DPP v Jacobson [2025] VCC 1537

1. On Saturday 26 August 2023, you met the victim whilst she was waiting for a bus at the Bendigo train station. During your interaction with her, she told you she was 16 years old.
2. The pair of you exchanged phone numbers and began to text one another that same day. During the text message exchange, you sent the victim your photograph. In the same exchange, you and the victim made arrangements to meet at Southern Cross station the following week.
3. On Friday 1 September 2023, you and the victim exchanged text messages and arranged to meet at the Hungry Jacks restaurant located at the Southern Cross station.
4. The victim travelled to Melbourne on a train from Bendigo with her support dog, and arrived in the city at around 6:00pm. As planned, you met the victim at Hungry Jacks. The pair of you walked to Batman Park between the Yarra River and Spencer Street railway underpass to allow the victim to take her support dog to the toilet.
5. The victim placed a blanket on the ground to sit on. Once seated next to each other, you kissed her on the cheek without warning. She told you not to kiss her but you continued to do so. You wanted her to kiss you but she declined. This conduct was led in the trial by the prosecution as an uncharged act for which you will not be punished.
6. At some point, you made comments about wanting to have a baby with the victim. You asked her to go to the toilet with you to have sex, to which she declined.
7. After she told you not to kiss her, you put a blanket over her and asked her to have sex with you. She responded saying 'No'. You touched her body including by touching her breasts (Charge 1). She again told you not to touch her. You then put your hand inside her pants and penetrated her vagina with your finger. As you did this, she told you, 'Please can you stop touching me, I'm very uncomfortable'. Despite her plea, you continued to touch her breasts and penetrate her vagina with your finger. The victim recalled that she was crying at the time and that when you penetrated her vagina it hurt and 'was burning' (Charge 2).
8. At some point, you asked the victim to touch your penis, and she said, 'No'.
9. You stopped touching and penetrating the victim and she got up and walked back to Southern Cross station. Initially, you walked back with her from Batman Park, however, you parted ways at the corner of Collins and Spencer Streets.
10. The victim went to the V-Line ticket counter to purchase her return ticket. At 7:18pm, she sent you the following text message:

1. At about 7:25pm, the victim approached Protective Services Officers ('PSOs') Paul Lovick and Richard Robert who were patrolling the station. She told them that she had been sexually assaulted. She also explained what had happened to her to a third PSO, Prinoon Joseph, who was working with Lovick and Robert. Her complaint was captured on their body worn camera devices.
2. The PSOs notified detectives from the Melbourne Sexual Offences and Child Abuse Investigation Team ('SOCIT') of the victim's complaint. The victim was taken to the Melbourne West police station where she participated in a VARE statement during which she detailed the offending.
3. At the time of committing these offences you were on bail in relation to charges of unlawful assault, wilful damage, and criminal damage (Summary Offence 3).

1. Through the use of Safe Streets footage, you were identified as the offender by investigators. On 6 September 2023, police from the Bendigo SOCIT attended your home and arrested you.
2. You were conveyed to the Bendigo police station where you participated in a record of interview with police. During the interview you told police the following:

(a) You agreed you first met the victim at the Bendigo train station a week prior to meeting her at the Southern Cross station on 1 September 2023.

(b) You said it was the victim who asked you for your phone number.

(c) You said the victim asked you to meet her at Southern Cross station to wait with her.

(d) You agreed you had exchanged text messages with the victim.

(e) You said you walked from Southern Cross station to Batman Park with the victim and her dog.

(f) You agreed you sat on the blanket with the victim.

(g) You said you were at Batman Park for less than 20 minutes and that when you were at the park, you and the victim played with the dog.

(h) You said you felt uneasy being with the victim because of things she was saying to you, and that you wanted to leave.

(i) You denied kissing the victim, touching her breasts or penetrating her vagina with your fingers.

(j) You said you are impotent and have been for a couple of years.

(k) You said you walked the victim back to Southern Cross station and decided to 'abandon' contact with her and you got back on a train to Bendigo.

