Vassallo v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0180

JOSHUA VASSALLO	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2025
DATE OF JUDGMENT:	14 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 7 (First revision (18 February 2025): paras [108] & [111])
JUDGMENT APPEALED FROM:	DPP v Vassallo [2023] VCC 1591 (Judge Syme)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to rape (two charges), false imprisonment (two charges), supplying drug of dependence to a child, kidnapping, conduct endangering person, common assault, and attempting to pervert course of justice – Total effective sentence of 22 years’ imprisonment with non-parole period of 14 years – Whether sentence and non-parole period manifestly excessive – Relative youth at time of offending – Pleas of guilty – Appeal allowed.

Sentencing Act 1991, s 5A.

Azzopardi v The Queen (2011) 35 VR 43; Bugmy v The Queen (2013) 249 CLR 571; Postiglione v The Queen (1996) 189 CLR 295; DPP v Grabovac [1998] 1 VR 664; DPP (Cth) v MHK (a pseudonym) (2017) 52 VR 272; DPP v Lawrence (2004) 10 VR 125, considered.

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Counsel
Applicant:		Mr T Marsh
Respondent:		Mr D Glynn
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

On 11 August 2023, the applicant pleaded guilty, in the County Court, to nine charges that were contained in three separate indictments. The first indictment (Indictment L12782183.3) contained two charges of rape, one charge of false imprisonment and one charge of supply a drug of dependence to a child. The second indictment (Indictment N12197319) contained one charge each of kidnapping, false imprisonment, conduct endangering persons and common assault. The third indictment (Indictment P10696954) contained one charge of attempt to pervert the course of justice.
After a plea presented on behalf of the applicant, on 8 September 2023 he was sentenced to a total effective sentence of 22 years’ imprisonment, with a non-parole period of 14 years. That sentence was constituted as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment L12782183.3
1	Rape (contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016)	25 years’ imprisonment	10 years’ imprisonment	4 years
2	False imprisonment (contrary to Common Law)	10 years’ imprisonment	2 years	6 months
3	Supply a drug of dependence to a child (contrary to s 71B(1) of the Drugs, Poisons and Controlled Substances Act 1981)	15 years’ imprisonment or 1000 penalty units	3 years’ imprisonment	1 year 6 months
4	Rape (contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016)	25 years’ imprisonment	12 years	Base
Total Effective Sentence Indictment L12782183.3		18 years’ imprisonment

Indictment N12197319
1	Kidnapping (contrary to Common Law)	25 years’ imprisonment	3 years 6 months’ imprisonment	2 years
2	False imprisonment (contrary to Common Law)	10 years’ imprisonment	2 years’ imprisonment	-
3	Conduct endangering persons (contrary to s 23 of the Crimes Act 1958)	5 years’ imprisonment	2 years 6 months’ imprisonment	6 months
4	Common assault (contrary to Common Law)	5 years’ imprisonment	2 years	-
Cumulation ordered on the sentence imposed on Indictment L12782183.3		2 years 6 months

Indictment P10696954

Attempt to pervert the course of justice

(contrary to Common Law)

25 years’

imprisonment

4 years’

imprisonment

1 year 6 months

Cumulation ordered on the sentence imposed on

Indictment L12782183.3

1 year 6 months

Global Total Effective Sentence	22 years’ imprisonment
Non-ParolePeriod:	14 years
Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	Nil
Section6AAAStatement:	27 years’ imprisonment with a non-parole period of 18 years
Otherrelevantorders:	Sex offender registration order (against Indictment L12782183.3) Disposal order (against Indictment P10696954)

The applicant seeks leave to appeal against sentence on two grounds, namely:
Ground 1:
The total effective sentence and non-parole period are manifestly excessive.
Ground 2:
The sentence imposed offends the principle of totality.

Circumstances of offending

Indictment L12782183.3 (first indictment)

At approximately 1:00 am on 13 January 2019, the applicant (who was then 22 years and 9 months of age) picked up Kylee Stearns (‘Stearns’),[1] who was then aged 14 years, from her family home. The applicant had previously met Stearns through a family member. Before the applicant picked Stearns up, she had messaged him, to ask her to pick her up from her home to take her to McDonald’s. After Stearns entered the vehicle, the applicant drove around for about ten minutes, before parking the vehicle near a reserve in Point Cook.
[1]A pseudonym.
When the vehicle was stationary, Stearns asked the applicant to drive her home. The applicant responded, ‘Not until you suck my dick, you’re not leaving’. Stearns responded ‘No’, and attempted to unlock the door by reaching for the centre console controls. However, the applicant grabbed her hand and pushed it away. When Stearns unlocked the back door of the vehicle and tried to get out, the applicant grabbed her by her ankles and pulled her onto the back seat. Stearns continued to try to get out of the vehicle and she yelled at the applicant to stop, while the applicant kissed her neck, grabbed her breasts, slapped her buttocks, and rubbed her vagina over her underwear (this conduct constituted uncharged acts).
The applicant then got on top of Stearns, and penetrated her mouth with his penis, causing her to choke. That conduct continued until the applicant ejaculated (charge 1: rape). The applicant then wound the window down a little to enable Stearns to spit the ejaculate out. Stearns was screaming as she tried to lower the window further so that she could climb out of the vehicle, but the applicant pulled her back inside the vehicle (charge 2: false imprisonment). Stearns asked the applicant to drive her home. As the applicant moved from the back seat to the driver’s seat, she opened the back door of the vehicle, and ran towards her home. When she arrived home, she told her parents that she had just been ‘to Maccas’. Later that day, she told her niece and her mother about some of the events that had occurred that morning. On 14 January, Stearns reported the matter to the police.
Charges 3 and 4 on the first indictment concerned an incident that occurred on 22 November 2020. On that date, the applicant picked up Frances Perez (‘Perez’)[2] and Mila Godwin (‘Godwin’)[3] from a hotel in Port Melbourne. Perez was then aged 15 years, and Godwin was 16 years of age. The applicant had, earlier that month, met Perez through mutual friends, and they had exchanged messages through social media platforms and on the telephone. During that messaging, the applicant had offered Perez money to ‘do things’. He offered her $3,000 for oral sex, and Perez responded that she did not need the money, as she was aged 15 years.
[2]A pseudonym.
[3]A pseudonym.
After the applicant had picked up Perez and Godwin at the hotel, they noticed that there was a lot of money and the drug ‘GHB’ in the centre console of the vehicle. The applicant asked them if they ‘wanted juice’. Godwin declined, but Perez asked what GHB was. The applicant told her that it would make her feel ‘really happy’. He used a plastic plunger to extract GHB from a hand sanitiser bottle before giving it to Perez, who swallowed the contents (part of charge 3: supply drug of dependence to a child (rolled up charge)). The applicant then obtained more GHB after driving through Sunshine and Footscray. He gave Perez at least one more plunger of the substance, and he also gave a plunger of it to Godwin (part of charge 3), before dropping off Godwin at her friend’s house in Taylors Lakes. Perez then moved into the front passenger seat of the vehicle.
The applicant then drove Perez to a car-park at the Taylors Hill Shopping Centre, where she went to the toilets. While they were separated, the applicant sent her a Snapchat message, saying, ‘You’re missing out on 1500, just do it, it will be worth it’. Perez responded that she was ‘menstruating’, and she had ‘really bad tonsils’. When Perez and the applicant returned to the vehicle, he told Perez that he would give her $1,000 for oral sex, $2,000 for regular sex, and $3,000 ‘for a threesome’. He gave her another plunger of GHB, and she blacked out.
When Perez regained consciousness, she was seated in the vehicle, which was then parked near a side path of a school fence and grass area. The applicant was holding her hair while he forced his penis into her mouth (charge 4: rape). Perez remained in the applicant’s vehicle over the following hour, during which the applicant picked up Godwin again (at Godwin’s request), and then drove her home again. Perez blacked out again and started to vomit in the vehicle. The applicant drove to a shopping centre car-park and changed Perez out of the white top she was wearing, and gave her his T-shirt. After some time, the applicant drove Perez home. When they arrived there, Perez’s parents noticed Perez seated on the front passenger seat in a slouched position, with her head tilted forward. They tried to wake her up, but there was no response. The applicant told Perez’s parents that he was dropping her off because she was very drunk. Later that evening, Perez was taken by her mother and sister to hospital. On 23 November 2020, Perez attended the Wyndham Multidisciplinary Centre to participate in a disclosure interview in which she told police that the applicant had penetrated her mouth with his penis.

