Director of Public Prosecutions v Mitchell (a pseudonym)

[2025] VCC 1503

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARRON MITCHELL (A PSEUDONYM)

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2025
DATE OF SENTENCE:	13 October 2025
CASE MAY BE CITED AS:	DPP v Mitchell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1503

REASONS FOR SENTENCE
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Subject:CRIMINAL    

Catchwords:   Rape – Jury conviction – 9 day trial – Intimate partner – Standard sentence offence – Pre-text call admission – Evidence at trial of admission of offence to offender’s mother – Victim impact – Aggravating features-breach of trust-never consented – Youthful offending – Objective gravity-less than mid range – Bugmy-rejected – Verdins – Specific deterrence reduced – Low risk of reoffending - Disproportionately longer period of parole.

Legislation Cited:  Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Mills v R [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; DPP v SJK [2002] VSCA 131; DPP v SJK [2002] VSCA 131; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102; DPP v Esler [2022] VCC 1788; Wilson (a pseudonym) v The King [2023] VSCA 276; Ortisi v The King [2025] VSCA 42; Clarke v The Queen [2022] VSCA 89; DPP v Dalgliesh [2017] HCA 41; Wong v The Queen [2001] HCA 64; Power v R [1974] HCA 26; DPP v Josefski (2005) 13 VR 85.

Sentence:  Total effective sentence – 5 years’ imprisonment – Non-parole period - 2 years’ 9 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Borg	Office of Public Prosecutions
For the Accused	Mr J. Singh	Slades & Parsons

HIS HONOUR:

1Arron Mitchell,[1] in May of 2025 in a trial before me, you faced a single charge of rape.[2] On 29 May 2025, after a nine day trial, a jury of twelve found you guilty.

[1] A pseudonym.

[2] Crimes Act 1958 (Vic) s 38.

2It is now my role to sentence you for your offending following the trial. The task of a sentencing judge following a jury verdict is clear: I am obliged to determine the factual basis upon which you are to be sentenced; the facts I find must not be inconsistent with the jury's verdict; and any adverse findings must be made to the criminal standard.[3]

[3] Cheung v The Queen (2001) 209 CLR 1 at 19 [38].

3The maximum sentence which the court can impose in respect of the charge of rape is imprisonment for 25 years. The offence of rape also attracts a ‘standard sentence’ of 10 years.

Factual Circumstances

4The victim in this matter was Kaitlyn Clarke.[4] At the time of your crime, you had been friends with Ms Clarke since she was 12 years old. The two of you attended school together which was where you met. You met when she was in Year 7 and you were in Year 8.

[4] A pseudonym.

5A year into your friendship you began dating. This lasted for around eight months and involved a consensual sexual relationship. You continued to be friends after this and were in what Ms Clarke described as an ‘on-again-off-again’ relationship.

6In approximately December 2019, Ms Clarke moved out of her family home and started living at your mother’s house. You were at that time living at your father’s house. You would often see Ms Clarke at either house occasionally sleeping together.

7As part of your friendship, you frequently drove Ms Clarke to dance venues and other clubs so that she could attend events. She often stayed at the venue without you. You would frequently pick her up, often very late at night, and take her home.

21 March 2021

8Consistently with these arrangements, on the night of 20 March 2021 you drove Ms Clarke and her friend to a club in the city called ‘Levels’. You dropped them at the club at about 10.00 pm.

9Early on the morning of 21 March 2021, after she called you, you picked Ms Clarke and her friend up from Levels. You drove the friend home before driving with Ms Clarke back to your father’s house in Brookfield, Melton after stopping at your mother’s house to collect a blanket that Ms Clarke wanted.

10The two of you planned to sleep in your bed in the bungalow out the back of your father’s house. You arrived back at your room shortly before 4.00 am.

11Shortly after you entered the room, Ms Clarke got undressed and placed one of your t-shirts on before getting into bed. She told you that she didn’t want to have sex that night. You told her that that was fine.

12Ms Clarke wrapped herself in a blanket and lay down and you watched Netflix together and cuddled.

13After you had kissed for a while, you rolled Ms Clarke onto her stomach. You then got onto your knees behind her and lifted her bottom into the air. Despite Ms Clarke once again telling you she did not want to have sex, you penetrated her vagina with your penis.

14She tried to roll over but you pushed her back down with your hand between her shoulder blades and continued having sex with her until you ejaculated.

15After cleaning yourself, and when you saw that Ms Clarke was crying, you apologised to her and said ‘I hate my hormones’. Ms Clarke asked you to take her home and you said you did not want to, saying ‘it wasn’t that bad was it?’.

