Director of Public Prosecutions v Knight
[2025] VCC 1371
•17 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00237
CR- 24-00465
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V MATHEW KNIGHT |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 11 September 2025 | |
DATE OF SENTENCE: | 17 September 2025 | |
CASE MAY BE CITED AS: | DPP v Knight | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1371 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Rape – causing serious injury intentionally – causing injury intentionally – false imprisonment – common law assault – plea of guilty – two victims – schizophrenia – drug use
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Bales [2015] VSCA 261; Mush v The Queen [2019] VSCA 307; DPP v DDJ [2009] VSCA 115; DPP v Lerardo [2024] VSCA 181
Sentence: Total effective sentence of 11 years and 4 months imprisonment with non-parole period of 8 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty | Office of Public Prosecutions |
| For the Accused | Mr G. Davis (plea) Mr B. Hilton-Wood (sentence) | Hilton-Wood Solicitors |
HER HONOUR:
Introduction[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
1Matthew Knight, over a 12 to 14 hour period commencing in the late afternoon of 28 April 2022, you committed the most horrendous acts of violence on two innocent people, people who were supposed to be your friends.
2You were arrested in the morning of 29 April 2022 and have been in custody ever since.
3On 15 May 2024 you pleaded guilty to one charge of common law assault and one charge of causing injury intentionally in relation to victim Andrew Lang.
4On 11 June 2025 you pleaded guilty to two charges of causing injury intentionally, two charges of rape, one charge of false imprisonment and one charge of causing serious injury in relation to victim Abbie Mercer.[2]
[2] To avoid the possibility of identifying a person against whom a sexual offence has been committed, this sentence has been anonymised by the adoption of pseudonyms in place of the name of the victim in conformity with the Judicial Proceedings Reports Act 1958, s4(1A).
5A plea on your behalf was conducted before me on 11 September 2025. In determining your sentence, the law requires me to have regard to a variety of factors which I will outline in these sentencing remarks. No one factor is automatically more important than any other, rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence in the unique circumstances of your case.
Circumstances of the offending
6The agreed facts upon which I sentence you are set out in a detailed summary of prosecution opening.[3] As your offending took place over many hours, the summary is very long, and I shall only summarise as much as is necessary to capture the gravity of your conduct.
[3] Exhibit A on the plea
7In the late afternoon of 28 April 2022, you and Ms Mercer were at Mr Lang’s home in Mildura with some other people. The three of you knew each other, but it is not clear precisely what the relationship between you all was, as there are conflicting reports. A verbal argument broke out between Mr Lang and Ms Mercer, and you intervened in defence of Ms Mercer. Mr Lang told you both to leave. You began abusing Mr Lang, then punched him in the head about nine times and grabbed him around the neck. This incident, which lasted about 10 minutes, is Charge 1, common assault on the Lang indictment, and resulted in Mr Lang sustaining some minor cuts to his mouth.
8You and Ms Mercer then left Mr Lang’s home together and Mr Lang called the police who attended at 7.36 pm and photographed his injuries.
9You and Ms Mercer walked back to your home where she rested on the couch whilst you visited a neighbour. There was no electricity at your place, so you lit a candle for her to see by. When you returned at about 8.30pm Ms Mercer was asleep, but for some reason you decided to assault her. Over many hours you repeatedly punched her to the head and face and bit her on the body, causing bruising, cuts and bite marks over her body. These are uncharged acts.
10You stuck your fingers in both of Ms Mercer’s eyes so hard that she could not see. This is Charge 1, intentionally causing injury on the Mercer indictment.
11You then ripped off her dress and underwear and touched her breasts whilst she was pushing your hands away. Over the next few hours, you dragged her between the lounge and your bedroom physically and sexually assaulting her in a variety of ways. She could not see because of the injuries to her eyes, and the more she resisted the more you beat her, so she gave up and became limp. The charges relate to the following:
· Charge 3, false imprisonment, is you tying Ms Mercer up and urinating on her.
· Charge 2, rape on the Mercer indictment, is you repeatedly and violently penetrating her vagina with your fingers. She described this as 'torture' and said it felt like 'a lot of fingers and as if you were trying to rip her ovaries out.' She said she was screaming out in pain.
