Director of Public Prosecutions v Walsh (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Sexual Offences List

DIRECTOR OF PUBLIC PROSECUTIONS

JOHNATHAN WALSH (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE DEMPSEY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2022, 28 February & 6 March 2023
DATE OF SENTENCE:	6 March 2023
CASE MAY BE CITED AS:	DPP v Walsh (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 490

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sexual assault – rape – offending occurring within intimate relationship – images and footage of offending retained by offender – serious victim impact – standard sentences and setting of non-parole period – rolled up counts – serious sexual offender – plea of guilty – no prior criminal history – prospects for reform.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:The Queen v Frank (a pseudonym) [2021] VSCA 163; R v Verdins (2007) 16 VR 269; Clarke v The Queen [2022] VSCA 89; Jurj v The Queen [2016] VSCA 57; DPP v Dat [2020] VCC 344; DPP v Elwood and Perry [2019] VCC 128; DPP v Sapkota [2022] VCC 1466; DPP v Kala [2021] VCC 151; DPP v Abdi [2020] VCC 1668; Phillips v The Queen [2012] VSCA 140; Cameron v The Queen (2002) 209 CLR 339; Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175; Markovic v R (2010) 30 VR 589; R v Merrett, Piggot and Ferrari (2007) 14 VR 392; Brown v The Queen (2019) 59 VR 462; R v Beary (2004) 11 VR 151; DPP v Pan [2022] VSCA 98; Power v The Queen (1974) 131 CLR 623; DPP v Spottiswood [2021] VSCA 146; R v LD [2009] VSCA 311; Hogan v Hinch (2011) 243 CLR 506.
Sentence: 8 years and 4 months imprisonment with non-parole period of 5 years. Section 6AAA declaration: 10 years and 9 months with non-parole period of 8 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Dickens	Office of Public Prosecutions
For the Accused	Mr M. Allen	Galbally & O'Bryan

HIS HONOUR:

INTRODUCTION
1The offender in this matter is Johnathan Walsh.[1] He is now 34 years of age. He has no prior criminal history of any kind, nor has he offended since.
[1]A pseudonym.
2He has pleaded guilty to three charges of sexual assault (each of which carry a maximum penalty of 10 years) and two charges of rape (each carrying a maximum penalty of 25 years). The offending encompasses three incidents that occurred during his intimate relationship with the victim — his then partner — in September and October 2020. He was then aged approximately 32 and employed as a painter.
3He and his victim were in a relationship for approximately two and a half years. In January 2020 the victim moved into the house of the accused, where they separated in May 2021, she moved out.
4As a result of the victim suspecting that Mr Walsh was having an affair, she logged into an email account of his and found emails sent between the accused’s personal and business Hotmail accounts.
5In these emails she found nine emails sent by the accused to himself, that had attached videos which were recordings of Mr Walsh sexually offending against her whilst asleep on a date that she could not ascertain. She was able to identify herself from her visible tattoos.
6It is acknowledged by his Counsel that the offending in this case is objectively serious. Rape is an inherently serious offence.[2] It is acknowledged that, in this case, the offending has had, and will continue to have, a profound and devastating effect on the victim. In the circumstances, it was accepted that the Court will have no option but to sentence Mr Walsh to a term of imprisonment, with the imposition of a head sentence and non-parole period.
[2]The Queen v Frank (a pseudonym) [2021] VSCA 163, [73] (Emerton JA) (‘Frank’).
7That term will be significant (both the head sentence and the non-parole period) and is to be shaped by various complex mandatory statutory considerations, but also moderated in accordance with important matters that mitigate the severity of the sentence to be imposed.
8Before I articulate my reasons, I think it important to note the considerable assistance I received from Counsel appearing in this case. This was a complex sentencing exercise. The assistance that I received was of the highest quality.

OFFENDING[3]
[3]From Exhibit A: Summary of Prosecution Opening for Plea dated 18 November 2022, with Annexure B to these reasons identifying the constituent parts of the rolled up charges in chart form.
Incident 1 (19 September 2020)
Charge 1 – Sexual Assault – rolled up charge, encompassing 12 occasions
Charge 2 – Rape – rolled up charge, encompassing 5 occasions
9The video recordings of this incident go for approximately:
(a)   11 minutes and 45 seconds,
(b)   3 minutes and 51 seconds,
(c)   2 minutes and 21 seconds,
(d)   4 minutes and 50 seconds,
(e)   10 minutes and 44 seconds,
(f)    4 minutes and 12 seconds, and
(g)   3 minutes.[4]
[4]Depositions, exhibits 1, 4 & 5.
10In the early hours of 19 of September 2020, the victim was asleep in her bed. She was partially dressed, lying on left side of the bed with the sheets partially covering her legs from the knees down.
11At approximately 3.35 am, Mr Walsh filmed the victim, still asleep, whilst he touched her with his left hand on the buttocks, vagina and lower back. He filmed himself masturbating. He also pulled the victim's black leggings down to just above her knees and touched her over the left buttock putting his hands under her underwear. (Charge 1 – Sexual Assault – Rolled Up Occasion 1/12)
12Mr Walsh then placed the phone down near the victim’s feet and filmed himself touching the victim’s buttocks with both hands. He pulled the victim’s underwear aside exposing her vagina and touched her on the vagina with his right hand. (Charge 1 – Sexual Assault – Second occasion of Rolled Up Occasion 2/12)
13The accused then applied lubrication to his hands and pulled the victim’s underwear aside with his left hand and digitally penetrated her vagina with the fingers of his right hand and replaced her underwear back over her vagina. (Charge 2 – Rape – First part of Rolled Up Occasion 1/5)
14Mr Walsh then pulled the victim’s underwear aside and licked her on the vagina, rubbed his left hand over her buttocks, inner thighs and rubbed his hand under her underwear. (Charge 1 – Sexual Assault – Rolled Up Occasion 3/12)
15After this he pulled the complainant’s underwear aside and digitally penetrated her vagina with the middle finger of his left hand. (Charge 2 – Rape – Rolled Up Occasion 2/5)
16He then rubbed his hand over the victim's buttocks and vagina over her underwear, licked her on the vagina over her underwear and then placed the phone at the foot of the bed to record himself and the victim. He rubbed the victim’s buttocks with both hands and pulled her underwear up between her buttocks, pulled her underwear aside and touched her exposed vagina. He then licked her on the vagina and buttocks. (Charge 1 – Sexual Assault – Rolled Up Occasion 4/12)
17Mr Walsh then stood next to the victim and rubbed his erect penis against her buttocks whilst also rubbing them with his hand. He inserted his penis in between the complainant’s underwear and body and moved his penis up and down against her buttocks and vagina. (Charge 1 – Sexual Assault – Rolled Up Occasion 5/12)
18The accused then pulled the victim’s underwear to the side with his left hand and digitally penetrated her with the index finger of his left hand. (Charge 2 – Rape – Rolled Up Occasion 3/5).
19He continued rubbing his hands over her vagina on top of her underwear and rubbed his penis against her buttocks. At approximately 3.50 am he pulled the victim's underwear aside and touched her in the vagina with his left hand and licked her on the vagina. He then replaced her underwear and filmed himself masturbate over her.
20Then, he inserted his penis between her thighs on top of her vagina and underwear. He again touched her on the buttocks and at 3.57 am placed the phone at the foot of the bed to record her. (Charge 1 – Sexual Assault – Rolled Up Occasion 6/12)
21Mr Walsh then rubbed his hands and penis against the victim's buttocks and at approximately 4.01 am touched her over her underwear on her vagina. He then pulled her underwear aside and touched her on the vagina. (Charge 1 – Sexual Assault – Rolled Up Occasion 7/12)
22Next, he placed the phone at the end of the bed again and filmed himself touching the victim on the vagina. He pulled her underwear aside and licked her on the buttocks and vagina. (Charge 1 – Sexual Assault – Rolled Up Occasion 8/12)
23He stood up and rubbed his penis against her buttocks and vagina over her underwear and at 4.08 am he again placed the phone at the end of the bed to record the victim up her body. (Charge 1 – Sexual Assault – Rolled Up Occasion 9/12)
24He continued to touch the victim on her buttocks with his hands and penis and lick her buttocks. At approximately 4.23 am he again pulls her underwear down around her knees. (Charge 1 – Sexual Assault – Rolled Up Occasion 10/12)
25He then rubbed his penis between the victim's buttocks and thighs before touching and licking her vagina. (Charge 1 – Sexual Assault – Rolled Up Occasion 11/12)
26At 4.36 am he again rubs his penis against her vagina. (Charge 1 – Sexual Assault – Rolled Up Occasion 12/12)
27He then digitally penetrates her with his fingers. (Charge 2 – Rape – Rolled Up Occasion 4/5)
28The accused then penetrated the victim with his penis. He placed the phone down and moved the victim so that she was laying outstretched on her stomach. (Charge 2 – Rape – Rolled Up Occasion 5/5)
29At this point the victim woke up and then had consensual sex with the offender.
Incident 2 (19 - 20 September 2020)
Charge 3 – Sexual Assault – rolled up charge, 2 occasions
30The second incident also occurs on 19 September 2020, although later that same night, as well as in the minutes past midnight the following day, being 20 September 2020.
31The video recordings of this incident go for approximately:
(a)   56 seconds, and
(b)   1 minute and 11 seconds.[5]
[5]Depositions, exhibits 2, 4 & 5.
32The victim was asleep again in her bed, partially dressed in her underwear laying on top of the bedsheets on her right side, facing away from the accused.
33At approximately 10.52 pm the offender filmed himself stroking the victim’s buttocks with this hand, and then put his hand between her thighs and rubbed her vagina over her underwear. (Charge 3 – Sexual Assault – Rolled Up Occasion 1/2)
34At approximately 12.04 am the offender touched the victim again on the waist, buttocks and vagina over her underwear whilst masturbating. (Charge 3 – Sexual Assault – Rolled Up Occasion 2/2)
Incident 3 (17 October 2020)
Charge 4 – Sexual Assault – rolled up charge, 7 occasions
Charge 5 – Rape – rolled up charge, 2 occasions
35Nearly a month after the events I have just described, similar offending occurred. The video recordings of this offending goes for approximately:
(a)   19 seconds,
(b)   4 minutes and 36 seconds,
(c)   1 minute and 23 seconds, and finally
(d)   2 minutes and 14 seconds.[6]
[6]Depositions, exhibits 3, 4 & 5.
36On the evening of 17 October 2022, the victim was asleep in her bed. She was wearing underwear and covered by the bedsheets from the waist up.
37At approximately 12.07 am the accused filmed the victim’s buttocks whilst stroking her waist and touching her vagina over her underwear with his left hand. (Charge 4 – Sexual Assault – Rolled Up Occasion 1/7)
38He then pulled her underwear up between the cheeks of her buttocks and stroked her buttocks and lower back whilst he masturbated. (Charge 4 – Sexual Assault – Rolled Up Occasion 2/7)
39He then licked and kissed the victim on the left buttock cheek whilst stroking her buttocks with his hand. He placed the phone down for about a minute whilst he removed the victim’s underwear. He then masturbated into the victim’s underwear. (Charge 4 – Sexual Assault - Rolled Up Occasion 3/7)
40At approximately 12.17 am he again touched the victim on the buttocks and vagina with his left hand. (Charge 4 – Sexual Assault – Rolled Up Occasion 4/7)
41He then digitally penetrated the victim’s vagina with the middle finger of his left hand. (Charge 5 – Rape – First of two Rolled Up Occasion 1/2)
42He further touched the victim on the buttocks, rubbed and licked her vagina. (Charge 4 – Sexual Assault – Rolled Up Occasions 5,6 and 7/7)
43Finally, he then further digitally penetrated the complainant's vagina with his index and middle fingers of his left hand. (Charge 5 – Rape – Rolled Up Occasion 2/2)

