DPP v Thornton

1. You were born in October 1981. At the time of the offending, you were aged between 28 and 31.
2. The victim in this matter is Ellie Montoya, she was your former wife. She was born in 1982 and during the period of offending, she was between 27 and 30 years old.
3. You had been in an intimate relationship since your teenage years, commencing your relationship in 2001. You got married in 2006 and had four children. Your children were born between the years 2003 and 2008. The four children were young during the period of the offending.

1. On an occasion between 3 March 2010 and 3 March 2011, you raped Ms Montoya at home. Ms Montoya recalls the offending occurred when your youngest daughter was between 2 and 3 years old and after you had had a vasectomy.
2. The offending occurred in the afternoon when Ms Montoya's parents had gone out with her brother and Ms Montoya was home with you and your children.
3. She was sitting in the lounge room watching TV when you came in, grabbed her off the couch, threw her to the floor and pinned her arms fast above her head.
4. You inserted your penis into her vagina, despite her physically resisting. You then left the room. Ms Montoya stood up, cried, and urinated where she was standing. Ms Montoya recalls that she did this after each incident of being raped.

1. On a second occasion between 3 March 2010 and 3 March 2011, about two weeks after the first occasion, you raped Ms Montoya in the living room of the house.
2. On this occasion, you physically forced her to bend over the couch, and held her arms fast above her head whilst she was on her stomach and inserted your penis into her vagina from behind.
3. Ms Montoya physically resisted and verbally protested. You produced a small red pocketknife and held it to the back of her head for about 10 seconds, before putting it away and continuing to penetrate her vagina, without her consent.
4. After the offending, you walked out of the room and she urinated where she was standing.

1. On an occasion between 3 March 2010 and 3 March 2011, you raped Ms Montoya again in the living room. On this occasion, she was standing in the lounge room and you pushed her to the floor without warning, held her arms fast above her head, and penetrated her vagina with your penis. She was trying to push you off her and you responded by punching her chin with your fist, causing a bruise.

1. On another occasion between 27 May 2012 and 27 May 2013, you raped Ms Montoya at a Caravan Park in Geelong. The family were staying at the caravan park for a holiday.
2. One evening, in the bedroom where you and Ms Montoya were to be sleeping that night, you pinned her to the bed with your hands and bodyweight, pulled her pants down and penetrated her vagina with your penis.
3. Ms Montoya attempted to scream, but you covered her mouth with your hand to prevent her from doing so.
4. In 2014, after a breakdown of the relationship, you returned to live with your parents. Thereafter, the sexual offending against Ms Montoya ceased.

1. On 9 June 2023, Ms Montoya attended the Police and spoke with the Sexual Offences and Child Abuse Investigation Team (SOCIT) and participated in the taking of a Video and Audio Recorded Evidence statement.
2. On 20 June 2023, Ms Montoya engaged in a telephone conversation with you, which was audio-recorded by Victoria Police. In that phone conversation, you admitted to raping and hitting her, though no specific occasions were particularised.

1. On 24 June 2023, you presented to the police station where you were arrested and interviewed. In the recorded interview, you admitted to having raped and hit Ms Montoya several times but were unable to recall any occasion in detail.

1. All four of the charges are in my view, very serious examples of penile/vaginal rape. As has been conceded by Mr Barreiro who appeared on your behalf, the victim Ms Montoya was clearly not consenting. The agreed facts make clear that she protested both physically and verbally on each of the occasions that the rapes occurred. Notwithstanding your cognitive deficiencies, must clearly have understood that Ms Montoya was not consenting.
2. The rapes were violent beyond the inherent violence in the crime of rape.

