Director of Public Prosecutions v Ellis
[2025] VCC 504
•15 April 2025
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-01329
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROHAN ELLIS |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | 15 April 2025 |
DATE OF SENTENCE: | 15 April 2025 |
CASE MAY BE CITED AS: | DPP v Ellis |
MEDIUM NEUTRAL CITATION: | [2025] VCC 504 |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords: Rape. Sentence after sentence indication. Standard sentence. penile penetration of relative in her own home. Degree of force and restraint used. Mid-range example of offence. Victim impact. Plea of guilty at committal sought to be resiled from. Examination of complainant and other witnesses in anticipation of trial. Late plea, though still having utilitarian value. Prior good character, immature. Burden of imprisonment, prospects of rehabilitation, totality and parsimony. No application of Verdins. Questionable remorse. Disparity between head sentence and non-parole period.
Legislation Cited: Crimes Act1958; Sentencing Act1991; Criminal Procedure Act 2008
Cases Cited:R v Verdins (2007) 16 VR 269, Clarke v The Queen [2022] VSCA 89, DPP v Mokhtari [2020] VSCA 161, Lawrence (a pseudonym) v The Queen [2021] VSCA 291 , Jurj v the Queen, [2016] VSCA 57, Hudson v The Queen (2010) 30 VR 610, Carter v The Queen [2012] VSCA 99, Brown v The Queen [2019] VSCA 286, DPP (Vic) v Conos [2021] VSCA 367, Stafford v The King [2022] VSCA 229 Ashby v The Queen [2021] VSCA 209, Bergman (a pseudonym) v The Queen [2021] VSCA 148. Clarke (a pseudonym) v The Queen [2022] VSCA 89, DPP v Duggan [2019] VCC 1186, DPP v Sang(a pseudonym) [2021] VCC 1840 , DPP v Romero [2020] VCC 1002 , DPP v Kala [2021] VCC 151, DPP v Padroth [2021] VCC 2001, DPP v Iudice [2020] VCC 316, Phillips v The Queen [2012] VSCA 140, The Queen vMarkovic [2009] VSCA 105, The Queen vXeba [2009] VSCA 20, DPP v Pan [2022] VSCA 98, Power v The Queen (1974) 131 CLR 623 DPP v Spottiswood [2021] VSCA 146.
Sentence: Convicted and sentenced to 6 years with a non-parole period of 3 years 3 months.
s.6AAA:7 years 6 months with a non-parole period of 4 years 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata | Office of Public Prosecutions |
For the Accused | Mr V. Vuu (SIH and plea) Mr R. Davis (sentence) | Richard Davis & Associates |
HIS HONOUR:
1On 11 April 2025 a sentence indication hearing was conducted pursuant to s207 of the Criminal Procedure Act 2009 (CPA) on a single charge of rape.[1]
[1] Indictment 10344447.2.
2Rape is a serious offence, it carries a maximum penalty of 25 years' imprisonment. It is a Category 1 offence with the consequence that a sentence of imprisonment must be imposed other than in combination with a CCO unless a special reason exists.[2] No special reasons were relied on in this case. Rape is also a standard sentence, meaning the standard, not mandatory, the standard sentence applicable is 10. The presumption[3] in such a case is that you serve at least 60 per cent of the head sentence before becoming eligible for parole.
[2] s.5(2G) Sentencing Act 1991.
[3] S11(4)(A) Sentencing Act 1991.
3Having considered the matter on the same day that the sentence indication was held, I indicated that if you were to plead guilty to the charge on the indictment based on the summary of prosecution opening, the victim impact statement, the crown submissions, the submissions made and the plea material filed on your behalf that your counsel spoke to, I would impose a total effective sentence of not more than six years and indicated that I would set a non-parole period of three years and three months.
4You were given until 14 April 2025 to discuss the matter with your family and your legal representatives so that you could make an informed decision about whether or not you would accept the sentence indication. On 14 April you accepted the indication. You were arraigned and pleaded guilty to the charge.
5The plea then took place in a more formal way with a summary of prosecution opening being read into the transcript and other material tendered. Mr Vuu tendered the relevant plea material but made no further submissions. The matter was adjourned overnight to allow the victim to come to court and read her victim impact statement to me. And that has now occurred.
6I now pass sentence.
OFFENDING[4]
[4] Exhibit A: Summary of Prosecution Opening dated 2 July 2024 (Note there was an amendment made to that summary to reflect the fact that there is no charge of attempted sexual assault).
Background:
7At the time of the offending, you were 26 and resided in the Drouin area. You are now 27.
8The victim in this matter is Catherine[5] and at the time of the offending she was in her late 30s and resided locally. You and the victim are distantly related, only occasionally seeing each other at family events. At the time of the offending the victim was in a relationship with David[6] for about six months. She has three children that live with her who are teenagers.
[5] A pseudonym.
[6] A pseudonym.
9On 31 January 2023, the victim was taking her younger son to a recreation activity and decided that she might like to buy equipment so that she may participate as well. Shortly after she began communications on Facebook, via Facebook Marketplace with you, as she expressed an interest in purchasing some equipment that you had for sale.
10At about 9.14 pm on Friday 10 February 2022, the victim was at a friend's house when she received a Facebook message from you. You continued to message the victim several times before she noticed and replied. The messages were of a casual nature including 'Hey, what are you up to?' and 'What are you doing?' The victim thought it was odd and wondered if you were okay given the time of night, and it was not usual for her to receive messages from you.