· Charge 4, rape on the Mercer indictment, is you penetrating her anus with your fingers on two occasions without her consent.
· Charge 5 on the Mercer indictment of intentionally causing serious injury is you biting off part of her right ear.
· Charge 6 on the Mercer indictment consists of various acts, it is a rolled-up count of you biting her left ear causing an injury, biting her right nipple causing an injury and biting her left nipple causing an injury.
12Ms Mercer’s screams for help caused a neighbour to call Triple 0 at about 3.45am in the morning.
13Sometime around 6.00am, after you had finished assaulting Ms Mercer, you helped her - and she was naked at the time - get dressed in some of your clothing and walked her back to Mr Lang’s address so she could shower since you had no hot water. At that stage Ms Mercer had no idea that it was you who had assaulted her.
14When you got to Mr Lang’s place you found him sitting in his lounge room. You told him not to move and put a large rock on his feet. You led Ms Mercer to the shower, telling her not to worry about Mr Lang, that you would take care of him
15Mr Lang called Triple 0 as you put Ms Mercer in the shower and put the phone under his seat so the operator could hear what was happening. Your subsequent assault, which is Charge 2 on the Lang indictment, was recorded on this Triple 0 call.
16You returned from the shower, grabbed a stick near the front door and repeatedly beat Mr Lang with it, opening up stitches from a pre-existing wound on his arm. You also stuck your fingers in his mouth, grabbing his right cheek with one hand and gouging his eyes with your other.
17You then took a knife from the kitchen and stabbed Mr Lang’s left cheek, penetrating into his mouth. You told him, 'I’ll show you how to cut yourself' and waved the knife around him before stabbing him in the right leg causing a large laceration.
18You then pushed Mr Lang over the chair and bit his right leg just above the ankle before finishing your assault by urinating on him.
19Police arrived at Mr Lang’s place at 7.36 am on 29 April 2022 to find a terrible scene. You had blood all over your face and on your right foot, Ms Mercer was lying in the front yard of the address in the foetal position with significant bleeding from her genital region and significant swelling to her eyes and face.
20Mr Lang staggered out of the address and sat on the couch on the front porch bleeding profusely from his face and body.
21You were arrested and taken back to the Mildura police station and interviewed in the presence of an independent third person. The prosecution do not rely on your interview due to subsequent psychiatric opinions from both the prosecution and the defence that you were psychotic and not fit to be interviewed at that time.
22Ms Mercer and Mr Lang were taken to hospital for treatment of their injuries.
23Ms Mercer was not able to identify who assaulted her due to the injuries to her eyes but likened the assault to being attacked by an animal.
24A thorough police investigation was undertaken with both Mr Lang’s house and your house being examined and photographed, bloodied exhibits seized and swabs from you and Ms Mercer taken for DNA analysis.
Injuries sustained by Mr Lang
25Mr Lang remained in hospital for five days. He had bruising and swelling to his face and eyes, lacerations and swelling to the back of his head, he was treated for a right anterior thigh laceration and left forearm laceration which required sutures. Computerised tomography scans revealed slightly displaced fractures of the nasal bones bilaterally and evidence of recent dental trauma.
Injuries sustained by Ms Mercer
26Ms Mercer sustained between 50 and 100 soft tissue injuries to her face, neck, chest, abdomen, back and both legs and arms, representing multiple applications of force. There were also signs of sharp force trauma to her face and neck. A forensic physician later examined the medical records and photographs of the injuries and particularised her findings as follows:
· Ms Mercer had two black eyes which were swollen shut, and there was further oozing suggestive of further, non-visible injury.
· There was a 10-centimetre incised wound across the right cheek as well as over 20 other abrasions and perhaps lacerations across both cheeks, the chin, forehead and neck.
· There was a fine linear wound running horizontally across Ms Mercer's neck, measuring about 15 centimetres, which would typically require suturing to achieve the best cosmetic outcome but could be left to heal on its own.
· There was a two centimetre open incised wound to the right side of the neck underneath the jaw.
· There were multiple other abrasions and bruising to the neck and around the collarbones, extending onto the shoulder.
