examined the complainant also gave evidence in accordance with the Crown case. The DNA evidence was read to the jury without the need for the relevant expert to attend and give oral evidence, and the informant also gave evidence.

15 During the course of the Crown case, the applicant’s record of interview was tendered. Various photographs, diagrams and telephone records were also tendered. In cross-examination, the informant agreed that the applicant had no prior or subsequent criminal history.

16 The applicant did not give evidence or call any witnesses. There was, notwithstanding the applicant’s record of interview, no dispute at trial that sexual intercourse occurred between the applicant and the complainant on the evening of 9 October 2014. The applicant’s case at trial (not to suggest that he carried any onus — a matter that the judge made clear to the jury on a number of occasions in her charge) was that the sexual intercourse was consensual.

17 At the conclusion of the evidence, there was a discussion between the judge and counsel about appropriate directions to be given to the jury. The judge asked the accused’s counsel whether she wanted her to give an Azzopardi direction concerning the accused not having given evidence.^[3] The accused’s counsel responded:

No, your Honour. He’s given a record of interview. I don’t make a request for Azzopardi, no.

18 Shortly after this discussion, the prosecutor gave her closing address to the jury. The prosecutor’s closing address took the balance of the day, concluding at about 3:30 pm. Towards the end of her address, the prosecutor said:

Just a couple of final points. Desperation, I say that [the accused] is desperate and that that’s evidenced by again, [defence counsel’s] efforts, valiant efforts to try and make something out of nothing.
But I say to you, [the complainant] is not discredited by any of the cross-examination. My learned friend has to defend what I say to you is the indefensible.^[4]

19 At the conclusion of the prosecutor’s address the judge sent the jury home, telling them that they would hear a defence address when they were fresh next morning. After the jury left the court, the following exchange occurred between defence counsel and the judge:

DEFENCE COUNSEL: Your Honour, can I just reserve my position just in respect of you had queried about the Azzopardi direction earlier today, but just a number of things that have fallen from the learned prosecutor will cause me to revisit that, in the event that I consider it necessary that they should be warned, it just seems to me that she may have traversed slightly over the line. But if I can just consider that overnight, and it may be that I request Your Honour to - - -
HER HONOUR: There's a famous old saying.
DEFENCE COUNSEL: Yes.
HER HONOUR: When in doubt - - -
DEFENCE COUNSEL: Yes, no, no, I appreciate that. I wasn't in doubt earlier, but these matters have just caused me - - -
HER HONOUR: I'll wait till I get the formal request.
DEFENCE COUNSEL: Thank you, Your Honour.
HER HONOUR: Tomorrow 10:30.

20 The next morning, defence counsel told the judge that she had revisited the Azzopardi issue and that she requested a direction to be given.^[5] After the prosecutor and defence counsel agreed with the judge on the terms of the appropriate direction, the following exchange occurred between defence counsel and the judge:

DEFENCE COUNSEL: All right. Your Honour, there's just one other matter that cause me some concern yesterday, and I've mentioned this briefly to the prosecutor.
HER HONOUR: Yes.
DEFENCE COUNSEL: There were comments made, fairly colourful comments made about near the end of the closing the defence making something out of nothing, [the accused] being desperate and ‘defending the indefensible’, and that is counsel defending the indefensible.
My concern — well, the biggest concern with those types of submissions is the risk that it reverses the onus. Because counsel, defence counsel now get up and have the task of defending the indefensible, as the prosecution has put to the jury, and it just doesn't strike me as being a fair submission to make, and it's one that has the risk of reversing the onus in the jury's mind. So I was concerned about various comments, including those.
HER HONOUR: I hear what you say but, look, I emphasise to the jury in my charge, and I'll look at them with a steely eye, that I'm the judge of the law and what I say about the law is what matters. And they will be told not just when I deal with the onus of proof, the charge, but with every charge you separately go to they're told again that the elements must be proved beyond reasonable doubt.
It's repeated to them again that there's no onus on the accused - - -
DEFENCE COUNSEL: Yes.
HER HONOUR: - - - and that happens right throughout the charge.
DEFENCE COUNSEL: Well, Your Honour, I would — I appreciate the indication and I would certainly request that it - - -
HER HONOUR: You can — there's nothing to stop you from saying in your closing, if you really want to bring it to their attention, it's up to you, there's nothing to stop you from saying ‘Remember the prosecutor said something in her closing address about the accused defending the indefensible. Her Honour will tell you, and as you're well aware by now, members of the jury, that the onus of proof right throughout‘ - - -
DEFENCE COUNSEL: Yes.
HER HONOUR: So there's nothing to stop you from doing that.
DEFENCE COUNSEL: Yes, Your Honour, it's just obviously far more - - -
HER HONOUR: If the prosecutor accepts that she said that.
DEFENCE COUNSEL: Yes.
HER HONOUR: Yes.
DEFENCE COUNSEL: It just obviously carries greater weight when it comes with the authority of Your Honour. So I hear what you say, I just wanted to draw it to your attention because it did cause me concern.