Indictment N1297319

The charges on the second indictment each concern offences, committed by the applicant, against one Leland Kelley (‘Kelley’).[4] The applicant and Kelley knew each other, as Kelley had previously received ‘ice’ from the applicant. The applicant’s co-offender, Aleisha Warwick (‘Warwick’) and Kelley also knew each other through their mutual involvement in drugs.
[4]A pseudonym.
On 25 October 2019, the applicant contacted Kelley and asked him if he wanted to go for a drive with him. The applicant picked Kelley up from his home, and Kelley sat in the rear left seat. The applicant then picked up Warwick. After he entered the vehicle, he struck Kelley. The applicant locked the doors of the vehicle, began speeding, and drove through red lights, so that Kelley had no reasonable means to escape from the vehicle (charge 1: kidnapping).
The applicant drove to a mechanic workshop in Truganina, which was run by the applicant and another person, Pat Collier. Warwick pushed Kelley out of the vehicle. The applicant placed a dog collar with a lead attached to it around Kelley’s neck in order to detain him (charge 2: false imprisonment). The applicant and Warwick punched and kicked Kelley, and committed further assaults on him, including hitting him with a crowbar to the legs, just above the knees, kicking him to the head, threatening to cut him with a scalpel while holding a scalpel to his stomach and making contact with it, and spraying degreaser into Kelley’s face (charge 4: assault (rolled up charge)). While Kelley was on the ground in the toilet area, the applicant filmed Kelley on his mobile telephone. He repetitively told Kelley to eat dry dog food out of a dog bowl, and forced him to do so by shoving his face into dry dog food and kicking his head. Kelley complied with the applicant’s demand out of fear. As the judge noted in sentencing the applicant, videos taken by the applicant during that time depicted a callous and degrading series of events, which were perpetrated with some ‘delight’ on the part of the applicant.[5]
[5]DPP v Vassallo [2023] VCC 1591 [84] (‘Reasons’).
The applicant directed Kelley to exit the toilets and to crawl on his hands and knees into the workshop. Kelley was then taken towards a raised vehicle inside the workshop. His head was held underneath the wheel. The applicant dragged him with the dog collar to another vehicle inside the workshop, which had its bonnet open. He lifted Kelley in front of it and tried to force his head into the rotating fan of the engine. Kelley’s face was about half a centimetre away from the fan. The applicant held Kelley’s face in that position for a number of minutes (charge 3: conduct endangering persons). Oil was splashed into his face, causing him excruciating pain, and the applicant then sprayed degreaser into his eyes (part of charge 4: assault).
The owner of the workshop, Collier, then intervened. He assisted Kelley into his own vehicle, and drove Kelley home.

Indictment T10696954

The charge on the third indictment (attempting to pervert the course of justice) related to the conduct of the applicant in attempting to arrange contact with Godwin, in order to persuade her to withdraw her account of what had transpired in relation to Perez.
In August 2022, while the applicant was in custody, serving a sentence for an unrelated matter, and in the lead-up to the listing of the special hearing of the first indictment, the applicant handed a cellmate, who was due to be released, a letter to take with him. The applicant told the cellmate to post the letter and not to show it to the guards or anyone else. The letter contained the applicant’s directions to a friend, requesting that he arrange to threaten Godwin, who was due to give evidence at the upcoming special hearing. The letter requested the friend to offer Godwin a significant amount of money to change her evidence. The letter also contained a threat that, if the request was not complied with, then revenge would be taken on the two girls (Perez and Godwin) and their mothers.
Subsequently, the letter was given to authorities on 3 August 2022. Forensic analysis confirmed that the applicant was the author of it.

Applicant’s previous convictions

The applicant, who was born on 5 April 1996, has a criminal history comprising sentences in three court appearances in the Magistrates’ Courts in March 2017, February 2018 and December 2019. They concerned offences, that included dealing with the proceeds of crime, possession of firearms and controlled weapons, road traffic offences, drug trafficking, burglary, theft, and unlawful possession of drugs.
In the most recent case, the applicant was sentenced by the Sunshine Magistrates’ Court on 16 December 2019 to 12 months’ imprisonment, with a non-parole period of 6 months, on offences that included negligently dealing with the proceeds of crime, being a prohibited person in possession of a firearm, dishonestly receiving stolen goods, dealing with property suspected of being the proceeds of crime, trafficking prohibited substances (GHB, methylamphetamine and ecstasy), and driving a motor vehicle while disqualified.
Relevantly, the applicant was released on parole on 14 February 2020, which was due to expire on 27 November 2020. Thus, the offences, that were the subject of charges 3 and 4 on the first indictment, were committed by the applicant while he was on parole.

