The Court of Appeal (President Maxwell, Justice Weinberg and Justice Whelan) today dismissed an appeal against a sentence for rape, holding that the judge below had not taken into account an irrelevant consideration, and that the sentence was, if anything, lenient rather than manifestly excessive.
The appellant had been sentenced to a term of six years’ imprisonment with a non-parole period of four years. The Court said that higher sentences were required for those instances of digital rape that were, objectively speaking, particularly grave.
The appellant offended against a young woman, a complete stranger, in the early hours of a Sunday morning. The appellant saw the victim and some friends leave a night club. He followed them in his car with his headlights turned off. Once the victim was alone, he waited for her to cross to a remote and unlit corner of a car park. As she passed by, he twice pushed her to the ground, overcoming her resistance with force.
The Director of Public Prosecutions had submitted that the Court ought to express the view that sentences for digital rape were too low. The Court upheld the Director’s submission on current sentencing practice for digital rape, stating:
It is clear that the general run of sentences for digital rape is well below what is necessary to reflect the objective gravity of that offence, and the moral culpability of the offender.
The Court concluded that
there must be an upward adjustment in sentences for offences of digital rape committed in circumstances that are broadly similar in objective gravity to the offence of which the appellant was convicted.
The Court agreed with the sentencing judge’s characterisation of the offending as ‘an upper mid-level example of the offence of rape’. The Court noted the presence of aggravating factors including premeditation, the use of force and, given the time and location of the offending, the victim’s particular vulnerability. It noted also the finding below that the appellant posed a moderate to high risk of re-offending, his complete lack of remorse and the serious impact that the offence had had upon the victim.
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.