DPP v Cabrera

1. On a guilty plea, there is usually a written statement as to the facts presented to the court. Most often it is an agreed statement as between the parties.
2. That position never prevails in a trial setting of course. In a trial setting, witnesses are called, and evidence is placed before a jury either from witnesses or by way or exhibits or agreed statements. That is what happened here, but with most of the evidence being the pre-recorded evidence from that earlier trial.
3. On some occasions following a trial, it is not actually that easy to determine the factual basis of sentencing, especially in a trial where there might be mixed verdicts from the jury. I should say there were no mixed verdicts in this case.
4. Obviously, a guilty verdict will always signify that the jury was satisfied beyond reasonable doubt as to the proof of the elements of the offence. That finding though will not necessarily convey an acceptance of some of the factual allegations that have been placed before the jury.
5. A judge is always required to interpret the verdict and to sentence consistently with the verdict of the jury.
6. Having said all that though, the factual basis of sentencing is not at all difficult to determine in this case. No suggestion to the contrary was raised by

Ms Skvortsova. 7. Given these verdicts, the jury has plainly accepted the complainant, Mary Paspalis, as a witness of truth in the critical areas and one giving a reliable account of what took place. Her description of the events on the four occasions has been accepted by the jury. They have accepted her account beyond reasonable doubt as to the happening of these seven acts on these four occasions. They were satisfied beyond reasonable doubt that you touched her sexually in the way alleged in relation to Charges 4, 5, 6 and 7, compelled her to touch you sexually in the way alleged in relation to Charge 2, and that you raped her in the manner particularised in relation to Charges 1 and 3. Necessarily then, they accepted her account that each act took place, that she was not consenting and that you, at the time, had no reasonable belief that she was consenting. 8. The jury verdicts were of course based on the assessment that they, the jury, made of all the evidence placed before them in the course of the retrial. 9. The evidence as to what took place within that house on those four occasions was led from your direct victim, your ex-partner, Ms Paspalis. As I said a moment ago, that evidence was the pre-recorded evidence from the earlier trial where the prosecutor was Mr Hardjadibrata and defence counsel was Mr Steven Anger. There was a good deal of editing required and much of that was provoked by some of the pretty extravagant conduct of Mr Anger. The parties generally reached agreement as to the need for that editing to take place and did not need to refer the matter to me. I will say no more about it other than to note that

Ms Skvorstova was not responsible for that extraordinary cross-examination or the defiance of the authority of the court embraced by Mr Anger's approach to his task. His conduct was remarkable and not in a good way. It remains the position though that much of the cross-examination must have been based on your instructions, including the s342 leave granted for her to be cross-examined as to a number of quite separate and discrete full consensual sexual acts which were said to have taken place. Acts that she totally rejected. Acts I am satisfied beyond reasonable doubt did not take place. An account that can only have emanated from you and one I am satisfied beyond reasonable doubt was false and created by you and put to the victim to seek to falsely illustrate the consensual nature of the existing relationship. This in a setting where the jury was deprived, as they had to be, of the true setting of the 'campaign' that you had waged against her in 2017 and 2018, the persistent contravention of the previous family violence IVO, the stalking, the burglary, the cutting up of her clothes and the fact that you had been sent to prison. All that is referred to in the Yeoman summary. 'Campaign' is not too strong a word. The jury knew none of that and of course all of it would count strongly against the suggestion that was made at trial to her, on your instructions, that she willingly continued in a sexual relationship with you in this later time frame covered by the indictment charges. It was even put to her by Mr Anger that she was making up the allegations because she was jealous of your new relationship with your then new partner. She denied that. The contemporaneous texts she sent you in September 2019 strongly supported that denial, with her saying she was glad to hear you were with other people, but really did not need to know. What the jury was deprived of no doubt was the great relief she must have felt that you had found a new partner, given the ordeal she had been subjected to in 2017 and 2018 leading into your imprisonment in July 2018. I am not going to summarise that long Yeoman summary. It sets out the obsessional fashion in which you were tracking her. The jury were ignorant of the account that you gave on the Yeoman brief at paragraph 50 of your motivation for some of the conduct where you said amongst other things 'I've loved this woman since the day I met her, always will, always have' and 'something snapped and I just wanted to see her', 'I miss seeing her every day I really do', 'I just wanted to see her or at least look at her so I jumped the fence'. The jury were ignorant of the fact you had been stalking her, following her, setting up false accounts to communicate with her and so on. This perverse cross-examination as to her jealousy must have come within a whisker of the Crown applying to the first trial judge for leave to lead some of this additional material. 10. You did not give evidence at trial, as was your right. 11. There was a pretext call in late 2020 and despite the many admissions made within it, you still conducted a trial, as was your right. That pretext call does not in my view convey any remorse when viewed as it must be as an exchange taking place sometime after the last event, one your own counsel urged the jury to accept may have involved an aspect of you placating the complainant and, hence, not arguing the toss as to what she said, even though you may have disputed her assertions. It also has to be seen in light of the inventions that you brought to the table in the course of the trial, being the creation of an ongoing sexual relationship, which was plainly a fiction created by you. Also, the fact that at trial, both the first trial and the retrial before me, you were disputing the second element, that she did not consent. So whatever may have been said by you in the pretext call, consent was still in issue, so too the truthfulness of her description of the surrounding circumstances as well as the third element, your state of mind. 12. So it was then, as I say, the retrial was predominantly done on the pre-recorded material. 13. Plainly, as I have said, the jury was satisfied of her account beyond reasonable doubt. They accepted her as a reliable and truthful witness when she gave her account of what you had done to her on these occasions in question. I am not surprised. Though I did not see her live as a witness, I saw the pre-recordings, she was an excellent witness despite the battering, bruising approach taken by

Mr Anger, an approach perhaps more in tune with the way these matters were conducted about 40 years ago. The great advantage of the retrial for you was that the editing process removed virtually all of Mr Anger's pretty extraordinary and unnecessarily confrontational approach with the first trial judge and the asides made in the presence of that first jury. 14. I will not descend to the transcript of the evidence in this matter. I see no need to. As I have said, she obviously swore up when she was called back in 2023 at the first trial. That edited version was placed before the second jury. The factual basis of sentencing is adequately summarised in the amended summary of prosecution opening for trial dated 26 February 2025. 15. I will give only a summary of the facts, and that is so my sentence does not exist in a vacuum for anyone who happens to access these reasons when they come to be published. I should make plain and I am sure Ms Paspalis will understand this, there will be a process of anonymisation. She will not be identified. 16. It became clear that the indictment was not laid out chronologically in the sense that a number of the charges had the same between dates periods, but Ms Paspalis provided much greater specificity in her account. 17. The brief summary then is as follows: the victim is Mary Paspalis, who was born in 1977. She was 41 or 42 at the time of these events. You and she had been in a relationship for some years and had broken down in 2016 or 2017. You had one child together, Sara[3], born in March 2016. She was but a toddler at the time, aged from two to four years of age. Ms Paspalis had a child from an earlier relationship and that was Lucy[4] who was born in May 2009. So she was 9-11 at the time. 18. I have mentioned the conduct leading into the Magistrates' Court case in July 2018 when you were imprisoned. As I have said, necessarily, the jury knew of none of that conduct. They did not know about the prison term. They did not know about the community correction order. But in October 2017, a family violence intervention order had been granted prohibiting any approach being made to her. That expired on 30 October 2018. By then of course, you were in prison and had been for some months, having totally ignored that order. Again the jury had no idea of that. You were released onto the community correction order on 4 November 2018. The first incident took place a week later on 11 November 2018. A less promising setting for her to be engaged in an ongoing consensual sexual relationship is hard to envisage, but as I say you were shielded from that reality by the inability of the Crown to lead that material. 19. Charge 1 on the indictment is a charge of rape by digital penetration taking place at Drews Road between 10 and 14 November 2018. That is the first incident. You came around in the morning on a Sunday, to see the two girls, Lucy and Sara, and on that occasion, you left the girls in the backyard and came inside where Ms Paspalis was vacuuming. You came towards her and gave her a hug. This was in the back lounge room, and she said she was pinned against the wall and you were nibbling her ear in the lounge room and put your hand down her pyjama pants. She was saying 'no, stop, we are not together'. You said 'you used to like this, we both did'. She tried to wriggle free and was saying 'stop' but you did not. You put your hands down the front of her pyjamas. She said 'stop please'. You did not. You put your fingers into her vagina. She continued to tell you to stop and she said 'the girls are just outside. they'll be in'. You took your fingers out after couple of minutes. So that was the first incident on a Sunday in November 2018, and she went to the police within a few days. The evidence discloses that she went to the police on Thursday 15 November and spoke to Yeoman. The intervention order was obtained the next day, 16 November. 20. The next matter in chronological order according to the evidence of Ms Paspalis, are Charges 6 and 7 on the indictment. On the indictment they have the between dates period 1 April 2019 and 1 July 2020. Ms Paspalis stated that they occurred in April 2019 when you came around to bring the two girls some Easter eggs. 21. Charge 6 is a charge of sexual assault. Ms Paspalis was in the kitchen doing the dishes at the sink and you came up behind her, while she was facing towards the kitchen sink, and you cupped both her breasts with your hands, saying 'how you missed her boobs'. She told you 'to stop'. Charge 7, also a charge of sexual assault, occurred following Charge 6 at the kitchen sink, and initially you tried to get your hands down the back of her pyjamas but she clenched her thighs and prevented your hand from going under. She pushed you backwards. She was pushed up against the sink and you said 'why not. you used to love this?' You put your hands down the front part of Ms Paspalis's pants and got it down to her pubic bone area. She tried to elbow you. She had told you to stop and as you were trying to reach into her pants she said 'I don't want it. Stop'. Then one of the girls came in and only then did you stop. She said this was the second incident, occurring in April 2019. 22. The next matter in date order, is Charge 4 and then the related Charge 5. The indictment states that these occurred between 1 April 2019 and 1 July 2020.

