DPP v Kapoor

1. As rape is a category 1 offence, the court must impose a custodial order under the Sentencing Act 1991 (Vic) ('Sentencing Act').[2]
2. The offence of rape is a standard sentence offence, and the standard sentence is 10 years' imprisonment. I will return to the significance of that later in my reasons.

1. The offending that was before me in the 2025 trial was the same offending that her Honour Judge Hassan sentenced you for in 2023.[3]
2. The evidence the jury heard in the trial before me was essentially identical to the evidence that was presented in the trial before her Honour Judge Hassan, with two differences:

(a) There was less tendency evidence led in the trial before me than had been the case before Her Honour; and

(b) Mr Kapoor's mother gave evidence in the trial before me but did not give evidence in the trial before Her Honour.

1. The jury clearly accepted beyond reasonable doubt the evidence given by your former wife, Aisha Kapoor,[4] and rejected your denials in your record of interview, I find the circumstances of your offending as follows.
2. In 2017, you married Ms Kapoor in India in an arranged marriage that was common in Indian culture. Ms Kapoor came to live with you and your parents in Melbourne in September 2017 on a visitor's visa.
3. The visa required her to leave and re-enter the country every three months.
4. From the outset you and your parents were cruel towards and controlling of Ms Kapoor. She was not allowed to leave the house unaccompanied; she did not have a mobile phone; she was unable to freely contact her sisters who already lived in Australia; and she had to do all of the cooking and the cleaning.
5. You regularly abused her, financially, physically and verbally. You would threaten to send her back to India, and in around May 2018 you made her sign a pre-nuptial agreement that she did not understand.
6. You sexually abused her, you would expect sex from her whenever you wanted. You subjected her to degrading demands such as making her sleep on the floor or at the end of the bed. When she was menstruating, you would force her to suck your penis or use her hands. You told her that she had no right to say no to you.

1. In December 2017, the two of you travelled to Europe. You were physically and sexually abusive to her on this trip, including an occasion when you penetrated her vagina with your finger. You then penetrated her vagina with your penis when you were drunk and she did not consent. You made her post images on her Facebook account, depicting you as a happy couple and said this would be proof no-one would believe her if she ever complained about you to anyone.
2. In June 2018, Ms Kapoor had to leave Australia to comply with the conditions of her visitor's visa. You took her to Bali where Ms Kapoor was not allowed to look at any other person. While you were there, she got her period which upset you and caused you to be angry with her. You forced her to have sex with you and then verbally abused her when there were bloodstains on the hotel bed sheets.

1. In August 2018, you raped Ms Kapoor anally at the family home in Wollert. Ms Kapoor gave evidence that she had pain and bleeding from her anus, which according to her doctor, Dr Marcelia was indicative of an anal fissure. Dr Marcelia did not consider that the fissure was necessarily caused by the rape. Ms Kapoor spoke to your mother the next day asking her to get medical help, which was refused.
2. In August 2018, you travelled together to India where you threatened there would be consequences if Ms Kapoor spoke to her family about you. You were abusive and controlling during this trip and when you returned to Australia you continued to mistreat Ms Kapoor.
3. In October 2018, Ms Kapoor was diagnosed with ovarian cysts and required surgery, which she received on 29 October 2018.

1. On 8 December 2018, at approximately 6.30am Ms Kapoor was sleeping in a walk-in robe after an argument with you. In the wardrobe, you raped her by inserting your penis into her vagina without her consent.
2. Later that same day you were in an agitated state and demanded money from her for the construction of her sister and brother-in-law's residential premises. You were involved with the construction and claimed they owed you money. You threatened Ms Kapoor that you would kill her and her sister, saying:

'I will kill you and your sister, I have links, I can just give them one look and they will do the job for me.'

1. Ms Kapoor felt immediate fear for her safety and for the safety of her sister.
2. At approximately 11.00 pm, you were still angry and were abusing Ms Kapoor, telling her to go and have sex with her father or her brother. You grabbed her by the hair and slapped her face hard. She described it as being with a great amount of force as she was dizzy and in pain. You continued to hold onto Ms Kapoor's hair as she tried to get away from you. She began screaming out of pain and fear, and her screams were overheard by the neighbour, Carla Reed.[5]
3. The next day Ms Kapoor could still see the marks on her face, she escaped that day after you had inadvertently left the house key in the front door. She arrived at Ms Reed's house in a highly distressed state and collapsed onto the floor. Police were contacted. Ms Kapoor made a statement to police but did not initially disclose the sexual abuse.

1. You were arrested on 23 January 2019, and were interviewed by police. You denied having mistreated Ms Kapoor in any way.
2. You were re-interviewed on 19 December 2019, after Ms Kapoor had made allegations of sexual abuse, and again you denied all allegations of any abusive behaviour.

1. Ms Kapoor has made a victim impact statement dated 26 April 2023. She says that she has been deeply affected by your abuse, that during her marriage to you she felt as though her life had ended. Her mother died whilst she was married to you and she was unable to see her before she died. She still fears you and says she has lost trust in people.
2. Ms Kapoor was married and divorced before she met and married you. You are now divorced. She says divorced women are stigmatised in the Indian community and because of this she is socially isolated here in Australia.

