Ierardo v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0126

GIACOMO IERARDO	Applicant
v
THE KING	Respondent

S EAPCR 2023 0084

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
GIACOMO IERARDO	Respondent

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JUDGES:	NIALL, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2024
DATE OF JUDGMENT:	16 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 181
JUDGMENT APPEALED FROM:	DPP v Ierardo (County Court, Judge Gaynor, 18 April 2023)

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CRIMINAL LAW – Appeal – Conviction – Rape, common assault, false imprisonment and assault with intent to commit sexual offence – Whether inadmissible opinion evidence of police officer admitted – Evidence admissible either as observation or lay opinion based on observation – Whether prosecutor’s comments inflammatory or intemperate – Prosecutor’s address did not detract from jury’s ability to fairly and dispassionately weigh evidence – Whether combination of errors occasioned miscarriage of justice – Individual complaints without substance – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence 8 years 1 month – 3 years for each rape charge – Whether sentence manifestly inadequate – Sentences for rape charges manifestly inadequate – No basis to exercise residual discretion – Appeal allowed – Respondent re-sentenced.

Criminal Procedure Act 2009, ss 287, 289, 290; Evidence Act 2008, ss 76, 78, 79; Jury Directions Act 2015, s 54D; Sentencing Act 1991, ss 6A, 6B, 6D.

Basic v The Queen (2015) 251 A Crim R 91; DPP v Keller (a pseudonym) [2021] VSCA 334; DPP v Sheppard(a pseudonym) [2021] VCC 1587; DPP vStamper (a pseudonym) [2021] VCC 770; Ludeman v The Queen (2010) 31 VR 606; R v Livermore (2006) 67 NSWLR 659; R v O’Rourke [1997] 1 VR 246; R vVerdins (2007) 16 VR 269, considered.

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Counsel
Applicant/Respondent:		Ms C Boston SC with Mr J Murphy
Appellant/Respondent:		Mr BF Kissane KC with Ms B Goding
Solicitors
Applicant/Respondent:	Doogue + George Defence Lawyers
Appellant/Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
TAYLOR JA
BOYCE JA:

Giacomo Ierardo was convicted by a jury of six charges of rape,[1] six charges of common assault,[2] three charges of false imprisonment,[3] and one charge of assault with intent to commit a sexual offence.[4] All of the offending concerned a single victim, AB,[5] a former intimate partner of Mr Ierardo. Following a plea in mitigation of sentence, Mr Ierardo was sentenced to a total effective term of imprisonment of 8 years and 1 month with a non-parole period of 5 years and 6 months.
[1]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[2]Contrary to common law.
[3]Contrary to common law.
[4]Contrary to s 42(1) of the Crimes Act, as amended by the Crimes Amendment (Sexual Offences) Act.
[5]To avoid the possibility of identifying the alleged victim of sexual offences, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the complainant.
Mr Ierardo seeks leave to appeal his conviction on the three grounds set out below. The Director of Public Prosecutions (‘DPP’) appeals against the sentence on the basis that it is manifestly inadequate.
When dealing with the application for leave to appeal against conviction, it will be convenient to refer to Mr Ierardo as ‘the applicant’, while we will refer to him as ‘the respondent’ when dealing with the DPP appeal against sentence.
For the reasons that follow, we would refuse the applicant leave to appeal against conviction. We would uphold the DPP’s appeal against sentence and re-sentence the respondent to a total effective sentence of 11 years and 1 month imprisonment.
It is appropriate to deal with the application touching the conviction first.
PART A:CONVICTION

The prosecution case

The applicant and the complainant, AB, were in an intimate domestic relationship that began on 24 January 2019 and lasted for about seven months. AB was then aged between 51 and 52 years and the applicant was about 47 years of age.
Shortly after the relationship commenced, the applicant moved out of his home and stayed with AB temporarily at her home. After living with AB for a couple of weeks, he moved to a new home in Eumemmerring. Once he had moved into his new premises, AB spent most nights at his place.
Early in the relationship, the applicant exhibited controlling and jealous behaviours towards AB, which manifested in regular arguments based on the applicant’s belief that AB was unfaithful in the relationship. The applicant regularly analysed her mobile phone, sometimes without her knowledge, called her derogatory names such as ‘whore’ and ‘prostitute’ and sent her abusive texts. The controlling behaviour also included monitoring AB on social media and, on one occasion, he took her underwear to be forensically examined for the presence of male DNA.
The offending occurred over four separate incidents.
The first episode occurred at the applicant’s home on either 20 or 30 May 2019 and followed an argument in which the applicant accused AB of infidelity. AB decided to leave and, at approximately midnight, went into the applicant’s bedroom to pack her clothes. The applicant stood in the doorway, preventing her from leaving, and pushed her hard so that she fell on her back onto the bed (charge 1: common assault). Whilst on the bed, the applicant got on top of AB and sat on AB’s upper thighs and grabbed her forearms, holding them at right angles on either side of her body. AB struggled and told the applicant that she wanted to leave and the applicant refused to let her do so, saying she was not going anywhere (charge 2: false imprisonment).
The argument continued and the applicant placed his hands around AB’s throat two or three times using firm pressure but not to the point of causing her any trouble breathing (charge 3: common assault). The applicant also put his hands over AB’s nose and mouth, causing her to experience difficulty with breathing. The applicant pulled off AB’s jeans and, at this point, AB ceased struggling, afraid that the applicant would further assault her.
The applicant then penetrated AB’s vagina with his fingers, tongue and penis. These acts constituted three charges of rape (charges 4, 5 and 6 respectively). The applicant alternated between the forms of penetration until he ejaculated.
The second episode occurred between 23 and 24 June 2019. There was another argument about infidelity and AB told the applicant that she wanted to leave. The applicant pleaded with her to stay and pushed her onto the bed. AB landed on her back and the applicant got on top of her (charge 7: common assault).
The applicant restrained AB’s arms, placed his hand over her mouth and nose to stop her talking and at some stage placed his hand around her throat, gradually increasing the pressure to the point where she struggled to breathe (charge 9: common assault).
On AB’s account, the applicant remained on top of her for about 20 minutes, accused her of cheating and used his hands to attempt to suffocate or strangle her multiple times (charge 8: false imprisonment).
The applicant then removed AB’s pants and tore her underwear. AB said she did not want to have sex with the applicant and that she hated him, to which the applicant replied that he knew that and that he hated her too. AB ceased resisting, the applicant removed all his clothes and penetrated her vagina with his tongue, finger and penis. The applicant alternated between these forms of penetration until he ejaculated. These acts of penetration constituted charges 10, 11 and 12 respectively (rape).
The third episode occurred on 5 July 2019 and again arose in the context of an argument about infidelity. AB decided she wanted to leave and went into the applicant’s bedroom to pack her clothes. As AB tried to leave the room, the applicant stopped her by grabbing and/or hugging her. AB ended up on her back on the bed and the applicant used his hands to restrain AB’s forearms (charge 13: assault with intent to commit a sexual offence).
While on top of her, the applicant put his hand over her nose and mouth to prevent her from talking and put a hand on her throat, gradually increasing the pressure. AB said that she was unable to breathe and that the pressure had been applied more violently than it had been applied on earlier occasions. The applicant was acquitted of a charge of conduct endangering persons but convicted of an alternative charge of common assault (charge 17).
AB told the applicant that he was hurting her and told him to get off. After about 20 seconds, the applicant stopped and apologised. Fearing she would be raped, AB pleaded with the applicant not to rape her and the applicant eventually ceased restraining her and the incident concluded.
The fourth episode occurred on 12 July 2019. AB was at the applicant’s home. The applicant directed AB to call a male acquaintance and place the conversation on loudspeaker so that he could hear. Following the phone call, an argument began, lasting for several hours, in which the applicant accused AB of lying and cheating. At about 11:30 pm, AB decided to leave and went to the bathroom to pack her toiletries. The applicant entered the bathroom, pushed her with both of his hands to her shoulders, causing her to fall to the floor. The applicant grabbed her hair, pulling it hard, and dragged AB by her hair from the bathroom to the hallway. Some of her hair was ripped out. AB pleaded with the applicant not to hurt her, following which the applicant dragged her by her hair to another corner of the apartment (charge 18: common assault).
The relationship ended on 19 July 2019. On 31 July 2019, AB went to the police to report the offending. It is convenient at this point to note that AB made three statements to police. Ground 1 concerns the evidence of the police officer who obtained the first statement. It is therefore necessary to set out the evidence in that respect.

