DPP v Cohalan [2025] VCC 305

25 years' imprisonment and for sexual assault 10 years' imprisonment. The crime of rape is a standard sentence offence, and the standard sentence is 10 years' imprisonment. I am required to fix a non-parole period of at least 60 per cent of the total effective sentence. 2. The facts and circumstances of your offending are set out in the prosecution opening. In brief terms they are as follows. 3. On 20 February 2018 you came to stay in the apartment of Zoe Rogers[1].

Ms Rogers was 26 years old. She lived with her son. You were a friend of

Ms Rogers' neighbour. Ms Rogers had only known you a few days before you came to stay with her. Ms Rogers had been in a fight with a neighbour and feared further reprisals. When you heard this, you offered to stay with her. 4. On the first day you stayed with Ms Rogers you began pestering her with unwanted physical advances. She told you she was not interested in you and that she had been raped as a child. You apologised and left her alone. 5. The following night, 22 February 2018 Ms Rogers was taking a nap when she was awoken to find you massaging her feet. You told her your massage would give her pain relief. She allowed you to continue. She fell asleep again. When she awoke a second time, she felt your hand inside her pyjama pants and moving up her leg. She told you to 'fuck off'. You apologised. 6. Later that evening after dinner Ms Rogers fell asleep on the couch and did not wake up until the following morning. When she awoke you were licking her vagina. She could feel your tongue on her clitoris and going inside her vagina. (Charge 1 - rape). She kicked out her legs and told you to 'get the fuck' out of her house. 7. Ms Rogers was distressed and angry. She began calling neighbours. You said to her 'please don't call the police'. A neighbour arrived and chased you and hit you with a baseball bat. The police were called. 8. You were interviewed by police on 27 February 2018. You told police you massaged Ms Rogers on the buttocks over her underwear and nothing happened to indicate that she was not consenting. You denied penetrating her vagina with your tongue. 9. Your second victim is Sophia Norris[2]. 10. On the evening of 17 March 2018, you attended at Ms Norris's home at her request to sell her ice. There was another man with you. Ms Norris used the ice in the bathroom. Your presence in the house was making Ms Norris uncomfortable. You were staring at her and following her around. 11. You started saying to her that you were good at 'licking a woman out'. Around midnight you offered Ms Norris a massage which she declined. Over the course of the night, you told Ms Norris about Ms Rogers's allegation which you denied. 12. Ms Norris fell asleep on the couch. She awoke to find you licking her vagina and grabbing her left breast under her clothing. (Charges 2 and 3). You said to her 'you taste good I'm going to put my dick in now'. She pulled away from you and told you to get off her. She realised you had removed her pants and underwear. She locked herself in her bathroom, distressed. You left. 13. Ms Norris went to the police the following morning. You were interviewed by police on 19 March 2018 where you gave mainly 'no comment' answers. 14. You were charged on 21 August 2018. You failed to appear at a committal mention on 13 December 2018. You had absconded to Queensland. There was some dispute that in fact you had absconded, but in circumstances where you were well aware of the charges you were facing, having been interviewed by the police in February and March 2018, having been charged and bailed in August 2018, and a solicitor attending on your behalf at court in September 2018, I am satisfied beyond reasonable doubt that in fact you absconded. A warrant was executed on 3 August 2023. You were bailed on this date. The matter proceeded to a committal hearing. There was a trial listed in this Court. At one point a sentence indication was sought but this course was not pursued. 15. You have subsequently pleaded guilty. It is not an early plea but Mr Kozlowski on your behalf submitted that the committal was necessary in order to resolve issues, and it has facilitated the resolution of the matter with the prosecution making a number of concessions. 16. A victim impact statement has been made by Ms Norris and was tendered at your plea. She says since your offending her life has been on hold. She says her anxiety got worse after your offending and she now has serious trust issues. She says she feels isolated. Ms Norris says the justice system is confusing. She says she is proud of herself for managing to see this through after six years. 17. Ms Rogers did not make a victim impact statement but the devasting effects of the crime of rape which involve not only physical violation but also a loss of feelings of autonomy and security, are well-understood by the Courts and must be given appropriate weight in the sentencing exercise. 18. Turning now to your personal circumstances. 19. You were born in December 1966, so you are 58 years old. 20. In outlining your personal circumstances, I rely on the psychological report of Daniella Kocic, psychologist, dated 29 November 2024. 21. You were born in Victoria. You are the second youngest of a siblingship of four. You are of Aboriginal descent, namely the Yorta Yorta nation. 22. You told Ms Kocic that you grew up in a close-knit family environment. Your parents have separated but are both still living. Both your mother and father are in their 80s, and both have a type of cancer. Prior to being remanded you were helping care for both your parents. 23. You only attended school until Year 7 thereafter you have worked at a timber mill, a bakery and as a handyman. You were working as a driver in Queensland before you returned to Victoria in relation to this offending. 24. You have a longstanding history of drug abuse. You reported to Ms Kocic using methamphetamine intravenously daily at the time of your offending. 25. You told Ms Kocic that drug use has negatively affected your intimate relationships. You have a son now 38 years old from one relationship, a daughter 25 who has Down Syndrome from another relationship and a

