Ji v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0095

JIANGANG JI	Applicant
v
THE KING	Respondent

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JUDGES:	ORR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2025
DATE OF JUDGMENT:	26 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 113
JUDGMENT APPEALED FROM:	[2023] VCC 2315 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Applicant intent on maximising revenge against former employer – Aggravated burglary, false imprisonment, kidnapping (2 charges), rape, sexual assault, common law assault and theft – 15 years’ imprisonment on rape – Total effective sentence 22 years’ imprisonment – Whether individual sentences and orders for cumulation manifestly excessive – Sentence on rape at higher end – Egregious, abhorrent and dehumanising offending – Objective gravity demanded lengthy sentence – Lack of remorse for sexual offending – High moral culpability – Leave to appeal granted – Appeal dismissed.

Russo v The King [2024] VSCA 291, discussed.

Bugmy v The Queen (2013) 249 CLR 571; Clarkson v The Queen (2011) 32 VR 361; Karam v The King [2024] VSCA 164; Lai v TheKing [2023] VSCA 151; R v Pham (2015) 256 CLR 550, R v Verdins (2007) 16 VR 269, referred to.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA
T FORREST JA:

The applicant was sentenced on 13 December 2023 in the County Court on a total of eight charges. He pleaded guilty to five of those charges and was found guilty by a jury on the other three. The sentence is set out in the table below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[1]	25 years	7 years	6 months
2	False imprisonment[2]	10 years	3 years	3 months
3	Kidnapping[3]	25 years	9 years	3 years
4	Kidnapping	25 years	9 years	3 years
5	Rape[4]	25 years	15 years	Base
6	Sexual assault[5]	10 years	3 years	3 months
7	Common law assault[6]	5 years	1 year and 2 months	-
8	Theft[7]	10 years	6 months	-
Total Effective Sentence:		22 years
Non-Parole Period:		15 years
Pre-sentence Detention Declared:		842 days
Section 6AAA Statement:		In relation to charges 1, 2, 3, 4 and 8: Total effective sentence 26 years and 6 months Non parole-period 19 years
Other Relevant Orders: 1. Forfeiture and disposal orders. 2. Declared a serious sexual offender on charge 6 pursuant to s 6F of the Sentencing Act 1991.

[1]Contrary to s 77 of the Crimes Act 1958.

[2]Contrary to common law.

[3]Contrary to s 63A of the Crimes Act 1958.

[4]Contrary to s 38(1) of the Crimes Act 1958.

[5]Contrary to s 40 of the Crimes Act 1958.

[6]Contrary to common law.

[7]Contrary to s 74(1) of the Crimes Act 1958.

Introduction

This is a very lengthy sentence and the applicant seeks leave to appeal against it on the following ground:
The individual sentences, the orders for cumulation resulting in the total effective sentence, and the non‑parole period, are manifestly excessive having regard, in particular, to:
(a)the applicant’s lack of any prior convictions;
(b)the applicant’s guardedly reasonable prospects of rehabilitation;
(c)the fact that the applicant’s depressive disorder meant that Verdins considerations attracted some weight; and
(d)the applicant’s pleas of guilty on charges 1, 2, 3, 4 and 8.
We have determined that the application for an extension of time should be granted,[8] as should the application for leave to appeal, but that the appeal should be dismissed. We shall set out our reasons for this.
[8]The application for leave to appeal was filed four months and 20 days out of time. In an affidavit filed in support of the application for an extension of time, the applicant’s solicitor attributed the delay to matters including difficulties in obtaining funding and delay in obtaining materials from the County Court.
It must immediately be observed that the individual sentences are all extremely high. With the orders for cumulation, this has resulted in a total effective sentence in a range that is normally reserved for offences such as murder and large drug importations. The sentence for rape of 15 years is one of the largest individual sentences imposed for that offence since the introduction of the standard sentence scheme in 2018.[9]
[9]See Sentencing Advisory Council, ‘Sentencing Snapshot: Sentencing Trends for Rape in the Higher Courts of Victoria 2017–18 to 2021–22’ (September 2023) 3.
In our view, the overall criminality exhibited by the applicant over the course of several hours was incompatible with ordinary standards of human decency and a very punitive sentence was inevitable.

