DPP v Jossan [2026] VCC 216

21 August 2023, you produced an intimate image of RH. This is also a rolled-up charge.

1. The circumstances of your offending are set out in the summary of prosecution opening for plea dated 18 August 2025, Exhibit P1. The summary was not disputed by you and forms the factual basis upon which you fall to be sentenced.
2. At the time of the commission of these offences, you were living in rental accommodation in Tarneit with your wife, two children, brother, sister-in-law, and their two children. Your wife and children were overseas at the relevant time.
3. RH was 39 years of age, living in Brisbane and working as a registered nurse.
4. You and RH met on the social media platform TikTok on 3 August 2023. After a few days of exchanging messages, you asked RH for her phone number which she gave you. You then began to communicate with her via the WhatsApp application. You and RH communicated daily, usually in the Punjabi language.
5. After a couple of weeks, you told RH you wanted to be her boyfriend. Arrangements were made for RH to travel to Melbourne and spend the weekend with you.
6. RH travelled to Melbourne on 19 August 2023. You met her at the airport and after purchasing a takeaway meal, you and RH went to the Holiday Inn in Werribee where you had made a booking for that night. You later extended it for a second night.
7. On 19 August, you and RH engaged in consensual sexual activity, including vaginal sexual intercourse.
8. The following day, RH went to visit a person whom she had met in India and who was now living in Melbourne. You drove her to her friend's home, but did not go in. You later picked up RH from a neighbouring street after her visit to her friend had concluded. You then obtained another takeaway meal before returning to the Holiday Inn at approximately 9.00 pm.
9. At around 11.00 pm you mixed RH two drinks of vodka mixed with lemonade. You did not mix a drink for yourself. RH told you that the drinks tasted strange and irritated her throat. You told her to block her nose and to drink them down in single mouthfuls. RH followed your instructions and drank both drinks quickly.
10. After finishing her drinks, RH saw that you were on a video call using Snapchat. Her vision became blurry and she began to feel dizzy. RH struggled to take hold of things and went to the bathroom and vomited into the sink. You approached her and when she sought your help, you began to laugh at her.
11. RH's memory began to fade at that point, but she has a recollection of you taking her to bed and undressing her and recording what you were doing on your phone.
12. While RH was lying naked on the bed, you spread her legs and appeared to be using your phone to make a recording of her vagina. She tried to stop you, but her condition made it difficult for her to stand. She finally managed to stand and put on her dress. RH then walked to the bathroom and again vomited into the sink. RH began to cry as you appeared to be again recording her on your phone.
13. RH then lay down on the bathroom floor before managing to get up and return to the bed. She fell asleep wearing her dress. RH does not recall anything further until waking the following morning. When she woke, she was completely naked. You were lying next to her on the bed, also naked. RH noticed bruising to her right shoulder and both her knees. Her forehead was also sore. She felt as though she was in shock. She asked you what had happened the night before and asked why you had video recorded her. You denied taking a recording of her and began to laugh. You said you were using your phone to talk to a friend while you were undressing her.
14. RH did not know what to do and was extremely worried for her safety. She had to pretend things were okay between you, as she was reliant on you to take her to the airport for her flight home. Out of concern for what had happened, RH took photographs of the vodka bottle, the bottle of mixer and your driver's license.
15. You left the motel at 12.55 pm. On the way to the airport, RH brought up the incident of the previous night saying she knew you had recorded her. She asked you to delete the recordings and you agreed you would do so.
16. You remained in communication with RH until 30 August 2023. In the intervening period, you asked her to sponsor a woman you claimed was your sister, so that you could obtain a visa for her. RH declined to do so. You repeatedly asked her to act as that person's sponsor and became angry because she would not agree to sponsor that woman. This caused RH extreme distress and she ended all contact with you on 30 August.
17. After RH returned to Brisbane, she spoke with her friend about her trip to Melbourne. RH told her friend that the date had not gone well and the man she met was a 'jerk'. Her friend pressed her for details of what happened and on

