Director of Public Prosecutions v Tofi
[2025] VCC 330
•24 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02024
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK TOFI |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2025; 3 March 2025 | |
DATE OF SENTENCE: | 24 March 2025 | |
CASE MAY BE CITED AS: | DPP v Tofi | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 330 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Causing injury intentionally; Common assault; Rape; Persistent contravention of family violence intervention order
Legislation Cited: Crimes Act 1958; Sentencing Act1991
Cases Cited:Skeates (a pseudonym) v The King [2023] VSCA 2026; R v Mason [2001] VSCA 62; Jurj and Miftode v The Queen [2016] VSCA 57; R v Merrett (2007)14 VR 392; McPherson v The Queen [2021] VSCA 53; Director of Public Prosecutions (DPP) v Dalgliesh (a pseudonym) (2017) 262 CLR 428
Sentence: Six years and Ten months’ imprisonment with a Non-Parole Period of Four years and Six months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster (for Plea) Mr A. Taghar | Office of Public Prosecutions |
| For the Accused | Mr D. Dann KC (for Plea) | Stephen Andrianakis & Associates |
HIS HONOUR:
Introduction
1At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offence case is prohibited by an Act of Parliament. In my published remarks, a pseudonym will be used for the name of the victim.
2Jack Tofi, you have pleaded guilty to an indictment containing four charges – one charge of causing injury intentionally which carries a maximum penalty of 10 years’ imprisonment, one charge of common law assault which carries a maximum penalty of five years’ imprisonment, one rolled-up charge of rape which carries a maximum penalty of 25 years’ imprisonment, and one charge of persistent contravention of a family violence intervention order which carries a maximum penalty of five years’ imprisonment.
Circumstances of offending
3The circumstances of your offending were set out in the Amended Summary of Prosecution Opening for Plea dated 18 February 2025, Exhibit 1 at your plea hearing. Your counsel, Mr Dann, confirmed at your plea hearing that this document contained an admitted factual outline of your offending conduct.
4Your offending can now be summarised.
5You met your victim in this matter, Ms Irene Davis,[1] in early 2018 at a brothel. Ms Davis, then aged in her mid-20s, was a sex worker and you, then aged in your early 50s, were one of her clients. Following your initial meeting you met a number of times at her place of work over the course of a month, in the client-worker relationship, until Ms Davis ceased work in April 2018. After leaving the sex industry in April 2018, you and Ms Davis formed a friendship. At this time you were married and Ms Davis made it clear to you that there was to be no sexual element to the friendship.
[1]A pseudonym.
6Towards the end of 2018 you separated from your wife. At around this time, you and Ms Davis commenced a sexual relationship, which Ms Davis viewed as a 'friends with benefits' arrangement that went through to around June of 2019. From this time period the sexual aspect of your relationship became more frequent. Ms Davis attempted to maintain independent boundaries within the relationship by telling you that you were essentially not in a committed relationship. You were not altogether accepting of Ms Davis’s position and became jealous.
7One day between 20 and 27 June 2019, you were both at her home when Ms Davis told you that she wanted to end the relationship. At the time you were in the lounge room. Upon hearing this, you became enraged and yelled at her. You then grabbed her throat and threw her to the ground, positioning yourself on top of her and choked her for an unknown period of time. When you released Ms Davis, you left the house and did not return that day. Your conduct in this regard which forms the basis of Charge 1 on the indictment, causing injury intentionally, caused bruising around Ms Davis’s neck and chest. The day after this incident, Ms Davis sent text messages and photographs of the bruising to a friend.
8Following this incident, Ms Davis did not speak to you for a couple of days. You subsequently apologised. The relationship did not end at this point and there was no violence for approximately six months.
9In December 2019, leading into January 2020, the relationship again became fractious. One day whilst at your home you had a fight with Ms Davis in the context of berating her and expressing jealousy over two male friends of hers. Ms Davis goaded you into slapping her across the face after she had hit you across your cheek. Ms Davis then tried to hang herself with an iron from the banister on the stairs, but you came to her assistance.
