DPP v Gabriel [2025] VCC 595

1. On 19 January 2022, you saw GZ's advertisement for sexual services on the 'Locanto' website. The advertisement included her phone number. At 11.07 pm you sent her a text message asking about her availability. She provided you with her address. You asked to meet somewhere public instead. She refused. You indicated you were still hoping to meet with her. She did not respond thereafter. Your last message was sent at 12.03 am asking 'how do I find your address'.
2. You attended her home shortly after that exchange in the early hours of 20 January 2022. GZ was having a cigarette outside her front door when you approached and asked if you were at the address she had provided you in her text. She said yes.
3. You looked around to see whether anyone was watching before pushing GZ back into her unit. You punched her with a closed fist to the right eye. This offending is the subject of Charge 1, assault with intent to commit sexual act.
4. You dragged GZ from the front door to the bed by holding onto the shoulders of her dressing gown. You pushed her onto the bed and removed her dressing gown and underwear. You forced her to give you oral sex. GZ said that you slapped her face throughout. This offending is the subject of Charge 6, rape.
5. You then forced GZ to have penile-vaginal sex with you. This offending is the subject of charge 7, rape.
6. At some stage, you asked GZ for money. She told you that she had $200 in the bedside table. You placed a pillow over her face and demanded more money.
7. You went into the kitchen area and grabbed a meat cleaver. You waved it around demanding more money. You asked if she had money in her bank and she told you she did. You demanded her iPhone and the password to the banking application on her phone. At 12.26 am, you transferred $1,200 to your Bendigo Bank account. You then ransacked the premises and located a black backpack. You placed several items, including a second iPhone, cigarettes, medication, GZ's drivers' licence and Red Bull cans into the backpack. This offending is the subject of Charge 8, armed robbery.
8. You left the unit, taking the key from the front door with you. You told GZ not to call police and said that you would be back. You locked the front door, confining GZ inside. This offending is the subject of Charge 11, false imprisonment.
9. GZ managed to obtain a spare key and let herself out. She ran to her neighbour's residence screaming for help. A nearby neighbour heard her and called Triple 0. Police were then notified and attended the scene. Body worn camera footage from Senior Constable McCallum was played at trial depicting his arrival at the scene from approximately 1.53 am until approximately 2.34 am.

1. GZ provided the court with a victim impact statement dated 17 March 2025. She did not want her statement read aloud in court so I will summarise it in broad strokes. GZ writes of the fear and paranoia she has experienced since the offending. She described the isolation she feels being separated from her family and alone in a community where there are language and cultural barriers in place. She wrote of the social and financial challenges she now faces after her need to relocate due to the offending having taken place in her home.

1. You were born in January 2000. You were 22 years old at the time of the offending and you are now 25. You have no prior criminal history. You struggled with alcohol and drug addiction since 2021. You are the only child to your parents, with three older half-sisters from your mother's relationship with a former partner. Your parents' marriage dissolved in 2021.
2. From the age of 17, you began working servicing cell phone towers, often travelling away from home. Your employment there was terminated, and you began working at Kordia. After your initial remand, you were again terminated. You obtained employment as a concreter, then at a fire hauling company, and then transferred to rigging in late 2022.

1. I was not provided with a chronology by either party. From the material I have available to me, you were first charged on 21 January 2022. The matter was listed for trial in the Warrnambool circuit commencing 8 April 2024 and given a not before date of 22 April 2024. It was not reached during that circuit and adjourned to 19 August 2024. It was again not reached. The trial commenced on 9 October 2024 before me. The jury returned its verdicts on 17 October 2024.

1. Ms Marcou on your behalf submitted that I ought to impose a moderate term of imprisonment with a short non-parole period taking into account your youth at the time of the offending, the delay you have encountered and the principles of totality and double punishment.

1. Mr Moore submitted that a head sentence with a non-parole period is the only appropriate sentence available to me considering the objective gravity of your offending and your high moral culpability.