Ms Paspalis stated that they occurred towards the end of 2019, in around November she believed. It was night-time and you were sitting in the lounge room. You knelt in front of her and started rubbing her legs and getting higher and higher towards her thighs. She was saying 'stop. This is enough'. 23. You then put your hand down the front of her pants and got as far as the top of her pubic bone before she kicked and pushed you back. That is Charge 4. Charge 5 is also a charge of sexual assault and you put your head down in her crotch area, so between her legs. She was trying to push your head away. You were saying 'you used to like doing this. I remember how much you used to like it when I went down on you'. She was saying 'no stop' and was asking you to leave. She had been clutching her legs together as hard she could when your hand went down her pants and was able to kick and push and you said 'why, why do I need to stop'. So Charges 4 and 5 relate to that incident, the third in date order, around November 2019. 24. The final incident chronologically is the subject of Charges 2 and 3 on the indictment. The indictment states that they occurred between 1 April 2019 and

1 July 2020. Ms Paspalis stated that they occurred in around February 2020. 25. Charge 2 is a charge of sexual assault by compelling her to put her hand on your erect penis. This occurred one night after you had dropped some money off for the girls. Ms Paspalis was in bed as she had an early shift the next day. I interpose, she was a nurse. She had got up to speak to you and escorted you to the door, at which point you leant in to kiss her. She thought it was to be a hug or kiss on the cheek. It wasn't. Instead, you pinned her up against the doorframe between the playroom and the hallway, against which she was leaning. She told you to stop. You did not. You unzipped your pants and pulled down your underpants and grabbed her hand and put it on your erect penis. That is Charge 2 26. Charge 3 followed Charge 2. This is the second charge of digital rape. You put your hand down the front of her pants and put your fingers between her legs and into her vagina. She was telling you 'to stop' and getting upset as your hand went down her pants. Your fingers remained in her vagina for a couple of minutes. You pulled them out and said words to the effect 'ooh you feel different this time'. She told you to leave and reiterated 'that just doesn't happen, it shouldn't happen and it's wrong.' It was not what she wanted. She told you she did not understand why you did not listen when she says no. You did not react. You just left. So that doorframe incident is the last chronologically taking place she said in February 2020. 27. I mentioned earlier that she went to the police after the first incident that I have described, attending the police on 15 November 2018 and the following day an intervention order was made by consent. She had not gone into the detail with the police as to what had taken place, but intimated that there had been some unwelcome sexual conduct. That order had a condition that you were prohibited from being sexually abusive towards her or approaching within 10 metres of her. 28. Those conditions persisted throughout the subsequent offending I have just described. 29. On 8 May 2020, Ms Paspalis attended Waurn Ponds police station and reported other alleged breaches of the intervention order. 30. On 1 July 2020, Ms Paspalis attended an options talk with the police regarding alleged offending of a sexual nature. 31. On 28 July 2020, Ms Paspalis provided the police with her mobile phone, and they downloaded the data from that phone. That data included SMS is with you between August 2019 and July 2020 when she used the mobile phone. There were some damaging texts, including the one conveying her lack of jealousy and her being glad that you were out enjoying yourself again, and you mentioning in November 2019 that she hates your touch, and in February 2020 that you were just 'the crazy ex that cannot keep his hands to himself.' 32. Between 19 October 2020 and 22 December 2020, Ms Paspalis detailed her sexual complaints to the police with the statement being finalised in December 2020. 33. I have mentioned already that there is the pretext call that was conducted on

21 October 2020. It was in my view an extremely damaging call for you. 34. In dispute in this case were the surrounding circumstances of the acts. It was being suggested by the defence that there were many sexual acts occurring in the time frame and that they were all consensual, that her account of saying no and conveying lack of consent by word and deed was in dispute. The absence of consent was in dispute and so too the proof of the required mental state on your part. 35. Well, as I have said, the jury were satisfied beyond reasonable doubt that each of these acts took place in the circumstances described by her. They were satisfied beyond reasonable doubt she was not consenting and satisfied beyond reasonable doubt that you had no reasonable belief that she was consenting. That can be established in one of three ways. I am satisfied beyond reasonable doubt you believed she was not consenting. What else could she say? What else could she do but convey as directly as she did by word and by deed that your conduct was not welcome and must stop? You just completely ignored her because you could. You overcame her physical, and verbal resistance because you could. 36. So much then for my summary of the offending. Obviously, there is greater detail that can be found in the trial evidence. I have not even mentioned Lucy's evidence for instance. That is the older of the two girls, who observed and overheard some untoward conduct. In the scheme of this trial, it did not really amount to too much. 37. I see no need to go into more detail as to the facts, as there really is no controversy as to what these verdicts mean or the factual basis of sentencing. 38. I have said already, you have been in custody since the day of the verdict on the re-trial.

1. I am engaged in a sentencing exercise following a retrial. I saw fit to mark as an exhibit, though probably did not need to, the sentencing remarks of the earlier judge. They were marked as Exhibit B. She refers to the impact material placed before her. I have a later impact statement, an addendum really, and it was read aloud by Ms Paspalis who attended court in person to do so the other day. I have considered the extent to which I go into the detail of it. I do not really see the need. It is obvious that the impact of these crimes has simply been profound. You have impacted upon virtually every aspect of her life She has done what she can to grapple with and deal with the trauma arising from your crimes. She has had counselling. Her life has been on hold. The torturous path of the trial process and the appeal process and the retrial has been exquisitely painful for her. She speaks in this second impact statement of the length of the journey to this point. She speaks of the impact upon her children. Much of this impact statement placed before me relates to the chronology and of course I cannot punish you for the fact that there was an error in the first trial and the need for a second. She hopes for some finality. That is, I am afraid, beyond my capacity to confer, as you have rights in relation to the sentences that I will be pronouncing, as indeed in relation to any verdict. It is readily apparent that your serious crimes have had an enormous impact on her, and I take that into account as I must. I do not let the impact swamp my due consideration of the many other matters which I am required to take into account.
2. I do though take into account the impact of your crimes.

