DPP v Sarker [2025] VCC 1853

1. Let me turn to then to the impact of your crimes. There is no impact statement from Ms Conn the female occupant in the second house or from her husband. I hardly need one to know that this was a frightening crime. After all she woke up screaming with a stranger inches from her face in the very early hours, in her bedroom.
2. There were two impact statements from the occupant of the first house, so from the direct victim of the sexual assault and from her grandmother. Your counsel told me that none of the material in either impact statement was in any way in dispute. The young woman who was 17 but I believe is now 18 did not want her impact statement read out aloud and so for me to now detail all that she spelt out in that impact statement would really not be in her interests or presumably meet with her approval. As a result, I will not do as I normally do and set out much detail from that statement. She sets out the impacts of your crime and they were many and varied and serious. Even writing the impact statement itself has been a distressing experience for her. Your crimes have impacted upon virtually every aspect of her life and they have altered the way that she views the world and those around her in the world. I have her grandmother's impact statement as well.
3. The grandmother's victim impact statement was read aloud by the prosecutor and I see no need to repeat that detail. I have read each of these impact statements again since the plea. Your crimes have had a large impact upon the grandmother. Her sense of security and safety has been very significantly dented. She has trouble sleeping and is startled by every noise in the night. She has cut back work and she is exhausted due to the lack of sleep. She has installed cameras owing to your offending. She says that she was a confident, happy, social person but has retreated from social contact. She says she is just not the same person. Your direct victim of the sexual assault will never forget your crime and nor will her grandmother and nor will Ms Conn.
4. I take into account the impact of your crimes. It has been very significant. That is surely hardly surprising. The crime of aggravated burglary is renowned for the impact that it has on the occupants of a house leading to feelings of a loss of sense of security and the like. The sexual assault had this young girl wake up in her own bed, in the course of being assaulted in the dead of the night by a complete stranger.

1. Ms Sasser conducted the plea in mitigation on your behalf.
2. She relied upon an outline of submissions dated 27 November 2025.
3. She filed reports from two forensic psychologists, Gina Cidoni and Laura Fleming. There was a reference from your mother, some medical records pertaining to your father, a letter of apology from you, as well as a bundle of course certificates and a prisoner education summary report.
4. Ms Sasser informed me of your personal background, so when I say that I am dealing with things such as your family, educational, work, drug use, relationship and criminal history. Much of that detail was in the written submissions. There was also a lot of detail in each of the reports. You are the source of most of that material.
5. Ms Sasser made some submissions as to the objective gravity of this offending and as to what she posited as being your favourable prospects of rehabilitation. She made some submissions also as to the application of the principle of totality of sentence here and the importance of that consideration.
6. In the thorough plea conducted on your behalf, Ms Sasser relied mainly upon the following matters in mitigation:
   • Your early guilty plea;
   • The presence of remorse;
   • Your disadvantaged background (Bugmy[1]);
   • Drug addiction in a mitigatory fashion pursuant to the cases of Lacey[2] and McKee & Brooks.[3]
   • The application of the third and fifth limbs from a Court of Appeal decision of Verdins[4].
   • An increased custodial burden by virtue of your knowledge of your father's sad health predicament.
7. Ms Sasser referred me to a single example of a sentence imposed by another Judge. That decision of Temple[5] is really of no value to me at all and I will explain why later in my reasons.
8. Ms Sasser conceded that a prison sentence of a dimension requiring the fixing of a non-parole period was inevitable in this case but she was arguing that a non-parole period fixed at a level close to your current

pre-sentence detention would be open to the Court in the sound exercise of the sentencing discretion.

1. The prosecutor on the plea, Mr Pickering, had prepared some very detailed written sentencing submissions. They were marked as Exhibit C. The prosecution in their written and then their oral submissions challenged virtually every matter which had been raised in mitigation on the plea by your counsel other than the discount to be afforded for your guilty plea. Mr Pickering expanded upon some of these matters significantly in the oral submissions placed before me, taking me as I have said to the statement of your friend, Mr Khidir. The prosecution challenged the application of the Bugmy principles, dealing with a disadvantage background, pointing to the lack of any evidentiary foundation and some discrepancies when regard was had to your mother's letter. They argued that that letter was a very strange one indeed. How was it that your mother was speaking of your character in the way that she did, when you had been convicted of a sexual assault in August 2022 (with that event occurring in April 2021). They argued that she just must not know of that matter. This conduct was not, as your mother suggested, some lapse of judgement by someone under the influence of alcohol. What did she actually know about the offending, they asked rhetorically. The Crown submitted you were on a mission in these early hours. Even had you been significantly affected by drugs and alcohol that could not be a matter truly in mitigation given the nature of these crimes. They argued however, that you were not profoundly affected by drugs or alcohol but instead were plainly motivated by a desire for some form of sexual connection. That much was plain on the materials they argued. They submitted that the intent to assault could only relate to a sexual assault intended at the time of entry to each house. They challenged the submission made by Ms Sasser as to the sexual assault being fleeting of nature. They challenged the submissions made by your counsel as to the level of objective seriousness of all the offending. They challenged the application of any of the principles from the case of Verdins and/or McKee and Brooks. They challenged the existence of any genuine or meaningful remorse in this case. I have said already, that they challenged the contention that you were deeply affected by drugs or alcohol on the night and they took me to your friend's statement. Your counsel was awake to these challenges.
2. I will return shortly to the various matters raised by each of the parties.