Summary of facts

The applicant arrived from China on 8 November 2017 on a three month tourist visa. In breach of its terms, he worked and overstayed his welcome. For a time, he worked as a plasterer for ‘Mr W’, the owner of a construction company. The applicant at some stage carried out plastering at Mr W’s family home. Later, he developed a grievance against Mr W.
Mr W lived with his wife, ‘Ms A’, and two young children aged five and three in a Melbourne suburb. This family are all victims of the applicant’s criminality. On 23 August 2021 in the very early morning, the applicant drove his Toyota Camry to the victim’s home. He parked nearby and remained in the vehicle for about one hour. Ms A woke up at about 5:40 am and made Mr W breakfast. He left for work at about 6:30 am and Ms A returned to bed. The children were still asleep.
Immediately after Mr W left home, the applicant entered the house through an unlocked window (charge 1 — aggravated burglary). His intention was to assault the occupants of the home. He was carrying a knife.
The applicant secreted himself in the house for over an hour whilst the three occupants slept. At some stage, he stole the keys to Ms A’s Mercedes‑Benz. At about 8:00 am, the three year old child awoke. Her mother, after placing the child in front of a screen playing cartoons, returned back to bed. She was still recovering from a recent miscarriage. She became aware of a person looking at her; the applicant was partially obscured and she believed it was her husband, Mr W. She called out to this person, however did not receive a response. She got out of bed and went to leave her bedroom. The applicant, hooded and disguised, confronted her with a knife. Pausing there for a moment — had the events concluded at this stage, this would have been a very serious course of criminal conduct, on its face justifying a long prison term. Much worse, however, was to come.
The applicant pushed Ms A to the ground, using duct tape to tie her hands behind her back. Her ankles were also bound together. Her mouth was taped shut (charge 2 — false imprisonment). The children, both by now awake and alert, saw this and became distressed.
Ms A tried to comfort the children through the duct tape. Ms A’s face was then covered with plastic tape from the neck up so that she was not able to see. She begged the applicant not to touch her children. He said in English, ‘You give me money’. She then heard the applicant apparently speaking to a telephone interpreter service. She saw the light of the phone near her face and heard, what seemed to be a pre‑recorded voice say, ‘I want a million dollars — if you tell your husband to prepare a million dollars the children will be okay’. She replied, ‘okay’.
Ms A then broke the tape around her ankles but they were rebound.
The applicant bound the hands of the children and covered their eyes. They were carried individually to the complainant’s car. Ms A realised she could no longer hear her son crying. She asked her daughter about his whereabouts. She heard her daughter say, ‘Mummy’, before she, too, was carried away. Both children were locked in the boot of the Mercedes‑Benz.
The applicant returned his attention to Ms A. She remained bound and gagged. He carried her to her bed and placed her there. He pulled her pants and underwear down and her shirt up, exposing her breasts. Ms A tried to resist. The applicant tried to penetrate her with his penis twice but was unsuccessful. At some stage during this offending he held a knife to the complainant’s abdomen. He lacerated her abdomen over a distance of 11.5 cm (charge 7 — common assault). On the third attempt, the applicant was able to penetrate Ms A. He moved his penis in and out of her vagina (charge 5 — rape). He filmed part of this activity on his phone. Whilst so engaged, he squeezed Ms A’s breasts with some force (charge 6 — sexual assault).
The applicant took a photo of Ms A in her near‑naked state. He also took a video during the sexual offending.
Ms A was unable to say whether the applicant ejaculated, but she thought the act of penetration took between one and three minutes.
The applicant then pulled Ms A’s pants up and pulled her shirt back down.
After a time, Ms A rubbed her eyes and could see light through her blindfold. Still bound, she dropped herself to the floor. The ensuing silence suggested to her that the house was now empty. She somehow managed to partially remove her bindings and make her way out onto the street. She saw that the gate was open and the Mercedes‑Benz was gone. The applicant had driven the car away, with the children, still bound and gagged, in the boot (charge 8 — theft; charges 3 and 4 — kidnapping).
Ms A attracted the attention of a passer‑by. After some little time, the police were called. Ms A was very distressed, saying in Mandarin repeatedly, ‘He took my kids’.
At about this time, Mr W received a phone call apparently from his wife. When he answered it, an unknown voice said, ‘We need one million’, before disconnecting. It was ascertained subsequently that the applicant had stolen the SIM card from Ms A’s iPhone and inserted it into his phone so as to effect this ransom demand.
When the police arrived, the victim’s hands were still tied behind her back and she had tape across her mouth. It is surprising and disappointing that no member of the public had assisted her to remove those bonds; perhaps they were trying to preserve the evidence. Ms A was in a distressed state and saying, ‘My baby, my two [babies], someone has taken them’. She gave police the registration details of her car, and police also identified the Toyota Camry that remained parked nearby as foreign to the area.
Meanwhile, the applicant had taken the children, in the boot of the stolen Mercedes‑Benz, to his home in Mitcham. He took them inside the house, removed their bindings, put them in a room, and locked the door. He left them for at least four hours.
Police tracked the applicant to his home. At 6:42 pm, he was seen walking from his driveway to an adjacent public carpark where he got into the stolen Mercedes‑Benz. He drove it into his driveway. At about 7:05 pm, police observed him endeavouring to move the Mercedes‑Benz. The children were seen to be in the back seat. He was arrested and the children were released, physically unharmed.
Upon interview, the applicant admitted that he had broken into the house and kidnapped the children. He denied raping or sexually assaulting Ms A. He told police that he had been treated poorly by Mr W and that he had committed the kidnapping offences and the associated illegal entry as acts of revenge. He said he treated the children well and intended to return them. When told his semen had been found on Ms A’s bed, he said that he had undressed Ms A, and seeing her naked had caused him to ejaculate into his pants which he wiped on the bed. He said he wanted to take photos of her naked state to try and ensure that her and her husband would not go to the police.