1. Ms Skvortsova conducted the re-trial and then the plea in mitigation on your behalf. I am acting on the materials placed before me on this plea, not the things relied upon at the earlier plea. Some of the earlier materials from the first plea were filed again by the Crown, but that was not the position for the defence exhibits. As an example, there was reliance at the time of the first plea upon a report from

Dr Cunningham. That report came in for a bit of criticism by the earlier Judge and was not placed before me. 2. Ms Skvortsova relied upon a seven-page written outline of submissions on the plea dated 8 May 2025. She filed a very lengthy report from a neuropsychologist,

Dr Laura Anderson, as well as a number of course completion documents, some character references and finally the existing family violence intervention order. 3. That report of Dr Anderson went into great detail as to your background and the written outline descended to some detail as well. There was less focus on that level of detail in the oral submissions placed before me. 4. Either by reference to the report, or the oral or written submissions on the plea, I was informed as to your family background, as well as your educational, employment and relationship history. Your counsel made some submissions as to your prospects of rehabilitation, focussing on the absence of any history before the court until 2018 for offending in 2017 and 2018, and the absence of any subsequent matters since. So a significant period where you had been offence free. She stressed you had left Ms Paspalis alone for a sizeable period. She relied also on the significant period that you have spent in custody, as well as the rather tortured chronology, being on bail, on remand after the verdict in the first trial back in 2023, then sentenced, then bailed pending the retrial, and now back in custody. You had done courses and programs in custody, had worked both whilst in custody and upon your release, and you in fact had a good employment record. You had re-partnered and had support from her family and other support and you had reduced your use of alcohol. I must say I do not see that alcohol is in any realistic way implicated in any of this offending. 5. Your Counsel addressed the court as to the level of objective seriousness of the offences, conceding that all the offences occurred in the context of a previous intimate partner relationship, that you were on a community correction order at the time of the offending, and also the subject of a family violence intervention order in relation to the last three incidents. The children were present in the house or in the immediate vicinity at the time of the offending. 6. She addressed submissions as to the importance of totality of sentence in my task. 7. She relied principally on the following matters: * Delay; * The application of the principles from the case of Bugmy;[5] * The application of the first, third, fourth and fifth limbs from the case of Verdins[6]; * Extra curial punishment arising from some media reporting of the matter; * The risk of deportation and the application of the principles from the Guden[7] line of authority; and * The strong impact of the previously imposed sentence and the case law supporting the view that only in rare cases would an earlier sentence be exceeded upon retrial. 8. She conceded the seriousness of the offending and that a prison term was obviously required here, and one requiring the fixing of a non-parole period. Though relying on totality of sentence, she recognised that I was dealing with seven charges from four separate criminal episodes. I also had the modification of that principle brought about by the Serious Offender provisions from the point of the third sentence where you fell to be sentenced as a serious sexual offender. She argued that whilst it was not my job to review that previous sentence with a fine-tooth comb and examine it as though to find error, there were some matters relied upon since that plea had been conducted and she argued that you certainly ought do no worse than you had done.

1. Mr McKenry had prosecuted the re-trial and he made some oral submissions on the plea as well. There were also some detailed written submissions placed before me. The Crown did not accept that the principles from Bugmy or Verdins had any application in this case. They spoke of the extent to which the expert relied on your self-report of the background and what that background actually amounted to. One which they argued was not of any real disadvantage such as to attract those principles from Bugmy, where you had a father, a roof over your head, a very strong relationship indeed with your mother and support from her once reunited with her, as you were at the age of five. They made submissions as to what you had achieved in your life and your employment record and the absence of any criminal history prior to 2018. They did not accept that there was any nexus between your background and the offending or any realistic connection between such conditions spoken of by the expert and this offending. They argued that your background was not of any real disadvantage and had just nothing to do with the offending 40 or 45 years later. Any suggestions made by the expert that there was a nexus on a Bugmy or Verdins basis they argued was purely speculative. The Crown position by way of submission was there was no reduction in your culpability, no reason to reduce the weight to be given to specific or general deterrence and no real evidence touching upon any true increased prison burden. They argued that this was extremely serious offending, given the fact of the victim being your former intimate partner, and one who had been offended against in such a way as to lead to the combination type order and your imprisonment in 2018. They argued that you had seriously offended against her within days of release and then later whilst you were the subject of a crimes family violence intervention order obtained to protect her from you. They addressed me as to the task of sentencing after a retrial and took me to some of the statements set out within the decision of Murdoch.[8] The Crown referred me to the comparative cases which had been provided to Judge Hogan. I am not sitting as though in the Court of Appeal examining that earlier sentence for error. I say of those cases provided to me, they are not comparative. Two of them related to sentences for crimes of rape that were not even the subject of the standard sentence scheme (Ashby[9] as well as Flynn[10]). The other two involved guilty pleas. They do not assist me at all.
2. The Director of Public Prosecutions was calling for a head sentence and a non-parole period, but of course your own counsel had already conceded, correctly, that such an outcome was the only outcome open to the court here. The Crown position was that in accordance with that case law to which I was referred, if I reached a view that the sentences imposed previously were manifestly inadequate, that I must exercise my own discretion and impose a greater sentence. They did make application for a sex offender registration order and the making of that order I should say was opposed by your counsel, who argued that the level of risk did not reach the level required under s11 for the order to be made.

1. I will turn to your background relatively briefly. I am not going to set out all the detail placed before me and that is because I am prepared to accept the details of your family background, though not the ramifications of it in terms of some of the submissions made to me.
2. Very briefly then, you are 54 years of age. You were born in Auckland and raised in New Zealand. Your father was a married man but had an affair with a woman. That woman was your mother, and you were born to a teenage mother who was not able to care for you for the first five years of your life. You lived with your father and his wife but still saw your own mother intermittently. So I do accept there was a strangeness to that complex family setting with many half-siblings. You report it was a difficult relationship with your father with some overuse of discipline. Now that matter is purely a matter self-report and you have proven yourself to be a person who is not necessarily all that reliable or truthful. No evidence has been paced before me from any other source or from any contemporaneous documents or account. I accept there would be difficulties in that regard given the passage of time and the absence of child protective intervention. Also that any records, even if they existed, would be held overseas. But your mother is still alive, as I understand it. So, too, many stepsiblings. Your mother was not called, nor any other relatives at all to speak of the nature of that relationship. I have no idea at all if you were actually subjected to excessive discipline. I note that you did not offer any insight to Dr Anderson regarding your early childhood experiences. You were raised in your father's home by your father with your stepmother and many siblings.
3. When you were five, as I understand it, their marriage ended, after which you then lived with your father and your biological mother. So it was a new family unit. You had remained connected with her to that point. You describe the relationship with your mother as always being an extremely close emotional connection and bond, which remains strong to this date. You believe your father was jealous of that close bond. See the report at paragraph 32. Your father died several years ago now.
4. So that was the setting. An unconventional family setting I accept that much, but you had a roof over your head, you had a family unit with your father and your stepmother, you had connection always with your mother, and a very close relationship with her when she resumed living with your father, when you were about five.
5. You wished to become a chef pretty early on and you trained in that regard from a young age. There has been some intermittent work as a truck driver but you have been, as I understand it, a successful chef over many years. You denied that there were any bouts of significant mental health issues throughout your childhood and adolescence. Alcohol has been problematic in the past, but I warrant that that is perhaps not that unusual in that particular industry. You were reportedly diagnosed with dyslexia when you were a child. There is reference to an injury sustained when you were 21, as well as a suicide attempt when you were about 25, with an involuntary admission over in New Zealand. I am told there have been some cardiac issues, but there is no material placed before me as to those or any suggestion made that the physical issues in any way lead to any increased prison burden in this case. I have said already, you formed a very close relationship with your mother. It was a loving and supportive relationship from the age of five.
6. You left the home when you were 15 and I understand that you migrated to Australia in your late 30s or early 40s. See paragraph 33. I believe it was in around 2011, though nothing hangs on that. The reason for relocation was not clear to Dr Anderson, nor to me. You had fathered a number of children in previous relationships but report conflict in those relationships and lack of contact with the children. See paragraph 34 of that report. That is all a bit opaque in a setting where I am dealing with offending in the face of a breakdown of a relationship but that is all that is before me on that score.
7. There is no prior criminal history other than what I have mentioned. The report speaks of your relationship with Ms Paspalis, taking on the role of stepfather to Lucy and fathering a daughter as well with Ms Paspalis.
8. I am told that you have formed a new relationship with your current partner. It is not at all clear to me when that was. Ms Maitland[11] speaks of that relationship starting in 2018 or 2019. If that be so, it was in the currency of the events the subject of this trial. I note that there was indeed reference to your new girlfriend in some of the texts. I am told that she is supportive and positive and she has written that reference.
9. I take into account all of the references. I do not see any need to rehash them in my reasons. I have read them again since the plea. Plainly, you are far more than just the man who has committed these serious crimes, with each of the referees speaking of qualities that they have observed.
10. Dr Anderson had the summary in relation to the 2017/2018 offending for which you were imprisoned and then released onto a community correction order.
11. I see no reference in her report to any account given to her by you about the allegations in this trial. See paragraph 44 of the report.
12. You are man of average to low average intelligence, though no formal testing was conducted. I interpose, nor was any risk assessment conducted. You were engaged in positive impression management in the course of discussions with Dr Anderson. See paragraph 53.
13. Because you are not an Australian citizen, the risk of deportation does arise in this case, and it is no minor matter given the ties that you have established to this country. You told Dr Anderson of your concerns as to the risk of deportation and you were intimating that you would likely appeal any such decision.
14. I said I would not set out the full detail of your background and I have not.

1. Your counsel made some submissions arguing that the principles from the case of Bugmy had some application here. The Crown challenged that submission. Whether those principles apply or not, I would still take into account your background, as after all I am sentencing you and any offenders background is relevant to the sentencing task, obviously enough.
2. An offender's circumstances and their experience during their childhood and in their formative years has to be considered in the court's sentencing task, and that is not just out of some historical curiosity, but because the effects of social disadvantage do not diminish with time. They can have profound and lasting consequences, and they can sometimes explain, but not excuse, offending. Taking lifelong damage that is the result of childhood exposure to violence, or abuse, or neglect into account when sentencing is just the mark of a humane society.
3. Ms Skvortsova argued that the principles derived from that High Court case of Bugmy had some application here. These principles have been referred to in many other cases in this State, including the decision of Herrmann[12] . She argued that she was relying upon those principles in both the specific and general fashion described in the case law, so in those two ways.
4. The application of these principles does not depend upon proof of any causal connection between the background and the offending. There is no need to establish that to lead to the general application. Of course here, Ms Skvortsova was pointing to a nexus.
5. I have your self-report as to your background and when I look at it, one that is not in my view a background of any great disadvantage at all. I recognise recent cases have made clear that to attract these principles from Bugmy, at least in the general fashion, there does not have to be a particular threshold reached of profound or significant disadvantage and that is why I am prepared to take it into account in the general fashion discussed in those cases.
6. I am satisfied that your early background did have a level of disadvantage or dysfunction in those developmental years. It was an unusual family setting. So I give it full weight in the way in which that phrase is employed in the case law, including those cases I have mentioned of Bugmy and Herrmann, but also as mentioned in other cases of Sabatucci[13], Newton[14] and Dhal[15].
7. The case law makes it clear enough though that social disadvantage will not attract the same weight in every case, or in the same fashion. The weight to be given to disadvantage will depend on the nature and extent of that disadvantage, the nexus, if any, with the offending, though, as I say, no causal link is required, and also the nature of the crime or crimes and the relative importance in a particular case of sentencing considerations, things such as deterrence, community protection and rehabilitation. See the case of Terrick.[16] Our backgrounds leave their mark and no doubt yours has left a mark on you to some extent.
8. So I take your background into account, as far as I am able to.
9. I simply do not accept on the balance of probabilities that there is any link at all between your early background and this offending I am dealing with. The nexus is couched amidst so many ifs and various hypothesis that are made. I regard it as completely speculative.
10. I do not accept for one moment that there is that nexus between your background and your offending. I am just not satisfied of that on the balance of probabilities. Dr Anderson is making judgements on materials placed before her as to the reason why you were engaging in 'unwanted sexual advances.' See paragraph 67. Unwanted sexual advances you dispute having even made. She purports to draw a nexus between things happening 40 or 45 years or more previously and this offending. Well what account did you give to her as to the offending? What did she understand about the way this case had been conducted and what was actually in dispute? The pretext call that she did have access to may have been suggestive to her of a process of a man gaining insight, of the 'penny dropping', as it was described in the call. However it was suggested to the jury that part of that call involved you placating Ms Paspalis and saying things in that call you did not really mean, so as not to argue the toss with her or to be seen to be combative. What did Ms Anderson understand were the actual issues in this case and your account of what had taken place? You were through your counsel challenging

Ms Paspalis's account of saying 'no' and 'stop', even whilst those things seem to have been accepted in the damaging pretext call. You were through your counsel putting propositions that you knew to be false (this was at the first trial in terms of the pre-recording), that is the existence of the consensual sexual relationship and acts the subject of the s342 leave application. Your counsel had put to Ms Paspalis (this was Mr Anger, of course) that she was making up the allegations of not consenting. That she was doing that as she was jealous of your new relationship, something that plainly was not correct. I see no relationship at all between what might have happened in the course of your early background and the actual events the subject of these charges. You, like so many men, were unable or unwilling to accept the decision that she had taken about the course of the relationship. You well knew that she had ended it. You were not prepared to accept her decision. As you said in the text, you were 'the crazy ex who would not take no.' As was your right, you challenged Ms Paspalis as to the truth of her account of not consenting. There was a strong factual dispute in this case. It was all a bit bizarre. Yet Dr Anderson seems to simply put aside the factual dispute altogether. I am unable on the balance of probabilities to find any connection between your background and the offending. But I do accept that the principles from Bugmy apply in the general fashion that I have described.

1. For many of the same reasons, I am not satisfied on balance that there is any reduction in your culpability arising from the complex post-traumatic stress disorder or the borderline personality disorder spoken of in the report. I do not doubt that you had those conditions. What effect though did they have? What realistic connection is there to the offending? I am meant to approach a Verdins submission with a degree of rigour. Paragraph 72 of the expert report is a pretty extraordinary paragraph. It builds upon the Bugmy nexus which I have already indicated I am not prepared to act on. Dr Anderson speaks of the likely impaired thinking and judgement. She posits a connection between the conditions and the offending even though she seemingly does not ask you about the offending or your account of it, and you in fact deny it. You deny factual aspects of it. It is a

far-fetched opinion in my view and one I am just not satisfied of on balance. It involves in my view speculation upon speculation, without factoring in your account. You knew exactly what Ms Paspalis was saying. You knew exactly what she wanted - nothing more to do with you sexually. You knew what you wanted and you were just prepared to take it. You just ignored her. You heard and saw her physical and verbal protests but again you focussed on what you wanted and what had been the past dimensions of your relationship when it was consensual. That was, as you well knew, in a very different time phase. In the meantime, she had taken out the first intervention order in 2017. In 2018, it expired but no doubt she had the hope that the prison term imposed upon you and the court ordered community correction order taking effect upon your release would deter you. It did not. There was the issue of the children, your relationship with your daughter and stepdaughter that made ongoing communication necessary. You deliberately breached the intervention order. 2. You raped her within days of release from prison onto the community correction order. You knew she was not consenting, of that I have no doubt at all. You consented to the intervention order and then continued to offend. All the signals were clear to you. You saw them. You just ignored them, and you took what you wanted and knew as you did that she was not consenting. I am not satisfied on the balance of probabilities that there is any realistic connection between the condition spoken of and the offending. With the exception of the fifth limb, I reject the Verdins submissions made on your behalf. There is no Verdins driven reduction in culpability, no reduction in the weight to be given to deterrence, specifically or generally. There is, however, an evidentiary basis for the application of the fifth limb. See paragraph 77. I am prepared to make a modest allowance on the fifth limb. The sixth limb argument was not supported by any evidence, as your counsel accepted, and she withdrew any reliance on that limb. 3. I won't say much more about that report. There was some real extravagance in the opinions offered in my view, opinions derived in part from aspects of self-report from a man who is an unreliable historian and who seemingly has given no account of the offending to the author or his reason for acting in the way that he did. Speculation upon speculation, founded on a shaky foundation provided by you, and with Dr Anderson seemingly not factoring in the factual dispute in any shape or form. She made some statements as to your rehabilitative needs. Unusually, there is no risk assessment placed before me. She said it was beyond her clinical expertise to conduct a formal risk assessment but saw fit though to make some statements as to your risk to Ms Paspalis. What about your risk to other intimate partners in the future who happen to 'call time' on the relationship in the manner that Ms Paspalis did? There is little assistance provided by Dr Anderson in that regard. The matters she puts forward as protective considerations could alter with the breakdown of a relationship and then there are her views as to your personality make up. These things are simply not addressed by her.

1. Your counsel relied in a modest fashion on the impact of adverse publicity as an additional form of punishment upon you. See paragraph 16f. It was put forward under the banner of 'ancillary punishment'. I treat it as a submission made as to the impact of extra curial punishment. There had been some media reporting, which had some limited impact upon you. One of the referees refers to an instance of abuse in a car park and the impact upon your reputation. If I may say so, the impact upon your reputation is entirely unremarkable and is to be expected. You had pleaded guilty to a raft of serious offending for which you were imprisoned and placed onto a community correction order as well, back in July 2018. Then you were convicted of these matters. Understandably there was some publicity. It has not stopped you from forging a new life. It has not stopped you from forming a relationship or from working. Nor has there been any real effort devoted to taking me to the publications and fleshing out the impact. I do not regard the matter as being of any major significance to my sentencing task. I take it into account, but it is a modest matter indeed in the scheme of things.