16Ms Clarke’s evidence to the jury was that, on this night, she told you on four occasions that she did not want to have sex with you. The first time was when you arrived at your father’s house and were entering the bungalow. The second occasion was when you started cuddling and kissing. Once you moved her into the position you wanted her to be in, she again told you that she did not want to have sex and she repeated this after you penetrated her.[5]

[5] Transcript of Proceedings (13 May 2024) T68-76 (Kaitlyn Clarke).

17On 3 March 2022 at 3 pm, after reporting the matter to police, Ms Clarke conducted a recorded telephone conversation (pretext call) with you from Sunshine Police Station. Ms Clarke was talking to you about the incident, and asking for an apology as it would make her feel better. After being prompted to apologise, you eventually said ‘I’m sorry for raping you’.

18While giving evidence during your trial, you sought to explain why you said that during the pretext call. You told the jury that if you refused to apologise, Ms Clarke would nag you and nag you and you wouldn’t hear the end of it.

19When your mother was giving evidence at your trial she recalled that after returning from the record of interview conducted at the police station, you told her that there was a time when you and Ms Clarke were having consensual sex, she withdrew her consent and you continued to have sex with Ms Clarke. In your evidence to the jury, you denied having said this to your mother.

Victim Impact

20Kaitlyn Clarke’s victim impact statement was read to the court. She describes the night of 21 March 2021 as the worst night of her life. She states that she was raped by someone she trusted completely, someone she considered her best friend.

21Ms Clarke states that you took something from her that she can never replace and the ‘hardest part’ is knowing that you chose to do this. Ms Clarke states that your choice changed her forever.

22I take into account the impact of your offending on Ms Clarke as I am required to do.

Objective gravity and moral culpability

23The crime of rape is always serious as it involves the fundamental disregard of the victim’s bodily integrity.

24In your case, Ms Clarke was well known to you as you had been involved in a relationship including a sexual relationship, for a number of years. The two of you had grown up together. As Ms Clarke states in her victim impact statement, she trusted you completely. There can be no question but that you breached her trust in a most egregious manner.

25On the basis of Ms Clarke’s evidence which I must assume was accepted by the jury, you could have been in no doubt that Ms Clarke was not consenting to having sexual intercourse with you.

26Despite Ms Clarke’s repeated protests, you did not stop until you had ejaculated. You held her down when she resisted – a particularly concerning aspect of the case.

27These are aggravating features of your offending.

28However, as your counsel Mr Singh submitted, there are several features of your crime that are mitigating.

29First, the offending occurred over relatively a short period of time, perhaps a few minutes.

30Secondly, while you clearly physically overpowered Ms Clarke, there was no additional force or threats associated with the rape.

31Thirdly, and this is a matter I will discuss in more detail, you were a young man of twenty at the time of the offending. This is relevant to the court’s assessment of your moral culpability.

32On balance, I assess the objective gravity of your offending as somewhat less than the mid-range for the crime of rape.

Personal Circumstances

33You are currently 24 years old. The following account of your childhood is based on what you told Dr Dawson, a forensic psychologist.[6]

[6] Psychological report of Dr Hannah Dawson dated 3 September 2025 (‘Exhibit D1’).

34Your parents separated when you were three, and as a result you moved between two households growing up.

35During your childhood, your mother was loving and caring but had a problematic relationship with alcohol. You recall that there were times that she would leave you in the care of your older siblings. After your brother committed suicide, your mother also began to use methamphetamine. After recovering from this, she became more involved and attentive.

36You and your mother have a strong relationship. You were living with her before being remanded into custody for this matter, and will resume living with her after serving your sentence. You speak on the phone every day and she visits you in person on the weekends.

37Your father was hard on you growing up, and you reflect that he also had a problematic relationship with alcohol and would get angry when he drank. This behaviour changed when you were 14 years’ old and your younger sister was born. Whilst he was aggressive, your father was not violent. You speak with him occasionally on the phone and he visits sometimes on the weekend.

38You are on good terms with your step-siblings.

39Throughout primary school and high school you were bullied. You report that while you haven’t been diagnosed, you believe that you have dyslexia. You left school in Year 10, as you required one-on-one teaching in order to learn. You studied a course for 6 months before deciding to undertake a roof tiling apprenticeship, which you completed.

40Your first intimate relationship was in Year 8 with the victim, Ms Clarke. You confirm that you were in an on-again-off-again relationship. The relationship ended in 2016 but you continued a casual sexual relationship with her until the offending occurred.