The plea hearing

Applicant’s submissions on the plea

In summary, the following was submitted on the applicant’s behalf:
(a)he was (as at December 2022) 38 years old;
(b)he has both parents and two younger sisters, all still residing in China;
(c)he has a wife and two children, all still residing in China. The children are aged 15 years (daughter) and 5 years (son). He has never met his son;
(d)he came to Australia in 2017 on a 3‑month tourist visa;
(e)he worked in factories and construction, ultimately being employed by Mr W;
(f)he described Mr W as coercing him to continue working for him, despite the ‘abusive circumstances of that employment’;
(g)he had little social contact in Australia and experienced loneliness and depression, aggravated by his deteriorating relationship with Mr W;
(h)he is remorseful for the offending the subject of his guilty pleas;
(i)he was the subject of a 20‑month delay from offending to trial;
(j)he experienced significant hardship during his time in custody; and
(k)he suffers from debilitating back pain, the result of a motor accident and a work accident.
The applicant disputed on the plea that the video (referred to in [15] of these reasons) depicts an act of penetration or attempted penetration. We observe that this dispute, resolved by the judge against the applicant,[10] is not pursued in this application.
[10]Reasons, [15].
The applicant also relied on his past good character and a reference from a friend.
It was submitted that: the sentencing considerations of punishment and denunciation were relevant and that there was ‘little need for specific deterrence’; the applicant had exhibited some remorse and insight into his offending and was a low risk of reoffending; and that ‘general deterrence [had] a role to play but … this should be moderated in light of the degree of impairment [the applicant] suffered at the time of the offending’.