23 August, RH told her friend that she had been drunk after one drink and that she woke naked in the hotel room with you and was feeling highly disorientated. Her friend encouraged RH to report matters to the police. RH said she felt very ashamed and was hesitant to go to police. On 28 August, RH told a colleague what had happened. That person also encouraged RH to report the matter to police. On 31 August 2023, RH went to police in Queensland and reported what she believed had occurred. 18. On 25 September 2023, a search warrant was executed at your home address in Tarneit. You denied knowing the victim. You were arrested and taken to the Werribee police station for interview. With the assistance of a Punjabi interpreter, you exercised your right to silence answering 'no comment' to police questions. 19. On 5 January 2024, a digital forensic download was made from your telephone. This revealed two intimate video recordings of the victim in which she appeared to be unconscious. 20. The recordings show that at approximately 1.00am on 21 August 2023, you recorded yourself kneeling between the RH's legs. RH is seen lying on her back on the bed apparently unconscious. Her underwear had been removed and her dress pulled up above her pubic area. 21. You are seen in the recording penetrating the outer lips of the RH's vagina with your fingers, using a spreading action. You continued the recording and pointed the camera down to show your erect penis. You then moved the camera back to the RH's vagina and again used your fingers to penetrate the outer lips of her vagina for a second occasion. This conduct constitutes the rolled-up charge of rape. 22. Approximately five minutes later, RH is recorded lying on the bed completely naked and still apparently unconscious. 23. Your conduct in recording RH on those two occasions forms the basis of the

rolled-up charge of producing an intimate image of her. 24. On becoming aware of these images, police sought to again interview you on

31 January 2024. You again exercised your right to silence. You were charged on that date.

1. Exhibit P2 is the impact statement of RH. It is clear that your conduct has had a significant psychological, social, and financial impact upon her.
2. RH states that she has gone from being a strong, confident person, full of hope, to a person who finds it almost impossible to trust anyone, especially men. She views the world as unsafe and holds a deep fear that people might hurt or exploit her. She blames herself for what happened and feels broken and ashamed.
3. Her body, she states, reacts with panic, that is, with sweating, shaking and feeling physically sick whenever something reminds her of what occurred.
4. RH lost her job due to her declining performance and mental health struggles. The financial impact has been devastating. She is currently receiving psychological counselling to help her deal with her trauma.
5. I have referred only in brief to her impact statement, but I have had full regard to it in my determination of the appropriate sentence. I should also make it clear at this point that RH is not at all to blame for your conduct. The blame lies entirely with you.

1. You were born in India in November 1990. You were 32 years of age at the time you committed these offences. You are now 34 years of age.
2. Your parents are farmers and live in India. You have two brothers and a sister, all with families, also living in India.
3. You came to Australia in 2015 on a student visa. You remain here on a bridging protection visa and you are in the process of applying for a protection visa. Your counsel did not elaborate on the reason for you seeking a protection visa.
4. You first married in India in 2014. You and your wife divorced after your move to Australia in 2015.
5. You married your second wife in 2017. You and she have two children, aged approximately 21 months and seven years. Your wife works on a part-time basis and was present in Court to support you during the plea hearing.
6. You currently run your own scaffolding business, employing up to 12 contractors. You report you are in a financially stable position and you continued, up to the time of your remand, to provide financial support to your family in India.
7. You were assessed by Robert Leardi, psychologist, on 10 July 2025. His report, Exhibit D2, was tendered on your behalf during the plea hearing.
8. You told Mr Leardi that you enjoy a positive relationship with your parents and siblings. You described your family as a 'middle class family' with both parents working.
9. You completed your schooling at the age of 18 or 19 years. You did not have any difficulty making and maintaining friends.
10. On completion of your education, you worked in carpentry, including working in Dubai for some nine months. Upon your return to India, you worked mainly with your parents on the farm and in the family shop. You commenced working in the scaffolding business after migrating to Australia. You worked in scaffolding for approximately nine months before working in a concreting business with a friend for approximately two years. You also worked as a pizza delivery driver. In approximately 2018, you opened your scaffolding business.
11. You told Mr Leardi that your relationship with your wife was 'very good' and your relationship continued, notwithstanding this offending.
12. In discussing your offending with Mr Leardi, you said that on the night preceding your offending, you and RH drank vodka together. You said you were drinking, talking and then both went to bed intoxicated. You said you did not know what you were thinking at the time you made the video. In describing the video, you said it involved 'a little bit finger in there, when finished she woke up'. You repeated you did not know why and said you made 'a big mistake'. You said you deleted the video after RH asked you to delete it. You further stated everything was good the following morning and you believed the victim was happy.
13. In response to a series of questions asked to establish whether you were aware of the impact of your offending upon the victim, you initially minimised the incident. You did state that the victim would feel angry. Asked how you thought she was feeling now, you said you did not know because you were not in contact with her. You struggled to express yourself as there was no interpreter, and allowance will be made for that. You also did accept responsibility, stating it was your mistake. You said you thought you hurt her and that was why she had complained to the police.
14. Mr Leardi assessed your risk of sexual reoffending using the Structured Professional Judgment ('SPJ') approach, the Static-99R Assessment, and the Risk of Sexual Violence Protocol ('RSVP'). He considers you present with a low to moderate risk for sexual violence recidivism.
15. Regarding your mental state and psychological profile, Mr Leardi is of the opinion that you present with moderately severe symptoms of anxiety, guilt and tension, as well as moderate symptoms of depression. You also present with some symptoms of Major Depressive Disorder. These are predominantly sleep disturbance and depressed mood, irritability and self-deprivation. You also experience acute stress in the context of the current criminal proceedings.
16. Mr Leardi said you presented with a somewhat intact insight, but lacked overall self-awareness around understanding why you offended, particularly as you considered yourself happily married with children.
17. Mr Leardi formed the opinion that you expressed genuine remorse for your offending, as there were changes to your affect and presentation consistent with remorse.