21 The prosecutor then made some submissions in reply, in which she said that she had ‘reiterated throughout [her] closing address for the prosecution, at least two or three times, that it is not for the accused to give evidence at all’. Nothing further was said by defence counsel and, at the conclusion of the discussion, the jury were brought into court and defence counsel then gave her final address.

22 After defence counsel addressed the jury, the judge charged the jury. During the course of her charge, the judge said on a number of occasions that the accused was not required to prove anything and that the onus of proving the accused’s guilt remained at all times on the prosecution. Additionally, the judge, in conformity with defence counsel’s request, gave directions in accordance with s 41 of the Jury Directions Act 2015. Specifically, the judge said:

You may have noticed that the accused did not give evidence in this case. That is his right. As I have told you, it is up to the prosecution to prove its case beyond reasonable doubt. The accused is not required to give evidence. The onus of proving the accused’s guilt always remains on the prosecution, regardless of whether the accused chooses to give evidence. This means the fact that the accused did not give evidence cannot be used as evidence against him. The fact is not evidence in this case. As I told you, you have to decide the case only on the evidence. The fact that the accused did not give evidence does not constitute an admission by the accused and may not be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution case in any way; it proves nothing.

23 No objection was taken to this part (or indeed any part) of the judge’s charge by counsel for the accused at trial.

An issue at trial

24 There was an issue at trial that concerned the complainant’s credibility. Telephone records tendered at trial showed that there was a call from the applicant’s phone to the complainant’s phone at 5:38pm on the evening in question (9 October 2014). The records show that the duration of this call was 7200 seconds (two hours). The complainant was cross-examined about the call as follows:

I suggest that later that day [9 October] at about 5:30, you were on the phone with him again. What do you say? – – – All I remember is that he ring me on, ah ― on that day he ring me five minutes before he came. That’s all.
I suggest that at 5:30 you were on the phone with him for two hours? – – – That is totally incorrect.
You have no memory of that phone call, do you? The two hour call? – – – No. I didn’t, um, I would say, ah, I remember, ah, that I haven’t had information ― ah, had ― I hadn’t had phone call with him on that date that much long (sic).

25 The existence of a two hour telephone conversation between the complainant and the applicant, commencing at 5:30pm on the evening in question (9 October 2014), was inconsistent with the complainant’s account of the events leading up to the applicant visiting her unit on that evening. The applicant’s case at trial was that such a conversation occurred. The complainant in her evidence, however, denied it.

26 In argument in this Court, counsel for the applicant initially asserted that the applicant told police in his record of interview that this was a two hour conversation with the complainant. A closer examination of the applicant’s record of interview, however, discloses that, while the applicant referred to having a telephone conversation with the complainant at some time after an earlier conversation that had occurred at 1:00pm, the applicant did not give any account of the length of the subsequent call. The only evidence as to the length of this call was, thus, the complainant’s evidence and whatever might be inferred from the telephone records.

27 In her final address, the prosecutor dealt with the two-hour telephone call at some length. In view of the applicant’s argument in this Court, it is necessary to set out that part of the prosecutor’s address in full. The prosecutor said:

If any of you have had a child or have a child or a grandchild, or a niece or a nephew who is six years old, you might think they get on the phone and start playing games on your phone, and she refers to that. She refers to it because it’s a mystery. I’ve asked her questions in re-examination, ‘Did anyone have access to your phone? Where did you leave your phone?’ I’m asking her to remember something from two years and eight months ago or thereabouts.
There’s a two hour call. What’s going on there? I can’t explain it. I’m not giving evidence. But it’s around a two hour call in the sense that it’s two hours as the informant said. Now that call was answered. It’s on for two hours and it was suggested because the people who — it was suggested [defence counsel] that they exchanged — I believe this is right — that they exchanged pleasantries and were talking for two hours.
Two hours at what some people call the witching hour, when you’ve got small children, 5:36 pm. She was ill at the time she says. She wasn’t feeling well, you may recall. Her son was at home with her. She had been at home all day.
But two hours. That’s in the context — that’s what defence say. They use that call. As I say, the prosecution doesn’t have to prove anything, but that call was made.^[6]
It’s a long time to talk, isn’t it? I mean you’ve listened to me for two hours, but it’s a long time to talk on the phone on a Friday night — Thursday night when — with your ex-boyfriend that you split up with a long time ago who’s stalking you; two hours.
Well she doesn’t have anything to say about that call. There was one point where she was asked about the calls and her eyes actually bulged, I don’t know whether — probably best that you didn’t have a transcript for the special hearing, I say, but look at it. The evidence is there if you need to go back and look at it. But her eyes just nearly popped out. She was just flummoxed to think what happened there. Well there are a number of things that can happen and her Honour will tell you about a legal principle called inferences, how you can draw inferences.
Well let me say this about the calls and particularly the two hour call. Just because there’s a call to a phone for two hours, does not lead to an inference that there was actually a conversation between [the applicant] and [the complainant]. In other words, there are other situations that could’ve happened. You can answer a call, but two hours I’m not sure which — well these are things, I’m not asking you to speculate, but these are things and common sense things for you. What I say is that doesn’t deviate from the fact of the rape and the serious offences that occurred on that night and on that day.

The application for leave to appeal against conviction

28 In his proposed ground of appeal against conviction, the applicant contended that a substantial miscarriage of justice had occurred ‘because of the intemperate, inflammatory and prejudicial’ closing address of the prosecutor. The principles governing prosecutors’ addresses in criminal trials are not in dispute in this case. The principles have recently been discussed by this Court in the decisions of Smith v The Queen^[7] and Finn v The Queen.^[8] In Smith, the Court referred to the undoubted requirement that a prosecutor’s address must deal with the issues in a manner which is scrupulously fair, and must not appeal to prejudice, nor mount an intemperate or emotional attack on the accused.^[9]

29 The applicant particularised his proposed ground of appeal as follows:

(i) Impermissibly and unfairly undermining the stature and role of defence counsel by contending that counsel was ‘defending the indefensible’;
(ii) Making a submission on a central credit issue that was not justified by the evidence adduced at trial;
(iii) By encouraging the jury to engage in emotive reasoning;
(iv) Using the complainant’s gender to buttress her reliability;
(v) Giving evidence from the bar table as to what is ‘usual’ in sexual offence cases;
(vi) Expressions of a personal opinion in the closing address that was marked with sarcasm;
(vii) Reversing the onus of proof by telling the jury that this is what the ‘accused asks you to accept’;
(viii) Highlighting the cultural background of the complainant on multiple occasions as relevant to the deliberations of the jury;
(ix) Putting forward a submission that contained the implication the accused may have been involved in criminal activity in other countries;
(x) Misconceived submission that a criminal trial is about the ‘truth prevailing’.

30 In relation to particular (i), the applicant relied upon that part of the prosecutor’s address (set out above) in which the prosecutor said that the accused was desperate and that defence counsel had to ‘defend what I say to you [the jury] is the indefensible’.

31 With respect to particular (ii), the applicant relied upon the prosecutor’s submission to the jury about the two-hour telephone call (again, extracted above).

32 In argument before us, counsel for the applicant submitted that the complaints made in particulars (i) and (ii) were the most egregious. Nevertheless, counsel maintained the complaints set out in his written case in respect of the other particulars — save for particular (v). In respect of particular (v), counsel accepted that the prosecutor made a submission that could have formed the basis for a direction under ss 46(3)(c)(ii) and (d)(ii) of the Jury Directions Act 2015. Those sections permit a trial judge to give, in an appropriate case, a direction that:

Experience shows that —
people who do not consent to a sexual act may not be physically injured or subjected to violence, or threatened with physical injury or violence; and
people who do not consent to a sexual act may not protest or physically resist the act.

33 With respect to particulars (iii), (iv) and (vi)–(x), the applicant relied upon the following extracts of the prosecutor’s address:

(a) particular (iii):

Imagine this young Burmese girl in that situation ...
[C]an you imagine how hard it is ... how hard it must be to talk about the most intimate part of your body in front of a group of strangers ...
Imagine having, as I say, to talk about the prospect of the most intimate parts of you in your personal life and your relationship knowing that 12 members of the community, including men, are listening, if you are a female.
So, imagine the stress, imagine the distress and imagine the embarrassment of going through that. Not for a week. Not for a day. But since 11 June 2014.