· There were several small abrasions, possibly lacerations, and bruising on the left ear.
· The normal contours of the right ear had been disrupted, with part of Ms Mercer’s right ear missing.
· There were linear abrasions running vertically and parallel to each other in a cluster pattern on the left nipple. There was a similar injury on the right nipple. The injuries were suggestive of bite marks.
· There were several bite marks identified on the upper limbs of Ms Mercer.
· There were multiple abrasions noted on her legs.
· There was a superficial incised wound extending from the right armpit all the way down to the hip.
· There were at least six distinctive linear abrasions running parallel down the right lower back with the longest measuring 32 centimetres.
· There was a small five-millimetre tear beyond the labia majora region of her vagina, indicative of penetrative blunt force trauma, although the source could not be identified from the injury.
Your personal circumstances
27I turn now to your personal circumstances.
28These were outlined in defence submissions and in psychiatric reports commissioned by the defence and prosecution for the purpose of assessing whether you had a defence of mental impairment.
29Dr Elena Bhattacharya conferred with you via video conference on 18 August 2023 for approximately 75 minutes and subsequently prepared two reports for the defence. Dr Christine Rizkallah similarly interviewed you on 29 January and 5 February 2024 for a total of about 170 minutes and prepared two reports for the prosecution.
30You were born in Mildura in 1976. You have a twin brother and two older sisters. There were some difficulties in your early life as your mother left the family and moved to Darwin when you were only four, leaving you and your siblings with your father. Your father then re-partnered but you did not get on with your stepmother. You felt she unfairly punished you, including on occasions hitting you with a belt leaving bruises on your body.
31You have had limited contact with your mother throughout your life. Your father died in 1991.
32When you were 15 years old you left school and moved out of the family home. You rented a caravan for a while and then lived in local accommodation for homeless teenagers. You have led a somewhat transient life, often living interstate, mostly in Adelaide and Western Australia. In Western Australia you worked as a bouncer and picked oranges and avocados when they were in season. You have intermittently sold drugs throughout your life, mostly cannabis to support yourself.
33You have a few issues with your physical health. You have had a right sided total hip replacement and back surgery and have chronic obstructive pulmonary disease.
34You have had one or two serious relationships in your life. You have two sons aged 20 and 23 and a two-year-old granddaughter. You are in contact with your sons and have a good relationship with them. You also have a 15-year-old daughter from another brief relationship but have no contact with her.
35You have a long history of illicit drug use, mainly marijuana and methamphetamine. You report starting to drink alcohol and smoking marijuana when you were 14 years old and first trying methamphetamine in 2008 or 2010. You have also tried heroin, but it appears only infrequently and have abused various prescription pain relief medications.
36You also have had a long history of contact with the mental health system starting in 2002 when you were about 26 years old. I note that when you were a teenager your father apparently took you to see a psychiatrist. You have received various diagnoses over the years including drug induced psychosis, schizophrenia, polysubstance use, post-traumatic stress disorder and even malingering. Your symptoms have included paranoia, delusions and auditory hallucinations and you have repeatedly been prescribed antipsychotic medication. Unfortunately, your compliance with prescription medication has been poor and you have repeatedly disengaged with treatment.
37Of note, you had several interactions with the mental health service in the months leading up to this offending. In February 2022 you presented to Mildura Base Hospital with delusions and paranoia and suicidal ideation. You admitted recent use of methamphetamine and said you had not taken psychotropic medication for years. The provisional diagnosis at that time was polysubstance use and complex trauma. You were taken to Mildura Base Hospital on 11 March 2022 after police were called by a neighbour who saw you screaming and waving a knife out the front of your house. You told doctors that you had been drinking alcohol and had taken ice recently. You reported vague thoughts of wanting to kill others. After being prescribed an antipsychotic, you were then allowed to leave the hospital.
38At the time of the offending you were living by yourself in public housing which you had secured in 2015.
Objective Gravity of your offending and moral culpability
39Critical to any sentence are the objective gravity of the offending and the moral culpability of the offender.