Complaint evidence

As already noted, AB made her first statement to police on 31 July 2019. It was a written statement signed by her. There was no allegation of rape contained within that statement.
At the trial, the topic of AB making a complaint to the police was initially raised indirectly in the course of her evidence-in-chief. The prosecutor sought to place the third incident in context by asking AB whether there was a third incident that she had told the police about that occurred on 5 July 2019. AB agreed with that proposition and went on to explain what had happened on the third occasion. A similar approach was taken to the fourth episode, with the prosecution asking whether she had described the fourth and final incident to the police.
Near the conclusion of her evidence, AB explained that she had determined to end the relationship with the applicant and had planned how she would exit the relationship, which she did on 19 July 2019. AB was then asked whether it was a short time after that that she reported the matter to the police. She agreed with that proposition. AB then gave some evidence of complaining about the rapes to two friends.
At the beginning of her cross-examination, AB confirmed that she had made written statements to the police on 31 July 2019, 17 January 2020 and 21 July 2020. The latter two statements were made before Detective Senior Constable Christopher Jennings (‘DSC Jennings’).
AB was asked to identify her first statement made on 31 July 2019 at the Endeavour Hills police station. It was made before Senior Constable Kyle Spiliopoulos (‘SC Spiliopoulos’). After confirming that she had read the statement before giving her evidence, AB agreed that there was nothing in that statement about any allegation of rape. That led to the following exchange between trial counsel for the defence and AB:
Now whilst you were in the course of talking to Officer Spiliopoulos making that statement did he directly ask you whether or not Mr Ierardo had sexually assaulted you?---No I don’t believe he did.
But in any case you didn’t tell him anything about being raped or sexually assaulted by Mr Ierardo on that day did you? ---No I didn’t.
You didn’t make a statement, you didn’t sign a statement alleging rape until 17 January 2020?---That sounds about right.
AB was cross-examined on notes that she had prepared before going to the police. It was put to her that there was no reference to the alleged rapes in those notes.
In re-examination, AB was asked to explain why there was no reference to the alleged rapes in her notes that she had prepared for the purpose of speaking with police. AB said:
I was in love with a man, with Giacomo, at the time, um, I didn’t want to see it. I didn’t know to see it as a man raping me or my partner, my boyfriend who raped me, um, cause he’s supposed to love me and take care of me. Um, there was also an element of shame attached to it. Embarrassment. A lot of vulnerability. Not wanting to see myself failing in another relationship. And also the stigma attached to rape not having any hard evidence and not having people believe my story, um, and without evidence it’s very difficult to prove your story, prove your truth and I spent six months doing that with him and I didn’t think anyone would believe my story. But it’s what happened and I never in a million years thought I would be raped let alone twice and if I could, I could have probably made up a story of the third time but it didn’t happen the third time. But it did happen twice and I got assaulted. There is a lot of shame attached to it and I know that a lot of women feel shame and embarrassment of coming forward but I want to be strong for all those women and pave a path for them to tell them not to be ashamed. To come forward even without physical evidence. And you too can tell your story and be believed.
SC Spiliopoulos gave evidence. In his evidence-in-chief, he gave the following testimony:
Now there was evidence given yesterday that you took a statement from [AB] outlining her allegation of an assault?---Ah that is correct.
And what I want to ask you about is after you took that statement, did you ask any questions of [AB]? ---Yes I did.
And what did you ask her about after that statement was taken?---After the statement was taken, ah I began asking [AB] a series of questions to determine her risk um, and risk against assault, um and one of the questions that I asked her was a specific question um, asking if ah, the accused in this matter has ever - ever sexually assaulted her.
And when you asked her that question, how did she react?---Ah [AB] became extremely distraught, upset, and seemed to freeze up and didn’t want to communicate with me any further, um it was clear to me that there appeared to be some sort of trauma based on my experience dealing with people.
All right, and she didn’t say anything to you at that time?---Not initially no, I had to provide some support and comfort first to her, um, such as giving her a water and tissues.
All right, and as a result of her behaviour, did you then take further steps within the police force?---Ah I did yes, so after sort of providing that reassurance, [AB] disclosed to me that she had been raped multiple times by the [applicant], and I then um, obviously provided reassurance to her again and comfort, and soon after stopped any further questioning and ah, grab a phone call to [DSC] Jennings, who I relayed the information to him, and then ah from there I stopped talking to [AB] about any further um matters regarding this incident.
All right so you mentioned a [DSC] Jennings, he’s the gentleman sitting behind me? ---That’s correct.
Why did you contact him?---Because at the time he was a ah, detective at the sexual offence unit, and I’m aware that there’s specialists in that field, so I thought that he would be the best person to contact to, to take the matter further, as I knew that they would be the ones investigating the incident.
Apart from some formal matters, that was the totality of his evidence. He was not cross-examined.
DSC Jennings, who was the informant on the charges, also gave evidence. After explaining that, at the relevant time, he was attached to the Dandenong Sex Offences and Child Abuse Investigation Team (‘SOCIT’), he was asked whether he could recall when he first had any dealings with AB. He gave the following evidence:
Do you know how you first came in contact with her?---Yeah on 31 July 2019 I received a call from First Constable Kyle Spiliopoulos and he informed me that he had the complainant, [AB] with him, ah, and that she’s disclosed that, um, she’d been sexually assaulted.
And he has given evidence that because SOCIT was the specialist in sex offences that he handed the matter over to you?---That’s correct, yes.
And did you then arrange to speak with [AB] over a period of time?---Yes I did between 4 August 2019 and 17 January 2020.
DSC Jennings explained that the second statement, which was ultimately made on 17 January 2020, had been made after a number of meetings and discussions between him and AB.
DSC Jennings was very briefly cross-examined. DSC Jennings was asked to confirm that the timeline entailed the first statement being made on 31 July 2019 to SC Spiliopoulos and the second statement being made on 17 January 2020 before DSC Jennings.
In addition to the complaint evidence to police, AB said that she had told two friends, OM and JM,[6] about the rapes. JM said that she was told by AB in or around June 2019 that AB and the applicant had an argument, he pushed her on the bed and held her down. AB told JM that the applicant held her arms, he was on top of her, she could not move and he had sex with her. JM said that AB did not go into any details but that she asked AB why she did not try to get away and AB said she could not move. There was no cross-examination of JM.
[6]To avoid the possibility of identifying the alleged victim of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the complainant’s friends.
OM gave evidence that she had been friends with AB since 2007 and had a good relationship with her. She said that AB told her that the applicant raped her, she did not consent to it and she was quite distraught about it all. OM said that AB told her that she tried to push the applicant off but could not do so because he was too strong, it was not the first time and there was another time that it happened as well. OM could not remember exactly when she was told these things and could not remember whether it occurred between January and July 2019. OM was not cross-examined.

Prosecutor’s closing address to the jury

In his closing address to the jury, the prosecutor said that the evidence of AB had been very clear as to what occurred. He told the jury that AB had talked about confusion, had to come to grips with what had happened to her and had difficulties in terms of her partner being the aggressor and what she should do about it. The prosecutor continued:
Even when she went to the police she complained about an assault first. No mention of the rape. But very quickly after that, she then started to go down the line of speaking with police and making a formal statement and for this matter to proceed.
The prosecutor referred to AB’s evidence in re-examination in order to explain why there had been no mention of the rapes in the first statement.
In his address to the jury, trial counsel for the defence asked rhetorically whether it made any sense for AB to go to the police on 31 July 2019, having made advanced contact, but not to say anything in that statement about being raped. Counsel continued:
She goes to the police to make a statement but includes nothing in that statement about having been raped. Now she says that she wasn’t asked and didn’t say anything on that day. Of course Mr [Spiliopoulos’] evidence was different to that. It’s a matter for you what you make of that inconsistency. But her evidence was that she didn’t say anything about rape.
She doesn’t sign a statement alleging the rapes until 17 January 2020, having worked on that statement for five months. Having made the notes that she had received either before or during that process.