POST OFFENDING
Investigation
44On 17 August 2021, the victim attended the local police station in company with a friend to report what she had found in the emails.
45On 2 September 2021, police executed a search warrant at the offender’s home and his mobile phone was seized.
Arrest and interview
46The accused was arrested during the execution of the search warrant and interviewed in relation to incident 1, above. He stated then to police that the events on that date were consensual and there were no other videos on his phone. In general terms at that time, he was not particularly perturbed that what he had done, as portrayed on the videos that he took, was wrong. He certainly did not admit to any sexual activity taking place without consent.
47His mobile phone was subsequently analysed and videos relating to incident 1 were obtained. Further videos though relating to incidents 2 and 3 were also discovered.
48Consequently, the accused self-presented at the local police station for a further interview on 24 November 2021 providing largely no comment answers to the allegations put to him.
Case history
49This matter proceeded through the criminal justice system reasonably efficiently, with a number of necessary appearances in the Magistrates’ Court held before the matter resolved in the form it has been agreed on before me. A full chronology of proceedings will be attached to these reasons as Annexure 1.[7]
[7]Annexure 1.
50I will have more to say about the fact and manner of resolution later.
Victim Impact
51A powerful and articulate victim impact statement was signed on 10 November 2022 and read in Court.[8]
[8]Exhibit B: Victim Impact Statement dated 10 November 2022.
52More than two years after the offending, the sense of betrayal, hurt and disgust the offender has engendered in his victim by his acts, still persists. She feels violated, angry and frustrated that she was treated this way. She feels the shame of being treated this way, even though she knows, and must know, that what occurred was not her fault.
53The aftereffects of the offending have permeated all aspects of her life. Her sleep and sense of security and safety has been eroded (she has installed a security system for instance), as has her confidence and motivation. She suffers from anxiety now, for which she is medicated and counselled. She sleeps poorly. She worries how she is to move on and trust others in an intimate relationship.
54The offending has robbed her of the joy she once experienced in life and the social interactions it offered. She rarely socialises now and is concerned that she needs to rebuild her confidence in order to do so. In a rather selfless way, she worries that those close to her have suffered by being exposed to her suffering. She yearns for a simpler life before any of this happened to her.
55The offending has had a seismic effect on her life. The damage done to her cannot be overstated. As I said it persists even now. It is hard to conceive that the aftershocks of the rapes and sexual assaults will dissipate anytime soon.
56This profound impact on the victim will be reflected in the sentence that I impose.
57How it is that Mr Walsh came to violate his partner in this way is explained (but far from excused) by a closer examination of his life and his relationship with her leading up to late 2020.
58I will deal with the entirety of the matters personal to him now, before I make observations and findings about the offending itself.

MATTERS PERSONAL TO THE ACCUSED
59Mr Walsh is now 34, having been born in October 1988. At the time of the offending, in September and October 2020, he was aged between 31 and 32.
Family background
60He was raised in a law-abiding, stable, and nurturing family which included both parents and an older brother. His father served our community for 40 years in law enforcement. His mother, also now retired, was employed as a manager in the medical field. He maintains strong and close relationships with his family.
Education and training
61He attended a local primary school and completed Years 7 to 9 at College. He then attended a different College before leaving school to pursue a trade after completing Year 10. His progress through school was stable, with no notable academic, behavioural or social problems. He enjoyed a supportive friendship circle.
62After leaving school, over the next four years, he completed an apprenticeship in carpentry.
Employment
63Since completing the apprenticeship, he has been more or less in constant work. Apart from a brief period of employment in a motorcycle shop, he has otherwise pursued his career in carpentry, conducting his own business as a sole trader and contractor.
Relationships and children
64Mr Walsh has had three significant relationships.
65First, between 2009 and 2017, he was in a relationship with a woman I will simply refer to as C. They have two daughters, now aged 8, and aged 11. His relationship with C was positive, however, the relationship ended when they grew apart in the context of financial, parenting, and work-related stress. Their separation was amicable, and they remain on friendly terms. They have not required any Court mandated assistance in resolving their financial or contact arrangements. He remains an involved and devoted father.
66Second, between mid-2019 and May 2021, he was in a relationship with the victim of this matter. There are no children to that relationship. While they did become engaged to marry, Mr Walsh eventually experienced second thoughts and made a decision to end that relationship. The separation was difficult, especially in circumstances where he quickly thereafter commenced his next relationship.
67Third, since May 2021, Mr Walsh has been in a relationship with E. They commenced living together in mid-2022. E has three children, from her past relationship, who reside with them and with whom Mr Walsh plays a caring role. E is fully aware of the charges, and she maintains her strong and loving support of Mr Walsh.
Mental health
68Mr Walsh has no significant history of mental health difficulties.[9] He has experienced periods of distress in his life, including at the end of his relationship with C and, separately, in the context of this case.[10]
[9]I note no reliance was placed on the principles espoused in R v Verdins (2007) 16 VR 269 (‘Verdins’).
[10]Exhibit 3: Report of Patrick Newton dated 31 October 2022, [22].