1. Ms Barnett prepared a victim impact statement ('VIS') which has been tendered.[10] I have had regard to the contents of that statement. Ms Barnett's VIS outlined the significant impact your offending has had on her life. She described feeling a loss of confidence, and experiencing a significant decline in her mental health, including depression and ongoing anxiety which has on occasion prevented her from leaving her home out of concern for her safety.
2. The decline in her mental health has led to a daily struggle for Ms Barnett to get out of bed. She described experiencing nightmares because of your offending.
3. The impact of your offending has caused disruptions to her ability to focus on school and to function at work. It has disrupted her family and social relationships as she has become too afraid to leave her home to socialise with others. Understandably, she does not feel safe going out alone and always needs to be accompanied by someone she trusts. However, as she noted, she remains cautious about placing her trust in others.
4. The victim has suffered considerable distress and anxiety as a result of your offending conduct. Ms Barnett had a right to feel safe going out in public alone. The incident would have been a terrifying experience for her, particularly as she was alone with you at the park and you took advantage of her and betrayed her trust.
5. As the Victorian Court of appeal observed in R v Mason:[11]

It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms.

1. It is evident from Ms Barnett's VIS that your offending has had a profound and long-lasting effect on her. Your offending against her was terrifying, degrading and an invasion of her bodily integrity. Such offending strikes at the most basic values of a civilised society, where people should feel safe on our streets and women should not have to fear such degrading and predatory conduct.
2. On behalf of the Victorian community, I denounce your abhorrent conduct towards Ms Barnett in the strongest terms possible, and I will take into account the contents of her VIS in sentencing you for these crimes. Clearly, your offending has had a profoundly traumatic effect upon Ms Barnett's present and future wellbeing.

1. Rape is an inherently serious offence as indicated by the maximum penalty of 25 years' imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence. Sexual assault is also a serious offence as indicated by the maximum penalty of 10 years' imprisonment.
2. Moreover, rape is a standard sentence offence.[12] The standard sentence fixed for the offence is imprisonment for 10 years.[13] In sentencing you for these offences, I must have regard to the standard sentence[14] which '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'.[15] It is a matter I must have regard to as one of the factors relevant to the sentence I impose on you for this offence.[16] It is to be treated as a 'legislative guidepost', as is the maximum penalty.[17]
3. As the Victorian Court of Appeal observed in Clarke (a pseudonym) v The Queen:[18]

Determining the middle range of seriousness for rape is difficult, since, as was observed in Lawrence (and has been observed in other cases), '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'. And notwithstanding the standard sentence, by reason of s 5(2)(c) of the Sentencing Act 1991 a sentencing judge is still required to assess the nature and gravity of the offence in the conventional way.

1. The significant aspects of your offending that go to my assessment of its nature and objective seriousness can be summarised as follows:[19]

(a) Your offences were committed against an intellectually disabled 16-year-old girl.

(b) You developed a sexual interest in the victim very soon after meeting her. You sent her numerous texts expressing your interest in her and giving her compliments in the days leading up to the offending. However, I accept your counsel's submission that this does not equate to a formed intention to rape or sexually assault Ms Barnett during this time. I consider you ought to be sentenced on the basis of an opportunistic and relatively spontaneous act arising at the park.

(c) You penetrated Ms Barnett's vagina with your finger causing her discomfort and a burning sensation. The duration of the digital penetration was short, lasting some five or ten seconds.

(d) The penetration was preceded by sexual touching involving kissing the victim's face and touching her breast.

(e) Ms Barnett made it very clear to you she was not consenting to your advances, and she resisted and pleaded with you to stop throughout her ordeal.

(f) There was a significant period of resistance by the victim prior to your advances before she was penetrated. However, beyond the physical persistence of touching her over her objections, there was no overt violence beyond what is inherent in any crime of rape.

(g) You raped and sexually assaulted Ms Barnett at a public park where she had the right to feel safe.

(h) Digital rape does not involve some of the risks of penile rape, namely contracting a sexually transmitted disease and pregnancy, however that does not mean any particular instance of it is less serious than other forms of rape.[20]

(i) You took advantage of the victim's vulnerability to satiate your desire for sexual gratification.

1. While I assess your moral culpability as being quite high, overall, I consider your offending conduct in relation to both charges falls within the lower range of offence seriousness.
2. Clearly, just punishment, denunciation and general deterrence must be given significant weight in sentencing you for these offences. Albeit all of those sentencing principles need to be sensibly moderated on account of your mental health conditions and your disadvantaged childhood which are discussed later in these reasons for sentence.