11At about 10.15 pm the victim asked if you were okay, and you kept asking where she was and if you could come over to see her. She felt awkward and uncomfortable, but she was worried about your wellbeing.
12You continued to message the victim and at about 11.30 pm she left her friend's house, and she sent a message to you saying, 'Are you okay, I'm home now', and you asked for her address which she provided. Her plan was to have you come over and call her family members if she needed any support. To be clear, she had absolutely no romantic or sexual interest in you.
13Circumstances of the offending:
14At about 11.45 pm the victim arrived home and checked on her daughter who was asleep in her room at the back of the house. The victim would not normally lock the front door, and did not do so on this occasion. She went to her bedroom, took her clothes off and got into bed naked, wrapping herself in an orange blanket. At this point she had completely forgotten about your messages and went to sleep.
15At about 12.30 am she woke to a male voice saying, 'Hoy, [Catherine].' She did not recognise the voice and asked who it was. She was still lying down and rolled over onto her back, and you replied, 'It's Rohan.' The victim was aware that she was naked and tried to fix herself by wrapping the blanket around to cover herself up. She had a doona on her.
16At this stage she heard you take your boots off, come into her bedroom and close the door behind. The victim told you, you did not need to close the door and you indicated that you did not want to wake the kids. The TV was on in her bedroom, and she was able to identify you in the light. You were wearing a tank or sleeveless T-shirt and had a can in your hand. She could smell the alcohol on you.
17You walked in the room and lay down on the left side of the bed next to the victim. You placed your head on the edge of the pillow underneath her and your feet were across the bed towards the window. The victim was laying on her back and in the blankets. She asked you if you were okay as she had genuine concerns for your wellbeing, especially given you had turned up to her house. You said that your girlfriend had left, and you had a short conversation about this.
18You were still lying down with a can in your left hand resting on your stomach. You then used your right hand to reach under the back of her neck and pull her towards you and tried to kiss her. She screwed her face to make sure her mouth was closed. You were being forceful, and the victim was trying to keep her head against the pillow as you were pulling towards her. The victim said, 'What are you doing, get off me, you are a relation and this is gross.' Her arms were still wrapped in the blanket, and she was worried that you would see that she was naked. She continued to try and push you away and you stopped pulling her towards you, leaving your hand on her neck.
19This is effectively an uncharged act of attempted sexual assault that I do not sentence you for but treat as part of the narrative leading up to the rape.
20You appeared frustrated and were huffing, to which you sat up the bed closer to the victim. You tried to pull her again by the neck in an attempt to kiss her. Your face and chest were over the victim's face and chest, and at this point the victim became scared and started to panic. She tried to push you away and said, 'Please stop, I don't want to do this.' You responded by saying, 'Don't tell mum I'm here.'
21The white doona came off and the top of the orange blanket had opened, exposing her breast, while still tucked it between her legs. You said to the victim, 'I've wanted to fuck you for so long' and climbed on top of her. The victim was scared and panicked and started to kick and push at you to stop you from getting on top. Your legs and body weight were on the victim and your knees were holding her so she could not kick any more. You grabbed her wrists and forced them against her forehead.
22The victim was overborne by your strength and all she could do was thrust her body sideways to wriggle away. You pulled your shorts down and got your penis out. You then put your knees down between her legs and forced them apart. During this time the victim continued to thrust her body sideways in an attempt to stop you penetrating her. She could feel your hand and the end of your penis trying to penetrate her vagina. Due to the victim moving sideways, you kept missing and kept hitting the left side of her groin. You continued to attempt to penetrate her vagina and the victim kept fighting.
23After about ten attempts you managed to penetrate her vagina, and the victim burst into tears and kept saying 'no.' You let go of her and put both hands on top of your head whilst your penis was penetrating her vagina.
24This constitutes Charge 1, rape.
25The victim took the opportunity to push and kick with all of her strength, causing you to fall off the bed. She grabbed her phone beside the table, took the orange blanket and ran. She ran to the kitchen pantry and closed the door and sent a Snapchat message to David asking for help. He asked what was wrong and the victim told him to 'get the guy' out of her house. David said he would be there in two minutes.
26He arrived, knocked on the door and you answered. David asked you who you were and told you that you had to leave. You left and David went into the house and found the victim hiding in the pantry. She immediately disclosed the offending to David. He stayed the night.
27This is how he describes that interaction:
'Who is he and why was he here, and she told me that it was her relative. I asked again, 'What's happened?' Catherine replied, 'I thought I would be stronger and be able to fight.' The conversation went quiet for a bit. I then asked again what happened and she told me, 'he held me down and put it in'.'
28After you left the address you sent an apologetic message to the victim saying, 'I'm sorry' and 'I'm sorry, [Catherine].'
Interview and investigation:
29Later in the morning the victim told her ex-partner what had happened. She had met him at his work just after 10 and he describes the disclosure in the following way:
'We walked and [Catherine] looked around to see who could see us before putting her hand on her head, grabbing her hair and said, 'Rohan raped me last night.' [Catherine] was very emotional and distressed when telling me this.'
30On 11 February, Maree[7] (‘the victim's mother’), saw the victim in the early afternoon, this time on the same day as the sexual assault. The victim disclosed that she had been raped by you. Maree says this about that interaction:
'With that [Catherine] stared at me with her eyes wide open and her face was white. She said, 'I'm going to wreck families, I don't want to say it', and I said, 'Say it, [Catherine]', and she said, 'Rohan Ellis raped me.'
[7] A pseudonym.
31The victim's mother reported the alleged offending to the police. At 6.00 pm police attended the victim's address where she disclosed the offending to them.