It was submitted to the jury that there was almost nothing in AB’s notes about allegations of rape and that the allegations of rape had been fabricated.

Ground 1

Proposed ground 1 is in the following terms:
There was a substantial miscarriage of justice by reason of the admission into evidence of a police officer’s opinion that the complainant was experiencing ‘some sort of trauma’ immediately before disclosing the alleged rapes to police.
Particulars
(i)The complainant’s first statement to police did not include any allegations of rape.
(ii)A police officer gave evidence that, after taking the complainant’s first statement he asked her whether or not she had been sexually assaulted and she then exhibited ‘some sort of trauma’ response.
(iii)The police officer’s opinion about the ‘trauma’ response was objectively significant in the trial such that its wrongful admission into evidence caused a substantial miscarriage of justice.
The ground focuses on the following evidence of SC Spiliopoulos:
[AB] became extremely distraught, upset, and seemed to freeze up and didn’t want to communicate with me any further, um it was clear to me that there appeared to be some sort of trauma based on my experience dealing with people.
The context in which the officer gave that evidence is set out at paragraph 29 above.

Submissions

The applicant accepts that the first portion of the answer relays observations of AB’s bodily response and uncontroversial lay opinions based on those observations. That is, the applicant accepts that the officer’s evidence that AB ‘seemed to freeze up’ and was ‘distraught’ and ‘upset’ was admissible.[7]
[7]Citing Lithgow City Council v Jackson (2011) 244 CLR 352, 373 [48] (French CJ, Heydon and Bell JJ); [2011] HCA 36.
The applicant submits, however, that the second aspect of the evidence ‘involved the designation of a psychiatric or psychological label (‘trauma’) to [AB’s] response’. This is described as ‘paradigmatically opinion evidence’, it being an inference drawn from the observed data. The applicant says it was therefore presumptively inadmissible by reason of s 76 of the Evidence Act2008.
He submits that the opinion evidence did not fall within the exception for lay opinions in s 78. First, it was not based on what SC Spiliopoulos saw, heard or otherwise perceived, but rather it was based on some past course of dealings with other people. Second, it was not necessary to obtain an adequate account of the police officer’s perception of AB’s response to his question, which was achieved by the descriptors ‘distraught, upset … freeze up’.
Further, he submits that the opinion evidence did not fall within specialised knowledge so as to be admissible under s 79 because it was not within a field of specialised knowledge, the witness did not demonstrate experience or training on that topic, and there was no exposition of how the opinion was based on any specialised knowledge.
It follows, so the argument runs, that the police officer’s opinion that AB was experiencing some sort of trauma-based response was inadmissible. The applicant contends that the evidence was significant to the issues in the trial. He notes, among other things, that the fact that AB had not disclosed the rapes in her first statement was an important feature of the trial, it was the subject of the opening of the defence’s cross-examination of AB and referred to in the defence’s closing address at some length and with some repetition.
The applicant submits that the trauma opinion evidence, if it was accepted by the jury, was capable of providing an explanation, consistent with the guilt of the applicant, as to why AB had not disclosed the rapes in her first statement. Further, the trauma opinion evidence served to neutralise the defence’s attack on AB’s credibility in light of the vagueness of AB’s account. The applicant also says that the evidence had the potential to clothe the police officer’s evidence with an added legitimacy or authority derived from the two separate judicial directions referring to trauma-based responses.
Whilst acknowledging that defence counsel did not object to the evidence, nonetheless the applicant submits that it was inadmissible, the lack of objection could not be explained by a rational forensic choice and the admission of the evidence led to a substantial miscarriage of justice.
Finally, the applicant submits that the judge’s directions left open the question of whether the inconsistencies or delay in AB’s account was explicable by reference to her trauma and were therefore inadequate to remedy the injustice occasioned to the applicant.
The respondent submits that the evidence was admissible pursuant to s 78 of the Evidence Act as lay opinion evidence. It is said that it provided necessary and important context to SC Spiliopoulos’s understanding of AB’s response to the questions asked and what the appropriate investigative steps were for him to take thereafter.
Even if the evidence was inadmissible, the respondent submits that it did not lead to a substantial miscarriage of justice. Given the failure of trial counsel for the defence to object to the evidence, the respondent says that the impact of the evidence was to be considered in the context of the whole of the trial,[8] emphasising the following features. First, the evidence of the police officer was unchallenged. Second, no complaint was made when the prosecutor referred to the evidence in his closing address. It is submitted that the failure to object or to seek any correction supports the conclusion that it was viewed by experienced trial counsel as having, at its highest, negligible prejudicial effect. Third, no direction was sought by the applicant on distress even though the topic had been raised in discussion on appropriate directions to be given. Fourth, the jury was directed in accordance with ss 54D(1) and 54D(2)(c) of the Jury Directions Act 2015.
[8]Citing Velkoski v The Queen (2014) 45 VR 680, 728–9 (Redlich, Weinberg and Coghlan JJA); [2014] VSCA 121.
The respondent submits that there is a sense of artificiality in the applicant’s submission in circumstances where AB did in fact disclose that she had been raped multiple times immediately after making the statement, causing the investigation to be referred to DSC Jennings.

Decision

There is no merit in this ground.
The starting point is how the jury might reasonably have understood the evidence. In turn, that depends on what was said by the witness, the context in which it was said and how it was sought to be used by the prosecution.
The applicant seeks to dissect the evidence into two discrete components: the first being no more than a lay description of how AB presented based on observation: distraught, upset and that she seemed to freeze up; the second being an expression of opinion that her presentation was caused by an earlier traumatic event, implying that AB presented in the manner of a person who had been raped.
As the applicant rested his argument, he accepted that he could only succeed on this ground if the sole understanding that the jury could have had about the evidence was that SC Spiliopoulos was expressing an opinion that there had been some past history of trauma, which in the context of his question must have been a sexual assault. Far from that being the only reasonable understanding of the evidence, the better view is that it went no further than an observation or opinion that AB appeared traumatised. In our opinion, the jury would have taken the impugned evidence to be no more than a lay opinion that AB appeared traumatised, based on SC Spilopoulos’s observation of her response. It was not significantly different to the evidence immediately preceding it, as to which no complaint is made.
The import of the police officer’s evidence has to be seen in its context. The officer was asked about conversations between him and AB after she had signed the statement. No objection was taken either at trial or in this Court about SC Spiliopoulos directly asking AB whether the applicant had ever sexually assaulted her. Nor was it put to AB that she only made a complaint once that possibility was suggested to her by the police officer.
In his evidence, SC Spiliopoulos was asked an open question about AB’s reaction. His answer was directed to that question. It was a single answer. He was not asked to express any professional opinion and no attempt was made to try to establish any expertise or experience on that topic. Indeed, SC Spiliopoulos then gave unchallenged evidence about what steps he took, namely terminating the conversation and telephoning DSC Jennings, explaining that DSC Jennings was the appropriate investigator in relation to sexual offending.
It follows, in our opinion, that this ground depends on an unreasonable parsing of the evidence that does not fairly reflect its content or the context in which it was given. Just as the first part of his evidence was admissible, a statement to the effect that AB was traumatised was either an admissible observation or, alternatively, an admissible lay opinion based on observation and which was necessary in order to obtain an adequate account or understanding of SC Spiliopoulos’ perception and to explain why he took the further step of contacting DSC Jennings.
We would add that, even if the jury might have understood the evidence as expressing an opinion that AB’s presentation was consistent with that of a victim of sexual assault, it would not have resulted in a substantial miscarriage of justice. We accept that such an expression of opinion would not be admissible as a lay opinion, nor were the foundations for the admission of an expert opinion established. But the fact that the evidence was inadmissible does not, of itself, take the applicant far enough to make out the proposed ground of appeal. First, the prosecutor did not rely on the evidence in that way. Second, no objection was taken to the evidence, reinforcing the view that it was, in the scheme of the trial, anodyne. Third, the heart of the complaint appears to be that the expression of opinion undermined any attack based on a failure to disclose rapes in the first statement by providing an opinion as to why AB might not have disclosed at that time. To the extent that the applicant seems to imply that the evidence of rape was first disclosed to the police in the January 2020 interview, that conclusion is not supported by the evidence and was not how it was perceived at trial. Notably, in his final address, trial counsel for the defence referred to AB’s evidence that she had not disclosed the rapes before making the statement in January 2020 but acknowledged that this evidence was not consistent with that given by SC Spiliopoulos, who said that she told him about the rapes on the day she made her first statement to the police on 31 June 2019. Of course, that evidence was entirely consistent with the unchallenged account of DSC Jennings having received a phone call on that day referring to sexual assault. Neither SC Spiliopoulos nor DSC Jennings were challenged on their respective accounts.
The significance of any failure to include an allegation of rape in the first statement was blunted by the fact that, within the same interview, AB told the police that she had been raped by the applicant multiple times and that the investigation was continued with DSC Jennings. It follows that there was little, if any, reason to explain why it was not included in the statement itself.
We would reject ground 1.