1. You were assessed on 7 May 2025 by Sandra Cokorilo, a registered psychologist engaged by your legal representatives. Ms Cokorilo prepared a 'Psychological Assessment Report' dated 24 May 2025, which was tendered at the plea by your counsel.[21] Your personal history is summarised within this report.

1. You are presently aged 46 years, and at the time of the offending you were 44 years old. You are of Indigenous heritage and were born in South Australia, but have lived in Victoria since you were an infant. Prior to your remand following the jury's verdict in the present case, you were living in Bendigo in supported residential accommodation with 79 other (mixed gender) residents also living with a disability and 24/7 supports.
2. Your father worked various jobs and you mother worked as a nurse. You have one biological older sister and one younger sister, and two younger maternal half-brothers.
3. You told Ms Cokorilo that you witnessed frequent family violence between your mother and father prior to their separation, noting repeated involvement by police and child protection officers. However, you denied any harsh discipline by either parent.
4. Your parents separated when you were six years old. You initially remained in your father's care because your mother was incarcerated at that time. You reported that due to neglect, you were removed from your father's care within a year and became a ward of the State.
5. Initially, you were in residential care for a brief period before you were fostered with numerous families between the ages of 7 and 12. You reported to Ms Cokorilo that you were sexually abused by three residential workers at the age of 7 and subjected to sexual, emotional, physical and verbal abuse by four or five of the foster families with whom you subsequently resided. You explained that you did not disclose the abuse at the time, but noted you became involved with the National Redress Scheme in 2023.
6. After you were removed from your father's care at the age of 7, you did not have contact with him again until you were aged 13. You reported that you again had no contact with your father until you were 21 years old after which you maintained contact on at least a monthly basis. When you were aged 12, your father entered into a new relationship with his current partner. You recalled having a positive relationship with your father and stepmother.
7. Your mother re-partnered when you were 7 years old and she remains in the same relationship. You reported that your stepfather subjected you and your mother to frequent and severe violence, resulting in police involvement. You had a poor relationship with your stepfather and were evicted from home by him when you were 13 years old.
8. You described feeling loved, supported and nurtured by your father and mother. Your father has remained supportive of you after you were charged with the offences before the court today. You told Ms Cokorilo that your mother ceased contact with you three years ago when you were charged with the current offences. In relation to your siblings, you advised Ms Cokorilo that you lost touch with your siblings over the years, having had no contact for the past 20 to 30 years.
9. You reported to Ms Cokorilo that between the ages of 13 and 20, you were homeless living in youth hostels and on the streets. Since the age of 20, you have had stable accommodation approximately half the time, residing predominantly with partners or by yourself. However, for the remainder of the time, you recalled being homeless, couch surfing or living in crisis accommodation or on the streets. You could not identify the reasons for your homelessness, but informed Ms Cokorilo that you were living in supported housing for three years before being remanded in custody for the offences on which you are to be sentenced today.

1. As a ward of the State from the age of 7, you attended ten primary and five secondary schools owing to frequent relocations. Whilst it was difficult for you to make friends given your frequent relocations, you were able to establish some friendships.
2. You reported below average academic performance but recalled that you never had to repeat any grades, or receive additional in-class learning support. You were never assessed for a learning or neurodevelopmental disorder.
3. You reported positive relationships with teachers and denied any significant behavioural issues. However, you informed Ms Cokorilo of two incidents where you were suspended in high school for fighting. Despite these two incidents, you noted that you were not frequently involved in fights and were never expelled.
4. You left your secondary education at the completion of Year 10. You commenced a Bachelor of Fine Arts but disengaged after two years as you became heavily involved as a political activist. You completed an Advanced Diploma in Christian Studies in 2001.
5. You have worked at various times as a chef, personal care attendant, call centre operator and an assistant service officer. You estimated that you had been employed 50 percent of the time since leaving high school. You attributed any periods of unemployment to poor mental health, noting you were diagnosed with schizophrenia, post-traumatic stress disorder ('PTSD') and acquired brain injury ('ABI').
6. Your last working role was as a pizza chef for one year until 2023 after which you resigned because of work pressures. You had been supported by the disability support pension since 2007, which was granted on the basis of your diagnoses of schizophrenia and post-traumatic stress disorder.
7. Whilst in custody on remand for these offences you have been undertaking a course in Information Technology.