10On 19 August 2020, the two of you were at home for most of the day. In a series of phone calls from you to Ms Davis shortly after 5.00 pm, these calls being recorded by Ms Davis, there were discussions around Ms Davis’s friendships, about which you were very angry, calling her a 'fucking cunt' and saying 'fuck you' repeatedly. Shortly after these phone calls you returned home and went to Ms Davis’s bedroom where you proceeded to yell and swear at her. Ms Davis had activated the voice recorder on her phone again prior to you entering the bedroom. You swore at her and assaulted her, throwing her belongings around the bedroom and slapping, grabbing and hitting her approximately 10 times in under 15 minutes. You also threatened to throw the bed out of the window. Ms Davis repeatedly pleaded with you to desist, to which you replied: 'fuck off'. She told you to get out of her face, at times telling you that it was hurting. Your conduct as I have described it in Ms Davis’s bedroom forms the basis of Charge 2 on the indictment, common law assault.
11Soon after you both went downstairs where you removed Ms Davis’s phone and keys from her, refusing to return them. When Ms Davis threatened to smash your phone, you grabbed her around the throat and banged her head against the kitchen cupboard a number of times before throwing her on the floor and ripping her clothes off until she was naked on the kitchen floor. Whilst your conduct in this regard does not form the basis of a charge, it represents context for your overall offending on this particular day.
12Ms Davis then went back upstairs, followed by you. As she crouched in the corner of a cupboard, you continued yelling at her and kicked at her legs. After going downstairs to collect her phone and keys, Ms Davis returned to the bedroom where she sat on the bed, with you still in the room pacing around belittling her and making derogatory comments about her family. When she asked you to leave her alone, you told her to 'shut your fucking mouth.' You then told Ms Davis that you were going to 'rape your arse, I’m going to rape you.' You pushed her back on the bed so that she was laying on her back. When she told you to go away, you told her to 'shut your mouth, I’m going to rape you.' You then laid on top of her pinning her to the bed so that she could not move. You then inserted your finger into her vagina and partially inserted your finger into her anus. Ms Davis told you to stop numerous times and that it hurt. She was crying at the time. You started making a growling noise as you continued to put your finger in her vagina and Ms Davis cried out for you to stop, to which you replied: 'try and stop me.' Your penetrative conduct with regards to Ms Davis lasted for no more than a minute. Your conduct in this regard forms the basis of the rolled-up charge of rape, Charge 3 on the indictment, and it encompasses the introduction of your finger into Ms Davis’s vagina and anus without her consent.
13You then stopped and left the room, as Ms Davis remained on the bed, naked, crying and in shock.
14All of this was audio recorded by Ms Davis.
15After telling her mother what had happened the following day, Ms Davis packed up her belongings, retrieved her bank an identification cards from you, and left, with you yelling her name as she drove off. After reporting the matter to police that same day, 20 August 2020, police issued a family violence safety notice, preventing you from contacting Ms Davis, approaching her or committing any acts of family violence. This notice was served on you at 10.15 pm that night, with the conditions being explained to you by police. A formal court order was made in the Melbourne Magistrates Court on 26 August 2020 and that order was served upon you the same day.
16As set out in the summary of prosecution opening at paragraph 19, you breached that family violence intervention order on four occasions. On 4 September 2020, you met with Ms Davis, with her again recording the conversations. In that conversation, when asked by Ms Davis to admit the various allegations of rape and assault, you essentially acknowledged that you knew what you had done. The following day on 5 September 2020 when Ms Davis attended at your house to retrieve the remainder of her belongings, you had a further conversation with her which again Ms Davis recorded. Again, you essentially admitted wrong-doing, telling her that what you had done was completely wrong and that you were so sorry.