Ground 2

Proposed ground 2 is in the following terms:
There was a substantial miscarriage of justice by reason of inflammatory or intemperate comments in the prosecutor’s closing address.
Particulars
(i)At the commencement of his closing address to the jury, the prosecutor suggested – by reference to a dictionary definition which was not in evidence – that the [a]pplicant was a narcissist and outlined a litany of the [a]pplicant’s irrelevant boasts in his interviews with police.
(ii)These aspects of the prosecutor’s closing address were apt to paint the [a]pplicant as a man of bad character and to invite illegitimate propensity reasoning, and thus they caused a substantial miscarriage of justice.
This ground is based on aspects of the prosecutor’s closing address. In order to put the ground in context, it is necessary to refer to the applicant’s two interviews with the police. On 4 August 2019, the applicant was interviewed by two police officers at the Dandenong police station for the purpose of an investigation into allegations of criminal damage and unlawful assault made by AB in relation to an alleged incident on 12 July 2019. The applicant denied wrongdoing. In the course of that interview, the applicant referred to AB as narcissistic and as having a narcissistic approach.
The applicant was interviewed a second time on 17 July 2020 in relation to allegations of rape and assault. He again denied wrongdoing. In that interview, he referred on several occasions to AB as having narcissistic behaviours and being narcissistic.
At the commencement of his address to the jury, the prosecutor said that one word he had kept hearing the day before — when recordings of the interviews were played before the jury — was ‘narcissist’, observing that it had been used repeatedly in the interviews. The prosecutor continued:
So when I got home, I went for my trusty Oxford English Dictionary on the bedside table, because where else would it be, and double-checked the meaning of narcissist because I thought I knew what it meant. The way it was defined was, ‘a person who has a condition in which they are only interested in themselves and what they want and have a strong need to be admired, and a lack of understanding of other people’s feelings’.
I thought about the person who was constantly using that term narcissist. When he was using it he would say that he was involved in sporting and at best and fairest. That he was in the CFA, state champion, family successful in residential commercial properties. That he had no difficulty, I think the term was ‘pulling’ women. That he had a strong libido. He was talking about [AB] as being the narcissist.

Submissions

The applicant submits that the address was not merely rhetorically colourful but was apt to appeal to prejudice. In particular, he says that the characterisation of the applicant as the narcissist was ‘apt to paint the applicant as a man of bad character and to invite illegitimate propensity reasoning’.[9]
[9]Citing Basic v The Queen (2015) 251 A Crim R 91, 101 [62] (Priest JA, Ashley and Redlich JJA agreeing); [2015] VSCA 109 (‘Basic’).
The applicant accepts that the records of interview tended to portray the applicant as a man possessing a number of unattractive and objectionable qualities. Indeed, he accepts that, in his closing address to the jury, trial counsel for the defence referred to the interviews and said that they ‘didn’t do him a great deal of credit’ and ‘didn’t really paint him in a good light’.
Even so, the applicant says that the prosecutor was inviting the jury to reason by prejudice and to reach a conclusion of guilt based on a general dislike of the applicant or a belief that he was a narcissist.
The applicant also contends, by reference to the problematic features of a Crown address referred to in Basic v The Queen,[10] that the prosecutor’s address was based on material not in evidence, namely the dictionary definition of ‘narcissist’; ridiculed the applicant’s account in the interviews; and conveyed the prosecutor’s personal opinion by implying that the prosecutor thought the applicant was a narcissist.
[10]Ibid 101–2 [64].
Finally, the applicant contends that the failure by trial counsel for the defence to object to the prosecutor’s closing address provided no antidote to the infection of the trial that it caused.
The respondent contends that the prosecutor used rhetorical flourish by reference to a description repeatedly used by the applicant to describe AB. The respondent notes that the impugned comments were but a small fraction of the closing address and served no greater purpose than to suggest to the jury that the applicant’s answers were self-serving. The respondent submits that there was no prospect that the opening part of the prosecutor’s address would invite or encourage the jury to engage in improper propensity reasoning. The respondent notes that the prosecutor accepted, consistently with the judge’s charge, that, even if the applicant had lied in his records of interview, it did not follow that they could find him guilty and the burden of proof remained at all times with the prosecution.
The respondent says that no objection was taken nor was any application to discharge the jury made. Even if the prosecutor’s words were inflammatory, any potential unfairness was nullified by the judge’s direction to dismiss any feelings of sympathy or prejudice that the jury may have had.

Decision

It is wrong for a prosecutor to make intemperate or inflammatory comments to the jury at any point in a trial including, very importantly, in their final address.[11] Further, a prosecutor must avoid belittling or ridiculing any part of the accused’s case.[12] Amongst other things, such behaviour may induce the jury to be swayed by emotion or prejudice and divert the jury from a dispassionate view of the evidence as a whole. It may also risk an impermissible focus on the character of the accused, tending towards propensity-type reasoning.[13]
[11]Basic (2015) 251 A Crim R 91, 101 [62] (Priest JA, Ashley and Redlich JJA agreeing); [2015] VSCA 109; R v Livermore (2006) 67 NSWLR 659, 666 [31], [36] (McClellan CJ at CL, Johnson and Latham JJ); [2006] NSWCCA 334 (‘Livermore’).
[12]Livermore (2006) 67 NSWLR 659, 666 [31] (McClellan CJ at CL, Johnson and Latham JJ); [2006] NSWCCA 334.
[13]Basic (2015) 251 A Crim R 91, 101 [62] (Priest JA, Ashley and Redlich JJA agreeing); [2015] VSCA 109.
It is not wrong for a prosecutor to respond directly to an account given by an accused either in a record of interview or in evidence and to hold it up to appropriate scrutiny. A prosecutor’s address may be given in language that conveys to the jury, even in striking terms, the improbability or absurdity of an accused’s version of events. The prosecutor is permitted to engage in argument. As happened in this case, the jury will be told that the prosecutor’s arguments are not evidence and that the jury is free to accept them, in whole or in part, or to reject them entirely.
In the impugned passage, the prosecutor sought to deploy the word ‘narcissist’ that the applicant had himself used a number of times in his records of interview to describe AB. Although bordering on facetious, the prosecutor’s address did not overstep the mark, nor did it lead to a substantial miscarriage of justice. The word ‘narcissist’ is an ordinary word that had been used by the applicant a number of times. It was open to the prosecutor to offer a meaning, and the use of the dictionary was in those circumstances unobjectionable. That the dictionary definition was not in evidence is correct but not significant. Resort to the dictionary definition to define the word used by the applicant in the records of interview, which formed part of the evidence, did not transform the submission into a submission based on material not in evidence.
The subject matter of his opening address was a legitimate focus for the prosecutor’s closing remarks. A critical issue for the jury was determining whether they accepted the evidence of AB. In doing so, they were required to consider the version given by the applicant in his records of interview. The prosecutor was entitled, indeed bound, to invite the jury to reject that account and, in doing so, to advance arguments as to why the applicant’s version should not be accepted. It is clear that the introductory remarks in which the prosecutor sought to challenge the applicant’s description of AB in his records of interview by deploying the word ‘narcissist’ formed part of the prosecutor’s argument and responded to the applicant’s attempts to deflect the allegations by criticising AB. There is no reason to think that the jury would have misunderstood that part of the address, given it a status that it did not warrant or been distracted by it. Nor would it have evoked any particularly significant emotional or hostile response.

