Director of Public Prosecutions v Elkin

[2025] VCC 1397

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-25-01034

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY ELKIN

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JUDGE:	HIS HONOUR JUDGE DEMPSEY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2025
DATE OF SENTENCE:	22 September 2025
CASE MAY BE CITED AS:	DPP v Elkin
MEDIUM NEUTRAL CITATION:	[2025] VCC 1397

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:                Sexual assault and sexual assault by compelled touching. Victim unconscious because of drug use in her own home. Serious victim impact. Early plea of guilty. Remorse. Mature offender. Prior criminal history largely confined to dishonesty and drug related offended. Prospects for reform. Serving sentence for different, unrelated offending. Totality. Setting new non parole period.

Legislation Cited:        Crimes Act1958 (Vic), Sentencing Act1991 (Vic), Sex Offenders registration Act 2004 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; The Queen v Verdins (2007) 16 VR 269; R v Redenbach (1991) 52 A Crim R 95; Hasan v The Queen [2010] VSCA 352; Watkins v The King [2022] VSCA 203; DPP v Fellows [2002] VSCA 58; Matheas v The Queen [2017] VSCA 330; Cutri Fruit Pty Ltd v The King [2025] VSCA 173; DPP v Saiin[2022] VCC 558; DPP v Mahesh (a pseudonym)  [2019] VCC 959; DPP v Khan [2017] VCC 652; DPP v Miller (a pseudonym)  [2021] VCC 1969; DPP v Lobert 2018) VCC 1277; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 518 ; Morgan v The Queen (2013) 40 VR 32 ; R v Rich (No 2)(2002) 4 VR 155, R v Stares (2002) 4 VR 314; R v Bortoli [2006] VSCA 62; R v Morgan [2008] VSCA 258; Power v The Queen (1974) 131 CLR 623; DPP v Milson [2019] VSCA 55.

Sentence:                   2 years and 4 months, 18 months of which is to be served part-cumulatively on current 3 year sentence. New total effective sentence of 4 years and 6 months with a global non-parole period of 3 years.

s6AAA:  4 years and 6 months with a non-parole period of 3 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. McCarthy	OPP
For the Accused	Mr A. Paull	Adrian Paull Lawyers

HIS HONOUR:

INTRODUCTION

1Ashley Elkin, you have pleaded guilty to:[1]

[1]Indictment R10564520.

#	Offence & particulars	Source	Max Penalty
1	Sexual assault 10 July 2024 (lifting up the victim’s top and touching her breasts)	Crimes Act, s 40(1)	Level 5 10 years
2	Sexual assault by compelling sexual touching 10 July 2024 (using the victim’s hand to touch your anus)	Crimes Act, s 41(2)	Level 5 10 years
3	Sexual assault by compelling sexual touching 10 July 2024 (using the victim’s hand to masturbate your penis)	Crimes Act, s 41(2)	Level 5 10 years
4	Sexual assault 10 July 2024 (putting your hand down the victim’s pants and touching her vagina)	Crimes Act, s 40(1)	Level 5 10 years

2This offending occurs over a two-minute period against the same victim, who was unconscious in her own home with you. Those two minutes have had a profound impact on her. I consider this to be serious offending.

3You have a prior criminal history that is best described as involving general criminality (mainly dishonesty and trafficking) allied to drug misuse. The reason for that drug dependence is truly unfortunate, and I will come to it. You are currently serving a term of imprisonment of three years with a minimum term of two years for offences of a vastly different nature. Totality plays an important role in this sentencing exercise.

4I was assisted by high quality submissions both in writing and orally on the plea. I am grateful for the assistance that I was given in the case.

5It was conceded by Mr Paull on your behalf that a term of imprisonment is the only appropriate sentence in the circumstances. I was invited to permit a significant period of parole to allow you to undertake treatment and address your substance abuse issues in the community with renewed family support and stability. I will do that.

6The length of the sentence I impose, the orders I make for cumulation on the sentence you are currently undergoing, and the setting of a new global non-parole period are all explained in my sentencing reasons which follow.

OFFENDING[2]

[2]Taken from Exhibit A (Summary of Prosecution Opening for Plea dated 15 August 2025). See also Exhibit C (Summary of Prosecution Opening Addendum dated 1 September 2025).  

The parties

7At the time of the offending, you were 42 and your Victim Ms Susan Lockwood[3] was 27. You and your Victim knew each other because you were friends with her ex-partner.

[3]A pseudonym.

Lead up

8You contacted the Victim on 10 July 2024 between 9:00 am and 10:00 am via Snapchat. You said you were 'coming down' (i.e. visiting Melbourne) from Geelong and asked the Victim if she would like to meet. You arrived at the Victim's house in the northern suburbs of Melbourne at about 11:21 am.

