Baumann (a pseudonym) v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2025 0044
MARK BAUMANN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]The applicant’s name has been anonymised to protect the identity of the complainant.

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JUDGES:	ORR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	22 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 232
JUDGMENT APPEALED FROM:	[2025] VCC 50 (Judge Doyle)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Summary offence of intentionally distributing intimate image of another person where distribution is contrary to community standards of acceptable conduct – Offender also convicted of rape, indecent assault and other offences against intimate partner – Offender distributed videos of rape during the offending to people known to intimate partner – Whether sentence of 14 months’ imprisonment, with 7 months cumulated on sentence for rape, is manifestly excessive – Whether judge gave adequate weight to mitigating factors – Profound childhood disadvantage and intellectual disability – Current sentencing practices – Leave to appeal refused.

Summary Offences Act 1966, ss 40, 41DA.

Clarkson v The Queen (2011) 32 VR 361; Young v The Queen [2016] VSCA 149; R v Pham (2015) 256 CLR 550; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Gaunt v The Queen [2019] VSCA 241; DPP v Hartland [2019] VCC 628.

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Counsel
Applicant:		Mr GJF Chisholm
Respondent:		Mr J Johnston
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA:

The applicant seeks leave to appeal his sentence on a rolled up charge of intentionally distributing an intimate image of another person in circumstances that are contrary to community standards of acceptable conduct (the ‘distribute intimate image charge’). The offending occurred on 16 July 2023 as part of a prolonged and violent assault by the applicant on his intimate partner, during which the victim was raped five times, physically assaulted, and threatened with a knife. The victim was around 23 weeks pregnant at the time.
On 14 December 2024, the applicant pleaded guilty to charges of common assault, making a threat to kill, a rolled up charged of rape, and three related summary offences which included the distribute intimate image charge. On 3 February 2025, he was sentenced as follows:

Charge	Offence	Maximum Penalty	Sentence	Cumulation
Indictment P11519168
1	Common assault[2]	5 years	12 months	None
2	Rape[3]	25 years	9 years and 6 months	Base
3	Make threat to kill[4]	10 years	12 months	None
Related Summary Offences
4	Distribution of intimate image[5]	2 years	14 months	7 months
5	Assault with a weapon[6]	2 years	9 months	2 months
6	Contravention of family violence intervention order[7]	2 years	6 months	1 month
Total Effective Sentence:		10 years and 4 months
Non-Parole Period:		7 years and 2 months
Pre-sentence Detention Declared:		568 days
Section 6AAA Statement:		Total Effective Sentence: 13 years and 9 months Non Parole-Period: 11 years

[2]Contrary to common law.

[3]Contrary to s 38(1) of the Crimes Act 1958.

[4]Contrary to s 20 of the Crimes Act 1958.

[5]Contrary to s 41DA of the Summary Offences Act 1966, as inserted by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, s 25.

[6]Contrary to s 24(2) of the Summary Offences Act 1966.

[7]Contrary to s 123(2) of the Family Violence Protection Act 2008.

The sole proposed ground of appeal is that the sentence imposed on the distribute intimate image charge, including the order for cumulation, is manifestly excessive. The applicant relies on various mitigating circumstances and on current sentencing practices.
For the reasons that follow, I consider that the sentence, including the order for cumulation, is not manifestly excessive.