1. During your assessment with Ms Cokorilo, you reported five significant relationships in your lifetime. You reported a positive relationship from Grade 6 until Year 9. The relationship ended when you relocated. You felt negatively impacted by the breakup.
2. You reported another positive relationship between the ages of 15 and 18. This relationship broke down in the context of your partner's infidelity. You recalled it was a difficult breakup.
3. Between the ages of 24 and 27, you reported an 'okay' relationship which ended through mutual agreement because it was 'not working' out. You advised you were negatively impacted by that breakup.
4. Through previous relationships, you have gained two sons, one of whom you have not met, and an 18-year-old son and a 16-year-old daughter. Your 18-year-old son remains in his mother's care, and you have had little contact with him. Your daughter has been in the care of her maternal grandparents since your separation from her mother, as her mother needed support.
5. You reported no history of family violence or Family Violence Intervention Orders with any of your previous partners.
6. You told Ms Cokorilo that you have only one friend, noting that you have always been socially isolated.

1. During your assessment, you disclosed problematic weekend abuse of alcohol to the point of passing out between the ages of 13 and 25. You attributed this to your childhood trauma and abuse. You reduced your alcohol consumption from the age of 25 until the age of 35, at which point you began drinking to the point of heavy intoxication a few times per week. You continued to drink heavily until the age of 40. You attributed this problem to your historical trauma and disappointment about how your life had turned out. You denied any problematic use of alcohol past the age of 40.
2. You reported using 1 to 2 grams of cannabis daily from the age of 14 to your mid-twenties, at which point you reduced your drug use to two to three days per week, typically smoking a total of 1 gram per week.
3. You have experimented with using ecstasy and LSD in the past.
4. Since the age of 40, you reported smoking methamphetamine a few times per week, amounting to a total of 1 gram per week. You were introduced to methamphetamine by a friend and 'enjoyed' using it but have since reported that you intend to cease use for health reasons.
5. You estimated 20 to 30 episodes of voluntary and court-mandated Alcohol and Other Drugs ('AOD') counselling since the age of 14. You attended voluntary weekly AOD counselling sessions for one year until you were remanded into custody for the current offences. You described the intervention as helpful in reducing drug use but found that it was not sufficient to facilitate abstinence.
6. You voluntarily attended residential AOD rehabilitation on 5 or 6 occasions between the ages of 15 and 43 to address alcohol, cannabis and methamphetamine use. You were at Odessey House for two years until the age of 17, with other rehabilitation stays lasting 'months'. You reported a six-month stay at the age 43. You explained to Ms Cokorilo that you generally abstained for a few months after discharge, but then relapsed in the context of depression.

1. You reported to Ms Cokorilo that you were diagnosed with PTSD at the age of 15. You reported the full range of post-traumatic symptoms which persist to this day. You told Ms Cokorilo that your PTSD symptoms were exacerbated by a severe assault by several perpetrators at the age of 25, noting you sustained a significant head trauma which you reported resulted in a diagnosis of acquired brain injury. You were prescribed medication for the past seven years to assist with nightmares. I note that you legal representatives sought and obtained a neuro-psychological report, but you did not rely on this for the purposes of your plea hearing.
2. You reported persistent depressive symptoms since your teenage years, which you attribute to your upbringing and life experiences. You also reported a history of auditory hallucinations which began in adolescence. You reported you were diagnosed with schizophrenia at the age of 15 and were prescribed antipsychotic medication at that time. Due to experiencing adverse side effects, you were not consistently compliant with treatment during adolescence and early adulthood.
3. You told Ms Cokorilo that the auditory hallucinations were previously more frequent but have become well managed since you commenced antipsychotics depot injections 8 years ago. You reported full compliance with this treatment since initiation and now experience auditory hallucinations only once or twice per month, typically nearing your injection due date. You are not currently on a Community Treatment Order, although you were placed on such orders 8 or 9 times prior to entering your twenties.
4. You reported recurrent suicidal ideation since your teenage years and estimated you had made ten suicide attempts between the ages of 15 and 24. You reported a history of self-harm between the ages of 14 and 18 in the context of emotional dysregulation and suicidal ideation.
5. You recalled having more than 100 psychiatric admissions since the age of 14 in the context of acute emotional deterioration, suicidality, and psychosis. You reported that these admissions ranged from two weeks to three months, noting that approximately half of them have been involuntary. You informed Ms Cokorilo that your most recent admission was in 2023, which lasted six weeks, and was precipitated by suicidal ideation following the current offences.
6. You estimated engagement with 15 different psychologists since the age of 14. You recalled you most recently engaged in voluntary fortnightly counselling sessions for three years until you were remanded in custody on the present charges.
7. It appears Ms Cokorilo performed no psychometric testing and she made no formal diagnoses of you. Apparently she was prepared to act on your self-report regarding your history of mental health diagnoses, treatment, medications and the progress of your conditions.
8. Also tendered at the plea hearing was a brief report from Ms Vinusha Kumarawansa, dated 16 June 2025,[22] a registered psychologist who has been working with you through your NDIS plan since March 2024. She has been providing on-going counselling to you. She refers to your having diagnoses of schizophrenia and PTSD, both of which she says were diagnosed in early adolescence. Ms Kumarawansa observes:

throughout my engagement with Samuel I have observed him as an individual who is trying to overcome the negative experiences of his past, make positive changes in his life and work on improving his mental health and overall wellbeing.

1. Ms Kumarawansa commenced therapy with you on 2 October 2024 and has been consulting with you on a fortnightly basis via telephone/video appointments including while you have been remanded in custody on the present charges. You have demonstrated positive engagement in this process which is to be encouraged.
2. Also tendered at the plea hearing was a NDIS Coordination of Supports Report prepared by Ms Audrey Grant, dated 13 June 2025.[23] This report lists 'Primary and Secondary Diagnoses' as being: 1 schizophrenia; 2 borderline personality disorder ('BPD'); 3 suicide ideation; and 4 post traumatic stress disorder ('PTSD'). It refers to, inter alia, a 'history of suicide attempts', 'psyche admissions' and 'hearing voices' and lists two suicide attempts on 3 May 2024 and 30 July 2024.

1. Your juvenile criminal history involves charges between 1993 and 1996 that included offences of thefts, burglary, obtaining property by deception, wilfully damaging property, arson and drunk and disorderly conduct in a public place.
2. Your prior charges in the adult court have included theft, obtain financial advantage by deception, unlawfully on premises, criminal damage, unlawful assaults, indecent assault, possess and use cannabis, drunk and behave in an offensive manner in a public place, driving offences, and failure to answer bail.
3. In relation to the indecent assault charge, you recalled that this related to an incident where you touched a woman's leg on a train while you were heavily affected by alcohol.
4. Importantly, the offences before the court today represent the first charges you have faced in a proceeding before a higher court, and this is the first occasion where you have spent time in custody.

1. Ms Cokorilo conducted a comprehensive review of your risk of reoffending and concluded that you have a moderate to high risk of sexual recidivism. Beyond the nature of your offending conduct itself, she opined your most important risk factors include your reported history of child sexual abuse, psychopathology, substance abuse, relational problems, and cognitive deficits.
2. Ms Cokorilo explained these risk factors reduce your self-inhibition and regulation as well as undermine your judgment and consequential thinking. In her opinion, some of your risk factors may be amenable to treatment and could be managed through a combination of AOD and mental health interventions, as well as specific sex-offender programs if indicated.
3. So far as your prospects of rehabilitation are concerned, Ms Cokorilo considered these must be guarded in light of your chronic and enduring impairments. However, she opined that your risk of recidivism may be mitigated, and your emotional wellbeing improved, through targeted, multidisciplinary intervention strategies delivered at a level commensurate with your cognitive capacity and comprehension.
4. In light of the nature of the present offending, your prior relevant conviction for indecent assault and your moderate to high risk of sexual recidivism, I must give significant weight to specific deterrence and protection of community in sentencing you for these offences.

1. You stood your trial, which was your right, but this means you can receive no discount for pleading guilty. As your counsel fairly advised me, you continue to deny the offending. Accordingly, you lack insight into the reasons for your offending conduct and have demonstrated no remorse.
2. There are a number of matters put on your behalf in mitigation of penalty.