69In a typically helpful and frank report, Mr Patrick Newton said at present, Mr Walsh is experiencing ‘significant’[11] and ‘noteworthy’[12] anxiety, with symptoms ‘somewhat in excess of those normally evidenced in individuals in such situations’.[13] His symptoms are ‘sufficiently intense to meet the DSM-5 criteria for an adjustment disorder with anxiety’.[14]
[11]Ibid [54](1).
[12]Ibid [38].
[13]Ibid [40].
[14]Ibid [41].
70That anxiety is ‘primarily reactive in nature’,[15] with the ‘cause’ lying in his ‘legal problems and his worries about the consequences that might follow’, especially concerning how his family will cope in his absence.[16]
[15]Ibid [41].
[16]Ibid [39].
71His current mental state is described as follows:[17]
[Mr Walsh] goes to some lengths to maintain an outward appearance of equanimity. This may lead to an underestimate of his true level of distress. My evaluation suggests that he is experiencing significant reactive anxiety in response to his ongoing legal problems and the consequences which he believes will follow them. He is particularly concerned about the effects upon his children and partner but also concerned about the rigours of custody and the separation from his loved ones (including his mother).
[Mr Walsh] experiences noteworthy sleep disturbance which has resulted in prominent fatigue and emotional depletion. He is prone to be irritable and has become withdrawn socially. The resulting social isolation decreases his anxiety in the short term but in the longer term has made him vulnerable to other problems. He is prone to rumination and has experienced some mental clouding.
Cognitive functioning
[17]Ibid [54](1)–(2).
72The observation of Mr Newton is that the accused is ‘an unsophisticated man who approaches the world in a concrete fashion’[18] appears both apt and instructive. Mr Walsh also experiences ‘some difficulty in interpreting the subtleties and nuances of interpersonal communication’.[19] His overall intellectual functioning is considered to fall within ‘the low-average range’.[20]
[18]Ibid [42].
[19]Ibid.
[20]Ibid [43].
Drug and alcohol history
73The accused had a history of occasional marijuana use dating back to his teenage years. His use of that drug, however, had never became habitual or interfered with work or relationships.[21]
[21]Ibid [24]
74He also has a history of occasional cocaine use since his early twenties. In the context of his relationship with the victim, and in the lead up to the offending during the COVID-19 lockdowns, his cocaine use escalated.[22] Since the relationship with the victim ended in May 2021, save for one isolated occasion, he has abstained from cocaine use.[23]
[22]Ibid.
[23]Ibid [27].
75He also has a history of regular drinking to moderate to heavy levels. During the COVID-19 lockdowns and in the context of his relationship with the victim, he engaged in particularly heavy drinking. Heavy drinking in fact, and drug use became a prominent feature of their relationship.[24]
[24]Ibid [30].
76Troublingly, unhealthy levels of drinking continued to be an issue even following the offending and after being charged in the matter. With the assistance of his current partner, he had recently reduced his drinking levels.[25] Mr Newton notes there still remains a need for him to reduce his alcohol intake further.[26]
[25]Ibid [31].
[26]Ibid.
Current circumstances
77Mr Walsh, until I remanded him last week, resided with his partner and her children. He was engaged in full-time carpentry and construction work. He also has his own daughters in his care, in the home with E, every second week.
78He maintains a close and supportive relationship with his brother and parents. I note that his mother recently had a tumour removed, an oncologist is consulting on that matter and her prognosis remains guarded.[27]
[27]Exhibit 4: Report of Dr John Mackay dated 10 November 2022.
79The level of support he enjoys in the community was manifest at both the initial plea hearing and the further plea hearing. He has confessed both his moral and personal failings as well as his criminal conduct to those closest to him. They still support him. A large number of supporters attended Court. Not only did people attend in support of him, but many wrote references in the most glowing terms on his behalf.[28] It is fair to say he is held in the highest regard by those who know him. It is very hard for me to reconcile the loving, caring, industrious, family-focused man they describe with the individual who performed these criminal acts on his partner.
[28]Exhibit 5: Bundle of Character References.
80Since I adjourned this matter in November 2022, he has made progress in his ongoing rehabilitation. By December 2022, he commenced engagement in the one-on-one Sex-Offender Treatment Program with Mr Burrows of Central Melbourne Psychology (SOTP)[29] which is a specialised treatment program, designed to ‘address the factors which contributed to [this man’s] offending behaviour and to develop a solid relapse prevention plan to reduce the risk of recidivism.’ He has thus far engaged in three (3) 60-minute sessions so far, with a desire to continue that treatment.
[29]Exhibit 7: Brief Report of Geoffrey Burrows dated 3 February 2023.
81That program is tailored to Mr Walsh’s individual circumstances and rehabilitation needs, in that it is ‘guided by the treatment recommendations of Mr Newton’s report dated 31 October 2022’ (including, I note, the reduction of his use of alcohol).
82It is intended that this treatment will continue, uninterrupted, even after the accused is sentenced, because Mr Burrows has confirmed that he is ‘able to continue providing this treatment using video conferencing facilities if [Mr Walsh] is in prison’.
83I have been informed that Mr Burrows has previously been able to provide sex-offender treatment to prisoners by video conference without issue, including to prisoners who are serving a sentence. While the program covers similar content to the prison-based program, it is neither a substitute for nor to be considered to be equivalent to the prison-based program and relevant prisoners treated by Mr Burrows are usually required to separately complete the prison-run program. In other words, the treatment provided by Mr Burrows is separate and in addition to the prison-run sex offender’s program.
84Mr Walsh’s involvement in this treatment, though embryonic, is encouraging. It reinforces and further substantiates his positive prospects of rehabilitation, which I have found to be very good.
Circumstances pertinent to the offending
85It is of course the unsophisticated man, abusing drugs and alcohol I have just described above, that offended in this aberrant and depraved way in late 2020. His state of heavy intoxication surrounding the offending certainly does not excuse the offending, but it does go some way to explain how he descended into such criminality, as one can see in the reference to the matters I am about to outline.
86The timing of the offending is noteworthy. Victoria was in a state of almost perpetual lockdown during this time, the accused was suddenly (and atypically), unemployed.
87Not only was there a degree of financial stress, but Mr Walsh was experiencing ‘a time of stress and instability in his intimate relationship’.[30] This, in turn, ‘led him to resort to substance use in an attempt to manage his challenges’.[31] In the lead up to and at the time of the offending, Mr Walsh’s consumption of alcohol and cocaine escalated to high levels.
[30]Exhibit 3: Report of Patrick Newton dated 31 October 2022, [51].
[31]Ibid.
88The offending occurred in the immediate context of the accused and the victim staying in at night, consuming high levels of cocaine and alcohol, with Mr Walsh estimating he would have consumed up to 12 stubbies of beer together with other alcohol and cocaine during [these] drinking sessions.
89Mr Newton succinctly puts it this way:
The most significant factor affecting his mental clarity, judgment and decision making at the time of the offending was his substance use.[32]
[32]Ibid [54]. He notes that his alcohol and substance use at the time were worthy of the label ‘disorder’, but only the cocaine use disorder was in remission.
90Given there are no psychological markers of sexual deviance, both alcohol and cocaine use played a strong role in the offending and ‘would be expected to reduce his level of inhibition, increase his sexual drive and impair his capacity for clear thinking’.[33]
[33]Ibid.
91It appears that despite always knowing that behaviour of the type he engaged in was wrong, notions of consent were blurred or blunted through his intoxication with cocaine and alcohol.[34]
[34]It was put on the plea on 22 November 2022 (Transcript p. 48) that his understanding of consent was ‘imperfect’.
92I deal with more general sentencing considerations regarding the offence of rape and sexual assault, as well as the assessment I make of the gravity of the instant offending later in these reasons. It is sufficient for now for me to indicate that this is the context in which the present offending occurs.