9You, the Victim, and her friend Brett Ryan[4] were at the house (the latter having stayed at the house the night before). At around 11:45 am to 12:00 pm, the Victim took some GHB which you had brought to the house in a small bottle (uncharged conduct).

[4]       A pseudonym.

10Ms Lockwood is unsure how much GHB she consumed as it was in a 6-millilitre plunger without any measurements on it.

11After taking the GHB, the Victim became 'really hot and tipsy' and passed out on a couch in the lounge room. She did not remember much between taking the GHB and passing out on the couch but did remember both you and Mr Ryan were still present and had also used the GHB (albeit she did not know how much GHB was used by either of you).

12Mr Ryan left the apartment around 12:31 pm. The Victim was still unconscious, laying on the couch. You approached her and tapped her a number of times on the stomach and legs, and then sat beside her.

Acts constituting Charges 1, 2, 3 and 4

13At around 12:35 pm, you pulled the Victim's top up and begun to touch her breasts for about 10 seconds before pulling her top back down. [Charge 1 – sexual assault].

14You then stood up beside the Victim and pulled your own pants and underwear down. You took the Victim's left hand and moved it to the area of your anus, causing mainly the Victim's middle and ring finger to touch the area around (but not penetrate) your anus for approximately 15 seconds [Charge 2 – sexual assault by compelling sexual touching].

15You then moved the Victim's left hand from your anus and used it to masturbate your penis for about 20 seconds [Charge 3 – sexual assault by compelling sexual touching].

16You then removed the Victim's hand from your penis and placed it beside her. You masturbated while standing next to and over the Victim for about 20 seconds (uncharged conduct).

17Finally, you placed your left hand down the front of the Victim's pants and touched (but did not penetrate) her vagina for approximately 20 seconds [Charge 4 – sexual assault].

18At around 12:37 pm, you sat and put your underwear and pants on.

19The Victim was unconscious for the entire duration of this offending.

Detection of the offending

20The Victim remembers waking up in her bathroom at around 1:00 pm or 2:00 pm that afternoon.

21Whilst she was unconscious, you had invited one of your friends (an unknown person) over to her house. Upon awakening she went to her bedroom until the friend left.

22The Victim had a brief conversation with you in the lounge room. You watched TV and passed out at one point. Mr Ryan returned and the three of you spent time together until you left around 6:15 pm.

23Around 7:00 pm, the Victim viewed video footage of the offending which had been captured on an internal camera set up in her loungeroom (that camera having been set up so that she could keep an eye on her dog when she was at university).

24All of the offending was visible on that footage. I was asked to view it, which I did.[5] It was confronting.

Police report and investigation

[5]Exhibit B; USB of Footage. 

25On 17 August 2024, the Victim contacted Mernda police to report the incident.

26On 5 September 2024, she attended Reservoir police station, made a statement, and provided a copy of the video footage.

27On 12 September 2024, police contacted Fulham Correctional Centre and they requested to interview you, given you were in custody in relation to another matter.

28On 9 October 2024, staff at Fulham Correctional Centre advised police that you had declined to be interviewed

29On 2 January 2025, the Victim attended Mernda Police Station to discuss the investigation and the video footage of the offending with Detectives.

30You were charged by way of summons on 21 February 2025.

Victim impact

31Ms Lockwood furnished a powerful and eloquent Victim Impact Statement (VIS) dated 19 August 2025.[6] She attended the Court with the support of friends and courageously read that victim impact statement in open Court.[7]

[6]Exhibit F.

[7]Omitting by agreement reliance on the words ‘drugged and’ on p4. Per Sentencing Act 1991 (Vic) s.8L(5)(b).

32She says her wellbeing has not been the same and she feels she will never be the same after this offending. You have left her with an unending sense of fear and unease. Her self-confidence and autonomy have suffered. She no longer trusts others, instead she is vigilant, suspicious and nervous. Her home is filled with memories of what you did to her there. She installed new security systems there which she could ill afford. Her mind is filled with intrusive thoughts, making it difficult for her to focus. She has not been able to return to university. She struggles to leave the house. She struggles to retain employment. She is isolated now, and her life has to some extent stalled. It is presently far from what she imagined it to be.

33You did this to her Mr Elkin. Your conduct is shameful and worthy of condemnation. It has had profound, enduring effects on the victim. One hopes that life improves for her, but at present that seems a long way away.

34I take into account the sheer amount of damage you did and the effect your crimes have had on the victim in this matter when sentencing you.

