DPP v Anderton

1. On the plea I received a victim impact statement from Ms Dowie, who detailed the physical, psychological and social toll which your offending has had upon her. Ms Dowie spoke eloquently about the ongoing struggle with anxiety, fear and loss of control over her emotions, that she has faced since you offended against her. She described experiencing flashbacks, nightmares and intense major depression, as well as becoming more socially isolated and having difficulties engaging in intimacy. Ms Dowie also identified the impact which your offending has had, not only upon her capacity to work but also her capacity to work in an area that she was passionate about. This in turn has had an impact upon her financial circumstances. As Ms Dowie expressed in her statement, the emotional, physical and financial burdens of the sexual assault she experienced will be felt by her for years to come. It is something that cannot be fixed with time or by a verdict. It has affected her loved ones, her future and her overall quality of life.
2. There is no doubt that your offending has had a significant impact on Ms Dowie. I have had regard to the matters detailed in her victim impact statement and have taken the content of her statement into account in sentencing you.

1. It is not in issue between the parties that your offending in this case was serious offending. Rape is an inherently serious offence as reflected in the maximum penalty and standard sentence imposed by Parliament.
2. However, Mr McPhie on your behalf submitted that there were a number of features of your offending which makes it less grave than other offences of this kind. In particular, he submitted that your offending occurred in the context of initially consensual sex with no pre-meditation, planning or intention to commit rape. He submitted that your behaviour was not overtly predatory behaviour; was not motivated by a desire to dominate, hurt or exercise control over the victim; and did not involve the use of threats or gratuitous non-sexual violence. The offence was not committed in company, there was no weapon used, and the fact that a condom was not used was a consensual and normal part of the relationship between you and Ms Dowie. Further, he contended that the duration of the offending was relatively short, being in the order of three minutes.
3. Mr Cordy similarly submitted that the objective gravity of your offending places it below the middle of the range of the objective gravity for this kind of offending. He agreed that there was an absence of a number of aggravating features as detailed by Mr McPhie. However, Mr Cordy also submitted that your offending was still serious offending. He submitted that it had occurred in circumstances where you had breached Ms Dowie's trust. Further, whilst the offending lasted for a period of three minutes, the impacts of that offending on Ms Dowie have been substantial and continue to flow to this day.
4. Whilst I accept that there were many aggravating features which were not present in this case, your offending was still serious offending. As has been identified by the higher courts in this state, the very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is an act of violence whether or not accompanied by violent conduct.[6] As I noted during the plea, whilst three minutes may not sound like an overly lengthy period of time, for a victim three minutes of being violated without consent by a person who they are in a supposedly loving relationship with, in circumstances where their consistent pleas for the behaviour to stop are being ignored, can be an absolute eternity. Further, as in this case, the ongoing effects of that violation can be immense. Having said that, I accept the submissions of counsel that in assessing your offending against the broad range of offences of rape which can be committed, your offending falls below the middle level of offending of this kind.

1. You are now 36 years of age and come before the court with no prior convictions and no subsequent offending.
2. You were born in Bendigo, the first of two children born to your parents. You lived with both of your parents and your little sister who was born two years after you, until you were about five years of age. Your parents then separated and you continued to live with your mother and sister until you were 17 years of age. I note that you still have a good relationship with your mother and sister, both of whom have continued to support you throughout this criminal proceeding and provided references in support of you on the plea.
3. At 17 years of age, you left the family home after being punched in the face by your mother's new partner. You then moved between the home of your then partner - Ms Lauren Stokes[7] - and her family, and your grandparent's home, before buying your own home in 2009.
4. You were in a relationship with Ms Stokes between 2004 and 2014 and you have two children together. Your son, Chris, is 13 years of age whilst your daughter, Samantha, is 11 years of age. Following your separation, you and Ms Stokes maintained a good relationship and shared the care of the children. The children would stay with you every alternate weekend and at other times as agreed.
5. It is apparent from the references tendered on the plea that you are, and have always been, a devoted father to your children, as well as someone who has a strong sense of family responsibility. Each of the references from your family members (both immediate and extended) and friends spoke of the care and commitment you have shown towards each of them over the years.
6. I am also told that you have a solid education and work history. You completed Years 11 and 12 at Bendigo Senior Secondary College, whilst at the same time working for a local primary school as an information technology assistant. Upon completing a VCE you were accepted into a university degree but chose to defer that course in order to commence a traineeship at Waroona College. You completed that traineeship at the same time also attaining a Certificate IV in Information Technology. You then worked in information technology support for a number of years before commencing work at the Bendigo Bank in 2012. At the time of trial, you were still working for the Bendigo Bank, however, understandably, you resigned following the jury verdict.
7. Your value as an employee and co-worker is reflected in the references from your colleagues which were tendered in support of you on your plea. It is clear that you were considered to be a trusted and respected team member who not only had subject matter expertise but who would also always have time to assist others around you - especially those who were more junior, or with less knowledge. I note that each of the authors of those references, like your family members, have acknowledged the seriousness of the current offending but have expressed their continued support of you into the future.