1. You have taken some positive steps towards your rehabilitation during your period on remand for these offences. You have engaged in two rehabilitative programs -'Cannabis and Me (6 hours)' and 'Ice and Me' - as evidenced by certificates tendered at the plea hearing.[24] According Ms Kumarawansa, you have also been engaged in an information technology course and you are attending daily work whilst in prison.
2. Whilst your efforts at rehabilitation are to be encouraged, given the nature and seriousness of your offending conduct, your risk of sexual reoffending, and your lack of insight and remorse, I can only adopt a guarded approach to your prospects of rehabilitation at this time.

1. Your counsel did not rely on delay as a mitigating circumstance in your case. Nonetheless, I have had regard to the effects of delay in sentencing you, particularly the delay arising since you were first charged with these offences on 6 September 2023. In your first trial, listed in July 2025, the jury was discharged without verdict as a result of your being hospitalised following a deterioration in your mental health. As a consequence, your counsel raised a real and substantial question regarding your fitness to stand trial and I ordered that a Forensicare psychological or psychiatric report be provided to the Court as to your fitness. As a result of receiving that report, I ruled by consent of the parties that you were fit to stand trial. Your counsel does not rely on that report in these proceedings.
2. As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[25]

Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one's head during the period of delay is akin to punishment in itself.[26]

1. So far as rehabilitation that has occurred during the period of delay is concerned, I observe you have committed no further offences since the present offending and you have engaged in some rehabilitative and educational programs whilst being on remand.
2. So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a substantial sentence of imprisonment hanging over your head. Undoubtedly, this will have caused you anxiety and stress. I take the punitive effects of delay into account in your favour.

1. Your counsel submitted Verdins principles 3, 5 and 6 are engaged in your case.[27] In relation to principle 3, your counsel primarily relied on Ms Cokorilo's opinion that:

Mr Jacobson's profile encompasses multiple converging risk factors, including significant psychopathology, interpersonal isolation, cognitive dysfunction, chronic substance use, and a personal history of sexual victimisation.

1. Your counsel submits the link between your mental impairments and the offending moderate the role of general deterrence in your case.
2. With respect to principles 5 and 6, your counsel relied on Ms Cokorilo's opinion that:[28]

Mr Jacobson's history of institutional abuse and persistent PTSD likely make imprisonment more burdensome and destabilising for him than an average offender. Further, his complex clinical profile reduces his functional capacity and renders him more susceptible to the criminogenic effects of incarceration. He is also unlikely to have access to targeted interventions which limits his prospects of rehabilitation in custody.

1. So far as principle 3 is concerned, I consider your cluster of mental health conditions does have the effect of reducing, to some extent, the weight I would otherwise have given to general deterrence.
2. On balance, I also accept Verdins principle 5 is engaged in your case because the state of your mental health may mean the sentences I impose will weigh more heavily on you than they would on a prisoner of normal mental health.
3. However, I am not satisfied Verdins principle 6 is engaged. Verdins principle 6 requires there to be 'a serious risk of imprisonment having a significantly adverse effect on the offender's mental health' for this consideration 'to mitigate punishment'.[29] Ms Cokorilo's report does not go this far, referring only to a 'likely' risk. She does not appear to form a concluded view in her report regarding the impact imprisonment is having on your mental health. Moreover, this statement is qualified. If the risk were to eventuate the need for mental-health care would be increased. I am not satisfied the prison authorities will not provide appropriate mental health care to you while in you are in custody so as to mitigate the risk of a significantly adverse effect on your mental health arising from your incarceration. In this regard, I note you remain connected with Ms Kumarawansa and engage in fortnightly counselling sessions with her whilst you are in prison. I have no reason to think this situation will not continue.

1. Your counsel submitted because you come from a socially disadvantaged background and suffered childhood trauma and deprivation, the general principles adumbrated by the High Court of Australia in Bugmy v The Queen[30] are engaged in your case. The prosecutor fairly agreed.
2. In Marrah v The Queen ('Marrah'),[31] Redlich and Tate JJA affirmed the relevance of a disadvantaged background where their Honours observed:

Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. ... Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[32]

1. Importantly, their Honours observed that when sentencing an offender the court should not consider an 'offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment'.[33] Social disadvantage does not 'diminish the need for the sentence to vindicate the dignity of a victim and reflect the community's disapproval of the offending'.[34]
2. In Sabbatucci v The Queen,[35] the Victorian Court of Appeal explained the principles in Bugmy as follows:

Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[36]