17On 15 September 2020, you contacted Ms Davis via Facebook Messenger by way of video calls and sending her a message telling her that you loved her. Two days later, on 17 September 2020, you again contacted Ms Davis by Facebook Messenger by way of a message. The following day, 18 September 2020, you again contacted Ms Davis by Facebook Messenger by way of a message. In a responding message, Ms Davis reminded you of the intervention order and told you that you should not be contacting her. You replied: 'done.'
18On 21 August 2020, Ms Davis attended for a medical examination at the Victorian Institute of Forensic Medicine, following the incidents which form the basis of Charges 2 and 3 on the indictment which took place on 19 August 2020. The medical findings from the medical practitioner who conducted a physical examination of Ms Davis included various areas of tenderness over the top of Ms Davis’s head and on both sides of her neck, bruises on her arms, scratches and abrasions in the middle of her left back, two areas of redness on the lower back and faint purple bruises on the lower forearm.
19You were arrested on 25 September 2020 and interviewed by police. Aspects of your answers were set out at Paragraph 23 of the summary of prosecution opening. Amongst other matters, you denied the conduct which forms the basis of Charge 1 on the indictment. You referred to only arguing once in a blue moon and denied ever getting physical with Ms Davis during arguments. In relation to the conduct forming the basis of Charge 2 on the indictment, you denied slapping her in the bedroom of your house, but you indicated that you might have shoved her back a bit. You denied the assault and rape in its entirety, including saying 'I'm gonna rape your arse' and you stated that you had only done things to her consensually. When the audio files recorded by Ms Davis were played to you, you agreed that you might have said those things but did not touch her and essentially that these were just words.
Victim Impact Statement
20A Victim Impact Statement from Ms Davis dated 18 November 2024 was tendered at your plea hearing and marked Exhibit 2. I will not now detail the contents of Ms Davis’s statement, save to say that she has clearly been significantly impacted adversely by your offending against her. She refers to still struggling to trust men emotionally and psychologically. She feels traumatised by the offending and refers to never being the same again. Victim impact statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the court of the often catastrophic impacts of offending upon them across all areas of their life. In formulating an appropriate sentence in your case, I have taken into account as one of the many relevant sentencing factors, the impact of your offending upon Ms Davis.
Nature and gravity of your offending and your level of culpability for it
21I turn now to the nature and gravity of your offending and your level of culpability for it.
22All of your offending occurred in the context of family violence. In relation to Charges 1,2 and 3 on the indictment, you were at the time in an intimate relationship with Ms Davis, a woman whom you purported to love. As has been made clear by previous decisions of the Court of Appeal in this state, in particular the decision of Skeates (a pseudonym) v The King from 2023,[2] an assessment with regards to the gravity of your offending needs to occur in the context of an appreciation of the family violence context. Indeed, in assessing the totality of the circumstances relating to any offence committed in the context of family violence, your surrounding behaviours must be considered to assess the true gravity of the offending and for 'the sentence to vindicate the dignity of the victim.'[3] It would, therefore, be incorrect to deconstruct the whole in an attempt to divorce each individual offence from its context.[4] As the court in Skeates stated:
'The court has made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable. … Family violence is contemptible. It warrants both condemnation and appropriate punishment. … The fundamental importance of general deterrence in arriving at the appropriate punishment does not diminish the value of specific deterrence and protection of the community as sentencing considerations.'
[2][2023] VSCA 2026
[3]Paragraph 62
[4]Paragraph 77
23It is accepted, as indicated by your counsel, that your relationship with Ms Davis had unconventional aspects, as acknowledged by Ms Davis in cross-examination at the committal hearing. There were aspects of what could be described as consensual low level mutual physical violence, which extended into a sexual context. Whilst relevant to an overall assessment as to the circumstances of your offending, this, in my view, in no way excuses your abhorrent and obviously non-consensual conduct in relation to Ms Davis. As indicated by the prosecution, there is an ocean of difference between the admitted consensual conduct and the non-consensual acts which form the basis of the charges on the indictment, in particular Charge 3.
