DPP v Webb

1. First, I must outline the circumstances of your offending in more detail. This summary is derived entirely from the evidence given in the trial and represents the facts I have found consistent with the jury verdicts. To the extent any matters aggravate your conduct I am satisfied of those matters beyond reasonable doubt.
2. Initially your relationship with Ms Thompson was harmonious but after a while you became controlling and jealous. You described her friends as sluts and told her not to see them.
3. One day when you were visiting Ms Thompson at her family home in Springvale the two of you got into an argument. You put your hand around her throat and choked her until she became lightheaded. After a while you let go and walked away and Ms Thompson fell down on the floor. This was the first time you ever assaulted Ms Thompson. She was 14 years old. That is charge 1 - common assault.
4. The first time you ever raped Ms Thompson was when she was 15 years old. You were visiting her in her home in Springvale when you initiated sex in her bedroom. Ms Thompson told you she did not want to have sex and tried to get you off her, even putting her feet on your chest. You ignored her protests and her crying and forced your penis into her vagina until you ejaculated and then left the room. This is charge 2 - rape.
5. About an hour later you returned and said you were sorry. Even though you had behaved appallingly, Ms Thompson did not break off the relationship as, in her words:

'I loved him and he said he was sorry. And I thought it was probably, like, a one-time thing.'[4]

1. The next sexual offending also occurred in Ms Thompson's family home in Springvale when she was about 16 or 17 years old. She was on her bed, lying on her stomach, and you were on top of her trying to have sex with her. She was again crying and telling you that she did not want to have sex. She tried to make you get off her and clenched her buttocks to stop you from inserting your penis into her anus. You kept on trying until you eventually ejaculated between her buttock cheeks.[5] This is charge 3 - attempted anal rape.
2. Whilst Ms Thompson was still living with her mother in Springvale you constantly threatened her not to leave you. You would say,

'He used to tell me all the time, that if I ever left him, that he'd kill my whole family and make me watch um and sometimes he'd say he'd kill me too and other times, he'd just say that he would let me live, knowing the fact my whole family was dead and it was all my fault.'[6]

1. When she was about 17, Ms Thompson had a bad argument with her mother which caused her to move out of the family home. She did not feel she had any option other than to move into your unit in Dandenong, so she did.[7]
2. About one to two years later, when Ms Thompson was 18 or 19 years old, you raped her again. On this occasion you pushed her over the couch in your unit and held her down with one hand while removing her pants with your other hand. She told you to get off her and tried to get up but once again you ignored her protests and pushed your penis into her vagina from behind. You were not wearing a condom and continued having sex with her until you ejaculated inside her. This is charge 5 - rape.
3. Ms Thompson continued living with you until she was about five months' pregnant with your first child, Emma,[8] when she moved out of your unit and back in with her mother who by that time was living in Kilmore. This would have been about mid-2009. She was asked during the trial why she left and said:

'That was, I just had enough of everything and I didn't want to bring a daughter up in that environment, with everything that was happening.'[9]