Case history

35I will deal with this matter and the relationship it has with the sentence you are presently undergoing in summary by way of a chart here. I will deal with more detail about their interaction for the purposes of sentencing when attending to issues such as totality and the prospects for reform.

Date	Event
December 2023	First series of charged incidents[8]
11 July 2024	Offending
16 August 2024	Second series of charged incidents  Remand
5 September 2024	Victim makes statement
13 September 2024	Request via Corrections to interview Accused
20 October 2024	Accused declines to be interviewed
6 February 2025	Warrnambool Magistrates’ Court  TES 36 months imprisonment  NPP 24 months  PSD 174 days
3 January 2025	PSIO application (to expire in June 2035)
21 February 2025	Accused charged on summons  (thus there is no PSD attributable to this matter)
21 March 2025	Filing hearing
27 May 2025	Defence offer to resolve
4 June 2025	Prosecution counter-offer to resolve
4 June 2025	Further Defence offer to resolve
5 June 2025	Further Defence offer rejected
6 June 2025	Offer to resolve accepted  Matter resolved
6 June 2025	Committal mention  Committed to the County Court on a plea of guilty
12 September 2025	Plea
22 September 2025	Sentence

[8]Shaded in the above chart-–the details of which I will come to in due course

MATTERS PERSONAL TO THE ACCUSED

36Matters personal to you were helpfully set out in your Counsel's submissions,[9] accompanied by:

(a)   Report of Gina Cidoni dated 9 September 2025;[10]

(b)   Letters in support of you;[11] and

(c)   Certificate of courses completed while you were in custody.[12]

Biographical details[13]

[9]Exhibit 1; Outline of Submissions dated 9 September 2025 (as amended with paragraph numbers included).

[10]Exhibit 2.

[11]Exhibits 3 and 4 respectively.

[12]Exhibit 5; (Bundle of Certificates from Custody).

[13]Taken largely from Exhibit 1 at [3] and following, supplemented by comments made by your family and the report of Ms Cidoni.   

37You are now 44. You were raised in the Barwon Heads / Ocean Grove area. Your parents separated when you were seven. You have a younger sister. You describe both you and your sister as a handful as children. 

38Your mother suffered from mental health issues. Your father was simply not interested in you and your life and has lived in Bali for many years.

39You became a Ward of the State at around the age of 12. By the age of 15 you were living independently. Your background is one that has the hallmarks of adversity (not rising to the level of Bugmy,[14] but still relevant), that you had largely overcome until your health deteriorated. Your mother and sister who attended Court for you have also overcome their own serious difficulties, placing them in a strong position to assist you upon release. I have taken into account the thoughtful, insightful, and (above all) frank references they have provided to the Court. That they are there for you at this point in your life, which must on any view of it be close to your lowest ebb, is important.

[14]Bugmy v The Queen (2013) 249 CLR 571.

Education and employment

40You have a Year 9 education. You left school and went to work.

41You were employed for about three years in a sawmill. Your employer was a positive role model (in circumstances where you had very few positive male role models in your life) who instilled a strong work ethic in you.

42You then took work at Timber Truss prefabricating timber frames. You were in that employment for six years before rising to become afternoon shift supervisor.

43You then worked at Interflow—an underground pipe repair firm. Because of your people skills, you travelled around Australia and New Zealand training staff for that organisation. You were forced to leave this employment in around 2013 when you were first diagnosed with melanoma, and your treatment regime became overwhelming.

44When you had sufficiently recovered to rejoin the workforce, you were employed on a casual basis for a skip-bin company. Your employers were supportive and allowed you to work around your cancer treatment. That company was sold in 2020 and you ‘fell off the rails’.

45You found yourself in custody for the first time as an adult in 2021.

46You were working part time in wall and floor tiling at the time of your remand on previous matters in August 2024. Work, which was historically a protective factor against re-offending, was not so effective it seems more recently.

Relationships

47You are single and have no children.

48You were in a stable 10-year relationship from your early twenties. When you stopped working due to poor health, financial issues caused arguments and you and your partner separated. You remain amicable.

49Most recently you were in a relationship for about three years. The relationship has petered out since your remand. Your former partner has experienced her own serious health issues, drug abuse, and interactions with the Criminal Justice System. Since the current offending has come to light, she has distanced herself from you.

Drug Use

50You dabbled with cannabis as a youth until you got your driver's licence.

51Fifteen years later, after being diagnosed with cancer, you became dependent on a range of more sinister substances such as Oxycodone and Endone—ultimately developing a serious issue with cocaine, heroin, GHB, and methylamphetamine.

52Your drug abuse became a constant feature of your life. Your opiate use had increased to smoking heroin. At the time you violated Ms Lockwood, you were affected by both GHB and methylamphetamine.