MATTERS OF SENTENCING PRINCIPLE
Rape and sexual assault – gravity of the offending
93It is worth underscoring that the offending in this case is objectively serious. Rape itself is an inherently serious offence.[35] The maximum penalty Parliament prescribes for the offence of 25 years is evidence of that alone. Sexual assault carries a maximum penalty of 10 years.
[35]Frank at [73] (Emerton JA).
94The offence of rape covers a very wide spectrum of different activities, committed in wildly different circumstances with varying degrees of seriousness.[36] Determining where any case sits on that wide spectrum is ‘difficult’.[37] The same can be said of the seriousness of any sexual assault.
[36]The same came be said of offences of sexual assault.
[37]Clarke v The Queen [2022] VSCA 89, [28] (‘Clarke’).
95The violation involved in such offending is physical, emotional, and psychological. In this case, the offending had and will continue to have, a profound and devastating impact on the victim.
96In support of the contention that these matters were not near the high or top end of the spectrum of offending, Mr Allen addressed me in the following way.
97It was sensibly conceded by him that the offending in this case is abhorrent, including in that it involved the following serious features:
(a)   A breach of trust, given that the victim was his partner with whom he resided, and the offending occurred in their bed and in their home;
(b)   The sexual objectification of the victim’s body;
(c)   The victim was vulnerable due to her level of intoxication and being asleep; and
(d)   The offending was filmed on his mobile phone.[38]
[38]Which was quite rightly conceded to be a feature of aggravation on 22 November 2022 (Transcript p. 34).
98Mr Allen submitted the following matters though are also pertinent:
(a)   The offending did not involve weapons;[39]
(b)   The offending did not involve the use of violence (beyond that which is inherent in the penetrations);[40]
(c)   The offending did not involve threats or infliction of injury;[41]
(d)   The accused did not ignore protests or distress on the part of the victim (although this is unsurprising, given she remained asleep);[42] and
(e)   The offending was not committed together with,[43] or in the presence of,[44] other persons.[45]
[39]Frank at [58](j); Jurj v The Queen [2016] VSCA 57, [80] (‘Jurj’).
[40]Ibid.
[41]Ibid. Compare with DPP v Dat [2020] VCC 344 (‘Dat’).
[42]Frank at [42], [58](l); Jurj at [80].
[43]Compare with Frank, [41], [43], [51](d).
[44]Compare with Dat, [13], [28] (where offender committed violent rape against his wife in the presence of his children).
[45]See Jurj at [80]. Also, compare with Frank [41], [43], [51](d).
99The five (5) matters that I have mentioned are obviously true. Mr Walsh obviously did not have to resort to threats though as there was simply no need for him to resort to coercion in order to facilitate the sexual activity, given the victim was asleep and thus vulnerable, trusting and simply unable to consent.
100Further, whilst it is acknowledged that each of the five charges on the indictment is a rolled-up count (and that the sentence for each charge must take into account the total offending involved), the following particulars also need to be noted:
(a)   The offending occurred in not more than three episodes (with the first and second episodes taking place within less than 24 hours of each other);
(b)   In respect of episode one, during the early morning of 19 September 2020, the total offending (Charge 1 – Rape and Charge 2 – Sexual Assault) was approximately 40 minutes in duration;[46]
(c)   In respect of episode two, the total offending, that is (Charge 3 – Sexual Assault) was approximately two minutes in duration (there is no rape charge in relation to this episode);[47] and
(d)   In respect of episode three, the total offending (Charge 4 – Sexual Assault and Charge 5 – Rape) was approximately 8 ½ minutes in duration.[48]
[46]Exhibit A: Summary of Prosecution Opening for Plea dated 18 November 2022, [7].
[47]Ibid [27].
[48]Ibid [31].
101Mr Newton opined that ‘notwithstanding the concerning elements to this offending, it was relatively short-lived, was not diverse and did not escalate in its severity’.[49]
[49]Exhibit 3: Report of Patrick Newton dated 31 October 2022, [52].
102I cannot necessarily agree with the entirety of that description. The first episode was certainly protracted at 40 minutes. The total duration of the third incident is shorter, but I would not necessarily agree that eight minutes of sexual offending itself is brief.
103The third incident takes place nearly a full month after the first two. As Ms Dickens observed, there was an opportunity for Mr Walsh to reflect on his behaviour when not substance affected, but his offending conduct did not cease.[50] Her submission was that this fact really increases the seriousness of the third incident. It is hard to argue with the proposition that the seriousness of the accused’s conduct is not only informed by the violation of his partner, but also the repeated nature of it.
[50]Transcript of Plea on 22 November 2022, p. 69.
104The offending in relation to incidents 1 and 3 had a familiar pattern to it, usually commencing with sexual assault in the form of touching, followed by digital or penile penetration.[51]
[51]It is worth noting here that there is obviously no hierarchy of seriousness for penetrative offences, save for the fact at times penile penetration can involve the risk of unwanted pregnancy or the transfer of a sexually transmitted disease, neither of which appears to be the case here.
105Although in those episodes, the sexual assaults usually preceded the penetration, and are not of the same gravity, my view is that each of the sexual assault charges (rolled up as they are) adds to the overall objectification and violation of the victim in a way that ought to be properly reflected in a degree of cumulation between the charges, subject both to the serious offender provisions and totality, which I will deal with below. The parties did not seek to dissuade me of approaching my task this way.
106Whilst the offending was captured on film and the videos were emailed by him to himself, there is no evidence or allegation that he disseminated, shared, or transmitted the videos with any other person at any time, or that he ever intended to do so.
107I must say I am still troubled by this facet of the offending. Once he offended the way he did, recording his activities, he was not sufficiently shocked or disgusted with himself to delete the footage, but rather emailed them to himself for a purpose that was never explained by him or his Counsel.[52] I infer it was done so as to hide them off his phone but still retain them. Even though the offending itself was relatively spontaneous and in no small part due to the result of drug induced disinhibition, this aspect of his behaviour is much more purposive.
[52]Transcript of Plea on 22 November 2022, pp. 34, 45.
108Whilst not a separate offence, keeping the footage in the way he did is a further violation of the victim which speaks against simple disinhibition as being the sole motivating factor for this offending and suggests something more complex underlying his conduct — which itself suggests a need for him to further explore why he offended the way that he did, through counselling.
109Overall, it is hard to escape that he violated his then partner while she was at her most vulnerable. It was a gross breach of trust. It was recorded and kept. As aberrant as it is in the course of his life, his behaviour is deplorable and worthy of denunciation.
110I have not engaged in the exercise of ascribing labels such as ‘high, moderate or low’. The vagueness and terminology and the limits of language make that exercise rather futile. Other than agreeing with Mr Walsh’s Counsel that this offending is not near or at the top of the spectrum, it is obviously serious enough and I have treated it accordingly.
Current sentencing practices
111While each case must, of course, be assessed on its own facts and circumstances, other sentencing cases may be of assistance in guiding the Court where such cases bear similar features or where such cases deal with relevant sentencing provisions.
112Mr Allen addressed current sentencing practices, by reference to the recent cases including the following (which I should add, were not said to be the sum total of cases that might be considered to be comparable):
(a)   The Queen v Frank (a pseudonym);[53]
(b)   DPP v Elwood and Perry;[54]
(c)   DPP v Sapkota;[55]
(d)   DPP v Kala;[56]
(e)   Clarke v The Queen;[57]
(f)    DPP v Abdi.[58]
[53][2021] VSCA 163.
[54][2019] VCC 128.
[55][2022] VCC 1466.
[56][2021] VCC 151.
[57][2022] VSCA 89.
[58][2020] VCC 1668.
113The cases were of assistance to me in this sense: they were all sentences that involved sentences for rape as a standard sentence offence, they all involved pleas of guilty (usually during the pandemic) and the majority involved the violation of a victim sleeping, intoxicated or both, who was in no position to consent to sexual activity.
114The offences occurred in a myriad of ways — ranging from the rape of a semi-conscious stranger found on the side of the road by a young offender in company, to an offender using drugs with his partner who later invites his friend to violate her while she was unconscious. Another involved an intellectually disabled offender raping a sleeping friend in her home and another involved similar activity when a married man raped an intoxicated guest staying at his house. In another case, a taxi driver raped a young woman he was tasked with driving home who was too intoxicated to even maintain consciousness.
115The offenders in these cases were of different ages, with different backgrounds who presented with very different risk profiles and enjoyed quite different prospects for reform. One faced the spectre of deportation.