Psychological report — Ms Lisa Jackson

The applicant relied on a report from a psychologist, Ms Lisa Jackson. It was her opinion that a combination of isolation from his family, loneliness and his relationship with Mr W led to a significant deterioration in the applicant’s mental health.[11] She stated that he gave a history of pre‑existing depression.[12] The deterioration in his mental health was such that the ‘court might consider evidence of impaired mental functioning at the time of the offence’.[13] She considered the applicant to exhibit remorse and insight into his offending,[14] although she did not appear to have regard to the fact that he continued to deny the sexual offending. She offered the opinion that his risk of reoffending is low.[15]

Psychological report — Professor Troy McEwan

[11]Report by Ms Lisa Jackson, Psychologist, dated 13 July 2023, [24]–[25] (‘Ms Jackson’s report’).

[12]Ms Jackson’s report, [24].

[13]Ibid [26].

[14]Ibid [21], [27], [29].

[15]Ibid [29].

Due to inadequate testing in Ms Jackson’s report, applicant’s counsel requested that the court order a further psychological report. The judge made that order and a report was prepared by Forensicare’s senior clinical and forensic psychologist, Professor Troy McEwan.[16] Again, the applicant admitted to Professor McEwan that he had engaged in the conduct relating to the aggravated burglary, false imprisonment and kidnapping offences, but denied the sexual offending.[17] Professor McEwan felt constrained by the combination of an interpreted interview and a lack of detailed collateral information and expressed caution at expressing any diagnosis concerning personality disorders.[18] Notwithstanding this, he opined that there was nothing to suggest a diagnosis of a severe personality disorder.[19]
[16]Forensicare report by Professor Troy McEwan, Senior Clinical and Forensic psychologist, dated 18 September 2023 (‘Professor McEwan’s report’).
[17]Ibid [41]–[42].
[18]Ibid [59].
[19]Ibid [59].
Professor McEwan considered that the applicant suffered from a single episode depressive disorder of at least moderate severity, coinciding with his loss of job and accommodation in 2021.[20] In the absence of collateral information from personal associates, he noted that his opinion was solely based on the applicant’s self‑report.[21] He also considered that given the applicant’s language difficulties and his almost total isolation in custody, there were potentially negative implications for his mental state.[22]
[20]Ibid [60].
[21]Ibid [60].
[22]Ibid [67].
Professor McEwan considered that the depressive episode ‘played a contributory but not [causal] role in the offending’.[23]

Prosecution’s submissions on the plea

[23]Ibid [70].

The prosecution’s submissions on the plea focused on the following:[24]
[24]This is not an exhaustive summary.
(a)the offence of aggravated burglary was committed when the applicant entered through an unlocked side window, possessing a knife and intent upon assaulting the occupants of the private home;
(b)the false imprisonment involved subduing Ms A with a knife, binding her hands and legs, taping her mouth shut and subsequently covering her entire face;
(c)the children became distressed, were bound and carried away, thus constituting the kidnapping charges;
(d)the sexual offending, constituted by rape and sexual assault, were committed at knifepoint or while the knife was in the near vicinity. Ms A suffered a laceration to her abdomen and a small genital injury as a result of the offending;
(e)the victim impact statements speak of profound impacts upon all victims;
(f)the legislative scheme[25] that must be applied in sentencing, including the provisions that make rape a standard sentence offence and the serious offender regime;
(g)the criminality in this case ‘is extremely serious’ and ‘of the upmost seriousness’;
(h)the applicant has a demonstrable lack of insight and remorse;
(i)general deterrence, just punishment and denunciation are all relevant sentencing considerations because of the ‘revenge’ motivation. Community protection also assumes some significance; and
(j)given that the offending involved three separate victims, orders for some cumulation are appropriate.
[25]Including Sentencing Act 1991, ss 5(2G), 5A(1)(a), 11A(1)(b), 11A(4)(c) and 11A(5)(b).