41You met Aimee,[7] your current partner in 2021 when roof tilling. You were intimate with both Aimee and Ms Clarke for a period before committing to Aimee. Aimee remains supportive of you in custody, and you remain committed to each other.

[7] A pseudonym.

42In custody you have reflected that you should have been engaging with mental health services prior to your incarceration. You have been experiencing suicidal ideation since being remanded, but have no plans or intent behind the thoughts. You have not disclosed your offending to your other inmates, due to your fear of what may happen if they find out it was sexual offending.

Matters in mitigation

43You are still only 24. You have your entire life ahead of you. Your youth is an important sentencing consideration for a number of reasons.

44Your counsel submits that your youthfulness is a highly relevant factor in determining the appropriate sentence to impose and, as a corollary, that rehabilitation ought to be seen as a primary sentencing purpose in your case.[8]

[8] Outline of Defence Submissions on Plea dated 16 September 2025 (‘Defence Submissions’).

45This submission reflects the law’s well-established recognition of an offender’s youth as a generally mitigatory force in sentencing.[9] However, this general principle has less weight in sentencing for offending where the offending is particularly serious and general deterrence is an important consideration such as the present. As the Court of Appeal in Azzopardi v R observed:

…where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth.[10]

[9] See, eg, Mills v R [1998] 4 VR 235.

[10] (2011) 35 VR 43, 18 [44].

46The authorities make clear that a court will assess an offender’s moral culpability taking into account whether, due to the offender’s age or level of maturity, they made an ill-considered or rash decision; or where the offending resulted from a lack of critical insight or self-control; or where they have not fully appreciated the consequences flowing from it.[11]

[11] DPP v SJK [2002] VSCA 131, 20 [61]-[62].

47In my view, these considerations have some application to your circumstances. Dr Dawson refers to your psychological immaturity and poor impulse control in her assessment of any likely future risk scenarios.[12] This reduces your moral culpability (but not your legal responsibility) for the offending to a modest extent. Your sentence is moderated accordingly.

[12] Exhibit D1 (n 6) 8-9 [81]-[83].

48Your counsel submitted that your childhood deprivation ‘approaches the principles espoused in Bugmy v The Queen’.[13] I don’t accept that to be the case. While your childhood was not an ideal one, you enjoyed the loving support of both of your parents and continue to do so.

[13] Defence Submissions (n 8) 6-7 [14].

49Having said that, I have taken into account the difficulties you faced as part of my overall assessment of your personal circumstances.

Rehabilitation Prospects

50Your youth is also highly relevant to your prospects of rehabilitation.

51Your counsel tendered a number of positive character references about you. Two of the makers of those references gave evidence at your trial. The referees spoke highly of your character.

52Of particular relevance, your father considers that the offending of which you have been found guilty was completely out of character. He confirms that you have his ongoing support. Your mother also speaks highly of you.

53I consider your prospects to be very good on account of your lack of any prior or subsequent offending, lack of drug or mental health concerns, family support and work history. You have also engaged in programs and courses while in custody[14] which indicate that you are motivated to improve yourself in readiness for your eventual release.

[14] Exhibit D4.

54Dr Dawson observes that assessing your future risk of offending is complex as you maintain your denial of the allegations. Dr Dawson assessed your future risk on the basis that the offending occurred as alleged.[15]

[15] Exhibit D1 (n 6) 10 [94].

55With this caveat, Dr Dawson concludes that you are a low risk of reoffending without further intervention.[16] I accept this opinion and it means that there is little need for the sentence the court imposed to be directed at specific deterrence and it is not a priority concern to protect the community.

[16] Ibid 17 [113].

56Dr Dawson opines that your current symptoms of depression and anxiety could be identified in the context of an adjustment disorder. She opines that ‘imprisonment is likely weighing more heavily on [you] than a person without [your] personality and mental health vulnerabilities’.[17]

[17] Ibid 11 [111].

57In light of this unchallenged evidence, I accept your counsel’s submission that Verdins limb 5 is enlivened and I have moderated your sentence accordingly.

58I don’t accept that the evidence enlivens limb 6 of Verdins.

Standard sentence

59As noted earlier in these reasons, the ‘standard sentence’ for the offence of rape is 10 years’ imprisonment. This is the period specified for an offence that is ‘in the middle range of seriousness’ ‘taking into account only the objective factors affecting the relative seriousness of that offence’.[18] Those factors are to be determined ‘without reference to matters personal to a particular offender’ and ‘wholly by reference to the nature of offending’.[19]

[18] Sentencing Act 1991 (Vic) s 5A (‘Sentencing Act’).

