DPP v Rielly [2025] VCC 1318

"I have had continual psychiatric treatment including medications for PTSD, depression, anxiety & insomnia & all sorts of therapy. Obviously this has added up to be quite costly & is still ongoing."

13. She speaks about the days after the rape. She was to begin a foundation art course at the Prahran College. She was 19, excited, and dreamed of becoming a painter, "However all [her] art became infused with the subject of sexual assault". She included the first sketches that she did after the attack, and I have taken them into account. She also set out an essay she wrote of the contemporaneous pain she felt, and I have taken that into account, but will not read it here.
14. She had to, ultimately after trying or struggling with the first part of that course in the first semester, defer permanently. She then wrote:

"I have moved through my life aimlessly with no clear direction, passion or motivation & have found it to be a bleak & ongoing struggle just to purely exist. I painted sporadically for a few years then stopped. No more art, no more dreams, no more self-satisfaction."

15. As I have mentioned, I am required by the provisions of the Sentencing Act 1991 to consider all aspects of the crime in assessing the level of gravity of this particular example of the always serious offence of aggravated rape. Although I used the words "the always serious offence of aggravated rape", I need to be more specific. Rape is the brutal violation of a victim's bodily integrity. There are many other tangible and intangible consequences of rape. As noted already, the psychological or psychiatric trauma caused to the victim in this case is immense and longstanding.
16. Speaking more broadly, there is also the adverse impact of sexual violence upon the community at large. As was said by our Court of Criminal Appeal many years ago, in fact in 1988, the year of your offending, in The Queen v Gates,[1] a case that involved multiple counts of aggravated rape committed on a female hitchhiker abducted and raped in the car:

"The offences which the applicant committed are offences which go to the heart of the freedom of the individual to move in our society...frightening offences which detract from the free movement of people, but particularly females, in the community at large and they strike fear into the minds of the victims and affect their feeling of security in the future."

17. In 1991, the Court of Criminal Appeal in R v Lakeland[2] dealt with an offender who committed aggravated rapes after breaking into a young woman's family home in October 1990. The Court said:

"... The crime of rape, particularly when committed in circumstances like those of the present, attacks the very foundations of civilised society. A community which aspires to high standards of individual dignity, culture and enrichment of interpersonal relations, must punish severely those of its members who would grossly debase them."