Mental and Physical Heath

53Since your melanoma diagnosis you have undergone eight operations and radiotherapy since 2016 alone. The cancer spread to your lymph nodes. You have gone into remission and then the cancer returned. You underwent treatment at the Andrew Love Centre in Geelong, where a large team of supporters assisted you with your treatment. As your condition improved, the team reduced in size. When you no longer required treatment, you were discharged but left with the burden of dependence on opiate-based pain medication. You still attend Geelong University Hospital annually for scans.

54Your mental health deteriorated along with your physical health. The process of spending weeks in hospital, then being discharged only to be readmitted for further treatment sent you into a deep depression sufficient enough for you to become actively suicidal.

55You were assessed by psychologist Ms Gina Cidoni on 5 September 2025, who found that:

(a)   your insight was fair to good and that you demonstrated a capacity for
self-reflection regarding the link between the offending and the deterioration of your functioning due to your drug abuse;[15] and that

[15]Exhibit 2; Report of Gina Cidoni dated 9 September 2025 at [50].

(b)   you suffered from a range of disorders including:

·Other Specified Trauma and Stressor Related Trauma;

·Depressive Disorder Due to Another Medical Condition;

·Cannabis Use Disorder;

·Opioid Use Disorder;

·Stimulant Use Disorder;

·Sedative, Hypnotic and Anxiolytic Use Disorder;

·Other Hallucinogen or Dissociative Use Disorder; and

·Alcohol Use Disorder.

56These matters are useful to understand you, your difficulties, and your needs in the future. They were expressly (and sensibly) not relied on as enlivening any of the Verdins[16] principles.

[16]       R v Verdins (2007) 16 VR 269.

Forensic history

57Your forensic history commences in the Children's Court in 1994. There are a number of appearances in that jurisdiction. 

58As a young adult, you committed the offence of Wilful and Obscene Exposure in Public. You were sitting in your car in 2006 fondling your exposed genitals.  You received an 18-month Community Based Order. You contravened this order, and it was varied and extended. You then complied with and completed the order. I have read the summary and breach report in that matter.[17] I am told you were disinhibited by drugs at the time of that offence too, although it occurs nearly 20 years ago, and until now, nothing like it had ever happened again.

[17]Exhibit E; Breach Package (2006).

59Importantly, and consistent with the history I just outlined, from 2007 to 2021 you had no involvement with the Criminal Justice System in any way.

60It is only after developing an addiction to pain medication (the prescription of which ceased upon treatment) you turned to street drugs as an alternative. Your life became heavily intertwined with negative peers by that connection. Criminality and Court appearances inevitably followed.

61Since 2021 you have committed numerous offences relating primarily to dishonesty and drug related offending.

62The offending that you are currently serving the present sentence for is for trafficking a number of firearms over a period of time between December 2023 and August 2024, to on-sell for money. You also possessed and trafficked drugs. For completeness I will note that I have read the agreed summary for that offending[18]  and the breach reports.

[18]Exhibit H; Summary of Offences dealt with in Warrnambool Magistrates Court on 6 February 2025.

63This was part of a large, consolidated plea hearing involving breaches of community corrections orders that were imposed at various times for dishonesty, drug and driving offences. I have, as I have said, read the breach reports.[19] These breaches involve resentencing you for offences that occurred as far back as 2021, when you were placed on CCOs, breached them, and then placed on yet more CCOs by way of resentencing. Overall, your compliance was poor, and you made little progress. I can see why you received a term of three years with a non-parole period of two years.

[19]Exhibit G; CCO Breach Reports from 2023 and 2024.

64Your poor recent history with supervision casts a shadow over your prospects for reform.

Time in custody

65You have used your time in custody meaningfully.[20] You have completed numerous vocational courses through Kangan. You have also completed the Men Leading by Example program and the Wise Up program. You lead a team in the Nursery—looking after plants in hothouses and gardens. You engage in sport as a source of physical activity to assist in your sleep and develop daily structure.

[20]Exhibit 1 (Outline of Submissions dated 9 September 2025) at [31]; Exhibit 5 (Bundle of Certificates from Custody).

Supportive family

66After years of estrangement, your mother and sister have returned to your life. Your mother has withdrawn from an emotionally abusive marriage and started her life again in Geelong. She is employed by a local Family Law firm as a part-time administrator.

67Your sister contacted you while you were in custody to tell you that you both needed to get past your previous issues 'for the sake of [your] mother'. Having overcome her own drug dependence issues, your sister has significant insights into the difficulty of leaving this lifestyle behind and intends on supporting you in your rehabilitation.

