DPP v Smithers

1. You were born in January 1986.
2. The victim was born in China in 1982. Her first language is Mandarin. She moved to Australia in 2010 to study and has no extended family here.
3. In May 2015, you met the victim on an online chat website, "WeChat". You commenced a relationship with her shortly after and you moved in with her in July 2015.
4. You and the victim married in January 2016 and together moved from Melbourne to Cowes, Philip Island in February or March 2016. Your son was born in April 2016.
5. After this time, the relationship began deteriorating.

1. It is clear that the jury preferred the victim's version of events of what occurred on 7 June 2023. That was given predominantly in examination-in-chief. I sentence you on the basis of the matters that she gave evidence about in that portion of her evidence.[2] The victim woke up around 5:00AM, earlier than usual, dressed and began preparing meals for your son before going on a work trip to Dandenong. At around 5:30AM, you came into the kitchen.[3] You were fully dressed.
2. You said the victim looked amazing and asked if she missed you last night.[4] The victim smiled and said "no". After some consensual kissing in the kitchen, you led the victim into the bedroom.
3. Once inside you stood in front of the bedroom door, facing the victim. You pulled your pants down and the victim saw your penis, which was erect.
4. You said "look at this. I'm fucking awesome". The victim again said, "no, I don't want it", to which you replied with words to the effect of her wanting to suck it more.[5] The victim responded, "no".
5. You grabbed the victim by the back of the neck and put her head down.[6] She went onto one knee.[7] You pulled her head towards your penis. The victim said "no". You put your penis on the victim's mouth, and the victim said "no" again. When the victim said "no", you put your penis in her mouth for seconds, then removed it (Charge 4 - Rape).[8]
6. The victim kept repeating "no". She got up. You then pulled her into the ensuite, shutting the door behind you.[9] You pushed the victim's face to the shower wall.[10] You used one hand resting on the victim's shoulder to hold the victim in place and used your other hand to pull down the victim's leggings.
7. You put three or four of your fingers into the victim's vagina and moved them in and out. The victim felt pain and tried to wriggle away. As she tried to escape, you moved your fingers faster and faster.[11] The victim said "stop it, it hurts". However, you did not remove your fingers. You had your fingers in the victim's vagina for "maybe" a minute (Charge 5 - Rape).[12]
8. You removed your fingers from the victim's vagina. You turned the victim around so she was facing you and inserted your penis into the victim's vagina. The victim continued to try to escape by wriggling her body but was not able to escape. She said, "stop it, you're hurting me". The victim recalls repeatedly yelling "stop", but you did not stop (Charge 6 - Rape).[13] On the evidence I am not able to find beyond reasonable doubt if there was injury to the vaginal mucosal wall.
9. She began crying. She felt she could not do anything to escape owing to your larger build
10. After a few minutes, you stopped[14] and said, "now you can give yourself a wash" and left the room. The victim was unsure if you ejaculated inside her.
11. The victim washed her vagina using a large cup of water and then also left the ensuite and bedroom.
12. As the victim was preparing to leave the house, you asked the victim to give you her phone and tried to grab it from her. The victim said "no" and quickly left the house and got into her car.[15]
13. I have spent some time setting out these matters because they inform my assessment of the both the objective seriousness of the offending and also your moral culpability. In particular the different locations of each act, your moving of her between these locations and positions, the time during which each act occurred and her repeated protestations are factors which go to all charges.

1. The maximum sentence for rape is 25 years. It indicates, very clearly, that the crime of rape is a very serious one. It involves the gross invasion of an individual's liberty and person. This is inherently serious offending.
2. As the Court Appeal said in Mush v The Queen:

"The fact that they [the offences] occurred in the course of one continuous incident must not obscure the gravity of the applicant's offending, and of each individual offence that he committed."[16]

3. There are a number of other factors that regard should be had to:

(a) Whether the offence was premeditated;

(b) Whether the offender acted alone;

(c) The length of the offending;

(d) Whether violence or threat of violence was used;

(e) Whether a weapon was used;

(f) Whether the victim was injured;

(g) Whether the victim was humiliated or degraded;

(h) Whether the offender used a condom;[17]

(i) Whether the victim was particularly vulnerable;

(j) Whether the offender ignored warnings to stop.