Mental Health Issues and Burden of Imprisonment

1. On the plea three psychological reports were tendered on your behalf. Two of those reports were authored by your treating psychologist, Mr Adam Ferronato, and were dated 12 July 2024 and 11 March 2025 respectively. The other report, dated 2 April 2025, was authored by forensic psychologist Mr Jeffrey Cummins.
2. You commenced attending counselling sessions with Mr Ferronato in November of 2020, which was within two months of the offence having occurred. According to Mr Ferronato you presented in circumstances related to distress caused by your relationship with Ms Dowie. She had moved out of your home and then returned to reside with you, and you reported that relational instability was impacting on your sleep and causing you daily distress. You presented with a goal of wanting to better manage your relationship with Ms Dowie.
3. You initially had weekly and then subsequently fortnightly sessions with Mr Ferronato to address those issues. By the time of the second report in March 2025 you had attended over 80 sessions with Mr Ferronato, and at the time of remand you had completed somewhere in the vicinity of one hundred hours of treatment. Whilst treating you, Mr Ferronato diagnosed you as suffering from episodic depression, with your depression over the period of treatment fluctuating from a normal level to a severe level, and a social anxiety disorder with you scoring in the high range for social anxiety. Mr Ferronato also suspects that you may have an autism spectrum disorder, but this has not to date been formally diagnosed and would require further assessment by a psychologist specialising in that area. In Mr Ferronato's opinion you show no evidence of a personality disorder, and you represent zero threat to the community either currently or historically. In his brief update report of 11 March 2025, Mr Ferronato expressed concerns for your welfare and mental health whilst in custody given the ongoing fluctuation of your mental health issues in the period leading up to, during, and post-trial, the impact of your separation from your children and your lack of criminal background.
4. Mr Cummins, who assessed you after you had been remanded and for the purposes of your plea, was of the view that you were at the time of the offending suffering from the symptoms of a major depressive disorder with associated features of anxiety and traumatisation, which were at times moderately severe and at other times severe. He was further of the view that you are still suffering from symptoms of a major depressive disorder, although your current symptomology is moderate and reflective of your current situation of coming to terms with the jury verdict and your impending sentence. Whilst Mr Cummins acknowledged that after you are sentenced your mental health may deteriorate, he noted that you are not currently receiving any treatment in custody and that you are of the view that you will find ways of coping with any deterioration of your mental health if it was to decline.
5. As part of his assessment of you Mr Cummins assessed your risk of committing a further sexual offence. He assessed your overall risk for committing a further sexual offence as being low. He did not diagnose you as having any specific sexual deviance and did not assess you as displaying a misogynistic attitude at interview. Indeed, he noted that you spoke about any perceived difficulties on Ms Dowie's part in a respectful manner. Further, Mr Cummins noted that during the assessment, whilst maintaining that you did not sexually abuse or rape Ms Dowie, you did express concern for her.
6. Mr Cummins ultimately proffered the opinion that without in any way intending to minimise the seriousness of your offending and the jury verdict, your offending was situationally motivated, with it occurring in the context of a turbulent relationship which you had difficulties managing in an appropriate way. He is of the view that there is no clinical need for you to participate in offence-specific treatment, although he noted that you had agreed to engage in offence-specific treatment if required to do so.
7. Mr McPhie submitted on your behalf that the fact that you were suffering from mental health symptoms at the time of your offending, being a major depressive disorder of a moderately severe to severe type, is relevant to your state of mind at the time of your offending. Mr McPhie relied on Mr Cummins' opinion that your offending was situationally motivated and occurred in the context of a turbulent relationship which you had difficulties managing in an appropriate way, as being relevant to an assessment of your moral culpability. In particular, he submitted that there was a link between your mental health issues and your offending, and accordingly your moral culpability for your offending is somewhat reduced.
8. Mr McPhie also submitted that, given your ongoing symptoms of major depressive disorder and Mr Cummins' opinion that your mental health may deteriorate in custody given your separation from your children, any term of imprisonment will weigh more heavily upon you than it would on someone who is not suffering from those same mental health issues.
9. Mr Cordy on behalf of the prosecution did not take issue with Mr Cummins' opinion that your offending was situationally motivated. However, Mr Cordy submitted that the psychological material tendered on the plea does not show any link between your psychological condition and your offending, rather, Mr Cordy submitted the material reveals that yours was a spur of the moment offence wherein you made a poor decision in the heat of the moment which resulted in drastic consequences.
10. Further, Mr Cordy contended that the psychological reports do not establish that your mental health issues are of such an order that your time in custody will be more burdensome than that of any other person who does not have those same issues. He submitted that many prisoners suffer the effects of separation from their children and there is nothing out of the ordinary in your case which would enliven a reduction of sentence on that basis.
11. Having regard to the psychological material before the court, I accept that at the time of the offending you were suffering from a major depressive disorder. I also accept that your offending was situationally motivated. However, I do not agree with your counsel's submission that Mr Cummins' opinion links your mental health issues to your offending in the manner required for your moral culpability to be reduced. Whilst your mental health issues and the difficulties which you were facing in your relationship contextualise your offending, there is insufficient material upon which I could come to a conclusion that your major depressive disorder played a part in either your decision or your understanding of the consequences of your decision, to continue to penetrate Ms Dowie after she had withdrawn her consent.
12. Insofar as the extent to which your mental health issues will increase your burden of imprisonment, I am willing to accept on the basis of the material before me that you will suffer some limited increase in your burden of imprisonment by reason of your mental health issues as compared to those who do not suffer from the same issues. I acknowledge that you are not currently medicated in custody for your mental health issues and according to Mr Cummins' assessment are currently only displaying moderate symptoms of your major depressive disorder. I further acknowledge that you have professed an ability to deal in a custodial environment with any deterioration in your mental health symptoms. I note, however, the concerns raised by Mr Ferronato who is your treating psychologist, has engaged in over 100 hours of treatment with you over the past four years, and has reported significant fluctuations of your mental health symptoms over that time. I accept that you are currently suffering some symptoms of your major depressive disorder and that your symptoms have the potential to be exacerbated in the custodial setting given the added impact upon you of separation from your children. In all of the circumstances I do take this factor into account in your favour, but only to a limited degree.