68Their presence in your life is important and I consider it to be a protective factor.

Risk assessment

69Ms Cidoni conducted a risk assessment using two tools, firstly, the Sex Offender Risk Appraisal Guide (SORAG) and the Sexual Violence Risk Assessment (SVR-20) tests.

70She found as follows.

SORAG

71You were in Category 6:[21]

‘Although he has no history of contact sexual convictions the presence of [his] earlier offence, combined with the persistent behavioural instability, history of antisocial conduct, and entrenched difficulties in emotional and interpersonal regulation contributes to his elevated risk profile.’

[21]Exhibit 2; (Report of Gina Cidoni dated 9 September 2025) at [60].

72She opined that your difficulties are more consistent with emotional instability and poor behavioural control rather than entrenched psychopathic functioning. [22]

SVR-20

[22]Exhibit 2; (Report of Gina Cidoni dated 9 September 2025) at [61].

73

The current index offending occurred while you were acutely intoxicated on GHB and other substances. You acknowledge that your judgment and inhibitions were severely impaired. This pattern suggests that your sexual offending is not primarily driven by enduring paraphilic interests or persistent predatory behaviour, but rather emerged in the context of substance dependence, disinhibition, and impaired

self-regulation.[23]

[23]Exhibit 2; (Report of Gina Cidoni dated 9 September 2025) at [65].

74Your risk of future sexual violence is elevated but mediated more by psychosocial instability and substance dependence than by entrenched sexual deviance.

75Your overall profile suggests a moderate to high level of risk contingent upon management of dynamic factors. Sustained treatment for substance use and trauma, together with external supervision and stable social support represent the most significant protective measures to reduce the likelihood of recurrence.[24]

[24]Exhibit 2; (Report of Gina Cidoni dated 9 September 2025) at [67].

MATTERS OF SENTENCING PRINCIPLE

Gravity and motivation

76At the time of the offending, you were affected by GHB and methylamphetamine. Your consumption of these substances served to impair your inhibition and heighten your sexual disinhibition.[25] This is not relied on as mitigatory, but rather by way of explanation as to why you did act the way you did. The Crown very  fairly do not say that your state of self-induced intoxication is aggravating either.[26] I can only conclude that you exploited your victim for your own sexual gratification. Your culpability for this offending is high.

[25]Exhibit 2; (Report of Gina Cidoni dated 9 September 2025) at [79].

[26]Exhibit J; Prosecution Submissions on Sentence dated 11 September 2025 at [15], applying R v Redenbach (1991) 52 A Crim R 95, 99.

77The victim in this matter had consumed GHB and was so obviously unconscious. It is not put against you that you plied her with GHB for the purposes of later offending.

78She had no ability to protect herself or communicate with you at the relevant time. You knew this. You even checked to see if you could rouse her. You could not. You then almost immediately violated her. This in my view is a factor which accentuates the gravity of this offending.[27]

[27]Hasan v The Queen [2010] VSCA 352.

79Your offending occurs over a two-minute time frame, with each act representing a separate offence that adds to the overall violation of the victim. Your depraved acts were similar, and reasonably constant over that period of time and I see no reason to differentiate between the sentences I impose on the individual charges.

80This conduct, though opportunistic, is properly described as predatory. It represents a betrayal of sorts of a young woman you knew and who had invited you into her home.[28]

[28]Acknowledging that the relationship between you might not fall within the strict definition of a position of trust. See Watkins v The King [2022] VSCA 203 at [39].

81The offending occurred in an environment where the victim had a right to feel secure and safe.[29] But for her positioning of a CCTV camera in the loungeroom to check on her dog whilst she was at university, the offending may have never come to light.

[29]DPP v Fellows [2002] VSCA 58 at [37].

82Your offending has had a profound impact on her.

83I consider this to be serious offending.

Sentencing purposes

Denunciation, punishment, general deterrence

84It is conceded by Mr Paull that all of those matters assume real significant weight in the sentencing calculus.

Serious offenders regime and community protection

85All charges are prescribed 'sexual offences' for the purposes of the serious offenders regime, as set out in the Sentencing Act 1991 (Vic).[30]

[30]Sentencing Act 1991 (Vic) Sch 1, cl 1(a)(ii).

86If a term of imprisonment is imposed (and it will be in relation to Charges 1 and 2) you become a 'serious sexual offender' within the meaning of the Act.[31] Once this occurs you will be sentenced as a 'serious offender' for Charges 3 and 4 and sections 6D, 6E, and 6F of the Sentencing Act 1991 (Vic) will apply (to Charges 3 and 4).[32]

[31]Sentencing Act 1991 (Vic), ss 6B(2), 6C.