You held Ms Montoya's hands and restrained her. The first three rapes occurred in Ms Montoya's own home whilst the children were present, where she was entitled to feel safe. As submitted by the Prosecution counsel, Mr Brown, you should have protected Ms Montoya from harm, but instead, was the perpetrator of harm. 3. The facts before the court are that on each of the occasions, through fear and trauma, Ms Montoya urinated at the time of being raped. This of course meant that there was an added degree of humiliation in the course of the crimes being committed. 4. The second and third charges have additional aggravating features. In relation of the second charge, you held a pocket knife to the head of Ms Montoya for some ten seconds while raping her. In relation to the third charge, you punched her on the chin in the course of committing the rape. As is conceded by Mr Barreiro, these were objectively serious instances of what is a serious crime, being the crime of rape. 5. Ms Montoya has prepared a victim impact statement which she read to the court. In it she eloquently and movingly conveys to the court the impact these crimes had on her, all these years later of the offending. She describes herself in the document as a 43 year old mother who is unable to say the name of her former husband. She states:

'All I dreamed for in my life was to married in a happy, loving relationship. Have a family, a job and a nice home. I wasn't expecting to live in fear, to be violated by someone I trusted where I needed to choose fight or flight. I felt scared, a traumatic experience for the rest of my life. I didn't ask for this. No one deserves to experience this trauma. I was scared to be touched. I was frightened to fall in love and having a relationship again triggers the trauma from the past. Because of you I'll be living with this trauma for the rest of my life'.

6. I take into account the impact of the offending on Ms Montoya in my assessment of the appropriate sentence in this case.

1. Turning to matters of mitigation, there are some significant issues that impact on the ultimate sentence to be imposed. There is the plea of guilty which in this case is accompanied by full admissions in the record of interview and also during the course of a pretext call. The plea of guilty was an early one, although it was not recorded as a guilty plea at the Magistrates' Court, it appears that was because of some confusion in relation to some other charges which have subsequently been withdrawn. I accept that it was a plea at the earliest opportunity.
2. I also accept in the circumstances of this case that the plea of guilty is evidence of genuine remorse on the part of you. That it is consistent with what you said in the record of interview and the pretext call. I note from the report of Dr Anderson a clinical neuropsychologist who examined you, that because of your cognitive limitations, your lack of insight to some extent and empathy for Ms Montoya. Within the limits of those matters, I accept that there is genuine remorse on you part.

1. I have already touched on the issue of your intellectual disability and it is important to turn to that now because, in accordance with sentencing principle it assumes significance in a sentencing exercise such as this. It is necessary to refer in some detail to the reports that have been provided to the court.
2. Starting with the report of Dr Laura Anderson clinical neuropsychologist dated 6 November 2025.[4] Dr Anderson informs the court that she assessed you on 3 October 2025. That examination was face to face, in person and proceeded for three and a half hours. Dr Anderson refers to the gold standard standardised psychometric measures of cognition. In her report, Dr Anderson notes that 'Testing revealed a full scale intelligence quotient score of 64, placing

[you] at the first percentile and within the extremely low range for [your] age'.[5] 3. Dr Anderson opines that 'This is considered a severe departure from neurotypical levels of functioning and is consistent with a level of general intellectual functioning expected for an intellectually disabled person'.[6] 4. Dr Anderson describes you as 'a man with quite limited insight regarding [your] current circumstances'.[7] Dr Anderson explains that;

'[Your] underlying neurodevelopmental disorder, intellectual disability means that [your]s independent functioning is significantly and obviously impaired across all facets of everyday life. This is evident in [your] apparent difficulty attaining and maintaining employment, even in supported disability settings. As well [your] need for external support to secure and maintain stable accommodation in the community'.[8]

5. Dr Anderson confirms her diagnosis of an intellectual disability of mild severity. She points out that it is a lifelong neurodevelopmental disorder which is untreatable and will remain stable over time.[9]
6. Dr Anderson was asked whether the condition makes you disinhibited or whether it affects your ability to understand the wrongfulness of your actions. To that question she responded 'Yes, as I have outlined, [your] general cognitive functioning, as well as most facets of [your] executive functioning are significantly reduced'.[10]
7. Dr Anderson states;

'Based on [your] current clinical presentation and [your] level of cognitive impairment, I hypothesise that [you are] likely to experience difficulty moderating [your] emotional and behavioural impulses. Understanding some of the more nuanced components of consent. And may not fully appreciate the wrongfulness of some aspects of [your] behaviour. All of these factors may well have, to some extent, have been relevant contributing factors to [your] alleged offending behaviour'.[11]