1. I will turn to your background. Often enough, I would accept a good deal of what I am told by a person as to their background. Generally, that is relayed to the Court through counsel. That is so even though mostly, it is by way of self-report. In this case your background is relied upon as giving rise to some allowance on a Bugmy basis as well as leading to the application of the principles from McKee & Brooks and also to a degree the case of Verdins. I must say I have very significant reservations about many aspects of your instructions to your counsel and the account that you have given to her and to the psychologists about aspects of the offending and about your background. I will turn to some of those matters when dealing with the expert reports and that I am sure will explain why I have that reluctance in acting on your self-report in this case. The experts mention some need for caution themselves. It follows then that I have in this case a pretty limited capacity to just act on your account of your own background. The Crown raised their concerns as to self-report in their written and oral submissions to me, so none of this can come as any surprise.
2. I will not set out all that I have been told about you. The written submissions go into quite some detail as do the expert reports.
3. You were born in November 1992 and you are 33 years of age. You were born in Bangladesh and I am told you are now an Australian citizen.
4. I am told that from the age of three, you lived with your parents.
5. I was told that in the years before, you were raised in your grandparents' home whilst your parents were off studying. As to the claim that you witnessed domestic violence in that home at that early stage, I really have no idea if that is true or not. Some of these beatings and acts of violence are said to have taken place after the time when your parents were back living with you. Your counsel says that you were subjected to extreme physical beatings. It is not entirely clear to me if that is in Bangladesh or Perth or both but I am not satisfied on the balance of probabilities of either. I see not one hint of support for that in the letter from your mother. To Ms Fleming you described being reunited with your parents and living with them from the age of three in Dhaka. To Ms Cidoni you described the extended family unit with beatings, some of them brutal, from the ages of five to seven. So this is based entirely on your account.
6. The family moved to Perth when you were about 12 years of age. You have a younger sister and I infer she must be a good deal younger than you as she was born in Australia. Up to that point then, as I understand it, you were supported by your mother and father. You describe that family relationship in Perth and describe observing domestic violence perpetrated against your mother and experiencing significant violence from your father inflicted upon you. You say it was a difficult upbringing. I have no idea if it was. Nor am I satisfied on balance that you were sexually abused by a teacher in the course of your primary schooling. Maybe it happened. Maybe it did not. That is described by Ms Fleming as only having been recently shared via a redress scheme and in the other report, you describe having received compensation. No material has been placed before the court in support of either proposition and it is not mentioned in your mother's letter. Indeed, none of this trauma, domestic violence targeting her or extreme violence against you is mentioned at all. I have your word for it in a setting where the Crown raised issues as to the lack of any supportive material and the limitations of self-report in this case.
7. I am prepared to accept that you went to a number of schools and you stayed to the end of Year 12 but did not do your final exams. You have a patchy or inconsistent employment record but even in that there are some significant discrepancies as between the two accounts given by you to the experts months apart. Did you work for two years at the Department of Health (see Ms Cidoni para 46) or was it the six months that you reported to Ms Fleming, months before? (See Fleming para 38).
8. I was told that you moved to Brisbane for a fresh start. Your mother in her letter views that period positively but of course it was there that you sexually assaulted a woman and were convicted of that matter following a trial. You were sent to prison. Your mother's letter is very strange indeed as she speaks of you without any reference to that past conviction for sexual assault. She speaks positively of your Queensland life. She refers to the isolated nature of this matter I am dealing with and your generally respectful and responsible nature. I can have no confidence at all that she knows any of the details of your prior criminal history or the details of this matter and what it actually involves. Such information as has come from your mouth cannot be relied upon.
9. You came back to Melbourne I was told to join your parents who lived here. By then you were 31 and your father had been previously diagnosed with Parkinson's disease. That diagnosis was back in 2016 or thereabouts according to the materials. I am prepared to accept that there is that diagnosis as there is other material touching upon that diagnosis both from the medical materials and from your mother's letter.
10. I note however that despite this being your purpose in returning to Melbourne, you were not living with them at the time of these crimes. You were living nearby. You have not been in a position to support them since your remand obviously enough. I understand that your sister is helping out. I was told that your mother was overseas.
11. I am prepared to accept that you have had some history of problematic drug use. There is not much support for that in the prior criminal history. I can see only one relevant entry for possession of cannabis back in May 2017. I do not accept that drug or alcohol use is greatly implicated in these offences at all. I am not satisfied of that at all.
12. You have a quite lengthy criminal history with appearances in Western Australia and then Queensland. I am not going to set out the full details of that criminal history.
13. You have committed a range of offences including burglary, common assault, and assault occasioning harm in circumstances of aggravation. An aggravated burglary was dismissed and so plainly I must have no regard to that entry. There is though the sexual assault which took place in April 2021 for which you were sentenced in August 2022 in the District Court up in Brisbane. I have those reasons marked as Exhibit D. You received 12 months' imprisonment with six months to be served and the rest held in suspense for two years. That operational period expired I believe in mid-August 2024.
14. There are many contraventions of intervention or restraining orders or their equivalent and a number of occasions of breaches by you of court orders, for instance there is reference to community based orders being breached.
15. I was informed about a warrant issued in Western Australia relating to allegations of a sexual assault at a casino in Perth. As the warrant was referred to in the two reports I asked for some information about that matter. It is not a matter you have even been charged with, as I understand it, much less has the allegation been proven. I made it clear I would have no regard to that matter at all even though it was referred to in the reports. No one saw any need for me to mark the document setting out the information that had been provided to me as an exhibit, as I had made it abundantly clear I would not have regard to that matter.
16. You received those past sentences and served them. You are not to be sentenced a second time for any of your past crimes in that criminal history. Your past criminal history does not aggravate the offending that I am dealing with. It does not lead to any relaxation of the requirement which exists for me to pass a proportionate and a just sentence in this case for your crimes that I am dealing with.
17. Your criminal history is however obviously relevant to my task.
18. After all, I have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. You have not taken the chances offered to you by the Courts.
19. The prior matter for sexual assault is of real relevance to my task. Within months of that suspended sentence lapsing you were engaged in these serious crimes which I am now dealing with. The experts, or at least one of them, says that there is 'no escalation' in terms of the sexual offending. That may be so in terms of the actual nature of the touching, but I cannot agree with the proposition that there is no escalation. They did not have the sentencing remarks of the Queensland Judge. I do. I am dealing with illegal entry to houses in the early hours of the morning for the purposes of sexually assaulting complete strangers within. Then a sexual assault committed against a young sleeping woman in one of those houses. I rate this offending as involving very significant escalation indeed.