The arrest of the applicant

On 27 November 2020, the applicant was arrested on the two rape charges that are the subject of the first indictment. In the interview conducted on 27 November 2020, the applicant denied the allegations that are the subject of charges 3 and 4 on the first indictment. On 11 January 2021, the applicant participated in a second interview in relation to charges 1 and 2 on the first indictment, and he made no admissions other than that he knew Stearns.
In June 2022, a trial of those charges was listed to commence in March 2023, with a pre-trial special hearing listed for November 2022. In August 2022, the applicant committed the further offence of attempt to pervert the course of justice, which was the subject of the third indictment.
In the meantime, on 26 April 2022, the applicant had pleaded guilty in the County Court to five unrelated charges, namely, one charge of trafficking in a drug of dependence in a commercial quantity, one charge of drug trafficking in a drug of dependence, one charge of cultivation of a narcotic plant, one charge of knowingly deal with the proceeds of crime, and one charge of driving a motor vehicle while disqualified. On 3 May 2022, he was sentenced, in respect of those charges to a total effective sentence of 38 months’ imprisonment with a non-parole period of 26 months.

The applicant’s personal circumstances and background

The applicant was born on 5 April 1996. Thus, at the time of the offending that was the subject of the first two indictments, he was approximately 23 years of age.
The applicant’s parents separated when he was two years of age. His mother remarried, and she had three children by the applicant’s stepfather.
The applicant’s stepfather drank heavily and was violent towards the applicant’s mother and the applicant himself. In addition, the applicant was sexually abused by an uncle when he was between the ages of six years and ten years. When he was about 15 years of age, he informed his mother about the abuse, but, at the time, she did not believe his account of it. During his teenage years, the applicant lived, on different occasions, with his biological father, in order to escape from the difficult circumstances he was experiencing at home. During that period, the applicant’s father introduced him to cocaine.
The applicant attended three primary schools and three secondary schools. In Year 10, he was expelled from school due to behavioural issues. He then transferred to a technical school for Year 11. However, he left school during that year in order to obtain employment. After he left school, the applicant commenced, but did not complete, a carpentry apprenticeship. He subsequently worked in warehousing for some time. However, by that time, he was heavily involved in the use of drugs, and, as a result, he did not have any regular employment in the years preceding the offending in this case.
When the applicant was in his mid-teenage years, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), and was prescribed dexamphetamine. However, he ceased to take that medication when he commenced his illicit drug use.

Psychological reports

On the plea, the applicant relied on two reports concerning his psychological condition.
In March 2022, the applicant was examined by Dr Nina Zimmerman, a consultant psychiatrist. At that time, the applicant had not admitted to the offending that was the subject of the first two indictments.
Dr Zimmerman noted that the applicant attributed the onset of his drug use to the time that he had spent with his father, and also to the physical and sexual abuse that he suffered during his earlier years. Dr Zimmerman considered that the applicant met the criteria for a diagnosis of Substance Misuse Disorder, which, according to the applicant, was in remission at the time in the context of his then incarceration. Dr Zimmerman also considered that the applicant met the criteria for a diagnosis of Post-Traumatic Stress Disorder (‘PTSD’) as a result of the significant sexual abuse he had sustained during his childhood years, and also his exposure to physical abuse in the home.
Dr Zimmerman considered that the effect of the applicant’s substance abuse disorder in the future would depend on his ability to access and engage in effective treatment programs. In addition, Dr Zimmerman considered that the applicant required intervention in respect of his Post-Traumatic Stress Disorder to explore that issue, as it was likely that it contributed to his substance abuse. Dr Zimmerman was also of the opinion that there was a direct relationship between the applicant’s substance abuse disorders and his drug trafficking offences.

Dr Zimmerman expressed the view that the applicant’s PTSD would be relevant to his experience in prison. The applicant was then housed in a protection unit, as a result of the charges of sexual offending. The applicant reported that his then placement, with other persons charged and convicted of sexual offences, had the effect of triggering memories of his own sexual abuse, which negatively affected his mental state. Finally, Dr Zimmerman was of the opinion that the applicant’s rehabilitation in relation to his drug use would depend on interventions targeting his past abuse, and its impacts on him, as well as the substance abuse itself.
The applicant was also examined by Ms Carla Lechner, a clinical psychologist, on 23 May and 6 July 2023. The applicant reported to Ms Lechner that, although he pleaded guilty to the offences that are the subject of the first two indictments, he did not have a clear recollection of the events that are the subject of the charges, because of his level of intoxication with the substance, GHB.
Having examined the applicant, Ms Lechner considered that the applicant presented with symptoms of complex PTSD, major depressive disorder, adult ADHD, and GHB and stimulant use disorder in early remission. She considered that the applicant currently presented as a ‘moderate/high’ risk of further violent offending, and a ‘moderate/high’ risk of sexual offending, and that treatment of the applicant’s mental health and substance abuse issues was critical to reducing those levels of risk.
Ms Lechner was of the view that the applicant, having been exposed to complex developmental trauma in his formative years, had undergone negative experiences that undermined his social, emotional, and vocational development. In particular, the applicant suffered from a severe level of complex PTSD, which adversely affected his development through adolescence and early adulthood. He had developed drug addiction problems as a means of avoiding memories of that past trauma. His complex PTSD symptoms had not been treated, and, accordingly, he remained dysregulated and hyper-vigilant.
Ms Lechner further considered that the applicant’s drug use had significantly contributed to his disinhibited behaviour, poor judgment and decision-making. As a consequence, the applicant needed a range of treatment interventions to address his complex clinical issues.
Ms Lechner further noted that the applicant was finding prison a difficult environment to manage with respect to his post-trauma symptoms. As he had been placed in a protection unit with other sex offenders, he had suffered a resurgence of his symptoms, with a high level of anxiety and hyper-vigilance. Ms Lechner considered that it was likely that the applicant’s post-trauma symptoms would worsen, given the inherent conflict and aggression in a prison environment.
Finally, Ms Lechner noted that the applicant had taken some time to come to terms with the gravity and abhorrent nature of his offending, but that he now took ‘full responsibility’ for his actions. She noted that the applicant had expressed remorse and shame to her, as well as appropriate victim empathy.