8. Dr Anderson goes on to express her opinion that your condition would be likely to affect adversely your ability to cope with imprisonment. She notes that '...Individuals who experience disability frequently experience high rates of restrictive practices and isolation in custodial sentences, compared to neurotypical individuals'.[12]
9. She expresses her view that '...[you] certainly fall into [the] cohort of individuals who are vulnerable and more likely to find it difficult to cope with imprisonment'.[13]
10. She considers it '...extremely likely that [you] will experience a functional decline in [your] independent living skills as a result of an extended period of imprisonment'.[14]
11. Finally, addressing the question of future risk. Dr Anderson states that it's slightly outside of her scope as a clinical neuropsychologist to comment on questions of rehabilitation and considers this falls within the domain of a forensic psychologist. However, she considers it necessary to point out to the court that, neurodevelopmental is not criminogenic risk factors.[15]
12. She goes on to say that:

'The mere fact that [you] demonstrate neurodevelopmental and cognitive dysfunction does not directly increase [your] likelihood of engaging in offending behaviour. Rather, it is the unique combination of [your] associated functional impairments and social circumstances that have seemingly contributed to [your] engagement in the alleged offending behaviour'.[16]

13. The second report before the court, which I will refer to more briefly is a report from Dr Dion Gee, a forensic psychologist.[17] His report is based on an extensive four hour assessment of you which took place on 8 November 2024.
14. Dr Gee's view is consistent with that of Dr Anderson, in that you fulfill the diagnostic criteria for disorder of intellectual development: mild, deferring to a comprehensive neuropsychological evaluation for confirmation of that.[18]
15. Dr Gee discusses the impact of the condition on your offending behaviour:

'...[you] did not attempt to refrain from offending, but rather failed to control [your] behaviour; responding rapidly to situational queues based on cognitive and behavioural scripts (which continue to be somewhat outside [your] immediate attention or control that support and facilitate sexual offending'.[19]

'To a lesser degree, [you] also demonstrate intimacy and social skills deficits and cognitive distortions that make [you] vulnerable to act out in an aberrant manner (expressed through diminished social moral reasoning, difficulties with perspective taking, reduced consequential thinking and compromised victim empathy).'

17. Finally, as pointed out by Mr Barreiro in his submissions, Dr Gee concludes that;

'[You] currently presents with a low-moderate risk of reoffending sexually in the future. Along with a low to moderate risk of intimate partner violence. Meaning that [you] are somewhat less likely than the typical convicted sexual/violent offender to reoffend'.[20]

18. The most likely risk scenario identified by Dr Gee is:

'...[A]t this time it is most likely that if any risk of sexual violence posed by > > [you] were to re-occur, it would specifically be in regard to aberrant sexual contact with those with whom [you] has an enduring relationship. Albeit with this risk currently seeming to fall within the low to moderate range'.[21]

19. Finally, Dr Gee expresses opinions that are very similar to Dr Anderson's about the likely impact of a period of incarceration on you: '[You] will most likely present with an increased risk of deterioration in [your] mental state'.[22] Dr Gee does point out that '...any decline must be balanced against [your] capacity to access psychiatric service provision within a custodial setting'.[23]

1. In terms of your personal circumstances, they are helpfully summarised in the written submissions that have been provided to the court on your behalf. I note briefly that you were the youngest of two children, with a brother seven years older. Your upbringing was described as supportive. You found schooling difficult and required the use of integration aides. You were always behind your peers at school and suffered some teasing as a result but were able to complete Yeah 10.
2. You participated in some training in carpentry and joinery but have never been able to obtain gainful employment. You have been in receipt of a disability support pension for most of your adult life as a result of your limited intellectual functioning. As noted, you had four children with Ms Montoya. You only maintain contact with one of the children. You returned to live with your own parents after the relationship with Ms Montoya broke down.
3. Presently, you are in a long term relationship with a woman. You have been together for the last three and a half years. You are presently living in rental housing and receive some assistance with payment of bills. The court has been informed that your current partner supports you and I note that she has been at court through a number of the hearings. You remain close to your parents but have a limited social life.