1. Here your offending involved a gross breach of an established relationship and marriage.[18]
2. While your offending occurred over a short space of time you initiated action by taking the victim to the bedroom, then moved her forcefully to the shower. The fact you persisted across different locations and moving her to different positions all while she said "no" or that "it hurt" shows a level of determination to achieve your aim.
3. She clearly expressed that she did not want sex by her statements. Yet you overrode those clear statements.
4. You acted in a way that physically hurt her. Yet you overrode that pain to achieve your aims.
5. You acted in a way that caused her to cry and feel overwhelmed. Yet you overrode that distress to fulfil your wishes. She was repeatedly and determinedly humiliated and degraded.
6. The factors relevant to the assessment of objective seriousness of the offending on Charge 4 are as follows:

(a) No premeditation;

(b) Seconds only in duration;

(c) Some force in pushing her neck down;

(d) No flagrant degradation, acknowledging the abject humiliation the victim experienced; and

(e) Protestations on three occasions.

Balancing these factors I consider the objective seriousness to be low.

1. Charge 5, while part of a short series of events, is a separate and distinct event because:

(a) The offending occurred in a different location, being the ensuite and shower;

(b) It was a deliberate decision to move the victim to a location of your choosing to commit further offending; and

(c) The method of offending was different.

1. The factors relevant to the assessment of objective seriousness of the offending on Charge 5 are as follows:

(a) Physicality in positioning her and pushing her leggings down;

(b) No degrading language or slapping or hitting; and

(c) Persistent offending in light of pain, complaint and protestation.

Balancing these factors I consider the objective seriousness to be low to moderate.

1. The factors relevant to the assessment of objective seriousness of the offending on Charge 6 are as follows:

(a) The method of offending was different;

(b) Physicality in positioning her and pushing her leggings down;

(c) No degrading language or slapping or hitting; and

(d) Persistent offending in light of pain, complaint and protestation following on from the prior offending.

Balancing these factors I consider the objective seriousness to be low to moderate.

Assessment of moral culpability of the offending

1. No matters by way of Verdins or Bugmy were put which lessen your moral culpability for the offending. Similarly no medical material was put that explains your offending. Overall there are no matters which are external to you that can be pointed at which would reduce your moral blameworthiness for these actions.
2. I accept that your relationship was ending and was difficult to navigate. There were instances of intimacy between you and the victim as the relationship came to an end. However this could not be said to have led to such confusion on your part that you did not know that what you did was against your wife's will. I consider your moral blameworthiness for these acts to be high.

1. The victim prepared a victim impact statement declared on 16 December 2025.[19]
2. In the statement she speaks of the profound sense of betrayal by someone she once trusted and loved. She describes losing a part of herself that will never be regained. Being isolated in Australia and being far away from her family, the victim speaks of the constant state of alertness and lack of trust she suffers. She feels detached from her friends, her culture and the future she once imagined. In particular, she has lost the belief that she can feel safe in a relationship again. She also speaks of the fear and instability your offending has caused her. She recounts the significant expenses of relocating and the stress it caused her, resulting in her losing her previous job, all while supporting your son.