1. The same cannot be said of the issue of delay. It is no minor matter at all. The last of the offences I am dealing with occurred in around February 2020. Your counsel relies upon both limbs of delay here, being the uncertainty in the finalisation of the matter, as well as the steps you have taken in the interim. This is not one of those cases where there has been an unduly leisurely approach adopted by the police or the prosecuting authorities which has led on to the delay. It is just a fact that there is the delay. It did take some time for Ms Paspalis to be in a position to disclose what had taken place and then there was a gap between that point in mid-2020 and formalising her statement which was finalised in December of that same year. You were charged early the following year. There was a committal in 2022 and I infer COVID must have reared its head at some points contributing to the delay. As I understand it, the trial was not reached a couple of times. Then there was the trial in 2023, a jury were lost along the way, then the trial that went to verdict, and then the appeal process, and then the retrial in 2025. These things have all been beyond your control. I mentioned earlier how difficult it had been for Ms Paspalis, who speaks of this in her impact statement. Well it has been difficult for you as well, that much is clear. I accept the submissions made as to the mitigatory impact of delay. Each limb is engaged here. There has been uncertainty in the finalisation of the matter and the difficulties in proceeding with your life in such a setting as that. It has been a stop start setting here with you going into, then out, and then back into prison.
2. Secondly, you have stayed out of trouble since mid-2020. The last offending behaviour related to subsequent breaches of the intervention order which took place between December 2019 and 1 May 2020. There is a summary of those matters in Exhibit E. I have said earlier they are far less serious than the Yeoman matters. You also of course breached the community correction order by that conduct. I have the earlier breach report and also the breach report which had been compiled in anticipation of proof of some other matters to which it was said you intended to plead guilty. Ultimately, the community correction order breach constituted by the subsequent breach of the intervention order was found proven and it was confirmed at the Geelong Magistrates' Court on 13 May 2021. On that same day, you were fined and admitted to an adjourned undertaking for the persistent breach of the family violence intervention order. The point is you have stayed out of trouble in the time since this offending. Your life has been to a degree held in suspense. You have demonstrated a process of ongoing rehabilitation that is referred to in later portion of the outline of argument. See for instance paragraph 16. I take the delay into account in mitigation in the two ways argued before me.

1. This leads to my consideration of your prospects of rehabilitation into the future. What are those prospects? Well, as I said a moment ago, you have remained offence free for a sizeable period. See paragraphs 11 and 12 of the outline of argument. You are in a relationship. You have some support. That much is obvious from the references. You have done a number of courses already in prison. I have said already that from those references, you are obviously far more than just the person who has committed these serious offences.
2. With the exception of the matter I raised a moment ago, there were no further breaches of the intervention order. I have a man with a limited criminal history obviously enough, someone first offending in 2017 at a mature age. Someone with a decent employment record behind him. Against that of course, I have the conditions spoken of by Dr Anderson. I also have the serious nature of this offending. It was not isolated. It took place with some significant matters in aggravation, the existence of the community correction order, and when it was in force, as it was for the last three incidents, the family violence intervention order. I have two breach reports, one breach which proceeded because you were refusing to do one of the programs. That was the Better Lives Program, and it had a sexual offender dimension to it which you were not happy with. You refused to attend, and the matter was taken back for contravention in June 2019. The second breach report sets out further details of your compliance under the varied order which I was told about. That second breach report was in anticipation of proof of some matters. There was in fact a second breach proceeding that I mentioned earlier owing to the persistent breach of the intervention order. That was dealt with in May 2021 with confirmation of the community correction order and the fine and adjourned undertaking that I mentioned a moment ago. That second breach report dated 5 May 2021 is of some interest. I note that you were deemed eligible for the men's behaviour change program and engaged in that program from

30 September 2019 until 30 June 2020. It follows then that that Charges 2, 3, 4 and 5 took place in the currency of what is described as the 'successful completion' of that program. So whilst you were on a community correction order, engaging in the men's behaviour change program, having previously refused to do any program connected up with sexual offenders, you have then raped and sexually assaulted your victim, a person who was protected by an intervention order with a condition you not be sexually abusive to her or approach within 10 metres. 3. This was unmistakably serious offending committed by a man who had seen the inside of a prison as a result of that 'campaign' you had waged against her and your lack of preparedness to let her go. The intimate partner setting is a matter of significance. So too the venue for the offending and the presence in the house or the immediate vicinity of your own child and your stepchild. 4. There is no formal risk assessment. I have Dr Anderson's views in paragraph 81 but that is limited in relation to risk relating to the complainant. It speaks of the protective factors in relation to reoffending against her. What I do know is you have demonstrated a complete disobedience to protective orders made by the court in the past in an intimate partner setting. 5. I am not satisfied that there is any remorse on display here. I am entitled to look at how the trial was conducted. Now it is true Ms Skvortsova did not conduct the cross examination of the victim. Mr Anger did that and I have spoken already of the extraordinary nature of that conduct. However, plainly, there were some matters he was putting on instructions from you and they were picked up in the retrial. By way of submission to the jury before me, your victim was being challenged as to the truthfulness and the reliability of her account. She was being challenged as to the contention that she had not been consenting. It was not a case run on the final element, your state of mind. There is no joy at all to be taken from the pretext call. You cannot have it both ways. Ms Skvortsova was suggesting to me that the pretext call disclosed your remorse and insight. See paragraph 9 of the outline. Well at trial, she argued to the jury that they should consider that you were saying things you did not really believe to placate the complainant. That the call was not the time for you to actually argue the toss. The notion of a later acceptance of doing the wrong thing and the penny dropping after the acts was also floated before that jury as not founding proof of the third element. Despite what was said in that pretext call in late 2020, at the first trial in 2023 in cross examination of Ms Paspalis, and at the second trial before me by way of submission to the jury, it was being argued that her account of what had taken place was false or not reliable, that she was lying or misremembering or recasting the event. That she was consenting at the time. This was not a trial run on the third element, as it might have been. Further, though Mr Anger was the person who put the motive to lie to the victim, that is, that there was jealousy in relation to the new partner, despite all the evidence flowing against that proposition known to the jury, and all the other material submerged out of their sight, which ran counter to that argument, (the 2017/2018 offending and the prison sentence and community correction order), Ms Skvortsova asked for the motive to lie direction to be given to the jury. So it was no doubt necessary given the puttage from Mr Anger and the high probability that the jury would reject the motive, and then the need to warn the jury not to misuse that rejection. So it is understandable that she would be asking for the motive to lie direction. But she suggested to the jury that there might be other reasons why she was lying. 6. Who was lying about these events on the basis of your contribution in the pretext call? Were you not saying to her that it was her fault? Were you not saying that she had done nothing wrong and it was your fault in proceeding when you did? That the penny had dropped in the time since? 7. That is just not the way the retrial was conducted. As I say, it was not limited to the third element. I am not satisfied on balance of probabilities there is any remorse here. 8. You will spend a long time in prison. That will surely serve to deter you to a large degree. It is but hard not to be guarded. You have had issues in relationships in the past as the report spell out. You had massive problems in allowing Ms Paspalis to exit this relationship. Far from her being jealous, you were jealous, you were possessive and you engaged in all the conduct spoken of in the Yeoman brief which led to your imprisonment. You then subjected her to these four incidents over a period of two years. What lies in store for the next female who chooses to end a relationship with you on the basis of Dr Anderson's view of your personality? 9. It is possible, if not likely, that you may be required to do some sex offender program as a condition of being granted parole. I really cannot make any judgments currently as to the benefits that may flow from those sorts of programs. You still deny any wrongdoing and that may persist. 10. We have seen how you reacted on this occasion. The wishes of your partner were of no consequence. The laying of the charges, being sent to prison, the existence of an intervention order or a community correction order did not impede your conduct. You present a risk to future partners. It is not possible for me to quantify that risk. Ultimately, I am prepared to find that you have reasonable prospects of rehabilitation.

1. I turn then to the risk of deportation. You are not an Australian Citizen.
2. As a result of provisions within the Migration Act, if a sentence of 12 months' imprisonment or more is imposed, your visa will be automatically cancelled. Well plainly a sentence well above that level is required in this case.
3. I take into account the many cases dealing with the relevance of the risk of deportation including the Guden[17] line of cases, that has been considered in cases since, such as Allouch[18] and also Loftus[19] and Hague.[20]
4. Clearly then, you will have your visa cancelled automatically. That does not involve any level of speculation. You will have the opportunity to ask for reconsideration of that decision and dependent upon who made that decision, should it go against you, there might even then be the ability to take it further before either a court or a tribunal. You have indicated in discussions with the expert that you intend to appeal any visa revocation or move to deport you.
5. I can have no idea how any of this would ultimately play out, and nor do you of course, which will obviously add to your anxiety.
6. I mentioned in the course of the plea the existence of a Sentencing Advisory Council paper. It is headed 'Deportation and Sentencing' from November 2019, which disclosed that a decent enough proportion of those who have their visas cancelled automatically then have that decision overturned. The success rate at least in the years covered by that research was between 34 to 41 per cent. See paragraph 24 of that paper. These figures do not include those who have their reconsideration refused, who then reviewed the matter in a tribunal, and then succeed.
7. It really is impossible for me to make any prediction as to how any of these matters might ultimately play out.
8. On any view of it, there would be a state of real uncertainly in your mind. You will continue to feel anxiety about this risk of deportation. You would, after all, be confronting the real prospect of losing the opportunity of settling permanently in this country and you have been here since 2011. You have established ties and links in this country. You have a relationship with a new partner. You have a child. No doubt these are the sorts of matters which would be raised on any reconsideration request or in any tribunal or court proceeding should it come to that
9. Ultimately then, I accept your counsel's submissions in relation to the application of each limb from the Guden line of authority. That is the increased burden of imprisonment posed by the risk of deportation exists here and also the loss of opportunity to remain in this country. I take these matters into account in mitigation.