(b) particular (iv):

[The complainant], at the beginning of the interview, which I note was conducted and with all due respect to the gentlemen in this room, conducted by a male police officer and a male Burmese interpreter.
So she is there in that interview with two men she’s never met before, she’s 26, she’s young, I suggest to you ... and there she is giving her account of what happened to her sexually.
Further, you might have noted that when the informant, Detective Senior Constable Ebinger was giving evidence, that this investigation wasn’t just about the informant. There were a number of males and there was a female corroborator at the end of the accused’s interview, but as he relayed [the complainant] had to consult the first male officer, the second male relaying each time and we don’t go into the detail of what was relayed, but the third male officer and I believe it’s the fourth male officer and finally, she meets Mr Ebinger ... We didn’t call each and every one of those male or other police officers to give evidence in this matter.
What I say about that is very simple. That doesn’t change that she told the truth to you ... she’s still a witness of the truth and I say it was her credibility and reliability in this trial given what the prosecution says she’s been through is literally unbelievable in the sense that it is believable but she has shown great bravery, I suggest to you, in coming forward in this matter to give that evidence in the circumstances that she’s had to give that ... She knows well the trial is before 12 members of the jury and that there are people who are listening to her including the police officers she’s had to deal with.

(c) particular (vi):

Romantic perhaps, you might think, eating two minute noodles or instant noodles, having sex in the second bedroom on a mattress on the floor.

(d) particular (vii):

This is what [the accused] asks you to accept.

(e) particular (viii):

He cannot believe that his ex-partner, a young 26 year-old Burmese girl, came from a refugee camp via Thailand, has made a complaint and he is then, he actually says it at one point in the interview, that this happened.
Imagine this young Burmese girl in that situation ...
I’m saying that because this person comes from a cultural – use your common sense, cultural background of Burmese.

(f) particular (ix):

So I’m suggesting to you that [the applicant] was very clever about lying about not having sex in the interview. He says that he knows about the police and the law ...
When you watch the interview, he says he knows the law and he doesn’t say he knows the law in Australia though, but he says he knows it in other countries. So perhaps he did know what was coming.

(g) particular (x):

Let me say that [defence counsel] has made such a valiant effort, but it doesn’t prevent the truth from prevailing ...

34 Counsel for the applicant conceded that the complaints made under particulars (iii)–(x) would not on their own amount to a substantial miscarriage of justice entitling his client to having his convictions quashed. The complaints under these paragraphs were pursued as additional matters which, when combined with the complaints made in respect of particulars (i) and (ii) established a substantial miscarriage of justice entitling the applicant to succeed in his conviction application. That said, we see nothing of substance in the complaints made by the applicant in respect of particulars (iii)–(x). In our view, the sections of the prosecutor’s address sought to be impugned by those particulars were largely unexceptionable.

35 Specifically, it was legitimate for the prosecutor to ask the jury to assess the evidence of the complainant by reference to the complainant’s gender, age and background. Nothing impermissible was said by the prosecutor in this regard. While one might cavil with individual sentences of the prosecutor’s address by asserting that different language could have been used that might have eliminated any risk of the jury engaging in some form of improper reasoning process, that is not to say that such a sentence amounted to (either on its own or in combination with other sentences) a miscarriage of justice — let alone a substantial miscarriage of justice, as required by s 276 of the Criminal Procedure Act 2009 in order for an appeal against conviction to succeed.

36 Similarly, we do not accept that the prosecutor’s address contained any implication that the applicant may have been involved in criminal activity in other countries.^[10] One might imagine that if the prosecutor truly implied that the applicant had been involved in criminal activity in other countries, then those imbued with the atmosphere of the trial (trial counsel and judge) would have immediately detected and raised the issue. Nothing of that kind, however, occurred in the present case.

37 Next, we reject the applicant’s submission that the prosecutor invited the jury to engage in emotive reasoning.^[11] This submission was based upon the prosecutor’s repeated use of the word ‘imagine’ at the commencement of a number of sentences in her address. Read in context, however, the use of the word ‘imagine’ was no more than an invitation to the jury to think about the issue then being addressed by the prosecutor. Again, if in truth the prosecutor was asking the jury to engage in emotive (or speculative) reasoning, one might have expected trial counsel or the judge to have detected and raised the matter.