1. I mentioned the Bugmy submission. Your counsel argued that the principles from that case dealing with disadvantage had some application here.
2. An offender's circumstances and their experience during their childhood and in their formative years must be considered in sentencing, and that is not just out of some historical curiosity but because it is clear that the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences, and they can sometimes explain, but not excuse, offending. Taking lifelong damage that is the result of childhood exposure to violence, or abuse or neglect, or sexual abuse, into account when sentencing is really just the mark of a humane society.
3. These Bugmy principles as they have come to be called, have been revisited in a number of cases since, including authoritatively in the Court of Appeal decision of Herrmann.[6] Ms Sasser argued that she was relying upon those principles in the general fashion described in that case law. I am well familiar with the case law. I am not satisfied on the balance of probabilities that it has any application here at all.
4. I just cannot act on your account of your background or on the opinions of experts that are in large part based on your account of your background. I will repeat some of this detail when I deal with the reports themselves and some of my other conclusions.

1. Let me turn then to some of the other matters raised on the plea by Ms Sasser.
2. The first of those is your guilty plea. It was made at an early stage, but plainly not the earliest stage. You have taken this early enough responsibility for your offending. You pleaded not guilty in the court below on 7 March of this year and came up to this Court without any committal it must be said. I note on the coversheet it is recorded that the Magistrate was told that you wanted a sentence indication.
3. In fact a form of sentence indication was sought in this court and Judge Gaynor, who evidently was retiring, indicated you would receive a maximum and a minimum term. You were after a combination type sentence, that is a community corrections order in combination with a term of imprisonment, which frankly was quite unrealistic. The matter settled not that long after the sentence indication but you have not accepted the sentence indication. As I say, there was an abbreviation of that hearing because of Judge Gaynor's retirement.
4. But this involved an approach to a court to have an understanding as to the type of sentence that would be imposed prior to your being prepared to actually admit your guilt.
5. You have though of course, as I say, pleaded guilty and I will treat it as a relatively early plea and these are important matters.
6. Owing to your guilty plea to these charges, the time, cost and all of the effort of a trial up in this court has been avoided. As I have said, no committal was conducted. It follows then that no witnesses have ever needed to give evidence in this case. Your young female victim and her grandmother have been spared that experience. So too Ms Conn from the other house and her husband for that matter. I have been sitting as a Judge for over 15 years now. Despite all the ways in which Parliament has tried to make the giving of evidence less stressful, the fact remains that giving evidence in a criminal trial can still be a very stressful and unpleasant event for witnesses, especially victims. All the witnesses have been spared the experience of actually giving evidence.
7. You have facilitated the course of justice and the law states that you must be rewarded for doing so.
8. I take these various matters into account in mitigation.