1. I am dealing with two crimes of rape which fall under the standard sentence scheme.
2. The effect of that scheme has been discussed in a number of cases.
3. The period of ten years is specified as the 'standard sentence' for the crime of rape. That period 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, without regard to purely personal matters.
4. What is plain from the Act itself and from the many decisions interpreting those provisions since the case of Brown[21], is that the standard sentence scheme is only one of a number of matters that I am required to take into account. Where it applies, as it does here in relation to Charges 1 and 3, I must take it into account as one of the factors.
5. This scheme was not intended to interfere with the intuitive synthesis that lies at the heart of sentencing in this State, nor was it in any way countenancing two-stage sentencing processes, which is still prohibited.
6. The scheme does not have primacy over other factors which must be taken into account. The standard sentence scheme introduces an additional factor in the form of this legislative guidepost.
7. It does not represent a starting point from which the sentence is to be fashioned. I do not start at that point, ten years, and then work my way either up or down from the standard sentence figure, making a series of adjustments taking into account matters in aggravation or mitigation.
8. Nor does the scheme otherwise affect the matters that the court must take into account. It does not change the requirement to, or the means and manner of, assessing the seriousness of the offence.

1. I am required to take into account current sentencing practices. That is not a controlling factor.
2. The standard sentence scheme does impact upon the ability to take into account sentencing practices from cases dealt with where the scheme did not apply. Where the scheme applies, as it does here, in relation to two of these charges, I must only take into account current sentencing practices in relation to cases where the scheme applied to those past sentences. That is why care needs to be taken in pointing to truly comparable cases.
3. Plainly enough, rape and sexual assault are inherently series crimes.
4. I am dealing with standard sentence offences in this sentencing exercise in relation only to the two charges of rape and the sentences passed for matters not covered by that scheme are just not to be taken into account by me. I can have regard to statements of principle, but not the actual sentences themselves.
5. Her Honour, the first sentencing Judge, was referred to some so-called comparative cases and the Crown placed those before me as well. I said earlier, they were of no use to me. Two of them involved sentences for rape, not even subject to the standard sentence scheme. The very thing I must not have regard to. Two others involved guilty pleas.
6. I was not at all assisted by being taken to those cases. To have regard to the sentence imposed in a non-standard sentence setting would be to ignore the statutory prohibition set out in s5B(2). One of the purposes of the standard sentence regime was to strike free of the fetter of what were perceived to be inadequate past sentencing practices. I am simply not free to ignore that provision. Indeed, I must apply it.
7. The standard sentence scheme of which I have spoken only came into force for offences committed after February 2018. Many offences of rape in the broader statistics would relate to non-standard sentencing exercises. There is the useful function in the Sentencing Advisory Council online statistics to narrow the search down to sentences imposed for standard sentence offences. That function avoids the problematic issue of having regard to non-standard sentence matters, the very thing that I must not have regard to.
8. It was of course your right to run a trial. You must not be punished for doing so. It simply follows though that in relation to these charges, all of them, not just the rapes, you have none of the very sizeable benefits that accrue to a person who has pleaded guilty and who is remorseful. Those things are worth a great deal indeed and they are absent in this case.
9. I have looked at the case collections available on the online Judicial College of Victoria sentencing site relating to rape and sexual assault.
10. As I have said, for the rape matters, I can only have regard to past sentences where the sentence was imposed for a standard sentence offence.
11. I have looked at the Sentencing Advisory Council online filtered statistics pertaining to standard sentences for rape and the more general statistics pertaining to sexual assault.
12. That sort of statistical material, is inherently limited. It can never greatly assist a court in the sentencing task at hand and that is because this is an individual sentencing exercise that I am engaged in.
13. Statistics are just bare numbers.
14. They provide none of the detail of the offence or of the offender. None of the matters in mitigation or aggravation are disclosed by the bare data. They do not disclose the nature of the conduct. They do not identify any of the surrounding circumstances. They do not descend into the detail of the impact in a particular case. They do not even describe whether the matter was a sentencing exercise after a trial or after a guilty plea. They do not touch upon remorse or prospects of rehabilitation.
15. I am exercising a sentencing discretion in relation to your crimes, and I am acting as a judge, not as a mathematician or statistician. What has happened in other cases, or as is disclosed in the statistical data, cannot provide the answer to my task. What has happened in other cases does not operate as some precedent.
16. So many of the cases represented in the statistics would arise from guilty pleas with a whole range of significant mitigatory features that are absent in this case.
17. One can never find an identical case, and even if one could be found, there is no such thing as one correct sentence. There is instead a range of available sentences open to a court.

1. I am required to consider the gravity of the offences before the court. There was no dispute that this was serious offending, with features of aggravation including the existence of the community correction order and the intervention order. I am not going to trawl my back through all the facts here. I set them out in some level of detail.
2. Each offence was serious. The rapes are the most serious of the offences. They do not involve penile vaginal penetration, so at least they are free of the aggravating feature of risk of disease and/or pregnancy, but it is wrong to set up some hierarchy of penetrative conduct. Though this involved digital penetration, they represented a gross invasion of her body. They were not fleeting acts.
3. Some of the sexual assaults are more serious than others. For instance, the cupping of the breast is, at least objectively viewed, far less serious than putting your hands inside her pants and touching her pubic bone. However, each act occurred in the currency of a community correction order and many in the currency of the intervention order which was there to protect your victim. There was physical pressure and your endeavour to defeat her resistance to your acts. Verbal resistance and physical resistance. Her saying 'stop' repeatedly, 'no', 'don't'. You just rode roughshod over her. These offences occurred in the family home and with two children in the vicinity. What was she to do? Call out for help from your young child or hers, the very people who were no doubt the reason why she suffered some ongoing communication? To not deprive them of you, or you of them. This was extremely serious offending by a man who had been imprisoned for serious offending targeting the very same victim.
4. Your conduct was highly culpable.
5. It is always easy to construct a hypothetical worse case of any crime. There could for instance be nasty threats and extravagant violence over and above the sexual act or the penetration. There can be 'in company' offending, or the use of a weapon or injuries inflicted, or some prolonged act or acts even designed purely to humiliate. The absence of some features of aggravation which might exist is not the best way for me to assess the gravity of the instant offence, especially as where here, there are ample matters of seriousness in play, as is conceded.
6. There is always a danger in trying to rank offences by endeavouring to apply an adjective to describe them. Low-level, mid-level, high-level or falling towards any of those levels, what does it really mean? It probably means different things to different people, to different practitioners, to different judges. It is a practice that has been, at least to some extent, disapproved of by the Court of Appeal (see the case of Weybury[22]).
7. Yet I must strive to reach a view as to the nature and the gravity of these offences, and further, the standard sentence scheme leads me to consider where the rape matters sit, viewed purely objectively.
8. Well I believe the rapes fall above the mid-range viewed purely objectively.
9. Though the sexual assault matters are not covered by the standard sentence scheme, I conclude that, some but not all, of the sexual assaults also fall at around that level. So Charge 2, the compelled touching of your erect penis, Charge 4, placing your hand inside her pants, Charge 7, putting your hand inside her pants at the sink, they all fall above mid-range viewed purely objectively. The others I believe fall below mid-range.