The plea

Counsel for the applicant commenced the plea by addressing the gravity of each of the offences that were the subject of the charges to which the applicant pleaded guilty.
Counsel acknowledged that each of the three ‘passages’ of offending by the applicant were ‘uniquely serious’ in their own right, and that they painted a ‘very concerning picture’ concerning the applicant and his adherence to continued criminal offending. In that respect, counsel noted that the offending, that was the subject of charges 3 and 4 on the first indictment (against victims Perez and Godwin), occurred while the applicant was on parole. Counsel noted that, during that time, the applicant was leading a chaotic life, which centred primarily on his drug use, but also on his trafficking of various drugs, including GHB, methamphetamine and MDMA. Counsel accepted that the applicant’s prospects of rehabilitation were totally contingent on his capacity to remain abstinent from drugs.
In respect of the offending, that was the subject of charges 1 and 2 on the first indictment (the offending against Stearns), counsel accepted that the offending was serious by virtue of a number of factors, namely: Stearns communicated her lack of consent clearly and forcefully in verbal and non-verbal ways; the offending was accompanied by physical force, albeit to prevent the complainant from leaving the vehicle; the false imprisonment was intrinsically bound up in the circumstances of the rape; at the time of the offending, the victim was only 14 years of age, and thus the offending involved a betrayal of trust. Counsel accepted that, taking those factors together, the offending that was the subject of charges 1 and 2 on the first indictment constituted a serious example of those offences.
In respect of the conduct that was the subject of charges 3 and 4 on the first indictment (involving offending against Perez and Godwin), counsel accepted that there was no possible basis for the applicant to have believed that any of his conduct was welcome. Counsel accepted that the supply of a drug of dependence to a child (which is the subject of charge 3) was a serious matter, and, by reason of his own early exposure to drug use, the applicant was well aware that his actions in supplying drugs to Perez and Godwin had the capacity to cause genuine harm. Counsel further accepted that the offending, that was the subject of charge 4 (rape), was egregious. There could be no possible basis for the applicant to have believed that his conduct was welcome, as Perez was clearly incapable of consenting to it. In addition, there was a significant difference in the ages of the applicant and Perez respectively.
In respect of the conduct that was the subject of the second indictment, counsel noted that the applicant’s conduct was protracted and degrading and, to a degree, calculated. The assaults on Kelley clearly caused significant pain, and were calculated to humiliate and aggravate the gravity of the overall incident. The circumstance, that the victim owed the applicant money for drugs, did not provide any justification for the applicant’s conduct.
In respect of the offence that was the subject of the third indictment, counsel accepted that the conduct of the applicant was a significant example of the offence of attempt to pervert the course of justice. The applicant had been in custody for nearly two years and, at the time that he wrote the offending letter, he was attempting to defend charges against himself. Counsel submitted that the offending fell ‘somewhere in the middle of the range’ of seriousness of the offence of attempt to pervert the course of justice.
On the plea, counsel relied on the background circumstances of the applicant. In particular, counsel noted that the applicant had been raised from an early age in a home in which he was exposed to a stepfather who engaged in significant alcohol abuse, and who was physically abusive to both his mother and himself. In that respect, in the course of the plea, the prosecutor accepted that the applicant had experienced a traumatic childhood. Counsel for the applicant submitted the applicant’s background had a connection with his commission of the offences that are the subject of the first indictment, albeit that the connection was ‘more distant’. Counsel submitted that the applicant’s background of significant childhood trauma and exposure to drug use at a young age had played a substantial core role in the applicant’s ongoing, significant abuse of drugs.
Counsel further noted that all of the offending, engaged in by the applicant, occurred in the context of the applicant’s ongoing use of drugs, which, in turn, was driven by the issues that affected his own mental state and his lack of coping skills. Counsel also relied on the report of Ms Lechner in support of the submission that the applicant’s PTSD adversely affected his capacity to cope in the prison environment, and that it was likely that his symptoms of PTSD would deteriorate in view of the inherent conflict and aggression of the prison environment. Counsel accepted that the applicant’s prospects of rehabilitation were dependent on his capacity to remain abstinent from drug use.