1. Ms Marcou conceded that your offending is serious. She relied on the following factors:

(a) the offending was, she said, of short duration;

(b) the jury verdicts are consistent with an acceptance that your offending was spontaneous and unplanned;

(c) your offending lacks aggravating features such as being in company or the degradation of a domestic partner; and

(d) the motivation for the theft was your escalating drug use, gambling and financial pressures.

1. Mr Moore submitted that the offending is objectively serious. He highlighted the protracted violence involved, that the complainant was entitled to safety in her own home and the use of the meat cleaver to intimidate.
2. Ms Marcou in oral submissions argued that the jury's verdict of not guilty in relation to the aggravated burglary charge suggested that the only sensible finding is that the offending was not a planned or pre-meditated attack.
3. Your offending took place against a backdrop of escalating drug and alcohol abuse. You told Mr Armstrong that you first began using cannabis when you were 16 years old, you began experimenting with ecstasy and cocaine in your late teens.[3] You started binge-drinking and using ice midway through 2021.
4. Mr Armstrong writes that you were drug addicted in the months before the offending.
5. There are a number of disturbing features to this offending. You assaulted GZ immediately upon entering her unit. You exercised dominion over her and carried out your assaults with a nonchalant, unhurried indifference to the risks you were running. From the moment you were inside her unit, you subdued her with violence or the threat of violence, you controlled her, used her and contemptuously drained her account. You threatened her with a meat cleaver and eventually left her flat, but only after you had turned it inside out in your search for goods to steal. By her reckoning, you spent two hours raping, assaulting and robbing her. The time between your last text to her and her neighbour's Triple 0 call is a little under two hours. By any measure, her ordeal was lengthy, demeaning, life-altering and terrifying. She says you did not use a condom. You said to police that you initially penetrated her without a condom, later put one on and disposed of it in a storm water drain. No condom was recovered by police. I accept her account that you did not use a condom. That is an aggravating feature of your offending. I also accept her estimate of approximately two hours. The objective gravity of your offending is high.
6. Whilst you were acquitted of aggravated burglary, the jury found you guilty of assault with intent to commit a sexual offence. That assault was committed as soon as you crossed the threshold and it is powerful evidence of your intention to overbear GZ's will, rape her and treat her as something sub-human. You menaced her, lingered in her home with an insouciant indifference to being caught, rifled through her belongings and forced her to transfer her funds to your account. When you left, you covered your tracks by disposing of her phones, but your detection was inevitable given the exchange of text messages between you and the forced transfer of funds from her account to yours.
7. Your moral culpability is high. It has not been argued that your moral culpability is reduced by your use of drugs in the period preceding your attack on GZ. It was submitted that you robbed her to buy drugs. That does not reduce your moral culpability. You sought her out, tried to lure her to the botanical gardens and when you were rebuffed you made your way to her address. The jury found that your initial assault of her was effected in order to rape her. At some stage during her ordeal, you also decided to rob her. I do not accept that you intended to pay her and the jury by its verdicts rejected that aspect of your account. You justified your actions to police by claiming that you had a dispute with her about the fee payable after sex and that was the context in which you demanded cash from her. I cannot conclude that you went to her unit intending to rob her, and the meat cleaver you used was taken from her kitchen, which supports the conclusion that after you raped her you decided to rob her also. The armed robbery is nonetheless a serious example of a serious crime. GZ was alone, spoke poor English and was physically slight. You had already punched her in the face when you menaced her with the cleaver to extract the money in her account.
8. You told police that there was another person present in GZ's flat and that you felt threatened. When that proposition was put to GZ in cross-examination, she was withering in her rejection of this aspect of your account. I do not accept that there was another person in her unit. When she sourced the spare key, she fled screaming to a neighbour's unit for help. She was alone and was required to communicate to police through an online interpreter.
9. When you left GZ, you locked the door and took the key to her house with you. You doubtless believed you had trapped her inside and had relieved her of her phones, depriving her of the ability to raise the alarm. When she escaped, as noted elsewhere, she ran to a neighbouring unit. I need to exercise care in assessing the gravity of the false Imprisonment charge, but on the evidence, consistent with the verdicts, you imprisoned a woman you had just assaulted, raped and robbed. You locked her in her home, hoping she would be deprived of the capacity to complain or seek help. This is a serious example of a serious crime.