40If there was any doubt about the inherent seriousness of your offences of rape and intentionally cause serious injury, the maximum penalties of 25 years and 20 years make it perfectly clear, as do other sentencing mandates applicable to those offences. In particular, Parliament has made rape a Category 1 offence meaning it must be punished by a term of imprisonment not in combination with a Corrections order. It has also made it a standard sentence offence with the standard sentence for an offence of mid-range objective seriousness set at 10 years and a presumed minimum non-parole period of the total sentence of 60 per cent.[4] Further, it has made both offences relevant offences under the Serious Offender provisions of the Sentencing Act with the consequence, in this case, that after sentencing you on two of the three charges of rape and intentionally cause serious injury, you will fall to be sentenced as a serious sexual offender on the third.
[4] Sections 5A and 11A of the Sentencing Act 1991 (Vic). The percentage increases if the total effective sentence is more than 20 years. The methodology for sentencing standard sentence offences is not that I engage in a two-step process of first assessing the objective seriousness of your offence compared to some hypothetical mid-range offence and then work up or down depending on your personal circumstances or other factors. Rather, I take into account the standard sentence and the default non‑parole period in the same way as I do the maximum penalty, and indeed all other relevant sentencing factors to arrive at an appropriate sentence by a process known as instinctive synthesis. See Brown v the Queen [2019] VSCA 216
41The maximum penalties of 10 years for intentionally cause injury and false imprisonment are also indicative of the inherent seriousness of those offences. Common assault, Charge 1 against Mr Lang, is a lesser inherently serious offence as its maximum penalty is only five years. That said, yours was a serious example of common assault. Indeed, all your offences were serious examples of their kind.
42Your two assaults on Mr Lang involved unprovoked repeated acts of violence on an innocent person. They were protracted and terrifying, especially your second. Your second assault involved the use of two different weapons as well as your hands and your mouth by way of biting. You caused multiple and significant injuries. The photographs graphically depict the horror of what you did.
43Your offences against Ms Mercer were equally unprovoked, protracted and terrifying. You immediately incapacitated her by punching her to the head and face and gouging her eyes so that she could not see. You attacked her, including sexually, in a most violent, cruel and degrading way. You also tied her up rendering her even more defenceless. As with Mr Lang you caused multiple and significant injuries, including a serious injury to her right ear by biting part of it off. She now has a conspicuous deformity to that ear which will be a constant reminder to her of that night. Your vaginal rape involved multiple forceful penetrations occasioning injury and your anal rape was also repeated and painful. Once again, the photographs depict the horror of some of what you did.
44As if physically assaulting your victims was not enough, you also subjected both of them to the humiliation of urinating on them.
45Mr Davis quite properly did not submit that your rapes were anything less than offences of mid-range objective seriousness. Whilst acknowledging the seriousness of all your conduct, he did, however, submit that your moral culpability was reduced on account of your serious mental illness. He relied on the opinion of the defence psychiatrist, Dr Bhattacharya, that you meet the criteria for a diagnosis of paranoid schizophrenia. She considered the diagnosis of schizophrenia to be confirmed by the fact you suffered a significant relapse of your symptoms between September and December 2022 whilst in custody for this matter. At that time you were both unmedicated and unlikely to be experiencing the effects of illicit substances. Your symptoms improved when you were restarted on antipsychotics. Dr Bhattacharya noted that at the time of her assessment your mental state was stable but there was evidence of residual delusional beliefs and perceptual abnormalities.
46Based on the material provided to her, including body worn camera footage and your record of interview, Dr Bhattacharya opined that you were acutely psychotic at the time of the offending. She said:
[You were] expressing multiple paranoid and grandiose delusional beliefs and was thought disordered. The seriousness of the violence was striking, and from my understanding was not in keeping with his criminal history.
47Dr Christine Rizkallah agreed with the opinion of Dr Bhattacharya that you suffer from paranoid schizophrenia for essentially the same reasons. She also agreed that you were psychotic at the time of your arrest.
48Where the two doctors differed was as to the relative contribution of illicit substances to your offending. Both doctors agreed that as well as schizophrenia you also meet the criteria for substance use disorder for opioid, stimulant, cannabis and alcohol use.