24There is a need, in my view, for any sentence I impose to appropriately denounce your violent and controlling behaviour committed against an intimate partner, and to give prominence to the sentencing purpose of general deterrence given the high incidence of family violence in the community. Like minded offenders must know that engaging in acts of violence against a partner seeking to leave the relationship will be met with significant punishment. Your conduct in relation to Charge 1 on the indictment occurred when Ms Davis told you that she wanted to end the relationship. Ms Davis was then at her home, a place where she was entitled to feel safe. Your conduct in throwing Ms Davis to the ground while grabbing her throat and essentially choking her for an unknown period of time whilst you were enraged, is both self-evidently dangerous and highly concerning. Whilst I accept as submitted by your counsel that the injuries, consisting of bruising around Ms Davis’s neck and chest, are towards the lower end of the spectrum of intentionally cause injury cases, the broader family violence context accentuates both the objective gravity of this conduct and your level of culpability for it. This incident occurred more than 12 months prior to the offending captured by Charges 2 and 3 on the indictment, representing therefore distinct criminality on your part.
25Turning to Charge 2 on the indictment, common law assault, this and the other offending on this same day, 19 August 2020, occurred in the context of your ongoing concerns with regard to Ms Davis’s friendships with others, causing you to become very angry and to verbally denigrate her. The conduct forming the basis of Charge 2 occurred in the bedroom, again a place where Ms Davis was entitled to feel safe. Captured by an audio recording by Ms Davis, you engaged in what can only be described as disgraceful conduct with your then partner, verbally denigrating her, throwing her belongings around the bedroom and threatening to throw the bed out of the window, slapping her and grabbing and hitting her appropriately 10 times in under 15 minutes. Ms Davis was clearly telling you to stop, and your response was extremely dismissive. Again, the family violence context of this offence accentuates both the gravity of it and your level of culpability. I accept, however, that occurring only shortly prior to the conduct captured by Charge 3 on the indictment, it can be viewed as the beginning of one significant family violence incident.
26Your conduct forming the basis of Charge 3 on the indictment, a rolled-up charge of rape encapsulating digital penetration of Ms Davis’s vagina and anus, is clearly the most significant criminality on the indictment. The context with regard to the broader circumstances is relevant to an assessment as to the gravity of this particular conduct. Again, it occurs in a family violence context. It occurred after you had already assaulted Ms Davis in the bedroom. It occurred after you had retaliated following a threat by Ms Davis to smash your phone, where you had grabbed her around the throat and banged her head against the kitchen cupboards downstairs in the property. It occurred after you had thrown her on the floor and ripped off her clothes until she was naked, accentuating both Ms Davis’s vulnerability and adding to the degrading aspect of your conduct. As I indicated to your counsel at your plea hearing, listening to the audio of the incident captured by Charge 3 on the indictment makes for harrowing listening indeed. As I then indicated, I am conscious of the need not to be 'emotionally swamped' by any visceral response to the audio recording. What is clear in my view is that your rapes of Ms Davis occurred in an extremely violent setting. For a sustained period of time, you had denigrated her and her family in the strongest of terms. You engaged in a sustained attack on her character. Your tone was extremely menacing and frightening. Ms Davis was clearly most fearful of you and in no way indicating any level of consent. She repeatedly told you to leave her alone. You exercised complete domination over her. Your demeanour and behaviour, as captured in the audio recording, represents an aggravating feature of this particular offending.