1. Ms Marcou submitted that you have reasonable prospects of rehabilitation owing to the excellent supports you have in the community and within your family. Your parents were both present at the plea hearing as was your half-sister and your partner. Your parents attended each day of the trial.
2. In early 2024, I am told your sister assisted you in enrolling in a private outpatient rehabilitation programme. You attended for 2 to 3 months, four nights a week. You reported that this helped you to stop your heavy consumption of drugs, though you admit that you have used drugs approximately three times since early 2024.
3. Your offending is unusual in its audacity. That said, you do not have a track record of antisocial conduct. You have a decent work history, and you have a deeply concerned, supportive network. On the strength of Mr Armstrong's assessment, your prospects are guarded, but there is some scope for hope given your age and the scaffolding around you. It is probable that you will emerge from prison with the tools to lead a conventional, unexceptional life.

1. I was provided with a bundle of seven-character references.
2. Your aunt, Ms Shirley Gabriel, writes that you have always been a trustworthy and hard-working person. She described you as someone who values your family and friends.
3. Your fiancé, Ms Carly Kretiuk, describes you as an open and honest person who has been kind and caring to her and her son. She describes you as deeply remorseful for your actions and maintains a desire to build a family with you.
4. Your sister, Ms Kelly Bayliss, writes that you have been significantly stressed by your parents' separation. She says your offending is wholly out of character. She describes you as a decent, hardworking, trustworthy person, a caring brother and uncle.
5. Ms Kim Repcak has known you since October 2022, when you dated her niece, Ms Taylah Milner. She described you as a polite, respectful and caring person, hardworking and considerate.
6. Your father, Mr Frank Gabriel, writes that you have always been a decent, respectful young man and that you are extremely sorry for your offending behaviour.
7. Your mother, Ms Wendy Gabriel, writes that she has relied on you through her health difficulties and that you have always been caring and respectful. She maintains that what you have been charged with is out of character.
8. Your uncle, Mr Andrew Franklin, writes that you have always been a hardworking young man. He noted that you struggled with your parents' separation.

1. You pleaded guilty to Charges 2, 9 and 11 at arraignment, in the presence of the jury. Charges 2 and 9 were lesser alternatives to Charges 1 and 8. You were found guilty of the more serious charges.
2. Your plea of guilty to Charge 11 entitles you to some slim mitigation.

1. Ms Marcou submitted that you were 22 years old at the time of the offending and ought to be sentenced as a youthful offender. She relied on Mr Armstrong's report where he noted that you are 'still young' and not 'unsalvageable'.

1. Ms Marcou submitted that you have had these charges hanging over your head for three years. She argued that you have suffered significant stress, culminating in a suicide attempt whilst awaiting trial. She submitted that you have

well-established support in the community and in your family; given your lack of re-offending, you have demonstrated a capacity to ply the straight and narrow, abide by stringent bail conditions and attend to the advancement of your rehabilitation. 2. You are entitled to the mitigatory effect of both limbs of delay. I have reduced your sentence accordingly.