18. The Court of Appeal, and indeed sentencing judges, have in the decades since those judgments were delivered repeated these sentiments as to the dreadful impact on individual victims and the community generally of rape. The Parliament has reacted to community concerns and among many legislative interventions to achieve protection of the community, has increased maximum terms for the crime of rape. Indeed, this offence of aggravated rape is an example of this. At the time of your offending, the maximum term for rape was 10 years' imprisonment.
19. Parliament created the offence of rape in aggravating circumstances and established a maximum term double that of rape, that is 20 years. At the time, that maximum term was the longest specified term in the Crimes Act 1958, the next being life imprisonment.
20. I move, now, from the seriousness of the crime of rape generally to the specific factors that inform the level of gravity in your rape of the victim on 23 January 1988. The factors that lead me to the conclusion that this was a particularly serious example of aggravated rape are the following. But before I outline those factors, I simply note this task is fundamentally assessing what you did. It is not so much about the absence of factors evident in other examples of this crime or ones that could be imagined.
21. The factors I refer to in assessing the gravity of your offending are that you men caused the victim utter terror from the outset by taking her by surprise, grabbing her from behind and violently forcing her into the car. This is every woman walking alone on the street's nightmare. Next, the victim was simply walking home as she was perfectly entitled to do. It was in the early hours of the morning with little likelihood of anyone coming to her aid. She was vulnerable and you knew it. Self-evidently, you and your co-offender exploited this, overpowering her with your greater strength.
22. Next, you have said that you and the other men drove from the other side of Melbourne with an intent that you would all have sex with one female. There is, to that extent, a rudimentary plan, though I accept this crystallised as rape when you came across the victim in St Kilda. I will speak more about the impulsiveness at a later point. You men then took the victim on a further terrifying, but thankfully short, trip to the secluded spot off the road and raped her, you penetrating her after her ordeal of being raped by the first male.
23. The Court of Appeal in Mush v The Queen[3], and most recently Taylor J in the matter of Allen (a pseudonym) v The King,[4] said that the anticipation or the fact that there is more than one penetration causes greater fear to be engendered as the victim has to endure the prospect that there will be further rape. The ordeal was protracted while all those within the car who were to rape her, did their worst.
24. That said, I have taken great caution in not adding a factor in assessing the gravity, that is the very factor that elevates the crime itself to the offence of aggravated rape. That is, the rape was in company of, or aided and abetted by, others. But, as noted earlier, what you said just prior to your penetration of her was deplorable, revealing just how comprehensively you had no sense of what she was enduring. Your disdain for her and your selfish sense of your own gratification and dominance was made powerfully evident by what you did and what you said.
25. You, of course, had the time, when she was resisting being overpowered and during the rape by the first male, to pause and desist from extending her distress, but you did not. You proceeded to penetrate her to ejaculation. The impact on the victim has been profound, as I have outlined. Her life changed. She has suffered deeply, and in many, if not all, aspects of her life. The impact on the victim must be considered in assessing the criminality. As I have said, these factors establish that your offending was a serious example of aggravated rape. Your counsel conceded as much.
26. The prosecution likewise submitted that this was a serious example of this offence, but also conceded that there were more grave examples, both in the appellate cases at the time, such as Hall[5], Lazos[6] and Lakeland and in other cold cases sentenced in more recent times, such as Mush, Braddock[7], Tsalkos[8] and the first instance sentencing of Barry[9]. The form of aggravation here was the fact that there were multiple offenders. It was the case in Braddock, but there were other aggravating features there. You did not inflict serious injury or use serious violence, such as in Barry, or possess a weapon, such as in Lakeland.
27. In addition to assessing the circumstances of the offence, individualised sentencing as described by the High Court in DPP v Dalgleish (a pseudonym)[10] requires consideration of the circumstances of you as the offender. I turn to those matters now.
28. You were born in Melbourne in February 1967. You are now 58. You were 20 at the time of your offending, about to turn 21 two or so weeks later. You grew up in East Keilor. You were one of four children. Your parents separated when you were aged nine. You had nothing further to do with your father until reconnecting while you were being held on remand in Victoria in 2025. You report that your parents found it difficult to manage you and you were subject to verbal and physical discipline. Your father was verbally abusive.
29. Your parents, it seems, abused or heavily used alcohol. Your mother struggled after your father left. Her mental health was fragile. Without any financial support from your father after he left, your mother was required to work at multiple jobs to try and make ends meet. You and your siblings were left to manage without parental supervision. You felt abandoned by your father and unloved and neglected by your mother. Your behaviour was often oppositional and loud, you report. You have in later years been diagnosed and treated for ADHD. I will return back to this in due course.
30. You did not do well at school, being easily distracted, difficult and oppositional. You left school at age 14. In a sign of those times, you placed an ad in a paper seeking work as a roustabout. It led to a job. Your first work was on a dairy farm in northern Victoria when you were aged 14. You remained there for two years. From there you went to work at a potato farm in Gippsland for a year. At around 18 years of age, in 1985, you commenced work with a company, Bensons Trading, a company that provided showbags to carnivals and shows throughout Australia.
31. Around the time of the offending, you were living in a share house in Moonee Ponds. You and other friends were planning to travel around Australia. Your memory of the night of the offending was that there was a party at your house. You drank heavily. You met, for the first time, a man at the party who you remembered as having the name "Tom". There was another man who had the car. You were invited to join these men in what was to involve you all having sex with a woman, a threesome. You agreed to go, though you do not recall much of the trip across the city to St Kilda. You say you have a poor memory of the night.
32. After committing the crime, that is, after you men committed the crime together, you never saw each other again. You left Melbourne shortly after on a backpacking-type working holiday around Australia. You certainly made it as far as Broome, where you were dealt with for drink-driving offences in mid-1990. You then returned to Melbourne in 1991. You commenced a plumbing apprenticeship, working for your mother's new partner. You completed your plumber's apprenticeship and worked in this trade for a number of years up to 1997.
33. You then changed vocations, taking up an arts degree at the Ballarat Performing Arts Academy. You completed your degree in the year 2000 at the age of 33. You then moved to Queensland, commencing a degree in teaching. You did two years of this course before returning to work as a plumber due to financial difficulties. You remained in the same area, it seems, of Brisbane for the next 24 years or thereabouts. You worked in the construction industry as a plumber. You became very involved in your local lawn bowls club.
34. You made some friends, one close friend in particular, and you were held in high regard. Your close friend, Mr Geoffrey Renowden, wrote in his letter to the Court that he has been your close friend for 25 years, saying "We have lived in each other's pockets for much of that time". When he first met you, it was at the local bowls club. He went on to say:

"... we both love playing lawn bowls. [You were] held in high regard by the members for [your] commitment to the public and served as a volunteer for many years and held multiple roles of responsibility at the club. [You have] always been helpful and thoughtful towards myself, and our mutual friends, given we both lived away from immediate family, so we found ways to look after each other in the ups and downs of life."

35. You have never had a long-term relationship. In 2016, you were the victim of a random attack which resulted in significant facial injuries with multiple bone fractures and ongoing dental complications. They are still ongoing. As a consequence, you were off work for two years. You resumed work and reached the level of supervising a large plumbing contract in a multi-million-dollar development. You found the stress overwhelming, and you had what was termed "a mental breakdown". Your general practitioner referred you to a clinical psychologist, Ms Amy Cleator.
36. You commenced treatment sessions with her from June 2021. You attended 20 sessions up to November 2022. You then attended five sessions in 2023, with the fact that you were now medicated for ADHD and had returned to work, which meant the need for counselling sessions decreased. I will return to the reports and the evidence of Ms Cleator shortly. In November 2021, you were driving, it seems, under the influence of alcohol when you caused an accident. You were charged with dangerous operation of a vehicle causing death or grievous bodily harm while adversely affected by an intoxicating substance.
37. The court case was not resolved until February 2024, as I have referred to. You received a three-year gaol term with a non-parole period being fixed at nine months. You served that minimum term, being released on parole in October 2024. As I have said, you were then arrested and extradited to Victoria. You are, in a sense, still on the parole order from the Queensland case.
38. Since your arrest, you have cooperated with police as best you can with your limited memory. You did not, as I have indicated, contest the allegations and indicated a plea of guilty at the earliest opportunity.
39. This is all to your credit. Your plea of guilty will result in a significantly lower sentence than would otherwise be the case. All aspects of the benefits of pleading guilty can be attached to your sentence. In addition to the remorse shown by a plea of guilty, there are other important aspects relating to your remorse including your response to what you did 37 years ago, and your response upon learning of the impact on the victim has also been very much to your credit. In a rare phenomenon in this jurisdiction, you gave evidence on your plea.
40. You have written letters of apology to the victim and to the Court. You swore that these expressions of your remorse were true. In my view, your expressions of remorse took on a far greater level of authenticity when you took the step to give evidence. Remorse is important to victims and the community. It is of particular importance in these circumstances, where the victim has had to live with not knowing who her assailants were and what impact, if any, the offending and her plight had on them as they grew. To learn from you that you are deeply sorry is of moment. Your remorse is of real value. To make this clear, using your own words, what you wrote and read out in your evidence was as follows.

"To [the victim]. I know this letter will be of little too (sic) no comfort to yourself, with what I have caused, yourself to go through throughout your life. All I can offer is heartful sorrow and my unreserved apologies for my involvement in taking from you what I had no right to take. After reading your impact statement, I was and am horrified, for what I have caused you to deal with in your life, and will be forever filled with regret, disgust and sorrow towards myself. I am so so so sorry."