1. You were born in Punjab in India, December 1984 and are 41 years of age. You have a close relationship with your parents and your sister.
2. You completed your secondary schooling in India and came to Australia in 2003. You studied a Diploma of Business, then a Bachelor of Business at the University of Ballarat. You drove taxis before you purchased a liquor retail outlet in 2009, which you operated until October 2024.
3. You are an Australian citizen and sponsored your parents to come here on parental visas. You live with your parents at the property in Wollert.
4. Your parents are both now in their 70s and suffer a number of health conditions. Your father has hypertension and arthritis; your mother has a heart condition, diabetes, arthritis, and problems with her eyes and kidneys. Both have limited mobility.
5. You have no prior convictions and no matters pending. You are otherwise a person of good character.

1. Mr Smallwood appeared on your behalf at the plea and submitted that the sentencing principles of specific deterrence and community protection ought be moderated in light of your character, as you have no prior or subsequent convictions.
2. Reliance was placed on the considerable delay in the finalisation of this matter. As noted, you were first interviewed in January 2019, which is now over six years ago. Mr Smallwood submitted that you have not re-offended during this period and the stress of the matter hanging over your head all this time has caused you considerable anguish.
3. It was submitted that you will endure additional hardship in prison due to your worry about your parents' situation.
4. On behalf of the Prosecution, Ms Borg submitted that your offending represented a significant breach of trust and occurred in the context of ongoing abuse. Ms Kapoor was entitled to feel safe and protected as your wife and a family member, instead of being threatened, hurt and humiliated by you.
5. Ms Borg referred me to a number of comparative cases which consider the principles of sentencing in cases of rape where the offender and victim are married or in an intimate relationship, and I will return to these shortly.

1. I consider your offending to have been egregious and your moral culpability is very high.

1. I consider these charges to be mid-range examples of the offence of rape, largely for the reasons outlined by Ms Borg:[6]

(a) The offending occurred in the context of a marriage which lasted between June 2017 and December 2018;

(b) There was undoubtedly a significant breach of trust involved in the offending;

(c) You physically controlled Ms Kapoor during the course of the relationship;

(d) The offending was not isolated but occurred in the context of other non-consensual sexual activity, as described earlier in these reasons;

(e) There was a degree of humiliation involved in the offending; and

(f) Ms Kapoor was regularly threatened in an attempt to prevent her from disclosing the offending conduct.

1. I consider these charges to be lower-level examples of the serious offence of threat to kill. There were no weapons involved and to some extent the threats were made in the heat of the moment, in the course of an argument about a building dispute.
2. Having said that, the threats were made in the context of other violent behaviour and therefore, I accept would have caused real fear for Ms Kapoor. It is also relevant that the charges involve separate threats, one to kill Ms Kapoor and one to kill her sister.

1. Whilst the conduct was undoubtedly frightening, the injuries sustained by Ms Kapoor were relatively minor compared to many of the cases that are seen in this court.

1. Both general and specific deterrence, as well as denunciation and just punishment are all engaged. The sentence imposed by the court must convey the message that male violence against women will not be tolerated and that marriage is a relationship of partnership, love and respect, and not of dominion and subjugation. That message must also be sent to you; you cannot treat any future partner the way you treated Ms Kapoor.
2. You are without remorse or insight into your offending, and whilst you are not to be punished for that, it is relevant to my assessment of your prospects of rehabilitation and also the importance of specific deterrence in this case.
3. In relation to your prospects of rehabilitation, it is relevant that you have no prior convictions, and you continue to have the support of your parents. In the circumstances, I would assess your prospects as fair.
4. In determining the appropriate sentence I take into account that whilst you have spent a relatively brief period in custody already, this is your first time in custody. I accept that it is causing anguish to you, and on your part in relation to your parents.
5. I take into account the stress that the delay in progressing this matter has caused to you. In part that was due to the effect of the pandemic on the work of this court, but I note there are a further two years that have passed since your first trial.
6. It is common ground that you are to be sentenced as a serious violent offender on the second charge of threat to kill, in the event that I impose a term of imprisonment on the first. This means that I must regard protection of the community as the predominant sentencing consideration and unless I otherwise order, the sentence on Charge 4 must be served cumulatively upon other sentences.
7. The operation of the Serious Offender provisions, as pointed out by Mr Smallwood, does not displace the principle of totality. I note the prosecution does not seek a disproportionate sentence. Your serious offender status must be entered on the court record.
8. I note that charges two to five were all committed on the same day, albeit over a protracted period of time. The charges involve different heads of criminality and I intent to order some cumulation. I am also mindful of the principle of totality in a sentence involving multiple offences, and I am also mindful of the principle of parsimony.
9. There are important principles that apply to sentencing after a re-trial, as submitted in some detail by Mr Smallwood in his helpful written submissions.
10. The re-trial occurred earlier this year, and as noted, you were sentenced by her Honour Judge Hassan in July 2023 after your first trial. Her Honour sentenced you to imprisonment for nine years and six months with a non-parole period of six years and six months.
11. The principles to be applied upon sentencing following a re-trial were stated by the High Court in the case of R H McL:

'Ordinarily, but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion, to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare.'[7]

1. I do not consider the sentence that her Honour imposed to be manifestly inadequate and in accordance with authority, it is therefore not open to me to impose a higher sentence than that imposed by her Honour.
2. It is in the public interest in ensuring the administration of criminal justice that defects in trials should be challenged, and in cases such as yours, overturned upon appeal where appropriate.
3. Furthermore, in the words of Street CJ in the case of Gilmour:

'...[T]he passing of a heavier sentence on a new trial could be seen by the convicted person, as well perhaps, by other members in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown.'[8]

1. This principle has a particular importance where an accused was self-represented in the original trial, as you were.
2. Although the sentence imposed by Judge Hassan is a relevant factor in deciding how to sentence you following your conviction at re-trial, there is no presumption that the same sentence should be imposed. Furthermore, the cogent policy considerations which deem the sentence imposed upon you by her Honour as a prima facie ceiling on this sentence, do not preclude the imposition of a lower sentence.
3. To the extent that your circumstances have changed, I will apply appropriate weight to the factors that are relevant to the proper exercise of my sentencing discretion.
4. The re-trial occurred due to no fault of your own and you have unquestionably been burdened by the strain of considerable uncertainty in the period preceding your re-trial. Conversely, it also requires little imagination to appreciate the equal burden that multiple trials have imposed upon the victim of your offending, Ms Kapoor.
5. The court has been referred to eight cases in which sentences have been imposed, either at first instance or after an appeal, where the offender and the victim were either married or otherwise in an intimate relationship.[9]

1. Other than the case of Clark v The Queen[10] all involved sentences for rape between five years and six months in the case of Skeates[11] and eight years and six months in the case of Lockyer.[12]
2. I consider the case of Clark to be an outlier among these cases. Whilst each case is obviously different and must be sentenced in light of the particular offending and the circumstances of the offender, I have been assisted by referring to those various decisions that have been drawn to the court's attention.
3. I take into account the maximum penalty for the offences, and I also take into account the standard sentence for the offence of rape. A standard sentence is not the same as a mandatory sentence, nor is a standard sentence the primary sentencing consideration or the starting point from which to add or subtract time. It is but one matter that I take into consideration, and I do so. I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully the facts, matters and circumstances I have taken into consideration in sentencing you.
4. Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you rely, I intend to sentence you to a sentence that is less than the standard sentence in relation to Charges 1 and 2.
5. Taking into account all of the matters I am required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows.

1. On Charge 1, you are convicted and sentenced to seven years' imprisonment.
2. On Charge 2, you are convicted and sentenced to six years' imprisonment.
3. On Charge 3, you are convicted and sentenced to one year and six months' imprisonment.
4. On Charge 4, you are convicted and sentenced to one year and six months' imprisonment.
5. And on Charge 5, you are convicted and sentenced to six months' imprisonment.
6. The Charge 1 sentence is the base sentence.
7. I direct that one year of the sentence on Charge 2 and six months of the sentences on Charges 3 and 4 be served cumulatively upon the base sentence and upon each other.
8. The sentence in relation to Charge 5 is to be served wholly concurrently.
9. That makes a total effective sentence of nine years' imprisonment.
10. Section 11A of the Sentencing Act directs that unless it is in the interests of justice not to do so the court must fix a non-parole period, in this case of at least 60 per cent of the total effective term of imprisonment. I direct that you serve a non-parole period of six years before you are eligible for parole.
11. Pursuant to section 18 of the Sentencing Act, 350 days is to be reckoned as time served.
12. Pursuant to section 6F of the Sentencing Act, you are sentenced as a serious violent offender in respect of Charge 4 .

[2] Sentencing Act 1991 (Vic) s 44.

[3] DPP v Kapoor (a pseudonym) [2023] VCC 1280.

[6] Prosecution Sentencing Submissions for Plea Hearing dated 28 July 2025, 7 [24].

[7] R H McL v The Queen [2000] HCA 46, 25 [72].

[8] R v Gilmore (1979) 1 A Crim R 416, 420.

[9] Johns (a pseudonym) v The Queen [2016] VSCA 97; Samuels (a pseudonym) v The Queen [2019] VSCA 14; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Clarke (a pseudonym) v The Queen ]2022] VSCA 89; Lockyer (a pseudonym) v The Queen [2020] VSCA 321; Stamper (a pseudonym) v The Queen [2021] VSCA 323; Skeates (a pseudonym) v R [2023] VSCA 226; Ierardo v The King [2024] VSCA 181.

[10] Clarke (a pseudonym) v The Queen [2022] VSCA 89.

[11] Skeates (a pseudonym) v R [2023] VSCA 226.

[12] Lockyer (a pseudonym) v The Queen [2020] VSCA 321.