Reasons for sentence

The judge commenced her reasons for sentence by assessing the seriousness of each of the charges to which the applicant pleaded guilty.
In respect of the charges that were the subject of the first indictment, the judge considered that the charge of rape (charge 1) was ‘above mid-range’ in objective seriousness. The offending, that was the subject of charges 1 and 2, involved a breach of trust by the applicant to Stearns. The applicant’s behaviour in violently forcing Stearns to remain in the vehicle to enable the sexual offending to occur was a significant aggravating factor, the effect of which was only moderated by the fact that the related offence (false imprisonment) was charged. The type of penetration (forceful ejaculation into Stearns’ mouth) was particularly confronting and unpleasant. The applicant was well aware of the complainant’s age. The applicant sought to prevent or delay a police report by contacting Stearns’ mother and making threats.
In respect of the offence of false imprisonment (charge 2), the judge noted that the aggravating features of that offence included the complainant’s age, the time of night at which the offence occurred, the fact that it occurred in an isolated place to which the complainant had been driven by the applicant, and the fact that physical force was applied to prevent her escape. In those circumstances, the judge considered the combination of the offending was within a ‘high range’ of seriousness.[6]
[6]Reasons, [37].
In respect of charges 3 and 4 on the first indictment, the judge noted that the applicant was well aware of Perez’s age, and that there was an age difference of some nine years. There was no basis to suggest that the applicant could have believed that his conduct was welcome. Perez was clearly incapable of consenting to it. The offending occurred over a four hour period, and Perez was unconscious for about two hours. Over an extended period of time, the applicant took advantage of the incapacitated and vulnerable teenager. The judge further noted that, after supplying drugs to Perez, he did not attend to her wellbeing with any sense of urgency. He misled her parents by saying that she was drunk, which, in turn, affected the capacity of her parents to obtain prompt medical attention for her. In addition, the applicant was on parole at the time of the offending. Taking those matters together, the judge considered that the applicant’s offending, in respect of charges 3 and 4, was of very high objective seriousness.[7]
[7]Ibid [73].
In respect of the offending that was the subject of the second indictment, the judge noted that the applicant’s offending against Kelley was of a remarkably serious, dehumanising and frightening nature.[8] The rolled up count of assault (charge 4), which included placing a dog collar on Kelley’s neck, repeatedly kicking and punching him, pushing his head into a bowl and spraying his eyes with degreaser, was sustained, cruel and degrading. That offending was therefore ‘toward the upper end’ of the scale of seriousness of the offence of assault.[9] The judge further considered that the conduct of the applicant that constituted charge 3 (the deliberate placing of Kelley’s face into close proximity with a rotating engine fan) exposed Kelley to a real risk of serious injury, so that the offence itself was of high objective seriousness.[10]
[8]Ibid [92].
[9]Ibid [93].
[10]Ibid [94].
Finally, in respect of the offending that was the subject of the third indictment, the judge noted the relative lack of thought and sophistication, and the threats to the complainant’s family being indirect, rather than direct. Thus, the judge considered that offending to be of ‘low to mid-range’ objective seriousness.[11]
[11]Ibid [104].
The judge noted the victim impact statements, which demonstrated that the applicant’s conduct had had a significant and, at times, overwhelming effect on the complainants. The lives of each of the complainants had been irrevocably changed for the worse as a result of the applicant’s cruel and selfish acts.[12]
[12]Ibid [116]–[117].
The judge summarised, in some detail, the reports of Dr Zimmerman and Ms Lechner, and the applicant’s background history. Her Honour noted that the prosecution did not challenge that the applicant’s background included significant violence and sexual abuse, to which he had been exposed between the ages of approximately five years and eleven years.
The judge noted that there was no finding in the report of either Dr Zimmerman or Ms Lechner that the applicant’s sexual offending was, in any way, related to substance abuse, or to the sexual abuse he had experienced as a child.[13] Her Honour noted that the highest at which Ms Lechner posited any such connection was that the applicant’s drug use had significantly contributed to his disinhibited behaviour, poor judgment and decision-making.[14]
[13]Ibid [134]–[141].
[14]Ibid [142].
The judge then made the following finding:
I find that there seems to be a relationship between your substance abuse and your childhood experiences. I do not find a causal relationship between your disadvantaged childhood and the current sexual offending, save that your mental health appears to be compromised. The observation that you were under the influence of drugs (thus reducing your inhibitions when you raped these young girls) is not a mitigating factor, nor does it reduce your moral culpability for the offending. However, this must be a consideration in an assessment of your prospects of rehabilitation.[15]
[15]Ibid [145].
The judge noted that there was no evidence to support the proposition that the applicant’s sexual offending was related to any sexual abuse that he suffered as a child. Neither Dr Zimmerman nor Ms Lechner suggested that the applicant’s moral culpability for that offending was reduced either due to the violence he had sustained in his younger years, or his substance abuse as a teenager.[16]
[16]Ibid [147].
The judge did accept that there was an accepted connection between the applicant’s substance abuse and his offending in general, and that the substance abuse had its beginnings in the applicant’s teenage years. The judge also noted that the applicant’s resort to violence or threats might have been related to his upbringing. For that reason, his moral culpability for the conduct that was the subject of the charge of attempt to pervert the course of justice (third indictment) was reduced.[17] The judge accepted that it was probable that the applicant’s exposure to substance abuse by his own father, during his teenage years, had affected the applicant’s state of mind, resulting in him making chaotic life choices.[18]
[17]Ibid [148].
[18]Ibid [150].
Based on the reports of Dr Zimmerman and Ms Lechner, the judge accepted that, as a result of the applicant’s PTSD, there was a risk that imprisonment would be more burdensome for him, and might result in deterioration of his mental state.[19] The judge considered that the applicant’s prospects of rehabilitation were ‘difficult to gauge’.[20] Counsel also noted that the applicant’s expressed remorse was of recent origin. In his interview with Dr Zimmerman, he had vehemently denied the sexual offending. As a consequence, the judge expressed ‘scepticism’ as to the genuineness of any expression of remorse by the applicant.[21] The judge did not accept that the applicant’s pleas constituted evidence of remorse.[22] However, the pleas to the kidnap-related charges (second indictment) and the attempt to pervert the course of justice charge (third indictment) were made relatively early, and, as a result, the applicant was entitled to ‘significant discounts’ on those sentences.
[19]Ibid [154].
[20]Ibid [155].
[21]Ibid [162].
[22]Ibid [168]–[170].
The judge considered that the applicant presented a moderate to high risk of violent reoffending and a moderate risk of sexual reoffending, if his mental health and substance abuse problems are not adequately addressed.[23] The judge took into account the fact that the applicant had been in custody on an unrelated matter since November 2020.[24] Her Honour also took into account the applicant’s relative youth at the time of the offending, and that the time that the applicant would spend in custody would be more difficult for him as a result of his mental health issues.[25]
[23]Ibid [180].
[24]Ibid [188].
[25]Ibid [189]–[190].

Summary of submissions

Counsel for the applicant addressed grounds 1 and 2 together.
He commenced by again acknowledging the aggravating features of each of the offences, in accordance with the concessions that counsel had made in respect of those offences in the course of his plea. Counsel acknowledged that rape is, of itself, a serious criminal offence. However, he noted that the sentences imposed on the charges the subject of the first indictment amounted to a total effective sentence, on the indictment, of 18 years’ imprisonment. Counsel submitted that, while the offending in the present case was serious, it did not involve significant features of aggravation which would be expected for a sentence of that magnitude, such as previous convictions for sexual offending, offending accompanied by significant force or degradation, multiple instances of penetration, or assaults in the company of others. Counsel also noted that the applicant is a relatively young person, with no previous conviction for sexual offending.
Counsel submitted that the applicant was able to rely on a number of important mitigating factors that included:
(a)that at the time of the offending, he had already undergone a lengthy period of custody, almost all of which was in the period in which the correctional system was responding to the COVID pandemic;
(b)the applicant had had a difficult childhood in which he had been subjected to sexual abuse and had witnessed family violence and alcohol abuse from a young age, and in which he had been introduced to stimulant drug use by his own father;
(c)the applicant had symptoms of complex PTSD and a major depressive disorder;
(d)the applicant had vocational prospects, having been accepted into a Bachelor of Agricultural Science course while in custody;
(e)the applicant retained the support of his mother;
(f)the applicant pleaded guilty to the kidnapping charges and the charge of attempt to pervert the course of justice at an early stage. His plea to the first indictment, while late, had utilitarian benefits.
It was submitted that, in the circumstances, the judge gave excessive weight to the aggravating features of the offending, and inadequate weight to the mitigating factors. Further, at the time of sentence, the applicant was already undergoing a sentence for drug-related offending, so that the combined effect, of that sentence and the sentence imposed in the present case, amounted to in excess of 25 years’ imprisonment. Accordingly, counsel submitted that the individual sentences imposed on the applicant are manifestly excessive, and that that effect had been compounded by orders for cumulation that had resulted in a total effective sentence that was disproportionate to the overall criminality involved in the offending.
In response, counsel for the respondent noted that the applicant’s offending, that was the subject of the first indictment, was particularly serious, involving the rapes of two children, one of whom was 14 years of age, and the other 15 years of age. Each of those victims were vulnerable due to their age. There was a significant age difference between the applicant and the victims. Each rape occurred when the victim was isolated in a motor car with the applicant. In the case of charge 1, the applicant persisted, despite the victim’s forceful protests, and after she had attempted to get out of the vehicle. The victim had trusted the applicant, and regarded him as a brother. In respect of the offence that was the subject of charge 4, the offending occurred when the victim (Perez) was ‘blacked out’, and thus vulnerable, and the applicant took advantage of that fact. The victim had previously rebuffed the applicant’s sexual advances, and was plainly incapable of consenting after he had supplied her with drugs.

