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[2025] VCC 504
General information, not legal advice.
County Court of Victoria
2025-04-15
Original judgment source is linked above.
CA/2009/105.html "View Case"), The Queen v Xeba [2009] VSCA 20, DPP v Pan [2022] VSCA 98, Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 DPP v Spottiswood [2021] VSCA 146.
Sentence: Convicted and sentenced to 6 years with a non-parole period of 3 years 3 months.
s.6AAA: 7 years 6 months with a non-parole period of 4 years 8 months.
'Who is he and why was he here, and she told me that it was her relative. I asked again, 'What's happened?' Catherine replied, 'I thought I would be stronger and be able to fight.' The conversation went quiet for a bit. I then asked again what happened and she told me, 'he held me down and put it in'.'
'We walked and [Catherine] looked around to see who could see us before putting her hand on her head, grabbing her hair and said, 'Rohan raped me last night.' [Catherine] was very emotional and distressed when telling me this.'
'With that [Catherine] stared at me with her eyes wide open and her face was white. She said, 'I'm going to wreck families, I don't want to say it', and I said, 'Say it, [Catherine]', and she said, 'Rohan Ellis raped me.'
'I worked, went home, and then me and my missus started fighting. I started drinking and tried to hurt myself a few times. I don't remember much really, I know I was a very drunk mess and should have stayed at home. I was at home, Walker Drive, Drouin, and went for a drive out bush by myself to clear my head and then went to the Robinhood pub just out of Drouin and had a drink by myself. After that I went to see my uncle in Drouin, close to midnight, and I was there for a while, and he said he would drive me home and I said I'd get myself home. [Catherine] was meant to be buying equipment. I wasn't even friends with her on Facebook and she messaged me off Marketplace and she was like 'Oh, I know who you are', and I was like 'Yeah, I can hold the equipment for you and stuff like that.' I wasn't friends with her on Facebook, but I realised who it was. I added her.'
'Bugger all. Met her down the street or the pub, maybe. Me and [Catherine] had never been anything really, don't talk much. I knew she was in my messages, and I needed somewhere to go, and I remember going there, chatting. I remember trying to do something with her and she told me no, and I remember getting forceful, but I don't recall myself raping her.'
'I messaged her and asked if she was home. I wanted to vent, and I knew [Catherine] was older so she would be handy with it. I went and sat on her bed because she was in there, and she put on a movie, talked to her about what was going on, and this and that, and I leant in for a kiss and she said no. I'm pretty sure I put myself on her with my bum on her waist and my legs either side of her. She was telling me to get off. I think I got forceful, held her down, held her arms and tried to kiss her. She told me to fuck off, so I did. She had the blanket over her, and she was nude under it. I know that because I saw her boob come out from under the blanket.'
'I had my clothes on still - oh, fuck, I don't remember that, but fuck me, I honestly can't remember that happened. I saw her nude. I got aroused by it. I would never rape someone, not in a thousand years. When I tried to kiss her, I never had her hands like she said, I had them pinned down by her side. I was very intoxicated, I just wanted to see if I come lucky.'
Committal hearing before Magistrate Reardon - Plea of guilty submitted to charge 1, rape and remaining charges withdrawn.
Plea indictment numbered P10344447 containing one charge of rape filed and served.
Prosecution Case Initiation Notice signed, filed and served indicating the matter would now be proceeding as a trial.
Directions Hearing before Judicial registrar Phillips - Plea of guilty retracted and plea of not guilty entered.
Order made by Registrar Phillips for the granting of leave for pre-trial cross-examination under s.198 CPA of seven witnesses, including the victim.
Examination of 6 witnesses including the victim before Judicial Registrar Phillips.
Notice of Additional Evidence (committal recording and statement) filed and served.
Notice of Additional Evidence (DNA statement of Rebecca Caitlin O'Sullivan).
Amended summary of prosecution opening for trial filed.
Matter to commence as a trial in circuit not before 7 April 2025.
'The very act of rape is inherently serious simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious irrespective of the form and the extent of the penetration.'