1. You are 40 years of age and were 37 at the time of the offending.
2. You grew up in the Dandenong Ranges and are the youngest of six, having five older half-siblings.
3. Your childhood was described as "typical" other than the fact that your parents worked extensive hours to provide for their six children. Your father worked in real estate and tree lopping and your mother worked in real estate and in service stations. Their absence increased in your teenage years when they purchased a bed and breakfast, working almost around the clock.
4. When you finished Year 9, you commenced a pre-apprenticeship in carpentry. You completed this and began work as an apprentice carpenter but had difficulties with your bosses. You were unable to be signed off on your apprenticeship and instead worked as a trade assistant on job sites.
5. At 17 or 18 you were asked to leave the family home as you were having regular disagreements with your mother. You moved into a family friend's home for several months where you slept on the couch. After this, you rented a property with some friends for several years, but spent a period of six months in your early 20s homeless and sleeping in your car.
6. At this time, your parents relocated to Phillip Island and your father invited you back into the family home.
7. In Phillip Island, you found work on trade sites, as a trade assistant, labourer, in framing and also worked nights in the local RSL.
8. You met your first wife whilst working at the RSL. After several months, you were engaged and moved from Phillip Island to Camberwell as you began working in the telecommunications industry.
9. You married your first wife in your mid-20s however after approximately 18 months, the relationship ended amicably. You and your family remain friendly with your first ex-wife.
10. You moved from Camberwell to Hawthorn and continued to work in the telecommunications industry for over three years.
11. As explained above, you met the victim around May 2015.
12. In early 2016, you began working in real estate.
13. After disclosures were made by the victim on 7 June 2023, a Family Violence Intervention Order (FVIVO) was taken out by police and you were removed from your family home with the victim. You remained in touch with your son, initially through Federal Circuit and Family Court (FCFOA) orders, though this has since ceased post the jury verdict.
14. You then lived with your half-sister Nancy.[20] She suffers from an acute brain injury, sustained in the early 2000s. She receives the Disability Support Pension. You began caring for her when you moved in. This included driving her to appointments, obtaining her medical scripts, ensuring she takes her medication, cooking and cleaning. She is highly dependent on you as she cannot drive.
15. During this time you continued working as a realtor until you were remanded following the jury verdict.
16. You met your new wife in approximately 2023. Your relationship with her progressed and you married in October 2024. It is a long-distance relationship, with her residing in the Philippines. Her long-term intentions were to move to Australia and settle here. She remains supportive of you, as per her character reference.
17. As noted during the trial, you are presently suffering from a hernia. You were scheduled to have surgery in November 2025 but this was delayed due to the trial. You have since seen a doctor in custody who has confirmed the requirement for surgery but has indicated that the delay could be up to three years. You are otherwise physically fit.
18. Regarding your mental health, no reports were relied on.
19. Neither alcohol nor drugs have ever been an issue for you, nor suggested to play any role in the offending.

1. Section 5(1) of the Sentencing Act 1991 sets out the relevant purposes for which a sentence may be imposed on you:

(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b) to deter the offender or other persons from committing offences of the same or similar character;

(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d) to manifest the denunciation of the type of conduct the offender engaged; or

(f) a combination of two or more of those purposes.

1. Each of these purposes are relevant in the sentencing synthesis in your case. I place lesser weight on the need for community protection given your previous work history, lack of any prior convictions and otherwise good character. I consider punishment, general deterrence and denunciation to be of real prominence in your sentence given the nature of offending and the limited scope of it. Given your past good history specific deterrence is of less importance. Given your age, work history and family support I consider rehabilitation to have a substantial role.

1. I turn now to a consideration of the standard sentencing scheme.
2. The scheme provides for a standard sentence for the three charges of rape. The standard sentence for each charge is 10 years' imprisonment.
3. In determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the relevant sentencing factors.
4. The standard sentence does not affect the instinctive synthesis and therefore, does not require the Court to identify the objective seriousness of the case for the purpose of comparing the present case to the standard sentence. However, how the standard sentence relates to the present case must be explained.[21] In this way, it is an additional factor to consider in the sentencing process.[22]
5. The standard sentencing scheme may be considered as a legislative guidepost in the sentencing consideration. However, it is neither determinative nor a starting point from which I must simply remain, go up or go down in my sentencing consideration.[23]

1. I turn now to address remorse. You went through an entire trial process, denying the allegations. This was your right and is not held against you.
2. You are described as feeling a profound sense of guilt and sense of responsibility for the hardship your family now suffers, particularly for your sister Nancy who now lives alone and is supported by your other sisters and parents. However, there was no submission made to support evidence of remorse. This indicates that while you are guilt-ridden by the impact of your offending on your family, there is no evidence of remorse for the victim herself.