Reasons for sentence

Gravity, moral culpability, traumatic impact and lack of remorse

After summarising the offending,[26] the judge made the following observations:
[26]Reasons, [6]–[34].
(a)the applicant’s offending was ‘most serious’, ‘egregious and abhorrent’ and must be ‘strongly denounced’;[27]
[27]Ibid [35], [40].
(b)the aggravated burglary, kidnapping of both children, false imprisonment and rape were ‘very serious examples of each of these offences’, with the kidnappings lasting around 11 hours;[28]
[28]Ibid [35]–[36].
(c)the applicant was ‘intent on maximising … revenge against Mr W’, had planned and calculated the aggravated burglary, false imprisonment and kidnappings, and the sexual offending and common assault against Ms A were committed in that context;[29]
(d)the rape of Ms A was ‘cruel and dehumanising, committed against a victim who was aware that [he] had her children’ in addition to rendering her defenceless by physically restraining her with bindings;[30]
(e)the applicant’s moral culpability for the rape was further heightened by taking intimate photographs of the victim;
(f)the applicant ‘used the knife … to scare the victims into submission’, bound the very young children’s hands and taped their eyes, placed them in the car boot when they were already distressed, and left them without any adult supervision for around 4 hours;
(g)the offending had a traumatic effect on the victims, as seen in Mr W’s victim impact statement, which detailed how the family suffered ‘devastating, horrible memories they will never forget’.[31] Both Mr W and Ms A suffered sleepless nights and felt unsafe, and the children were ‘truly terrified’. The family subsequently moved to a new house and sold their car below value;
(h)the applicant had ‘plenty of time to terminate [his] offending, but … failed to do this’;[32] and
(i)while he had made some admissions and exhibited a level of cooperation with police, the applicant denied the sexual offences against Ms A, and ‘[had] no remorse’ for these offences.[33]

Mitigating factors

[29]Ibid [36], [38].

[30]Ibid [43].

[31]Ibid [50].

[32]Ibid [36].

[33]Ibid [107].

In considering factors in mitigation, the judge had regard to the applicant’s:
(a)personal circumstances, including his financial hardship, separation from his family in China and the absence of prior convictions;
(b)strong work ethic and work history;
(c)absence of drug use, although the applicant conceded drinking larger amounts of alcohol in the week before the offending to manage his low mood;
(d)perceived mistreatment by his former employer, Mr W, as reported by Professor McEwan;[34]
[34]Professor McEwan’s report, [21].
(e)physical injuries which impacted his ability to work;
(f)depressive disorder and impaired mental function, which were operative at the time of offending, however, the applicant was still able to ‘reason and act deliberately’.[35] The judge, therefore, considered that the applicant’s mental impairment had minimal effect on reducing his moral culpability and on limiting the requirement for just punishment and general deterrence;[36]
[35]Reasons, [99]. Professor McEwan determined that the applicant had a single depressive episode at the time of offending which contributed to — but did not cause — the offending: Professor McEwan’s report, [65], [70]. Psychologist Ms Lisa Jackson reported that the applicant had a persistent depressive disorder which ‘might’ indicate impaired mental functioning at the time of offending: Ms Jackson’s report, [13], [15].
[36]Reasons, [99].
(g)early guilty plea to the aggravated burglary, false imprisonment, kidnappings and theft, the utilitarian benefit of these early pleas and ‘some remorse’, however the same was not applicable to the offences against Ms A;
(h)hardship in custody due to the absence of family or friends in Australia, his inability to see his children, his concerns that he may not see his parents before their passing, language barriers and his existing medical conditions, including the depressive symptoms. The judge also observed the additional isolation of being in custody during COVID‑19;
(i)suicidal attempts after being arrested;[37]
(j)anxiety in relation to the ‘significant delay’ in having the trial heard;
(k)character references from his wife, daughter and colleague, and their ongoing support, although the judge noted concerns that the referees were not aware of some aspects of the offending;
(l)low risk of reoffending reported by Ms Jackson, although the judge observed this was not based on a psychological assessment but was based on the remorse expressed by the applicant and did not consider his denial of the sexual offending against Ms A;[38] and
(m)‘relatively lower risk of interpersonal violence … than other men with a history of violent offending’, as assessed by Professor McEwan (where violence in this assessment included sexual violence).[39]

Prospects of rehabilitation, specific deterrence and community protection

[37]Ms Jackson’s report, [16], [27].

[38]Ibid [72].