38 In oral argument, counsel for the respondent^[12] accepted that the prosecutor should not have said that defence counsel was ‘defending the indefensible’. As counsel pointed out, however, this was the only specific criticism of the prosecutor’s address made by defence counsel to the judge. Moreover, there was no application by defence counsel to discharge the jury and, after discussion, defence counsel was content with the course suggested by the judge — namely, the judge directing the jury (more than once, as she said she would) that the accused bore no onus and the onus remained at all times on the prosecution. Ultimately, the respondent submitted that, following the judge’s charge, to which no exception was taken, the jury could not have been in any doubt about who bore the onus.

39 We agree. When one reads the final addresses and the judge’s charge in context, it is not reasonably arguable that the jury was left in any doubt about who carried the onus. The jury was repeatedly told that it was the prosecution who carried the onus and that the accused bore no onus. While it would have been better for the prosecutor not to have said what she said about ‘defending the indefensible’, no miscarriage of justice was occasioned by this inappropriate remark.

40 We turn now to the applicant’s complaint about the prosecutor’s submissions concerning the two-hour telephone call. The applicant submitted that the prosecutor invited the jury to engage in speculation by positing a scenario (or scenarios) about which there was no evidence.

41 We disagree. The prosecutor specifically told the jury not to speculate about the facts surrounding the conversation. She reminded the jury, however, of the complainant’s evidence that there was no two-hour conversation. She then invited the jury to use their own life experiences as to possibilities that might explain the existence of a record showing an open phone line for two hours, in circumstances where the only person to give evidence of the duration of the call (the complainant) denied that a call of such length took place. Again, one might have expected that if those imbued in the atmosphere of the trial had thought that the jury was being invited to speculate or draw conclusions without any evidentiary foundation then the matter would have been detected and raised at trial. The failure of defence counsel to make any complaint at trial suggests that there was in truth no miscarriage of justice occasioned by this part of the prosecutor’s address.^[13]

42 The complaints made by the applicant about the prosecutor’s address are (apart from the matter conceded by counsel for the respondent) without foundation. Moreover, it is not reasonably arguable that anything said by the prosecutor (either alone or in combination) gave rise to a substantial miscarriage of justice. It follows that the application for leave to appeal against conviction must be refused.

The application for leave to appeal against sentence

43 In his proposed ground of appeal against sentence, the applicant contended that the individual sentences imposed, orders for cumulation, total effective sentence and non-parole period were manifestly excessive in that they failed to take into account and/or give adequate weight to mitigating factors.

44 In her reasons for sentence, the judge identified the mitigating factors relied upon by the defence as follows:

The applicant had no criminal history and there had been no subsequent offending.
The applicant had a history of persecution and displacement, leading him to come to Australia as a refugee in 2011.
There had been a delay, with the offending occurring on 9 October 2014.
There was a likelihood that the applicant’s permanent residency would be cancelled and that he would remain in immigration detention after his sentence until his status was resolved.
The applicant had a previous good work history and favourable prospects of rehabilitation.^[14]
Custody would be onerous for the applicant because it would be the applicant’s first time in custody, his ability to communicate was limited ‘due to the language barrier’ and he had no contact with his children overseas, and ‘the uncertainty regarding [his] immigration status’.^[15]

45 In sentencing the applicant, the judge said that she took into account all the mitigating factors referred to by the applicant’s counsel, together with various character references presented on the applicant’s behalf.^[16] Specifically, the judge said:

In sentencing you, I have taken into account all the mitigating matters referred to by your counsel and the character references presented on your behalf. You have no prior or subsequent convictions. It was apparent from the character references that you were a man of previous good character. Given your previous good character and work history, I accept that your prospects for rehabilitation are relatively favourable. In this respect, I note that Mr Cummins regarded your risk of reoffending as being low to moderate.
You are a man who has experienced hardship and persecution in your country of birth. No doubt, when you came to Australia, you hoped for a better and trouble-free life. I accept and have taken into account that you will find imprisonment difficult, given the matters mentioned earlier in this sentence. I have also given some weight to the delay in this matter.
While I have taken all these mitigating matters into account, general deterrence remains an important sentencing consideration. Domestic violence is a problem in our community and others must be deterred from offending against their ex-partners in the way you did on this occasion. In offending in this way, you not only abused your position of power, but you also committed a grave breach of trust.
It is apparent from the complainant's victim impact statement that she has been greatly affected by your offending. The complainant is constantly in fear and scared because of what happened to her. She has trouble trusting people and is embarrassed. While she was planning to work prior to the offences, she has now lost this aspiration and she is concerned about the impact of your offending on her young son.
Pursuant to the Sentencing Act, a person is a serious sexual offender if they have been convicted to two or more sexual offences, for each of which they have been sentenced to a term of imprisonment. In this case, you will be sentenced as a serious offender on Charge 7 or rape.^[17]
Pursuant to the Sentencing Act in determining the length of the sentence, the court must have regard to the protection of the community as the principle purpose for which the sentence is to be imposed. The court may impose a larger than proportionate sentence to the gravity of the offence. The prosecutor has not asked for such a sentence. I will not be imposing a sentence longer than that which is proportionate to the gravity of your offences.
Taking into account the principle of totality, there will be some concurrence between the offences in this case.