1. Ms Marcou submitted that I need to guard against relying on instances of charged conduct in elevating the objective gravity of other charged conduct. She submitted that the rule against double punishment, when applied, should result in substantial concurrency between the sentences. She argued that your offending needs to be viewed as a continuous episode, one that calls for substantial concurrency between each count. She referred me to the case of Mulligan v The Queen,[4] where the Court of Appeal held that separate penetrations which were charged individually were in effect part of a single continuing transaction.
2. Mulligan was an appeal against conviction and sentence. The applicant submitted that the trial judge had imposed a manifestly excessive sentence with respect to Charges 3 and 4 of rape. The offending the subject of those charges involved the applicant waking the complainant up, forcing her to perform oral sex on him and then penetrating her vagina with his penis. The trial judge imposed individual sentences of seven years on each charge with cumulation of two years, leading to an overall sentence on those charges of nine years. The Court of Appeal held that the cumulation was manifestly excessive for what was, in essence, a single episode of offending. The applicant was resentenced to seven years each on Charges 3 and 4 with the cumulation reduced to 12 months.

1. Mr Moore submitted that under s11(1) of the Sex Offender Registration Act, I ought to exercise my discretion to impose reporting obligations upon you due to your risk of further sexual re-offending. This submission was made on the basis of

Mr Armstrong's report, in which he assessed you as an above average risk of sexual recidivism. 2. Ms Marcou provided further written submissions on 2 April 2025 and referred me to the principles in Sayer v The Queen,[5] where the following propositions were identified arising from the decision in Bowden v The Queen[6]:

(a) The inquiry whether to make a registration order involves a two-stage process.

(b) The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to sexual safety as defined.

(c) For the court to be so satisfied, the risk must be real rather than fanciful.

(d) The evaluation of risk is directed to the risk upon the offender's release into the community, assessed by what is presently known.

(e) The second question, which only arises if the court is satisfied that the requisite risk exists, is whether the order should be made in all the relevant circumstances.

(f) The second stage involves balancing the identified risk, having regard to the purpose of the Act, with the restrictions imposed on the offender's right to enjoy freedom and autonomy of action.

(g) The balancing exercise involves considering the magnitude and nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender.

1. In relation to the first question, Ms Marcou submitted that your conduct before and after your offending demonstrates that you are not a real risk to the sexual safety of a member of the community. Ms Marcou pointed to several factors in support of this position, including that your offending was not family-violence related, that you are now in a long-term relationship and do not use the services of sex workers, and that you ceased taking drugs following your offending. She noted that you have no criminal history, including in the almost three years where you have remained in the community following your offending. Ms Marcou further noted that you are a young offender, that you do not have any personality disorder diagnoses, that you have taken steps to voluntarily engage in community-based drug rehabilitation, and that you are in a stable relationship with a woman who has a

seven-year-old child. 2. As to the second question, Ms Marcou submitted that reporting obligations would be very onerous, particularly where your partner has a child and you offended against a mature adult. She noted that if you were subject to reporting obligations, you would need to provide the name and details of each child with whom you have come into contact, and any details of affiliations with clubs or organisations that have child membership or participation. Further, it would require you to report any changes to your personal details and other details such as any plans to travel outside of Victoria. 3. Ms Marcou referred to Mr Armstrong's report, noting that he qualified his risk assessment by stating that:

'The recidivism estimates provided by the Static-99R are group estimates based on reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond with the recidivism risk of an individual offender. The offender's risk may be higher or lower than the probabilities estimated in the Static-99R depending on other risk factors not measured by this instrument'.

1. It was submitted, and I agree, that Mr Armstrong's classification of risk does not absolve me of the need to make my own assessment. In my view, your risk of reoffending is not such that it requires the imposition of reporting conditions.

1. Ms Marcou referred me to sentencing statistics obtained from the Sentencing Advisory Council's website for the offence of rape. She referred me to Snapshot 279 which analyses the sentencing outcomes for people charged with rape from 2017-2022 and found that of 60 charges, the average imprisonment length was six years and four months, irrespective of the offender's age.[7] She contrasted this with Figure 22A which found that 13.2 per cent of offenders are less than 25 years of age and 43.8 per cent of those received a non-parole period of 3-4 years.
2. She relied on these statistics to submit that you ought to receive a sentence with a low non-parole period and a moderate head sentence, considering your youth and your capacity to reform. These statistics have been helpful in illustrating current sentencing practices, but they do not bind my instinctive synthesis. I note moreover that your rape charges are accompanied by three serious charges including armed robbery and false imprisonment.