1. It was submitted that you had expressed remorse for your offending. The Crown challenged that contention. Ms Sasser relied to some extent on the fact of your early guilty plea. A guilty plea is usually, though not always, indicative of some remorse. As I said, here you had been endeavouring to get a sentence indication prior to actually 'nailing your colours to the mast'. Whatever might have been said as to remorse in the reports has to be seen in light of the fact that at that point, you were still not even admitting your guilt. Your letter of apology was written well prior to the matter settling and I must say it is more about you than any victim. You spell out all the ills and misfortunes of your life. You point to intoxication and drugs, something I am not inclined to accept actually, as being the driver of this offending. You mention this 'regretful night that you could not remember'. I have your mother's letter that mentions remorse but what does that really tell me? What does she know about these matters other than what she has gleaned from you? What does she know about your past matters including the prior matter for sexual assault? Presumably nothing, or she could not say what she says in the letter provided to me. She writes as to this conduct being completely out of character and I mentioned earlier, she puts a positive spin on the time that you had up in Queensland. Well in that time you went to prison, there was nothing positive about it. I have the minimisation that is referred to in the expert reports. I am far from confident there is much by way of genuine remorse or contrition in this case. I will treat your plea as indicating some remorse.

Report of Ms Fleming and Ms Cidoni; Verdins Limbs 3 & 5

1. I mentioned that your counsel filed a report of Ms Fleming and a later report from Ms Cidoni. The assessments were a matter of a few months apart and there are some differences in your account. That you are minimising your offending is as clear as day to me from each of those report.
2. The test results referred to and the opinions expressed are to a large extent informed by the account that you have given to each of those authors. So what you have described as to your background, violence in that background and drug use in that background, your past criminal history and the reasons for and the setting of this offending, you have given the accounts in each of those areas. I am not satisfied that you are a reliable historian at all. Indeed, I am actually positively satisfied you did not give a truthful or full account of this offending or your prior sexual assault matter.
3. Your counsel spelt out the way in which the reports were relied upon as enlivening two limbs from the well-known case of Verdins, namely the third and the fifth limbs_._ I will come back to that issue in one moment as the prosecutor made it very clear that the Crown took issue with those Verdins submissions. The reports were also relied upon as providing details of your background and the effect of that background as supporting the submission made as to the application of the principles from Bugmy and also the Lacey or McKee & Brooks point.
4. That background was almost entirely based on your self-report. Your counsel pointed to the risk assessments but there were some obvious limitations thrown up by your reticence, something spoken of by Ms Fleming in her report.
5. What then were the conditions said to give rise to any Verdins allowance? Predominantly they were post-traumatic stress disorder, a Major Depressive Disorder and the possibility of a personality disorder.
6. It is common enough that opinions such as those proffered in this case are based predominantly on self-report. I say predominantly. I do not ignore the fact that the expert in engaging in their assessment is making observations.
7. However, I am meant to engage in a rigorous assessment of the material placed before me in support of Verdins submissions.
8. There is almost nothing to support your account as to the setting of these offences that I am dealing with, and a fair bit to suggest it was very much a flawed account provided by you, for want of a better term. Not just in relation to the matters I am dealing with but in relation to some other detail provided by you.
9. As to Ms Flemings' report, I note she did not seemingly have access to the sentencing remarks of the Queensland Judge who dealt with you for that sexual assault back in 2022.
10. Even the account she received from you, one I am most hesitant to act on, suggests little basis for any consideration of a Bugmy allowance. What was there as to your disadvantaged developmental background? You had parents who were together. You gave an account of sexual assault, one I am not prepared to act on. There were some disturbing indications of selectiveness or reticence in the course of that assessment. Reticence on your part to discuss a range of matters but mainly matters connected with sex. You preferred not to answer questions as to sexual health and history and pornography. See para 44. This in a setting where this report is relied upon in a case involving sexual assault. You were not forthcoming as to the details of the prior sexual assault matter. See para 64. You were prepared however to say the victim in that matter up in Queensland was vexatious and you had not engaged in any sexual assault at all. You described the actual setting, one where nothing had occurred. Well months later you gave a very different account to Ms Cidoni saying you had no memory.
11. You gave an account of the lead into the offending which I am dealing with, with what I regard as a most unusual ability to recall certain things dealing with drug use and events on the night including even being able to remember being dropped off near your home. But from there it is just a complete blank. Yet the evidence elsewhere in the materials to which I was taken by the prosecutor including the person who you had been with and who dropped you off was not in any way suggestive of your being profoundly affected by drugs or alcohol. It did not support your account at all. You told Ms Fleming you were looking for your home. You most certainly were not and I am satisfied that you know you were not. You claimed no memory of any sexual assault but could recall being asked to leave a house. Ms Fleming says you tended to highlight positive behaviour and externalise blame for negative behaviour (see para 72).
12. The validity of one of the substantial tests that she administered to you was questionable with evidence of inconsistent responding and magnifying of symptoms with evidence on the inconsistent disclosure and debasement scales. These elevations suggested potential overreporting by you of symptoms though there were other possible explanations. She said that the score had to be interpreted with caution. See para 98. She described evidence of personality dysfunction but she again referred to the tendency to magnify responses. See para 110. On the risk assessment instrument, she flagged externalising some responsibility and denial of past offending and lack of recall of current offending. As to the presence of attitudes that support or condone sexual offending, that could not be fully explored due to your denial of past offences (which I interpose were found proven up in Queensland) and the inability to recall the current offending and your discomfort in speaking on sexual related topics. See item 16 and 17 in the risk assessment.