'The crime of rape covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity. Hence, a sentence that is clearly just and proportionate in one instance of rape will be manifestly excessive or indeed inadequate in another.'
a) There is an element of a breach of trust or something akin to taking advantage of a 'Good Samaritan'.[25] It is hard to discern whether this is by design or not, but it seems clear enough the complainant thought that you were in some genuine distress and was willing to help you. She gave you her address in good faith, which you exploited once you were there; > > b) The complainant was particularly vulnerable. The offence occurred in the bedroom of her own home at 12.30 am after she had fallen asleep naked in her own bed. Apart from her teenage daughter, the complainant was alone in her house, she was entitled to feel safe there. This aspect of your offending is, in my view, particularly egregious'; > > c) You knew that there were no other adults in the house because you said you did not want to wake the kids when you closed the bedroom door and had locked the unlocked front door[26] after you had entered the house;[27] > > d) Prior to penetration physical force was used to overcome and subdue the complainant's verbal protest and resistance; and > > e) You were not wearing a condom.
a) it was conceded that it is an aggravating factor of the offending that it occurred in the complainant's home with a young daughter asleep in a nearby room. It was further conceded the offending has had a significant impact on the complainant and her daughter. > > b) He says the offending was not premeditated and appears to have been impulsive behaviour in circumstances where your impulse control was reduced by drugs and alcohol. > > c) The offending, although very traumatic, was relatively brief. > > d) And finally, the offending did not involve the infliction of physical injuries upon the complainant as is often in the case of the most serious examples of the crime of rape.
a) First, the period specified as the standard sentence 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 range of seriousness;[31] > > b) In determining the objective factors a court must not consider the personal circumstances of the offender; > > c) The key requirement when a court is dealing with a standard sentence offence is it must take the standard sentence into account as a relevant sentencing factor. As with the maximum penalty, the standard is a guidepost, it does not affect the instinctive synthesis nor permit a two-stage sentencing process or otherwise affect the matters a court may or must consider when sentencing; and > > d) Finally, a court should not start the sentencing process by determining whether a standard sentence should be imposed and then working its way up or down from that sentence.
a) Although an earlier plea of guilty was withdrawn, there is still a substantial utilitarian value to a plea of guilty as it avoids the need for, and cost of, a criminal trial, and most significantly the plea of guilty saves the victim from further cross-examination which will involve suggestions put to her before the jury she is lying or had a motive to lie about the allegations; > > b) Despite the history of the matter, a greater sentence discount for the utilitarian benefit may be justified as the plea of guilty at this stage involved savings and cost to the community in combination with a very significant benefit of no further involvement with a trial for the victim and her daughter.[47] It evidences an intention to facilitate the course of justice; > > c) As evidence of remorse, that is, when the complainant told you about the offending and you said 'I don't remember, but I'm so fucking sorry, I'm the biggest piece of fucking shit out there.' Mr Vuu says that you made frank admissions in the record of interview and pretext call, and that is to say whilst you made it clear that you did not remember sexually penetrating the complainant, you did admit to going in for a kiss or getting forceful with her and trying to kiss her and putting yourself on her with your bum on her waist and legs either side of her. When the allegation was put you said, 'I had my clothes on still - oh, fuck, I don't remember that, but fuck me, I honestly can't remember that happened. I saw her nude, I got a bit aroused by it but I would never rape someone in a thousand years. When I tried to kiss her I never had her hands like she said, I had them pinned down by her side. I was very intoxicated, I just wanted to see if I could come lucky.'
Static-99 test and the RSVP assessment, as well as her clinical judgment, found you to be a low to moderate risk of sexual re-offending compared to other sex offenders. You do not appear to have an entrenched criminal history, which goes a long way to suggest that this behaviour was truly aberrant. 2. You would benefit from treatment, especially education that focuses on issues of consent, appropriate sexual boundaries, improved self-awareness and improved impulse inhibition. Further exploration in a one-to-one therapeutic setting about sexual expectation, need and desire, is also recommended. 3. Given that you are a "low/moderate" risk of re-offending, offence-specific intervention is not recommended. Counselling that monitors your alcohol intake is strongly advised as substance abuse increases the risk of engagement in impulsive self-defeating behaviours including potentially offending. You are at the greatest risk of re-offending in the context of being intoxicated and pushing boundaries with a woman with whom you might think that you have a 'chance' at establishing sexual contact, even if they have other thoughts. 4. Given you have had difficulties in negotiating adult life that renders you socially and emotionally immature, you would benefit greatly with assistance in learning and activities to boost communication and social skills. 5. I repeat, you will be vulnerable in custody. I wish to avoid your exposure to more hardened criminal elements in that environment than is absolutely necessary. Moreover, you have demonstrated an ability to reform and have real reasons to do so. You have a young family that is increasingly a strong protective factor for you. I have dealt elsewhere in these reasons about how I take their hardship into account.