1. Turning now to the issues of the impact of delay and your prospects of rehabilitation. As already identified, the offence for which you fall to be sentenced occurred on 4 September 2020. However, due to the delays in Ms Dowie reporting the matter to police and delays in the police investigation, you were not interviewed until October of 2022 and were not charged until June of 2023. Your matter was committed to the County Court in March of 2024, and it then took almost another 12 months for the trial to proceed. Accordingly, you now fall to be sentenced almost five years after the offending occurred. This is a considerable delay.
2. It was submitted by Mr McPhie on your behalf that delay is a mitigatory factor in this case in two ways. Firstly, you have had this prosecution hanging over your head for approximately two years and have therefore been held in a state of uncertain suspense as to what will happen for an extended period of time. Secondly, you have shown during the period since the offending that you have excellent prospects for rehabilitation. Mr Cordy did not take issue with this submission.
3. As identified by your counsel, it is well established that a significant delay between the laying of charges and trial can be a powerful mitigating factor where that delay occurs through no fault of the accused. I note that the fact that an offender exercises their right to contest criminal charges will not be considered the fault of the offender for the purposes of considering the effect of the delay on them and the extent to which the delay is mitigatory.[8]
4. There are two limbs to delay as a mitigatory factor. The first limb concerns unfairness to the offender in the sense that the relevant charge has been hanging over the offender's head and causing him or her anxiety. The second limb concerns whether during the period of delay the offender has made progress towards rehabilitation and whether there are good prospects of rehabilitation. This second limb has two aspects: first, whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse; and second, whether the offender has taken steps to reform, including by seeking counselling or other professional assistance, refraining from committing further offences and being a valuable member of the community. Both aspects of rehabilitation must be demonstrated in order for the court to give full weight to that second limb.[9]
5. In my view it is clear from the material before me that delay in this matter coming to a conclusion, whilst not extensive, has caused you ongoing anxiety as reflected in Mr Ferronato's report. That impact is a relevant matter in mitigation of sentence. Accordingly, I have taken into account as a mitigating factor that you have had the weight of this matter and the uncertain suspense as to the possible consequences, hanging over your head since you were arrested and interviewed in October 2022.
6. Further, it is apparent that you have taken significant steps towards rehabilitation in the time since the offending itself. You have remained offence-free, engaged in extensive counselling over a four-year period of your own volition, complied with bail conditions and an intervention order which were imposed upon you, and continued working and caring for your children. You have retained the support of family, friends and colleagues.
7. Additionally, you have continued on a rehabilitative path since being remanded in custody. I am told that you initially spent four days in police cells, followed by a further four days in mainstream custody at the Metropolitan Remand Centre ('MRC'), which resulted in you being placed into 23-hour lockdown. You were then moved to a protection unit at the MRC before being transferred to Marngoneet. Since your arrival at Marngoneet you have undertaken a number of short courses including a number of prison adaptation courses, a food handling course and an occupational health and safety course. You have also commenced a business course; have participated in literacy and mathematics assessments and have been recommended for the role of prison peer support worker, a role where you would assist other inmates to improve their reading skills. You have not to date been able to undertake the latter role as you can only commence this once you are a sentenced prisoner. It is clear from all of the above that you have been, and will continue to endeavour to be, productive in custody and use your time to better yourself and assist others.
8. Moreover, you have been assessed by Mr Cummins as a low risk of re-offending in a sexual manner and do not have a clinical need to participate in offence-specific treatment, although you have acknowledged that you would engage in such treatment if required to do so.
9. I accept that each of these matters are relevant matters to take into account when assessing both the effect of the delay and your prospects of rehabilitation. Clearly, I am not able to give full weight to rehabilitation as a mitigating factor in circumstances where you have not acknowledged or shown full remorse for your offending conduct, albeit I note that you did take steps to assist Ms Dowie in the aftermath of the offending, and in more recent times you have expressed concern for her ongoing welfare. However, I am of the view, taking into account all of the material before me, that you have commenced on a path of rehabilitation during the period of delay and that you do have excellent prospects of rehabilitation. Accordingly, I have placed weight on this aspect of delay as a mitigatory feature in your case and have taken your excellent prospects of rehabilitation into account when considering the structure of your sentence.