27Rape is an intensely personal crime, involving the physical invasion of a person and their security, and the more intangible loss of their rights and freedoms.[5] In addition to the physical violation, this crime involves the psychological and emotional violation of an individual. The depth of the injury and harm caused to victims is well established. It is an offence that encompasses a wide range of criminality. Within this spectrum, there are a number of features which are typically taken into account by sentencing courts in assessing the gravity of a particular instance of rape.[6] In addition to the family violence context and your demeanour and behaviour as captured in the recording, in conducting an assessment as to the objective gravity of your conduct I have considered these factors, appropriately brought to my attention by your counsel on your behalf at your plea hearing. The penetrative conduct lasted a matter of seconds. There was no premeditation or planning and I accept that it was most likely a spur of the moment conduct on your part. You acted alone, there were no weapons or objects used, and the mode of penetration, with your finger or fingers, obviously involved no risk of pregnancy and a reduced risk of infection. I also accept that whilst Charge 3 is a rolled-up charge incorporating penetration of Ms Davis’s vagina and anus with your finger, those acts were so closely connected in time as to essentially represent one continuous transaction. In the unusual circumstances where your conduct is captured on an audio recording, it is obvious that Ms Davis was not consenting to this conduct and your disregard for her wishes both aggravates your offending and accentuates your level of culpability.
[5]R v Mason [2001] VSCA 62 at paragraph 8
[6]Jurj and Miftode v The Queen [2016] VSCA 57 at paragraph 80
28Overall, I regard Charge 3 as representing a serious and concerning example of the crime of rape, and your culpability is high.
29Turning finally to Charge 4 on the indictment, the persistent contravention of a family violence intervention order. Given that your offending occurred in a family violence context, the offending captured by Charge 4 must be seen as serious. In the face of having committed serious criminal offences against Ms Davis, your failure to abide by a court order designed to protect Ms Davis is self-evidently concerning. There is a need to denounce such conduct and send a message to the broader community of the vital importance of compliance with family violence protection orders. As encapsulated by the offence, your conduct was indeed persistent, extending over a number of days. However, I accept that your conduct occurred in the context of contacts being made by Ms Davis, as well as yourself, and it does not appear that any of the conduct was violent, threatening or intimidating. Indeed, your conduct is replete with expressions of remorse on your part, and it seems an appreciation of the gravity of your wrongdoing. In all the circumstances I regard your offending in this regard as representing a concerning, but comparatively lower-level example of this type of offending.
Personal circumstances
30I turn now to your personal circumstances.
31You are presently 59 years of age. You were born in Australia in 1965 to parents who arrived in Australia from Cypress in the early 60s. You were raised in South Australia in an area now known as Prospect, where you attended school up to Year 10. You left school before completing Year 10, following which you worked at various odd jobs.
32You commenced a relationship with your now ex-wife Nada at about the age of 17, and the two of you moved to Victoria in 1985 before marrying in 1986. Together you have a son Andrew who was born in 1994. As indicated in the prosecution opening, you separated from your wife Nada in 2018, apparently on amicable terms.
33Upon your arrival in Victoria, you undertook a four-year apprenticeship at a petrol station in Coburg, learning to work on and service cars. Upon leaving the service station you worked at various Holden dealerships for the following six or seven years. In 2000 you started a workshop with your then business partner, Lube Atanasovski called L & J’s Automotive in Laverton. You employed numerous individuals in the business, which was apparently successful. By 2020 you were feeling the stress of the present criminal proceedings and ultimately shut down the business.
34Your interactions with Ms Davis commenced in 2018. As I earlier indicated, within a similar time period your marriage ultimately ended. According to your counsel you started to drink alcohol to excess and started using steroids and drinking vodka daily, with the steroids assisting you with energy to 'keep up' with Ms Davis who was over 20 years your junior. I accept as conceded by the prosecution that your relationship with Ms Davis was not all bad and you appear to have assisted her with regard to her own mental health concerns and you have provided her with material support.
35Following the end of your relationship with Ms Davis you met another woman, Lisa Staropoli. You have been engaged now for some two years and prior to your remand in custody you were living together in a unit which you had purchased together. You have played an important role in both the life of Lisa and her son Dominic whose father passed away in 2017. You have also provided support for Lisa’s daughter Ruby now aged 31, who has had her own mental health struggles. I accept that your incarceration has been felt significantly by your fiancé and her children.
36You have an extremely limited criminal history, essentially relating to two matters in 1993 and 1994 which are of a completely distinct nature to the offending now before me.