Circumstances of the offending

In July 2023, the applicant had been in a relationship with the victim for between 4 and 6 months. The victim had moved into the applicant’s home in Moe in April 2023. The victim described their relationship as being good at first, but then progressively declining. The applicant became increasingly jealous of the victim speaking to other people, and would regularly go through her phone in an attempt to find evidence of her cheating on him, or evidence that he was not the father of her unborn child.
On 15 July 2023, the day before most of the offending occurred, the applicant and the victim arrived back in Moe after attending a funeral in Albury. The applicant was on bail at this time, having been placed on bail on 27 June 2023. When the applicant and the victim got off the train in Moe, the applicant got into an argument with a man named Graham Kellett. The victim went to the carpark, where her mother was waiting in a car. She told her mother that the applicant was drunk and that she had ‘had enough’ and was ‘sick of it’. After the applicant joined them a short time later, they all went to Coles, where the victim and her mother went inside while the applicant waited by the car. The victim’s mother asked her what was happening. The victim sent her mother a series of four text messages conveying that the applicant had been physically assaulting her while he was drunk. She subsequently deleted the messages so that the applicant would not see them.
Later that evening, after the applicant and the victim had returned home, the applicant used methamphetamine. He looked at messages on the victim’s phone. The victim went to sleep at around 1 am or 2 am, and woke to the applicant talking to himself while holding her phone and writing something on a piece of paper.
At around 10 am on 16 July 2023, the applicant gave the victim a piece of paper containing a list of males, some of whom were friends of the victim and others of whom were her family members. The applicant told her that any of those people could be the father of her unborn child. When the victim said to him that some of the people were her family members, he said, ‘You’ve probably fucked them, even if they are your cousins’.
At around 1 pm to 2 pm, the applicant looked through the victim’s phone again and read her messages. He performed some searches on Google for how to test a baby’s DNA while it was still in the womb and how much such a test would cost. The victim observed that the applicant’s demeanour was changing and that he was becoming overwhelmed. He had put a bandana on his head, which was something he did when he became angry. He then threw a glass bong on the ground, causing it to smash, and demanded that the victim clean up the glass, calling her a ‘bitch’ and a ‘slut’. She complied, cutting her toe in the process.
While the victim was vacuuming the glass, the applicant told her multiple times, ‘hurry up so I can do what I want to do’. The victim understood from his tone that he was referring to something sexual. After she finished cleaning up, the applicant called for her while he was in the bathroom, saying ‘come here and suck my dick’. She went to the toilet, where the applicant stood up, grabbed the victim by her hair and pushed her head towards his penis. She told him that she didn’t want to do it. The applicant slapped her face multiple times, bruising her left eye (charge 1 — common assault).
Out of fear of being assaulted further, the victim performed oral sex on the applicant (charge 2 — rape). This was the first of five instances of rape covered by charge 2. As the victim was performing oral sex, the applicant held her by her hair with one hand and had the victim’s phone in the other. When the victim tried to stop or slow down, he used his grip on her hair to push her head closer against him. She was crying because she didn’t want to participate and was in physical pain.
The applicant recorded four videos depicting the victim performing oral sex on him during the period between 3:51 pm and 3:54 pm.
(a)The first video lasted a few seconds. In this video, the applicant can be heard saying, ‘I’m gonna send him a video’.
(b)The second video also lasted a few seconds. In this video, the applicant can be heard calling the victim a ‘rat’.
(c)The third video lasted 29 seconds. In this video, the applicant can be heard saying, ‘Suck the cunt, you dirty fucking white cunt’, ‘Just move white slut, fuck you and your mum you dirty slut’ and ‘Hey Ben, look at this cunt … look at this dog … see that motherfucker … See what you’ve done? See how you got her? Suck it, suck it you dirty slut’. At one point in this video, the victim can be heard asking if she can please message her mum and tell her not to come over. The applicant’s hand can be seen holding the back of the victim’s head and forcing her on his penis, while the victim can be seen becoming more visibly upset and can be heard crying and whimpering.
(d)The fourth video lasted 9 seconds. In this video, the applicant can be heard saying, ‘Move motherfucker, move cunt’, with the victim responding with some discomfort, ‘I am’.
The applicant sent the first three videos to a man named Benjamin Radford at 3:53 pm via the victim’s Facebook Messenger account. The applicant sent the fourth video to a man named Jared O’Shannassy at 3:54 pm, also via the victim’s Facebook Messenger (charge 4 — distribution of intimate image). A statement was later obtained from each of Mr Radford and Mr O’Shannassy, confirming that they had received the videos from the victim’s Facebook Messenger account.
