Director of Public Prosecutions v Edwards

[2025] VCC 488

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION  Revised
Not Restricted
Suitable for Publication

CR-24-00541

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

KANE EDWARDS

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 April 2025
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2025] VCC 488

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCE
Catchwords:  Rape
Legislation Cited: s38(1) Crimes Act 1958 (Vic); s6D Sentencing Act 1991 (Vic)

Cases Cited:Mohktari [2020] VSCA 161; Lawrence v The Queen [2021] VSCA 291; Brown v The Queen [2019] VSCA 286; Ortisi v The Queen          [2025] VSCA 42; DPP v Leslie [2025] VSCA 13; Bugmy v The Queen 213, 249 CLR 571; The Queen v Verdins [2007] 16 VR 269; DPP v Herrman [2021] 290 ACR 110; Hasan 2013 VSCA 352;

DPP v Dalgleish [2017] 91 AL JR 1063.

Sentence:  Six years imprisonment with a non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	Director of Public Prosecutions
For the Accused	Mr J. Miller Ms C. Jackson	Kurnai Legal Practice (Morwell)

HIS HONOUR:

1Yes, in this matter of Kane Edwards, Kane is now aged 29, he was 27 at the time of this offending. Mr Batten appeared on behalf of the Director. Mr Miller and Ms Jackson appeared in the trial and the plea on behalf of Kane Edwards and Ms Jackson appears today. The trial to Indictment No.P11281814 which was a rape charge, took place on the 17 day of October of last year in the County Court sitting at Bairnsdale. The offence under s38(1) of rape, which occurred on the 12 day of June 2023, when the complainant was aged 20, she is now 24. Mr Edwards entered a plea of not guilty and, as a result, on day 7 of the trial, being the 25 day of October 2024, after nine hours deliberation, the jury delivered a finding of guilty.

2The offence carries a maximum penalty of 25 years imprisonment with a standard sentence of 10 years. Rape is a Category 1 offence. It is a serious sexual offence under s6D and under s11A non-parole periods are set out and I will deal with that in due course.

3The plea was effected at Bairnsdale on 29 of October 2024 and subsequently, in this Court in Melbourne on the 17 day of March 2025.

4The relevant priors, in regard to this offending, relate to two offences of sexual activity in the presence of a child under the age of 16.  They were heard respectively in May of 2022 and in October of 2020.  On the 2022 charges, an aggregate sentence of 12 months and a minimum of six months was pronounced, and in regard to the charges in 2020, an aggregate sentence of 270 days was pronounced.  I'll come to those matters again in due course, considering summaries of those have been tendered today, as Exhibit C.  There is no SORA application.  The PSD to date is what, Mr Prosecutor?

5MR BATTEN:  440 days, Your Honour.

6HIS HONOUR:  440 days, and that is agreed, Ms Jackson?

7MS JACKSON:  Yes, Your Honour.

8HIS HONOUR:  Thank you.  There is no victim impact statement filed in this matter.  I should, in talking of that, note that online to hear these sentencing remarks is the victim and a witness assistance person and the informant or
two officers from VicPol.

9The prosecution tendered Exhibit A, which was the prosecution opening.  It was accepted by counsel on behalf of Mr Edwards, as setting out the facts which form the basis of this sentence and the facts as found by the jury.  The prosecution also tendered Exhibit B, the sentencing submission, that was dated 29 of October 2024.  Insofar as the defence was concerned, they tendered submissions as to sentence dated 28 of October 2024, the psychologist's report of Megan Rogers, dated 22 of May 2020, which actually related to an earlier offence committed by Mr Edwards, indeed, one of the offences that I have already mentioned.  Exhibit 3 was a CISP report dated 20 of December 2023 and finally, Exhibit 4 was a report of the neuropsychologist, Mr Jackson, dated 22/02/2025.

10In regard to the plea, it was common ground that the appropriate sentence in this matter is a head sentence with a non-parole period.  The prosecution stressed that there is no benefit to Mr Edwards, in this case, by way of remorse, given the plea in the matter.  It was accepted by the prosecution that this rape did not have with it many of the aggregating features that occur in these crimes yet, of course, such is not a matter that can be used in Mr Edwards's favour. It is simply a matter that needs to be remarked as to the fact of no other aggravating features.