1. I will be sentencing you on five charges as a serious sexual offender. If I sentence in the order of the indictment charges, and I will, that would mean that those provisions would apply for the sentences imposed from Charge 3.
2. Under those provisions, unless I otherwise direct, those sentences passed upon you would be served cumulatively upon the earlier sentences imposed upon you and upon each other.
3. Additionally, for the sentences imposed on those charges, I am required to treat the protection of the community as the principal purpose of sentencing. See s6D. To achieve that purpose, for those charges where you fall to be sentenced as a serious sexual offender, I do have the power under the legislation to impose a disproportionate sentence to achieve that principal purpose. I will not exercise that power here. No-one suggests I should.
4. I am required to give weight to these provisions. I must give some weight to s6E. It is not my job to ignore or to undermine that provision. It is clear, though, that the case law in this area spells out that I must still pay regard to the principles of totality of sentence, which I will move to discuss in one moment. Totality, though modified, is still of importance to my task.

1. I will turn briefly to some general matters of sentencing.
2. There are a large range of matters which must be taken into account by the court when imposing sentence, including the maximum penalties, the impact of the offending, current sentencing practice and in the case of the rapes, the existence of the standard sentence scheme.
3. I must consider the various purposes of sentencing set out within the Sentencing Act. Those purposes are, in no particular order, punishment, rehabilitation, denunciation, specific and general deterrence and community protection.
4. You do have reasonable prospects of rehabilitation.
5. I have to punish you justly and proportionately. That is an important purpose of sentencing.
6. I must denounce your conduct. That is also important. I strongly denounce your conduct. You have committed really serious crimes upon your ex-intimate partner, the mother of your daughter. You should be ashamed of yourself and yet you are not.
7. I must consider the protection of the community from you. That is the principal purpose from the third sentence, where you fall to be sentenced as a serious sexual offender. You obviously present some risk in the future. The extent of that risk is very difficult for me to gauge. Your failure to abide by the community correction order and the intervention order in the relevant time frame is of course concerning.
8. I must give weight to specific and general deterrence.
9. Specific deterrence relates to the need to deter you from offending in the future. The lengthy sentence shortly to be imposed by this court will serve to deter you to a large degree. I must still give some weight to this purpose. You must be deterred from ever committing such crimes as these ever again against any intimate partner. You need to get it into your head that any intimate partner has the ability to 'call time' on the relationship and you must honour that call, and not do what you did in this extended period from 2017 to 2020.
10. General deterrence relates to the need to deter others who might be minded to commit this type of offending. General deterrence looms large in this sort of case. It is a highly relevant purpose of sentencing. These were sexual crimes targeting an ex-intimate partner in her own home.
11. We, as judges, are required to send a clear message to those who may think it open to sexually offend against an ex-partner who is trying to leave a relationship. The courts, by the sentences imposed in these kinds of cases, must make clear to others in the community that such serious conduct as yours will not be tolerated and will be met with stern punishment. We seek to deter other like-minded future offenders from actually offending in the future.
12. Prison is a disposition of last resort. There is no doubt that a very substantial prison term is required in this case.

1. I have to take into account the principle of totality of sentence and I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality.
2. Your criminality was high here.
3. I mentioned earlier that I have the serious offender provisions of the Sentencing Act which come into play from the point of the third sentence imposed by this court. I mentioned the ramifications of those provisions and I will not repeat what I said.
4. Totality, though modified, is still obviously an important consideration.
5. As to these seven charges, I am not dealing with a tightly grouped set of acts occurring on a single day where sizeable concurrency would be warranted. This is not some single criminal episode or transaction. I have seven separate sexual acts spread across these four separate occasions. One rape in November 2018, two sexual assaults on an occasion in April 2019, two more on a quite separate occasion in around November 2019, and the last incident in around February 2020 with the compelled touching the subject of Charge 2, leading on then to the digital rape the subject of Charge 3. They were each separate serious criminal acts, no doubt each of them having a role to play in the large overall impact caused to Ms Paspalis.
6. There are some instances before me where there is a temporal relationship between offences, so pairs of offences occurring on the same occasion, for instance the second, third and final incident. The temporal relationship in those cases is obviously relevant to the degree of cumulation, or more correctly, applying the terms of the legislation, the degree of concurrency ordered where you are sentenced as a serious sexual offender.
7. To make every sentence entirely cumulative would plainly infringe the principle of totality, modified though it is in this case from the point of the third sentence.
8. However, here there is plainly a need to cumulate to some extent here. No submission was made to the contrary by your counsel. The greatest level of cumulation will arise in relation to one of the rape sentences given the seriousness of the act and the fact that there is no temporal connection at all. One was in November 2018. That led to the taking out of the intervention order. The second rape was in February 2020, and that act will be rewarded with the base sentence given that by then, you were also subject to an intervention order. There must be sizable cumulation plainly enough between those two matters.

1. I do have to exercise my sentencing discretion in relation to your serious crimes in a setting where there has been a previous trial and a sentence, and then a successful appeal against conviction. As I said earlier at the start of these reasons, I am not free to just disregard or to ignore that past sentence imposed by that other judge. The case law in fact discloses that an earlier sentence has an extremely strong impact in relation to a judge sentencing following a retrial, as I am. That is actually an understatement_._ In fact, ordinarily, the earlier sentence should be regarded as the upper limit of the sentence to be imposed following the retrial. See the cases of R H McL[23], Fitchett[24], TY[25], Murdoch).
2. There are many reasons for that approach as are spelt out in those and many other cases. It was not your fault that the trial miscarried. Had you not appealed, or for that matter had the Court of Appeal taken a different view of your conviction appeal, you would have been liable to serve that previously imposed sentence, a head sentence of seven years seven months with a non-parole period of five years. To increase the sentence upon a retrial in such a setting could give the appearance to you or to others of some level of retribution or punishment for the bringing of the appeal. If the raising of a sentence on a retrial became commonplace, it might even discourage appeals, and that is judged correctly to be against the public interest, as rights of appeal are an important means of preventing the perpetuation of errors in criminal trials.
3. So there are many important considerations spoken of in this line of authority explaining why such strong regard must be paid to the earlier sentence and why, ordinarily, the previous sentence stands as something of an upper ceiling or limit that really should not be exceeded. The circumstances in which the retrial judge, so someone in my position, might go beyond the earlier head sentence or non-parole period, are very rare indeed.
4. So whilst true that I am not strictly prohibited from imposing a greater sentence, there are these very powerful policy and fairness considerations which underpin those many cases to which I have referred, which spell out why it must be extremely rare or exceptional for a successful appellant to then suffer any increase of sentence following an unsuccessful retrial.
5. Well, I am well aware of that case law and I have anxiously considered it.
6. I have sat as a judge for over 15 years now and I have had the occasion to sentence a number of offenders after a retrial. From time to time, I have had reservations, sometimes even strong reservations, about the adequacy of the previous sentence selected, one that I certainly would not have selected myself. I have never to this point exceeded the sentence imposed at the first trial. That I might have passed a higher sentence is not to the point. That state of mind would not for one moment overcome the very powerful reasons for the need for restraint spelt out in the case law. It would not even approach the exceptional circumstances spoken of in the cases which would justify an increase. So as I say, none has ever done worse, until now. You are the exception.
7. I am exercising my sentencing discretion but driven by the very great practical restraint imposed by those cases to which I have referred.
8. I have not approached my task by considering what Her Honour did and said on particular topics and then weighing up my view on those topics and making adjustments along the way. I am not looking at what she had before her and then considering what is before me. To quote Priest JA in Murdoch's case (at [164]) I am not sitting in appeal of Her Honour's earlier sentence, 'finding specific error [or] using any purported error as a springboard for increasing the sentence'. That is not my task at all. I can see what she said. I can see how she exercised her intuitive sentencing synthesis, but it is the numbers that are the important consideration for me, the individual sentences and the global total effective sentence and non-parole period, as that is the sentencing outcome that ordinarily must not be exceeded.
9. I take into account the matters in aggravation and mitigation placed before me applying that stringent case law to my intuitive task. I must exercise my discretion and having approached my task in that way, even paying such very strong regard as I must to those earlier sentences, I find myself in a completely different sentencing range for the two rapes. A zone or territory that is greatly in excess of the sentences imposed by Her Honour on each charge of rape. For Charge 1, four years' imprisonment was imposed for a rape occurring seven days after release onto a community correction order. That rape occurring in the home of the victim and in a setting of the breakdown of an intimate relationship. One following on from the conduct which gave rise to a prison term and that community correction order which was current. One that falls to be dealt with under the standard sentence scheme and, when viewed purely objectively, falls above the mid-range, in my view. It is my view that such a sentence is completely or manifestly inadequate to the gravity of the offence taking into account the matters placed before me both in aggravation and mitigation. As to the second rape, that followed on from the obtaining of an intervention order as a result of the conduct the subject of that first rape. You consented to that order. The victim was protected by that order, an order with a condition that you not approach within 10 metres and not sexually abuse her. Again, you were on a community correction order, and by that stage, were engaged in the men's behaviour change program. You attended at the home in breach of the intervention order. You forced yourself upon her in such a setting.
10. In each case, the children were in the home or in the immediate vicinity. In each case, you have none of the benefits arising from a guilty plea, early or otherwise. There is no remorse.
11. I regard the earlier rape sentences as being wholly inadequate and that view is not altered by the failure of the Director of Public Prosecutions to have appealed against the initial sentences. There could be many reasons for that, including that there was an appeal against conviction that had been brought. Whatever the reason, that stance does not remove the need for me to exercise my sentencing discretion appropriately, a discretion that is not soundly exercised by me saying 'well the previous sentence was completely inadequate, but look I will impose it none the less'. I will not do that.
12. I am required to depart from the ordinary 'rule' as to the earlier sentence being regarded as a ceiling because of what I regard as the complete inadequacy of those earlier sentences.
13. I regard the rape sentences imposed previously as being totally inadequate to the gravity of the offending that I am required to sentence in relation to.
14. I therefore find myself in that very rare position contemplated by the case law and spoken of in remarks cited in the case of Murdoch. A position I have never been in before in 15 years. Priest JA cited remarks from the judgment in Chen[26] as well as McL.[27] It follows, you are going to do worse, a good deal worse, than you did, but not as badly as you would have done if I was not facing this difficult exercise of resentencing after a retrial.
15. If I was completely free in this exercise, that is, sentencing without that prior sentence, you would have done worse still than the sentences that I will soon pronounce.
16. That will give you little comfort, I know that. Rightly or wrongly, I say rightly, even though I regard the previous sentence as being totally inadequate in this case, I still feel a level of restraint posed by that earlier sentence and my need to visit a marked increase upon you after a successful appeal.