After the events in the bathroom, the applicant told the victim to go to the bedroom. He went to the bedroom and laid down on the bed with no pants on. He told the victim to kneel between his legs and perform oral sex on him. The victim complied. Whenever she stopped or slowed down, the applicant grabbed her head and pushed it harder on his penis. This is the second instance of rape covered by charge 2.
During these events, the applicant recorded three more videos of the victim performing oral sex on him on her phone. The videos were taken between 4:15 pm and 4:21 pm.
(a)The first video lasted 29 seconds. In this video, the applicant can be heard saying, ‘[victim’s name] say it … This is for you Graham … [victim’s name] say it … [victim’s name ] you fucking dirty slut. Look at her’. The applicant’s hand can be seen pushing the victim’s head on to his penis, with the victim pulling away twice while making an audible gagging noise. The applicant can then be heard saying, ‘Look at her, dirty slut. Get here, come on [victim’s name]’, before pulling at her hair.
(b)The second video lasted 7 seconds. In this video, the applicant can be heard saying, ‘Now say it’, to which the victim can be heard saying, ‘this is for you Graham’. The victim appears upset.
(c)The third video lasted 29 seconds. In this video, the applicant can be heard saying, ‘Pull your mouth off and say it’, following which the victim can be seen to stop performing oral sex and to be heard to say, ‘This is for you Graham’.
At least one of these videos was sent to Graham Kellett, although he was unable to confirm anything other than that he had received a video of a sexual nature, which he then deleted.
After the applicant stopped recording, he held the victim’s head with both hands and pushed her head into his groin while his penis was in her mouth. The victim resisted and tried to pull her head away from him. This is the third instance of rape covered by charge 2.
The applicant then became angry and picked up a knife from the floor beside the bed. He said to the victim, ‘I’m going to stab you if you don’t do it’. He slapped the victim’s arms with the flat side of the knife, before pointing it at her and saying, ‘If you don’t do it, I’ll kill you and the baby’ (charge 3 — making threat to kill).
The victim complied and performed oral sex on the applicant. This is the fourth instance of rape covered by charge 2. As this was occurring, the applicant slapped the knife on his legs beside the victim’s head several times to further intimate her.
In an attempt to get away from the applicant, the victim told him that she needed to call her mother to bring them food. The applicant told her that she could call her mother in approximately half an hour but to continue performing oral sex on him until then. She complied. This is the fifth instance of rape covered by charge 2.
After approximately half an hour had passed, the applicant allowed the victim to stop and call her mother. The victim spoke to her mother calmly so as not to anger the applicant, but before the phone call ended, she said to her mother, ‘Help’. She then returned to the bedroom and observed the applicant putting on a condom and gloves. She called her mother again shortly after, crying. This angered the applicant and he began yelling at the victim. He approached her with an extendable backscratcher and feigned to hit her, telling her to hang up the phone. When she refused, he came closer to her and said, ‘Do it now’. The victim hung up the phone out of fear. The applicant then struck the victim’s back with the backscratcher, leaving a red mark (charge 5 — assault with a weapon). He told her to stop crying and to get over it.
A short time later, the victim’s mother arrived and knocked at the door. The applicant, believing it was police, told the victim to answer it. The victim opened the door and went out to the car with her mother, where her stepfather was on the phone to the police. The police arrived at the applicant’s house at approximately 4:55 pm. The applicant was arrested. He had the victim’s phone, which the police seized. He was interviewed and denied most of the allegations. He said that he had never done anything sexual with the victim that was not consensual but admitted to slapping her a couple of times. He also admitted to sending intimate images of himself and the victim to men that the victim knew.
The applicant was charged the same day and remanded in custody. A family violence intervention order was also served on him, which prevented him from contacting the victim directly or indirectly.
On 26 July 2023, the victim reported breaches of the family violence intervention order to police. On the previous day, she had received a message from someone on Facebook that read, ‘[applicant’s nickname] is asking for your phone number’. The victim called the person who sent her the message, who told the victim that her boyfriend was in prison with the applicant, and that while she was on a call with her boyfriend, the applicant had asked her boyfriend to ask her to obtain the victim’s phone number. Recordings of prison phone calls were obtained, in which the applicant can be heard in the background asking for a message to be sent to the victim (charge 6 — contravention of family violence intervention order).