11It is necessary to classify the seriousness of this offence.  Looking at objective features only, firstly the victim was asleep at the home of a mutual friend.  Secondly, once the victim awoke, Mr Edwards persisted in the rape, albeit voluntarily and without any comment by the victim, ceasing and stopping sexual intercourse.  Thirdly, the jury by its verdict, given the specific judicial directions in this matter, rejected an allegation made in the record of interview that the complainant had participated in anyway or was conscious prior to penetration.  Fourthly, Mr Edwards did not wear a condom, albeit that it was agreed that there is no evidence of ejaculation. 

12Fifthly, I refer to the general seriousness of this crime. In particular, this matter was referred to in Exhibit 1, which was the defence submissions and at Paragraph 10 the Court of Appeal decision in Mohktari [2020] VSCA 161, at [41] where the Court of Appeal said this:

'The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent.  It is an act of violence whether or not accompanied by other violent conduct.  The violation is physical, emotional and psychological.  It follows that aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and extent of the penetration'.

13Insofar as the plea of the defence, the point was made firstly, that there was no additional violence, apart from those matters just spoken about, or acts of aggravation, which can occur on occasions when this crime is committed, see Paragraph 12 of the submission.  Secondly, there were references to the case of Lawrence v The Queen [2021] VSCA 291, at [25] to [27], and Hasan [2001] VSCA 352.

14If I could just stop and say to you, Mr Edwards and indeed anyone listening to this sentence, a sentence in this type of case is necessarily complicated and I am sorry for the length of the sentencing remarks.  Mr Edwards, at the end of the sentence, you will have the opportunity, if Ms Jackson wants it, for Ms Jackson to talk to you remotely.  Will you stay online and discuss the matters with Mr Edwards, or have you organised a conference?

15MS JACKSON:  If an opportunity to speak with him briefly after the sentence is available, I would appreciate that, Your Honour.

16HIS HONOUR:  Right.  Well, I think that's appropriate, and we can do that, in the sense, we can clear the Court out while you do that, but for my staff, if that is suitable.

17MS JACKSON:  Thank you, Your Honour, yes.

18HIS HONOUR:  Right.  Thank you. 

19Coming back then to the references in the plea, to the cases that I have just referred to, that is, Lawrence and Hasan.  It is to be pointed out that the offence was commenced in 2015, s5B(2)(b) excludes regard being had by this Court to prior sentences which were not subject to the standard sentence regime, which came into operation on the 28 of November 2017.

20I accept the submissions of the Director, set out in Exhibit B, [8] that I must therefore disregard those cases, they are purely relevant as a piece of judicial history which has been referred to. Clearly, as detailed by the
Court of Appeal in Brown v The Queen [2019] VSCA 286, at [55] and [56], it is necessary to take into account the above objective factors as a legislative guidepost. See s5B(2A) in regard to the standard sentence detailed in s38 of the Crimes Act. In this regard, I note the comments of the Court of Appeal at [57] of Brown and also, mostly recently, in the case of Ortisi v The Queen [2025] VSCA 42 at [80].

21Insofar as the relevant priors that I have mentioned, as to Mr Edwards, it is noted from an analysis of his priors, and I should add, Mr Edwards, for you to understand and no doubt this will be explained to you, the reference to your priors is not a situation whereby you come up for sentence again.  The reference to your priors is made for the purposes of the Court fully understanding the background of this matter and, as a result of your priors, particularly the two relevant ones, taking into account one of the particular issues here, the need for protection of the community.

22Unfortunately, albeit at the age of 29, Mr Edwards' priors go back 11 years to offences that occurred in the Children's Court.  Essentially, those matters relate to thefts, breach of family intervention orders and burglary.  He has had the two gaol sentences, that I have referred to, as relevant to this sentence.

23Having perused Exhibit C, that is, the prosecution summaries, which have now been tendered, I must say that they are somewhat concerning.  Both involved uninhibited sexual activity in the presence, firstly in 2020, of two adults and a child and in 2022, of a 13-year-old child, while in her home, in her mother's presence.  They are indicative of what I will refer to in due course, of a person unfortunately, Mr Edwards, given his background, who certainly has little/ limited appreciation of the need in all sexual activity with another person, for consent to be a fundamental proposition.