46 In oral argument, counsel for the applicant emphasised the applicant’s age at the time of sentencing (54), previous good character and good work history, coupled with the increased burdensomeness of imprisonment caused by the applicant’s inability to speak English, and the likelihood that the applicant would be deported at the conclusion of his sentence, as requiring a lesser sentence to be imposed upon him than that imposed by the judge. It was submitted that once proper consideration was given to the matters in mitigation, the sentences, orders for cumulation and non-parole period were all wholly outside the permissible range.

47 We reject that submission. This was very serious offending committed against the complainant in her own home where she was entitled to feel safe. The judge was alive to all of the relevant matters in mitigation. Of significance, is the fact that the sentences imposed upon the applicant were imposed after a trial. While the applicant was entitled to plead not guilty, and is not to be punished or penalised for doing so, the absence of a plea of guilty deprived him of the substantial mitigatory benefit that would otherwise have been available if he had pleaded guilty.

48 As has been said many times before, manifest excess is a difficult ground to make out. In order to establish manifest excess, an appellant must demonstrate that the sentence was ‘wholly outside the range of sentencing options’ available to the judge. In essence, what must be demonstrated is that the sentence imposed was so excessive as to bespeak error in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence given by the judge.^[18]

49 The maximum terms of imprisonment for the applicant’s offences of rape (3 charges), making a threat to kill and common assault were 25 years, 10 years and 5 years respectively. When one has regard to the circumstances of the applicant’s offending, the maximum penalties and all of the mitigatory matters relied upon by the applicant, it is simply not possible to say that any of the sentences or orders imposed upon him were wholly outside the permissible range.

Conclusion

50 The application for leave to appeal against conviction will be refused, as will the application for leave to appeal against sentence.

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^[1] To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

^[2] Her evidence in chief was given in a VARE (Video and Audio Recorded Evidence): see ss 366 and 367 of the Criminal Procedure Act 2009. Cross-examination and re-examination was conducted during a special hearing: see s 370 of the Criminal Procedure Act. This was because the complainant had previously been diagnosed as having a cognitive impairment: see s 369(2) of the Criminal Procedure Act.

^[3] See Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 (‘Azzopardi’).

^[4] Emphasis added.

^[5] During the course of discussion, reference was made by the judge to the statutory direction now found in s 41 of the Jury Directions Act 2015.

^[6] The prosecutor had earlier said to the jury that the Crown had to prove its case and the accused did not have to prove anything. In any event, no complaint was made at trial or in this Court about this sentence.

^[7] [2018] VSCA 139 (‘Smith’).

^[8] [2018] VSCA 228 (‘Finn’).

^[9] See Smith [2018] VSCA 139 [73]-[79], and in particular at [74]. See also Finn [2018] VSCA 228 [54] and the authorities referred to therein.

^[10] Cf particular (ix).

^[11] Particular (iii).

^[12] Not counsel who appeared at trial.

^[13] See R v Luhan [2009] VSCA 30 [37]; R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 479–80 [160]–[163]; MB v The Queen [2012] VSCA 248 [25], [33], [41]; NJ v The Queen [2012] VSCA 256 [43]–[47]; Cavanagh v The Queen [2016] VSCA 305 [100]–[102]; Arico v The Queen [2018] VSCA 135 [131]–[144].

^[14] DPP v [Henson] [2017] VCC 1568 (‘Reasons’) [15].

^[15] Ibid [16].

^[16] Ibid [23]. As to the references, see [17]–[19].

^[17] Ibid [23]–[29].

^[18] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; McPhee v The Queen [2014] VSCA 156 [9]–[11]; Hayes v The Queen [2017] VSCA 285 [47].

Authorities Cited14

Referred to (14)