1. Turning to the sentencing principles to be applied in this case. As noted, rape is obviously a very serious criminal offence attracting a maximum penalty of 25 years' imprisonment. These were serious examples of the offence.
2. I note that the serious offender provisions apply as part of the sentencing exercise. In summary, pursuant to section 6A of the Sentencing Act 1991 (Vic) ('Sentencing Act'), the serious offender regime applies. Each of the rapes are serious sexual offences within the meaning of the Sentencing Act. Which means that in the event you are sentenced to a term of imprisonment in relation to Charges 1 and 2, you falls to be sentenced as a serious sexual offender on Charges 3 and 4.
3. In those circumstances the court must regard protection of the community as the principal sentencing purpose. Further, every term of imprisonment imposed by the court for the relevant offending must, unless the court directs otherwise, be served cumulatively upon any uncompleted sentences imposed, regardless of when they were committed. Finally, as the sentencing judge I must enter into the records of the court at the time of sentence that the offender was sentenced as a serious offender.
4. The other important sentencing principle concerns the intellectual disability to which I have already made reference. Counsel have addressed this matter in their submissions. There is no dispute between them about the principles that are to be applied. They are best expressed in the High Court decision of Muldrock v The Queen [2011] HCA 39 and in a decision of the Court of Appeal, DPP v Stevens [2021] VSCA 218. The court summarises the relevant principles and I quote for convenience:

'As Muldrock makes clear, an intellectually disabled offender's moral culpability will in most cases be lessened - although not necessarily eliminated - due to a reduced capacity to reason as to the wrongfulness of his or her conduct. The aspects of denunciation and just punishment in a sentence appropriate for a person of ordinary capacity, will often - but, presumably not always - be inappropriate for an intellectually disabled offender (and the needs of the community). So much is consistent with what had earlier been said in Verdins. > > Moreover, in the case of an intellectually disabled offender, general and specific deterrence may - depending upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender - be moderated or eliminated as sentencing considerations. As Young CJ observed in Mooney, in the passage above cited in Muldrock, in the case of a person with an intellectual disability, general deterrence 'should often be given very little weight... because such an offender is not an appropriate medium for making an example to others'. > > The existence of an intellectual disability may also mean that a given sentence will weigh more heavily on the offender than it would on a person without the disability'.[24]

5. In my view on the material before the court, each of the principles identified by the Court of Appeal in Stevens is applicable here. That is, moral culpability is reduced, general and specific deterrence are moderated as sentencing considerations, as is denunciation and just punishment. Finally, in light of the evidence, I accept that the existence of the disability is likely to have the effect that the term of imprisonment would weigh more heavily on you than it would on a person without the disability.
6. Applying all of those principles to the case at hand, I will make the following orders.

1. On Charge 1, Rape, you are convicted and sentenced to 5 years' imprisonment.
2. On Charge 2, Rape, you are convicted and sentenced to 6 years' imprisonment.
3. On Charge 3, Rape, you are convicted and sentenced to 5 and a half years' imprisonment; and
4. On Charge 4, Rape, you are convicted and sentenced to 5 years' imprisonment.
5. The sentence imposed on Charge 2 is the base sentence.
6. I order that 9 months of the sentence on Charge 1 and 12 months on each of the sentences on Charge 3 and 4 are to be served cumulatively on the base sentence and on each other.
7. The total effective sentence is therefore 8 years and 9 months' imprisonment.
8. You will be eligible for parole after you have served 5 years and 6 months in custody.
9. There is no pre-sentence detention to declare in this case.
10. I note that you have been sentenced as a serious sexual offender in relation to Charges 3 and 4 and the records of court will record that.
11. And finally pursuant section 6AAA of the Sentencing Act, had you pleaded not guilty the total effective sentence would have been 12 years' imprisonment and the non-parole period would have been 8 years and 6 months' imprisonment.

[4] Psychological report by Dr Laura Anderson report dated 6 November 2025 ('Exhibit D2').

[17] Psychological report by Dr Dion Gee report dated 30 November 2024 ('Exhibit D1').

[24] DPP v Stevens [2021] VSCA 218, 17 [31]-[33].