41. There have been many years since the offending. This period of time does not have the same impact on sentencing as might be the case where there is a slow or tardy investigation or because the courts are clogged up. It is also different to the reasonably common circumstances where a complainant cannot speak of or report sexual abuse for many years. The delay in your case is because you were able to get away with the grave crime for decades until your DNA was matched. The Court of Appeal in Mush gave guidance as to how to deal with this long gap between your crime and being brought to justice.
42. The court said:

"Neither authority nor principle would, however, support the submission advanced by counsel for the applicant that a long delay, per se and without more, should lead to a moderation of sentence, purely because as a result of that delay the offender is significantly older than at the time of the offending. In the present case, the applicant evaded justice, and lived with impunity, for more than thirty years, because his identity as the offender could not be established during that period. It would be incongruous to suggest that, having had the benefit of living those thirty years at liberty, the applicant should now be accorded a sentencing benefit by reason of that delay."[11]

43. By operation of s 52B of the Sentencing Act 1991, a matter that I must have regard to is current sentencing practices. Given your crime was committed in 1988, that gives rise to some complexities. As noted in Mush, the Court of Appeal in an earlier historic sexual abuse case of Stalio v The Queen[12] identified two important propositions regarding the concept of current sentencing practices which operate for a cold-case prosecution, as they do for an historic sexual-abuse case. In Mush, the Court of Appeal said, and I quote at length:

"... First, the phrase 'current sentencing practices', in s 5(2) of the Sentencing Act, relates to present sentencing practices (and not practices that were current at the time of the offending). Secondly, however, the concept of equal justice requires that regard be had to sentencing practices at the time of the offence, if those practices can be demonstrated to have required the imposition of a materially lesser sentence for like offences. > > In respect of the first proposition, it is recognised that the reference to 'current sentencing practices' in s 5(2)(b) of the Sentencing Act extends beyond the actual sentencing result in a particular case, but also encompasses matters such as the weight and effect that is to be given to particular sentencing considerations in the exercise of the sentencing discretion. Thus, for example, the increasing prevalence of a particular form of offence might at the time of sentence have the effect that sentencing practices have altered, because of the need for greater emphasis to be given to the principle of general deterrence. On the other hand, increasing awareness, in recent decades, of the effects of mental impairment, and of the longstanding consequences of a dysfunctional and traumatic upbringing of a particular offender, have led to greater weight being given to those factors as mitigating circumstances. > > In respect of the second proposition stated in Stalio, the Court in Bradley identified a qualification to the application of the principle of equal justice in cases in which the offending occurred decades before the offender is sentenced. The Court considered that, where it was the offender's own conduct which made it impossible for him or her to be sentenced contemporaneously with the offending, the offender may not be entitled to seek to be treated as if his or her criminal responsibility had been established at the time of the offending."[13]

"Each of the above principles is relevant in considering the previous sentences to which we have been referred. We also observe, as the High Court recently emphasised in Dalgliesh, that sentencing practices are only one of a number of factors which need to be taken into account in the exercise of the sentencing discretion. In identifying the relevant sentencing practice, it is important to bear in mind that previous sentencing decisions do not constitute precedents for the sentence that is to be passed in the instant case. In each case, the exercise of the sentencing discretion is necessarily the result of the balance - or synthesis - of a number of different, and frequently conflicting, factors which can vary significantly between individual cases."[14]

45. What was concluded by the Court of Appeal was that the sentence in Mush for aggravated rape - 10 years for individual charges and a total effective sentence of 19 years, with a non-parole period of 15 years - was, in broad terms, within the range of sentences to be imposed for a crime committed 30 or more years ago. In the known cases, or the more notorious cases, such as those that I have mentioned of Lakeland, Hall and Lazos, long and stern sentences of imprisonment were imposed. In doing so, the appellate courts expressed the view that, even then in the 1990s, or the 1980s in the case of Lazos, community attitudes towards sexual crimes of this kind were hardening.
46. In the matter of Hague v The Queen,[15] a murder committed by an Accused at the age of 21 who was sentenced at the age of 44, the Court of Appeal acknowledged that the sentencing judge imposed a more severe sentence than would have been imposed at the time of the crime. The Court of Appeal considered that this was a legitimate approach. The Court of Appeal said that:

"True it is that the applicant was only 21 at the time of the murder. Had the crime not been so serious, his relative youth might have had more of a mitigating effect in respect of his moral culpability. Other matters that may be taken into account because of the youthfulness of an offender (such as rehabilitation and that a term of imprisonment in an adult prison may be more arduous for a young offender) have no role in this case. At the time of sentencing, the applicant was 44 years of old."[16]

47. As noted, the judge assessed the Applicant's prospects of rehabilitation as guarded. The Court went on:

"The judge was clearly alive to the issues of sentences for murder having increased since the offence was committed. Neither his reasons for sentence, nor the sentence imposed, give a basis for concluding that he did not take this matter into account in an appropriate way. The applicant was not to be sentenced on a hypothetical basis that he was being sentenced at the time the offence occurred. As already observed, he was not to be sentenced in 2018 on the basis that he was 21 years of age. > > The sentencing practice that applied to offending of this kind at the time of the offence is relevant to the extent that it can be ascertained. Like the judge, our own assessment is that current sentencing practices for murder reveals that longer terms of imprisonment are now imposed when compared to comparable offending in the mid-1990s. The applicant was entitled to some moderation in sentence on that account. However, just as current sentencing practice cannot control the sentencing discretion in a particular case and does not cap and collar the sentence, past practice cannot have a greater or more controlling effect."[17]

48. Insofar as the broad concept of current sentencing practices is to be interpreted as being more than actual figures of sentences that were imposed, what is important in this case is that, in modern times the courts have developed a better understanding of the significance and the long-lasting impact of sexual offending on victims. The impact on the victim in this case is important and it must be acknowledged in my sentence in a way that it may not have been in 1988. That said, what was done in 1991 in Lakeland, with the victim returning to the witness box after the verdict to give evidence of the impact on her, was perhaps an early example of the impact on a victim being considered. That said, the formal victim impact statements were still years away, with the legislation not passed until 1994.
49. Other cold case prosecutions, such as those mentioned of Mush, Braddock and Barry, provide some assistance, as well as the cases that were prosecuted contemporaneously that I have also referred to. However, as has been said, each case has its own unique circumstances, and none sets a precedent for any other. Although you were 20 years old, the principles of sentencing young offenders, given your current age, are not directly relevant. The Court of Appeal in Hague makes this clear. What is of some importance in this regard is your mental health, and your undiagnosed difficulties that you laboured under at the time and as you grew up, which your Counsel submitted were of a kind that exposed your immaturity and impulsiveness.
50. With respect to psychological evidence, I have had the benefit of two reports from your treating psychologist, Ms Amy Cleator, who provided a very significant number of treatment sessions over the years from June of 2021. Her insights were thus more solidly based than the usual medico-legal psychological reports that are based on a couple of hours of assessment at best, which are so often referred to or relied upon in this Court. Further, I had the benefit of that evidence being properly tested in cross-examination. While there were these benefits, there were also problems and concerns that arose from the evidence. I have done my best to revisit the written evidence and the oral evidence, though the latter was done without a transcript.
51. Initially, your Counsel disavowed that your purported mental health problems and history operated to lessen your moral culpability. However, that issue was ultimately pressed. So, too, was the issue that your mental health profile, mostly your depression and anxiety, would make gaol harder, and there was a material risk that it would deteriorate while in custody. You gave some evidence as to how onerous it was in prison. These latter two matters were not contested by the prosecution. In my view, there ought to be some mitigation on account of these factors, but the prosecution did not accept your mental ill health was such as to warrant a finding that your moral culpability ought to be seen as lower for your offending 37 years ago.
52. To summarise as best I can the psychological evidence, Ms Cleator's view of your condition was expressed in the following way. She wrote:

"[You present] as a middle-aged male with a history of significant childhood adversity and attachment disruption. [Your] early experiences of abandonment when [your] father left when [you were] 9 years old, followed by emotional neglect and lack of support from [your] remaining family, appear to have significantly influenced [your] early emancipation and shaped [your] view of [yourself] and others. [Your] experience of childhood adversity undoubtedly resulted in an increased vulnerability to various mental health conditions. [You] lacked any reasonable role models to guide [you] with decision making, life choices, and reasonable expectations of [yourself] and others. [Your] undiagnosed neurodiversity, (i.e., ADHD diagnosis) further complicated [your] ability to regulate emotions, impulsive behaviour and maintain stable relationships."