49You told Dr Bhattacharya that prior to the offending you were drinking alcohol and using cannabis daily and using methamphetamine a couple of times a week. She acknowledged that illicit substances may have impacted your mental state at the time of the offending but concluded that you were suffering an acute relapse of your schizophrenia which had been untreated for some time. She also concluded that the defence of mental impairment was available as you were unable to reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.
50Dr Rizkallah noted Justice Health records indicating that prior to your arrest you were using methylamphetamine, heroin, cannabis and alcohol daily. You told her that you relapsed on methylamphetamine two to three days prior to the offending after four to six weeks of abstinence. You also told her that 'when I'm on the drug yeah' - and that was you agreeing with the diagnosis of schizophrenia - 'but when I'm not on them I seem to be fine, not fine, the voices are still there, but it's enough to get rest'.
51You told her that when you were on the drugs you have paranoia 'and hear voices and stuff like that' and you also said that it usually takes a couple of months of antipsychotic treatment and abstinence from illicit substances for the voices to subside 'although they never do completely'.
52In relation to the offending you told Dr Rizkallah that you believed you injected 1 point of methylamphetamine the day prior. You said on the morning of the offending you started to feel 'invincible' and told her that this happens when you use methylamphetamine. You told her that later that day you attended Mr Lang's house to confront him about injuring Ms Mercer. You said while there, you consumed some red wine and smoked cannabis. You said you could not recall exactly what occurred thereafter because 'I was drug affected at the time, the mix of ice, weed and alcohol. There are lots of black spots'.
53You also told her that you did not ordinarily take justice into your own hands but did so on this occasion because you were drug affected.
54Dr Rizkallah said that your account of your reasoning for assaulting Ms Mercer and Mr Lang was fairly coherent. She said that in the days prior to the offending you had developed a grievance towards Mr Lang, believing that he had cut your friend, Ms Mercer, on the neck. You then confronted Mr Lang and Ms Mercer in what can be described 'as a protracted grievance-fuelled violent attack, contributed to by the effects of multiple substances including methamphetamine, cannabis and alcohol and possibly sexual frustration and opportunistic access to Ms Mercer'.
55Dr Rizkallah noted, as did Dr Bhattacharya, that upon your receipt into custody and after withdrawal of substances your mental state improved without antipsychotic medication. She considered your underlying psychotic illness likely contributed to the offending but was unlikely to have been the primary cause. She noted your driven and grandiose behaviour upon your arrest to be consistent with the activating effects of methamphetamine rather than a relapse of your schizophrenic symptoms of paranoia, distress and feelings of persecution.
56Having regard to your explanation, indeed justification, for your offending, she disagreed that you did not know that what you were doing was wrong and disagreed that the defence of mental impairment was available.
57She suspected your illicit drug use played a significant role in your offending and concluded:
While it is not possible to determine the exact apportionment of various contributing factors to the alleged offending, on balance it is my opinion that had [you] not been substance affected at the time, the offending was unlikely to have occurred.
58I accept the opinion of the two doctors that you suffer from schizophrenia and that you were psychotic at the time of the offending, however I prefer the analysis of Dr Rizkallah as to the interplay between your consumption of drugs and mental illness. I also note that by pleading guilty you have abandoned any reliance on mental impairment as a defence to the charges as opposed to it being a mitigating factor. There is evidence that you knew that taking drugs would adversely affect your mental state, but no evidence that you knew that it would cause you to behave as you did on this night. In the end I am satisfied that your schizophrenia does reduce your moral culpability for these horrific offences, but because of your consumption of drugs the reduction is only slight. I still regard your moral culpability as high.
Impact of your offending[5]
[5] I am required to take into account is the impact of your offending on your victims and their personal circumstances - Section 5(2)(daa), (da) and (db).
59There was no victim impact statement from Mr Lang who, I was informed, has since died. However, there can be no doubt that your offences would have deeply affected him. The photographs bear witness to his injuries and the psychological trauma of your sustained torture cannot be doubted.