116I note the total effective sentence and non-parole period as follows in those cases:
(a)   The Queen v Frank (a pseudonym)
6 years and 6 months / 3 years and 11 months.
(b)   DPP v Elwood and Perry
Elwood: 7 years and 8 months / 4 years 9 months.[59]
Perry: 5 years 9 months / 3 years 9 months.
(c)   DPP v Sapkota
5 years 6 months / 2 years.
(d)   DPP v Kala
6 years / 4 years.
(e)   Clarke v The Queen
8 years / 5 years which was reduced on appeal to 3 years / 18 months.
(f)    DPP v Abdi [2020] VCC 1668
6 years / 3 years 10 months.
[59]In oral submissions, Mr Allen noted that this was quite comparable in many ways, and that Mr Walsh was much closer to Elwood than Perry in terms of offending.
117In each of the cases I was taken to, the total effective sentences imposed fell short of the standard sentence for rape which is 10 years. This is not entirely unexpected, given the observations made by, as she then was, Emerton JA in Frank at [63] when dealing with the Crown’s provision of other standard sentence rape cases in that (unsuccessful) Crown appeal:
The 12 cases put before the sentencing judge covered a period of approximately 15 months prior to the hearing. Omitting two cases in which a Youth Justice Centre order was made, the terms of imprisonment ranged from five years to 12 years. In cases where rape was the principal offence and the accused had pleaded guilty, the longest sentence was eight years and a sentence of between five and six years (inclusive) was imposed on fully 87.5 per cent of the charges covered by this sub-set. The respondent submits, therefore, a cross-check of the sentence against the conspectus of past cases did not support the Director's submission that the sentences were wholly outside the range open to the sentencing judge in the circumstances.
118I have approached the use of the above cases with caution. They are certainly informative and instructive, but I do not consider they set the outer limits for the exercise of my sentencing discretion, and in fairness to the parties, I was not invited to treat them that way.
Pleas of guilty
119The matter resolved at an early stage in the proceeding, in July 2022, in the Magistrates’ Court, prior to any contested committal taking place or any witnesses being cross-examined. No trial ever took place. Thus, the pleas of guilty have been of substantial utilitarian value, in that they have facilitated the course of justice by expediting the conclusion of these proceedings and by avoiding the need for any witnesses to give evidence at committal or trial.[60]
[60]Phillips v The Queen [2012] VSCA 140; Cameron v The Queen (2002) 209 CLR 339 at [11] and [65]–[66].
120There is a real human saving in cases of this kind, where victims are not required to relive their abuse.
121Further, during the currency of COVID-19, pleas of guilty are worthy of greater weight in mitigation and should attract a more pronounced and perceptible amelioration of sentence than at any other time.[61]
[61]Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175.
122Mr Walsh’s plea of guilty also demonstrates an acceptance of responsibility and remorse, which bodes well for his rehabilitation.
123The plea of guilty in this matter will be given due weight. The discount applied will answer the description ‘pronounced amelioration’.
Remorse and insight
124Beyond the plea of guilty, there is other evidence that Mr Walsh has developed genuine remorse and insight. That conclusion is fortified by the observation made by those who offered refences for him. In particular, as observed by Mr Newton:
(a)   Mr Walsh understands that his belief at the time that he had been acting with consent was unreasonable;[62]
(b)   He is ‘clear that a sleeping person could not give consent’ and understands ‘how his own behaviour with the [victim] had fallen short of the appropriate standards’;[63]
(c)   He understands that ‘it was the wrong thing to do' and that he was 'taking advantage’ of the victim;[64]
(d)   He ‘feel[s] guilty about hurting’ the victim;[65] and
(e)   He explained that ‘recognising these shortcomings in his behaviours had led him to feel ashamed and regretful’.[66]
[62]Exhibit 3: Report of Patrick Newton dated 31 October 2022, [35]. See also Exhibit 2: Report of Patrick Newton dated 16 November 2022, p. 4: ‘[Mr Walsh’s] problems understanding consent were the result of his intoxication with substances’.
[63]Exhibit 3: Report of Patrick Newton dated 31 October 2022, [44].
[64]Ibid [35].
[65]Ibid [36]–[37].
[66]Ibid [44]; see also Ibid [54](10).
125In a most realistic way, Mr Newton does not say that insight has arrived instantaneously and completely after the offending. It would not be surprising if a man (and an anxious man at that) who is quite concrete in the way he approaches the world might struggle with the nuances of interpersonal and emotional matters. Consistent with that observation, Mr Newton notes that Mr Walsh still experiences ‘some difficulty discussing the reasoning, thoughts and feelings that had accompanied his offending’,[67] and there remains room for improvement in relation to his insight and victim empathy.[68]
[67]Ibid [45].
[68]Ibid [55].
126I find that he shows contrition, regret and remorse for his vile behaviour. That finding is not diluted or qualified by the above.
Hardship upon imprisonment
127It was submitted that, upon his inevitable imprisonment, Mr Walsh will experience considerable hardship in the custodial environment. The hardship will arise due to a combination of the following matters:
(a)   His current state of ‘significant reactive anxiety’[69], which will make it more difficult for him to cope with ‘the shock of incarceration and … negotiat[e] the rigours of daily life in gaol’, which will aggravate his difficulty in coming to terms with the ‘brutal, unforgiving’ prison environment.[70] This, it is submitted, carries with it an inherent risk of deterioration of his mental health in the custodial environment where support (both personal and professional) is limited;[71]
(b)   The anguish he will feel at being absent and unable to properly support his two young daughters, his partner (and her children), his family members (especially his parents given his mother's ill-health with cancer);[72]
(c)   The anguish he will feel about being unable to financially provide for his daughters, and continue financially to support his current partner;
(d)   The well-known limitations within the prison environment (including in relation to access to courses, education, work, visits, and other supports) due to the ongoing impact of COVID-19 restrictions.
[69]Ibid [54](1).
[70]Frank at [75].
[71]This now must be viewed in light of later events, namely the ongoing counselling that Mr Burrows can offer in prison.
[72]Exhibit 3: Report of Patrick Newton dated 31 October 2022, [39].
128I accept that there has never been a more difficult time to be a prisoner than now. I am aware that I am committing the accused to a term of imprisonment now, years after his offending and at a time when the prison system is not operating as it once did. That is added to by the anguish he will suffer once he is imprisoned, as I am about to come to.
129The prospect of Mr Walsh’s distress at the absence of his family if imprisoned is a discrete matter that mitigates sentence. This mitigatory factor is distinct from a ‘family hardship’ submission which is not subject of any the ‘exceptional circumstances’ tests, and as the Court of Appeal explained in Markovic v R:
The effect on the offender of the hardship caused to family members by his/her imprisonment is quite a separate matter. An offender's anguish at being unable to care for a family member can properly be taken into account as a mitigating factor — for example, if the court is satisfied this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender's prospects of rehabilitation. They are conventional issues of mitigation, and they are not subject to the 'exceptional circumstances' limitation.[73]
[73]Markovic v R (2010) 30 VR 589, 595 [20] (emphasis added).
130I have taken this matter into account when formulating the appropriate sentence.
Delay
131A delay of some years has passed between the offending and the conclusion of the matter.
132In the intervening period, Mr Walsh has had these proceedings hanging over his head. Importantly, during the period of delay, he has been of good character in that he has not committed any further offending.
133In R v Merrett, Piggot and Ferrari, Maxwell P explained the relevance of delay in criminal sentencing this way:
On a proper analysis … the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable …
The relevance of delay lies rather in the effect which the lapse of time – however caused – has on the accused. Delay constitutes “a powerful mitigatory factor”. In particular, it focuses attention on issues of rehabilitation and fairness.[74]
[74](2007) 14 VR 392, 400.
134Further, Maxwell P made the following pertinent remarks concerning the importance of rehabilitation in sentencing, particularly where an offender has demonstrated efforts at rehabilitation between offending and sentence:
[T]he sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.[75]
[75]Ibid 403.
135This is an opportune time for me to make note that between the offending and the sentence, Mr Walsh has maintained a firm foundation for rehabilitation, including:
(a)   He has (but for one occasion) remained drug free.
(b)   In more recent times, he has reduced his alcohol intake.[76]
(c)   He has developed a strong and stable relationship with E and supports her in the care of her own children. Importantly, E is a responsible and law-abiding woman with no drug history, who is in ongoing employment.
(d)   He maintains stable accommodation with her.
(e)   He maintains cordial relations with his ex-partner, C, the mother of his children. They work together with cooperation and good faith to coordinate the care and support of their young daughters.
(f)    He is focused on and devoted to the care of those daughters, with whom he has frequent and ongoing contact.
(g)   He has been of good behaviour and not fallen foul of the law since the offending.
(h)   He has maintained full time employment. Given his trade and his solid work history, he will have employment available to him upon his eventual release.
(i)    He enjoys a close, supportive relationships with his brother and parents.
(j)    He has pleaded to and taken responsibility for and demonstrated remorse and insight into the offending for which he is to be sentenced.
(k)   He is surrounded by the ongoing support of loving and caring family members, namely his partner, brother, and parents.
[76]His prosects would be obviously better upon cessation.
136Mr Newton observes that ‘factors such as sexual deviance’ and ‘mental disorder … are not present in this case’[77] and assesses that Mr Walsh’s risk is presently ‘low-moderate’.[78] He adds ‘[w]ith completion of offence-specific treatment and assuming his substance use and anxiety can be effectively treated’, Mr Newton expects that ‘[Mr Walsh’s] level of risk to tend toward the “low risk” range over the medium term’.[79] The accused has begun that path, but there is obviously more work for him to do in that regard.
[77]Exhibit 3: Report of Patrick Newton dated 31 October 2022, [52].
[78]Ibid [53].
[79]Ibid.
137In light of the above, Mr Walsh’s ongoing prospects, in my view, are very good.
Standard sentence regime[80]
[80]Dealt with by submissions in writing (Exhibit C: Prosecution Sentencing Submissions dated 31 January 2023 and Exhibit 6: Outline of Further Defence Plea Submissions dated 6 February 2023) and oral argument on 28 February 2022.
General principles
138The standard sentence is a numerical guidepost for Courts when sentencing specified offences. It is a guidepost not unlike the maximum penalty is.
139The 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’.[81]
[81]Sentencing Act 1991 s.5A(3).
140The Court must give reasons for imposing the sentence, any non-parole period fixed under the Act that is shorter than that which is specified in s.11A(4), and state how the sentence imposed relates to the standard sentence.[82] This requires the Court to identify facts, matters and circumstances bearing upon its judgment as to the appropriate sentence.
[82]Ibid s.5B(5).
141The principles bearing upon the application of the standard sentencing regime were authoritatively considered in Brown v The Queen.[83] There, at 464–5 [4], the Court of Appeal summarised the principles as thus:
For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
§is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty does;
§does not affect the established ‘instinctive synthesis’ approach to sentencing;
§does not require or permit ‘two-stage sentencing’; and
§does not otherwise affect the matter which the court may, or must, take into account when sentencing.
[83]Brown v The Queen (2019) 59 VR 462 (‘Brown’).