13. That report is of very little value to me in my task. It was not even commissioned at a point where there had been any admission by you of any actual legal responsibility for any of these crimes. You had not pleaded or indicated that you would plead guilty and it was authored months before you then presented before Judge Gaynor seeking that sentence indication.
14. The same can be said of Ms Cidoni's report. It was a later report dated 16 July, flowing from assessments conducted by her on that date but also on 16 June. Well, the matter had not settled. You had made no admissions of your guilt at all. Ms Cidoni did not have the prior sentencing remarks from Queensland. You described one of the physical assaults that is contained within your criminal history and the identity of that victim, but you could not remember the exact circumstances. You put down breaches of intervention orders protecting your family to your use of alcohol. As to the Queensland sexual assault, unlike the complete denial refuting any untoward act which you had related to Ms Fleming only months before, it was either on 27 March or 3 April, by the time you saw Ms Cidoni on one of the two dates that you saw her, you told her the name of the housemate, you told her about the nature of the alleged touching and the alleged context of that touching, but claimed that you did not remember doing this as you were totally under the influence. See paragraphs 20 and 21.
15. A pattern emerges in this material of your blaming or hiding behind substance use.
16. As to the current offending your account was it was a 'regretful night I cannot remember'. See para 38. You could of course remember a fair bit of it when talking to Ms Fleming only months before.
17. I am well satisfied that you remember far more than you are prepared to admit. You are yet again seeking to hide behind a claim of profound intoxication and memory lapse, something which in fact is in no way supported on the materials before me. I have mentioned earlier that you gave an account to Ms Cidoni of working for two years at the relevant government department. That was a six month period when speaking to Fleming months before. See para 46 of Cidoni's report. I was told of what was described as a near fatal car accident. You mentioned that in your 'apology'. See Exhibit 7. You told Ms Fleming about that as well, and I believe Cidoni. And surely that was not what was reported by Cidoni in para 51 of her report? I think it is. That is an accident where you seemingly did not even need any medical attention.
18. Your tendency for overstatement and exaggeration is pretty clear to me, the sentencing Judge in this matter.
19. Ms Cidoni acted on some of the tests that were administered by Ms Fleming but she also administered some herself. I was a little bit disturbed to read Ms Cidoni's reference at para 52 where she was referring to a finding by Ms Fleming as to overreporting by you, and then seemingly ignored Ms Flemings view as to what that might mean. She in fact revised Ms Flemings view where Ms Cidoni says of that overreporting 'this was thought to be a pessimistic cognitive style rather than deliberate exaggeration' Thought by whom? That is not what Ms Fleming said at all. That was one explanation. See Ms Fleming at paragraph 98. Ms Cidoni administered a trauma symptom inventory. That is a self-report measure. The atypical response validity scale was highly elevated suggesting potential overreporting. See para 80. That might not reflect intentional exaggeration but rather the severity of your distress and a possible tendency towards catastrophic thinking. But of course it might equally reflect intentional exaggeration and that was something flagged as a possibility by Ms Fleming as well.
20. Ms Cidoni administered two risk assessment tools. The SORAG rated your risk at the second highest level of risk for violent and sexual offending where 75 per cent offend within an average of seven years, 89 per cent within 10 years.
21. As to the Sexual Violence Risk inventory 2.0 that is the (SVR-20) you fell in the moderate to high category. I note the rating on the sexual deviation criteria.
22. No one really seems to have factored in the intent that you had to sexually assault a female found within these homes. I am satisfied beyond reasonable doubt that was your intent. I have mentioned that already. The very fact of having such an intent is surely massively problematic and this is whatever the tests and inventories may spit out by way of numbers and ratings, whether you were affected by drugs or alcohol or not actually. I do note that Ms Cidoni says that your account reflects a pattern of partial minimisation attributing behaviour to extreme intoxication on the night of large quantities of alcohol and a variety of drugs and limited memory and with focus more on your impaired state rather than the harm caused by you. See para 133.
23. There is a pattern of minimisation, see para 131.
24. Well what then can I take from these reports? Ultimately very little. The opinions depend to a very large degree on information provided by you and I do not believe that you were giving an accurate or truthful account of the offending past or present. Nor can I act on your account of your symptoms.
25. Heaven knows what I am to make of your description of your background?
26. I am not actually satisfied that you were anywhere near as greatly affected by drugs or alcohol on this night as you are making out. I have said already I am not satisfied that you have had a background of disadvantage such as to enliven even on a general level the principles from that case of Bugmy that I mentioned earlier. I am not satisfied on the balance of probabilities that there is any basis at all to apply any Lacey or Mckee & Brooks type reduction in this case. As I have said, you were on a mission in the early hours of this morning and it had very little, if anything at all, to do with drugs.
27. I am not satisfied on the balance of probabilities that any of the conditions spoken of in the report had any role in the offending or ought lead to any moderation of general deterrence here. I am not satisfied there is any realistic connection at all and there really is no basis for moderation of that sentencing purpose. I am therefore not satisfied on balance that there is any work for the third limb of Verdins. Your counsel was not suggesting for one moment that there was any Verdins driven reduction in culpability, by the way. She was relying only on the third and fifth limbs.
28. I am however satisfied just barely as to the application of the fifth limb despite my concerns as to the account you gave to the experts and your selectiveness and propensity for overstatement.
29. I am prepared to accept there is a very modest increased prison burden here owing to these conditions.