a) Your history of learning difficulties, social anxiety and emotional immaturity; > > b) Low to moderate risk of future sexual re-offending; > > c) Familial support; > > d) Hardship; > > e) Established employment history; > > f) Since the offending you have > > 1. Engaged in drug and alcohol counselling; > 2. Ceased drug and alcohol use; > 3. Voluntarily engaged in psychological counselling with Erin Dolan on a mental health plan to deal with underlying psychological difficulties you have faced in recent years; > 4. Maintained full time employment; and > > g) Ultimately have reasonably good prospects for rehabilitation.
In assessing whether the non-parole period is manifestly inadequate, it is important to recall the purposes of parole as explained by the High Court in Power, namely to provide for the mitigation of punishment of the prisoner in favour of his rehabilitation through conditional reform when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all of the circumstances in the case.
[2] s.5(2G) Sentencing Act 1991.
[4] Exhibit A: Summary of Prosecution Opening dated 2 July 2024 (Note there was an amendment made to that summary to reflect the fact that there is no charge of attempted sexual assault).
[8] Exhibit B: VIS of [Catherine] 18 October 2023 - written now close to 18 months ago.
[9] Exhibit E VIS of [Catherine] 14 April 2025.
[10] Taken substantially from both Exhibit 1: written submissions and Exhibit 2: report of Dr Carla Lechner 23 October 2023.
[11] Exhibit 4: Employer reference by Cart'em Poultry 15 August 2023.
[12] Exhibit 2: Report of Dr Carla Lechner 23 October 2023.
[14] Exhibit 6: Reference by Chaniall McCormick 9 October 2023.
[15] This is referenced in her written reference, but the full extent of her anticipated difficulties were explored on the SIH.
[16] Exhibit 5: Reference by Cerri Burns 7 October 2023.
[17] Exhibit 3: Treating psychological letter of engagement from Erin Doolan & Associates 30 October 2023.
[18] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
[19] Exhibit 2: Report of Dr Carla Lechner 23 October 2023, 7-9.
[20] Clarke v The Queen [2022] VSCA 89, [28].
[21] [2020] VSCA 161 (18 June 2020).
[23] [2016] VSCA 57 at [80].
[24] Exhibit C: Outline of prosecution submissions for sentence indication and chronology 8 April 2025.
[25] C/f Hudson v The Queen [2010] VSCA 332; (2010) 30 VR 610, 639[72], and Carter v The Queen [2012] VSCA 99 at [18].
[26] Statement of [Catherine] Depositions p23-33 at [17].
[27] Statement of [David], D35-37 at [7].
[28] Exhibit 1: Outline of sentence indication submissions 10 April 2025.
[29] The regime also deals with the setting of non-parole periods, which I will come to later, once matters that concern such a decision have been canvassed.
[33] See case collection of Court of Appeal decisions provided by the Judicial College at 3.1 (focusing on those sentences that fall within the standard sentence category).
[34] Exhibit D: Outline of Prosecution Sentence Submissions and accompanying Comparative Cases.
[46] See SAC Stat snapshot number 279 from September 2023.
[47] Phillips v The Queen [2012] VSCA 140; 37 VR 594 [36].
[48] Markovic [2009] VSCA 105
[49] Xeba [2009] VSCA 20
[51] See also DPP v Spottiswood [2021] VSCA 146, [41].
DPP
Ellis [2025] VCC 504
(2007) 16 VR 269
(1974) 131 CLR 623
(2010) 30 VR 610