1. As I have already noted, the Sentencing Act requires me to take into account the standard sentence of 10 years' imprisonment as one of the factors relevant to sentencing. Further, in fixing a non-parole period for a standard sentence offence, s11A of the Act requires me to fix a non-parole period of at least 60 per cent of the total effective sentence, if the total effective term of imprisonment is less than 20 years, unless I consider it to be in the interests of justice not to do so.
2. Pursuant to s5A(1)(b) of the Sentencing Act, 'the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.
3. Section 5A(3) states that objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to a particular offender or class of offenders and wholly by reference to the nature of the offending. The nomination by the legislature of a standard sentence does not make that sentence a starting point from which to add or subtract time. As explained by the Court of Appeal in Brown v R [2019] VSCA 286, this requirement is to be treated as a 'legislative guidepost', having the same function as the maximum penalty; does not affect the established 'instinctive synthesis' approach to sentencing; does not require or permit 'two-stage sentencing'; and does not otherwise affect the matters which the court may, or must, take into account in sentencing.[10]
4. The requirement to take into account current sentencing practice as one of the factors in the instinctive synthesis still remains even when sentencing under the standard sentence regime. However, pursuant to s5B(2) of the Sentencing Act, when considering current sentencing practice for a standard sentence offence, the court must only have regard to sentences previously imposed for the offence as a standard sentence offence. It follows that non-standard sentence cases are only relevant insofar as they relate to sentencing principles, they cannot be relied upon in respect of the actual sentences imposed.

1. There is no issue that you should be sentenced to a term of imprisonment in respect of the charge before the court today. In fact, both counsel submitted that a term of imprisonment with a non-parole period is the only appropriate disposition.
2. In assessing the length of sentence to be imposed, Mr McPhie on your behalf submitted that the objective gravity of your offending falls well below the middle range of seriousness for this kind of offending and that there are significant mitigating factors to be taken into account including your lack of prior or subsequent convictions, your otherwise exemplary character, your excellent prospects of rehabilitation, the impact and effect of delay in this matter and the added burden upon you of your imprisonment. He further submitted that in all of the circumstances it would be in the interests of justice in your case to impose a non-parole period below the legislative requirement of at least 60 per cent of the head term in order to allow for your continued rehabilitation in the community.
3. Mr Cordy submitted that it was a matter for the court as to whether it is in the interests of justice not to fix a non-parole period of at least 60 per cent of the head term.
4. Both Mr McPhie and Mr Cordy referred me to cases where sentences have been imposed for rape following the commencement of the standard sentence regime on 1 February 2018.[11] Both counsel expressed difficulty in locating comparative cases involving a failure to withdraw which had been determined since that date. Ultimately only one decision, which originated from this court, was able to be provided by the parties which carried any similarity to your case. In my view, this is a reflection of two things: first, the relatively short period of time that the standard sentence regime has been in place, and second, the fact that the offence of rape can be committed by all sorts of people and in all sorts of circumstances.
5. Despite these difficulties I have had regard to each of the post-standard sentence regime sentences referred to by counsel bearing in mind that each of those cases turn, as they must, on their own facts and the sentencing judge's intuitive synthesis of those facts in light of the applicable sentencing principles. At best they can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available, and as examples of the application of the relevant sentencing principles applicable in the area. Ultimately, whilst I have had regard to the issue of current sentencing practice, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.