32On 14 February 2023, a pretext conversation took place between you and the victim. During that conversation you stated you were sorry but could not remember anything, and when the victim told you about the offending you said, 'I don't remember it, but I'm so fucking sorry, I'm the biggest piece of fucking shit out there.'
33On the same day you were arrested and interviewed at Warragul. You stated the following:
'I worked, went home, and then me and my missus started fighting. I started drinking and tried to hurt myself a few times. I don't remember much really, I know I was a very drunk mess and should have stayed at home. I was at home, Walker Drive, Drouin, and went for a drive out bush by myself to clear my head and then went to the Robinhood pub just out of Drouin and had a drink by myself. After that I went to see my uncle in Drouin, close to midnight, and I was there for a while, and he said he would drive me home and I said I'd get myself home. [Catherine] was meant to be buying equipment. I wasn't even friends with her on Facebook and she messaged me off Marketplace and she was like 'Oh, I know who you are', and I was like 'Yeah, I can hold the equipment for you and stuff like that.' I wasn't friends with her on Facebook, but I realised who it was. I added her.'
34When asked before the conversation on Facebook how often you would have spoken to Catherine, you said:
'Bugger all. Met her down the street or the pub, maybe. Me and [Catherine] had never been anything really, don't talk much. I knew she was in my messages, and I needed somewhere to go, and I remember going there, chatting. I remember trying to do something with her and she told me no, and I remember getting forceful, but I don't recall myself raping her.'
35You were asked what were you drinking that night and you stated, 'Beer and Rum, Bundaberg Rum.' When asked if there was anything else, you said, 'Cocaine.'
'I messaged her and asked if she was home. I wanted to vent, and I knew [Catherine] was older so she would be handy with it. I went and sat on her bed because she was in there, and she put on a movie, talked to her about what was going on, and this and that, and I leant in for a kiss and she said no. I'm pretty sure I put myself on her with my bum on her waist and my legs either side of her. She was telling me to get off. I think I got forceful, held her down, held her arms and tried to kiss her. She told me to fuck off, so I did. She had the blanket over her, and she was nude under it. I know that because I saw her boob come out from under the blanket.'
36When shown the Facebook messages you agreed that they were sent from your own account. When asked how many times she told you to 'fuck off' you said 'twice.' When the allegation was put you stated:
'I had my clothes on still - oh, fuck, I don't remember that, but fuck me, I honestly can't remember that happened. I saw her nude. I got aroused by it. I would never rape someone, not in a thousand years. When I tried to kiss her, I never had her hands like she said, I had them pinned down by her side. I was very intoxicated, I just wanted to see if I come lucky.'
37The matter has enjoyed, for want of a better word, a long and tortured history.
DATE
EVENT
11 February 2023
Offending
14 February 2023
Charged
21 February 2023
Filing Hearing
19 May 2023
Committal Mention Hearing
3 August 2023
Committal hearing before Magistrate Reardon – Plea of guilty submitted to charge 1, rape and remaining charges withdrawn.
Listed for Plea Hearing on 10 November 2024
11 September 2023
Plea indictment numbered P10344447 containing one charge of rape filed and served.
28 September 2023
Summary of prosecution opening for plea filed.
18 October 2023
Victim impact statement was signed.
1 December 2023
Matter listed for pela before Judge Carmody.
Indication it would not be a plea.
Adjourned for case management in January 2024.
8 January 2024
Prosecution Case Initiation Notice signed, filed and served indicating the matter would now be proceeding as a trial.
24 January 2024
Directions Hearing before Judicial registrar Phillips – Plea of guilty retracted and plea of not guilty entered.
15 March 2024
Summary of prosecution opening for trial filed
1 May 2024
Defence response.
7 May 2024
Order made by Registrar Phillips for the granting of leave for pre-trial cross-examination under s.198 CPA of seven witnesses, including the victim.
27 May 2024
Callover before Judge Lauritsen.
Trial listed in circuit commencing 1 July 2024.
14 June 2024
Examination of 6 witnesses including the victim before Judicial Registrar Phillips.
25 June
Notice of Additional Evidence (committal recording and statement) filed and served.
Notice of Additional Evidence (DNA statement of Rebecca Caitlin O’Sullivan).
2 July 2024
Amended summary of prosecution opening for trial filed.
31 January 2025
Callover before Judge Dempsey.
Trial listed for circuit commencing 17 March 2025.
March 2025
Matter to commence as a trial in circuit not before 7 April 2025.
8 April 2025
Mention.
11 April 2025
Sentence indication hearing.
14 April 2025
Sentence indication accepted.
38The case history in this matter is a most regrettable one. You equivocated about admitting your own criminality for more than 18 months. Having pleaded guilty initially, you sought to resile from that position and thereafter embarked on a course of cross-examining witnesses, including the victim, by way of a s198B application of the CPA.
39As recently as the circuit commencing in March this year, you were contesting the matter. You wanted to challenge the admissibility of your own plea of guilty, claiming you were not in the right frame of mind to do so, and intimating that you were pressured into doing so by your then lawyers. You wanted to challenge the admissibility of the DNA found.
40You had filed on your behalf, or had filed, an application under s342 of the Criminal Procedure Act to cross-examine the victim about her partner and their sexual activity that evening, presumably to support an argument that had you in fact raped her she would not have had consensual intercourse with her own partner later that night.
41You are not to be punished for taking this course, you have every right to contest the matter, but the timing of this plea is very late after no small amount of court resources have been consumed and the victim cross-examined. The utilitarian value of your plea is somewhat diminished, and it tells against genuine remorse.