Sentencing reasons

After outlining the circumstances of the offending, the judge commenced his reasons by acknowledging that the applicant had entered a plea of guilty at the earliest reasonable opportunity and that the utilitarian value of his plea was a significant matter in mitigation. The judge observed that this was consistent with some remorse, but there was otherwise no evidence of genuine remorse or insight from the applicant. While the victim had not provided a victim impact statement, the judge inferred from the gravity of the offending that the impact on her would have been substantial.[8]
[8]DPP v Baumann (a pseudonym) [2025] VCC 50, [30]–[31] (‘Reasons’).
As for the gravity of the offending, the judge noted that the applicant was on bail at the time of the offending, which was an aggravating factor. The judge referred to the sentencing principles for family violence or intimate partner violence offences as articulated by this Court.[9] In respect of the rolled up charge of rape, the judge described the offending as ‘a serious example of a very serious crime’. He observed that the offending was motivated by the applicant’s unhinged jealousy, and was calculated to exert control and domination over the victim. The acts constituting the rape offence were highly degrading and demeaning, as was the applicant’s language towards the victim. There was then the added humiliation for the victim arising from the videos the applicant took of the offending to send to men about whom he had harboured suspicions. The judge observed that the applicant’s distribution of these videos was the subject of a separate charge, and was a ‘serious’[10] example of this offence, given that the videos were of non-consensual acts; they were sent to several different men; and the applicant’s motive was to show his domination and ownership of the victim. As for the common law assault and the threat to kill, these were both ‘serious’. The assault using the backscratcher was a separate act of gratuitous violence and the breach of the family violence intervention order occurred while the applicant was remanded in custody and in circumstances where the applicant had prior convictions for the same offence. Overall, the judge considered the applicant’s offending to be ‘very serious’.[11]
[9]Referring to DPP v Reynolds [2022] VSCA 263; DPP v Meyers [2014] VSCA 314.
[10]Later in the Reasons, the judge referred to the offending as a ‘very serious example of such an offence’: at [90].
[11]Reasons, [29], [32]–[44].
The judge turned to the applicant’s personal circumstances. The applicant, who was 45 years old at the time of sentence, is a Gunditjmara Kumai Gunai man, whose family had been the lead plaintiffs in a native title determination in the Federal Court.[12] The judge took into account the judgment of the Federal Court, which outlined the history of the applicant’s family and was therefore relevant to the judge’s consideration of the applicant’s intergenerational trauma and the application of Bugmy[13] principles.[14]
[12]Austin on behalf of the Eastern Maar People v Victoria [2023] FCA 237.
[13]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[14]Reasons, [45]–[47].
The judge considered a neuropsychological report from Dr Catherine Prado and a psychological report from Mr Simon Candlish, and the information the applicant had provided to Dr Prado and Mr Candlish about his background.
The applicant’s childhood was described by Dr Prado as being characterised by instability during his formative years, with exposure to multiple adverse childhood experiences. The applicant witnessed domestic violence between his mother and father, both of whom abused drugs and alcohol. For a period of time, he was raised by his grandparents, who were alcoholics. Between the ages of six and 10, the applicant experienced significant sexual abuse by one of his uncles. His parents died within 12 months of each other, and their deaths had a strong emotional impact on the applicant. The applicant’s education was severely disrupted. His family relocated often and, as a result, he attended many different schools. The applicant had limited opportunities to form close connections with his peers and the community. His education was affected by drugs and alcohol. He was often suspended for fighting at school and was subject to racism, which he described as the cause of his aggressive behaviour. He left school part way through Year 8. By his mid-teens, the applicant had left home to live with his partner. His employment experience was marred by conflict with others in the workplace as well as periods of imprisonment. He was still not able to read and write adequately, although he had made improvements in these areas in recent years.[15]
[15]Reasons [45], [49]–[58], [68].