1. That Court further observed in DPP v Herrmann:[37]

The significance of the 'general' approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... 'the impact of disadvantage is complex, multilayered, non-linear and not easily "diagnosed" or measured'. The High Court's recognition that serious childhood deprivation is likely to make an offender less morally culpable than 'an offender whose formative years were not marred in that way' reflects the principle of equal justice.[38]

1. In applying Bugmy principles in this case, I do not need to find the disadvantage you suffered as a child was 'profound'. In Sabbatucci, the Court also said the sentencer must evaluate whether the disadvantage warrants the offender being viewed as 'less morally blameworthy' than someone who commits the same offence but does not have the same disadvantaged or deprived background.[39] Coming to this conclusion does not depend on the Court being satisfied the circumstances establish 'profound disadvantage' or 'profound deprivation' because in every case 'it will be a question of fact and degree'.[40]
2. In her report, Ms Cokorilo details your self-report that your childhood was marred by domestic violence, hardship and trauma. You were exposed to family violence in your home and were physically abused by your stepfather whilst in your mother's care. Moreover, you were subjected to sexual and physical abuse by residential workers and foster families from a very young age. Your counsel did not submit your childhood deprivation is causative of the present offending, thereby reducing your moral culpability.
3. However, I acknowledge the difficulties you and your family faced when you were a child has led to you developing a number of mental health conditions and maladaptive coping mechanisms, and may have contributed to the circumstances surrounding your offending, such as becoming involved with drugs and alcohol from an early stage of your life.
4. These personal factors require me to moderate the weight I would otherwise have given to general deterrence, denunciation, and the punitive aspects of the sentences I impose on you. However, as the prosecutor submitted, these complex factors simultaneously increase the weight I must give to specific deterrence and protection of the community in sentencing you.

1. I have had regard to current sentencing practices in relation to the charges of sexual assault and rape as informed by the decisions of the High Court of Australia in R v Kilic[41] and DPP (Vic) v Dalgliesh (a Pseudonym)[42] and the Victorian Court of Appeal decision in DPP v Zhuang.[43] In relation to rape, I am precluded by s 5B(2)(b) of the Sentencing Act 1991 from taking into account sentencing practices which predate the introduction of the standard sentencing regime on 1 February 2018.[44] In particular, I have had regard to the so-called 'comparable case' at first instance the prosecutor referred me to.[45]
2. While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[46]
3. Moreover, it is always difficult to gauge more than a general yardstick from so-called 'comparable cases', given the wide range of offending conduct that can constitute the offences of sexual assault and rape and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from so-called 'comparable cases', I have sought to do so in your case.
4. Rape is a 'Category 1' offence as defined in the Sentencing Act 1991.[47] Accordingly, an immediate custodial sentence is mandatory on that charge.[48] It was not and could not be seriously suggested that anything other than a lengthy sentence of imprisonment is called for in this case.
5. The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact of the offences on the victim, and your personal circumstances.
6. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
7. Just punishment, denunciation and general deterrence are very important sentencing considerations in this case. They must all be sensibly moderated on account of your personal circumstances discussed above. I am of the view in your case I need give very real weight to specific deterrence and protection of the community. As I said earlier, I consider your prospects for rehabilitation are guarded.

On Charge 1, sexually assaulting Ms Aliyah Barnett, you are convicted and sentenced to imprisonment for three months.

On Charge 2, raping Ms Aliyah Barnett, you are convicted and sentenced to imprisonment for five years.

On Summary Charge 3 (committing an indictable offence whilst on bail) you are convicted and sentenced to imprisonment for seven days.

I order that the sentences imposed on Charge 1 and Summary Charge 3 be served concurrently with the sentence imposed on Charge 2. This makes a total effective sentence of imprisonment for five years.

Under s 11A(4) of the Sentencing Act 1991, because you are being sentenced for a standard sentence offence, I am required to fix a non-parole of at least 60% of the total effective sentence, unless I consider that it is in the interests of justice not to do so. In your case, I consider that because of your disadvantaged childhood, alcohol and drug dependence, the mental health conditions from which you suffer, and the application of Verdins principle 5 in your case, it is in the interests of justice for me to fix a non-parole period of 50% of the total effective sentence I have imposed. This is intended to allow for the possibility of a longer period of parole supervision so as to aid your eventual rehabilitation and reintegration into society. These are to be regarded as my reasons for adopting this course.[49]

Accordingly, I direct that you serve a minimum of two years and six months before becoming eligible for parole.