42It is put that I can find that you are remorseful given what you said in the record of interview and in the pretext call, but I will return to this issue later.
Victim impact
43A victim impact statement was originally furnished on 10 October 2023 that has been tendered.[8] Another updated victim impact statement dated 14 April 2024 was read into open court by the victim today.[9]
[8] Exhibit B: VIS of [Catherine] 18 October 2023 – written now close to 18 months ago.
[9] Exhibit E VIS of [Catherine] 14 April 2025.
44This offending has had a profound effect. The events have been life-changing for her. Your conduct is never far from her thoughts, it has changed her relationship with her children as she tries to protect them from the truth of what had happened.
45At the time she wrote the victim impact statement first she was living in the same house and sleeping in the bed that you raped her in. Afterwards, that home was set up like a fortress with CCTV cameras, deadlocks and the like to help her deal with her fear. That came at a financial cost she could ill-afford. She rarely rested properly and was hypervigilant. She fears for her children to live in a world where this could happen to them. Her daughter who was home when you raped her is scared to leave her alone. She had to continue to work through the aftermath of this ordeal. She withdrew into herself and could not travel alone for a while or be out in public.
46Your offending had robbed her of so much, not least of all her sense of self, security and enjoyment of life, and that is evident now even still years later. She has had therapy, but still experiences so much grief, sadness and devastation. The process has been particularly traumatic for her. She has been bravely attempting to move on, but it is expected that this will take time.
47This, Mr Ellis, is the cost of your selfish gratification. How it is that you offended in the way you did is hinted at in your interview, and further understood by reference to matters personal to you that I will turn to now.
MATTERS PERSONAL TO THE ACCUSED[10]
[10] Taken substantially from both Exhibit 1: written submissions and Exhibit 2: report of Dr Carla Lechner 23 October 2023.
Background
Family
48You are now 27. You are the youngest of two, who you do not have a particularly close relationship with.
49Your parents separated when you were two. Your mother engaged in a relationship with your stepfather, Mick, and you experienced a strained relationship with him during your youth and young adulthood. The relationship did not involve domestic violence, and you were not exposed to any form of abuse by family members. You primarily lived with your mother and regularly visited your father each fortnight. Your father had a child with a partner following his relationship with your mother, however, you do not have a close relationship with your half-brother.
50You grew up in Drouin and attended the local primary and secondary school until Year 8. You were the subject of some additional educational aid until you left school to begin work. You attended a community college in Warragul.
51You have been essentially consistently employed since leaving your studies. You left the community college after obtaining a job concreting, a field in which you worked for the next six years. You worked as a truck driver with a poultry company during COVID-19.[11]
[11] Exhibit 4: Employer reference by Cart’em Poultry 15 August 2023.
52You had a 12-month break from being a driver to work at the Loy Yang Power Station.
53From October 2024 you were working at Radford's, an abattoir, full time.
54This employment speaks of a level of stability in your life that is encouraging. It was also your young family's main source of income.
Relationships
55You were in a relationship for several years, however, described that relationship to Dr Carla Lechner[12] to have been tumultuous. In part, you attributed interpersonal issues in your relationship to your being 'a bit of a sleaze', meaning you engaged in sexualised conversations with others outside the relationship.[13]
[12] Exhibit 2: Report of Dr Carla Lechner 23 October 2023.
[13] Ibid.
56It was suggested in your discussion with Dr Lechner you may have previously habitually engaged in sexual relationships outside of committed relationships.
57You do not have a large network of friends, however, you hold in high regard the views of those around you and are defined by how you are seen in the eyes of others.
58You have a son who is five that you share with your partner from your second major relationship. You have a daughter now born in June 2023 with your current partner, Ms McCormack. That is the same partner who you had an argument with on the night of this offending.
59Ms McCormack provided a reference,[14] speaking of your positive qualities as a partner and father, and the noticeable change in your behaviour. She stands by you and sees you still as fundamentally a good person. You were engaged to be married as recently as the last few weeks. She gave evidence on the sentence indication hearing as well.
[14] Exhibit 6: Reference by Chaniall McCormick 9 October 2023.
60She is understandably concerned about how she will cope, both emotionally and financially, without you,[15] and her evidence focused on a level of hardship she will experience once you are imprisoned.
[15] This is referenced in her written reference, but the full extent of her anticipated difficulties were explored on the SIH.
61She struck me as somewhat paralysed by the prospect of you being absent from her life for a period of time. She last worked some time ago and will be the sole carer of her two children from a previous relationship of girls aged 14 and 12, as well as your infant daughter. She was receiving parenting payments, (and it seems sporadic contributions from a former partner that she is seeking help in regulating from the relevant government department).
62She says that she cannot afford to keep your home that you rent in Drouin and may have to live with her mother in a single bedroom flat. I say 'may' because little has happened by way of preparing for the possibility of your imprisonment as the matter seems to overwhelm her. It is unclear whether or not your own mother, who was present in court, could assist with her care or the children's care or accommodation. No approaches seem to have been made to the Department of Housing, for instance, for assistance. There is a possibility that her daughters may go to live with their father, but this is by no means clear either.
63I can conclude that you will leave your partner, stepchildren and child in a perilous state, both financially and emotionally, but the evidence is not cogent enough to establish the kind of hardship suffered would be more than that which is often experienced by families when a parent, partner and principal breadwinner is imprisoned.
64The evidence does not rise to the level of establishing exceptional hardship, the relevance of which I will come to in due course. But that is not to say it is irrelevant.