1. The offence of rape is a serious offence, as reflected in the maximum penalty of 25 years' imprisonment. The production of an intimate image carries a maximum penalty of three years' imprisonment. In considering the gravity of these two charges, I have regard to the fact that they are both rolled-up charges.
2. When sentencing for a rolled-up charge, I am required to consider all the circumstances of the offence, including the number of times the offending conduct occurred, the period over which it occurred and the totality of the harm caused to the victim. The maximum penalty remains that applicable to a single charge. I have regard to the fact that the discrete acts that go to each offence, occurred twice, in relatively quick succession. They formed part of what may be considered one incident.
3. Your offending conduct was, as submitted by the learned prosecutor, Mr Rudston, a conscious, deliberate choice. He submitted, correctly, that taking advantage of a sleeping victim who is unable to protest or resist, is an aggravating feature of your offending and marks a high level of culpability.[1]
4. You selfishly took advantage of RH's vulnerability as she lay in a state of deep sleep or unconsciousness. You treated her as an object and violated her bodily integrity for your own sexual gratification, having no regard to her condition or respect for her rights.
5. RH had placed her trust in you - travelling to Melbourne to meet with and stay with you in a hotel. You abused that trust, exploiting her as she became disorientated and passed out after drinking the two mixed drinks you had prepared for her. You saw that she was unwell and you callously laughed at her when she sought your assistance. You did not assist her. Instead, in that highly defenceless state, you proceeded to rape her and film what you were doing. RH was powerless to protest or resist what you were doing. In filming RH without her consent, you further abused her and caused her additional distress and humiliation. As that conduct is charged separately, I do not have regard to it in assessing the gravity of the rape charge.
6. In my opinion, your conduct was objectively serious and your level of moral culpability high. Nothing that was put on your behalf, in my opinion, reduces your level of moral culpability.
7. Your counsel, Ms Papadinas properly conceded that RH was particularly vulnerable, but relied on the absence of other aggravating features in submitting that your offending fell at the lower end of the spectrum. In particular, it was submitted you did not use violence, force, or threats to rape and film the victim. It was put that there is no evidence of inducement or deception and that your conduct was not planned or premeditated, nor was it an opportunistic sexual act upon a stranger. Furthermore, your counsel submitted that your offending was of short duration and there was no risk of pregnancy or sexually transmitted disease.
8. Rape is an offence of violence. I accept that there was no additional violence other than that inherent in the offence itself. There was no risk of pregnancy or sexually transmitted disease. Although I am concerned with your encouragement of the victim, that she drink quickly the two drinks that you prepared for her, I am not able to find, beyond reasonable doubt, that this was a deliberate act on your part to render RH helpless. At best for you, your offending was opportunistic. However, given that the victim was in fact helpless and vulnerable, and given the breach of trust, I do not accept that your offending falls at the low end of the scale of seriousness. In my opinion, your offending falls towards the mid-range of objective seriousness.
9. Regarding Charge 2, your counsel put that each separate recording was of short duration, lasting approximately 30 seconds each. Notwithstanding that, in my opinion it was serious conduct.