The judge referred to the applicant’s long-term relationship with his former partner, with whom he had seven children. The relationship was a violent one, and some of the applicant’s prior convictions related to his former partner. Following their separation in 2021, intervention orders were made against the applicant.[16]
[16]Reasons, [60], [62].
The applicant was diagnosed in 2021 as presenting with symptoms consistent with a major depressive disorder, and had been prescribed antidepressants since 2018. Mr Candlish described the applicant as having a moderate personality disorder. He said that this personality disorder affected the applicant’s coping ability and led to emotional dysregulation and self-destructive behaviour. The applicant’s personality impairment created a heightened sensitivity to feelings of rejection and abandonment, and contributed to disproportionate reactions in the context of relationship issues. Mr Candlish said that the applicant also had other problematic personality traits, including having little sense of direction or purpose; being impulsive and prone to behaviours that are likely to be self-destructive; being distrusting and suspicious; and being prone to extreme displays of anger, including property damage and threatening to assault others. The applicant accepted that he had issues with jealousy.[17]
[17]Reasons [61], [63], [66]–[67].
Mr Candlish also described the applicant as having alcohol and stimulant use disorders. He had a lengthy history of drug and alcohol consumption, starting in his mid-teens. His abuse of alcohol had been extreme. He had also abused methamphetamine and heroin, and described abusing the prescription medication Lyrica since 2004. Mr Candlish said that that the applicant’s substance abuse had probably caused severe disruption in his social relationships and work performance. The applicant was prone to impulsivity and poor consequential thinking, particularly when drug-affected. At the time of the offending, the applicant had been drinking, was drug-affected and was likely sleep deprived, which undermined his already impaired capacity to emotionally self-regulate and apply sound judgment.[18]
[18]Reasons, [59], [66]–[67].
In Mr Candlish’s opinion, further sexual offending would be most likely to occur as a forced sexual act against an intimate partner, which could include acts of physical violence. Such offending would be most likely to occur because of the applicant’s jealousy and distrust in the context of substance abuse and relationship instability. Mr Candlish opined that the applicant was likely to continue to experience problems in his interpersonal functioning, and was vulnerable to substance relapse and worsening depressive symptoms. He was also likely to experience social isolation and a sense of alienation, which was relevant to his risk of further offending.[19]
[19]Reasons, [65], [67].
Dr Prado assessed the applicant as having a full-scale IQ consistent with a mild intellectual disability. Mr Candlish described the applicant as having cognitive defects ‘quite possibly reaching the threshold of intellectual disability’. Dr Prado said that the applicant’s cognitive difficulties were most likely longstanding and developmental in nature, rather than a result of any acquired brain injury. She said that the applicant’s mild intellectual disability could not alone account for the offending, and was not severe enough to impair his ability to understand the wrongfulness of his actions.[20]
[20]Reasons, [66], [69]–[71].
Dr Prado said that the applicant did not present with cognitive impairments that would be expected to significantly increase the burden of incarceration. A custodial environment would provide stability and reduce his access to substances. Dr Prado did not consider that the applicant’s condition would be likely to significantly deteriorate as a result of being in prison, but said that he would benefit from psychological intervention to mitigate the risk of a worsening mood and depressive symptoms. She also suggested that he would benefit from participating in a structured longitudinal intervention with a forensic psychologist so that he could learn adaptive coping, impulse control and problem-solving strategies.[21]
[21]Reasons, [70]–[71].
The judge recorded that the applicant had a lengthy criminal history, which was relevant to the need for community protection. His prior convictions included a conviction for rape in 1997 when the applicant was 16 years old, for which he was sentenced to 4 years’ imprisonment with a non-parole period of 3 years. The judge took into account the applicant’s young age at the time of that offending, and that 27 years had passed since that offending, but nonetheless regarded this prior conviction as relevant to his sentencing exercise. The applicant also had prior convictions for assault and for several contraventions of family violence intervention orders since 2010. In 2017, the applicant was sentenced to imprisonment with a correction order for contravening a family violence intervention order, as well as damage and assault offences. In 2021, the applicant was convicted of multiple family violence offences and received further periods of imprisonment. In April 2022, the applicant was sentenced to 60 days’ imprisonment, followed by a community correction order for a period of 12 months, for persistent contravention of family violence intervention orders. The present offending occurred approximately three months after the expiration of that community correction order.[22]
[22]Reasons, [72]–[73].
The judge said that it was obvious from the applicant’s prior convictions that he presented a high risk of reoffending, particularly against women who are his intimate partners. His prior convictions for violence against an intimate partner were highly relevant. More generally, his prior convictions were relevant to community protection, specific deterrence, the assessment of his prospects of rehabilitation and his moral culpability for the offending. It was, the judge said, impossible to take an optimistic view of the applicant’s prospects of rehabilitation, given his criminal record and personality issues. His prospects were ‘poor or guarded at best’.[23]
[23]Reasons, [74], [87].
The judge then turned to assess the applicant’s moral culpability. He noted that the prosecution had conceded the application of the Bugmy principles, having regard to the applicant’s background. The judge found that it was appropriate to allow for some reduction in the assessment of the applicant’s moral culpability, and some consequent moderation of punishment and deterrence, on account of the applicant’s deprived upbringing, including the impact of intergenerational trauma. The applicant’s history had contributed to his personality deficits and ongoing substance abuse. Domestic violence and substance abuse had been normalised for him, and the applicant had himself been the subject of sexual abuse. On the other hand, some of these factors accentuated the need for the applicant’s sentence to address community protection. The judge reiterated that there was a significant risk that the applicant would reoffend, particularly against future intimate partners.[24]
[24]Reasons, [75]–[80].
The judge did not accept that the applicant’s personality disorder justified a further reduction in moral culpability. He said that in applying the Bugmy principles, he had had regard to the applicant’s personality factors, which had been contributed to by his background. However, the applicant’s personality disorder was not such as to enliven the Verdins principles on the basis discussed in Brown v The Queen.[25]
[25]Reasons, [81], referring to Brown v The Queen (2020) 62 VR 491; [2020] VSCA 212.
In relation to the applicant’s cognitive limitations, the judge observed that the prosecution had accepted the application of the principles in Muldrock v The Queen,[26] which dictates that cognitive limitations are relevant to the assessment of moral culpability and the weight to be given to general and specific deterrence. The judge observed that it was surprising that the applicant’s intellectual disability had not featured in previous sentencing but noted that the assessment of the applicant’s cognitive functioning was unchallenged. This assessment was relevant to the applicant’s moral culpability and was ‘a moderating factor’ in determining the appropriate sentence. However, the judge also noted Dr Prado’s observations that the applicant’s cognitive limitations were not severe enough to impair his ability to understand the wrongfulness of his actions. Ultimately, the judge said that even taking the Bugmy and Muldrock principles into account, the applicant’s moral culpability for the offending remained significant.[27]
[26](2011) 244 CLR 120; [2011] HCA 39.
[27]Reasons, [83]–[84].
The judge referred to the need to give weight to general deterrence, just punishment and denunciation. Specific deterrence and community protection were important sentencing purposes given the seriousness of the offending, the applicant’s criminal history and his poor prospects of rehabilitation. In respect of the principle of totality, the judge acknowledged that there was overlapping criminality for the offences in this case, most of which arose during the course of one episode. There was therefore a need for significant concurrency between the charges.[28]
[28]Reasons, [87]–[88].