Counsel further noted that the maximum sentence of 25 years’ imprisonment reflects the inherent gravity of the offence of rape, and that the standard sentence for the charge is 10 years’ imprisonment. Each charge of rape involved distinct criminality at different times, against different victims. Therefore, it was open to the judge to order that four years of the sentence imposed on charge 1 be served cumulatively on the sentence imposed on charge 4.
Counsel further noted that, at about the same time as each charge of rape, there was additional serious criminality that involved the offence of false imprisonment (charge 2), and the rolled up charge of supplying drugs to a child (charge 3). In respect of the latter charge, the supply of drugs led to one victim’s incapacitation for two hours, during which the applicant did not seek any medical attention for the victim.
Counsel also noted that the offending, that was the subject of the second and third indictments, involved significant additional criminality, which was required to be reflected in the total effective sentence. The judge observed that the applicant’s offending, that was the subject of the second indictment, was serious, dehumanising and frightening. The sentencing order made by the judge involved significant concurrency in respect of the sentences imposed on each of the charges on the second indictment, that reflected the overlap in time and nature of those four offences. It was contended that, in all the circumstances, the cumulation of 2 years and 6 months’ imprisonment of the sentences on the second indictment on the base sentence was modest.
Counsel further submitted that any attempt to pervert the course of justice is inherently serious. In the present case, the offending, that was the subject of the third indictment, was distinct in time and character from the offending that was the subject of the first and second indictments, and accordingly significant cumulation in sentencing was warranted.
Counsel further noted that there were few matters in mitigation available to the applicant, apart from the utilitarian value of his pleas of guilty, his relative youth, the judge’s finding that there was a risk that imprisonment would be more burdensome for the applicant due to his PTSD, and the judge’s finding that the applicant’s moral culpability was reduced, due to the circumstances of his childhood, particularly in respect of the offences that were the subject of the second and third indictments.
Counsel further noted that the judge found that the applicant’s pleas were not evidence of remorse. The plea on the first indictment was late. The applicant had an admitted criminal history. He was on parole when he committed the offences that are the subject of charges 3 and 4 on the first indictment. His prospects of rehabilitation were found to be ‘guarded’.[26]
[26]Reasons, [177].
Counsel further noted that the non-parole period in the present case took into account the applicant’s relative youth and the finding that he would experience more than the ordinary burdens of imprisonment due to his PTSD.
Accordingly, counsel submitted that it was open to the judge to impose the individual sentences, the orders for cumulation resulting in the total effective sentence, and the non-parole period.