[32]When sentencing serious sexual offenders, the court has a discretion to impose a longer sentence than it otherwise would to achieve protection of the community (s6D(b) Sentencing Act). Disproportionate sentences are rare (Matheas v The Queen [2017] VSCA 330 at [41] [Tate JA and Maxwell P agreeing]). The test is referred to in Matheas by Tate JA at [43] quoting Connell). The exercise of the discretion is not dependent on the consent of the prosecution (Matheas at [43]), and I have taken into account the Crown’s position on this and agree with it.

87The provisions relating to community protection as the principal purpose in sentencing[33] and cumulation[34] are relevant to those charges. The court retains a discretion with respect to the issue of cumulation in order that the overall sentence not offend the principle of totality.

[33]Sentencing Act 1991 (Vic) s6D.

[34]Sentencing Act 1991 (Vic) s6E.

88With respect to community protection, Mr Paull submitted that I can adequately give effect to this principle, bearing in mind your reasonable prospects of rehabilitation, that the offending is more the result of drug abuse than a paraphilic disorder or persistent predatory behaviours, without the need to consider a disproportionate sentence.[35] The Crown do not urge me to impose a disproportionate sentence to achieve the elevated aim of community protection,[36] and I will not do so.

[35]Exhibit 1; Outline of Submissions dated 9 September 2025 at [37].

[36]Exhibit J; Submissions on Sentence dated 11 September 2025 at [12].

Specific Deterrence and Rehabilitation

89Your Counsel submitted that despite the increase in your criminal conduct since 2021, your prospects of rehabilitation are not extinguished. You have been able to remain out of the Criminal Justice System for many years (2007–2021) and had held solid employment from the age of 15 until you contracted cancer in 2016, and then worked when you could during treatment until 2020.

90Lengthy engagement with drug treatment and rehabilitation services would increase your prospects of returning to a law-abiding lifestyle. You have had those chances before, of course, under the auspices of a CCO very recently, and failed to take advantage of those orders.

91This also impacts on the issue of community protection beyond the involvement of the courts that I have just touched on. Ms Cidoni considered your prospects of rehabilitation as fair provided there is a comprehensive treatment plan. 

92In addition, the renewed support of your sister and mother are significant protective factors given that they have been absent for many years.

93It seems to me your prospects for rehabilitation are almost wholly allied to your ability to remain drug free. Ms Cidoni's findings above fortify that view.

94Your willingness to accept responsibility for this offending and expressions of remorse are relevant to the Court's assessment of your prospects. I will assess the value of your plea in a moment.

Current sentencing practices (CSP's)

95While each case must, of course, be assessed on its own facts and circumstances, other sentencing cases may be of assistance in guiding the Court where such cases bear similar features or where such cases deal with relevant sentencing principles.[37]

[37]Cutri Fruit Pty Ltd v The King [2025] VSCA 173.

96I have familiarised myself with current sentencing practices for sexual assault and sexual assault by compelled touching. These are offences of course that can be committed in a myriad of different ways and occur in a wide range of circumstances. It is hard to truly discern a clear range of sentences for this type of offending.

97I have looked to the case collection available through the Judicial College of Victoria (JCV) for the offences of sexual (or indecent) assault[38] as well as the Sentencing Advisory Council sentencing snapshot for the same offence[39] for assistance.

[38]JCV at 3.2.1 Court of Appeal Sentence Overview.

[39]Snapshot 280, September 2023.

98In crude statistical terms, the most common range of imprisonment is between one to two years. In terms of the average imprisonment length for the principal offence of sexual assault; imprisonment lengths ranged from one year and three months in 2020–21 to one year and 11 months in 2021–22. Over the five-year period covered by the Snapshot the average imprisonment length for sexual assault was one year and four months.

99The median total effective sentence of imprisonment was one year and 10 months, with the median principal sentence of imprisonment being one year and four months.

100The total effective sentences ranged from as little as one month to as much as eight years and five months, and non-parole periods ranged from seven months to five years and three months

101I had regard to the table of cases provide by Mr Paull, all of which at least had the fact in common that the victim was unconscious and the accused in question had pleaded guilty:[40]

(a)   DPP v Saiin;[41]

(b)   DPP v Mahesh (a pseudonym);[42]

(c)   DPP v Khan;[43] and

(d)   DPP v Miller (a pseudonym);[44]

[40]Exhibit 1: Outline of Submissions dated 9 September 2025 at page 8 and following.

[41][2022] VCC 558.

[42][2019] VCC 959.

[43][2017] VCC 652 Leave to appeal against sentence dismissed [2018] VSCA 61.

[44][2021] VCC 1969.