1. Allied to that is something I have not really mentioned in detail, that is your father's health predicament. I have your mother's letter and the medical material. I am prepared to act on that. He was diagnosed in 2016 it would seem. You were not even living with him at the time of these crimes. There are no exceptional circumstances in existence such as to give rise to any consideration of third-party hardship. However, your father is plainly not well. It is not suggested his position is such that I can have regard to impact upon him or others. I am prepared to make a modest allowance for an increased burden upon you, arising from your understanding of your father's predicament and the fact that you know others will need to step up and assist and that you cannot. It cannot be a large allowance in the setting of this case.

1. I turn then to your prospects of rehabilitation. It is very hard not to be guarded. This was really serious offending and it is not explained by drug or alcohol use, given the materials before me and the way you went about this offending. There was a very strong motivation on this night not in any way explained by the experts. I do not really know what I am dealing with here. You obviously had sex on your mind. You were saying things and bothering people and swinging into the women's toilets and you were then ejected from the hotel. Being kicked out of the hotel did not quench that desire. Nor going to house after house leading into the first successful entry over a sizeable enough period. That was well after an hour after you had started the hunt.
2. You then entered intending to sexually assault and it must follow that you either knew who was within the house or you did not. Frankly, I am not sure which is worse. There is no evidence suggesting that you knew any of the occupants of any of these houses and the number of places that you endeavoured to enter suggests no association or knowledge at all. So I am prepared to accept the submission made on your behalf that you did not know who was within these houses. I am satisfied beyond reasonable doubt you had an intention to sexually assault a female within a random house selected by you.
3. Being discovered and ejected from the first house did not put you off. You entered a second house with that same intent and trespassed on a third property without actual entry and of course there is reference to your endeavours to enter many others.
4. This was extraordinarily serious criminal conduct committed by a mature man with a relevant prior criminal history. You had been sent to prison in Brisbane for sexual assault and these crimes occurred only months after the operational period of that suspended sentence lapsed. That Court dealt with you on the basis that that matter was out of character and not indicative of any propensity for sexual violence. That conclusion I must say looks far less clear now. I have someone who plainly is minimising the offending. Your apology is really more about you than your crimes or your victims. It would seem to me you have little empathy. I do not accept your counsel's submissions as to your having favourable prospects of rehabilitation. The expert report of Ms Cidoni places you at a relatively high level of risk. It is true you have pleaded guilty but you do have quite limited remorse. You have done a host of courses and programs in prison, of course that is a good thing, but you have developed little empathy and you still minimise your serious crimes despite your guilty plea. I am told you would have a job and a home upon release.
5. You will be deterred to some extent by being held on remand up to this point and then into the future as you serve the sentence I will soon impose. It will be the largest period you have spent in custody by a large margin obviously enough and it will play a role in deterring you. Having said that, the previous prison sentence seemingly did not deter you.
6. I really can only be quite guarded here in my assessment. I am prepared ultimately to find that you have some prospects of rehabilitation.

1. I am required to pay regard to the nature and the gravity of the offences before the court.
2. I have probably said more than enough about the offences. I am not going to repeat the factual basis of sentencing. Your counsel accepted that my finding as to your intent to sexually assault was open to me. She conceded though, irrespective of that finding being made, that these were inherently serious offences and plainly they are. The aggravated burglaries and sexual assault are in my view serious examples of what are inherently serious offences.
3. The manner of assessing the seriousness of aggravated burglaries has been discussed in many cases including the case of Meyers[7]. That case sets out matters that might be considered by a court. It is not some fixed formula. It does not set out some checklist where if a box is not ticked, the offence is therefore not serious or less serious. It is merely a list of factors, the presence of which might be viewed as aggravating. The absence of an aggravating feature in that list says nothing about the overall seriousness of the offence before the court. These Meyers considerations_[8]_ as to how a court might best assess the seriousness of an aggravated burglary, as I have said they are not exhaustive considerations. They include some pretty obvious things such as the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened.
4. Your counsel pointed to the limited time spent within each house. The time that you spent in each house is not in any way decisive in the assessment of the seriousness of the aggravated burglary. I reject as I must any suggestion either made to the expert by you or floated by counsel as to this conduct in any way involving an endeavour by you to get back home. See p2 of the outline. It was no such thing. I have already indicated on the materials that I am satisfied beyond reasonable doubt that the assault that you intended at the time of entry was a sexual assault. We then look at the time of that entry. It was in the very early hours and it then seems to me working my way through those Meyers criteria is hardly of any value. Possessing that intent, that is, an intent to sexually assault at the time of entry necessarily makes this a serious example of the offence of aggravated burglary.
5. You were wearing no disguise. You did not force entry. You did not kick the door in. You had no weapon. You were alone.
6. What you did is you moved around that neighbourhood over a protracted period until you chanced upon two houses that could be entered by you, at a time when you expected, indeed hoped, that there would be people within. So contrasting this style of entry with for instance a multiple person 'run through', armed or otherwise, where physical violence was intended is just not at all profitable. They are different species of confrontational aggravated burglaries. You could not seriously think that people would sleep and not be disturbed by a sexual assault. It was just a different style of confrontation which you intended being a sexual one upon a complete stranger within their home in the very early hours. So having no disguise or tools is really neither here nor there. You entered at that time and in that manner and with that intention. Stealth was your ally. These are serious examples of aggravated burglary. It is probably every woman's worst nightmare that someone might actually enter their private space in the dead of night with that intent, whilst they sleep.
7. Not every aggravated burglary moves on to other offending. These two did. The suggestion that the sexual assault was fleeting really cannot pass muster when one examines the duration and what you did. It was in fact quite sustained touching over a number of minutes with serious touching and occasions where you used some force pushing her or pinning her or trying to placate her. It stopped not because you woke up to yourself, not because you desisted, but because you were elbowed to the face and your victim was able to escape out to her grandmother and raise the alarm.
8. The victim was 17 years of age. She has been deeply impacted. The venue was the house where this young woman was safely tucked away in her own bed, or so she and her grandmother believed. The timing and the venue for the sexual assault and the common assault is obviously a matter of real seriousness here. It was the victim's bedroom. They were each completely vulnerable. The 17 year of victim was initially asleep. Ms Conn woke with you very close to her face.
9. This was terrifying offending