1. The only purposes for which a sentence may be imposed are set out in s5 of the Sentencing Act. Those purposes are just punishment, deterrence (both general and specific), rehabilitation, denunciation and protection of the community. General deterrence, denunciation and just punishment are all weighty sentencing purposes in this case. The sentences which I impose in this case must act as a deterrent to others who are minded to commit such crimes against their partners and must reflect the community's and the court's denunciation of your conduct, whilst still being a just and appropriate punishment in all of the circumstances.
2. However, given your lack of prior history, low risk of re-offending and the steps you have already taken towards rehabilitation, the weight to be given to specific deterrence and community protection in the sentencing synthesis is substantially tempered. Further, as I have already identified earlier in these reasons for sentence, you come before this court with no prior or subsequent history and have excellent prospects of rehabilitation. Accordingly, despite the seriousness of the offending, I am of the view that rehabilitation still has a significant role to play as the sentencing purpose in your case.

1. Finally, I acknowledge that the sentence I am about to impose on Charge 1 is lower than the standard sentence for that charge. I have considered the standard sentence as one of the factors in my instinctive synthesis of the relevant facts and principles. However, having regard to all of the matters I am required to take into account in sentencing you, including those features that weigh in aggravation and mitigation of penalty, as outlined in my reasons for sentence, I am of the view that a sentence lower than the standard sentence is appropriate. I am also of the view that it is in the interests of justice to impose a non-parole period which is a bit less than 60 per cent of the head term taking into account all of the factors in this case and in particular the gravity of the offending, your lack of prior and subsequent convictions, your strong work history, your otherwise good character prior to and post this offence, your excellent prospects of rehabilitation and the slightly increased burden of imprisonment upon you.
2. Having said that, I note in sentencing you that I have also borne in mind that you may be required to serve every day of the sentence I impose and I have taken care to ensure that the sentence imposed is still an appropriate one if you are required to serve every day of it.

1. Mr Anderton, I am now going to announce the sentence.
2. On Charge 1, rape, you are convicted and sentenced to a term of imprisonment of four years and six months.
3. I direct that you serve a minimum period of two years and six months' imprisonment before becoming eligible for parole.

1. Pursuant to s18 of the Sentencing Act, I declare that a period of 91 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
2. Are there any matters which counsel wish to raise before I just check on ancillary orders about the sentence or the reasons for sentence at this stage. Mr McPhie.
3. MR McPHIE: No, Your Honour.
4. HER HONOUR: Mr Cecil.
5. MR CECIL: No, Your Honour.
6. HER HONOUR: Thanks Mr Cecil. All right, and there are no ancillary orders.
7. MR CECIL: No.

1. As a matter of completeness I note that no ancillary orders were sought by the prosecution.

[6] See, eg, DPP v Mokhtari [2020] VSCA 161, [41].

[8] See, eg, R v Merrett, Piggott and Ferrari [2007] VSCA 1, [35]; and Arthars v The Queen [2013] VSCA 258, [27].

[9] See, eg, Tones v R [2017] VSCA 118, [42].

[11] Mr McPhie referred me to the cases of Lockyer (a pseudonym) v The Queen [2020] VSCA 321, DPP v Beck [2021] VSCA 8; and Clarke (a pseudonym) v The Queen [2022] VSCA 89. I note that the material facts of each of these cases were inherently different - not least because none of the cases involved a failure to withdraw. The personal factors of each accused also varied greatly. Mr Cordy referred me to three cases, two of which pre-dated the introduction of the standard sentence regime. The third case, which post-dated the standard sentence regime was DPP v Bechaud [2024] VCC (Judge Gaynor, 25 October 2024). The sentence in this case was imposed following trial, and in circumstances where the factual scenario was one of withdrawn consent.