1. I will now pass sentence
2. You will probably lose track of the numbers and the effect of my orders for cumulation and concurrency. It can all be quite confusing. You will not know what it all means until I am finished. Do not just add up the numbers. At the end of the process, I will explain what it all means by way of a total effective sentence, and then I will tell you what the non-parole period is. Only then will you understand the true effect of the sentences that I now move to impose.

1. I said that I would scarcely mention again those charges of breaching the intervention order as they paled into insignificance when viewed against the indictment charges. Further, as I have said, it was a feature of seriousness for those indictment charges that you were subject to such an order for the last three incidents. I have taken that into account in sentencing on those indictment matters. I must not doubly punish you. On each on those summary charges, you are convicted and sentenced to one month's imprisonment. That is on each. Those sentences will be served concurrently with each other and concurrent with the other sentences I will soon announce.
2. I will have you stand up, please.
3. On Charge 1, rape, you are convicted and sentenced to six and a half years' imprisonment.
4. On Charge 2, sexual assault by compelled touching, I convict and sentence you to 18 months' imprisonment.
5. From this point you fall to be sentenced as a serious sexual offender.
6. On Charge 3, rape you are convicted and sentenced to seven years three months' imprisonment. I will make that the base sentence.
7. On Charge 4, sexual assault, you are convicted and sentenced to 18 months' imprisonment.
8. On Charge 5, sexual assault, I convict and sentence you to 10 months' imprisonment
9. On Charge 6, sexual assault, I convict and sentence you to seven months' imprisonment
10. On Charge 7, sexual assault, I convict and sentence you to 18 months' imprisonment.

1. The base sentence therefore is the seven years three months imposed on Charge 3.
2. I now direct as to the level of cumulation between the charges. I know that I am meant to express the degree of concurrency in relation to the matters for which you are sentenced as a serious sexual offender. That is complicated by my having made the sentence on Charge 3, the base sentence. My cumulation orders, I will pronounce in that form, will be easier to follow and they will disclose the extent of the concurrency which I otherwise order.
3. I direct that
   • Two years of the sentence imposed on Charge 1, rape;
   • Seven months of each of the sentences imposed on Charges 4 and 7; and
   • Two months of the sentence imposed on Charge 2, the compelled touching

is to be served cumulatively upon the base sentence and upon each other.

1. These orders producing three years four months' cumulation, result in a total effective sentence of 10 years and 7 months' imprisonment.

1. I am required by law to fix a non-parole period. Unless it is in the interests of justice not to do so, I am required to fix a non-parole period of at least 60 per cent of the relevant term. The relevant term is the total effective sentence.
2. I do not believe it is in the interests of justice to fix a lesser ratio in this case.
3. Whether you are admitted to parole or not will be a matter resting in the hands of the Adult Parole Board. I am prohibited from even considering that likelihood. I will not speculate about whether you will be paroled or not. That will be between you and the Adult Parole Board.
4. I fix a period of 7 ½ years during which you will not be eligible for release on parole.

1. You have spent already 556 days in custody by way of pre-sentence detention and that period is noted in the records of the court.

1. I have sentenced you as a serious sexual offender in relation to Charge 3-7 on the indictment. That also is to be noted in the records of the court.

Sex Offenders Registration Act 2004

1. The Crown applied for an order under s11 of the Sex Offender Registration Act 2004 that you comply with reporting obligations under the Act. This is not some automatic registration provision as often arises. I have a discretion to exercise under s11 to order that you are subject to the obligations under the Act for life in this case. You are guilty of two Class 3 offences However, I need to be satisfied beyond reasonable doubt that at the time of your ultimate release you will pose a risk to the sexual safety of another as defined by the Act. The Crown assert that that other is Ms Paspalis given the conduct I am awake to, with a problematic chronology of offending spoken of in their submissions. It must be a real risk. I have considered the matter since the date of the plea. I am not satisfied to the required standard that your level of risk reaches that contemplated by the provision. I refuse that application, as Her Honour did.

1. Finally, I am required to make a statement under the provisions of s5B(4) and (5) of the Sentencing Act. Section 5B(4) requires me to state my reasons for imposing the sentence in relation to a standard sentence offence, and s5B(5) requires me to refer to the standard sentence for the offence of rape and explain how the sentences I have imposed on you relate to the standard sentences.
2. I am required to identify the facts, and the matters and the circumstances which bear upon the judgment I have reached as to the appropriate sentence.
3. Well, I am confident my lengthy reasons to this point will explain the reasons why the sentence imposed by me bears the relationship that it does to the standard sentence.
4. By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentences, taking into account all the matters I am required to take into account, including the existence of that standard sentence scheme. It is, as I have said, but one of many factors to be taken into account.
5. Have a seat then please.
6. Is there anything else that I need to deal with?
7. MS GIBSON: No, Your Honour.
8. MS BARRETT: As the court pleases.
9. HIS HONOUR: No. All right. You will go down and see your client today.
10. MS BARRETT: Certainly, Your honour.
11. HIS HONOUR: And I imagine there will be some sort of conference organised in due course for him to discuss what has taken place in the course of this case and for that matter the sentence. So he will be seeing you in due course?
12. MS BARRET: Yes, Your Honour.
13. HIS HONOUR: Okay, I will sign those orders when they are presented. I will probably do them downstairs, I think. Okay, well that completes the matter. So Ms Barrett will come down and see you downstairs, Mr Cabrera. Mr Cabrera can be removed now please.

[5] Bugmy v The Queen [2013] HCA 37 ('Bugmy')

[6] R v Verdins [2007] VSCA 102 ('Verdins')

[7] Guden v The Queen [2010] VSCA 196 ('Guden')

[8] Murdoch (a pseudonym) v The Queen [2013] VSCA 272 ('Murdoch')

[9] Ashby(a pseudonym) v The Queen [2021] VSCA 209

[10] Flynn (a pseudonym) v The Queen [2020] VSCA 173

[12] DPP v Herrmann [2021] VSCA 160 ('Herrmann')

[13] Sabatucci v The Queen [2021] VSCA 340

[14] Newton (a pseudonym) v The King [2023] VSCA 22

[15] Dhal v The King [2023] VSCA 289

[16] DPP v Terrick [2009] VSCA 220

[17] Guden v The Queen [2010] VSCA 196

[18] Allouch v The Queen [2018] VSCA 244

[19] Loftus v The Queen [2019] VSCA 24

[20] Hague v The Queen [2022] VSCA 17

[21] Brown v the Queen [2019] VSCA 286

[22] DPP v Weybury [2018] VSCA 120.

[23] R H McL v The Queen [2000] HCA 46

[24] R v Fitchett [2010] VSC 393

[25] DPP v TY (No 2) [2009] VSCA 226

[26] R v Chen [1993] VicRp 64; [1993] 2 VR 139

[27] Murdoch (A Pseudonym) v The Queen [2013] VSCA 272 at [162] to [164]