24The sentence in this matter is complex.  The Court of Appeal in February of this year, in  DPP v Leslie [2025] VSCA 13, of which I was the trial Judge, provided the most recent analysis in regard to cases concerning a combination of the principles detailed in Bugmy v The Queen 213, 249 CLR 571, The Queen v Verdins [2007] 16 VR 269 and DPP v Herrman [2021] 290 ACR 110, insofar as the sentencing Court needing to consider factors, all present in this Court, relating to reduced culpability, due to cognitive impairment, dramatic upbringing, mental issues and the balancing of such with other sentencing factors, in particular, the need for the protection of the community. 

25The complexity here relates not only to the rape committed upon the victim in this matter and the prior history as I have referred to of Mr Edwards, but the considerations of the matters put to the Court on behalf of Mr Edwards as to matters of reduced culpability, due to Verdins, Bugmy and the fact of him being an indigenous person who has been subjected to a life of trauma, substance and alcohol abuse.  Albeit that I have been a Judge for many years, such issues in sentencing remain particularly complex. 

26I come then to the plea.  Mr Edwards has a two-year-old son who lives with his mother at the moment, Mr Edwards being on remand.  The traumatic upbringing of Mr Edwards was detailed in the plea material and, in particular, in the psychological report of Megan Rogers of May of 20 and I refer to Paragraph 15 of that report.  Tendered on the plea was Exhibit 1, the defence submission, Exhibit 2, the psychological report, as I have just referred to, of Megan Rogers dated the 22/05/20, Exhibit 3 the CISP report dated the 01 of February 2023, and finally, the neuropsychologist's report, Ms Jackson, which was Exhibit 4.

27In the plea, counsel called Ms Peddlingham-Farina.  She is a local justice worker in Lakes Entrance.  She has known Mr Edwards for four to five years, and she recounted the history of trauma of which he has been part.  She noted, not only does he live in Lake Tyers, but he lacks formal education and has had a very underprivileged life. She also notes his capacity for substance abuse and addiction, in particular, at the time of this offending.  She describes him as kind, compassionate, loving and a great character. I must say, this has a ring of truth to it, not only have I observed Mr Edwards during the trial, but he made a point of coming up and speaking to me outside the Court.  Matters that can only happen on circuit, but certainly those features were obvious. 

28That, of course, has to be balanced against the serious nature of the crime that he has committed against the victim in this here.  It was put to the Court and indeed, set out in the two professional reports, that after this matter is over, in the sense that he is released from prison, he is looking to change his life, that he wants a better future for himself and his family and Ms Farina confirmed that matter. 

29In Exhibit 2, the report of Megan Rogers, as I said, this was in regard to an earlier family violence matter, it was noted that the history demonstrated that, given his upbringing, it was necessary for his grandparents to essentially attend to his care, and he was raised by his grandparents.  He apparently completed Year 12, albeit unfortunately he has never been employed.  At [25], she noted the long substance abuse history that he has had and the problems with alcohol and certainly, it would appear, from the evidence given by the complainant in this matter and other persons, that he was subject to no doubt both of those impacts at the time this offending.

30Exhibit 4, is the report of Mr Jackson and that is the neuropsychological report, it is noted, fortunately, in so far as the problems with substance abuse, by Mr Jackson that, apparently, Mr Edwards is on a methadone program in remand.  At p6 of Mr Jackson's report, it is noted that Mr Edwards has a low average intelligence with an IQ quotient of 80.  He was apparently, at the time of the consultation, still in denial as to the charge and at p11 of the report, the following was said. 

31I should start at 10,

'Mr Edwards had a difficult upbringing; he witnessed excessive violence and substance use in the family home when growing up.  He was primarily raised by his grandparents and has a significant history of substance use, including cannabis, ecstasy, amphetamines, methamphetamines, GHB and alcohol.  He has a history of concussion while playing football….  He is a man who is estimated to have a low to average premorbid abilities on the basis of education history….’

32And then coming to the reference, at p11 the following was stated,

'Mr Edwards does acknowledge a history of depression and anxiety with medication from his general practitioner in the past but has stopped taking medication.  He has never seen a psychologist or psychiatrist on a regular basis.  He reported as generally a happy fellow, prior to these charges, but he has changed in gaol.  He has anxiety and depression in relation to being away from his wife and son, as well as some family members dying.  He denies any behavioural issues, but he said he can get angry if he is disrespected.  Clinically, he did not present with overt symptoms of mood disorder, psychotic disorder or behavioural disorder, although his effect did become angry when talking about the issues he was unhappy with, such as, being found guilty of rape.  There was no psychotic symptoms or hard behavioural signs on formal questioning, he reported symptoms suggestive of the moderate to severe depression, but no significant anxiety or stress'.