1. After moving out, Ms Thompson maintained contact with you and invited you to her obstetrician appointments. She did this because despite your abominable behaviour she still believed you were entitled to be involved in your child's life.
2. The next incident happened when Ms Thompson was pregnant and driving you back to your place after one of these appointments. She parked a few streets away from your home to talk about the baby, but instead you took your penis out of your pants and told her to suck your dick. When she told you that she did not want to do that you did not take no for an answer. You grabbed her by the hair, put your other hand on her neck and forced her head down towards your penis. You told her that you would hurt her if she did not open her mouth and that you were going to 'break [her] fucking jaw'.[10] You pushed her head up and down on your penis until you ejaculated in her mouth and then let go of her. She felt like she wanted to throw up and got out of the car and spat. Even though it was her car you refused to get out and insisted she take you home which eventually she did. This is charge 7 - rape.
3. The next incident happened sometime after Emma was born, which was on in October 2009. You and Ms Thompson had taken Emma to Dandenong Plaza. While riding the escalator, you accused Ms Thompson of checking out another man. When she denied it, you accused her of lying and called her a slut and a whore. As you were walking towards the exit you put your hand around the back of her neck and squeezed it in a choking motion. Ms Thompson felt a lot of pain and found it hard to breathe.[11] This is charge 10 - common law assault.
4. On another occasion, Ms Thompson and Emma visited you at your unit in Dandenong. While Emma was in the loungeroom watching TV you asked Ms Thompson to come into the back bedroom so that you could talk. You both sat down on a mattress on the floor. You tried to kiss Ms Thompson but she said no. You then pushed your hands down her pants and inserted your fingers into her vagina despite the fact she was resisting (charge 14 - rape). She tried to pull your hand out and push you off her, but she could not. She told you to stop and that she did not want to, but you just ignored her. Eventually she gave up, told you to 'do whatever' and just lay there.[12] You took her pants off, put your penis into her vagina and had sex with her until you ejaculated. When you finished you got up, told her 'well, that was shit' and walked out.[13] That is charge 15 - rape.
5. In October 2011 Ms Thompson gave birth to your son, William.[14] By this time, Ms Thompson and Emma had moved into a house in Bayswater. Ms Thompson allowed you to visit because she did not want to prevent you and your children from having a relationship.
6. During one visit when William was a young baby, Ms Thompson was lying on her bed trying to put him to sleep next to her when you came into the room and started trying to have sex with her. When she told you that she did not want to do it because William was right there, you told her that William was too little to remember and proceeded to have penile vaginal sex with her anyway.[15] You did not care that William was right next to you and you did not care that both Ms Thompson and William were crying. That is charge 16 - rape.
7. Ms Thompson would sometimes take the children to visit you at your mother's house in Dandenong. During one visit some time prior to Ms Thompson's 25th birthday, you and Ms Thompson were inside watching a film with your children when her phone started beeping. You became enraged and jealous wanting to know who it was. You and Ms Thompson ended up outside where you yelled at her, pushed her up against a brick wall and choked her around her throat so hard that she was struggling to breathe. This is charge 22 - common law assault. While this was happening Ms Thompson noticed William standing on the couch looking out the window until your mother whisked him away. Ms Thompson was able to get away from you when William ran out towards the front gate, and she asked you to stop him going onto the road. Ms Thompson then got into her car and locked the doors. You yelled at her to get out of the car, but she drove away.[16]
8. Sometime later Ms Thompson returned to your mother's house to get her children. When she arrived you told her to go outside and then started berating her, asking where had she been and who had she been fucking. You choked her with both hands and then, after you had let go and she had called you a 'pussy' and said you should kill her, you squeezed her throat again even harder. She struggled to breathe and became lightheaded and dizzy. She dug her nails into your wrist until you let go whereupon you smirked and said 'Ah, you flinched. You haven't done that in a while. I missed it.'[17] You then punched her really hard in her lower stomach causing her to fall to the ground. You then kicked her twice in her side and kept telling her to get up whilst she lay there crying and holding her stomach. Eventually you helped her up and went inside to get the children. Ms Thompson was in so much pain that it was hard for her to walk and she did not think she would be able to drive. Eventually though she drove you and the children back to her house and everyone went to bed. This is charge 23 - common law assault.
9. On 31 January 2015, when Ms Thompson was 25 years old, you went to visit her and the children at their home in Bayswater. You were in the bedroom with Ms Thompson and asked her to have sex with you. She said no but again you would not listen and tried to remove her pants which she kept pulling back up. You then punched her in the side of her stomach as she was lying on her back and as she held her stomach in pain you removed her pants and forced your penis into her vagina. She kept struggling and trying to get up but you kept pushing her back down. You eventually removed your penis from her vagina and held her down while you ejaculated onto the bed. Even then you did not let Ms Thompson get up so she punched you in the face. This made you so angry you punched her in the head repeatedly even after she put her hands over her head to protect herself. As a result of your assault Ms Thompson sustained significant bruising to her left hand, left arm and the left side of her head and face. This incident is charge 24 - rape and charge 25 - common law assault.
10. After you left the room, Ms Thompson told you that she did not want you at her house and asked you to leave but you refused. Ms Thompson then texted her mother; 'get the police now'. The police and other members of Ms Thompson's family arrived just as you were leaving. Observing her injuries, the police arranged for Ms Thompson to attend the police station to make a statement and be medically examined.
11. You were arrested close to Ms Thompson's house and taken to Croydon Police Station where, as I have said, you made two no comment records of interview and were released without charge pending further investigation. As it transpired you were not charged because although Ms Thompson met with the police on a number of occasions between March 2015 and January 2016 to prepare her statement, she ultimately decided she could not proceed and the statement remained in draft.
12. Although you were not charged, the events of 31 January 2015 did cause a significant break in your relationship with Ms Thompson. Ms Thompson and the children immediately moved out of their home in Bayswater and alternated between living with Ms Thompson's mother and grandmother until they secured a new house in Wantirna in 2016 which she kept secret from you. Ms Thompson also changed her phone number. Somehow you managed to obtain her new number and started contacting her again. You told her you missed the children and wanted to see them and that you were 'trying to change'. After a while, she allowed you to meet with the children in public places like the park or the shopping centre, where she felt safe. She said that during this period you were being nice, so she let her guard down and let you visit her new home in Wantirna. Things were 'okay' at first, but pretty quickly you 'went back to doing the same things [you] always did'.[18] You were drinking all the time, and 'started... getting abusive and violent and controlling'.[19]
13. On one occasion, which would have been early August 2016, you were arguing in the doorway of Ms Thompson's bedroom when you hit her on the cheek. She called a friend to come and collect you and then you left.[20] This is charge 26 - common law assault.
14. On 15 August 2016 you were again at Ms Thompson's home in Wantirna when you wanted to have sex and she did not want to. She was on her bed and you were on top of her. You put your hand around her neck and choked her causing pain and scratches to her throat. She told you to stop and said that she thought you had changed, but you went ahead anyway and put your penis in her vagina and raped her. After one or two minutes you seemingly thought better of what you were doing and stopped. You sat on the edge of the bed and said that you were an 'idiot' and that you were sorry and left the room to have a shower. When you returned you apologised again and told Ms Thompson that she, 'should be happy that [you] stopped because the old [you] wouldn't have.'[21] You tried to hug her but she was crying and kept pushing you away. You held her so tightly that she could not get up and you eventually went to sleep. This incident is charge 27 - rape, and charge 28 - common law assault and is the last time you assaulted Ms Thompson.
15. The next morning Ms Thompson drove you to work. After she returned home, she spoke to her support worker and told her what had happened. She packed a bag for herself and her children and moved into a women's refuge. She then completed her police statements in March 2017.
16. The events I have described so far which form the basis of the charges upon which you were found guilty occurred in the context of other abusive behaviour which Ms Thompson described to the jury but was not the subject of any charges. I am satisfied beyond reasonable doubt that this other misconduct took place. In general terms it consisted of you assaulting Ms Thompson on other occasions and raping her once in Berry, South Australia in 2010 and also saying and doing things throughout the relationship to demean and assert your control over Ms Thompson. For example:
    • you continually scrolled through her mobile phone to check her communications;
    • you called her a slut and a whore and told her that she belonged to you and that you owned her and also that you could kill her whenever; and[22]
    • on one occasion when she was crying you said to her, '[my] dick is so used to fucking [you] while [you are] crying that just hearing [you] cry makes [my] dick hard' and also told her that if she did not stop crying 'something was going to happen'. [23]