Moreover, the prosecution sought to put the charges in the context of controlling and jealous behaviour by the applicant. The applicant’s attitude towards AB and the nature of the relationship between them was important to understanding the allegations. How the applicant described that relationship and AB was relevant to that question and the description of the applicant as a narcissist was not gratuitous. It was open to the prosecutor to submit that the applicant presented as self-centred and as a person whose denials could not be believed. There is no basis to suggest that the prosecutor was conveying his personal opinion to the jury as opposed to making a submission, nor that his remarks amounted to ridiculing or belittling the applicant’s case.
The judge directed the jury that they were not to decide the case on the basis of emotion but on the evidence and there was no prospect that the jury would have been unduly swayed by emotion or dislike for the applicant. As trial counsel for the defence frankly accepted in his closing address, the applicant’s records of interview did not put him in the best light. In assessing whether the jury believed his version of events, the jury were entitled to consider the interviews as a whole, giving such weight as they thought appropriate to all of his answers and comments. The jury were correctly instructed that, even if they did not believe the applicant, that did not mean that he was guilty of the charges and that they were to put that evidence aside and consider whether the prosecution had proven the charges to the criminal standard.
The prosecutor’s address did not detract from the ability of the jury to fairly and dispassionately weigh the evidence.
Ground 2 must be rejected.

Ground 3

By ground 3, the applicant contends that a combination or aggregation of errors occasioned a substantial miscarriage of justice. The individual complaints are without substance and, taken together, they could not amount to a substantial miscarriage of justice.
PART B:SENTENCE
As foreshadowed at the commencement of these reasons, the DPP appeals against sentence, alleging that the individual sentences for rape, the orders for cumulation, the non-parole period and the total effective sentence are manifestly inadequate. The structure of the sentence is revealed by the following table:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
*First incident – either 22 May or 30 May 2019*
1	Common assault [pushing down onto and holding on bed]	5 years[14]	3 months	1 month
2	False imprisonment	10 years[15]	6 months	2 months
3	Common assault [hands around neck/strangulation]	5 years	3 months	1 month
4	Rape [digital vaginal penetration]	25 years	3 years	6 months
5	Rape [lingual vaginal penetration]	25 years	3 years	6 months
6	Rape [penile vaginal penetration]	25 years	3 years	Base
*Second incident – between 23 and 24 June 2019*
7	Common assault [pushing down onto and holding on bed]	5 years	3 months	1 month
8	False imprisonment	10 years	6 months	2 months
9	Common assault [hands around neck/strangulation]	5 years	5 months	2 months
10	Rape [lingual vaginal penetration]	25 years	3 years	6 months
11	Rape [digital vaginal penetration]	25 years	3 years	6 months
12	Rape [penile vaginal penetration]	25 years	3 years	6 months
*Third incident – 5 July 2019*
13	Assault with intent to commit a sexual offence	15 years	18 months	6 months
15	False imprisonment	10 years	6 months	2 months
17	Common assault [hands around neck/strangulation]	5 years	6 months	2 months
*Fourth incident – 12 July 2019*
18	Common assault	5 years	2 years	12 months
Total Effective Sentence:		8 years and 1 month imprisonment
Non-Parole Period:		5 years and 6 months
Pre-sentence Detention Declared:		54 days
Section 6AAA Statement:		N/A
Other Relevant Orders: 1. The respondent is required to report under the Sex Offenders Registration Act 2004 for life. 2. The respondent was sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 17 and 18.

[14]Crimes Act, s 320.

[15]Ibid.

It is necessary, therefore, to turn to the judge’s reasons for sentence and some aspects of the plea in mitigation.

Reasons for sentence

After recounting the circumstances of the offending which it is unnecessary to rehearse, the judge noted the contents of AB’s victim impact statement.[16] In that statement, AB said she had difficulty attending work, having to take sick leave or annual leave, and remained fearful of losing her job. She struggled to sleep and often suffered nightmares. She had turned to alcohol to ease the mental and emotional pain and had attended psychological and psychiatric treatment. She had become withdrawn, socially isolated and that the offending had had a devastating impact on her life.[17]
[16]DPP v Ierardo (County Court, Judge Gaynor, 18 April 2023), [39] (‘Reasons’).
[17]Ibid [39]–[41].
The judge then addressed the respondent’s personal circumstances, noting that he was born in rural Victoria and raised by his parents who immigrated to Australia.[18] The respondent struggled at school, leaving at the end of Year 11 to work in the family business operating an independent supermarket in a regional town. He maintained that position for a decade until the family sold the business, after which he moved to various jobs.[19]
[18]Ibid [42].
[19]Ibid [45]–[46].
The respondent has a younger brother and an elder half-sister who, he claims, sexually abused him when he was between 10 and 11 years of age.[20]
[20]Ibid [45].
The respondent married at age 24, with that marriage lasting two years. He then commenced another long-term relationship during which he began increasing his alcohol consumption. There were arguments within the relationship, ultimately leading to a separation. His then-partner took out a family violence intervention order against the respondent.[21] At the conclusion of that relationship, he formed a five-year relationship, which ended with the then-partner taking out another family violence intervention order against the respondent.[22] Following the respondent’s relationship with AB, he then commenced a further relationship in 2020 but this relationship also ended with his then-partner taking out a family violence intervention order against the respondent.[23]
[21]Ibid [47].
[22]Ibid [48].
[23]Ibid.
The respondent relied on a report from a psychologist, Laura Fleming, who diagnosed him as presenting with symptoms of obsessive-compulsive personality disorder, a narcissistic personality disorder and post-traumatic stress disorder (‘PTSD’), leading to the development of symptoms of depression and anxiety.[24] The judge accepted that the respondent might find incarceration more onerous than someone who did not have those conditions and that prison might make them worse.[25] The judge took these matters into account in favour of the respondent.[26]
[24]Ibid [53]–[54].
[25]Ibid [59], pursuant to limbs 5 and 6 of R vVerdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[26]Reasons, [72].
It was not argued that his conditions were causally related to the offending nor that his moral culpability should be reduced and general deterrence moderated because of the conditions.[27] Unsurprisingly, the judge made no finding to that effect.
[27]Pursuant to limbs 1 and 3 of Verdins.
The judge noted that the respondent has a prior criminal history dating to 1998 when he was fined for breaching an intervention order. He was again fined for breaching an intervention order in 2003. In 2009, he was placed on a three-month suspended sentence on a charge of refusing to accompany police for a breath test.[28]
[28]Reasons, [57].
The judge observed that the offending comprised four occasions of demeaning, violent and callous behaviour towards AB and that the sexual assaults were ‘redolent of a sense of entitlement, scorn and punishment for perceived misbehaviour’.[29]
[29]Ibid [67].
The judge noted that rape is an inherently violent offence and the respondent’s offending against AB was made all the more violent by the respondent’s accompanying conduct, preventing her from leaving, placing his hands around her throat and subjecting her to rounds of oral, digital and penile penetration while she lay helpless on the bed. The judge was satisfied that the sexual offending was a serious example of offending of this kind, leaving AB with ongoing trauma, fear of the world and loss of security.[30]
[30]Ibid [68].
The judge said that she could not be optimistic as to the respondent’s rehabilitation, noting it was quite clear he suffered from serious psychological issues which resulted in him having a sense of entitlement, control and ultimately practising violence towards his partner. The judge noted that three previous partners had taken out family violence intervention orders against the respondent and that he had breached those orders on two occasions.
The judge noted the maximum penalties for each offence and that the rape charges were standard sentence offences for which the applicable standard sentence was 10 years’ imprisonment. The judge noted the standard sentence regime provided a legislative guidepost but was not a determinative feature.[31]
[31]Ibid [60], [64].
The judge observed that the rape, false imprisonment and assaults on each of the three occasions arose from three sets of circumstances so that concurrency and totality were issues to which she was obliged to have regard.[32]
[32]Ibid [70].