10. In assessing the gravity of your overall offending, I have regard to its impact upon the victim. I accept the submission of Mr Rudston that the victim's life appears to have been shattered across all domains.
11. The offence of rape is a Category 1 offence under the Sentencing Act 1991 (Vic) ('Sentencing Act') and has a standard sentence of 10 years' imprisonment.
12. The standard sentence of 10 years' imprisonment operates as a guide, similar to the maximum sentence that may be imposed, and does not alter the established principles by which a particular sentence is to be determined.[2] Section 5A(1) of the Sentencing Act provides that the standard sentence is the sentence that, taking into account only the 'objective factors' affecting the relative seriousness of the offence, is in the 'middle of the range' of seriousness of the offence. Section 5A(3) provides that the 'objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you, and wholly by reference to the nature of the offending'. I am required to take the standard sentence into account, but it does not 'diminish the importance of giving proper weight to relevant mitigating factors'.[3]
13. You have pleaded guilty to both charges, although you did not do so at the earliest reasonable opportunity. A committal hearing was conducted on 11 June 2024 at which the victim was cross-examined. The case proceeded to a case conference and two 'final directions hearings' on the 31 January and 18 February 2025. An offer was made by you to resolve the charges on 25 February 2025 and was accepted some three days later. You pleaded guilty at a third final directions hearing on 6 March 2025.
14. Your pleas of guilty are of utilitarian benefit. You have spared the victim and other witnesses the trauma of having to give evidence at a trial. You have saved the court and community the time and expense of a trial. You are entitled to a reduction in the sentence that might otherwise have been appropriate.
15. Your counsel submitted that you are remorseful for your conduct. This is based upon your pleas of guilty and your expressions of remorse to Mr Leardi. I am prepared to accept, on the basis of Mr Leardi's observations during his interview with you, that you now have some belated remorse for your offending. When discussing your offending with Mr Leardi, you stated, 'Gurvinder, you are not like this person' before you started to cry. You stated your offending was a mistake and you acknowledged that your behaviour caused distress to the victim.
16. You have never before been in trouble with the law and have no subsequent convictions. You have worked hard since leaving school and have managed a successful scaffolding business, employing up to twelve contractors. You continue to be supported by your wife and family. I have some regard also to the opinion of Mr Leardi that you present with a low to moderate risk of future sex offending. In all the circumstances, I consider your prospects of rehabilitation to be reasonable.
17. I am mindful of the fact that this is your first time in custody. Given the sentence I must impose, I am also aware that you face the prospect of deportation. Following the initial plea hearing, I sought further submissions on the issue of your possible deportation.
18. In further submissions, your counsel informed me that you are awaiting the outcome of your application for permanent refugee visa. She stated that if you are imprisoned, your visa will be cancelled and you will face the prospect of indefinite detention.
19. Your counsel submitted, relying on the decision in Guden v The Queen,[4] that the prospect of deportation may be considered a mitigating factor as it may make imprisonment more difficult for an individual who will serve the term of imprisonment in the expectation of being deported following release, and result in the loss of opportunity to settle permanently in Australia. Ms Papadinas relied on the following matters -