[39]Professor McEwan’s report, [72].

The judge considered the applicant’s prospects of rehabilitation to be ‘guardedly’ reasonable. Given the seriousness of the offending and the level of insight and remorse, moderate weight was required to be given to specific deterrence and community protection.

General deterrence, denunciation and just punishment

Her Honour determined that strong weight was required to be given to general deterrence ‘to deter others from behaving as [the applicant] [had]’, having considered the applicant’s moral culpability and after making a marginal Verdins allowance.[40] The judge also determined that just punishment and denunciation demanded strong weight.

Sentencing practice

[40]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’); Reasons, [115].

The judge observed that ‘sentencing practice is but one consideration and not a controlling one’.[41] Her Honour agreed with the prosecution’s submission that the rape ‘[was] a very serious example of that offence’ and above mid‑range given the circumstances, and that the applicant was to be declared as a serious sexual offender.[42]
[41]Reasons, [116].
[42]Ibid [118].
The judge determined that it was not in the interests of justice to impose a non‑parole period of less than 60 per cent of the total effective sentence.[43]
[43]Pursuant to s 11A(4)(c) of the Sentencing Act 1991.

This application

Applicant’s submissions

The applicant does not endeavour to identify specific error. Rather, he contends that when examined objectively, the individual sentences, particularly on the charge of rape, are manifestly excessive, as are the orders for cumulation. He contends that this has resulted in a total effective sentence that is beyond the range of sentences reasonably available to the judge in the exercise of her sentencing discretion.
This Court regularly observes that manifest excess grounds are difficult to establish.[44] The impugned sentence or sentences must be ‘wholly outside the range of sentencing options available’.[45] In the absence of specific error, the sentence itself must bespeak some underlying error of principle in the exercise of the sentencing discretion.[46] The Court must be compelled to conclude that there must have been some misapplication of principle.[47]
[44]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[45]Ibid.
[46]Karam v The King [2024] VSCA 164, [30] (T Forrest JA); Lai v TheKing [2023] VSCA 151, [16] (T Forrest and Osborn JJA).
[47]R v Pham (2015) 256 CLR 550, 559–60 [28] (French CJ, Keane and Nettle JJ, Bell and Gageler JJ agreeing at 563 [41]); [2015] HCA 39.
The applicant sought to meet this stringent requirement by relying on the following combination of considerations:
(a)the applicant pleaded guilty to all charges but the sexual charges (charges 5, 6 and 7). He had admitted the charges other than the sexual charges in his police interview. The sentencing judge found that he had ‘some remorse’ with respect to these charges;
(b)the applicant had no prior convictions;
(c)the judge assessed the applicant’s prospects for rehabilitation as being ‘guardedly reasonable’;
(d)only moderate weight was required to be given to specific deterrence;
(e)the applicant will experience hardship from his isolation in custody due to his very limited English, his family being located in China and his concern about his separation from them;
(f)the judge accepted, based on Professor McEwan’s report, that at the time of the offending, the applicant had been suffering from a:
moderate to severe depressive episode, in the context of holding overvalued beliefs about Mr W, and that such impairment contributed to [the applicant’s] ability to make rational and appropriate judgements.[48]
Given this statement, the applicant observed that the sentencing judge made a ‘minimal reduction in respect of [the applicant’s] moral culpability and the weight that would otherwise attach to just punishment and general deterrence’;[49]
(g)whilst the sentencing judge stated that she had made ‘some allowance’ for the potential for the applicant’s mental health to decline in a future custodial setting, this is not reflected in the sentence imposed;
(h)the principle of totality is not reflected in the sentences imposed and particularly in the orders for cumulation;
(i)the judge did not find that the rape was pre‑mediated. Further, there is no evidence that the applicant ejaculated inside Ms A, and he could not be sentenced on the basis that he failed to wear a condom during the penetration; and
(j)the sentence for the rape is 50 per cent greater than the standard sentence for that offence and 60 per cent of the maximum sentence. For a first‑time offender, notwithstanding the obvious factors in aggravation, this is manifestly excessive. It is at the ‘extreme upper end’ of sentences imposed for rape and is one of the highest since the standard sentence for rape was introduced.