142Further, at 479, the Court said:
[55]Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability. The obligations imposed by s 5B(2)(a) (to take the standard sentence into account) and by s 5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by s 5(2)(a) to have regard to the maximum sentence. They are all 'legislative guideposts'.
[…]
[57] Just as judges have always had in mind a notion of ‘the worst possible case’, so they must now have in mind a notion of an offence ‘in the middle of the range of seriousness’. At the same time, the utility of such a comparison is lessened in the case of the standard sentence. There are two reasons for this. The first is the narrowness of the definition of ‘objective factors’ which, as McCallum J pointed out in McLaren, is ‘ignorant of’ a range of matters which the judge will need to take into account in assessing the nature and gravity of the subject offending. The second is the inevitable imprecision of the notion of a hypothesised mid-range offence.

143I emphasise the standard sentence is just one of many factors I am to consider in s.5(2) of the Sentencing Act, many of which pull in different directions. It does not represent a starting point for a sentence from which I add or subtract depending on various factors in aggravation or mitigation as the case may be.
144As I said, I am not required to (nor will I) classify the subject offending on a scale of seriousness. My interpretation of the standard sentence regime is that I am to fully identify the facts, matters and circumstances which bear on the judgment I have reached as to an appropriate sentence, and I have endeavoured to do so in these reasons.
Rolled-up counts
145Where a Court is required to apply the principles of standard sentencing to a rolled-up charge, a Court should approach the task in a manner that is conceptually similar as to how it would approach taking into account the maximum penalty for an offence with respect to a rolled-up charge.
146Rolled up charges are different from representative charges because they are a collection of identifiable charges bundled together in a single one. Rolled-up charges also require the offender's agreement and are only for the purposes of a guilty plea. They simplify the sentencing court's task and work to the benefit of the offender by allowing multiple instances of similar offending to be dealt with as a single charge rather than through numerous separate charges. That is obviously the case here, and it confirms the cooperative approach that the accused has taken when he has resolved the matter.
147When sentencing on a rolled-up charge, the court must consider all of the circumstances of the offence and the offender including if the offending was carried out over an extended period, whether victimised multiple persons, and the totality of the harm described in the charge.
148While the Court may consider all the relevant circumstances of a rolled-up charge, the pleading must still be treated as presenting a single formal charge. The maximum penalty is therefore limited to the maximum penalty for the single charge.[84]
[84]R v Beary (2004) 11 VR 151, 157 [14].
149At risk of repetition, the standard sentence should be treated as a guidepost (in respect of objective factors only) and nothing more. That being said, the ‘lessened utility’ of standard sentencing guidepost, as opposed to the maximum penalty guidepost, as explained at [57] of Brown (quoted above) should also be kept in mind.
150I have already noted how the notion of assessing the present offending against a hypothesised offence in the middle of the range of seriousness is affected by the relevant charge being rolled up.
Non-parole period
151Section 11A(4)(c) of the Sentencing Act 1991 provides as follows (emphasis added);
(4)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—

…
(c) 60% of the relevant term if it is a term of less than 20 years.

152During the plea hearing on 21 November 2022, Mr Allen disavowed any submission to the effect that it is in the interests of justice that there be a greater disparity than 60 per cent of the head sentence in fixing a non-parole period.[85]
[85]Transcript of Plea on 22 November 2022, p. 64, line 4–17.
153Since then, circumstances have changed. Most significantly, as set out above, Mr Walsh had taken meaningful steps along the pathway of reform in that he has commenced the Sex Offenders Treatment Programme (SOTP) with Mr Burrows. In addition, that specialized, one-on-one treatment will continue even though now Mr Walsh is incarcerated. It was put that this substantially improves his already positive prospects for rehabilitation.
154In light of the foregoing and combined with other mitigating features already relied on in this matter,[86] it was later submitted that it would be in the interests of justice to fix a non-parole period of less than 60 per cent of the total effective head sentence to be imposed. That phrase is not identified or defined in the Act, nor does it appear to be a threshold of the kind that exceptional circumstances is, for instance. It is submitted that the promotion of rehabilitation (and by rehabilitation, community protection) should be central to the consideration of the ‘interests of justice’ of a non-parole period.