37A significant number of character references have been tendered on your behalf which attest to your good character.[7]
[7] Exhibits B to J
38Bail Justice David Sharpe has known you for 16 years and regards you as hardworking, likeable and honest, and refers to these offences being out of character for you. Mr Sharpe remains supportive of you. Your previous business partner Mr Atanasovski indicates in his reference that you are a hardworking, likeable, honest and great family man, and Mr Atanasovski is shocked and surprised at your involvement in these offences. In your fiancé’s heartfelt letter to the court, Ms Staropoli refers to you as a loving partner to her and a significant support to her son and daughter. Ms Staropoli also refers to you being deeply remorseful for your actions. Ms Staropoli’s son Dominic has also provided a character reference, highlighting the instrumental role that you have played in his life. Your son Andrew has provided a reference to the court. He has highlighted the support you have provided him over the years, particularly following a serious accident in October 2023. Your son Andrew also refers to you being extremely remorseful for your offending. Other character references expressing similar sentiments were provided by your ex-wife Nada, her mother Souad and her sister Najiba, and an ex-partner of your son Andrew. Your previous character is of course relevant to the sentencing exercise, and I accept the good standing you enjoy in your community and the ongoing support provided by those around you. These supports auger well for your prospects for rehabilitation upon your release from custody.
39You have been in custody since 6 March 2024, the date upon which your matter resolved, and you entered pleas of guilty to the charges. Accordingly, you have been in custody now for 401 days. You have been on remand at Marngoneet Correction Facility, and I accept that you have been incident free and have kept yourself busy with work in the bakery, working Monday to Friday, and you have also regularly attended the gym. You have completed a number of courses in custody which include first aid, occupational health and safety, a barista course and food handling, and you have been on a waiting list for further courses. A bundle of certificates were tendered at your plea hearing on 3 March 2025, attesting to your productive use of time whilst in custody.
Applicable sentencing factors and purposes
40I turn now to applicable sentencing factors and purposes.
41The fact that you, albeit belatedly, pleaded guilty to these charges, very much represents a mitigatory factor in your favour in the sentencing exercise. There is a significant utilitarian value to your pleas of guilty as the matter is now finalised without the need of a costly trial and court resources have been saved. Witnesses have not been required to give evidence at trial. Whilst Ms Davis was cross-examined at the committal hearing, it is a matter of some significance that she has been spared the trauma of having to re-live these matters in evidence before a jury. This is a significant matter given the subject matter of the offences. Furthermore, the utilitarian value of your pleas of guilty is enhanced as a trial would likely have involved the playing of the audio recordings to a jury, which as I have stated, is a harrowing experience. In analysing the mitigatory weight to attach to your pleas of guilty, the time at which those pleas were entered is relevant. Your matter was listed for a trial before me, commencing on 5 March 2024. On that date counsel then representing you indicated that the matter would proceed to trial with a denial on your part that the alleged sexual activity had taken place. Following pre-trial argument, the matter was adjourned to the following day, 6 March 2024, when the court was informed that the matter had resolved to pleas of guilty. Accordingly, your pleas of guilty must be seen as having been entered at a late stage in proceedings, impacting upon the sentencing discount warranted.
42I accept that your plea is evidence of your willingness to facilitate the course of justice. A degree of appreciation on your part with regards to the gravity of your wrongdoing was evident as early as 4 September 2020 in the first of your conversations with Ms Davis in breach of the family violence intervention order. However, in the subsequent interview with the police on 25 September 2020, you essentially denied responsibility for your offending, and as I have stated, elected to contest the allegations until day two of your trial. A letter of apology from you to Ms Davis, undated but provided to the prosecution on 13 November 2024, contains what I accept to be a deep and sincere apology for your offending against her. There are also references to your remorse in the various support letters tendered on your behalf. In those circumstances, whilst as conceded by your counsel this issue is not straightforward, I accept that you are now remorseful and you have taken some steps towards acknowledging your violent behaviour, and the ramifications for your victim. A further mitigatory allowance is warranted.