53. Ms Cleator then offered the following diagnosis. She said:

"Based on the assessment results, clinical interviews, and in line with the Diagnostic and Statistical Manual of Mental Disorders, 5th edition ... and ICD-11 for Mortality and Morbidity statistics, [you meet] the criteria for the following diagnoses: > > ... Attention-Deficit Hyperactivity Disorder ... Severe > > ... Insomnia Disorder ... > > ... Alcohol Use Disorder ... > > ... Adjustment Disorder with Mixed Anxiety and Depressed Mood > > ... Complex Post Traumatic Stress Disorder."

54. As has been made clear in the jurisprudence on this topic, sentencing judges are not concerned with fine diagnostic labels. Rather, what is important is the impact of mental ill health, or as it is known, an impaired mental functioning on the offender's conduct in committing an offence and on the sentencing synthesis thereafter. The evidence, and in particular the answers of Ms Cleator in cross-examination, gave rise in my mind to considerable concerns about the diagnosis of complex post-traumatic stress disorder arising from childhood trauma.
55. In short compass, it became unclear to me as to whether the diagnostic protocols were or could be satisfied in order to reach the conclusions, much less the implications for your conduct on a single night 37 years ago. However, Ms Cleator remained adamant that your childhood difficulties have left a mark on you and had impacted on you and your progress in life thereafter. Your counsel relied upon this. In my view, having reviewed all the evidence, a key factor that must be added into the mix is the diagnosis and then successful treatment for ADHD. Your history of being very difficult for your parents to control, which seemed to lead to neglect and abandonment, which in turn had ongoing implications, remains important.
56. Your approach to schooling and in a general sense your lifestyle thereafter, leads me to the view that there is a proper basis to see that you had the symptoms and behaviours of ADHD and have had them lifelong. The key thing is the interaction of these undiagnosed neurodiverse ways of managing your life and the offending conduct. Here, I return to the law governing the relationship between impaired mental functioning and sentencing considerations. The unravelling of these interconnections is not straightforward.
57. The Court of Appeal in approving the submissions of Victoria Legal Aid in a different context in Director of Public Prosecutions (DPP) v Herrmann,[18] approved of the following, which in my view applies here as well. What was said was:

"... 'the impact of disadvantage is complex, multilayered, non-linear and not easily 'diagnosed' or measured. ... ."