Submissions

The applicant acknowledges that the distribute intimate image charge is ‘a very bad example of the offence’ that ‘would have been particularly demeaning for the victim’. However, he submits that his sentence is nevertheless manifestly excessive when all the circumstances are considered, including his powerful matters in mitigation. These include his early guilty plea, his profound disadvantage and his intellectual disability. In respect of his significant history of disadvantage, the applicant points to: his exposure to violence at a young age; being a victim of sexual offending as a child; his lack of education; his lack of much employment; and his substance abuse from a young age. As for his intellectual disability, the applicant relies on Dr Prado’s ‘new’ assessment that he has an intellectual disability that is longstanding and developmental in nature, which was ‘not put’ at his prior court appearances.
The applicant also points to current sentencing practices to demonstrate that his sentence is manifestly excessive. He refers to a report of the Sentencing Advisory Council published in October 2020 (‘SAC Report),[29] which provides a breakdown of the sentencing outcomes for ‘image-based sexual abuse offences’,[30] including the offence of distributing an intimate image. The applicant acknowledges that the SAC Report was not put before the judge on the plea.
[29]Sentencing Advisory Council, Sentencing Image-Based Sexual Abuse Offences in Victoria (Report, October 2020).
[30]The term ‘image-based sexual abuse’ is used in the report to refer collectively to: ‘[t]he non-consensual creation and sharing of intimate and sexual images and recordings, and threats to create and share such images and recordings’. ‘Image-based sexual abuse offences’ refers to the offences that appeared in ss 41A–41C, 41DA and 41DB of the Summary Offences Act 1966 as at October 2020: SAC Report, ix–x.
The applicant submits that the SAC Report demonstrates that it is uncommon for the offence of distributing an intimate image to be dealt with in the higher courts; and, when that does occur, the charge is associated with more serious charges that have much longer maximum penalties and a term of imprisonment is imposed. The applicant relies on the following section of the SAC Report, which describes the longest sentences imposed at first instance for image-based sexual abuse offences between 2015–16 and 2018–19:[31]
The longest sentence of imprisonment imposed for an [image-based sexual abuse] offence was 14 months (seven months of which was served concurrently with imprisonment imposed for other offending). This was a representative charge of an offender committing multiple capture offences[32] against numerous victims, including young children, for over a year. The second longest sentence of imprisonment imposed for an [image-based sexual abuse] offence was 12 months (six months served concurrently) for distributing an intimate image. That charge related to a course of offending that included the offender raping the victim.[33] Notably, the third longest sentence of imprisonment was nine months for threatening to distribute an intimate image, in the context of using threats to coerce further sexual contact and production of sexual imagery with a 16-year-old victim. That sentence represents 75% of the maximum penalty for that particular offence.[34]
[31]SAC Report, 36 [5.20]
[32]See [57] below.
[33]DPP v Hartland [2019] VCC 628.
[34]DPP v Li (a pseudonym) [2017] VCC 1696.
The applicant points out that, according to the SAC Report, the applicant’s sentence (14 months’ imprisonment) is the same as the longest sentence out of the three longest sentences imposed for an image-based sexual abuse offence. He submits that although his offending is a very bad example of the offence and was done to demonstrate domination and ownership, it does not warrant the same penalty. The other sentence of 14 months’ imprisonment was imposed on a representative charge that covered a year of behaviour and included child victims.
The applicant notes that there does not appear to be further information available as to sentencing statistics or trends for the offence of distributing an intimate image after 2020. The offence became an indictable offence with an increased maximum penalty of 3 years’ imprisonment shortly after the commission of the present offence.[35]
[35]See s 53S of the Crimes Act 1958, as inserted by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, s 22.
In response, the respondent submits that, consistently with the judge’s assessment, the applicant’s offending was a very serious example of the offence of distributing an intimate image. The respondent points to: the fact that the charge was a rolled up charge comprising three videos sent to one recipient and a fourth video sent to a second recipient; the videos were graphic and shocking, capturing the violent rape and humiliation of the victim; the applicant deliberately recorded the videos, apparently forming the intention to distribute them at the time of recording; the applicant said abhorrent and degrading things to the victim in the videos, while raping her; and the applicant sent the videos, using the victim’s Facebook Messenger account, to two recipients who were known on Facebook to the victim, thereby compounding the victim’s humiliation. These are described by the respondent as ‘acts of malice’.
The respondent further submits that while the applicant could call upon the principles in Bugmy and Muldrock, the judge properly found that the applicant’s moral culpability for the offending ‘remains significant’. In circumstances where the applicant had a substantial and relevant criminal history, and there was evidence about his risk of reoffending, community protection and specific deterrence were significant considerations.
As to current sentencing practices, the respondent submits that there are few cases that are instructive.[36] The first instance decisions referred to in the SAC Report and relied on by the applicant are not binding precedents and do not establish the upper or lower limits on penalties that might be imposed in subsequent cases.[37] Further, the SAC Report does not reveal the other considerations relevant to the exercise of the instinctive synthesis in those cases, such as the broader circumstances of the offending, any other charges for which the offender was sentenced, the offender’s prior criminal history, and the offender’s risk of reoffending. The respondent submits that, in any event, the decisions referred to in the SAC Report indicate that the sentence imposed on the applicant is within the range of penalties that might have been imposed in the reasonable exercise of sentencing discretion.
[36]The respondent referred to Gaunt v The Queen [2019] VSCA 241 and DPP v Williams [2023] VCC 1697, each of which was said to be of limited assistance.
[37]Referring to Surtees v The King [2023] VSCA 42, [70] (Walker JA).