Respondent’s submissions

[48]Professor McEwan’s report, [62]; Reasons, [99].

[49]Reasons, [99].

The respondent’s submissions in this application were similar to those raised on the plea, with an emphasis on the egregious nature of the offending.[50]
[50]See [33] of these reasons.

Consideration

Under normal circumstances, factors in mitigation such as those identified on the applicant’s behalf would combine to command real weight in the sentencing calculus. In this case, however, we consider the objective gravity of the offending to be sufficiently great as to demand lengthy sentences and substantial cumulation. Whilst each individual offence may not breach ‘worst case’ territory, the adjectives ascribed to the overall offending by the sentencing judge, such as ‘egregious’, ‘abhorrent’, ‘cruel’ and ‘dehumanising’, are entirely appropriate.[51] There was little scope for the mitigating factors to gain much emphasis in the individual sentences imposed or in the orders for cumulation.
[51]Reasons, [40], [43].
Counsel for the applicant, in careful oral submissions, focused on the sentence for rape of 15 years’ imprisonment. This, he submitted, was an outlier; greater than any sentence for this offence since the introduction of the standard sentencing scheme in February 2018. The facts in this case were compared to Russo[52] in which this Court dismissed a sentence appeal in another dreadful example of sexual offending.
[52]Russo v The King [2024] VSCA 291 (‘Russo’).
The offender in Russo was an intellectually disabled 25‑year‑old man who pleaded guilty to two charges of rape, four charges of sexual assault,[53] one charge of conduct endangering a person, and attempted robbery. In brief compass, he stalked and grabbed his 25‑year‑old female victim on the Merri Creek trail. She was unknown to him. He dragged her into the creek, pushed her head under the surface for about 30 seconds, and then raped her, first with his penis and then digitally. He then raped her with his penis again and partially inserted his fingers while doing so. He licked her vagina and poked a muddy stick at it. He pulled her from the water into bushes, made her bend over and his penis touched, but did not penetrate, her anus. He then inserted his penis into her vagina again. During a lot of this sexual activity, the victim feigned compliance in order to survive. The offending took around 2.5 hours.[54]
[53]One of which was sexual assault by compelling sexual touching.
[54]Russo [2024] VSCA 291, [6]–[16] (Priest and T Forrest JJA).
In Russo, charge 2 (rape) involved three separate penetrations by penis and charge 3 (rape) involved two separate digital penetrations. Russo was sentenced to 14 years’ imprisonment on charge 2 (the base sentence) and 12 years’ imprisonment on charge 3 with 2 years cumulated upon the base. Other sentences on the less serious offences together with orders for cumulation resulted in a total effective of 20 years and 4 months’ imprisonment with a non‑parole period of 17 years.[55] The sentences and orders for cumulation were upheld on appeal.[56]
[55]Ibid [3] (Priest and T Forrest JJA).
[56]Ibid [42]–[43], [56]–[57] (Priest and T Forrest JJA).
The applicant in the present appeal — whilst accepting the limitations that came with Russo being simply one example of sentencing in a very serious case — contended that the offending was objectively more grave in Russo than in the present case, and the offender received a lesser sentence for the penile rapes.
In discussion, we indicated that there were significant differences between the two cases, and that we considered the overall circumstances of the present case to be no less grave than Russo. In particular, we refer to the following circumstances of the rape in the present case that led us to this conclusion:
(a)the applicant was motivated by revenge against the victim’s husband;
(b)the applicant waited outside the victim’s house until her husband left. The victim was asleep when the applicant entered the house, armed with a knife;
(c)the applicant disguised himself by darkening his skin;
(d)the applicant bound and gagged the victim;
(e)the applicant played a recording to the victim demanding a million dollar ransom and said that if she complied, ‘the children will be ok’;
(f)the victim’s children witnessed their mother being bound and gagged and began to cry;
(g)the victim begged the applicant not to harm her children;
(h)the applicant taped over the victim’s eyes;
(i)the victim’s children were taken away. The victim was not aware that they were locked in the boot of her car; she was aware, however, that this man who had made a ransom demand had carried away her distressed children and now proposed to rape her;