33At p12:

I'm of the opinion that the primary cause of Mr Edwards cognitive impairments are his substance abuse and, in particular, his alcohol abuse.  It is highly likely that his cognitive impairments are due to early signs of alcohol brain injury….  He does not have an intellectual disability and, as I have already said, has an average – low average IQ…  He has demonstrated cognitive impairments as well as moderate impairments of complex learning and memory….  I am of the opinion that it is highly likely that he is related brain injury, given that he has been in prison for 18 months and has been abstinent from all substances for over 18 months'.

34He concludes that Mr Edwards has a alcohol related brain injury and it is noted that the offending here occurred when Mr Edwards was intoxicated by substances, which is clearly, as demonstrated, a common theme in the past.  At p14 he then came to this conclusion,

'In terms of Bugmy considerations, I am of the opinion that Mr Edwards does have a mild acquired brain injury due to alcohol abuse.  However, it is noted that the majority of Mr Edwards performances are in low average to average or better, including his executive functions.  As such, his brain injury, in itself, is not necessarily a relevant consideration to the offending as the offending had not occurred because of his brain injury but has occurred because he was intoxicated at the time'.

35And then he refers to the issues – other issues that may relate to Bugmy.  I must say, that to the extent that Bugmy is somehow suggested by Mr Jackson to be reduced by his findings, that I disagree strongly with such conclusion.  It seems to me, beyond dispute, that the cognitive impairments, as detailed early on p12, have led to impaired perception, inabilities to effectively plan and organise and reduced memory ability.  As said in Leslie, Bugmy does not have to necessarily be a direct cause to apply.  In this regard, I refer, in particular, to Paragraph 81 of the Leslie reference, to which I have already referred and Paragraph 46 of Harrman, to which I have already referred. 

36In particular, in so far as Leslie is concerned, I note at [84], the following was said – perhaps I will start at [83],

'The applicant's background is similar to that of Mr Bugmy.  It is clear that his adverse experiences in childhood and adolescence, compounded by his brain injury and cognitive impairments, have marked him profoundly.  Though no fault of his own or through no fault of his own, his psychological functioning has been impaired, such that he is volatile, emotionally unstable and struggles to exercise sound judgement'.

37Paragraph 84,

'It was necessary for the judge to take this into consideration when making the moral judgement about the degree of blameworthiness to be attached to the applicant's offending.  It was not necessary to identify a causal connection between the applicant's childhood deprivation and his offending in order for the deprivation to be taken into account in sentencing.  But had it been necessary.'

38And I will not go on because that refers to the report in that case.  However, the Court goes on to say,

'Moreover, it is clear that the totality of the psychosocial evidence, regarding the applicant, provided strong support for the existence of a causal connection between the applicant's personal circumstances, his history and mental state and his offending.'

39As I say, to the extent that it may well have suggested, and I am not suggesting that Mr Jackson is a lawyer, but to the extent that at Paragraph 14 it might be suggested that he was limiting Bugmy in anyway, I would disagree with that.  Clearly, I find the cognitive impairments as a result of longstanding drug, substance abuse and his personal background, bring the principles of Bugmy to bear to which full weight must be given in this sentence. 

40I also refer, Exhibit 2, which as I said, was prepared for an earlier occasion, but it is necessary, I think, to refer to Ms Rodgers comments at [45] to [46] where she says this: at Paragraph 45,

'Substance use disorder is characterised by cognitive, behavioural and psychological symptoms related to continued use of substance, despite significant problems associated with or resulting from such use.  Common to all forms of substance use are underlying changes to the brain, which persist beyond detoxification, evidenced by relapse and craving for the substance.  Diagnosis of substance use disorder is based on pathological behaviour patterns related to the use of substances and persistent use in spite of resultant problems'. 

41And it is noted that persons with such circumstances, in [47], have recurrent social and interpersonal problems caused or exacerbated by alcohol or substances. 

42It is clear and I accept, based upon the observations made on the morning of the crime, and at some stage before, that Mr Edwards was in either an alcohol or drug state/ or both  I also accept the matters put to me on the totality of the circumstances, this criminality was not premeditated and seemed to be spur of the moment brought about by cognition impairment caused by alcohol and substance abuse.  I want to make it clear, of course, that I am not putting these forward as any excuse for this serious crime, in the sense as perhaps referred to in the analysis of alcohol used as an excuse for crime in Hasan 2013 VSCA 352, at [21] to [35].  But clearly, these matters are necessary to understand the subjective factors in his background which lead to a finding of reduced culpability, on both a Bugmy and Verdins basis.