1. Turning now to your personal circumstances and background which were outlined in the defence psychological and neuropsychological reports (Exhibits 3 and 5), the outline of Defence Submissions (Exhibit 1) and the Forensicare Pre-Sentence Psychiatric Report prepared by consultant psychiatrist Dr Andrew Hodder that I ordered.
2. Neuropsychologist Andrew Jackson assessed you in March, psychologist Simon Candlish assessed you in September and Dr Hodder assessed you in August, all this year. Mr Jackson and Mr Candlish both administered various tests as well as interviewing you.
3. You are a 38-year-old Aboriginal man. You grew up in Berri, South Australia and Dandenong, Victoria. You are the only child born to your parents who were apparently never in a committed relationship, and were raised by your mother. You have six half brothers and sisters. You told Mr Candlish that both your parents were heavy drinkers and that your mother physically and verbally abused you, including once holding a meat cleaver to your throat. Despite that, you said you felt loved by your mother who you believed was mentally unwell.
4. Your mother began her relationship with your stepfather when you were five or six years old. You witnessed your stepfather physically abuse your mother, but he never assaulted you.
5. You report that when you were between 10 and 13 years old there were allegations that your stepfather had sexually abused your half siblings and you were all removed from your mother's care for some time but returned due to a lack of evidence. You never saw your stepfather sexually abusing your siblings and do not recall him sexually abusing you.
6. You saw your biological father every holiday and describe him as a 'strong but fair man' who hit you on occasion but never verbally abused you.
7. As I have already said, you started seeing Ms Thompson when you were about 15 years old and together you have two children, Emma (now aged 16) and William (now aged 14).
8. You have given different accounts of your time at school, but according to what you told Mr Candlish you found school challenging and were a disruptive student who was often involved in fights. In any event, you left school part way through Year 8 and then and worked in fruit-picking and factories. When you were about 20 years old you started working as a security guard and did this for a number of years before returning to factory work which you did until 2015.
9. You started drinking alcohol at 18 years old and this quickly progressed to daily consumption increasing in your mid-twenties when you worked as a security guard. You told Mr Jackson that you were drinking up to a litre of Jack Daniels per day and two six packs of beer. By your late twenties you had the shakes if you did not drink in the morning, indicating severe alcohol dependence.
10. You started consuming methamphetamine in your late twenties and reported that you stopped working in 2015 because of your dependence on it. You have been on the disability support pension since 2015 on account of your physical and mental ill health. Your ice use continued on a daily basis until I remanded you.
11. Mr Jackson assessed you as having a full scale IQ of 83 which means you do not have an intellectual disability, but you are in the low average range of intelligence. He did not consider you to have a neurodevelopmental condition, rather your cognitive deficits, which primarily involve processing speed, attention and working memory and executive function, would have occurred over time and were likely caused by your physical and/or mental health conditions and/or drug use. Whilst it was not possible to determine your neuropsychological profile during the offending Mr Jackson opined that even if it was the same then as it is now it would not have contributed to the offending as you do not have impairments in impulse control or inhibition or which would affect your ability to understand the wrongfulness of your actions.
12. Before your remand you were living in long-term private accommodation provided by Aboriginal Housing Victoria and receiving NDIS support. You were highly socially isolated. You had no hobbies or interests and spent your days smoking cigarettes and methamphetamine and drinking alcohol. Your only support was your NDIS worker and a sister and your nieces and nephews.
13. You told Dr Hodder that you are unable to work in prison due to your medical co-morbidities but that you keep yourself busy by engaging in prison programs. You intend to join Alcoholics Anonymous and Narcotics Anonymous groups and possibly have by now. You also regularly engage with an Aboriginal Liaison Officer and attend the Cultural Hub where you have been working on various sculptural and painting activities.