I am required to state the reasons for imposing the sentence I have imposed on Charge 2.[50] They are contained in these reasons for sentence.

I am also required to explain how the sentence imposed on Charge 2 relates to the standard sentence of ten years' imprisonment which applies to that offence.[51] The sentence I have imposed on Charge 2 is five years less than the standard sentence for that offence.

**I declare 211 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.

The operation of s 34(1)(b) of Sex Offenders Registration Act 2004 has the effect that you are deemed to have been found guilty of a single Class 1 offence for the purposes of determining the reporting period applicable to you under that Act.[52] That reporting period is 15 years.

Pursuant to the provisions of the Sex Offenders Registration Act 2004, I declare that you are a registerable offender and order you to comply with the reporting obligations of that Act for 15 years.[53]

[1] Contrary to s 40 of the Crimes Act 1958 ('CA'), as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[2] Contrary to s 38(1) of the CA.

[3] Contrary to s 30B of the Bail Act 1977.

[7] Pursuant to s 30B of the Bail Act 1977.

[9] A pseudonym has been used to protect the victim's identity.

[11] [2001] VSCA 63 [8] (Winneke P, Tadgell and Buchanan JJA agreeing).

[12] Sentencing Act 1991 ('SA') s 5A(1); CA s 38(3).

[17] See Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 464 [4], 479 [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) ('Brown'), applying Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132 [27] ((French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[18] [2022] VSCA 89 [28] (Priest JA and Walker JA).

[19] As to features which are typically taken into account by courts in assessing the gravity of a particular offence of rape see Jurj v The Queen [2016] VSCA 57 [80] (Maxwell P, Redlich and Beach JJA) ('Jurj').

[20] DPP v McArthur [2019] VSCA 71 [81] (Ferguson CJ, Kaye and Weinberg JJA); R v Brown [2002] VSCA 207; (2002) 5 VR 463, 478 [57] (Chernov JA, Eames JA and O'Bryan AJA agreeing).

[24] Ex D5. 'Cannabis and Me (6 hours)' and 'Ice and Me' programs.

[25] [2013] VSCA 216; (2013) 40 VR 436.

[26] Ibid 445-446 [36] (Warren CJ and Redlich JA) (citations omitted). See also Tones v The Queen [2017] VSCA 118 [36] (Maxwell P, Redlich and Kyrou JJA) and Thomas v The Queen [2019] VSCA 223 [66] (Ashley and Weinberg JJA).

[27] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) ('Verdins').

[29] Verdins 276 [32(6)] (emphasis added).

[31] [2014] VSCA 119 ('Marrah').

[32] Marrah [16] (Redlich and Tate JJA) citing Bugmy 586-89 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[35] [2021] VSCA 340 ('Sabbatucci').

[36] Ibid [6] (Maxwell P and Emerton JA). See also Newton (a pseudonym) v The King [2023] VSCA 22 [36]-[38] (Beach and Macaulay JJA).

[37] [2021] VSCA 160.

[38] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).

[41] [2016] HCA 48; (2016) 259 CLR 256, 266-8 [21]- [25] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[42] [2017] HCA 41; (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

[43] [2015] VSCA 96; (2015) 250 A Crim R 282, 292 [30]- [31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]- [[25] (Priest and Kyrou JJA) ('Williams').

[45] DPP v Palliyaguruge [2021] VCC 958 (Judge Chambers); DPP v Abdi [2020] VCC 1668 (Judge Dawes); DPP v Singh [2019] VCC 1484 (Judge Lauritsen); DPP v Amin [2019] VCC 1756 (Judge O'Connell); DPP v Sang (a pseudonym) (Judge Brimer).

[46] See DPP (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 262 CLR 428.

[47] See SA s 3(1) definition of 'category 1 offence' paragraph (d).

[49] In accordance with SA s 5B(4)(b).

[52] See R v Cheetham [2006] VSCA 126; (2006) 13 VR 304, 306-307 [10]-[15] (Nettle JA, Buchanan and Chernov JJA agreeing).

[53] See Sex Offenders Registration Act 2004 s 34(1)(b)(i) and Schedule 1, item 1.