Submissions

In her written case, the DPP refers to the standard sentence regime, noting that the individual sentences fell at 70 per cent below the standard sentence. The DPP also observes that the respondent fell to be sentenced as a serious sexual offender on charges 6, 10, 11, 12 and 13, rendering protection of the community as a principal purpose for which the sentences were to be imposed.
Having regard to the total effective sentence, the DPP submits that too much emphasis must have been placed on totality and, although some need for concurrency is conceded, nonetheless the result arrived at was manifestly inadequate. Despite the judge’s description of the offending and her conclusion that it was a serious example of offending of this kind, the DPP highlights that the judge imposed a sentence of only 3 years’ imprisonment on each charge of rape.
As to the respondent’s personal circumstances, the DPP submits that excessive weight must have been given to these matters. Having regard to the impact on AB and that the respondent remains a moderate to high risk of general recidivism, combined with the judge’s lack of optimism as to the respondent’s prospects of rehabilitation, the outcome was manifestly inadequate.
In response, the respondent notes that the ground of appeal is confined to a challenge to the sentences imposed on the rape charges, the orders for cumulation, the non-parole period and the total effective sentence. The respondent submits that an appeal against a total effective sentence is incompetent because it is not a sentence for the purpose of s 287 of the Criminal Procedure Act 2009.
The respondent submits that, having regard to the particular matters in mitigation, the principle of totality and comparable cases, the sentences imposed on the rape charges, the orders for cumulation and the non-parole period were not manifestly inadequate.
The respondent contends that the sentencing judge was careful not to doubly punish him for conduct that formed the basis of other charges, to impose sentences on individual charges that acknowledged the interrelation between the charges, and not to impose a crushing sentence on a person who had never been to prison before and who had been found to have a number of psychological conditions that would make imprisonment more difficult.
Alternatively, the respondent submits that the DPP has not discharged her onus of establishing that the residual discretion should not be exercised. In this respect, the respondent submits that, in order to succeed in the appeal against sentence, the DPP must establish the ground, namely that the rape sentence, orders for cumulation or non-parole period were manifestly inadequate, and negative the exercise of the residual discretion in the Court to refuse a DPP appeal notwithstanding the identification of error.
The respondent relies on six matters that he contends are relevant to the residual discretion:
(a)the prosecutor failed to assist the judge by appropriate submissions on the law, including by reference to comparable and relevant cases, and took inconsistent positions as to totality on the plea and on the appeal;
(b)no specific point of principle is raised;
(c)although not run on the plea, the evidence established a causal connection between the respondent’s psychological conditions and the offending which rendered Verdins limbs 1, 3 and 4 applicable;
(d)increasing the sentence may impede the respondent’s established rehabilitation;
(e)the respondent is in poor physical health (he has been diagnosed with osteoarthritis, is currently on the waiting list for a hip replacement and also has undiagnosed chest pains in the context of a family history of heart disease); and
(f)the deterioration of the respondent’s father’s health, which would impose an additional burden on the respondent’s imprisonment.
In response, the DPP contends that the prosecutor did not breach any duty to avoid the Court falling into error. Limbs 1, 3 and 4 of Verdins were not raised on the plea, and the matters raised at paragraph 105(d) to (f) above are relevant to re-sentencing but not the exercise of the residual discretion.

Decision

In order to succeed, the DPP must persuade this Court that the individual sentences on the rape charges, the orders for cumulation and/or the non-parole period are wholly outside the permissible range available to the judge in the sound exercise of her discretion.[33] In DPP v Karazisis, this Court explained the nature of the error of manifest inadequacy in the following passage, which has frequently been applied in subsequent cases:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[34]
[33]Criminal Procedure Act, s 289(1).
[34](2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350 (citations omitted).
As already noted, the ground of appeal refers to the sentences imposed on the six charges of rape,[35] the orders for cumulation, the non-parole period and the total effective sentence.
[35]Charges 4, 5, 6, 10, 11 and 12 on the indictment.
Section 287 of the Criminal Procedure Act confers on the DPP a right of appeal against a sentence imposed by a court if the DPP considers that there is an error in the sentence imposed and that a different sentence should be imposed and is satisfied that an appeal should be brought in the public interest.
On the present state of authority in this Court, the reference to ‘sentence’ in s 287 embraces each individual sentence imposed on the respondent and any consequential orders made for cumulation or concurrency, but it does not embrace the ‘total effective sentence’, which is the product of such individual sentences and consequential orders.[36] For that reason, it has been held that a notice of appeal under s 287 that merely refers to the total effective sentence does not identify a ‘sentence’ within the meaning of the provision and is therefore not a valid notice of appeal.[37]
[36]DPP v Keller (a pseudonym) [2021] VSCA 334, [58] (Maxwell P, Kaye and Sifris JJA) (‘Keller’); Ludeman v The Queen (2010) 31 VR 606, 614–15 [55] (Ashley and Redlich JJA, Warren CJ, Buchanan and Nettle JJA agreeing); [2010] VSCA 333 (‘Ludeman’); DPP v Jones (2013) 40 VR 267, 274–5 [17]–[19]; [2013] VSCA 330.
[37]Keller [2021] VSCA 334, [71] (Maxwell P, Kaye and Sifris JJA).
In her notice of appeal, the DPP impugns the individual sentences on the rape charges, the orders for cumulation and non-parole period on the basis that they are manifestly inadequate. In the event that this Court is satisfied that there is an error in any of these matters and that a different sentence should be imposed then, subject to the residual discretion reposed in this Court, the appeal must be allowed and the respondent re-sentenced.[38]
[38]Criminal Procedure Act, s 290(1).
Plainly, in the event that an error in the sentence (including what were referred to in Ludeman as the ‘consequential orders for cumulation/concurrency’[39]) is established, this Court would, subject to the residual discretion, be empowered to re-sentence on the rape charges and the orders for cumulation and concurrency. It is not necessary to decide whether in these circumstances this Court could, in the sense of having the requisite power, re-sentence the respondent by increasing the sentences on the charges of common assault and false imprisonment.[40] That is because the DPP in her written case and oral submissions did not seek to impugn the individual sentences on those charges, the appeal was conducted on that basis and it would be unfair to the respondent to adopt a different course without giving him an opportunity to be heard. For that reason, in the event of re-sentence, we would not increase the individual sentences on the charges of assault and false imprisonment.
[39]Ludeman (2010) 31 VR 606, 614–15 [55] (Ashley and Redlich JJA, Warren CJ, Buchanan and Nettle JJA agreeing); [2010] VSCA 333.
[40]As to which, see Ludeman (2010) 31 VR 606, 619–623 [82]–[99] (Ashley and Redlich JJA, Warren CJ, Buchanan and Nettle JJA agreeing); [2010] VSCA 333, and the cases cited therein; see also Salmi v The Queen [2020] VSCA 250, [48]–[50] (Hargrave and T Forrest JJA).
We have no hesitation in concluding that the sentences of 3 years’ imprisonment for the rape charges, taken individually, were manifestly inadequate. Our reasons for that conclusion follow.
The rapes were serious: they occurred in the context of an intimate relationship characterised by family violence,[41] they involved the use of physical force in the face of resistance, and they were protracted and humiliating. The convictions followed a trial. The standard sentence for rape is 10 years’ imprisonment.[42] On both of the two separate occasions that AB was raped, there were three completed acts of penetration, each separately charged.
[41]See DPP v Skeates (a pseudonym) [2023] VSCA 226, [55]–[62] (Emerton P, Niall and Taylor JJA).
[42]Crimes Act, s 38(3).
In considering the objective gravity of the rape charges, it is necessary to have regard to all of the circumstances in which the rapes took place. The measure of the seriousness of the rape offences is not to be taken merely by looking at the elements of the offence divorced from their broader context.
It must be accepted that part of the overall circumstances of the rapes were separately addressed by the assault and false imprisonment charges. Where there is a potential overlap in the elements or circumstances relevant to two or more offences, care must be taken to avoid double punishment. As a general proposition, persons found guilty of two offences must not be punished twice for an act which is common to the two offences.[43] This principle may operate both in respect of fixing the individual sentence and in respect of the extent of any orders for cumulation.
[43]Pearce v The Queen (1998) 194 CLR 610, 623 [40]–[43] (McHugh, Hayne and Callinan JJ); [1998] HCA 57.