1. You have a complex medical and psychiatric history and are on multiple medications for your various issues.
2. Your medical history includes obesity, high blood pressure, type 2 diabetes diagnosed in 2017, mild coronary artery disease diagnosed in 2023 and heart failure, possibly amphetamine induced, diagnosed in 2024. You told Dr. Hodder that you had not seen your cardiologist since your remand.
3. You have had multiple surgeries in the last three years, including on your foreskin and your toes. Indeed, all your toes on your left foot have been amputated, the last three in March this year, because of complications from your diabetes necessitating the use of a wheelchair.
4. Your diabetes has also caused eye issues.
5. You have osteoporosis and have suffered crushed vertebrae which cause you constant pain.
6. You have had a past stroke and possibly have impaired kidney and liver function.
7. There is a suggestion in the records that you have genital gangrene.
8. In terms of your mental health, you report a history of schizophrenia in your family and say that you have had two or three mental health related hospital admissions since 2022. You were, apparently, first thought to have drug induced psychosis but ultimately diagnosed with schizophrenia. You have been prescribed Paliperidone since 2023 and this helps to reduce the frequency and intensity of your auditory hallucinations, but they still occur. You told Dr Hodder that using methamphetamine made your hallucinations worse.
9. Given your persistent symptoms despite medication adherence and abstinence from illicit substance, Dr Hodder considered you fulfilled the diagnosis of schizophrenia, albeit the onset of your psychosis may have been precipitated by your methamphetamine use.
10. Since being on remand, you have seen the prison psychiatry service every three months.
11. You also report being diagnosed with depression by your general practitioner in your late twenties following the death of your grandmother, and having a history of suicidal ideation, suicide attempts and self-harm. You told Mr Candlish that your most recent suicide attempt was four years ago when your brother passed away. You continue to have intermittent passive suicidal ideation in custody and are prescribed venlafaxine.
12. Dr Hodder considered that your recurrent episodes of low mood, low energy, insomnia and suicidality since adolescence meet the criteria for Major Depressive Disorder.
13. Dr Hodder also considered that your history of alcohol and drug use met the criteria for a severe substance use disorder, in sustained remission in a controlled environment.
14. One of the tests Mr Candlish administered suggested you have psychopathy. Another test suggested that you have a range of problematic personality traits, (including emotional dysregulation, poor self-direction, impulsivity, self-destructive behaviour, anti-social attitudes and behaviours, egocentricity and low remorse) however, Mr Candlish also noted that your answers cast doubt on the validity of the results. He said:

'The test results potentially involve considerable distortion and are unlikely to be an accurate reflection of Mr Webb's objective clinical status'.

1. Notwithstanding those doubts Mr Candlish still found that you met the criteria of a severe personality disorder with prominent features of negative affectivity disinhibition, detachment and dissociality, comprising lack of empathy and regard for others and aggressivity.
2. Whilst noting that personality disorders cannot be diagnosed following a single clinical encounter, Dr Hodder did consider that you had features consistent with possible cluster B personality construct which was possibly relevant to your offending.
3. Further, and significantly Dr Hodder noted your 'prejudicial developmental history' including neglect and exposure to your stepfather's domestic violence and opined that:

'[Your] experience of early disrupted attachments with [your] primary caregivers, developmental adversity and possible trauma, appear to have led to impaired emotional regulation, limited distress tolerance and an early pattern of externalising behaviours, with a subsequent reliance on alcohol and illicit substances to manage such states from early adulthood.'

1. Similarly Mr Candlish considered that your early childhood meant that:

'[you] became desensitised to physical aggression and developed attitudes that violence was a legitimate means for resolving conflict. [You] experienced catharsis when acting aggressively.

In the absence of guidance and support, [you] developed problematic behaviours and attitudes. These became entrenched during [your] adolescence and young adulthood. [Your] personality impairment contributed to negativity, detachment and dysinhibition. [You] lacked empathy and regard for others. [You were] prone to negative mood and conflict. [You] commenced alcohol abuse to cope through avoidance'.

'Although Mr Webb was aware that his behaviour was wrong, his highly distorted views, egocentricity and his impaired empathy impacted on his ability to consider his actions and his thought process and manage his behaviour effectively.'

1. I accept the opinions and diagnoses of all clinicians save that the present state of the evidence is insufficient to satisfy me that you do, in fact, have a severe personality disorder.