1. I have to consider a number of purposes of sentencing. Rehabilitation is just one of those purposes. Of course I give rehabilitation some weight. It is after all one of the purposes of sentencing. But it must surrender some ground to the other purposes. This is not all about you. These were serious crimes committed by you upon others. I am sentencing you for those serious crimes.
2. I obviously have to give weight to the various other purposes of sentencing.
3. I am required to punish you justly and proportionately. Punishment is plainly of importance in this case.
4. I must also denounce your conduct. Of course that is important. This was pretty outrageous and serious criminal conduct and I must denounce it in the strongest of terms and I do.
5. Community protection is of real importance here given the nature of this offending. I plainly must protect the community from you.
6. Then there is the notion of deterrence.
7. Specific deterrence relates to the need to deter you. It is obviously important in my task. Plainly I must try to deter you from offending in the future. The District Court Judge in Queensland tried to achieve that end not that long ago. Yet you committed these really serious offences despite having been sent to prison previously. This offending involves what I regard as a real escalation given the randomness of the selection of the house and hence the random nature of any intended potential victim, and the nature of intent held by you at the time of entry.
8. I must try again to deter you from offending into the future.
9. Then there is the notion of general deterrence which relates to the need to deter other future likeminded offenders.
10. This court must pass sentences to try to deter others from doing what you did. That is plainly an important purpose of sentencing in this sort of case.
11. I have to pay regard to many matters including the impact of the crimes and the maximum penalties for each of the offences.
12. I have to pay regard to current sentencing practices.
13. That is not a single controlling factor at all, it is one of a large number of matters I must have regard to.
14. I have looked at the statistics held at the Sentencing Advisory Council.
15. That sort of material is of very limited use. I must sentence you for your crimes. That is not some statistical task.
16. I have looked at some case summaries on the Judicial College of Victoria site.
17. I have looked at that case of Temple to which I was referred. That is a single decision of another Judge and very different indeed in terms of an accused who had no initial criminal intent at all at the time of entry into the bungalow and then into the house. The intent formed once inside and then the bedroom was entered with that intent. The sentencing judge thought it important to work her way through those Meyers factors. I frankly do not really know why given the particular intent held by that accused outside the bedroom prior to entry. But that is what that judge did. That accused had no relevant criminal history. That accused was not entering houses with an intent to sexually assault, or even to assault. He was homeless and he had a shower out in the bungalow and then went into the main house without the required intent for a period. See para 16 of the decision. The judge described the offending as opportunistic, which I must say I view as a pretty charitable stance, but that was her stance. She sentenced on that basis. Your offences really cannot be described as opportunistic though that word was employed in submissions both made to me and contained within the expert reports. Opportunistic? You were working pretty hard to create the opportunity it must be said. You were drifting around the neighbourhood obviously with sex on your mind looking for a house to enter. You found houses, you entered with intent to assault sexually and once inside in the first house, you had your iPhone torch out finding your way to a bedroom. You found a bedroom in the second house as well. Each of those bedrooms had a woman sleeping within. This was not opportunistic at all.
18. Sentences imposed upon other offenders provide very little assistance to a sentencing Judge. Past sentences are not 'precedents' or authorities to be followed unless they can somehow be distinguished. They are no more than examples of other sentences imposed by other Judges for other crimes committed by other offenders. Another Judge might have imposed a longer or shorter sentence and not been wrong to do so. That is because there is no such thing as one correct sentence. The case of Temple provides no assistance to me at all. There are very many differences. This case is way more serious and I have endeavoured to spell out why.