12-year-old daughter from another relationship. You report a good relationship with your son, but not with your daughters with both of whom you have no contact, although you have expressed a desire to establish a relationship with both of your daughters. 26. Ms Kovic assessed you as falling into the moderate-low category of sexual recidivism. 27. You have a lengthy criminal history spanning the jurisdictions of Victoria, New South Wales, Queensland and Westen Australia for drug offences, driving offences, violent offending and dishonesty offences but you have no prior convictions for sexual offending. You have also not reoffended in the six years since you absconded. 28. You told Ms Kocic that you were assaulted in a hotel room in 2018 and thereafter were diagnosed with post traumatic stress disorder (PTSD). You described to her a history of intrusive symptoms and periods of depression. You have however never been prescribed medication for your mental health, nor have you ever been admitted to a mental health facility. 29. You told Ms Kocic that you constantly worry about your elderly parents. 30. Based on your self-reporting, your presentation and her assessment of you, Ms Kocic gives the opinion that diagnoses of PTSD, major depressive disorder and generalised anxiety disorder are indicated. She gives the opinion that imprisonment would likely weigh more heavily on you than an individual without these conditions. 31. Turning to an assessment of the objective gravity of your offending and your moral culpability. 32. In respect of both victims this was objectively very serious offending, and your moral culpability is high. 33. You were a guest in Ms Rogers's home. She had made it clear to you that she was not interested in sexual contact with you, and she told you she had been the victim of childhood sexual abuse. Abusing her hospitality and ignoring her clear statements that she was not interested in you, including her disclosure that she had been the victim of sexual abuse; you took a callous advantage of her when she was asleep and vulnerable. Your conduct in penetrating her vagina with your tongue is an act of gross violation of

Ms Rogers's person. This is a serious example of the crime of rape. 34. In the case of Ms Norris you did not penetrate her vagina with your tongue but your actions in licking the vagina of a sleeping woman, and again a woman who was in her own home and who had made it clear to you that she was not interested in you, is a high end example of the crime of sexual assault involving a highly invasive violation of her person. 35. You also grabbed Ms Norris's breast under her clothing which while not such serious conduct is still a disgraceful violation of a sleeping woman. 36. In mitigation of sentence Mr Kozlowski raised the following matters on your behalf. 37. First, your plea of guilty which while not an early plea still has obviated the need for a trial and was indicative of some remorse on your part, in conjunction with statements you made to Ms Kocic expressing your remorse for your actions. 38. Secondly, on the basis of Ms Kocic's report there was some application of Verdins[3] limb 5; that is because of your mental conditions prison will weigh more heavily on you than a prisoner without these conditions. 39. Thirdly, you will suffer hardship in custody worrying about the situation of your elderly and unwell parents. 40. Fourthly, considering you have no prior history of sexual offending, you have been assessed as a moderate to low risk of reoffending and you are doing as well as you can in custody, using your time productively and exploring your indigenous heritage, I should assess your prospects of rehabilitation as fair. 41. Mr Kozlowski acknowledged that the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period. 42. Turning to the application of the relevant sentencing principles. 43. The sentence I impose must unequivocally denounce your conduct and the message must be sent that rape and sexual assault are serious crimes and anyone who commits these crimes must expect stern punishment. The message must also be sent to you that you must never behave in this disgraceful manner again. 44. I take into account your plea of guilty. Although a late plea it has obviated the need for a trial, and I accept that your plea of guilty in conjunction with your statements to Ms Kocic are indicative of some recent remorse. 45. Prison is a difficult place for you. I accept there is some application of Verdins limb 5[4], and I accept that you will experience considerable anguish being separated from and unable to care for your elderly and unwell parents. 46. You have no history of sexual offending, and you have not offended again since these offences. The delay in finalising these charges has allowed you to demonstrate your rehabilitation and allows me to assess your prospects of rehabilitation as fair. However in my assessment of the impact of your crimes against your victims, I note that Ms Norris describes how the delay has caused her some confusion and distress and of course this is attributable to you and your absconding. 47. I take into account the maximum sentences for the offences and the standard sentence for the offence of rape. 48. The standard sentence applies to an offence in the mid-range of seriousness based only on its objective factors. It is a legislative guidepost. It is but one factor that I must take into consideration, and I do so. I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully all facts, matters and circumstances I have taken into consideration in sentencing you. 49. Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you relied, I intend to sentence you to a sentence that is less than the standard sentence on the charge of rape. 50. Taking into account all the matters I am required to under the Sentencing Act 1991[5] and matters personal to you I intend to sentence you as follows. You can remain seated in the circumstances, Mr Cohalan. 51. On Charge 1 you are convicted and sentence to eight years' imprisonment. 52. On Charge 2 you are convicted and sentenced to four years' imprisonment. 53. On Charge 3 you are convicted and sentenced to one year imprisonment. 54. Charge 1 is the base charge I direct two years of the sentence on Charge 2 be served cumulatively. 55. That makes a total effective sentence of 10 years' imprisonment. I direct you serve a non-parole period of seven years' imprisonment'. 56. You have served 193 days of presentence detention. 57. But for your plea of guilty I would have sentence you to 13 years' imprisonment with a non-parole period of 10 years.

[3] R v Verdins [2007] VSCA 102.

[4] R v Verdins [2007] VSCA 102.

[5] Sentencing Act 1991.