65You will worry about the fate of your family. Their existence and your role within them is an important reason for you to continue to reform. Moreover, it means that prison will weigh more heavily on you.
Drug and alcohol:
66You started using methamphetamine at the age of 17 or 18. 'Party' drugs were used socially, and you tried things like pills. You tried it for the first time with your sister and a lot of people in your circle were using it. Your recreational use, and I use the term advisedly, turned into a daily addiction and during this period of drug use you became unemployed. To your credit, you went to your mother and asked for help to 'get off the gear'[16] and you were able to successfully overcome this addiction with the help of ACSO and returned to full time work which you maintained.
[16] Exhibit 5: Reference by Cerri Burns 7 October 2023.
67This means to me that you are capable of identifying problems, seeking help, and importantly, change or reform.
Mental health:
68You have no formal mental health diagnosis at present, as confirmed by the psychological assessment in the lead up to this matter, but Dr Lechner made reference to some cognitive difficulties you were experiencing when processing complex information. Dr Lechner also disclosed that you have experienced high level anxiety and chronically low self-esteem. Further, it was stated that you presented in your assessment as a highly socially and emotionally immature person. You were prescribed Lexapro which is an anti-depressant and report that it was helpful in regulating your affect.
69You are engaged in psychological counselling with Erin Dolan, clinical psychologist, whilst on a mental healthcare plan to deal with some of the underlying psychological difficulties you have faced in recent years.[17]
[17] Exhibit 3: Treating psychological letter of engagement from Erin Doolan & Associates 30 October 2023.
70I do not suggest that these conclusions made by Dr Lechner have significant bearing on the crimes you committed, except to suggest that your immaturity and low self-esteem may be in part the reason you failed to consider the devastating impact your acts would have against the victim.
71Though your language difficulties and immaturities were floated on the sentencing indication as having the capacity to enliven the limbs of Verdins[18] concerned with the reduction in moral culpability and the onerous or exacerbation of the prison sentence, they were not pressed with any real force.
[18]R v Verdins (2007) 16 VR 269.
72I have taken your limitations, for want of a better word, into account, certainly in crafting this sentence, but it is not one that is actually informed by findings under Verdins on the material presented to me.
Substance abuse:
73As I said, although you have engaged in substance abuse in the past, particularly the use of cannabis, briefly in your early teenage years, you do not habitually use drugs.
74You reported a history of significant alcohol consumption which you state has since resolved. It has been suggested that the use of alcohol would put you at the greatest risk of re-offending.
75It is clear from the record of interview and the way in which the victim describes your presentation when you arrived at her house that you were drunk when you offended.
Criminal history:
76Curiously you have no relevant or other criminal history. You have no pending matters or subsequent matters. I consider this significant in the sentencing calculous.
Motivation or cause of offending:
77What drove your behaviour this evening is difficult to discern; you oscillate between being adamant that you would not have committed the offence and then providing a realistic context by way of explaining that you were miserable and genuinely distressed, you had an argument with your partner over your perceived interest in other women, you were drunk and you were invited into the victim's home, she was naked and you wanted to see if it would go anywhere.
78I must say that explanation accords with both the facts alleged in the summary and accords with the overall impression you create in your dealings with Ms Lechner. Regrettably, you still have a tendency to shift blame towards the victim.[19]
MATTERS OF SENTENCING PRINCIPLE:
[19] Exhibit 2: Report of Dr Carla Lechner 23 October 2023, 7-9.
Gravity of the Offending – Rape
79The offence of rape covers a very wide spectrum of different activities committed in wildly different circumstances with varying degrees of seriousness. Determining where any case sits on that wide spectrum is difficult.[20]
[20]Clarke v The Queen [2022] VSCA 89, [28].
80In Mokhtari[21] the court said:
'The very act of rape is inherently serious simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, 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 the extent of the penetration.'
[21] [2020] VSCA 161 (18 June 2020).
81In Lawrence[22] the court said:
'The crime of rape covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity. Hence, a sentence that is clearly just and proportionate in one instance of rape will be manifestly excessive or indeed inadequate in another.'
[22] [2021] VSCA 291.
82One can gauge the seriousness of this offending in reference to the guidance given by the Court of Appeal in Jurj v The Queen.[23]
[23] [2016] VSCA 57 at [80].
83Mr Hardjadibrata says[24] the features of the seriousness of this rape present are as follows:
a) There is an element of a breach of trust or something akin to taking advantage of a ‘Good Samaritan’.[25] It is hard to discern whether this is by design or not, but it seems clear enough the complainant thought that you were in some genuine distress and was willing to help you. She gave you her address in good faith, which you exploited once you were there;
b) The complainant was particularly vulnerable. The offence occurred in the bedroom of her own home at 12.30 am after she had fallen asleep naked in her own bed. Apart from her teenage daughter, the complainant was alone in her house, she was entitled to feel safe there. This aspect of your offending is, in my view, particularly egregious';
c) You knew that there were no other adults in the house because you said you did not want to wake the kids when you closed the bedroom door and had locked the unlocked front door[26] after you had entered the house;[27]
d) Prior to penetration physical force was used to overcome and subdue the complainant's verbal protest and resistance; and
e) You were not wearing a condom.
[24] Exhibit C: Outline of prosecution submissions for sentence indication and chronology 8 April 2025.
[25] C/f Hudson v The Queen (2010) 30 VR 610, 639[72], and Carter v The Queen [2012] VSCA 99 at [18].
[26] Statement of [Catherine] Depositions p23-33 at [17].