1. I do take into account the principle of totality of sentence. Your counsel refers to that principle in her detailed written submissions and speaks of this being an unbroken episode of criminality. I do not ignore the strong temporal connection. I have four charges on the indictment and the one summary matter, all occurring in this timeframe. I do though have two separate serious aggravated burglaries. It is not a job lot. They are committed by you upon different homes with different victims and with differing impacts. I have said already, not every aggravated burglary leads onto other offending. These two did. The sexual assault in particular is a serious offence in its own right with deep and serious impact upon that direct victim.
2. There is plainly no basis for total concurrency here. I really did not take your counsel to be suggesting that there was. There must be some meaningful cumulation to recognise the different offences, victims and impact. Plainly though there must also be some moderation of cumulation and that is to reflect the temporal link. If I went about my sentencing task cumulating every sentence, one upon the other, plainly that would offend the principle of totality.
3. What I have done is I have engaged in a last look at the sentences imposed by this court and the overall effect of my orders and that is to ensure that it is commensurate with your overall criminality, and in an endeavour to guard against the imposition of a crushing term upon you.
4. Your criminality was high indeed.
5. Prison is always a disposition of last resort.
6. If prison is required as it plainly is here, a court must never impose a longer prison term than is required to achieve the various purposes of sentencing.
7. Your counsel conceded the inevitability of a head sentence and a

non-parole period but argued that the non-parole period might be fixed at a level close to your existing pre-sentence detention. I disagree. 8. Such an outcome is not open to me in the sound exercise of my sentencing discretion. It would not pay anything like adequate weight to the seriousness of these crimes, the impact of them and the need to denounce your conduct, to punish you, to deter you and others, and to protect the community from you. 9. I will be required as a matter of law to fix a non-parole period and that is because of the size of the head sentence which I will soon pronounce upon you. It will be for the Adult Parole Board to decide if you can be released on parole. That has nothing to do with me. I must not even consider that possibility. It will I suppose really be between you and them. 10. I am sorry to have taken so long to get to this end destination, Mr Sarker, but I had to explain to you and to many others why I am doing what I am doing.

1. If you would stand up please. Thank you.
2. On Charge 1, aggravated burglary where I have information available to me as to the sizeable impact of that offence, I convict and sentence you to 54 months or four and a half years' imprisonment. I will make that the base sentence.
3. On Charge 2, sexual assault, I convict and sentence you to three years' imprisonment.
4. On Charge 3, aggravated burglary I convict and sentence you to four years' imprisonment.
5. On Charge 4, common assault relating to Ms Conn, I convict and sentence you to six months' imprisonment.
6. On the related summary matter, I convict and sentence you to seven days' imprisonment.

1. I make the following order for cumulation and I will explain what this all means at the end. I direct that:
   • 15 months of the sentence imposed on Charge 2 (the sexual assault)
   • 10 months of the sentence imposed on Charge 3 (the second of the aggravated burglaries); and
   • two months of the sentence imposed on Charge 4 is to be served cumulatively upon the base sentence and upon each other.
2. The seven day sentence will be served concurrently with all other sentences.

1. These orders for cumulation leading to cumulation of 27 months produce a total effective sentence of 81 months or six years and nine months' imprisonment.

1. I fix a period of four and a half years during which you will not be eligible for release on parole.

1. You have already served 366 days of this sentence by way of pre‑sentence detention and that declaration made pursuant to s18 of the Sentencing Act 1991 is to be entered into the records of the court.

Section 6AAA

1. I have told you I have taken into account your guilty plea. I have. I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial, I would have convicted and sentenced you to eight years and nine months' imprisonment. I would have fixed a non‑parole period of six and a half years in that setting.
2. Have a seat then please.
3. Is there anything else I need to deal with at all?
4. MS RIORDAN: Nothing further, Your Honour.
5. HIS HONOUR: Anything else from your perspective, Ms Sasser, or not?
6. MS SASSER: No, Your Honour.
7. HIS HONOUR: No, all right, thank you very much.
8. Now look you will go down and see your client today, will you?
9. MS SASSER: Yes, I will.
10. HIS HONOUR: All right. And look I will get these reasons back from VGRS, I will revise them, generally I revise them on the day I receive them and once we have done that I will provide them to the parties. As I say I may well anonymise them, I think, or to some extent anyway given the relationship between the victims the subject of Charge 1 and 2. So if I mentioned the grandmother's name, I am impliedly identifying the victim of the sexual assault which I must not do. I will consider that anyway. Anyway, they will come to the parties once I have revised them.
11. That completes the matter then, Mr Sarker. Ms Sasser will come down and have a chat to you downstairs about what has happened here today and your rights in relation to this sentence. So Mr Sarker can be removed now then please. Thank you.

[1] Bugmy v The Queen [2013] HCA 37 ('Bugmy')

[2] R v Lacey [2007] VSCA 196 ('Lacey')

[3] R v McKee [2003] VSCA 196 ('McKee & Brooks')

[4] R v Verdins [2007] VSCA 102 ('Verdins')

[5] DPP v Temple [2021] VCC 2118 ('Temple')

[6] DPP v Herrmann [2021] VSCA 160 ('Herrmann')

[7] DPP v Meyers [2014] VSCA 314 ('Meyers')