Analysis and conclusions

In order to sustain the proposed ground of appeal, that the individual sentences, the total effective sentence and the non-parole period are each manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge. Such a test is, by its nature, a stringent requirement. It is not sufficient for the applicant to demonstrate that the individual sentences, the orders for cumulation, or the total effective sentence were longer than this Court might have imposed in the circumstances of the case. Rather, the applicant must establish that the sentences were so excessive as to bespeak error by the judge in the exercise of her sentencing discretion.[27]
[27]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v McArthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In considering the application of that principle in the present case, the starting point is that the applicant has taken no issue with the specific findings, made by the judge, in respect of each of the offences to which he pleaded guilty, and with the judge’s assessment of the seriousness of the offending that was the subject of each of the charges to which he pleaded guilty. Nor has the applicant taken issue with the conclusions formed by the judge concerning, and the weight given by the judge to, the mitigating factors relied on by the applicant.
Further, as a preliminary observation, in considering the issue of totality, it is important to bear in mind that the offences, that were the subject of the three sets of indictments, constituted, in substance, offending committed on four separate occasions. The first indictment alleged two sets of offending, and the second and third indictments each concerned offending that was separate to each other and to the offending that was the subject of the first indictment.
Understandably, the focus of submissions on this application concerned the sentences, imposed by the judge, on the offences that were the subject of the first indictment, and, in particular, the offences that were the subject of charges 1 and 4 (the rape charges). On the plea, and on this application, counsel for the applicant, quite correctly, did not take issue with the characterisation by the judge of that offending as being particularly serious.
At the risk, of repetition, the victim of the offending, that was the subject of charges 1 and 2, was 14 years of age at the time. The victim of the offending, that was the subject of charges 3 and 4, was 15 years of age. At law, they were each children. In substance, they were young adolescents. By contrast, at the time, the applicant was aged between 22 years and 24 years. He was a young adult. Not only was there a significant age difference between the applicant and the two complainants, but, importantly, there was necessarily a substantial difference in their levels of maturity.
There were a number of aggravating features of the offending in question. The complainant in respect of the offences, that were the subject of charges 1 and 2 (Stearns), trusted the applicant. She repeatedly made clear to the applicant her lack of consent. After she verbally rejected the applicant’s suggestion, that she suck his penis, she attempted to leave the vehicle, but the applicant physically prevented her from doing so. When she managed to unlock the rear door of the vehicle, and attempted to get out, the applicant forcefully pulled her back onto the front seat. As the applicant took hold of her breasts and then rubbed her vagina, she attempted to punch him and kick him. It was in that context that the applicant penetrated the complainant’s mouth with his penis, causing her to choke, while persisting in his conduct until he ejaculated into the complainant’s mouth. As the judge correctly concluded, the offending, engaged in by the applicant, that was the subject of charge 1, could only be characterised as being within a ‘high range of seriousness’.[28]
[28]Reasons, [37].
Similarly, as the judge concluded, the objective gravity of the offending that was the subject of charge 4 was very high.[29] As we have mentioned, there was a significant age difference between the applicant and the complainant, Perez. At the time of the offence, Perez was unconscious and patently incapable of consenting to the applicant’s conduct. Perez was totally vulnerable, and the applicant egregiously took advantage of her condition. The applicant was still holding Perez by the hair and forcing his penis into her mouth when she regained consciousness, in circumstances which could only have been particularly traumatic and degrading for her. At the time the applicant committed the offence, that was the subject of charge 4 (and the offence that was the subject of charge 3), he was on parole.
[29]Ibid [73].
It is also quite clear that each of the offences, that were the subject of charges 2 and 3 on the first indictment, were themselves serious. The offending, that was the subject of charge 2 (false imprisonment) constituted the conduct of the applicant, using physical force to prevent Stearns from escaping from the vehicle after he had raped her in the circumstances that we have described. As the judge correctly noted, the gravity of that offending was exacerbated by the age of the complainant, the time of night at which the false imprisonment took place (after 1:00 am), the isolated location in which the conduct occurred, and the fact that the applicant exerted physical force to prevent Stearns from escaping from his vehicle.[30]
[30]Ibid [36].
Taking those matters into account, as the judge correctly concluded, the offending, that was the subject of that charge, was particularly serious.[31]
[31]Ibid [37].
In addition, for the reasons stated by the judge, the offending, that was the subject of charge 3 on the first indictment (supply of a drug of dependence to a child — namely, Godwin and Perez), was also of particular gravity. The victims of the offence were young adolescents. As a result of the offending, Perez was rendered unconscious for about two hours. During that time, the applicant demonstrated a total lack of concern for her condition. He did not seek medical care for Perez, despite being aware that she was having difficulty breathing. When, finally, he drove her home, he misled her parents, by stating that she was drunk, thus, diverting her parents from immediately obtaining the necessary medical treatment for her. As we have noted, the offence, that was the subject of charge 3, was committed by the applicant while he was on parole.
The conduct of the applicant, that was the subject of the second indictment, was also objectively serious. It was premeditated, and engaged in by the applicant in company with a co-offender. It involved callous, violent and degrading conduct to his victim. The conduct, that was the subject of charge 3 (conduct endangering persons) was of particular concern. As the judge noted, the action of the applicant, in forcing Kelley’s face into very close proximity with a rotating engine fan, necessarily exposed Kelley to a real risk of serious injury which, if it had eventuated, would have been catastrophic.[32] In the circumstances, the judge’s assessment, that each of the offences that were the subject of the second indictment involved a high order of objective gravity, was plainly appropriate.[33]
[32]Ibid [94].
[33]Ibid [95].
Finally, the conduct of the applicant, that was the subject of the charge on the third indictment (attempting to pervert the course of justice), could not be characterised as being trivial. The judge’s assessment, that it was of ‘low to mid-range’ objective seriousness, was an appropriate assessment of the offending.[34] The offence of attempting to pervert the course of justice is, of itself, a serious criminal offence. The conduct of the applicant was premeditated and calculated to assist the applicant to then avoid criminal responsibility for the offences that were the subject of charges 3 and 4. While the applicant’s actions might have been misconceived, nevertheless, his motivation was of importance in the judge’s determination as to the gravity of the offending.
[34]Ibid [104].
In summary, then, the applicant came to be sentenced for four separate sets of offending, engaged in by him. For the reasons that we have discussed, the judge correctly considered that the offending, that was the subject of the charges in the first two indictments, was objectively significantly serious. In particular, the two rape offences, that were the subject of charges 1 and 4 on the first indictment, must be characterised as coming within the high range of seriousness of that offence.
On the other hand, on analysis, the mitigating circumstances available to the applicant were quite limited in their effect. The applicant, at the time of the offending, was relatively young. In particular, when he committed the offences, that were the subject of the charges in the first two indictments, he was between 22 years and 24 years of age. He was 26 years of age when he committed the offences the subject of the third indictment (attempting to pervert the course of justice).
In that respect, two points are relevant. While the applicant was young, he was, nevertheless, significantly older and more mature than his two victims. As we have noted, the applicant was a young adult; by contrast, his two victims were young adolescents. There was a patent and significant age discrepancy between the applicant and his two vulnerable victims.
Secondly, while, ordinarily, the youth of an offender may be a mitigating factor, it is recognised that, as the level of the seriousness of the criminality of the offender increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth.[35] Similarly, where the offence is one which is commonly committed by young offenders, the youth of the offender in question may need to be accorded less weight as a mitigating factor, in order to ensure that the sentencing principles of general deterrence and specific deterrence are given appropriate weight.[36]
[35]Azzopardi v The Queen (2011) 35 VR 43, 57 [44] (Redlich JA); DPP (Cth) v MHK (a pseudonym) (2017) 52 VR 272, 289 [56] (Warren CJ, Weinberg & Kaye JJA); [2017] VSCA 157.
[36]DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA), 133 [25] (Winneke P); [2004] VSCA 154.
The principal mitigating circumstance relied on by the applicant was his plea of guilty. As we have noted, the applicant’s pleas to the charges on the second and third indictments were made relatively early. His plea of guilty to the four charges on the first indictment were not made at an early stage, but had obvious utilitarian value.
The applicant also had available some other relevant mitigating circumstances.
At the time of the sentence, he had already undergone a significant period of time in custody, most of which occurred while the Corrections system was subject to a stringent regime in response to the COVID pandemic.
In addition, the applicant had experienced a difficult childhood, in which he was exposed to family violence and alcohol abuse within his family, and in which he had been subjected to sexual abuse from a trusted family member. In addition, he had been exposed, at an early age, to drugs by his father. It was not contended, nor did the judge conclude, that the abuse suffered by the applicant, or that to which he was exposed, had a direct relationship with his commission of the two rape offences. However, the judge did accept that the applicant’s difficult childhood, and his experience in his childhood and adolescence, were relevant in the sense discussed by the High Court in Bugmy v The Queen.[37] Her Honour accepted that there was a relevant connection between the applicant’s substance abuse and his childhood experiences, and that there was, in turn, a connection between his substance abuse and the offending, that was the subject of the charges in the second and third indictments. For those reasons, as the judge accepted, the applicant’s moral culpability for those two sets of offending was, to some extent, reduced as a consequence.[38]
[37](2013) 249 CLR 571, 594–5 [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37 (‘Bugmy’).
[38]Reasons, [146]–[148].
Further, the judge accepted that the applicant’s symptoms of complex PTSD were such that there was a risk that imprisonment would, as a consequence, be more burdensome for him, as the stresses in a custodial environment may well result in a deterioration in his mental state.[39]
[39]Ibid [153]–[154].
The critical question, then, for this Court, is whether the individual sentences, or the total effective sentence, were manifestly excessive, taking into account the seriousness of the offending on each of the sets of charges, and giving appropriate weight to the mitigating factors, as found by the judge.
Considered separately, the sentences that were imposed on the two rape charges, namely, charges 1 and 4 on the first indictment, do deserve close scrutiny. Certainly, they could each be described as stern sentences, taking into account the applicant’s plea of guilty, the fact that he had no previous convictions for sexual offending, and that the offending in each case involved one act of penetration, and did not involve any physical injury to the victim. Nevertheless, giving each of those considerations appropriate weight, it must be accepted that the offences were, nevertheless, particularly serious.
The maximum sentence for the offence of rape is 25 years’ imprisonment, reflecting the inherent gravity of that offending. The standard sentence prescribed for the offence is 10 years’ imprisonment. The standard sentence is, of course, but a legislative guidepost, based purely on the objective factors that affect the relative seriousness of the offence in question.[40]
[40]Sentencing Act 1991, s 5A; Brown v The Queen (2019) 59 VR 462 [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286.
The offending on the two rape charges were each separate and distinct instances of the offence. The victim, in each offence, was different. The offence, that was the subject of charge 4, was committed 22 months after the offence, that was the subject of charge 1. It was clearly appropriate that, in those circumstances, there be a material degree of cumulation between the sentences imposed on those two charges.
The individual sentences that were imposed on each of the other charges, that were the subject of the first indictment, and the sentences imposed on the charges that were the subject of the second and third indictments, were each quite moderate. Indeed, it might be fairly maintained that the individual sentences, and the orders for cumulation, in respect of the offences that were the subject of the second indictment, were quite lenient.
In those circumstances, it could not be maintained that the individual sentences imposed on each of the charges were, of themselves, standing alone, manifestly excessive.
The critical question is whether, nevertheless, taken together, the total effective sentence was manifestly excessive. That is, the question is whether, giving appropriate weight to the gravity of the totality of the offending, engaged in by the applicant, and giving appropriate weight to the mitigating circumstances relied on, the total effective sentence of 22 years’ imprisonment was wholly outside the range of sentencing options available to the judge, so as to bespeak error in the exercise of the sentencing discretion by her Honour.
The totality principle requires a court, in sentencing an offender for multiple offences, to ensure that the aggregate term of imprisonment (the total effective sentence) is a just and appropriate measure of the total criminality involved in the offending in question.[41]
[41]Postiglione v The Queen (1996) 189 CLR 295, 307–309 (McHugh J), 340 (Kirby J); [1996] HCA 26; Mill v The Queen (1988) 166 CLR 59, 62–3 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70 (‘Mill’); Director of Public Prosecutions v Grabovac [1998] 1 VR 664, 676–80 (Ormiston JA) (‘Grabovac’).
In considering that question, it is, of course, necessary to return to the sentences, that were imposed in respect of the four charges on the first indictment. In combination, they account for 18 years of the total effective sentence of 22 years’ imprisonment. As we have discussed, the sentences imposed on charges 1 and 4 were stern.