60Ms Mercer did provide a victim impact statement which was read aloud by Mr O'Doherty. It is clear that your offending has impacted her profoundly. She still cannot see properly after having her eyes gouged, and she has scars and bitemarks all over her body, including her face. Her scars are a constant reminder of what you did to her, especially when someone asks her about them. Her mental health has also suffered. She has flashbacks and nightmares and still experiences panic attacks. To her credit, she says that although she will never forget what happened, she is determined not to let the experience get the better of her.
Current Sentencing Practices
61I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
62I have had regard to the most recent Sentencing Advisory Council Statistics of the higher courts (for the five years up until 30 June 2023) for all your offences noting that I can only take into account other sentences for rape for comparative purposes if the rape occurred after 1 February 2018, as before that it was not a standard sentence offence.
63Of course, statistics are of limited assistance because they never tell you anything about the details of the case although the range of terms of imprisonment could be expected to broadly reflect the full spectrum of seriousness of the cases involved. It is also likely that some of the sentences may have been reduced because of the combined effect of the Worboyes principle and the increased burden of imprisonment during COVID.
64Sentences imposed in comparable cases are of more use than statistics, but I was told that neither party was able to find any comparable cases. In any event my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of Guilty, co-operation and remorse
65You are entitled to a significant discount in your sentence for the fact you pleaded guilty to all charges. In pleading guilty you facilitated the course of justice and took legal responsibility for all your crimes. You also spared your victims and witnesses the ordeal of coming to court to give evidence.
66In relation to the Lang charges you indicated an intention to plead guilty at an early stage, namely 12 October 2022, which was prior to you being committed to this court and still entitles you to the Worboyes discount.[6]
[6] Worboyes v The Queen [2021] VSCA 169
67In relation to the Mercer charges, you did not plead guilty until 11 June 2025, the day prior to the prerecording of Ms Mercer's evidence for trial. Further, there was a contested committal in February 2023 in which Ms Mercer and three police officers gave evidence. As such your plea of guilty could hardly be considered early, however I take into account that it followed a considerable delay in which the dual issues of fitness for interview and mental impairment were legitimately explored. Moreover, it spared Ms Mercer from the ordeal of having to give evidence again and even though there was a great deal of evidence which implicated you, it is also true to say that often offenders will just take their chances, particularly in sex cases.
68Moreover, I accept that this offending is not in keeping with your criminal history and that you are genuinely remorseful for it.
Delay
69I take into account that you have had these matters hanging over your head for a long time and that this will have been a worry to you.
Your character and risk of reoffending
70Your criminal history does not bode well for your future. Nor does the fact you have constantly disengaged from mental health treatment and taken illicit substances despite knowing that those things were detrimental to your mental health. You have an extensive criminal history for a range of offences committed in Victoria, New South Wales and South Australia and dating back to 1993 when you would have been only 17 years old. It is true that you have never done anything like this before and that is at least something.
71According to both psychiatrists you are still experiencing low grade auditory and tactile hallucinations, even though you are medicated and abstinent from illicit drugs, but you are able to manage them and function reasonably well in the prison environment. When you were first taken into custody you also functioned reasonably well once the effect of the illicit drugs wore off even though you were unmedicated at that time. The danger arises when you stop taking your prescribed medication and more particularly take illicit drugs. Your rehabilitation is therefore in your hands. All I can say is that I am not optimistic.
Purposes of Sentencing
72I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. Generally, a custodial sentence must only be imposed as a last resort and then be the absolute minimum required.
73Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality, meaning that whilst separate episodes and separate victims must be recognised, you must not be punished any more than is proportionate and appropriate to your overall criminality.
74In your case those general sentencing principles are qualified by some specific sentencing provisions applicable to your offences of rape and intentionally cause serious injury which I have already outlined. Because I will be imposing a term of imprisonment on Charges 2 and 4, the two rape charges, thereafter you will be a serious sexual offender. That means in respect of Charge 5 on the Mercer indictment, I am required to consider protection of the community as the principle sentencing purpose and am entitled to impose a disproportionate sentence to achieve that purpose. Finally, your status as a serious sexual offender gives rise to a statutory presumption of cumulation of the sentence on Charge 5 on the other sentences. The more serious the overall offending the more that presumption operates to moderate the principle of totality.[7]
[7] DPP v Bales [2015] VSCA 261 at [38] ff and Mush v The Queen [2019] VSCA 307 [89] to [91].