Objective Gravity of your offending and moral culpability

1. Critical to determining any sentence are the objective gravity of the offending and the moral culpability of the offender. Rape and attempted rape are inherently serious offences. The maximum penalties of 25 and 20 years' imprisonment respectively make that perfectly clear.
2. Moreover, your rapes and your one attempted rape were serious examples of these serious offences.
3. Rape is a deeply personal crime which at the very least involves the violation of a person's body and the right to sexual and physical autonomy. It has been described by our Court of Appeal as an act of violence whether or not it is accompanied by other violence.[24]
4. All of your rapes and your attempted rape were forceful and some of them were accompanied by other discrete acts of violence or threats, whether or not separately charged. They occurred in the face of the clear opposition and distress of your victim and in the context of you continually asserting your power and control over her starting from when she was only a child.
5. Not only did you have ample time to reflect on your behaviour over the 13 years of your relationship, you actually did reflect on it on occasion, recognised that it was wrong, and then did it again anyway. It is hard to fathom how you could be so cruel and callous to someone you were supposed to love. Further, you were not only callous to Ms Thompson you were indifferent to the welfare of your children by raping Ms Thompson when she was pregnant and when your children were in the house and on one occasion when your son was in the bed next to you.
6. The maximum penalty of only five years for common law assault makes it an inherently less serious offence but again your charges were serious examples of that offence. Your modus operandi was generally to choke Ms Thompson but you also punched and/or kicked her in the head and about the body on multiple occasions.
7. The seriousness of your punching and kicking is obvious, but lest you think that choking is not serious our Court of Appeal in a case called DPP v Reynolds[25] called it out when they said:

'Choking another person into unconsciousness is a pernicious and dangerous form of violence. The risk which such conduct entails cannot be ignored when assessing its gravity. It is potentially life threatening. Within the context of domestic or family violence, choking represents a chilling exploitation of physical power or dominance'.

1. Whilst your choking did not cause loss of consciousness, the comments about choking being pernicious and incredibly risky behaviour and a chilling exploitation of physical power or dominance, are still apposite. It appears to be a matter of luck that there were not more serious consequences for Ms Thompson, who almost lost consciousness in Charges 1 and 23 and in other instances struggled to breathe.
2. In short, your assaults were repeated, dangerous and frightening acts of violence against an intimate partner starting from when she was only 14 years old and all but the first of them occurred when your children were either present or nearby.
3. As heinous as your crimes are it must be recognised that your moral culpability is tempered by your disadvantaged background and consequent psychological profile and also, in the case of your earlier offences, by your youth and immaturity.
4. I am satisfied that your disadvantaged background has directly led to your psychological profile, whether or not that profile rises to the level of a personality disorder. Your inability to control your emotions and your tendency to act aggressively were both caused by your early childhood experiences, including your exposure to violence and neglect and neither those traits nor your childhood were matters within your control. That is not to excuse your behaviour, which was appalling, but it is to recognise that you should not be judged the same as a person without those experiences who was brought up in a loving stable environment. Further, not only does your dysfunctional childhood affect your moral culpability in that general sense, it is also explanatory and/or causally connected to your offending. In other words, I am satisfied that both limbs of Bugmy apply.
5. As far as your youth and immaturity is concerned, you were only a child yourself at the time of Charges 1 and 2, and possibly Charge 3, and were relatively young for many of the later charges. Given your apology after Charge 2 (which is a rape charge), I am satisfied that you always knew your conduct was wrong, however the law recognises that young people are more prone to make ill-considered or rash decisions, may have less insight and self-control than an older person and also may not fully appreciate the seriousness or consequences of their conduct. I accept that your insight and self-control would have been somewhat impaired for those early charges and further that you may not have fully understood just how destructive your behaviour was.

1. In 2023 in a case called Skeates, our Court of Appeal spoke of the devastating impact of family violence. They said:

'The effects of family violence are now well documented. They are not confined to physical injury. Victims often feel responsible for the violence and ashamed that they were not able to prevent the perpetrator from offending. As occurred in this case, it is common for victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable... Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and long-lasting psychological trauma. As in the present case, the physical effects of the violence and its erosion of the victim's confidence can also affect their ability to participate in paid work and have other serious financial effects'.[27]

1. The victim impact statement of Ms Thompson reflects many of those observations. She speaks of her shame and guilt, her social isolation, her continuing fear of you, but more broadly her lack of trust and fear that the same thing will happen again with someone else. She has nightmares, is receiving counselling and takes medication for anxiety and depression and has been diagnosed with complex post-traumatic stress disorder and anxiety. Relaying the events in court caused her to have flashbacks and increased her anxiety. Finally, because she has had to move locations to escape you and was often not able to work, she has also suffered financially.