[27] Statement of [David], D35-37 at [7].
84Mr Vuu says:[28]
a) it was conceded that it is an aggravating factor of the offending that it occurred in the complainant's home with a young daughter asleep in a nearby room. It was further conceded the offending has had a significant impact on the complainant and her daughter.
b) He says the offending was not premeditated and appears to have been impulsive behaviour in circumstances where your impulse control was reduced by drugs and alcohol.
c) The offending, although very traumatic, was relatively brief.
d) And finally, the offending did not involve the infliction of physical injuries upon the complainant as is often in the case of the most serious examples of the crime of rape.
[28] Exhibit 1: Outline of sentence indication submissions 10 April 2025.
Standard sentence regime:
85The standard, not mandatory, standard sentence for rape is 10 years, and this is simply a numerical guidepost for the courts when sentencing for specified offences. It is a guidepost not unlike the maximum penalty.[29] It does not permit two-stage sentencing and it does not displace the instinctive synthesis that is so fundamental to sentencing.
[29] The regime also deals with the setting of non-parole periods, which I will come to later, once matters that concern such a decision have been canvassed.
86In relation to the standard sentence scheme which applies to the offence of rape, the court must have regard to the following approach outlined in the case of Brown v The Queen.[30]
a) First, the period specified as the standard sentence is the sentence for an offence that taking into account only the objective factors affecting the relative seriousness of that offence is in the middle range of seriousness;[31]
b) In determining the objective factors a court must not consider the personal circumstances of the offender;
c) The key requirement when a court is dealing with a standard sentence offence is it must take the standard sentence into account as a relevant sentencing factor. As with the maximum penalty, the standard is a guidepost, it does not affect the instinctive synthesis nor permit a two-stage sentencing process or otherwise affect the matters a court may or must consider when sentencing; and
d) Finally, a court should not start the sentencing process by determining whether a standard sentence should be imposed and then working its way up or down from that sentence.
[30] [2019] VSCA 286.
[31]Sentencing Act 1991 s.5A(3)
87I must give reasons for opposing the sentence and any non-parole period fixed under the Act that is shorter than that which is specified in 11A(4) and state how the sentence imposed relates to the standard sentence,[32] and this requires me to identify the facts, matters and circumstances bearing upon my judgment as to what the appropriate sentence is.
[32] Ibid s.5B(5).
88I want to emphasise the standard sentence is just one of many factors that I have to consider under the Act, many of which pull in very different directions. It does not represent a starting point for a sentence from which I add or subtract depending on various factors of aggravation or mitigation, as the case may be.
89I am not required to, nor will I, classify the subject offending on a scale of seriousness, my interpretation of the standard sentence regime is that I am to fully identify facts, matters and circumstances which bear on my judgment that I have reached as to an appropriate sentence, and I have endeavoured to do so in what I consider to be quite detailed sentencing reasons.
90At risk of repetition, but it is important and out of caution, the standard sentence should be treated as a guidepost in respect of objective factors only and nothing more. That being said, the “lessened utility” of standard sentencing guideposts as opposed to the maximum penalty guideposts, as explained at [57] in Brown (quoted above), needs to be kept in mind.
91Mr Vuu submitted, quite rightly, that having regard to the objective factors in this case the court should conclude the case falls somewhere in or near the mid-range. It was conceded that the offence is not an objectively low example at all, nor is it an offence at the upper end of the range. I agree.
Current sentencing practices:
92While each case must of course be assessed on its own facts and circumstances, other cases may be of assistance in guiding the court where cases bear similar features or where such cases deal with relevant provisions.
93I have familiarised myself with current sentencing practices for the offence of rape since the introduction of the standard sentencing regime.[33]
[33] See case collection of Court of Appeal decisions provided by the Judicial College at 3.1 (focusing on those sentences that fall within the standard sentence category).
94I was provided with 11 cases by the Crown[34] that are said to be comparable, or instructively different for that matter. They are:
[34] Exhibit D: Outline of Prosecution Sentence Submissions and accompanying Comparative Cases.
a) Stafford v The King[35]
[35] [2022] VSCA 229
b) Lawrence (a pseudonym) v The Queen[36]
c) Ashby v The Queen[37]
d) Bergman (a pseudonym) v The Queen[38]
e) Clarke (a pseudonym) v The Queen[39]
f) DPP v Duggan[40]
g) DPP v Sang (a pseudonym)[41]
h) DPP v Romero[42]
i) DPP v Kala[43]
j) DPP v Padroth[44]
k) DPP v Iudice[45]
[36] [2021] VSCA 291
[37] [2021] VSCA 209
[38] [2021] VSCA 148
[39] [2022] VSCA 89
[40] [2019] VCC 1186
[41] [2021] VCC 1840
[42] [2020] VCC 1002
[43] [2021] VCC 151
[44] [2021] VCC 2001
[45] [2020] VCC 316
95The cases have one essential element in common; they involve single instances of rape where there has been actual force or restraint used to effect the offence or a person has been unconscious. Sentence varied from as high as seven years to as low as 3. Non-parole periods varied from 4 years 6 months to as low as 18 months.
96I had regard to the statistical data available[46] as well, noting that between 2017 and 18 to 2021 to 2022 the median term of imprisonment for rape was six years. The most common range of imprisonment lengths was between six and seven. The mean imprisonment length was 6 years 6 months. Over the five-year period that I just mentioned the average imprisonment length was 6 years and 3 months. The average imprisonment length for rape as a standard sentence offence was 6 years 4 months. The median non-parole period was 5 years over this period with the most common range of non-parole periods being between 5 and 6.