75Even without those specific provisions, your offending clearly warrants a substantial term of imprisonment. The prosecution has not submitted that a disproportionate sentence is necessary, and I am satisfied even having regard to the fact I consider you are a risk of reoffending, that I have enough sentencing discretion to achieve the purpose of community protection in your case without imposing one.[8]
[8] DPP v DDJ [2009] VSCA 115 at [29].
76Similarly, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation of my sentence on Charge 5 and 'otherwise direct' to give effect to my orders.
77In fixing the individual sentences on each indictment I have taken into account the context in which the offences occurred, being protracted assaults in each instance, whilst being careful not to doubly punish you nor sentence you for crimes for which you have not been charged.[9]
[9] In accordance with the discussion in DPP v Lerardo [2024] VSCA 181 at [115] ff.
78I have imposed a sentence less than the standard sentence on the two rape charges because I consider it warranted in all the circumstances including your plea of guilty, mental illness and the principle of totality.
79The courts have repeatedly emphasised that general deterrence and denunciation are paramount sentencing considerations in sentencing for sexual offences and in sentencing for crimes of violence, especially when fuelled by drugs or alcohol. Your crimes fall into both categories. In your case there is also clearly a need to specifically deter you and to protect the community. Because of the contribution of drugs to your offending I am not satisfied that anything other than a slight moderation of the principles of general and specific deterrence is warranted on account of your mental illness.
80Of course, my sentence must also be just. It must reflect your mitigating factors and as far as possible promote your rehabilitation by the fixing of a non-parole period.
Prison
81Weighing up the competing considerations as best I can you are convicted on each charge and sentenced to terms of imprisonment as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| Indictment N10852676.A.1 | ||||
| 1 | Causing injury intentionally (eye gouging), contrary to s18 of the Crimes Act 1958 | 10 years | 18 months | 3 months |
| 2 | Rape (fingers into vagina), contrary to s38(1) of the Crimes Act 1958 | 25 years | 8 years | Base |
| 3 | False imprisonment, contrary to Common Law | 10 years | 18 months | 2 months |
| 4 | Rape (fingers into anus), contrary to s38(1) of the Crimes Act 1958 | 25 years | 7 years | 7 months |
| 5 | Causing serious injury intentionally (biting off part of Ms Mercer’s right ear), contrary to s16 of the Crimes Act 1958 | 20 years | 4 years | 7 months |
| 6 | Causing injury intentionally (injuries caused to Ms Mercer’s left ear and nipples), contrary to s18 of the Crimes Act 1958 | 10 years | 18 months | 3 months |
| Indictment N10852676.B | ||||
| 1 | Common assault contrary to Common Law | 5 years | 12 months | 6 months |
| 2 | Causing injury intentionally contrary to s18 of the Crimes Act 1958 | 10 years | 2 years and 6 months | 12 months |
Total Effective Sentence: | 11 years and 4 months imprisonment | |||
Non-Parole Period: | 8 years and 6 months | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 1237 days | |||
| 6AAA Statement: If you had not pleaded guilty to the charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of 16 years with a non-parole period of 13 years. | ||||
| Other relevant orders: · Pursuant to section s6F, sentenced as a Serious Sexual Offender in respect of charge 5 · Forfeiture and disposal orders | ||||
Presentence Detention
95I declare that you have served a total of 1,237 days pre-sentence detention not including today in respect of that sentence, and order the declaration be entered in the records of the Court and the period deducted administratively.
Sex Offence Registration
97You have pleaded guilty to two Class 3 offences within the meaning of the Sex Offenders Registration Act 2004 (Vic). This means I have a discretion as to whether to order your registration under that Act. The prosecution have not sought that I do so and I do not consider it warranted.
98Mr Knight, do you understand the sentence that I have imposed?
99OFFENDER: Yeah.
100HER HONOUR: Are there any matters that I need to address?
101MR O'DOHERTY: No, Your Honour.
102MR HILTON-WOOD: No, Your Honour
103HER HONOUR: All right. I will leave the Bench.- - -
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