Director of Public Prosecutions v Ivanovski

The defendant, Ivanovski, appealed against the sentence imposed by the County Court of Victoria, arguing that it was manifestly excessive. The dispute centred on the defendant's conviction for engaging in sexual intercourse without consent with a sex worker, specifically by removing a condom during the act, a practice commonly referred to as 'stealthing'. Ivanovski admitted to removing the condom but denied that the act was premeditated, instead claiming it was a spontaneous decision made during the encounter.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. This required the court to balance the objective seriousness of the offending against the defendant’s personal circumstances and consider whether the sentence was disproportionate. The court also had to determine whether the lower court had appropriately considered the nature of the non-consensual act, the defendant's remorse, and his overall background.

The Court of Appeal concluded that the sentence was not manifestly excessive. The court found that the act of 'stealthing' was highly serious due to the intentional misrepresentation about the use of a condom, which negated the victim's consent. The court held that the act was not merely a spontaneous decision but involved a premeditated removal of the condom, leading to a mid-range assessment of objective seriousness. Considering the defendant’s personal circumstances, including his lack of prior criminal history and good work history, the court found the sentence to be proportionate. The defendant’s denial of the offence and lack of remorse were also considered. The appeal was dismissed, and the original sentence was upheld.

The final orders were as set out in [34] of the judgment.