[86]See Exhibit 1: Outline of Defence Plea Submissions dated 18 November 2022, [36]–[52].
155I was taken to DPP v Pan,[87] where the Court of Appeal considered s.11A(4)(c) of the Sentencing Act 1991 in the context of a Crown appeal where the sentencing judge imposed a non-parole period that was 66.7 per cent of the head sentence, not the 70 per cent which the Act contemplates for murder. In that case the judge was moved to impose a lower non parole period not least of all because of the accused’s youth, his plea, and the length of the head sentence.
[87][2022] VSCA 98 (‘Pan’).
156The reference in that case to Power v The Queen[88] is worthy of repetition:
In assessing whether the non-parole period is manifestly inadequate, it is important to recall the purpose of parole as explained by the High Court in Power v The Queen, namely '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.[89]
[88](1974) 131 CLR 623; [1974] HCA 26.
[89]Pan at [54].
157I was also taken to DPP v Spottiswood,[90] which was another example of a case where a sentencing judge imposed a lower non-parole period than that which was provided for under s.11A, as it was ‘in the interests of justice’.
[90][2021] VSCA 146, [41].
158Ms Dickens on behalf of the Director made no specific submission on this point. She certainly did not agitate for a disparity less than 60 per cent between the head sentence and the non-parole period.[91] She conceded, with conspicuous fairness, that it was quite an extraordinary case in some ways (in the sense that the offending was committed, of this kind, by a man of previous good character) and when one looks at his prospects for reform, they are very good. She rightly acknowledged that those prospects are a factor I must consider when setting the non-parole period.
[91]Transcript of Plea on 22 November 2022, p. 73.
159I have had regard to the provisions of s.11A(4)(c) and the above cases. I have had regard to the broader considerations that inform the setting of a non-parole period. I have concluded that a non-parole period of 60 per cent of the head sentence represents a meaningful disparity between the head sentence and minimum term in this case that properly reflects the minimum term that justice demands the accused serve before being eligible for release on licence. This period pays due regard to his prospects for reform (which I repeat I have found to be very good) whilst maintaining appropriate weight to be given to necessary and important countervailing factors when sentencing.
Serious offender sentencing regime
160Once Mr Walsh receives a sentence of imprisonment for the first two charges on the indictment (namely rape and sexual assault), he will fall to be sentenced as a serious offender on each of the remaining charges on the indictment.[92]
[92]Sentencing Act 1991 (Vic) Part 2A and Schedule 1, cl. 1(a)(i) and cl. 1(a)(ii), s. 6B(2), 6C.
161In sentencing a ‘serious offender’ to imprisonment for a ‘sexual offence’, I must regard protection of the community as the principal sentencing purpose.[93]
[93]Ibid s.6D(a).
162This does not mean, however, that other sentencing purposes have been excluded. Other sentencing purposes are still applicable and operative. The legislative intent is that the prison term is long enough to protect the community from the risk posed by the offender, but how long that is depends on the assessed risk of re-offending. If it is considered the risk of offending is low, the protection of the community will weigh less heavily than it would if it was otherwise assessed as high.
163The aim of the requirement that a court regard in protection of the community as the predominant purpose is to ensure that it gives proper consideration to the question and undertake a ‘requisite risk assessment’.[94]
[94]R v LD [2009] VSCA 311 [27] (‘LD’).
164When sentencing a serious offender to imprisonment for more than one offence for relevant offending, the court must order each sentence to be served cumulatively, unless it directs otherwise.[95] This is a prima facie rule, not just a mere rule of interpretation, and there must be good reason (not couched in terms of clearing a threshold of exceptional circumstances or the like) to order concurrency.
[95]Sentencing Act 1991 (Vic) s.6E.
165There is a tension between the requirement of cumulation and the principle of totality, but as the objective gravity of the total offending increases, so will the degree of cumulation, thereby producing a total effective sentence that meets both.
166Mr Allen placed emphasis on the following passage from LD, from paragraphs 25 to 27 inclusive:
[25]The judge is obliged under s 6D(a) to “regard the protection of the community from the offender as the principal purpose for which the sentence is imposed.” The evident legislative intent is to ensure that the prison term will be of a sufficient length to protect the community against the risk which the offender presents. How long that should be depends on the assessed risk of re-offending.
[26]The corollary, of course, is that nothing in s 6D(a) justifies the imposition of a sentence longer than is necessary to protect the community against the risk which the offender actually presents. Thus, if the risk of re-offending is assessed as low - as it was in the present case - the protection of the community will weigh less heavily as a consideration than if the risk had been assessed as high.
[27]Since protection of the community is always a relevant consideration in sentencing, the directive in s 6D(a) will ordinarily have little impact on the determination of the appropriate sentence. Its main purpose, we would think, is to make sure that sentencing judges give proper consideration to the question of community protection, and undertake the requisite risk assessment. Seemingly, the only circumstance in which compliance with the directive might directly affect sentence would be where protection of the community required a longer sentence but where mitigating factors called for a shorter sentence. In that circumstance, it would seem, s 6D(a) contemplates that the dictates of protection should take precedence.

167In this case, the Crown does not submit that in order to achieve community protection a sentence longer than that which is proportionate should be imposed. Further, it is not in dispute that, with ongoing treatment, Mr Walsh will trend towards the low risk of reoffending.[96]
[96]Transcript of Plea on 22 November 2022, pp. 17–18, 21, 72; Exhibit 3: Report of Patrick Newton dated 31 October 2022, [53].
168It was submitted that in all the circumstances of this case, the protection of the community would be best served by facilitating Mr Walsh’s ongoing rehabilitation.[97] This would best be achieved by imposing a low minimum non-parole period, making him eligible for his return to the community under ‘conditional supervision’. I agree that the community is best protected this way, and I will impose what I consider to be an appropriately low non parole period.
[97]Transcript of Plea on 22 November 2022, pp. 65–6.
169I have considered the serious offender provisions carefully and, as I have indicated on the plea, I do not consider total cumulation of terms of imprisonment on episodes (be that when considering episodes of offending 1, 2 or 3) to be appropriate, but nor do I consider ordering total concurrency appropriate either.
170I have ordered cumulation on the sentences imposed between all counts (and that obviously includes Charges 3–5 inclusive) as is necessary and appropriate, and I have done so in way to comply with the principal of totality.
Totality
171I am mindful of the significance in this case of the application of the principle which requires me when sentencing for multiple offences to ensure that the aggregate term I impose is just and appropriate measure of the criminality involved. There must be appropriate relatively between the totality of all the criminality and the totality of the sentence I impose. This is true when I consider the interaction between the charges on the indictment. I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing considerations into account and designated the highest term as the base sentence and then I have determined the extent to which there should be any cumulation regarding each count, and I have finally stood back and considered in light of totality what an appropriate sentence ought to be.
Synthesis of sentencing objectives, considerations
172Given the objective gravity of the offending in this case, it is recognised that denunciation, general deterrence and just punishment are important sentencing considerations.[98]
[98]Frank, at [73] (Emerton JA).
173The mitigating matters set out above, together with the application of the principles of parsimony and totality, operate to considerably moderate the length of the sentence (both the head sentence and the non-parole period) I impose.
174Having regard to Mr Walsh’s promising prospects, the absence of any prior or subsequent offending, and the risk assessment, I can decrease the weight to be given to specific deterrence and be reasonably confident I can fashion a sentence that promotes his prospects for reclamation. As observed by French CJ in Hogan v Hinch,[99] ‘Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest’.[100] In that way due regard is also had to the statutory emphasis on community protection.
[99](2011) 243 CLR 506.
[100]Ibid [32].
175As Mr Allen submitted, prison life may well be counter-productive to rehabilitation. Bearing in mind that fact, the purpose of rehabilitation here is most effectively addressed by the imposition of an appropriately low non-parole period, which would allow the accused the opportunity to be returned to the community as soon as justice permits him and in the manner that would best foster his reform.

SENTENCE
176The sentence I impose is as follows.
177Charge 1, Sexual Assault, 19 September 2020, 12 occasions, maximum penalty 10 years, the sentence I impose is 14 months.
178Charge 2, Rape, five occasions, maximum penalty 25 years, the sentence I impose is six years and six months. That will be the base sentence.
179With respect to incident two, Charge 3, Sexual Assault, two occasions, the offender will now be sentenced as a Serious Offender, maximum penalty 10 years, the sentence I impose is seven months.
180Incident 3, Sexual Assault on 17 October 2020, rolled-up charge of seven occasions, maximum penalty 10 years, the sentence I impose is 12 months.
181Charge 5, Rape, 17 October 2020, rolled-up charge of two occasions, again sentenced as a Serious Offender, maximum penalty 25 years, the sentence I impose is five years and four months.
182I designate the sentence imposed on Charge 2, being six years and six months, as the base sentence.
183I make the following orders as to cumulation on the base and on each other. I cumulate three months on Charge 1, three months on Charge 3, four months on Charge 4, 12 months on Charge 5. That brings about a total effective sentence of eight years and four months.
184I declare that the accused serve five years before being eligible for parole, that is a disparity of 60 per cent.
185I am obliged to give a direction under s.6AAA of the Sentencing Act and I make this comment about that direction. Had the accused in this matter run a contested trial, he would be notionally facing a 28-count indictment alleging amongst other things, seven rapes. Upon conviction by a jury after that trial, he would face a very substantial sentence of imprisonment, for reasons that are self-evident. Approaching this task as best I can, I can indicate that but for the plea of guilty, I would have imposed a sentence of 10 years and nine months with a non-parole period of eight years and three months.
186Pursuant to s.18 of the Sentencing Act I declare six days as having been served in satisfaction of this sentence up to, but not including, today.
187A forfeiture order is granted pursuant to the Schedule, the document that I have been provided with.
188The accused has committed offences which are subject to the discretionary provisions of the Sex Offenders Registration Act under s.11. The prosecution did not make any application for registration under that Act, and I will not make any order under that regime.
189Finally, for the sake of clarity, the accused is sentenced as a Serious Sexual Offender on Charges 3, 4 and 5 and that declaration will be entered into the records of the Court.
190Mr Allen, would you like me to leave the link open so that you can discuss that matter with your client?
191MR ALLEN: Your Honour, we have arranged a conference with [Mr Walsh] soon after this, so we can do that through the prison system. In answer to Your Honour’s earlier query about duration of suppression orders, s.12 of the Open Courts Act provides first, that there must be a period specified in an Order, that is at ss.(2) of s.12, ‘that such a period has to be specified by reference either to a fixed or ascertainable period; or otherwise the occurrence of a specified future event’. I think obviously in this case it would be the fixed period that would be most relevant. Given that the order was made primarily in relation to the victim in this matter, Your Honour is perhaps better assisted by the prosecution in respect of the duration. I note the duration is currently five years and Your Honour has got a discretion as to it being longer, of course, it can be as long as Your Honour saw fit and Your Honour's discretion. But given that the order exists in protection of the victim, I will let my learned friend address Your Honour on the duration.
192HIS HONOUR: Thank you. Ms Shivakumar.
193MS SHIVAKUMAR: Yes, Your Honour. I agree with Mr Hands, that Your Honour would not specify a period. In other matters, where we have had suppression orders, the Court has imposed a 20 or 25 year suppression order in order to give it the effect of running for a significant period of time.
194HIS HONOUR: Yes. There will be no acceptable period of time that I consider that this material is publishable, in the interests of the victim. So, I will make an order that expires in 25 years' time.
195MS SHIVAKUMAR: Thank you, Your Honour. If it pleases the Court.
196HIS HONOUR: Thank you, Mr Allen and Ms Shivakumar. I will adjourn the Court.

