R v Tory[2022] QCA 276

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Kelly J.
2. [2]
   DALTON JA:  I agree with the orders proposed by Kelly J and his reasons.
3. [3]
   KELLY J:  The appellant was tried in the District Court on an indictment containing one count of rape.  On 29 July 2021, he was convicted and sentenced to imprisonment for a period of six years with his parole eligibility date set as 29 July 2024.  The appellant appeals his conviction on the ground that it was unreasonable or cannot be supported by the evidence.  In the alternative, he seeks leave to appeal his sentence on the basis that it is manifestly excessive.

Background matters

4. [4]
   During the morning of 27 December 2019, the complainant and the appellant had been at a residential address in Rockhampton.  The complainant was there to inspect a car which had been advertised on social media for sale for $750.^[1]  The car belonged to the appellant’s friend.  In the preceding days, the complainant and the appellant had exchanged non-descript messages over social media in relation to the car.  They had met each other for the first time that morning.  The complainant was 19 years old.  The appellant was 42 years old.  He admitted that, whilst they were at the address, he had penetrated the complainant’s vagina with his penis.  The issue at the trial concerned consent.
5. [5]
   The trial was conducted over four days.  The Crown called four witnesses, the complainant, C, H and Detective Senior Constable Mahony (“Detective Mahony”).  C had received text messages from the complainant during the morning of the incident and had picked her up from the address.  The complainant and H had been in an on and off relationship for 18 months.^[2]  They had recently broken up but were still catching up regularly.^[3]  H had seen the complainant later on the day of the incident.^[4]  Detective Mahony had responsibility for investigating the complaint.
6. [6]
   The complainant’s evidence had been pre-recorded and was played to the jury on day one of the trial.  C, H and Detective Mahony gave evidence on day two.  The appellant did not call or give evidence.  A video recording of an interview he had given to police during the evening of the day of the incident was tendered in the Crown case.  Addresses and the summing up occurred on day three and the jury then retired to consider their verdict.  At 10.11 am on day four, the jury provided a note which stated “We have discussed the case and we cannot get to a decision where 12 jurors agree; guilty or not guilty.  We feel that no amount of discussion will sway jurors either way.”  The trial judge gave the jury a Black direction.^[5]  At 11.54 am on day four, the jury returned the guilty verdict.