102The range of individual sentences for sexual assault ranged there from four years to six months. The circumstances of the offending differed wildly, as did the personal circumstances of the accused

103Mr McCarthy urged a degree of caution in the way I treated those cases, noting that there are of course differences between those offences (and offenders) and your case, such that it is hard to discern a clear trend in sentencing.

104He pointed to DPP v Lobert[45] as a comparator of sorts whilst acknowledging the limitations of this exercise.

[45][2018] VCC 1277.

105That case had some features in common with yours, (the offender and the victim were friends, the victim was asleep, the accused pleaded guilty to a single charge though of touching breasts and vagina) however the accused in question was 25, had a difficult childhood, had clean drug screens and it was his first time in adult custody. He received five months' imprisonment to be followed by way of a two year and six-month CCO.

106Broadly speaking the cases I have been referred to involve incapacitated victims who are sexually preyed upon, but beyond that it is very hard to engage in a comparative exercise, and I am mindful that I am not engaging in a de facto exercise in the application of parity by reference to those cases either.

107While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past[46] and current sentencing practices represent just one of the sentencing factors to be considered. Previous sentencing decisions have made clear the importance of general deterrence and protection of the community in relation to sexual offences. Clearly, sentences for sexual offences are treated very seriously, especially if the victims are in an especially vulnerable position.

Plea of guilty

[46]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at [83].

108You pleaded guilty at the first committal mention on 6 June 2025. The prosecution conceded that this is a plea at the earliest reasonable opportunity.

109There is significant utility in the plea which remains undiminished by the strength of the case against you. This is particularly relevant in a sexual offence matter where Ms Lockwood was not cross-examined. There is a human saving implicit in pleas of guilty in high impact offences such as this.

110Your plea demonstrates a willingness to facilitate the course of justice.

111Your plea can be considered an indication of remorse. You also expressed genuine contrition and disgust for your own conduct when assessed by Ms Cidoni.[47]

[47]Exhibit 2; Report of Gina Cidoni dated 9 September 2025 at [15], [50], and [77].

Totality

112I am mindful of the significance in this case of the application of principle that requires me when sentencing you for multiple offences to ensure that the aggregate term I impose is a just and appropriate measure of the total criminality involved. This applies not only when I consider the inter-relationship of the charges on the present indictment, but also when I consider how my sentence inter-relates with the existing sentence you are undergoing.

113The four offences occurred within the same incident and within a two-minute time period. Where two or more offences are committed in the course of a single 'transaction', the notion that the sentences in respect of those offences should be concurrent rather than consecutive, applies strongly where the offences took place against the same victim within moments of each other. There ought to be a substantial degree (but not total degree) of concurrency ordered.[48] So much is conceded.[49] I have made very modest orders for cumulation on three of the charges upon the base in order to conform with the rule relating to single transaction offending, whilst still recognising that they are separate criminal acts causing separate harm.

[48]Flynn (a pseudonym) v The Queen [2020] VSCA 173.

[49]Exhibit 1 (Outline of Submissions dated 9 September 2025) at [34]; Exhibit J (Submissions on Sentence dated 11 September 2025) at [2].

114You are, however, currently serving a term of imprisonment of 36 months with a non-parole period of 24 months imposed in the Warrnambool Magistrates' Court on 6 February 2025.

115When you were sentenced, you had served 174 days of pre-sentence detention You have now served a further 227 days of that sentence since you were first remanded, meaning that you have served a total of 403 days or just over 13 months for that offending already. As things presently stand, but for this matter you would have been eligible to apply for parole in just under a year. The head sentence would expire in August of 2027.

116That previous offending was entirely different in nature, gravity, location and community impact and harm. As far as I can discern, it occurs from a period of December 2023 and August 2024. This present matter occurs on a single day in June 2024.

117Consequently, I am dealing with distinct and different criminality representing serious harm to a new victim, which requires a substantial degree of cumulation upon the sentence that you are currently undergoing.

118The well-known principles governing totality are dealt with in Mill v The Queen,[50] and R v Todd.[51] In Morgan v The Queen,[52] the Court of Appeal remarked that in cases where Mill is to be applied in its purist sense, the question to be asked by the sentencing judge is:[53]

What sentence would have been imposed had the offender been dealt with at the one time for two or more of the sets of offending?

[50]Mill v The Queen (1988) 166 CLR 59.

[51]R v Todd [1982] 2 NSWLR 518.

[52]Morgan v The Queen (2013) 40 VR 32.

[53]Ibid, 55 [104].

119I have applied these considerations in your case.

Setting new non parole period

120I am also required to apply section 14 of the Sentencing Act 1991 (Vic) which requires me to set a new non-parole period.