[46] See SAC Stat snapshot number 279 from September 2023.
97I have approached the use of statistics and other cases with caution. They are certainly informative and instructive, but I do not consider they set the outer limits for the exercise of my sentencing discretion.
Broader sentencing consideration:
98Courts have repeatedly emphasised the need for general deterrence, specific deterrence, just punishment, protection of the community and denunciation.
99I take note that Ms Lechner suggests that you will find prison particularly aversive, you are likely to struggle in prison because of your immaturity, you are a first-time prisoner. I consider the punitive aspects of prison will operate harshly on you and that reduces both the head sentence and the non-parole period.
Plea of guilty:
100I alluded to the case history of the matter earlier. Mr Vuu submits to me I should view your plea of guilty this way:
a) Although an earlier plea of guilty was withdrawn, there is still a substantial utilitarian value to a plea of guilty as it avoids the need for, and cost of, a criminal trial, and most significantly the plea of guilty saves the victim from further cross-examination which will involve suggestions put to her before the jury she is lying or had a motive to lie about the allegations;
b) Despite the history of the matter, a greater sentence discount for the utilitarian benefit may be justified as the plea of guilty at this stage involved savings and cost to the community in combination with a very significant benefit of no further involvement with a trial for the victim and her daughter.[47] It evidences an intention to facilitate the course of justice;
c) As evidence of remorse, that is, when the complainant told you about the offending and you said 'I don't remember, but I'm so fucking sorry, I'm the biggest piece of fucking shit out there.' Mr Vuu says that you made frank admissions in the record of interview and pretext call, and that is to say whilst you made it clear that you did not remember sexually penetrating the complainant, you did admit to going in for a kiss or getting forceful with her and trying to kiss her and putting yourself on her with your bum on her waist and legs either side of her. When the allegation was put you said, 'I had my clothes on still - oh, fuck, I don't remember that, but fuck me, I honestly can't remember that happened. I saw her nude, I got a bit aroused by it but I would never rape someone in a thousand years. When I tried to kiss her I never had her hands like she said, I had them pinned down by her side. I was very intoxicated, I just wanted to see if I could come lucky.'
[47]Phillips v The Queen [2012] VSCA 140; 37 VR 594 [36].
101Your plea does attract a utilitarian benefit attached to it and shows a willingness to facilitate the course of justice. It saved this court the expense and time of a trial, and thankfully, spared the victim from being cross-examined before a jury and the uncertainty of a jury verdict, and this will be reflected in a meaningful reduction in your sentence.
102Your plea, though, is hard to accept as one that is truly accompanied by remorse. Whatever admissions you made were equivocal, and in any event resiled from in preference of defending the matter up until now. It does not appear to me that you have truly taken ownership of your offending, nor expressed any real contrition about the damage you did to your victim.
103I am prepared to accept that you may struggle for real insight at the moment and have not come to terms with what it is that you have done. Insofar as a bare plea can evidence remorse, I am prepared to accept that you are in some way contrite for the harm you have caused but the weight I give to that will be very little.
Prior good character:
104You have no prior convictions and no subsequent or pending matters. I take this into account in a positive way because of your lack of antecedents. It augers well for your reform. You have no criminal pedigree and do not seem to possess sophisticated or refined communication skills, meaning that you will be vulnerable in that environment for the first time now that you are sentenced.
Hardship:
105Hardship to a third party as a consequence of imprisonment is not normally a mitigating circumstance. A court has a discretion to mitigate sentence when that sentence causes hardship to a third party and is satisfied there are exceptional circumstances. The Court of Appeal has previously said that hardship to a third party is only relevant in mitigation where it is highly exceptional or the exceptional case where the plea for mercy is seen as irresistible.[48]
[48]Markovic [2009] VSCA 105
106The circumstances must be such that they rise above the general, and sometimes tragic, hardship commonly suffered by families of imprisoned offenders. They must be so significant that they weigh heavily in the sentencing calculous.
107This consideration would generally only arise when the third party is an especially vulnerable dependent of the offender or whether there are a number of vulnerable dependents.[49] The cases are overwhelmingly concerned with hardship to an offender's family when the offender must serve a term of imprisonment.
[49]Xeba [2009] VSCA 20
108Moreover, there must be cogent evidence that imprisonment would expose the family member or third party to this hardship. This may be established by a combination of lesser hardships to multiple family members, and these cases will be rare. Whether or not any particular case family hardship is sufficient to be significantly mitigating is a question of fact and degree.
109Here your partner, child and stepchildren will undoubtedly suffer. I am not satisfied that their level of hardship, though tragic and undeniably so, is in that rare category of truly exceptional cases such that it would be taken into account under this head of mitigation. I have already noted how I will take into account hardship to be occasioned by your imprisonment.
Prospects for reform:
110After careful consideration, Ms Lechner having assessed you using the
Static-99 test and the RSVP assessment, as well as her clinical judgment, found you to be a low to moderate risk of sexual re-offending compared to other sex offenders. You do not appear to have an entrenched criminal history, which goes a long way to suggest that this behaviour was truly aberrant.111You would benefit from treatment, especially education that focuses on issues of consent, appropriate sexual boundaries, improved self-awareness and improved impulse inhibition. Further exploration in a one-to-one therapeutic setting about sexual expectation, need and desire, is also recommended.
112Given that you are a “low/moderate” risk of re-offending, offence-specific intervention is not recommended. Counselling that monitors your alcohol intake is strongly advised as substance abuse increases the risk of engagement in impulsive self-defeating behaviours including potentially offending. You are at the greatest risk of re-offending in the context of being intoxicated and pushing boundaries with a woman with whom you might think that you have a 'chance' at establishing sexual contact, even if they have other thoughts.