1. Turning to mitigatory factors. You have an unblemished criminal history and have not been involved with the law prior to this offending. There have been no charges, allegations or investigations of any offending involving intimate partners, such as your first wife, previous to and post to your offending.[24]
2. I received evidence and can accept that besides this offending, you are a person of good character. Multiple character references from your family members, friends and colleagues were tendered at the plea.[25] Each reference has been read and considered.
3. Certificates to confirm the courses you have completed while in custody were also tendered at the plea.[26] I have also considered these. While you found it difficult to adjust to prison life, you endeavoured to use your time productively and have completed a number of qualifications. You are currently working full-time in the kitchen.[27]
4. You had also been fully compliant with the FVIVO, FCFOA orders and bail conditions during the trial.
5. It is clear that you have a supportive family and network of people around you. You have no criminal record, good work history, participated in the community, stable housing and are relatively young with otherwise good health. In particular, your dedication to and volunteering with the Phillip Island Fire Brigade speaks volumes about your character.[28]
6. Given this, I consider you have good prospects for rehabilitation.

1. It was submitted by your counsel that as a result of your imprisonment, there has been hardship suffered by your family. Specifically, that the care you once provided for your sister Nancy is now shared among your remaining family members. It was submitted that this hardship can be characterised as exceptional and ought be taken into account during sentencing.
2. Similarly, it was submitted that the effect this has had on you, of the hardship caused to your family members, ought be considered as a matter in mitigation.
3. The Court of Appeal decision of Markovic v The Queen stated at [5]:[29]

"1. Reliance on family hardship - that is, hardship which imprisonment creates for persons other than the offender - is itself an appeal for mercy.

4. Properly understood, therefore, the purpose and effect of the 'exceptional circumstances' test is to limit the availability of the court's discretion to exercise mercy on that ground.
5. Accordingly, there can be no 'residual discretion' to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
6. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the 'exceptional circumstances' test has no application."
7. At [20]:[30]

"The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender's anguish at being unable to care for a family member can properly be taken into account as a mitigating factor - for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender's prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the 'exceptional circumstances' limitation."

8. Turning first to the hardship that has been suffered by your family. While I accept that you have provided substantial care for your sister Nancy between the period of June 2023 until your imprisonment, I do not find that the absence of this care for her has created hardship on your family that can be categorised as exceptional. There are two reasons for this.
9. First, while the precise date is unclear, it was submitted that Nancy sustained her acute brain injury sometime in the early 2000s. While she may have been receiving assistance from various family members from that time onwards, she seemed to be living without your assistance for a long period of time. It was only in June 2023 that you moved in with Nancy, and this coincided with the FVIVO that forced you out of your own home. This means that Nancy had only been receiving your live-in support for the latest few years of her injury.
10. Your counsel admitted that while her care prior to your moving in could be considered as "adequate", the support you provided her meant that she was receiving "exemplary" care, the lack of which would now cause exceptional family hardship. Since your imprisonment, the care for Nancy has been shared by your remaining family members, and while this has undoubtably caused inconvenience, particularly in light of other family considerations, I do not find that these circumstances can be considered exceptional. Nancy is still receiving adequate care, albeit at a lower standard to what you once provided her.
11. Second, it was submitted by your counsel that your new wife had plans to move from the Philippines to Australia to live with you long-term. It was suggested that you and your wife would only initially live with Nancy but that this was not the long-term arrangement. While an argument could have been made that Nancy's condition has worsened in recent years, necessitating live-in assistance, your plans with your wife indicate that you were not planning on continuously living with Nancy and that she was not in need of your permanent or long-term assistance.
12. I take into account your feelings of concern that you can no longer provide care for Nancy and consider this makes prison more burdensome.

1. I have lowered the non-parole period to reflect your good family supports, stable housing and good prospects for rehabilitation on release.

1. Given my finding on Charges 4 and 5, you fall to be sentenced as a serious sexual offender on Charge 6 pursuant to Part 2A of the Sentencing Act 1991. This makes your sentence on Charge 6 subject to a presumption of cumulation and to raise community protection to a more prominent role.[31]
2. However I must consider this as a factor in my overall intuitive synthesis in arriving at a just and appropriate sentence in all the circumstances. This requires me to consider totality and proportionality.[32] Considering particularly the limited time span of the three charges I consider there must be significant concurrency.