1. Pursuant to s 5 of the Sentencing Act, the purposes for which you are to be sentenced are:

(a) To punish you in a manner and to an extent which is just in all of the circumstances;  

(b) To deter you or others from committing similar offences in future;  

(c) To facilitate rehabilitation;  

(d) To manifest the denunciation of your conduct;  

(e) To protect the community; or  

(f) A combination of two or more of these purposes.

1. Your offending against GZ was audacious, entitled, demeaning and arrogant. It was also violent. You did not apprehend her as a person. You resolved to strip her of all you could take from her. You then locked her up in a state, you hoped, of mute helplessness. Specific and general deterrence have central roles to play in my sentence. Your conduct needs to be denounced. I intend to leave the door open to your rehabilitation by fixing a lower than usual non-parole period. I have had regard to the principles of proportionality and totality in fixing the head sentence.
2. Pursuant to s11A(4) of the Sentencing Act, a court must fix a non-parole period of at least 60 per cent of the relevant term if that term is less than 20 years, unless it is in the interests of justice not to do so. In your case, I have determined that it is in the interests of justice to fix a non-parole period of slightly less than 60 per cent. I have done so because of your youth, your lack of antecedents and the need to hold the door open to your rehabilitation.

1. On Charge 1, assault with intent to commit a sexual offence, you are convicted and sentenced to two years' gaol.
2. On Charge 6, rape, you are convicted and sentenced to six years' gaol.
3. On Charge 7, rape, you are convicted and sentenced to seven years' gaol.
4. On Charge 8, armed robbery, you are convicted and sentenced to three years' gaol.
5. On Charge 11, false imprisonment, you are convicted and sentenced to three years' gaol.
6. The sentence on Charge 7 is the base sentence. Six months on Charge 1 is to be cumulated on that sentence. Twelve months on Charge 6 is to be cumulated on that sentence. Twelve months on Charge 8 is to be cumulated on that sentence and six months of Charge 11. That produces a head sentence of 10 years' gaol. I fix a non-parole period of five years, six months before you are eligible for parole.
7. You have served 213 days of pre-sentence detention and I declare that as time served against this sentence.
8. Pursuant to s6F(1) of the Sentencing Act, I declare that on Charge 7 you are sentenced as a serious sex offender. Section 6E creates a presumption of cumulation, but I have directed partial cumulation only in your case, factoring in the matters relied on by Ms Marcou. In doing so, I have not lost sight of s6D which obliges me to regard the protection of the community as the principal purpose of my sentence.
9. A forfeiture order is sought by the prosecution. The making of that order is not opposed, and the order will be made in the terms sought.
10. Pursuant to s6AAA of the Sentencing Act, I declare that, but for your plea of guilty on Charge 11 of false imprisonment, I would have sentenced you to a total effective sentence of 11 years with a non-parole period of six years, six months.
11. Mr Moore, are there any further ancillary orders? I am presuming not.
12. MR MOORE: Sorry, Your Honour, yes. No, other orders.
13. HIS HONOUR: Thank you. Mr Gabriel can be removed.

[1] Crimes Act 1958 (Vic) s 38.

[2] (2019) 280 A Crim R 257.

[4] Mulligan v The Queen [2017] VSCA 94 ('Mulligan').

[5] Sayer v The Queen [2018] VSCA 177 at [92].

[6] Bowden v The Queen [2013] VSCA 382.

[7] Sentencing Advisory Council, S_entencing trends in the higher courts of Victoria 2017-18 to 2021-22: Rape_ (Sentencing Snapshot No. 279, September 2023) at p 7.