Consideration

To succeed on a ground of manifest excess, the applicant must show that his sentence is ‘wholly outside the range of sentencing options available’.[38] This Court has often observed that this is a ‘stringent requirement’, which is difficult to satisfy.[39] The applicant must show that something has gone obviously, plainly or badly wrong in the exercise of the judge’s sentencing discretion.[40] This Court must be ‘driven to conclude that there must have been some misapplication of principle’.[41]
[38]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’). See also Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
[39]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[40]Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
[41]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39.
The applicant seeks to satisfy this high bar to success by focusing on two matters — the mitigating features upon which he relied on the plea, and current sentencing practices. He does not challenge any of the judge’s specific findings, such as the findings that: his moral culpability was significant; he posed a significant risk of reoffending, particularly against future intimate partners; and his motive for the offending was to show his domination and ownership of the victim.
I do not consider that either of the two matters on which the applicant relies reveals that anything has gone obviously, plainly or badly wrong in the exercise of the judge’s sentencing discretion.
The judge had regard to the mitigating matters on which the applicant relied, and gave those matters appropriate weight. The judge correctly treated the applicant’s profound childhood disadvantage, which included the impact of intergenerational trauma, as requiring a reduction in the applicant’s moral culpability — as well as some moderation in the application of the principles of just punishment and deterrence. The judge also correctly treated the applicant’s cognitive impairments as bearing on his moral culpability, although Dr Prado’s assessment that the applicant’s cognitive limitations did not impair his ability to understand the wrongfulness of his actions bore on the extent to which these impairments were capable of having a mitigatory effect.
As to current sentencing practices, there appear to have been very few sentences for the offence of distributing an intimate image that have been imposed, or considered, by the higher courts. The offence, which was introduced into the Summary Offences Act 1966 in 2014,[42] was repealed in July 2023 and replaced with an indictable offence with a maximum sentence of 3 years’ imprisonment.[43]
[42]Victoria was one of the first Australian jurisdictions to enact a specific offence designed to capture the distribution of intimate imagery, following a series of recommendations made in the report of the Victorian Parliament’s Inquiry into Sexting: SAC Report, 22 [3.27].
[43]Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, ss 2(5), 22, 32; Crimes Act 1958, s 53S.