91 days up to and not including date of sentence to be reckoned as time served

1. Barney Smithers, on 2 December 2025, a jury of 12 unanimously found you guilty of three charges of rape (Charges 4, 5 and 6) contrary to s38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016. The charge of rape carries a maximum penalty of 25 years' imprisonment. It is a category 1 offence and a custodial sentence is mandatory. The charge also has a standard sentence of 10 years.
2. In sentencing you, I place lesser weight on the need for community protection given your previous work history, lack of any prior convictions and otherwise good character. I consider punishment, general deterrence and denunciation to be of real prominence in your sentence given the nature of offending and the limited scope of it. Given your past good history specific deterrence is of less importance. Given your age, work history and family support I consider rehabilitation to have a substantial role and I consider your prospects of rehabilitation to be good.
3. No matters by way of Verdins or Bugmy were put which lessen your moral culpability for the offending. Similarly no medical material was put that explains your offending. Overall there are no matters which are external to you that can be pointed at which would reduce your moral blameworthiness for these actions.
4. The victim prepared a victim impact statement. In the statement she speaks of the profound sense of betrayal by someone she once trusted and loved. She describes losing a part of herself that will never be regained. Being isolated in Australia and being far away from her family, the victim speaks of the constant state of alertness and lack of trust she suffers. She feels detached from her friends, her culture and the future she once imagined. In particular, she has lost the belief that she can feel safe in a relationship again. She also speaks of the fear and instability your offending has caused her. She recounts the significant expenses of relocating and the stress it caused her, resulting in her losing her previous job, all while supporting your son.
5. Regarding hardship that has been suffered by your family, while I accept that you have provided substantial care for your sister Nancy between the period of June 2023 until your imprisonment, I do not find that the absence of this care for her has created hardship on your family that can be categorised as exceptional. However, I take into account your feelings of concern that you can no longer provide care for Nancy and consider this makes prison more burdensome.
6. I therefore sentence you as follows, on Charge 4 you are to be sentenced to 6 years' imprisonment, on Charge 5 you are sentenced to 6 years' imprisonment and on Charge 6, the base sentence, you are sentenced to 6 years and 6 months' imprisonment. I order that 6 months on Charge 4 and 6 months on Charge 5 be cumulative on the base sentence. This leads to a total effective sentence of 7 years and 6 months' imprisonment, with a non-parole period of 4 years and 6 months' imprisonment. I order that 91 days of pre-sentence detention, up to and not including the date of sentence, is to be reckoned as time served.

This summary is not intended to be a substitute for the reasons of the County Court or to be used in any later consideration of the Court's reasons.

[2] Transcript ("T") 104 and following however the lead up to the events in the bedroom and ensuite are

not implicit in the jury verdict. The issue as to whether the victim was dragged to the pantry, what

occurred in the pantry and whether she was pulled from there to the bedroom cannot be proved beyond

[16] [2019] VSCA 307 at paragraph [72]

[17] Exhibit D1 at paragraph [20] whilst a condom was not used, this was consistent during the pair's sexual

relationship and none of the penetration involved ejaculation.

[18] As per Watkins (a pseudonym) v The King [2023] VSCA 203, there has been a serious breach of trust

between the offender and the victim, having been husband and wife. Breach of trust is considered an aggravating feature of an offence.

[21] Brown v The Queen [2019] VSCA 286, s5B Sentencing Act 1991 (Vic)

[22] s5B Sentencing Act 1991

[23] Brown v The Queen [2019] VSCA 286

[27] Exhibit D1 at paragraph [78]-[106]

[28] Exhibit D2 reference letter of Pasqualino Drazzi dated 22 January 2026

[29] [2010] VSCA 105; 30 VR 589 at [5]

[31] s6D Sentencing Act 1991

[32] Deacon v The Queen [2018] VSCA 257 at [164]