There was a real risk that the separate offences of assault, false imprisonment and the three different forms of penetration may overlap with an assessment of the gravity of the rapes. For example, the penile rape charge on the first incident could be considered more serious because it involved physical force and coercion and was part of a protracted episode. However, those are also features of the offences of assault, false imprisonment and the two other rape charges applicable to that occasion.
The respondent went so far as to submit that it was not open to the judge, or to this Court should it reach the point of re-sentence, to take into account any aspect of violence or physical restraint when assessing the gravity of the rapes because these aspects of the offending had been fully accommodated in the sentences for assault and false imprisonment and the DPP had not appealed those sentences.
We do not accept the respondent’s submission. Having regard to the judge’s reasons, it is plain that her Honour regarded the ‘accompanying actions’ preventing AB from leaving and the placing of his hands around her neck as relevant to the charges of rape, false imprisonment and assault. They were at least relevant to the rape charges because they added to the impact of the rapes on the victim and therefore contributed to the gravity of the offending on those charges.
In R v O’Rourke, the offender was convicted of rape, threatening to kill, two counts of indecent assault and intentionally causing injury.[44] The sentencing judge sentenced the offender to 5 years’ imprisonment for the rape, 2 years’ imprisonment for the threat to kill, 2 years’ imprisonment for the each of the indecent assault charges and 1 year imprisonment for intentionally causing serious injury. The judge ordered that all the sentences be served concurrently with a total effective sentence of 5 years and a non-parole period of 3 years. The DPP appealed.
[44][1997] 1 VR 246 (‘O’Rourke’).
In O’Rourke, all of the offending occurred on a single evening and within a 20-minute period. The offender had attacked the victim, a young female medical resident, at hospital accommodation. In allowing the appeal, this Court observed that the rape was ‘but one component of an aggregation of acts which together contributed to the debasement and humiliation of the complainant over a significant period of time during which the [offender] was well aware of her resistance and distress’.[45] The Court held that the sentencing judge was wrong to regard the offending comprehended by the charges of threat to kill and indecent assault as being so linked to the act of rape as to justify whole concurrency.[46] It is clear that the Court regarded the facts which constituted the non-rape offending as relevant to the assessment of the impact of the rape involving, as it did, debasement and humiliation of the victim. The problem was ensuring, in the exercise of sound discretionary judgment, the extent if any that there should be cumulation having regard to the potential overlap.[47] The Court held that full concurrency was, in the circumstances of that case, erroneous.
[45]Ibid 252 (Winneke P, Brooking and Callaway JJA).
[46]Ibid.
[47]Ibid 253.
In our respectful opinion, the decision of this Court in O’Rourke confirms our view that the assault and false imprisonment in this case were relevant to the overall circumstances in which AB found herself and no doubt materially contributed to the impact of the rapes upon her. For that reason, we regard the fact that AB was held down and physically overborne as relevant to the assessment of the gravity of the rapes.
Moreover, even the most careful approach to delineating the various offences could not justify a term of 3 years for the individual rape offences. In that respect, it is notable that the orders for cumulation for the false imprisonment and assault charges with respect to the first incident only amount to an additional 4 months’ imprisonment. In other words, the judge ordered extremely moderate cumulation for those charges, no doubt recognising the importance of avoiding double punishment. It is also plain that the judge moderated the individual sentences on those charges as well. The same reasoning applies to the second incident.
Each of the three acts of penetration that took place on each of the two occasions on which AB was raped involved a separate invasion of the bodily integrity of AB and separate acts of criminality. Although they occurred within a short period of time and were part of the one incident, they required separate consideration. Undoubtedly, as the sentencing judge recognised, they called for some significant degree of concurrency but, nevertheless, the fact that they were three acts of penetration is a matter of significance and aggravated the offending. They served to prolong the offending and added to the degradation and humiliation of AB in circumstances where she had actively resisted before being forced to submit.
The respondent had some matters on which he could rely in mitigation of sentence. The judge accepted that the respondent had a relatively modest prior criminal history and a history of major depression, which had resulted in an attempt to take his own life and a period of inpatient psychiatric care, and the expression of symptoms of PTSD with symptoms of depression and anxiety consistent with an adjustment disorder, impacting on his mental health and functioning. The report of Ms Fleming identified a presentation of symptoms of obsessive-compulsive personality disorder and narcissistic personality disorder giving rise to a pervasive pattern of grandiosity, a need for admiration, a sense of entitlement, interpersonally exploitative behaviour, a lack of empathy, and arrogant behaviours or attitudes. The judge accepted that, at least in a limited way, limbs 5 and 6 of Verdins were relevant in that the respondent might find incarceration more burdensome by reason of his mental condition, which itself might be exacerbated by his incarceration.[48]
[48]Reasons, [72], [59], [63].
Even taking into account the matters in mitigation, the sentences on the rape charges are, in our respectful opinion, manifestly inadequate and, subject to the residual discretion, the appeal must be allowed and the respondent re-sentenced.