43I accept that there has also been a significant delay associated with this matter. The offending occurred in 2019 and 2020. You were arrested and interviewed by police on 25 September 2020. At your plea hearing I was informed by the prosecution that charges initially brought against you were withdrawn in December 2020 due to the emotional state of Ms Davis, and the charges against you were withdrawn by the prosecution at a committal mention on 18 December 2020. The charges were later revived in December 2021, with a filing hearing on 21 January 2022, a committal hearing in November 2022 and a trial listing before me on 5 March 2024. On any view this must be seen as a protracted prosecution in the midst of the delays and challenges associated with the Covid-19 pandemic, with 'shifting sands' in terms of the status of the prosecution against you. None of the delays up to 5 March 2024 are attributable to you and I accept that having these serious charges hanging over your head in these circumstances would have caused you considerable stress and anxiety. There have been multiple adjournments since your matter resolved over 12 months ago, most of which have been made on your behalf. I accept, however, that in the intervening period between the commission of the offending and the date of sentencing you have tried your best, both in the community and since being remanded in custody, to rehabilitate. You have not re-offended. You have embarked upon a positive and serious intimate relationship. You have maintained the love and support of family and friends. Even in custody you have done your best to be productive. In those circumstances, I am satisfied that a mitigatory allowance is warranted pursuant to both limbs of the delay principles.[8]
[8]R v Merrett (2007)14 VR 392 at paragraphs [33]-[49]
44Charge 3 on the indictment, rape, is a 'standard sentence' offence. The standard sentence for rape is 10 years' imprisonment.[9] Pursuant to s5A(1)(b) of the Sentencing Act 1991, 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 of the range of seriousness. Pursuant to s5(2)(ab) of the Sentencing Act 1991, in sentencing you I must have regard to the standard sentence for the offence of rape, as well as the other matters contained in s5(2) of that Act, which includes the maximum penalty, the nature and gravity of your offending, your level of culpability for the offending, the impact of your offending on your victim, your plea of guilty and when it was entered, your previous character and the presence of any aggravating or mitigating factors. The standard sentence is a legislative guidepost only and does not affect the established instinctive synthesis approach to sentencing. The court must avoid engaging in two-stage sentencing. The standard sentence is a factor in the application of the instinctive synthesis in the same way the maximum penalty is - no more, no less.[10] Pursuant to s5B(2b) of the Sentencing Act 1991, I must only have regard to sentences previously imposed for rape as a standard offence when considering current sentencing practices for the offence of rape imposed under the standard sentence scheme. Pursuant to s11A of the Sentencing Act 1991, when sentencing a person to a sentence of imprisonment for a standard sentence offence, I must impose a non-parole period of at least 60 per cent of the overall term if the overall term is less than 20 years, unless it is in the interest of justice not to do so.