The alleged offending

7. [7]
   On the morning of the incident, the appellant and the complainant had exchanged messages on the social media platform on which the car was advertised for sale.  In those messages, the complainant explained that she did not have a car and was unable to travel to the address where the car was located.  The appellant had offered to give her a lift in his car, had picked her up and taken her to that address.  The complainant described that trip as taking roughly ten minutes and involving small talk about where they worked and lived and “a bit about him being in a relationship, in and out, at the time.”^[6]  The complainant accepted that during the trip the appellant had not said anything that made her feel unsafe or which was sexual in nature.^[7]  During the trip, the complainant asked the appellant for the address where the car was^[8] and sent text messages to C asking him to meet her at that address.^[9]
8. [8]
   The complainant’s evidence of the incident was as follows.  When they arrived at the address, the appellant parked his car at the front of the house, on the left hand side of the driveway behind the car for sale, which was parked under the house.  She looked at the car for sale and started it.^[10]  That process “didn’t take very long.”^[11]  They discussed whether the appellant might reduce the price to $500.^[12]  She called C to find out where he was and was told that he was about 10 or 15 minutes away.^[13]  She told the appellant that C was about 10 minutes away.^[14]  The appellant asked her if she wanted to have a cigarette and the pair smoked cigarettes near his parked car.  The appellant asked her whether she would like to see where some horses and greyhounds were kept at the back of the house and the pair walked to the back door and looked out at the yard.  As they stood in the doorway, he turned to her and said “cute.”^[15]  She did not know how to react and said “thank you.”^[16]  He then said “fuck it” and kissed her quite aggressively,^[17] in the sense of forcefully,^[18] her recollection being that he “shoved his tongue in.”^[19]  The complainant leant away and the appellant stopped.^[20]  He then said “I hope that was okay” or “Was that all right?” and she replied “Not really.  I have a partner.”^[21]  He said “No-one has to know, right?” and she replied “Not exactly.  I have a partner.”^[22]  She was asked in cross examination whether she was lying to the appellant when she said that she had a partner.  She accepted that she was technically lying but was referring to H, her on and off again partner of the last 18 months.^[23]
9. [9]
   The complainant described the appellant as then grabbing her wrist and pulling her in a direction under the house, telling her that he had something to show her.^[24]  At this point she did not struggle or pull back or say anything.^[25]  In an area where there were was a tool bench, he leant in for another forceful kiss and held the complainant firmly.^[26]  She accepted that the grabbing did not hurt.^[27]  He initially held both of her biceps but then switched to holding one arm.  She said “no.”^[28]  With one arm wrapped around her torso, he shoved her around towards the work benches.^[29]  He pulled her pants and his own pants down using his free hand.^[30]  She attempted to break free.^[31]  He was much bigger than her in both height and build.^[32]  She told him to stop a few times and then did not say anything else.^[33]  As she was leaning into the work bench, he had one arm wrapped around her torso.^[34]  He penetrated her vagina with his penis, which she described as not being “easy to do.”^[35]  After he penetrated her, he placed his free hand across her mouth.^[36]  After a couple of minutes, he ejaculated inside her.^[37]
10. [10]
    During his interview, the appellant provided the following account of the incident.  The pair arrived at the address at approximately 10.20 am.^[38]  They were at the address for about 20 to 25 minutes before they had sex.^[39]  The pair “just made eye contact and before we knew it we kissed each other”.^[40]  The kissing lasted about five minutes.^[41]  There was no tongue involved.^[42]  The kissing started near the car for sale and “we worked over to” near the work bench.^[43]  There was no “forcement”.^[44]  He said “have we got time”.^[45]  She replied “yeah”.  The appellant then recalled “before we knew it we were into it”.^[46]
11. [11]
    They went to the work bench area because “it was not in the open where people could see”.^[47]  They fondled each other.  He asked, “would you like to turn around?”.^[48]  She turned around and pulled her pants down.^[49]  They then had sex.  He inserted his penis “very slowly” because he considered that “the right thing to do”.^[50]  He did not say anything to her at this initial stage.^[51]  During the intercourse he held her hips.  Her right hand was on the top of the work bench.  He did not wear a condom and there was no discussion about “protection or anything like that”.^[52]  During the intercourse, he asked her if she wanted him to “pull out”.  She said, “no, that’s fine, I’m on the pill.”^[53]  He made this aside to the police: “If she wasn’t on the pill I’ll tell you what, I wouldn’t be bloody doing it ‘cause I’ve got three kids now and I don’t want no more’”.^[54]  The intercourse lasted a few minutes.  He observed of its duration that it was “like the old saying wham, bam, thank you ma’am”.^[55]  The complainant never said “no” but she also had never said “yes”.^[56]  The intercourse had “just happened”.^[57]
12. [12]
    Towards the end of the interview, Detective Mahony asked the appellant whether “at any stage … did it look like she was fearful of you?”^[58]  The appellant replied “No, she was happy, cheery, she was laughing”.^[59]

The immediate aftermath

13. [13]
    The complainant could not precisely recall what had been said, or had happened, in the immediate aftermath of the alleged offending.  She recalled that the appellant had said something like “shouldn’t your friend be here soon?”.^[60]  She thought the pair had moved back to the appellant’s car and “had another smoke”.^[61]  At this point, she had sent text messages to, and received text messages from, C.^[62]  The complainant said that at the time she sent the texts “I was still a bit shaky at that stage and I was doing my best to remain calm.”^[63]  The texts were sent at around 10.28 am and read as follows:^[64]

14. [14]
    The complainant explained that when she had texted “Like soot”, she was using an expression that meant “like, go really fast, please”.^[65]  Her account of what then ensued was as follows.  C arrived at the address in his car.  His cousin was in the back seat.  C got out of his car and had a “quick”,^[66] “really brief”^[67]  look at the car.  He said to the appellant that there were a few things wrong with the car and “wrapped things up pretty quickly”.^[68]  She accepted that C had said words to the effect “… there’s oil leaks.  We’re going to check out other cars”.^[69]  The appellant went towards his car.  The complainant and C went and got into C’s car.  As the appellant pulled out of the driveway and started driving off, the complainant broke down in tears.^[70]  C came around to her side of his car and hugged her.  She continued to cry and couldn’t get any words out.^[71]  She felt unable to speak.^[72]  She said “… to best explain it as I could at the time, I made the sex symbol with my hands”.^[73]  She had pressed together the tips of her thumb and index finger to create a circle and then inserted a finger from her other hand into the circle.^[74]
15. [15]
    C drove her to the house where she was living.  She didn’t stop crying until they were close to home.^[75]  She remained “really upset” and “didn’t want to tell much”.^[76]  He stayed for a few hours,^[77] and they had a discussion.  She could not recall the specific detail of the discussion but said she had explained to him that what had happened was not consensual.^[78]  She said, “I gave him a brief idea of what happened, but I wasn’t ready to go into much detail about it”.^[79]  In cross examination, she relevantly said “I didn’t explicitly say that I was raped, but I did explain to him that it wasn’t consensual.”^[80]  She was taken to her police statement which had not mentioned this conversation.  She accepted that it was possible that this conversation may have occurred at a later time after she had spoken to police.^[81]
16. [16]
    C recalled that, when he arrived at the address, the complainant had seemed “a bit jumpy, a bit weary”, was keeping to herself and was not talkative.^[82]  He said she broke down in tears in his car as the appellant drove away.^[83]  He recalled that, at that point, “She got really upset, really emotional, started crying”.^[84]  He had hugged her.^[85]  She had not been able to speak.^[86]  She had used the hand gesture involving the thumb and index finger being pressed together to form a circle and the index finger on her other hand being inserted into the circle.^[87]  He understood that gesture to have been referencing a penis entering a vagina.^[88]  Once he had driven her home, he had stayed there for “a few hours” to keep her company.^[89]  In cross examination he accepted that he had arrived at the complainant’s house at “about 11.30 am”^[90] and had stayed for “about 3 hours”.^[91]  He had assumed that the complainant had been raped because she broke down, was unable to speak and made the hand gesture.^[92]  The complainant never told him that she had been raped.^[93]  After he left the complainant’s home, he had passed on to H his belief that the complainant had been raped.^[94]
17. [17]
    Some parts of C’s evidence differed from the complainant’s evidence.  Notably, he said that he had performed a general inspection of the car which had taken about 15 to 20 minutes.^[95]  He recalled that during the trip to her home, the complainant had been quiet and had kept to herself.^[96]  Once home, he said there was no discussion about what had occurred that morning.^[97]

Events later that day

18. [18]
    Later that day, H arrived at the complainant’s house.  The complainant recalled that H arrived at her home and later took her to the police station and then the hospital.^[98]  She had received a telephone call from the police, but she had not contacted the police before that call.^[99]  She had not asked H or C to contact the police.^[100]  She was at the hospital until very late, around 11 pm.^[101]  H then drove her home.
19. [19]
    H gave the following evidence.  He had visited the complainant at her home around lunchtime or during the early afternoon on the day of the incident.^[102]  He observed her to be “distraught, in tears”,^[103] trembling and shaking.^[104]  As she stroked her hair, it was falling out.^[105]  He asked her “Did [the appellant] rape you?’  She replied “Yes”.^[106]  She told him that the appellant had grabbed her and raped her “around the side” and had one arm around her in the area of the biceps and one arm over her mouth.^[107]  Under cross examination he accepted the following matters.  Prior to visiting the complainant, he had received information from C and had then telephoned the police to report that the complainant had been raped.^[108]  At the time he reported the rape, he had not spoken to the complainant.^[109]  He had previously provided a police statement which had stated that, when he visited the complainant, she had been crying and they had a conversation.  The police statement described that conversation in terms that “I asked [the complainant] if it was this [appellant] guy.  She said yes.  [She] agreed to go to the police to report it.”^[110]  By way of contrast with his evidence in chief, the police statement did not include any other details of the incident.^[111]  In cross examination, he suggested that he had told the police about details which were not included in his police statement.^[112]  He had sat in on part of the complainant’s interview with the police after having been requested to do so by the complainant and the police.^[113]  He had been in the interview when the complainant had been “explaining to the police basically things that had happened.”^[114]
20. [20]
    During the afternoon on the day of the incident, at around 3 or 4 pm, Detective Mahony had obtained the complainant’s version of events.^[115]  Arrangements were made for the complainant to attend the hospital to undergo an examination involving the use of a sexual assault investigation kit.  Detective Mahony interviewed the appellant at about 7.10 pm later that night.  He recalled that the complainant had mentioned to him some “tenderness on her right arm”.^[116]  He accepted that he had said to the appellant during his interview that he had observed two small bruises on the complainant’s right arm.  He said that his memory of what he had observed would have been better on that day than when he was giving evidence.^[117]  Whilst interviewing the complainant, H had entered the room and sat in for part of the interview.^[118]  Detective Mahony asked him to leave once he was identified as a preliminary complainant.^[119]

Other matters

21. [21]
    It was admitted that on the day of the incident, after the complainant and the appellant had separately left the scene, they exchanged the following messages on the social media on which the car was being advertised for sale:

22. [22]
    She was cross examined about why she had not blocked the appellant after the incident but had been prepared to continue to exchange messages with him.^[121]  She answered “I did reply to a few of his messages saying it was fine because I did want the conversation to end.  I didn’t want him texting me anymore.  I hoped that if I was like, ‘Yeah. It’s fine. It’s great. It’s cool’, then he would just leave it.”^[122]  She explained that she did not like blocking people, felt bad about it if she did and preferred for conversations to die out.^[123]  It was put to her that it was unusual for her to have adopted that approach in relation to a man who had just raped her.^[124]  The complainant answered “I was in an abusive relationship for three years … So if that says a lot about who I am, then we can go with that”.^[125]
23. [23]
    The complainant gave evidence that at the time of the incident she was on contraception which comprised an Implanon bar in her arm.^[126]  She had never been on the contraceptive pill.^[127]  Within 24 hours of the incident, she noticed that she had bruises on her arms.^[128]  She believed that she did not have the bruises prior to the incident.^[129]  Photos of the bruises had been taken some days later on December 30.^[130]  She rejected the suggestion that she only went through with the complaint because of the involvement of H and C.^[131]

The appeal against conviction

24. [24]
    The only issue at trial was consent.  Much of the context in which the alleged offending occurred was not in contest.  The complainant did not know the appellant and had first met him that day for the purpose of inspecting the car.  He was twice her age and physically much bigger than her.  The intercourse occurred under the house and involved the complainant being positioned facing the workbench and being penetrated by the appellant whilst he stood behind her.^[132]  He did not wear a condom.  The intercourse was very brief, lasting for some two minutes, and concluded with the appellant ejaculating inside the complainant.^[133]
25. [25]
    Against this uncontested background, the appellant contends that the guilty verdict was unreasonable or cannot be supported by the evidence.  The appellant assumed a heavy burden to make good this contention.  In R v Miller^[134] the court observed:

“It is fundamental that it is not sufficient for an appellant merely to show ‘discrepancies’ or ‘inadequacies’ in the evidence or to show that the evidence is ‘tainted’ or ‘otherwise lacks probative force’.  It is necessary to demonstrate that such features appear in the evidence ‘in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.”^[135]

26. [26]
    Later, the court continued:^[136]

“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduce the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.  The mere identification of weaknesses in the prosecution case is not enough to sustain the ground.  As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecutions ‘weak point’ is often brushed aside specifically by a jury satisfied of the honesty of the prosecution witness.”

27. [27]
    The jury, having found the appellant guilty, must have formed the view that the complainant was a reliable witness.  They were entitled to form that view essentially for these reasons:

    1. (a)
       The complainant gave a clear and coherent account of the incident and its immediate aftermath.
    2. (b)
       Her evidence was not impugned by cross examination in any material way.  Indeed, the appellant did not point to any aspect of her cross examination which contradicted or materially undermined her evidence in chief.
    3. (c)
       Parts of the complainant’s testimony were corroborated by C.  He recalled that she had broken down in tears in his car as the appellant had driven away, he had hugged her, she could not speak and she had used the hand gesture to indicate a penis inside a vagina.
    4. (d)
       The appellant had said to the police that the complainant had been “happy, cheerful and laughing”.  That was never put to the complainant.  It was also not put to C.  To the contrary, his unchallenged evidence was that, upon his arrival at the scene, he had observed her to be “a bit jumpy, a bit weary”, keeping to herself and not talkative.
    5. (e)
       The evidence included contemporaneous texts sent by the complainant to C which revealed her panic, distress and fear for her safety.  It was open to the jury to construe these texts as consistent with the complainant’s account of what had transpired.
    6. (f)
       It can be accepted that the complainant did not actually say to C at the scene that she had been raped.  That is not properly regarded as a failure on her part.  She was distraught, unable to speak and used a hand gesture to indicate to C that sex had occurred in circumstances where she had already texted him to say that she was not safe and needed to get away from the appellant.  This Court has previously observed that complainants of sexual assault can be expected to approach the task of confiding their stories in different ways depending upon the nature of their relationship with the person to whom they are speaking, the circumstances surrounding the conversations and many other possible factors.^[137]
    7. (g)
       The complainant gave a plausible explanation for the content of her replies to the appellant’s messages sent later on the day.
    8. (h)
       The appellant’s social media messages after the incident contained apologies and statements that he “felt sick” about what had occurred.  The Crown tendered those messages as evidence of the appellant’s guilt.^[138]  It was up to the jury to decide the use and weight to be afforded those messages but one available use was to construe them as admissions of wrongdoing and as being consistent with the complainant’s account of what had transpired.
    9. (i)
       The appellant’s police interview was unconvincing and significant aspects of his account strained credulity.  The jury would have appreciated that he was describing spontaneous, unprotected sex with a stranger half his age, under a house, against a workbench in circumstances of known urgency because of the pending arrival of C.  In one instance, he described that encounter as “wham, bam, thank you ma’am”.  In other respects he described himself as having been careful to penetrate the complainant “very slowly” and as courteously asking her “would you like to turn around?”.  His interview did not provide any basis for impugning the complainant’s version of the offending.
28. [28]
    The appellant relied upon four grounds for impugning the verdict as unreasonable or not supported by the evidence.  First, he argued that H’s evidence was unreliable because he had attended some part of the complainant’s police interview and had assumed that she had been raped.  His evidence was also said to be unreliable as it contained inconsistencies.  Second, there was no corroborative evidence of physical injuries.  The incomplete hospital records contained no evidence of bruising, cuts or injuries.  The photos of bruises were not contemporaneous and contained evidence of only faint bruises.  Third, the evidence of C and H was inconsistent because, according to their recollection of when they had been at the complainant’s home, they both should have been there at the same time.  Fourth, the complainant’s account of the offending was not credible as she described one of the appellant’s arms as being around her torso and the other as around her mouth.  That description meant that it was not physically possible for the appellant to have also pulled down her pants and his own pants.
29. [29]
    None of these grounds have substance.
30. [30]
    As to the first ground, the judge’s summing-up reminded the jury that there had been submissions made by the appellant’s counsel to the effect that H’s evidence was contaminated and should be disregarded.^[139]  Ultimately, it was for the jury to decide what weight they afforded H’s evidence.  The jury were entitled to reject his evidence, but any such rejection would not have created an inconsistency or discrepancy or reason to doubt the complainant’s evidence.  The complainant’s credit did not depend upon the acceptance of H’s evidence.
31. [31]
    As to the second ground, it was open to the jury to conclude that the rape described by the complainant would not necessarily have caused obvious bruising or physical injury.  The complainant described a rape in which she was held firmly, but in a manner which was not painful.  The penetration had been described by her as “not easy to do” but was accepted to have been for a short period.  The incomplete hospital records and the evidence of faint bruising were matters raised with the jury by the appellant’s counsel.  The appellant’s counsel addressed the jury on the basis that the full results of the medical testing at the hospital were unknown.^[140]  The appellant’s counsel ultimately sought to explain away the evidence of faint bruising on the basis that it must have occurred when the complainant was grabbed by the arm and was not inconsistent with consensual sex having occurred.^[141]  The conclusions to be drawn from the state of the medical evidence and the evidence of faint bruising were a matter for the jury.  However, because of the nature of the rape described by the complainant, one not involving substantial gratuitous violence other than the violence involved in the act of rape, the absence of corroborative evidence of physical injury did not provide a basis for impugning the complainant’s credibility.
32. [32]
    As to the third ground, the evidence about when C and H had arrived at, and departed from, the complainant’s home after the incident was very general in nature and not the subject of specific challenge or contradiction.  That evidence provided a proper basis for finding that C had departed the home before H arrived.  The state of that evidence did not demand a finding to the effect that they had each been present at the complainant’s home at the same time.
33. [33]
    As to the fourth ground, the complainant’s evidence was that, at the point when the appellant had shoved her around so that she was facing the workbench, he had only one arm around her torso.  She gave clear evidence that he had initially used his free hand to pull down her and his pants and then later placed that hand over her mouth.  There was nothing implausible about that account.
34. [34]
    I would dismiss the appeal against conviction.

The appeal against sentence

35. [35]
    In order to succeed on the ground that a sentence is manifestly excessive, the applicant was required to show that the sentence was unreasonable or plainly unjust such that it might be inferred that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.^[142]  The weight to be given to relevant considerations was always a matter for the judge in the exercise of the sentencing discretion.^[143]
36. [36]
    The judge sentenced the appellant on the basis that the complainant’s evidence was accepted.  The judge took account of the fact that the appellant was a mature person with a criminal history involving a term of imprisonment but who had not previously committed offences of a sexual nature.  The judge observed that the appellant had provided “a patently false, self-serving and contrived account to the police”.^[144]  The judge was concerned about the appellant’s rehabilitative prospects.  The Crown submitted an appropriate sentence was in the vicinity of six and a half to seven years’ imprisonment.  The appellant’s counsel had sought a sentence of five years’ imprisonment.

37. [37]
    In R v GAR,^[145] Muir JA undertook a review of sentencing decisions of this Court in cases involving the offence of rape and concluded that:^[146]

“…sentences for rape do not tend to exceed 10 or 11 years unless accompanied by substantial violence.  Where the violence is not substantial and there is a timely guilty plea, a sentence of less than 10 years is the norm.  No rule of thumb, of course, can be applied.  The circumstances of each case must be addressed”.

38. [38]
    That is a helpful starting point for two reasons.  The first is that the authorities tend to distinguish between cases of rape which involve and do not involve substantial violence.  The second is that each case falls to be considered by reference to its particular facts and to cite ranges for offending can be problematical.  There are statements of this Court to the effect that the rape of a young woman in a public place, not involving a brutal bashing, and committed by an offender with no similar history who pleads guilty, might attract sentences from between 7 to 10 years.^[147]  However, there are also statements which caution against the use of a “range of  seven to 10 years” for the “rape of a stranger without violence”.^[148]
39. [39]
    The salient facts relevant to the exercise of the sentencing discretion in the present case were these.  The rape was committed by a mature offender with a criminal history not involving sexual offending, but which was sufficiently serious to have led to a previous term of imprisonment.  The rape was opportunistic.  It did not involve the use of a weapon, a brutal bashing or substantial violence over and above the act of violence involved in the act of rape.  The rape involved one, short episode of unprotected penetration.  It occurred in a secluded area.  The rape caused significant distress to the complainant.  There was no remorse and there were doubts about the prospects of the appellant’s rehabilitation.  The appellant ran to trial and was thus not entitled to have a reduction made to his sentence to reflect a plea.

40. [40]
    Having outlined those facts, in my consideration, two authorities have particular relevance.
41. [41]
    In R v Dowden,^[149] a 19-year-old offender, with no previous history of sexual offending, opportunistically raped a 30-year-old, intoxicated woman as she walked home from a nightclub. He told the victim that he had a knife, although it was unclear whether that was in fact the case.  He was convicted after a trial and sentenced on the basis that there had been an implicit threat of violence, but no actual violence used, save for the act of rape itself.  The rape involved unprotected, vaginal penetration.  The appellant had not demonstrated remorse or co-operation.  This Court imposed a sentence of eight years imprisonment and made no declaration as to parole eligibility.
42. [42]
    In R v Stirling,^[150] the appellant was sentenced after a trial to nine years’ imprisonment for rape.  He was 30 years old, had been drinking with the victim and had returned to her unit in the early hours of the morning.  He had held her down, licked her genital area and had sexual intercourse with her.  The offending was considered to have not involved significant violence.  He had a criminal history for armed robbery but no history of sexual offending.  He was on parole at the time and did not plead guilty.  He was sentenced to seven years imprisonment.
43. [43]
    It has not been demonstrated that the judge overlooked any factor which his Honour was bound to take into account in the exercise of his discretion.  Having regard to R v Dowden and R v Stirling, and the salient facts of the subject offending, the applicant has failed to demonstrate that there is any proper basis upon which this Court could be driven to conclude that there has been some misapplication of principle by the sentencing judge.
44. [44]
    The application for leave to appeal against sentence should be refused.
45. [45]
    The orders I would propose are:

1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.