The residual discretion

The respondent submits that the DPP has not discharged her onus in establishing that the residual discretion should not be exercised. The applicable principles were summarised by this Court in DPP v Browne.[49]
[49][2023] VSCA 13, [70] (Kyrou, T Forrest and Kennedy JJA).
We have set out above the six matters on which the respondent relies as going to the residual discretion. In our opinion, there is no sound basis to apply the residual discretion in this case.
First, although the prosecutor did not give a great deal of assistance to the sentencing judge, including by drawing to the attention of the Court any relevant cases which might illuminate the sentencing exercise, nevertheless this is not a case where the prosecutor led the judge into error or failed to assist her in a way that may have avoided it.
It is to be noted that the ground of appeal is manifest inadequacy. There is no attack on the basis of attributing any specific error to the judge. Indeed, the judge took all of the relevant matters into account and gave conscientious consideration to them. The failure to refer to other cases was not very significant for two reasons. First, the respondent’s counsel in his written submissions on sentence had referred the judge to a sentencing snapshot and to two cases from the County Court that the judge was told may provide assistance.[50] In Sheppard, which was a plea of guilty and included a serious example of rape constituted by the penetration of the victim’s mouth by the offender’s penis and multiple other offences of assault and threat to kill, the offending resulted in a total effective sentence of 9 years and 3 months.[51] The rape offence attracted a sentence of 7 years.[52] In Stamper, the offender pleaded guilty to two rapes and other offences of violence in a domestic relationship setting. One of the rape charges resulted in a sentence of 6 years and 3 months.[53] Those sentences are substantially higher than the sentences passed for the rapes in this case. Second, counsel for the respondent made express reference in his submissions on sentence to totality and double punishment. The prosecutor said he did not take any issue with ‘much’ in those submissions. To the extent that there was any reference to other cases, which are in any event not precedents, they did not support a sentence of 3 years on the rape charges.
[50]DPP v Sheppard(a pseudonym) [2021] VCC 1587 (‘Sheppard’); DPP vStamper (a pseudonym) [2021] VCC 770 (‘Stamper’).
[51]Sheppard [2021] VCC 1587, [100] (Judge Hannebery).
[52]Ibid [97].
[53]Stamper [2021] VCC 770, [46] (Judge Higham).
The respondent also contends that the DPP changed her position on the appeal by arguing that the sentencing judge must have placed too much emphasis on totality where the prosecutor raised no issue with the respondent’s submissions on totality on the plea, amounting to unfair conduct. The respondent relevantly submitted on the plea that there was a significant overlap between the circumstances of the charges, that significant orders for concurrency were appropriate and that the Court must be cautious to avoid double punishment. There is no inconsistency between the DPP acceding to those submissions but subsequently arguing that, in the exercise of the sentencing discretion, too much weight must ultimately have been placed on totality.
As to the second matter on which the respondent relies in relation to the residual discretion, the fact that no point of principle is raised is relevant but not significant in this case. It may be accepted that the primary purpose of a DPP appeal is ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’.[54] However, it does not follow that the absence of a point of principle is, at least by itself, grounds for exercising the Court’s residual discretion.
[54]Greenv The Queen (2011) 244 CLR 462, 465–6 [1], 477–8 [36] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49, quoting Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ); [1977] HCA 44.
Third, even if it were accepted that the evidence of Ms Fleming supported the application of limbs 1, 3 and 4 of Verdins on the basis of a causal connection between the respondent’s conditions and the offending, that would not justify the exercise of the residual discretion. The respondent did not mount that argument to the sentencing judge. And, even allowing limbs 1, 3 and 4 of Verdins, the sentences on the rape charges would still be manifestly inadequate.
As it happens, we do not accept that the evidence of Ms Fleming is sufficient to establish the application of limbs 1, 3 and 4 of Verdins.
In her report dated 29 March 2023, Ms Fleming noted a past diagnosis of major depression and PTSD. In a mental state examination, the respondent presented as labile in mood, becoming frustrated, teary and anxious, and Ms Fleming perceived a sense of hopelessness with an elevated risk due to his history of self-harm and suicidal ideation in response to life stressors.
Having conducted some psychometric testing, Ms Fleming reported ‘clinical elevations’ on several ‘clinical syndrome scales’, namely generalised anxiety disorder, persistent depression, PTSD, schizophrenic spectrum and major depression. She also noted elevations on the ‘personality pattern profiles’ indicating the stabilised narcissistic, compulsive, melancholic, negativistic, borderline and paranoid personality patterns. Ms Fleming considered the number of elevations to be unusual, indicating that the respondent was experiencing a personality disorder with traits of obsessive compulsive and narcissistic personality disorder and PTSD.
In Ms Fleming’s opinion, the respondent’s emotional development was compromised by his traumatic experience of sexual abuse as a child. Ms Fleming said that:
[h]is PTSD symptoms are relevant to the offending; they can fluctuate in intensity and frequency, however, are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues or substance use. Emotional dysregulation impairs problem solving and healthy information processing, and can lead to an increase in negative emotions and a decrease in prosocial responses.[55]
[55]Citations omitted.
Ms Fleming considered that the respondent’s poor interpersonal functioning arose from a difficult personality structure, meaning that he was more likely to react impulsively and recklessly, such as at the time of offending.
Ms Fleming concluded that the respondent had a moderate to high risk of general recidivism and would benefit from specific treatment which, she opined, he was unlikely to receive in a prison setting.
On the critical questions of whether the respondent was compromised by his mental condition at the time of the offending and whether his mental state contributed to the offending in a way which reduced his moral culpability, the evidence of Ms Fleming is unpersuasive. It is clear that the respondent displayed hostile, possessive and jealous behaviours towards AB. We are not persuaded that his conditions contributed to the offending to any appreciable extent in a manner that decreased his moral culpability.
The fourth point relied on by the respondent is that increasing his sentence may impede his rehabilitation. Both on the application of the residual discretion and for the purpose of the re-sentencing exercise, the respondent relied on some materials obtained during his period in prison which showed that he had been participating well in programs and had been well-behaved and making the most of his opportunities. The respondent also points out that there has been no further offending in the period of five years since the offences were committed. These matters are to the respondent’s credit. However, they do not justify the exercise of the residual discretion.
The fifth point relied on concerns the respondent’s poor physical health. The medical evidence on this aspect was fairly scant but it may be accepted that he obtained a diagnosis of osteoarthritis in 2021 and that there is some heightened genetic risk of cardiovascular disease. There is no basis for the Court to conclude other than that the respondent will be provided with adequate medical care in prison. The extent of the respondent’s poor health, while no doubt troubling for him, is not such as to justify the exercise of the residual discretion.
The final matter concerns the respondent’s father who is in deteriorating health. The respondent is aged in his fifties and it may be accepted that, during what will inevitably be a lengthy period of incarceration, there is a significant risk of a decline in his father’s health. Isolation from family and community is a major burden of imprisonment. Inevitably, prisoners will miss spending time with family and friends, which may be particularly burdensome in times of illness and other moments of significance. There is nothing particularly unusual about the respondent’s circumstances in this respect and they reflect the ordinary incidents of imprisonment.
Taken individually or in combination, none of the matters raised by the respondent justify the exercise of the residual discretion to dismiss the appeal.

Conclusion and re-sentence

Because the sentences on the rape charges are manifestly inadequate they must be set aside and the respondent re-sentenced. It will also be necessary to revisit the orders for cumulation and concurrency.
We have already explained our assessment of the gravity of the offending and the factors in mitigation. There are three other matters relevant to the re-sentencing exercise.
First, in one sense, the sentencing judge’s orders for cumulation currently treat each of the charges of rape relating to the second incident as equivalent to the rape charges relating to the first incident. However, because the second incident constituted a whole further episode, on one view 18 months’ cumulation is insufficient to address the additional criminality represented by that offending. Despite this, having regard to the principle of totality, we do not propose to disturb the sentencing judge’s orders for cumulation in respect of the rape charges relating to the second incident.
Second, the principal purposes relevant to the re-sentencing exercise are denunciation and the protection of the community, including through general and specific deterrence. Given the guarded prospects of rehabilitation, specific deterrence is a relevant consideration. Further, general deterrence is particularly important given the context of the respondent’s offending being violence committed in a domestic setting.
Third, the respondent was sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 17 and 18. As contended for by the DPP, he should only have been sentenced as a serious sexual offender in respect of charges 6, 10, 11, 12 and 13.[56] In relation to those charges, the Court must regard the protection of the community as the principal purpose for which the sentence is imposed.[57]
[56]Sentencing Act 1991, ss 6A, 6B (definition of ‘serious sexual offender’).
[57]Ibid s 6D(a).
In the result, we would impose a sentence of 6 years’ imprisonment on each of the rape charges. We would make charge 6 the base sentence. The issue of cumulation is not easy. As already observed, there was a significant overlap in the assault and false imprisonment charges and the rape charges, which calls for a very high degree of concurrency on the charges associated with the first three incidents. That is not the case with the fourth incident. In order to ensure that the overall sentence does not offend the principle of totality, we would adopt the orders for cumulation made by the judge. On the whole, they properly reflect the overall serious criminality involved and the high degree of moral culpability that must be attributed to the respondent.
Accordingly, we would re-sentence the respondent as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
*First incident – either 22 May or 30 May 2019*
1	Common assault [pushing down onto and holding on bed]	5 years	3 months	1 month
2	False imprisonment	10 years	6 months	2 months
3	Common assault [hands around neck/strangulation]	5 years	3 months	1 month
4	Rape [digital vaginal penetration]	25 years	6 years	6 months
5	Rape [lingual vaginal penetration]	25 years	6 years	6 months
6	Rape [penile vaginal penetration]	25 years	6 years	Base
*Second incident – between 23 and 24 June 2019*
7	Common assault [pushing down onto and holding on bed]	5 years	3 months	1 month
8	False imprisonment	10 years	6 months	2 months
9	Common assault [hands around neck/strangulation]	5 years	5 months	2 months
10	Rape [lingual vaginal penetration]	25 years	6 years	6 months
11	Rape [digital vaginal penetration]	25 years	6 years	6 months
12	Rape [penile vaginal penetration]	25 years	6 years	6 months
*Third incident – 5 July 2019*
13	Assault with intent to commit a sexual offence	15 years	18 months	6 months
15	False imprisonment	10 years	6 months	2 months
17	Common assault [hands around neck/strangulation]	5 years	6 months	2 months
*Fourth incident – 12 July 2019*
18	Common assault	5 years	2 years	12 months
Total Effective Sentence:		11 years and 1 month imprisonment
Non-Parole Period:		8 years
Section 6AAA Statement:		N/A
Other Relevant Orders: 1. The respondent will be sentenced as a serious sexual offender in respect of charges 6, 10, 11, 12 and 13. 2. All other orders of the County Court will be confirmed.

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[2024] VSCA 181

16 August 2024