For the reasons we have discussed, if the sentences imposed on charges 1 and 4 on the first indictment stood alone, they may be considered to be particularly stern, but not excessive. However, they were imposed in circumstances in which the applicant also fell to be sentenced for the charges on the second and third indictments. Taking into account and giving appropriate weight both to the gravity of the totality of the offending involved in the charges on the three indictments, but also giving proper weight to the mitigating circumstances, and, in particular, the applicant’s plea of guilty to each of the charges, ultimately, it must be concluded that the total effective sentence of 22 years’ imprisonment was wholly outside the range of sentencing options available to the judge, taking into account the overall criminality for which the applicant was to be sentenced, while also giving appropriate weight to the mitigating circumstances in the case. In essence, bearing in mind the important utilitarian value of the applicant’s pleas of guilty, and the fact that the pleas to the charges on indictments 2 and 3 were made early, ultimately, it must be concluded that a total effective sentence of 22 years’ imprisonment was manifestly in excess of a just sentence in all the circumstances.
Accordingly, it is necessary to resentence the applicant. Ordinarily, it is desirable that the principle of totality be catered for by adjusting the degree of cumulation between the individual sentences, rather than by adjusting the individual sentences themselves.[42] However, in the present case, the orders for cumulation were appropriately modest, and any moderation of them would fail to reflect, at all adequately, the additional offending involved in each charge. In those circumstances, the appropriate mechanism, by which to sufficiently accommodate the principle of totality, would be to moderate the sentences imposed on the two rape charges, which, for the reasons we have discussed, were particularly high.
[42]Mill (1988) 166 CLR 59, 62–3; R v Lomax [1998] 1 VR 551, 564 (Ormiston JA); Grabovac [1998] 1 VR 664, 682 (Ormiston JA).
Applying those principles, we would, accordingly, substitute the following sentences in respect of those two charges:
•Charge 1, 9 years’ imprisonment.
•Charge 4, 9 years’ imprisonment.
Applying the same orders for cumulation as made by the sentencing judge, the total effective sentence on the first indictment would therefore be 15 years’ imprisonment, and the total effective sentence on all three indictments combined would be 19 years’ imprisonment.
That conclusion necessarily leads to a reconsideration of the non-parole period, imposed by the judge on the applicant. In that respect, it is quite evident that the non-parole period, imposed by the judge, was particularly lenient, constituting just 63% of the total effective sentence. It could not be maintained that that period was, in the circumstances of the case, manifestly excessive. Accordingly, there is no occasion to reduce, or otherwise adjust, the non-parole period imposed by the judge.
For those reasons, we would grant the applicant leave to appeal, allow the appeal, and make the following orders:
(1)The sentence imposed in respect of charge 1 on indictment L12782183.3 (the first indictment) be set aside, and, in lieu, the applicant be sentenced on that charge to 9 years’ imprisonment.
(2)The sentence, imposed by the judge on charge 4 on the first indictment, be set aside, and, in lieu, the applicant be sentenced on that charge to 9 years’ imprisonment.
(3)Each of the other sentences, imposed by the judge on the first indictment, on indictment N12197319 (the second indictment) and indictment P10696954 (the third indictment) be confirmed, and the orders for cumulation, made by the judge, also be confirmed.
(4)Accordingly, the applicant is sentenced to a total effective sentence, on the three indictments, of 19 years’ imprisonment.
(5)The non-parole period of 14 years’ imprisonment, imposed by the judge, be confirmed.
(6)All other orders, made by the judge, are also confirmed.

[2025] VSCA 7

14 February 2025