[9]Section 38(3) of the Crimes Act 1958
[10]McPherson v The Queen [2021] VSCA 53 at paragraph [31]
45In formulating an appropriate sentence in your case, I have considered current sentencing practices for all charges on the indictment, including previous sentences imposed for the offence of rape as a standard sentence offence, as required by the legislation. A table of comparable cases was provided by the prosecution, noting that a number of them involve sentences for rape which were not standard sentence offences at the relevant time. As is evident from the table of comparable cases, each case is necessarily fact specific with a variety of considerations specific to the case in question. As conceded by the prosecution, cases involving guilty pleas in rape cases are rare.[11] In considering these and other sentencing decisions, I am cognisant of the fact that statements of other courts are not binding precedents but are merely historical statements of what has happened in the past, and current sentencing practices represent just one of the relevant sentencing factors to be considered.[12]
[11]Prosecution Submissions on Plea, dated 28 February 2025 at paragraph [16]
[12]Director of Public Prosecutions (DPP) v Dalgliesh (a pseudonym) (2017) 262 CLR 428 at 83
46I have also had regard to the sentencing snapshot from the Sentencing Advisory Council for the offence of rape from September 2023, dealing with the period between 2017 and 2022. Whilst acknowledging the caveat with regards to the modest utility of sentencing data and the effect of Covid-19 on the sentencing data to which I have referred, I acknowledge in accordance with that snapshot that the average principal sentence of imprisonment for rape as a standard sentence offence was six years and four months. Returning to the issue of sentencing with regards to the crime of rape as a standard sentence offence, in formulating an appropriate sentence in your case with regard to that charge, I have had regard to the standard sentencing scheme and previous sentences for this offence imposed pursuant to that scheme, acknowledging as I must, that each case is fact specific, that these matters represent just one of the many applicable sentencing factors in your case and that ultimately I have an overarching duty to impose a just and appropriate sentence in accordance with orthodox sentencing principles. The individual sentence I will impose on Charge 3 falls below the standard sentence. Having identified and considered the relevant factors in assessing the sentence, including the standard sentence scheme, the objective seriousness of your offending and matters available in mitigation, this is the sentence I have determined to be appropriate.
47Given the nature of your offending, the sentencing purposes of denunciation and general deterrence loom large in the sentencing exercise. Any sentence I impose must also seek to deter you from re-offending in this manner, although your pleas of guilty and articulations of remorse moderate the application of specific deterrence in your case. Any sentence I impose must also seek to protect the community, though I acknowledge that your offending is out of character having regard to your criminal history and personal circumstances, and there is no evidence before me of any ongoing risk. Having regard to the circumstances of your case, I do regard your prospects of rehabilitation as being favourable, considering your limited criminal history, the absence of any re-offending, your pleas of guilty and articulations of remorse, your family and other supports in the community, your compliance with bail over a protracted period of time and your productive conduct whilst in custody.
48Your conduct referable to Charge 3 on the indictment is clearly the most serious offending and will be the base sentence of the sentence I am about to impose. I agree with your counsel that the conduct referable to Charge 2 on the indictment can reasonably be considered as part of the one episode on 19 August 2020, such that a measure of cumulation is not required. The same cannot be said in relation to Charge 1 which represents separate and distinct criminality, 12 months or more before the most serious offending. In relation to Charge 4, whilst the nature of your offending requires the articulation of a discrete penalty, I have determined that a measure of cumulation is not required in relation to that sentence.
49Having regard to all relevant matters, I have concluded that a sentence of imprisonment of some length is required consistent with the parsimony principle having regard to your serious offending. Whilst there will be a measure of cumulation, that has been moderated consistent with the totality principle. The sentence I am about to impose will incorporate a significant parole eligibility component, in compliance with the legislation, to facilitate your reintegration into the community should the authorities deem that appropriate.
50Mr Tofi, I now come to the portion of my remarks where I announce the sentences to be imposed.
Sentence to be imposed
51On Charge 1 on the indictment, causing injury intentionally, you are convicted and sentenced to 15 months’ imprisonment.
52On Charge 2 on the indictment, common law assault, you are convicted and sentenced to eight months’ imprisonment.
53On Charge 3 on the indictment, a rolled-up charge of rape, you are convicted and sentenced to six years and six months’ imprisonment. This is the base sentence.
54One Charge 4 on the indictment, persistent contravention of a family violence intervention order, you are convicted and sentenced to eight months’ imprisonment.
55I order that four months of the sentence imposed on Charge 1 be served cumulatively upon the base sentence imposed on Charge 3, making a total effective sentence of six years and 10 months’ imprisonment.
56I order that you to serve a period of four years and six months before becoming eligible for parole.
57Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 401 days has been served by way of pre-sentence detention and I order that this period be administratively deducted from your sentence.
58Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty at trial, I would have imposed a total effective sentence of nine years’ imprisonment with a non-parole period of six years and six months.
59There are no ancillary orders in this case.
60MR TAGHAR: No, Your Honour.
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