43The complexity, of course, of such a background causes the Court to consider the issue that comes from the need for the Court to consider community protection.  It is obviously vital, in this case, for Mr Edwards to get treatment both, while he is in gaol and subsequently, to reduce his dependency on drugs and to get treatment for his other issues, in particular, substance abuse. 

44As I have detailed in this consideration of community protection, an analysis of his relevant priors demonstrates a person who does not appreciate the vital relationship between consent and sexual activity.  It is very important, equally, for steps to be taken by the authorities to give him relevant treatment in this regard. 

45Coming then to the issue of rehabilitation, of course, part of the complexity in this case and indeed, part of the tragedy in regard to many indigenous Australians, is the difficulty of overcoming these longstanding issues.  It is hoped that this period of imprisonment that will have to be served, will be such as to ensure that crimes of this magnitude are not committed again by Mr Edwards. This is clearly the most serious crime that he has ever committed, and the consequences will be dramatic for him, in the sense of the service of a period in gaol. 

46It is appropriate, and it has been accepted, as I understand it, by the prosecution, for me to take into account Verdins Factors 5 and 6 as demonstrated by the professional material before the Court.  The fact of being incarcerated, not being with his family, not being able to mark the deaths of family, has already impacted mentally on Mr Edwards in gaol. 

47Finally, in regard to the sentence of Mr Edwards, one must take account of the principles detailed by the High Court in DPP v Dalgleish [2017] 91 AL JR 1063, 1075 and [64] to [68].  I stress that the sentence of Mr Edwards requires individualised justice.  The administration indeed of the criminal law, as said by the High Court, involves individualised justice and the imposition of just sentence on an offender, in a particular case, based upon the facts of that particular case.  I seek to do that. 

48Given the circumstances, you just remain where you are Mr Edwards. As a result of the verdict of the jury, you will be convicted on the charge of rape, which is Charge 1 in the indictment.  Mr Edwards, having taken account of all factors put to me, I sentence you for the crime of rape to a period of six years imprisonment.  As to such sentence, such of course, relates not only to the objective factors that I have rehearsed, but the subjective factors put to me by your counsel and indeed, all factors put to me by both counsel.  I order that the period you should serve is four years before being eligible for parole. 

49As to s5B(4)(1), can I indicate that the totality of factors referred to me in this sentence, apart from the objective criminality have been such that the
non-parole period imposed by me is higher than statutorily imposed, albeit only minimally. 

50Mr Edwards, it gives me no pleasure to sentence you to this period of imprisonment for this crime.  As you have said, you want to enjoy your life and your family and I have indicated, there is only way you are going to do this. When you get out, you cannot go back to the life of booze and drugs that you have lived.  You also must ensure that you listen to people who hopefully, while you are inside, will try to teach you the very important aspects and importance of the issue of consent, insofar as it relates to sexual relations.

51HIS HONOUR:  Yes, before we stand down, so that Ms Jackson can talk to
Mr Edwards, anything I need to clarify, Mr Prosecutor?

52MR BATTEN:  No, Your Honour.  I think Your Honour's declared the 440 days so - - -

53HIS HONOUR:  I haven't actually, have I, formally?  I declare the, what did we say - - -

54MR BATTEN:  440.

55HIS HONOUR:  I declare the 440 days which Mr Edwards has now served on remand as time served as part of this sentence and such to be taken into account by the authorities. 

56MR BATTEN:  As Your Honour pleases.

57HIS HONOUR:  Ms Jackson, anything further I need to say?

58MS JACKSON:  Nothing further, Your Honour.

59HIS HONOUR:  Thank you.  Everything all right for you, Madam Associate?  I think we can do it.  Mr Batten, if you would be good enough, when
– if you leave - - -

60MR BATTEN:  Yes.

61HIS HONOUR:  - - - I will leave and Ms Jackson then has the opportunity – we have got another matter starting, but Ms Jackson, I will give you the opportunity – our matter is not starting until 11, so you will get some time to explain to
Mr Edwards what has just happened to him and I thank everyone else online for attending, albeit remotely.

62MS JACKSON:  Thank, Your Honour.

63HIS HONOUR:  All right.

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