58. However, the non-exclusive criteria that were articulated by our Court of Appeal in R v Verdins[19] as potentially operating to reduce moral culpability, were cast so widely as to capture almost every criminal decision or ill-considered behaviour.
59. So, while later the Court of Appeal in Vuadreu[20] and other cases said that the application of the principles in Verdins were to be considered as the exception and rare, the criteria themselves have over time rendered that constraint almost meaningless. Thus, in my experience, both high quality and less so, psychologists will, in a deterministic way, attribute criminal conduct to the various life experiences and conditions that precede it. Given that by and large the rape was impulsive, ill-considered, self-centred and without thought given by you to the consequences for you and in particular for the victim, it was in my mind unsurprising that Ms Cleator considered your involvement was in fact the product of, or influenced by, your earlier upbringing, experiences and neurodiversity.
60. The conclusion that there was a causal connection, or even the lesser hurdle expressed in the Court of Criminal Appeal in New South Wales in recent days[21], that formed a material contribution from your early experiences and ADHD to the impulsivity of joining in the rape, all that is probably no more than saying that all aspects of one's life are connected to the next, and to the next, and so on. However, as I have indicated, the role of ADHD in causing your unregulated or impulsive behaviour and desire for immediate gratification without thought to consequence, is an important factor and gives some insight into how you were thinking, or not thinking, 37 years ago when, at the age of 20, you participated in the rape of the victim.
61. Thus, despite my reticence and my concerns of over-pathologising what ought be a sentencing process easily understood and accepted by ordinary members of our community, I find that you must be given the benefit of what has developed in this field of the analysis of moral culpability for criminal conduct. Indeed, the Court of Appeal in Mush referred to these phenomena in reference to what was meant by 'current sentencing practices'.[22] I have cited it already. It is that these days there is a greater understanding of mental impairment and the longstanding consequences of dysfunctional and traumatic upbringing and what weight that ought to be given in mitigating crime.
62. The overall conclusion I have come to is that your impaired mental functioning of ADHD and trauma from a neglected upbringing had some role in your dreadful, but ill-considered impulsive decision to go along with the others in this rape. Your moral culpability is accordingly to be seen as lowered, but in my view, given all the circumstances of what you did and the nature of the impaired mental functioning, the moderation is not significant. This conclusion seems to accord with your Counsel's submissions on the topic. As I have noted, the Prosecution submitted that there was no basis to reduce your moral culpability, but if it was, then the amelioration ought to be moderate, if not minimal.
63. I have taken into account all the factors concerning the circumstances of the offence and the impact on the victim and you as the offender. In particular, your plea of guilty, your genuine remorse and your more or less law-abiding life in the subsequent years from 1988 up until the early 2020s. I have taken into account, as I have just outlined, your mental health and the likelihood that you will, upon release, continue a law-abiding life.
64. I have endeavoured to express the primacy of denunciation, general deterrence and punishment without overlooking your rehabilitation. That must take a backseat because of the gravity of your crime. It is important that I, on behalf of the community, express denunciation of this deplorable conduct and endeavour to send a message to anyone who at any time has committed a crime, or is considering committing the crime, of sexual violence of the kind you did. That expression of denunciation and the message of deterrence must be in the end, in practical terms, years of imprisonment.
65. Thus, in the end, after anxious consideration, I impose the following sentence.
66. For the crime of aggravated rape, you are sentenced to be imprisoned for nine years and nine months and I fix a minimum non-parole period of six years and six months.
67. You have already served 325 days on remand, and that figure having been reckoned, I will now declare it is part of the sentence that I have just imposed.
68. Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of 13 years' imprisonment, with a non-parole period of nine years and nine months' imprisonment.

[1] The Queen v David George Gates (Supreme Court of Victoria Court of Criminal Appeal, Murphy, Gray and Nathan JJ, 16 September 1988), 4.

[2] R v Lakeland (Supreme Court of Victoria Court of Criminal Appeal, Phillips CJ, Marks and Hampell JJ, 19 November 1993), 11.

[3] Mush v The Queen [2019] VSCA 307.

[4] Allen (a pseudonym) v The King [2025] VSCA 210.

[5] Hall v R (1994) 76 A Crim R 454.

[6] Lazos v R (1992) 78 A Crim R 388.

[7] Braddock v R [2021] VSCA 201.

[8] Tsalkos v R [2024] VSCA 324.

[9] DPP v Barry [2023] VCC 1908.

[10] DPP v Dalgliesh (a pseudonym) [2017] VSCA 360; (2017) 271 A Crim R 1.

[11] Mush v The Queen [2019] VSCA 307, [98].

[12] Stalio v The Queen [2012] VSCA 120, [107]-[110].

[13] Mush v The Queen [2019] VSCA 307, [107]-[109].

[15] Hague v R [2019] VSCA 218.

[16] Hague v R [2019] VSCA 218, [250].

[18] DPP v Hermann [2021] VSCA 160, [45].

[19] R v Verdins (2007) 16 VR 269.

[20] R v Vuadreu [2009] VSCA 262.

[21] Evatt (a pseudonym) v R [2025] NSWCCA 130.

[22] Mush v The Queen [2019] VSCA 307, [106]-[111].