121The single new non-parole period is not a 'sentence of imprisonment' for the purposes of determining when a sentence commences.[54] Although a new single non-parole period could start at the date of either the parole sentence or the new sentence, as a matter of practice courts are encouraged to fix the date of the new sentence as the date of the new single non-parole period. The most vital concern is that the date be expressly stated.[55] When the court fixes a new single non-parole period to commence from the date of the new sentence it must make an allowance for the parole period already served.[56]

[54]R v Rich (No 2) (2002) 4 VR 155,

[55]R v Stares (2002) 4 VR 314.

[56]R v Bortoli [2006] VSCA 62.

122The length of the new single non-parole period should reflect the standard considerations for fixing a non-parole period.[57] I have done this.

[57]R v Morgan [2008] VSCA 258.

123It appears to be accepted that the proper application of principle results in head sentences and non-parole periods that fall within a common proportional range and that comparisons to these ranges is permissible in exercising the sentencing discretion. While courts have said there is 'no usual non-parole period', the empirical observation is that non-parole periods usually fall within 60-75 per cent range which still 'informs the sentencing task by providing an important guide to sentencing judges'.

124The period I have set pays due regard to your prospects for reform whilst maintaining appropriate weight to be given to necessary and important countervailing factors when sentencing. I have allowed for a measure of mitigation of punishment in favour of your reform through conditional release.[58]

[58]Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.

125I have allowed for what I consider to be a meaningful period of parole should you be eligible for it. The setting of both the head sentence and non-parole period pays due regard to both the punitive and deterrent aspects of sentencing, and takes into consideration your personal circumstances, plea of guilty, and all other factors raised in mitigation.

126Ultimately, the community will be best protected by your enduring rehabilitation,[59] and I have attempted to fashion a sentence that will encourage the good in you and tame, or treat, the bad.

[59]Sentencing Act 1991 (Vic) ss 51(1)(c) and 51(1)(e). See DPP v Milson [2019] VSCA 55, [71].

SENTENCE IMPOSED

127Having considered the many and various sentencing considerations required of me in this exercise, I sentence you as follows:

#	Offence & particulars	Sentence	Cumulation on base on each other
1	Sexual assault 10 July 2024 (lifting up the victim’s top and touching her breasts) Crimes Act, s 40(1) Level 5 (10 years maximum)	22m	BASE
2	Sexual assault by compelling sexual touching 10 July 2024 (using the victim’s hand to touch your anus) Crimes Act, s 41(2) Level 5 (10 years maximum)	22m	2m
3	Sexual assault by compelling sexual touching 10 July 2024 (using the victim’s hand to masturbate your penis) Crimes Act, s 41(2) Level 5 (10 years maximum)	22m  *SSO	2m
4	Sexual assault 10 July 2024 (putting your hand down the victim’s pants and touching her vagina) Crimes Act, s 40(1) Level 5 (10 years maximum)	22m  *SSO	2m

128My intention is to sentence you to two years and four months' imprisonment. 

129I will direct that one year and six months, that is to say 18 months of that sentence that I have just imposed, be served cumulatively upon the three year sentence that you are currently undergoing.

130This means for the totality of your offending, you will be required to serve a total effective sentence (TES) of four years and six months (54 months).

131Pursuant to s14 of the Sentencing Act1991 (Vic), I will fix a new global non-parole period (NPP) of three years (36 months).

132You have served a total of 403 days or just over 13 months already. I will order that it has been served in satisfaction of the sentence imposed.

133For the avoidance of any doubt, it is my intention that you serve a total effective sentence of four years and six months, with a non-parole period of three years, with the time that you have thus far spent in custody (being 403 days) being deducted from that sentence. In other words, I consider the sentence commenced back on 16 August 2024. 

134I have maintained the same relationship between the head sentence and non-parole period as was the case in your previous existing sentence. The non-parole period still represents 66 per cent of the head sentence, as it did before.

ANCILLARY MATTERS

s.6AAA

135But for your plea of guilty, I would have sentenced you to four and a half years with a non-parole period of three and a half years for the offences committed on indictment R10564520 alone.

Sex offender registration

136All charges are listed in Schedule 4 of the Sex Offenders Registration Act 2004 (Vic).[60] The Crown expressly did not apply for me to make any orders under that regime, and I will not make any.

[60]Sex Offenders Registration Act 2004 (Vic) s 8(2), Sch 4, cl 1.

Serious offender declaration

137I will make orders that pursuant to the Sentencing Act1991 (Vic), on Charges 3 and 4 you are sentenced as a Serious Sexual Offender, and such a declaration will be entered into the records of the Court.