113Given you have had difficulties in negotiating adult life that renders you socially and emotionally immature, you would benefit greatly with assistance in learning and activities to boost communication and social skills.
114I repeat, you will be vulnerable in custody. I wish to avoid your exposure to more hardened criminal elements in that environment than is absolutely necessary. Moreover, you have demonstrated an ability to reform and have real reasons to do so. You have a young family that is increasingly a strong protective factor for you. I have dealt elsewhere in these reasons about how I take their hardship into account.
SENTENCING SUBMISSIONS
115Turning to the very last topic, sentencing submissions. In a thorough and careful way Mr Vuu submitted that through your plea in mitigation a sentence that deals with deterrence, just punishment and denunciation, needs to be balanced with your comparative immaturity, prior good character and the hardship that will be occasioned by your inevitable imprisonment.
116In the circumstances of this case the court was invited to consider imposing a relatively modest sentence with a meaningful non-parole period to appropriately reflect what is grave criminal conduct on a single night.
117He conceded that the matter is a Category 1 offence.
118For the purpose of the Sentencing Act the court must impose a sentence of imprisonment and the material before the court is unlikely to enliven any of the exceptions to the statutory sentencing regime.
119That being said, he said there are important matters beyond the plea of guilty, and he relied on the following:
a) Your history of learning difficulties, social anxiety and emotional immaturity;
b) Low to moderate risk of future sexual re-offending;
c) Familial support;
d) Hardship;
e) Established employment history;
f) Since the offending you have
i.Engaged in drug and alcohol counselling;
ii.Ceased drug and alcohol use;
iii.Voluntarily engaged in psychological counselling with Erin Dolan on a mental health plan to deal with underlying psychological difficulties you have faced in recent years;
iv.Maintained full time employment; and
g) Ultimately have reasonably good prospects for rehabilitation.
120Mr Hardjadibrata relied on his written submissions taking little issue with the matters raised above.
121I just want to say this: it was a testament finally to the considered way that this matter was conducted as a sentencing indication hearing and plea, that there was little argument between the parties as to the applicable sentencing principles. The timely provision of quality written work supplemented by oral submissions of equal quality meant that finally this matter could come to a conclusion.
Sentence structure:
122Full consideration of the foregoing obviously has a bearing on the head sentence I impose, as well as a non-parole period. I turn specifically to that latter issue now which was informed to no small extent by the evidence called on the plea on the issue of hardship.
123Under s11(4)(c) of the Sentencing Act 1991, unless a court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least 60 per cent of the relevant term, if that term is less than 20 years. It was submitted that it would be in the interests of justice to fix a non-parole period of less than 60 per cent of the total effective head sentence to be imposed.
124That phrase is not defined or identified in the Act, nor does it appear to be a threshold to be cleared by the accused of the kind that exceptional circumstances is in some cases, for instance.
125It was submitted in this case when considered properly the combination of vulnerability to the regime imprisonment and hardship falling short of exceptional circumstances, should be central to the considerations of the interests of justice in the granting of the non-parole period in this instance.
126I refer to the case of DPP v Pan.[50] The Court of Appeal considered s.11A(4)(c) of the Sentencing Act 1991 in the context of a Crown appeal where the sentencing judge imposed a non-parole period that was 66.7 per cent of the head sentence, not the 70 per cent which the Act contemplates for murder. In that case, the judge was moved to impose a lower non-parole period not least of all because of the accused’s youth, his plea, and the length of the head sentence.[51]
[50] [2022] VSCA 98.
[51] See also DPP v Spottiswood [2021] VSCA 146, [41].
127In that case there is further reference to Power v The Queen[52] which is worthy of repetition:
In assessing whether the non-parole period is manifestly inadequate, it is important to recall the purposes of parole as explained by the High Court in Power, namely to provide for the mitigation of punishment of the prisoner in favour of his rehabilitation through conditional reform when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all of the circumstances in the case.
[52] (1974) 131 CLR 623; [1974] HCA 26.
128Counsel for the Director sensibly did not object to me taking this course. There is real merit in Mr Vuu's argument in my view.
129I had regard to the provisions of 11A(4)(c) and the above cases. I have also had regard to the broader considerations that inform the setting of a non-parole period.
130I have concluded that the non-parole period of more than 60 per cent of the head sentence is warranted in this case, and that it properly reflects the minimum term that justice demands you serve before being eligible for release. That does not mean that you would automatically be released.
131This pays due regard to your prospects for reform which I found to be good, whilst maintaining appropriate weight to be given to necessary and important countervailing factors when sentencing.
SENTENCE IMPOSED
132I come to the part of my reasons now where I formally pass sentence on you, Mr Ellis. Would you be kind enough to stand up.
133Having considered the matter carefully and weighing the various relevant sentencing considerations in your case, I sentence you on the charge of rape to six years, that is 72 months. I declare that you serve at least three years and three months, that is 39 months of that sentence before becoming eligible for parole.
ANCILLARY ORDERS
134You have not served any time in custody and therefore no pre-sentence detention will be declared. The disparity between the head sentence and non-parole period in this case is 54 per cent.
135Just to give you some sense, Mr Ellis, of what would happen had you run this as a trial and been convicted, but for your plea of guilty I would have sentenced you to 7 years and 6 months with at least a non-parole period of 4 years and 8 months. Mr Ellis can be removed please.
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