- - -

Charge	Offence	Max	Sentence	Cumulation* On base and each other
Incident 1
1	Sexual assault 19 Sept 20 (12 occasions)	10 years	14 months	3 months
2	Rape (5 occasions)	25 years	6 years, 6 months	Base
Incident 2
3	Sexual assault 19-20 Sept 20 (2 occasions) * serious offender	10 years	7 months	3 months
Incident 3
4	Sexual assault 17 Oct 20 (7occasions) * serious offender	10 years	12 months	4 months
5	Rape 17 Oct 20 (2 occasions) * serious offender	25 years	5 years, 4 months	12 months
Totals
Total Effective Sentence:		8 years 4 months (100 months)
Non-Parole Period:		5 years (60 months) – 60%
s.6AAA		TES 10 years 9 months (131 months) / NPP 8 years 3 months (99 months)
PSD		6 days

ANNEXURE A – CHRONOLOGY

Date	Hearing	Outcome
19 September 2020, 20 September 2020 and 17 October 2020	Date of offending
8 August 2021	Complainant makes statement
2 September 2021	Date of arrest & interview
27 December 2021	Charged on summons
14 January 2022	Filing Hearing	Timetable set
4 March 2022	Committal Mention	Committal Hearing Listed in Addition to s 342 application.
13 May 2022	Special Mention	s 342 application granted.
14 June 2022	Committal Hearing	Defence counsel became unavailable due to family emergency. Defence indicated to Court that there was potential for resolution Special Mention listed for Parties to engage in Resolution discussions.
1 July 2022	Defence plea offer	Defence offer to resolve matter to: Incident 1 1 x Sexual Assault (Rolled Up) 1 x Rape (Rolled Up) Incident 3 1 x Rape (Rolled Up) 1 X Sexual Assault (Rolled Up)
11 July 2022	Prosecution counter offer	Incident 1 1 x Sexual Assault (Rolled up Charge) 1 x Rape (Rolled Up) Incident 2 1 x Sexual Assault (Rolled Up charge) Incident 3 1 x Rape (Rolled Up) 1 X Sexual Assault (Rolled Up)
14 July 2022	Matter resolves as per Prosecution counter offer
19 July 2022	Special Mention	Committed – SHUB – PG
21 November 2022	Plea date
28 February 2023	Further plea date & remand
6 March 2023	Date of sentence

ANNEXURE B – EPISODES & CONSITUENT PARTS OF ROLLED UP CHARGES

Date	Charges	Conduct
INCIDENT 1
19 Sept 20	1. Sexual assault	12 occasions 1. At approximately 3.35am, the offender filmed the victim, still asleep, whilst he touched her with his left hand on the buttocks, vagina and lower back. He filmed himself masturbating. He also pulled the victim’s black leggings down to just above her knees and touched her over the left buttock putting his hands under her underwear. 2. The offender placed the phone down near the victim’s feet and filmed himself touching the victim’s buttocks with both his hands. He pulled the victim’s underwear aside exposing her vagina and touched her on the vagina with his right hand. 3. The offender then pulled the victim’s underwear aside and licked her on the vagina, rubbed his left hand over her buttocks, inner thighs and rubbed his hand under her underwear. 4. He then rubbed his hand over the victim’s buttocks and vagina over her underwear, licked her on the vagina over her underwear and then placed the phone at the foot of the bed to record himself and the victim. He rubbed the victim’s buttocks with both hands and pulled her underwear up between her buttocks, pulled her underwear aside and touched her exposed vagina. He then licked her on the vagina and buttocks. 5. The offender then stood next to the victim and rubbed his erect penis against her buttocks whilst also rubbing them with his hand. He inserted his penis in between the complainant’s underwear and body and moved his penis up and down against her buttocks and vagina. 6. He continued rubbing his hands over her vagina on top of her underwear and rubbed his penis against her buttocks. At approximately 3.50am the offender pulled the victim’s underwear aside and touched her in the vagina with his left hand and licked her on the vagina. He then replaced her underwear and filmed himself masturbate over her. He then inserted his penis between her thighs on top of her vagina and underwear. He again touched her on the buttocks and then at 3.57am placed the phone at the foot of the bed to record her. 7. The offender then rubbed his hands and penis against the victim’s buttocks and at approximately 4.01am touched her over her underwear on her vagina. He then pulled her underwear aside and touched her on the vagina. 8. The offender then placed the phone at the end of the bed again and filmed himself touching the victim on her vagina. He pulled her underwear aside and licked her on the buttocks and vagina. 9. The Offender then stood up and rubbed his penis against her buttocks and vagina over her underwear and at 4.08am he again placed the phone at the end of the bed to record the victim up her body 10. The offender continued to touch the victim on her buttocks with his hands and penis and lick her buttocks. At approximately 4.23am he again pulls her underwear down around her knees. 11.The Offender then rubbed his penis between the victim’s buttocks and thighs before touching and licking her vagina. 12. At approximately 4.36am he again rubs his penis against her vagina.
2. Rape	5 Occasions 1. The offender then applied lubrication to his hands and pulled the victim’s underwear aside with his left hand and digitally penetrated her vagina with the fingers of his right hand and replaced her underwear back over her vagina. 2. After this the offender pulled the complainant’s underwear aside and digitally penetrated her vagina with the middle finger of his left hand. 3. The offender then pulled the victim’s underwear to the side with his left hand and digitally penetrated her with the index finger of his left hand 4. and then digitally penetrates her vagina with his fingers. 5. The accused then penetrated the victim with his penis after which he placed the phone down and moved the victim so that she was laying outstretched on her stomach.
INCIDENT 2
19-20 Sept 20	3. Sexual Assault	2 Occasions 1. At approximately 10.52pm the offender filmed himself stroking the victim’s buttocks with this hand, he then put his hand between her thighs and rubbed her vagina over her underwear. 2. At approximately 12.04am the offender touched the victim again on the waist, buttocks and vagina over her underwear whilst masturbating.
INCIDENT 3
3. 17 Oct 2020	4. Sexual Assault	7 Occasions 1. At approximately 12.07am the accused filmed the victim’s buttocks whilst stroking her waist and touching her vagina over her underwear with his left hand. 2. He then pulled her underwear up between the cheeks of her buttocks and stroked her buttocks and lower back whilst he masturbated. 3. He then licked and kissed the victim on the left buttock cheek whilst stroking her buttocks with his hand. He placed the phone down for about a minute whilst he removed the victim’s underwear. He then masturbated into the victim’s underwear. 4. At approximately 12.17am he again touched the victim on the buttocks and vagina with his left hand. 5-7. He further touched the victim on the buttocks, rubbed and licked her vagina.
5. Rape	2 Occasions 1. He then digitally penetrated the victim’s vagina with the middle finger of his left hand. 2. He then further digitally penetrated the complainant's vagina with his index and middle fingers of his left hand

[2023] VCC 490

6 March 2023