To the extent that a range of sentences for the offence can be identified, I am not satisfied that the sentence imposed is wholly outside that range.
The only case in which this Court appears to have previously considered a sentence imposed for the offence is Gaunt v The Queen,[44] which is of limited assistance. In that case, the applicant pleaded guilty to a range of Commonwealth and State charges concerning the possession and transmission of child pornography and child abuse material, drug trafficking, obtaining financial advantage by deception and breaching a family violence intervention order. The applicant also pleaded guilty to one charge of distributing an intimate image contrary to s 41DA, which arose from the distribution of a single intimate image of the offender’s former domestic partner. It is unclear from the judgment to whom the image was distributed or what the image depicted. The sentence imposed for this offence was 3 months’ imprisonment, which was ordered to be served concurrently with the base sentence of 3 years’ imprisonment for the offence of possessing child abuse material. The applicant contended that his total effective sentence and non-parole period offended the principle of totality. The Court rejected this contention and did not specifically address the sentence imposed for the offence of distributing an intimate image.
[44][2019] VSCA 241.
The applicant’s attempt to compare the circumstances of his case with the other case referred to in the SAC Report in which a sentence of 14 months’ imprisonment (with 7 months cumulation) was imposed for an ‘image based sexual abuse offence’, does not assist. The offence that was the subject of that sentence was of a different nature, involving intentional visual capturing of another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured, contrary to s 41B of the Summary Offences Act 1966.
The statistics in the SAC Report suggest that during the period from 2015–16 to 2018–19, only eight offenders were sentenced for the offence of distributing an intimate image. Of these, the highest sentence appears to be a sentence of 12 months’ imprisonment, 6 months of which was cumulated on a base sentence for rape, which was imposed by a judge of the County Court in DPP v Hartland.[45] In that case, the offender pleaded guilty to a rolled up charge comprising the distribution of two images and two videos showing him and his intimate partner engaged in sexual activities. The offender sent the images and videos to two male friends, during a period in which he was being investigated for raping the victim. The images and videos do not appear to have been connected with the rape. The offender had no prior convictions, a dysfunctional childhood, and diagnosed depression and personality disorders that the judge accepted may make his time in prison more burdensome.
[45][2019] VCC 628.
There are obviously significant differences between the circumstances in Hartland and the circumstances in the present case, not least of which is that the present offending involved the distribution of videos depicting a violent rape. In any event, although the Court must take current sentencing practices into account, they are generally but one factor, and not the controlling factor, in the overall sentencing synthesis.[46]
[46]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453–4 [82]–[83] (Gageler and Gordon JJ); [2017] HCA 41.
Finally, in evaluating whether the sentence imposed on the applicant is manifestly excessive, it is important to consider the wide spectrum of conduct proscribed by the offence of distributing an intimate image. Section 41DA of the Summary Offences Act 1966 prohibited the intentional ‘distribution’ of an ‘intimate image’ of another person to a third person, in circumstances where the distribution of the intimate image was contrary to ‘community standards of acceptable conduct’, where:
(a)an ‘intimate image’ meant a moving or still image that depicts a person engaged in sexual activity, or a person in a manner or context that is sexual, or the genital or anal region of a person (whether bare or covered by underwear), or in the case of a female, the breasts;
(b)‘distribute’ included publishing, exhibiting, communicating, sending, supplying or transmitting to any other person, whether to a particular person or not, and making available for access by any other person, whether by a particular person or not; and
(c)‘community standards of acceptable conduct’ included standards of conduct having regard to: the nature and content of the image, the circumstances in which the image was captured; the circumstances in which the image was distributed; the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the image; and the degree to which the distribution of the image affects the privacy of a person depicted in the image.[47]
[47]Summary Offences Act 1966, s 40 (definitions of ‘intimate image’, ‘distribute’, ‘genital or anal region’ and ‘community standards of acceptable conduct’).
As the Sentencing Advisory Council noted in the SAC Report, the types of imagery with which the offence was concerned included imagery created in public, as well as imagery that depicted intimate content created in circumstances where the victim was partially or fully clothed. Some examples of the offence, particularly those committed by children and young adults, involved comparatively minor behaviour. Others reflected ‘distinct behaviour patterns, often associated with more serious offending, including family and sexual violence’.[48]
[48]SAC Report, 19 [3.17], 45 [6.1], 46 [6.5].
An examination of the particular matters to which the definition of ‘community of standards of acceptable conduct’ draws attention readily demonstrates why the offending in this case falls at the upper end of the spectrum of seriousness:
(a)the nature and content of the images that were distributed are graphic and confronting, involving the depiction of violent rapes of the applicant’s intimate partner, during which the applicant can be heard saying degrading things to the victim, who is crying, whimpering and pleading with him;
(b)the circumstances in which the images were captured and distributed, in the course of the commission of the violent rapes, are abhorrent;
(c)the victim was in a state of extreme vulnerability at the time the images were captured — she was 23 weeks’ pregnant and was alone in a house with the applicant, who was enraged and drug-affected; and
(d)the distribution of the images by the applicant to two males known to the victim, using the victim’s own Facebook Messenger account, was a gross violation of the victim’s privacy.
This was very serious offending, committed by a person with relevant prior convictions, no insight into their offending and prospects of rehabilitation that are guarded at best. Community protection and specific deterrence were important sentencing objectives. The applicant’s conduct was calculated to further humiliate and demean a vulnerable victim of a violent sexual assault. It was a callous assertion of dominance and control. Neither the sentence of 14 months’ imprisonment, nor the order that 7 months of that sentence be cumulated on the base sentence, was wholly outside the range of available sentencing options.
I will refuse leave to appeal.

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[2025] VSCA 232

22 September 2025