(j)the applicant placed the victim on the bed and partially removed her clothing. He tried to penetrate her vagina with his penis but was unsuccessful. He achieved penetration for between 1–3 minutes on the third attempt;
(k)the victim had recently had a miscarriage and sexual penetration was painful;
(l)while raping the victim, the applicant took a photograph of her naked body. He also videoed his attempted or actual penetration. Although the timing of the video was disputed on the plea, the sentencing judge was satisfied beyond reasonable doubt that the video was taken during a penetrative (or attempted penetrative) act and that the photo was taken to ensure that the victim and her husband would not report the matter to the police;[57] and
(m)during this episode, the applicant possessed and used the knife to achieve his way. He lacerated the victim’s abdomen.
[57]Reasons, [15], [34],
There were other circumstances of aggravation pertaining to the kidnapping of the children (who were detained for 11 hours), although they are not relevant to the rape charge. We regard the rape of Ms A — in circumstances where she was confronted by an armed intruder who demanded (in effect) a ransom of $1 million, bound and blindfolded her, took her highly distressed children away, and only then returned to rape her — as an act of extraordinary cruelty. Obviously, the judge needed to be careful to avoid double punishment where the facts in aggravation were also the subject of standalone counts, but no point is taken to this effect on this application.
There were other factors of dissimilarity between Russo and the applicant.[58] The offender in Russo had an appalling childhood and a significant mental impairment.[59] The principles from both Verdins[60] and Bugmy[61] were engaged, although their full impact was mitigated by the need for community protection. Russo also pleaded guilty and his victim was spared the ordeal of cross‑examination. In contrast, the applicant in this case pleaded not guilty to the rape and sexual assault charges. The victim was subjected to cross‑examination at both the committal and the trial.
[58]Russo [2024] VSCA 291.
[59]Ibid [24] (Priest and T Forrest JJA).
[60]Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[61]Bugmy v The Queen (2013) 249 CLR 571, 595 [45] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
We should also observe that Russo was an application for leave to appeal against sentence. All that was relevantly determined by the court in that case was that the sentences of 14 years’ imprisonment and 12 years’ imprisonment for the two charges of rape were within the range of sentences reasonably available to the judge. That case said nothing about the upper and lower limits of that range. Furthermore, while past comparable cases may indicate a range of sentences that have been imposed in similar matters, that range does not ‘fix the boundaries’ for exercising the sentencing discretion.[62]
[62]R v Kilic (2016) 259 CLR 256, 267–8 [22] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48. See also DPP (Vic) v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, Ashley JA agreeing at 206 [71], Redlich JA agreeing at 206 [72]); [2007] VSCA 129.
Given the dreadful objective circumstances of the offending, notions of general deterrence, just punishment and denunciation had to assume ‘strong weight’ in the sentencing mix, as the judge correctly observed, after making some marginal allowance for Verdins principles.[63] We agree with the judge that the rape was a very serious example of that offence. We further agree that specific deterrence and protection of the community ought command only moderate weight given the applicant’s lack of prior convictions and ‘guardedly reasonable’ prospects for rehabilitation. We have set out the mitigating factors considered by her Honour at [35] of these reasons, however, given the powerful countervailing factors, they could offer relatively little support for the applicant’s cause.
[63]Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
These are stern sentences and we shall allow leave to appeal but dismiss the appeal. The applicant has failed to establish that the individual sentences and/or the orders for cumulation are wholly beyond the range of sentences open to the judge in the appropriate exercise of her sentencing discretion.
Like her Honour, we have cast a last look at the total effective sentence as required by the principle of totality. We consider that the total effective sentence and the non‑parole period are just and appropriate considering the egregious overall criminality of the behaviour.

Conclusion

Leave to appeal is granted. The appeal is dismissed.
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[2025] VSCA 113

26 May 2025