(i) Deportation would result in the indefinite separation between you, your wife and two young children who continue to live in Australia;

(ii) Your removal from Australia would cause considerable hardship to your immediate family who are financially dependent on you; and

(iii) You will lose the opportunity to resume and continue your successful scaffolding business, resulting in a serious disruption to your professional and economic life.

1. Ms Papadinas submitted that the cumulative effect of these factors and the associated emotional and financial hardship would render your sentence particularly burdensome.
2. Mr Rudston accepted that the prospect of deportation may be taken into account as suggested by your counsel. He cautioned however against speculation regarding the risk of deportation or its impact.
3. In Tufue v The King the court stated:

When sentencing an offender who is not an Australian citizen, but the holder of a visa issued under the Migration Act, the court may take into account the prospect of deportation following the sentence as a relevant sentencing factor in two ways: first, that the expectation of being deported following release, may mean the burden of imprisonment will be greater for that person than for someone who faces no such risk; and secondly, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. A sentencing court should not speculate as to the risk of deportation or its impact; evidence is required to permit a sensible quantification of the risk.[5]

1. I accept, in all the circumstances, it is appropriate to take into account that you will serve the sentence I consider I am bound to impose in the expectation that you will face the risk of deportation upon completion of your sentence. This will make the burden of imprisonment greater for you than for a person who does not face such a risk. I accept also that you have, since you first came to Australia, sought to establish a life here for yourself and your family. You are at risk of losing that opportunity to settle permanently in Australia. These matters operate to mitigate your sentence. However, they do not permit a court to artificially reduce your sentence so as to avoid the consequences of the Migration Act 1958 (Cth).
2. In determining an appropriate sentence, I consider that significant weight must be given to general deterrence and denunciation of your conduct. Persons who are minded to commit offences such as those you committed, should understand that they risk stern punishment. Your conduct must also be strongly condemned. Given you have no prior convictions, I will moderate somewhat the sentencing consideration of deterring you from further offending, and the need to protect the community from you.
3. Notwithstanding your counsel's submission that there is little utility in the provision of comparable cases, I am required, as a matter of law, to have regard to current sentencing practice. I am only to have regard to sentences previously imposed under the standard sentencing regime. I have considered a number of such comparative cases for the offence of rape.[6] I was not referred to any comparative cases for the offence of producing an intimate image, nor have I been able to find any helpful comparative cases for that offence.
4. I am mindful, however, that current sentencing practise is but one of a number of sentencing considerations, and as was said in Lawrence v The Queen:

Self-evidently, the sentence for rape in any given case must turn on individual consideration of the circumstances and features of the particular offence (and the offender).[7]

1. I also have regard to the fact that the charges are rolled-up charges and to the application of the totality principle of sentencing.
2. Your counsel properly conceded that a custodial sentence must be imposed, with rape being a Category 1 offence and there being no 'special reason' why such a disposition should not be imposed.
3. I intend to impose a sentence that is below the standard sentence for rape. I do so having regard to all the relevant sentencing considerations that inform the instinctive synthesis approach to sentencing, including the objective circumstances of your offending which, as earlier stated, lies below the mid-range of objective seriousness; those matters in mitigation of penalty put on your behalf; the fact that you have no prior convictions and have not before offended in this way and that this will be your first time in custody.

1. On the rolled-up charge of rape, you are convicted and sentenced to three years and nine months' imprisonment.
2. On the rolled-up charge of producing an intimate image, you are convicted and sentenced to nine months' imprisonment.
3. I direct that two months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. This makes a total effective sentence of three years and 11 months' imprisonment.
4. Pursuant to s 11A of the Sentencing Act, I am required to fix a non-parole period of at least 60 per cent of the term of imprisonment, unless I otherwise consider it not in the interests of justice to do so. I am not persuaded that it is not in the interest of justice to impose a lesser non-parole period.
5. I set a non-parole period of two years and six months' imprisonment.
6. Pursuant to s 18 of the Sentencing Act, the time already served under this sentence is reckoned at 174 days, not including today.
7. Pursuant to s 6AAA of the Sentencing Act, had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of four years and nine months imprisonment, with a non-parole period of three years and three months.

[1] Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28, at [37].

[2] See DPP v Todd [2019] VSC 585, [60]-[61].

[3] See Lockyer v The Queen [2020] VSCA 321, [67].

[4] [2010] VSCA 196; (2010) 28 VR 288.

[5] [2024] VSCA 22, [29] (footnotes omitted).

[6] DPP v Henry [2022] VCC 1185; DPP v Swift [2022] VCC 2269; DPP v Abdi [2020] VCC 1668; DPP v Elwood [2019] VCC 128; DPP v Schmidt [2022] VCC 1429; DPP v McInnes [2020] VCC 729.

[7] [2021] VSCA 291, [22].