Summary of judgment in the matter of Ivanovic (a pseudonym) v The Queen
STEFAN IVANOV (A PSEUDONYM) v THE QUEEN  VSCA 219
Summary of Judgment
9 October 2019
The Court of Appeal (Justice Emerton and Justice Croucher) yesterday allowed an appeal against sentence by the applicant (named using a pseudonym to protect the identity of the victim) and has reduced the sentence imposed upon him on two charges of rape. The circumstances of the offending were described by the Court as exceptional.
In May 2017, the applicant discovered evidence that JL, his partner of 22 years and the mother of his three young children, had been having an affair for the last five years. The applicant completely lost self-control and raped JL. Sometime later, after discovering more lurid detail of the affair, he lost control and raped JL again. Each offence was committed in a degrading and punitive manner.
The day after the second rape the applicant took the exceptional course of reporting his actions to a mental health clinician. That clinician, in turn, alerted police, to whom the applicant confessed. He was charged and pleaded guilty at the earliest practical stage. A plea hearing was held and the applicant was sentenced in the County Court.
JL had had no intention of reporting the offending to police. She gave sworn evidence in support of the applicant at the plea hearing. The Court of Appeal observed that there was not the slightest suggestion that JL had been overborn, and that in fact she had given every indication of being self-assured and of having very firm and considered views about what had happened and what ought be done about it. She considered the police involvement to have been ‘ridiculous’. She gave evidence that she hoped the applicant would be released as soon as possible.
The judge in the County Court imposed a total effective sentence of nine-and-a-half years’ imprisonment with a non-parole period of seven years.
The Court of Appeal allowed the appeal on a number of grounds, including that the sentence imposed was manifestly excessive. It found that the circumstances of this case were extraordinary, and required an equally extraordinary response. It held that while the legislature commands that prison sentences be imposed for rape, and while there is no denying that the applicant behaved unspeakably twice, the prison sentence ought to have been much shorter than would ordinarily be required. This was primarily because of two exceptional factors: first, the applicant’s self-reporting and confession, coupled with the reality that, but for his decision to come forward, he would never have been prosecuted; and, secondly, JL’s remarkable and powerful evidence.
The Court resentenced the applicant to a total effective sentence of four years’ imprisonment with a non-parole period of two years.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment .