R v Enright[2023] QCA 89

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 5 September 2022, the appellant pleaded guilty to two counts of supplying a dangerous drug and not guilty to three counts of rape.  On 7 September 2022, a jury found the appellant guilty of the three counts of rape.
2. [2]
   On 8 September 2022, the appellant was sentenced and ordered to serve an effective head sentence of five years imprisonment, suspended after serving two years, six months, for an operational period of five years.
3. [3]
   The appellant appeals his convictions and seeks leave to appeal his sentence.
4. [4]
   The appellant relies on one ground for the appeal against conviction, namely, that the trial judge erred by failing to adequately warn the jury about the risk of disproportionate weight to the complainant’s evidence following a replay of recorded preliminary complaint evidence, causing a miscarriage of justice.
5. [5]
   Should leave be granted to appeal his sentence, the appellant relies on one ground, namely, that the sentence was manifestly excessive in all the circumstances.

Background

6. [6]
   The appellant was born in 1981.  He was aged 39 at the time of the offences and 40 at the date of his sentence.
7. [7]
   Each count of rape involved the same female complainant.  They had met over social media and communicated for a number of weeks, before the commission of all three offences, in the course of one night.

Evidence

8. [8]
   The complainant gave evidence that she met the appellant through Instagram on 30 August 2020.  At that time, the complainant had recently separated from her husband.
9. [9]
   The complainant said she developed a romantic interest in the appellant.
10. [10]
    On 30 September 2020, the complainant met the appellant outside his workplace.  That was the first time she had seen him in person.  They returned to her house.  The appellant stayed the night and they had consensual sexual intercourse.  The complainant said they planned to meet the following day.
11. [11]
    On the evening of 1 October 2020, the complainant said she went to the appellant’s house.  Prior to doing so, she attended a local hotel with a friend and had one drink.
12. [12]
    The complainant said she arrived at the appellant’s house at 10.44 pm.  They chatted about their day and spoke about “taking MD”.^[1]  The complainant said that was MDMA.  She consumed the drug in a glass of water.
13. [13]
    The complainant said she had previously taken MDMA, but not often.  She estimated she had sniffed or inhaled the drug twice.  The drug made her happy and relaxed on those occasions.
14. [14]
    The complainant said on this occasion she could feel the drug working after about half an hour.  She was happy and relaxed.  At that point they went into the bedroom where the complainant had consensual sexual intercourse with the appellant.
15. [15]
    During that act, the complainant said the appellant asked her if she wanted some more of the drugs, and the complainant replied, “Yeah.  Okay”.^[2]  The complainant said at that stage she felt fine and in control, “just happy, just chilled”.^[3]
16. [16]
    The complainant said they got dressed.  The appellant provided her with the drug in water, in a cup.  They both consumed the drug.  The complainant said the second lot of the drug had the same effect.  They then went outside and had some cigarettes, before going back into the bedroom and again having consensual sexual intercourse.
17. [17]
    The complainant said that whilst they were having consensual intercourse, she was “feeling good, like relaxed”.^[4]  However, she then started to get a bit anxious.  She sat up and when the appellant offered her some more drugs, she said, “No thanks, no”.^[5]
18. [18]
    The complainant said she went to have a cigarette on the balcony.  At that stage, she still felt in control, but wanted some fresh air.  She asked the appellant to make her a glass of water.  He brought out a drink in a shaker.  It was a highly sugary drink, in a full cup.  The complainant drank three-quarters of that cup.  The complainant said when she questioned its sugary taste, the appellant said, “Yeah, I took this – I go to the gym”.^[6]
19. [19]
    The complainant said she went back into the bedroom, put down the cup and commenced cuddling the appellant.  The complainant said she was continuing to feel anxious and she sat up.  She was anxious because of the time; she knew it was getting late.  The complainant had to pick up her son or be at home for him by 6.00 am.
20. [20]
    The complainant said she made it clear to the appellant that she needed to sleep, as it was 3.00 am.  The complainant said the appellant was rubbing her thigh and said, “I’ll relax you”.^[7]  The complainant said she replied, “No”, that she wanted to sleep and she moved to the end of the bed, in a top and tail result.
21. [21]
    The complainant said she purposely laid on the other end of the bed with her feet at his end of the bed.  The complainant said she fell asleep.  She next remembered “coming around, confused in [a] way because my body, like, I could feel water, it was, like wet, it was, like, dripping on me”.^[8]
22. [22]
    The complainant said she felt that her body was rocking.  She could not move her body and her eyes were closed.  She said the appellant was having sex with her.  His penis was inside her.  The complainant said she could not move, but could feel that her left leg was being hoisted up.
23. [23]
    The complainant said that she did not want to be having sex with the appellant, but that she could not move or say anything.  She could hear a song playing, but could not feel or hear anyone.
24. [24]
    The complainant said she next felt the appellant touching her.  His fingers were inside her vagina.  She said her ankles were together and her knees were opened out “like Pap smear position”.^[9]  The complainant said she did not put herself in that position.  She could not move her body at that point in time.  The complainant said she did not want the appellant to put his fingers in her vagina.
25. [25]
    The complainant said that whilst the appellant was touching her, she could hear the appellant moaning, making sexual noises near her head.  She tried really hard to open her eyes.  When she opened them “the smidgest” of amounts, she saw the appellant’s silhouette.  He was masturbating near her head.
26. [26]
    The complainant said the appellant moved and she felt her body being rolled onto her stomach.  The appellant then pulled at her hips, pulling them up.  It was a struggle, as they would not stay up.  The complainant said she could hear the appellant huffing and grunting, in frustration.
27. [27]
    The complainant said she next felt the appellant’s penis inside her.  She felt him ejaculate.  At no point prior to that time had he ejaculated that night.  The complainant said she did not want the appellant to have sex with her at that time.
28. [28]
    The complainant said after the appellant ejaculated he dropped her hips.  The complainant said she was not able to move her body at all during that episode.
29. [29]
    The complainant next remembered being pushed by the appellant quite aggressively, waking her up.  It was 4.48 am.  The appellant was saying she needed to get to her son.  The complainant said she went to the bathroom, got dressed and left for home.
30. [30]
    The complainant said after driving home, she went to sleep.  She then had a telephone call from her ex-husband, telling her he was dropping her son off at the house.  The complainant said she put her son into bed and went back to sleep.
31. [31]
    The complainant said she spoke that morning to her friend, Laura, with whom she had had a drink at the hotel the previous evening.  She first messaged via a text.  The complainant said she was not able to talk to her friend at that time.  She was “really disorientated with just my emotions”.^[10]
32. [32]
    The complainant said she drove to Noosa to meet her parents and on the way spoke to her friend.  It was between 10.00 and 10.30 am.  Initially, she spoke about the previous evening and how confused she felt.  She told her friend what she remembered happening that night.
33. [33]
    The complainant said she stayed in Noosa overnight.  She did not talk to her parents about what had happened to her the previous evening.
34. [34]
    The complainant said the next day she rang a helpline, before going to the Caboolture Hospital.  That hospital referred her to the Royal Brisbane Hospital.  There, she spoke to police and told them what had happened.
35. [35]
    The complainant said on 5 October 2020, she made a complaint to her local police station.  At that time she provided police with her mobile telephone.  It contained text messages between her and the appellant.
36. [36]
    Those text messages were placed before the jury.  Relevantly, they recorded a text message at 8.26 pm on 1 October 2020 from the complainant, asking the appellant what he was doing that night.  He responded that he was unsure and that he had just had “some M”.^[11]  Thereafter, there was the following text exchange:

Complainant:

“Ooh with out me”.

Appellant:

“You said no yesterday lol”.

Complainant:

“Lol thst was yesterday.”

Appellant:

“Haha ok.. fair call.

Do you want some tonight”.

Complainant:

“Lol [emoji] yeah babe but I just gotta pick up my son tomorrow at 6 in morning”.

Appellant:

“Thats cool my ex is coming here early to train anyway

I cant drive now tho lol”.

Complainant:

“Ok wel I can.”

Appellant:

“Ok well you ll have to come here than…”.^[12]

(Errors in original).

37. [37]
    The complainant agreed that on 2 October 2020, there was an exchange of text messages from 10.58 am into the afternoon, in which the complainant mentioned “feeling rough”.  The complainant said it was hard to explain how her body felt.  It really ached, it was sensitive and she felt really out of it.  She had never had that experience before, taking MDMA.
38. [38]
    The complainant accepted there were further text exchanges on 3 and 4 October 2020.  On the latter date, there was a reference to a “hoodie”.  The complainant said when she left the house, she was feeling so cold that the appellant offered her his hoodie, but said he wanted it back.
39. [39]
    On the afternoon of 4 October 2020, there was the following exchange:

Appellant:

“Do you want to come over tomorrow afternoon sometime?

Ok babe.. look I didn’t force you to have all the md you took it yourself.. you could have stayed as long as you wanted but unfortunately for you you needed to get your son.. don’t worry should the jumper it.. thanks for making me feel bad about what I thought was a good night.  Bye!

Don’t worry about the jumper kerp it!”

Complainant:

“Corey I did enjoy most of the night until I was so fucked up I just remember waking up, going in and out of being asleep and you were fucking me?  I’m not sure how to feel about it cause yes I was soo high but I didn’t no what was going on.”

Appellant:

“Babe, we funked all night from begini g to end even tho you were high you were still talking to me

So do you want to catch up again or not.. i get the feeling you don’t and if not that’s OK.. but you just need to tell me!

If you don’t want to, thats fine, but unfortunate as I thought we really both liked each other?  If you don’t want to just say so please”.

(Errors in original).

40. [40]
    At 6.08 pm on 4 October 2020, the complainant sent a text in response:

“Please don’t contact me again”.

41. [41]
    Thereafter, the appellant sought to contact the complainant by text message on 7, 8 and 10 October 2020.  The complainant did not respond to any of those text messages.
42. [42]
    The complainant said that when she sent the text message, “remember waking up, going in and out of being asleep, and you were fucking me”, that was the first time she had spoken to the appellant about what had happened that night.
43. [43]
    In respect of his reply, “We fucked all night from beginning to end.  Even though you were high, you were still talking to me”, the complainant said that when they were having consensual sex they were communicating normally, and that everything was fine “until from the point when I said no during the evening…”.^[13]
44. [44]
    In cross-examination, the complainant accepted she ingested the MDMA voluntarily and did so twice.  She agreed that was not the first occasion she had had MDMA.  She had also taken other recreational drugs in the past, including cocaine, though she was not a frequent user.  She agreed that at committal, she had accepted she had used MDMA on numerous occasions.  The complainant corrected that the “numerous occasions” referred to the taking of recreational drugs, including cocaine.  She agreed she preferred cocaine over MDMA.
45. [45]
    The complainant accepted the sexual activity on the night went on for many hours “on and off”.^[14]  The complainant said there were two occasions of consensual activity with breaks in between.  She agreed that at committal she had said there were three occasions.
46. [46]
    The complainant denied she was hallucinating that evening.  She had her wits about her to that extent.  She accepted she was happy to have MDMA at the appellant’s house and that it did not make her feel weird or woozy after the first occasion and she still felt comfortable and in control after the second occasion.
47. [47]
    The complainant accepted that in her conversation with her friend while she was driving to Noosa, she told her friend that she was “having fucking weird flashbacks” and that she was “tripping out”.^[15]  The complainant also agreed that she told her friend “he was changing in the face”, but denied it was a form of hallucination.^[16]  The complainant said she was talking about a change in his facial expressions during sex.  She agreed she also told her friend that he was changing his face “like, old, and his mouth went black like scary film”.^[17]  The complainant said during sex the appellant was “making weird, like just opening his mouth”.^[18]
48. [48]
    The complainant agreed she told her friend that the appellant did not walk her to the door or the gate the next morning.  She agreed she only partially remembered driving home.  She accepted that when she texted the appellant later that day about feeling really rough, she was of the view at that time that she had been raped.  She accepted that in that text message she had referred to the appellant as “babe”, and that she had, in another text message, offered to drop off his hoodie.  She agreed she would not have returned it to him; that was made up.
49. [49]
    In re-examination, the complainant said she used “babe” for everybody, and that if she was “honest, I was petrified.  So I played it cool because I didn’t want him – and I was scared”.^[19]
50. [50]
    Laura gave evidence that the complainant was her best friend.  She had known her for 11 years.  They were in contact every day.
51. [51]
    Laura said she went to a local hotel with the complainant after they finished work on 1 October 2020.  The complainant had one drink, before leaving the hotel.
52. [52]
    Laura said on the following morning she tried to call the complainant at around 7.00 am.  They called each other every day around that time.  She did not get through to the complainant.  The complainant responded at around 9.30 am, by text.  They exchanged a few text messages and Laura tried to call the complainant a few times.
53. [53]
    Laura gave the following preliminary complaint evidence. At around 10.30 am, the complainant telephoned her and they discussed the previous evening.  The complainant was in a very panicky state and emotional.  The complainant told her she had been raped.  She said she had been given a drink and felt a bit funny.  She said she was sexually assaulted throughout the night.  The complainant said she was lying on her belly and her body went numb and she was a dead weight.  She was going in and out of consciousness and that she was being lifted from her hips, into a sexual position, and someone was having sex with her.  The complainant said the man was going in and out of the room, stopping and leaving and then coming back and carrying on.  The complainant said the man was penetrating her.
54. [54]
    Laura said they also had a conversation about the complainant having taken MDMA at the beginning of the night.  The complainant said she started to feel tired and went to lie down.  She had asked for a drink.  She was told it was a “pretty workout drink”.^[20]  The complainant then went to lay down, as she was not feeling well.  That was when her body went numb.  The complainant said she could recognise what was going on, but could not talk or move her body in any way.
55. [55]
    In cross-examination, Laura agreed that the central conversation she had with the complainant was that the complainant had been raped that night.  Laura agreed that in her statement to police she did not use that word.  That statement was given on 31 March 2021.
56. [56]
    Laura agreed she was insistent that the complainant went to the hospital and to police.  She agreed that in the text messages she had received from the complainant, the complainant had referred to weird flashbacks and that the man’s face was changing “like old” and that his mouth went black “like scary film”.^[21]  Laura said the complainant did not say much about those statements.  The complainant just said it was strange.  Laura said she did not ask the complainant whether that was just her perception because “it was factual, because that is what she was describing”.^[22]
57. [57]
    A police officer gave evidence of a conversation she had with the complainant on 4 October 2020 at the Royal Brisbane and Women’s Hospital.  That conversation, which was preliminary complaint evidence, was recorded and played to the jury.^[23]
58. [58]
    In that conversation, after outlining the circumstances in which she went to the appellant’s house and had consumed MDMA, the complainant said:

“…It was fine, um we did have sex and that was consensual, I, that was fine.  I then started to feel a bit like woozy, a bit weird, and he said, would you like another one?  I said, um I said yes, I did say yes.  And then um after that, I was like, whoa, like I really don’t feel well, like um I remember bein’ like hot at the time, and he was like, it’s 3 o’clock.  I was like, I’ve really gotta go to sleep, I feel really anxious, I, and I remember like my jaw, I was like that, like shaking.  Um, and he’s like, do you want another one?  And I was like no, no, I need to rest.  And he was like, I can bring it to you.  I was like, no.  So I remember gettin’ up, barely, then I walked out onto the balcony and I got some fresh air and I was still shaking, and he was like, oh I’ll get you a drink, it will help you.  And I d-, I seemed, ‘cause I’d said no to that, um the top of whatever, the M-D-M-A, I was like, no more of that, he, he brought me over like a um, the protein shaker cup and it was full and I remember sipping out of it.  Oh, that’s sweet.  He’s like, oh yeah, that’s the pre, pre-workout, and I was like, I don’t, yeah, I was like, okay, just drank it, and I remember it being really sweet.  I was like, I really, I need to go to sleep.  So I laid in the bed and he was tryin’ to like make a move on me and I was like, no, and I remember going top and tail to make the point of, no, I’m going to sleep.  Um, and I must have fallen asleep.  Um, sorry.  Then I woke up, ‘cause I could feel dripping.  I, it was wet, but I woke up, but I couldn’t move.  Um, t-, ah I couldn’t move, and I couldn’t wake up, but I remember just like really tryin’ to concentrate.  Um, and I must have opened my eyes like just a fraction, and I could feel my legs bein’ propped up, and then I was like, I must have just, couldn’t open them anymore and I was clicking, I was like, oh he’s having sex with me.  Um, sorry.  Um, and then he, he, I must have [INDISTINCT], and then I was like um, and then I remember um a light, I just remember light, but I couldn’t open my eyes or move.  Um, but I remember feeling like [INDISTINCT] position, um and I could hear noises, and I c-, knew what the noise was because I was literally j-, I felt I was facing it and I could hear, and I could feel myself moving.  Um, and I, I was like, open your eyes, and I was trying, and I opened, I must have opened them like a smidge, but it was enough to see a silhouette of his body there, and he was um masturbatin’ right there, and I [INDISTINCT] was clicking what he was doing um to me.  But when my eyes opened, like this is when the click, I was like, oh I was gettin’ scared ‘cause he moved, like as soon as my eyes opened, like a little bit, I saw him like freak a bit and he moved out of my, my vision.  But I couldn’t, I couldn’t even follow his body with my eyes.  I must have fallen back asleep.  Um, and then I remember him tryin’ to roll me over and I remember tryin’ to hold my hips and pull me up and I was like, oh no, and I tried to be heavy but I couldn’t talk or move.  And I was really trying and I could hear him, like being frustrated ‘cause I wasn’t c-, like cooperating [INDISTINCT], but like going up.  And I, when it, and I think he had his, like I think, oh I think had his phone with him as well and I’m just, oh, and he was making weird noises and, and [INDISTINCT] he finished, and I remember being really cold and laying on the bed and um it, it must have been 5 o’clock ‘cause he just like pushed me and I remember startling and jumpin’ up and th-, just jumped outta bed.”^[24]

59. [59]
    Later, the complainant said that the appellant had:

“…done it numerous times of when I was waking up.  The first time was when he was tryin’ to hold, like he was holdin’ my legs up and he was, he was havin’ sex with me.  The second time, p-, my m-, like from what I know happened, was when he was touching me and himself, and then the other time was when he was tryin’ to do it from behind, and that’s how he finished, because I, that’s when I, this is what I remember, that I just stopped, it stopped, and I don’t remember anything else after that”.^[25]

60. [60]
    The police officer was not cross-examined about the content of the preliminary complaint and agreed the complainant was invited to make a complaint to the local police station in the future, if she wished, and did subsequently make a complaint.
61. [61]
    A doctor gave evidence that the effects of MDMA were dependent upon its purity and contents.  Different substances could affect different people differently.  The absorption rate can also vary between individuals.
62. [62]
    In cross-examination, the doctor agreed MDMA was in the hallucinogenic category of psychoactive substances.  The side effects can include anxiety, a feeling of numbness and a level of unconsciousness.  Recollection can also be variable and inaccurate; there may be periods of patchy recollection or periods where there might be complete blackouts and no recall at all.
63. [63]
    At the end of the Crown case, the appellant chose not to give or call evidence.

Trial

64. [64]
    The trial commenced on 5 September 2022.  The Crown closed its case at about 11.00 am on 6 September 2022.  Addresses were completed in approximately one hour.
65. [65]
    The trial judge’s summing-up commenced at 12.21 pm on 6 September 2022.  It continued after the luncheon adjournment and the jury retired to consider its verdict at 2.25 pm.  The jury continued to deliberate that afternoon, although, there were redirections sought in relation to the provision of some documents relevant to the trial judge’s directions on the law.
66. [66]
    On the afternoon of 7 September 2022, the jury provided two notes.  The first related to an issue personal to one juror only.
67. [67]
    The second note was in the following terms:

1. "(1)
   Can we please have a copy of the text message conversation between complainant and her friend, Laura, referred to in court.

2. (2)
   We would like to rewatch [the complainant]’s initial police interview at the hospital.

3. (3)
   Can we please have a copy of police interview transcript in the deliberation room for reference.

4. (4)
   Can you please help clarify belief of consent, being honestly, reasonably, but mistaken, specifically, the aspect of reasonably, where there was a history of consensual sex, but one party – person – does not have the cognitive capacity to give consent at that time.”

68. [68]
    After discussing the note with counsel, the trial judge redirected the jury that as there was no text message conversation tendered in a written form, it was not possible to give them a copy.  However, the trial judge read to the jury the evidence that had been given on that topic by Laura, and, at the request of counsel for the appellant, by the complainant, including the cross-examination and re-examination on that issue.
69. [69]
    Having undertaken that course, the trial judge then had replayed to the jury the recording of the complainant’s conversation with police at the hospital.  Before doing so, the trial judge provided each juror with a copy of the transcript of that conversation, reminding them of his previous direction that the tape was the evidence, not the transcript.
70. [70]
    Once the recording concluded, the trial judge redirected the jury as follows:

“…I’ll just remind you of the direction I gave you in relation to that evidence.  That is the evidence of what [Laura] says she was told by the complainant, and the evidence of what the complainant said to the police on that taped conversation.  That evidence may only be used as it relates to the complainant’s credibility, consistency between the account as repeated by [Laura], or as you’ve seen on that recording of the complainant’s complaint, and the complainant’s evidence before you, is something you may take into account as possibly enhancing the likelihood that her testimony is true, but you can’t regard the things said in those out-of-court statements by the complainant as proof of what actually happened.

In other words, evidence of what was said on either of those occasions may, depending on the view you take of it, bolster the complainant’s credit because of consistency, but it doesn’t independently prove anything.  Likewise, any inconsistencies between either or both of those accounts and the complainant’s evidence before you may cause you to have doubts about the complainant’s credibility or reliability.  Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for you.

Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for you to consider, if you find that there are any, for you to consider in the course of your deliberations.  But the mere existence of inconsistency or inconsistencies does not mean that of necessity you must reject the complainant’s evidence.  Some inconsistency is to be expected because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.  So that’s the potential relevance and the way that you would treat the evidence from those two sources.

And for that reason, amongst others, I am unable to accede to the request in question 3 – that is, to have a copy of the transcript with you in the jury room.  That is not something I can allow to occur, unfortunately:  one of the reasons being the transcript is not the evidence, as I’ve now told you on a number of occasions.  So I’ll have the bailiff collect that transcript from you, but hopefully having heard the tape again, that should answer whatever questions you had…”.

71. [71]
    The trial judge then went on to direct the jury in relation to question 4.

Consideration

Conviction appeal

72. [72]
    In the context of whether the jury should be provided with the transcript of the preliminary complaint evidence recorded by police when attending on the complainant in hospital, the trial judge had observed that the preliminary complaint evidence with police was “spectacularly similar to a 93A statement, and notwithstanding any direction that I give them, it seems to me that there is a danger that in the jury room they will lose sight of the fact that it does not actually constitute evidence of that which occurred”.^[26]  In those circumstances, the appellant submits there was an obligation on the trial judge to remind the jury of the cross-examination of the relevant police officer and of the defence case.  Further, there was an obligation to direct or caution the jury about the risk of giving disproportionate weight to that evidence, after seeing a recording of her version of events for a second time.
73. [73]
    In support of that submission, the appellant relies on the force of evidence in an audio‑visual form.^[27]  The appellant also relies upon the principle that when replaying such evidence, there is a necessity to ensure balance, by reminding the jury of the cross-examination and re-examination of the complainant witness.^[28]
74. [74]
    There is no doubt that evidence in an audio-visual form has a force, particularly when compared with evidence only available in documentary or transcript form.  However, what may be necessary to provide an appropriate balance in the replaying of that type of evidence, must be considered in the context of the trial as a whole, including its length and the other evidence.
75. [75]
    For example, the risk of disproportionate weight being given to such replayed evidence is heightened in circumstances where an accused has given evidence at trial, or where a complainant has given evidence in cross-examination which places the content of that audio-visual evidence as requiring correction.  Those were the circumstances in R v SDL.
76. [76]
    The present case does not have either of those features.  Further, immediately prior to playing that audio-visual evidence that was preliminary complaint evidence only, the jury had read to it the relevant evidence given by the complainant’s friend in respect of the preliminary complaint to her, and the evidence given by the complainant in cross-examination and re-examination, relevant to the preliminary complaint evidence.  The limitations on the use of preliminary complaint evidence were emphasised by the trial judge at the same time by repeating the directions that had been given earlier about the use to be made of preliminary complaint evidence.
77. [77]
    Those steps, in the circumstances of the relatively confined nature of the evidence which formed the Crown case, balanced the replaying of the complainant’s preliminary complaint evidence.
78. [78]
    The trial judge’s careful repetition of the use to be made of preliminary complaint evidence rendered the giving of the direction now sought by the appellant unnecessary in all of the circumstances.  There was no miscarriage of justice by reason of the trial judge not reminding the jury, at the same time, of the danger in giving the replaying of the audio-visual evidence disproportionate weight.
79. [79]
    The appeal against conviction fails.

Sentence

Sentencing remarks

80. [80]
    The sentencing judge recorded that the offending conduct arose out of one evening’s events and was committed at a time when the applicant was 39 years of age, with no relevant criminal history.  Further, the two counts of supplying the dangerous drug, MDMA, occurred in circumstances where the drug was supplied with the knowledge and consent of the complainant and not for the purpose of trying to overcome her will or render her defenceless.
81. [81]
    The sentencing judge recorded that the most serious of the offences, the three counts of rape, had been committed after the complainant had voluntarily attended the applicant’s home, and there had been consensual sexual activity on two separate occasions earlier that evening.
82. [82]
    The sentencing judge accepted the applicant should be sentenced on the basis he had an honest belief that the complainant was consenting, but said such a belief was not held on reasonable grounds, even remotely.  The complainant was sleeping at the relevant time, had indicated there was no desire to continue with sexual activity, and was in a vulnerable state due to the drugs taken by her.
83. [83]
    The sentencing judge found that the applicant took advantage of the complainant’s vulnerable state and continued until he had achieved his desired effect.  The sentencing judge noted that behaviour had had a significant impact upon the complainant, adversely affecting her psychologically, emotionally and socially.
84. [84]
    The sentencing judge found the applicant had not demonstrated any remorse and that general deterrence and denunciation were relevant considerations on sentence, although given the applicant’s lack of criminal history, personal deterrence was of less significance as the behaviour could rightly be described as being out of character.
85. [85]
    The sentencing judge recorded that the applicant had a good work history, having served for a number of years in the Australian Armed Forces, and that he had consistent employment thereafter and was well regarded in the workforce.
86. [86]
    The sentencing judge found that the offending conduct did not involve other aggravating features such as violence, although that was not unusual in offences involving the sexual assault of a sleeping person.  There was, however, no filming of the activity and the drugs had not been provided for sexual purposes.  It was also relevant that the applicant and the complainant had engaged in consensual sexual intercourse on two occasions earlier that evening.
87. [87]
    The sentencing judge found the fact that two of the counts involved penile penetration of particular significance, in the seriousness of the offending conduct.  The sentencing judge found that a sentence of three years imprisonment, as submitted for by the applicant’s counsel, would be inadequate, but that a sentence not less than five-and-a-half years, as submitted for by the prosecution, was not warranted.
88. [88]
    The sentencing judge imposed an effective head sentence of five years imprisonment for the two most serious rapes, and lesser concurrent periods of imprisonment for the remaining counts.  The sentencing judge found that as the applicant did not present as a person needing continuing supervision, it was appropriate to suspend the sentence, after serving 50 per cent of that period of imprisonment for an operational period of five years.

Consideration

89. [89]
    The applicant submits that in circumstances where he had no relevant criminal history, an excellent work history and was otherwise of good character, and the rapes were committed where there was an honest belief as to consent, albeit not reasonable, an effective head sentence of five years imprisonment was manifestly excessive.  However, a consideration of the applicant’s criminality, even allowing for the mitigating factors, supports a conclusion that the sentences were not manifestly excessive.
90. [90]
    Whilst it was relevant in sentencing the applicant to have regard to the circumstances that the applicant held an honest, but not reasonable, belief that the complainant was consenting, the three acts of rape were committed by the applicant against a vulnerable complainant, in circumstances where the applicant was clearly taking advantage of that vulnerability to satisfy his own sexual desires.
91. [91]
    That circumstance, together with the fact that there were three occasions of rape, rendered the applicant’s offending a serious example of rape, warranting a sentence of five years imprisonment.
92. [92]
    Further, a consideration of the comparable authorities^[29] supports a conclusion that an effective head sentence of five years imprisonment fell within a sound exercise of the sentencing discretion.
93. [93]
    Whilst Simmons and Miller concerned rapes committed without the existence of an honest belief, each involved only a single count of rape, not multiple counts, as in the present case.  Further, although ABG and RUJ each received sentences of four years imprisonment, after trial, neither of those cases concerned penile rapes to the point of ejaculation.
94. [94]
    The sentences imposed were neither plainly unreasonable nor unjust.

Orders

95. [95]
    We would order:

1. The appeal against conviction be dismissed.
2. Leave to appeal against sentence be refused.