[19] Ibid s 5A(3).

60The standard sentence, like the maximum penalty, is but one of a number of factors relevant to sentencing and does not affect the ‘instinctive synthesis’ approach to sentencing.[20] In sentencing you, I must explain how the sentence I impose ‘relates to’ the standard sentence.[21]

[20] Ibid s 5B(3).

[21] Ibid s 5b(5).

Current sentencing practices

61I must have regard to ‘current sentencing practices’ to promote consistency in sentencing. In doing so, I am not seeking to achieve numerical consistency but rather the consistent application of principle.[22]

[22] DPP v Dalgliesh [2017] HCA 41; Wong v The Queen [2001] HCA 64.

62Section 5B(2)(b) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) provides that I am limited to considering sentences previously imposed for the offence as a standard sentence offence. Four such cases were drawn to the court’s attention by the parties.[23] In each of those cases, the offender was sentenced for the crime of rape after being found guilty by a jury. The sentences imposed ranged from 3 years in Clark to 7 years in Esler. As counsel freely acknowledged, the circumstances of both the offending and the offender vary widely in these cases. Ultimately because of this, I consider that little is to be gained from an examination of these cases.

[23] DPP v Esler [2022] VCC 1788; Wilson (a pseudonym) v The King [2023] VSCA 276; Ortisi v The King [2025] VSCA 42; and Clarke v The Queen [2022] VSCA 89.

Non-parole period

63Your counsel urged me to set a ‘disproportionately longer period of parole’ (or shorter non-parole period) having regard to your youth, otherwise good character and prospects of rehabilitation.

64Dr Dawson recommends that the sentence should incorporate a period of support and supervision after release to support [your] transition between prison and the community…’.[24]

[24] Exhibit D1 (n 6) 18 [117].

65The purpose of setting a non-parole period is ‘… to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence’.[25]

[25] Power v R [1974] HCA 26 at [10].

66Generally, a sentencing Judge has a very broad discretion in determining the non-parole period. Provided the non-parole period is at least 6 months less than the term of the sentence,[26] there is no usual proportion that must be applied.

[26] Sentencing Act (n 16) s 11(3).

67All relevant factors must be taken into account including that the non-parole period has a penal element; deterrence should not be undermined by an unduly short non-parole period; and the prisoner’s prospects of rehabilitation are almost always a significant consideration.[27]

[27] DPP v Josefski (2005) 13 VR 85 at [43].

68However, special rules apply to cases, such as yours, that involve ‘standard sentence’ offences.

69Section 11A(4) of the Sentencing Act provides that ‘unless the 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% of the relevant term if that term is a term of less than 20 years’. The ‘relevant term’ means the sentence imposed.

70As I have decided to impose a sentence of 5 years’ imprisonment, I must fix a non-prole period of at least 3 years’ imprisonment unless I consider it is not in the interests of justice to do so.

71The statute provides no guidance on the meaning of the phrase ‘interests of justice’ in section 11A.

72I have decided that it is not in the interests of justice to fix a non parole period of at least 60% of the sentence essentially for the reasons identified by your counsel. It is in both your and the community’s interests that you have a lengthy period of supervision and support as you transition back into the community. As noted earlier in these reasons, you have very good prospects of rehabilitation and represent a low risk of further offending. Your prospects will be further improved by the support you will receive if you are paroled.

Consideration

73You are to be sentenced for the serious crime of rape after pleading not guilty at your trial. Ms Clarke was cross examined during the trial as she had been at a committal hearing. The cross examination on each occasion involved an examination of her mental health history.

74It was of course your right to contest the charge and the sentence is not to be increased on account of that. However, you are not entitled to the discount that is ordinarily accorded to an offender after a plea of guilty to reflect their acceptance of responsibility and saving witnesses the anxiety of giving evidence.

75In sentencing you, I must balance the objective gravity of your offending against the various matters of mitigation the most important one of which is your youth. I must have regard to both the maximum sentence and the standard sentence.

76Taking all relevant matters into account, you are convicted and sentenced to 5 years’ imprisonment.

77The sentence that I impose is less than the standard sentence having regard to my assessment of the objective gravity of your offending and your moral culpability and taking into account your youth, good character and rehabilitation prospects.

78You will be eligible for release on parole after you have served 2 years and 9 months’, i.e. less than 60% of the term of the sentence. Whether you are paroled is a matter for the Adult Parole Board and not this court.

79Pursuant to section 18 of the Sentencing Act, I declare that the 137 days you have served since your remand, not including today, be declared to be pre-sentence detention referable to the sentence I impose today.