1. The law requires me to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
2. As Mr Grant submitted, the unique features of this case mean that the assistance provided by statistics is necessarily limited, however, both counsel referred me to a number of authorities and I have had regard to them all.
3. That said, no two cases are ever truly the same. Personal, mitigating and other circumstances always differ. Further there is no single correct sentence and sentences imposed in other cases are not binding. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

1. You have a limited criminal history apart from the matters before me.
2. During the currency of the present offending you appeared in the Magistrates' Court on three occasions. In 2010 you were fined for wilful damage and use threatening words and in 2011 you received a community based order for burglary and criminal damage to a bank. You breached that community based order and in 2013 were resentenced to a wholly suspended term of imprisonment.
3. Subsequent to the offending before me, you appeared in the Magistrates' Court for an offence of stalking, the victim being Ms Thompson. That offence occurred between February and March 2017 after Ms Thompson moved into crisis accommodation and her whereabouts was supposed to be unknown to you. You contacted her multiple times by telephone and either breathed heavily into the phone or left messages implying you knew where she was. Ms Thompson was very concerned you were going to arrive at her front door and hurt her. You were given an adjourned undertaking for that offending.
4. Given your plea of not guilty, it goes without saying that you have shown absolutely no remorse or insight for what you have done to Ms Thompson. More than that, you told Dr Hodder when you met him in August this year that the charges were nonsense and that Ms Thompson only made the allegations after she learned of your infidelity.
5. Whilst you have no forensic history of violence, you did disclose to Mr Candlish a long history of interpersonal aggression against known and unknown males, including serious assaults often when substance affected. You also disclosed experiencing violent ideation. He assessed you as falling in the moderate to high-risk category for sexual offending against an intimate partner and the high-risk category for violent offending against a male or intimate partner.
6. Whilst noting that there were no signs of imminence in relation to either form of offending, sexual or violent, Mr Candlish also observed that the risk of imminence would increase if you were to resume consuming illicit substances, experience instability or psychiatric decline or fail to take your prescribed medication. Obviously, they are all scenarios liable to arise upon your release from prison.
7. Whilst your various medical issues might reduce your risk of offending, I am not satisfied they are such as to eliminate it altogether, particularly in the case of future intimate partners where other factors besides brute strength come into play. Certainly, Mr Candlish's assessment was made with knowledge of your physical issues. Your psychological profile, possible personality disorder and denial of offending are all very concerning. All up, I consider your prospects of rehabilitation to be fair at best and only that good because of your physical infirmities, not because of any choices you might make.

1. There has been a considerable delay between the date of your arrest in February 2019 and this sentence. I take into account that during this time you have had the worry of this matter hanging over your head. I also take into account that during this time you have not reoffended.
2. The almost three year delay from your arrest in February 2019 until you were charged in January 2022 appears due to police inaction, inaction which ceased once the present informant, Detective Martin, took over the investigation on 11 June 2021. No doubt COVID also had a role to play but in any event that delay was not in any way attributable to you and in that sense was unfair and mitigatory.
3. The delay that occurred after you were charged in 2022, although lengthy, could not really be considered exceptional in circumstances where you exercised your right to contest the charges and certain aspects of the evidence, including by way of a contested committal and interlocutory appeal. This delay was not the fault of the prosecution, nor the administration of the courts. It is not a question of blaming you, it is rather a question of whether the delay was relevantly unfair to you, and I am not satisfied that it was in the circumstances. Accordingly, the mitigatory effect of this part of the delay is not great.
4. I do not consider the delay from your arrest in January 2015 to be mitigating. You were not then charged and whatever worry you may have had about being charged was not enough to stop you tracking down Ms Thompson, later reconciling with her and then committing further offences against her. Similarly, whilst the delay of almost two years between Ms Thompson signing her two statements in March 2017 and you being arrested in February 2019 is unsatisfactory there is no evidence that you were aware she had signed these statements or that you might be charged.
5. Finally on the topic of delay, Mr Lewis submitted there is an additional way in which the delay in this case is relevant and that is if Charges 1, 2 and possibly 3 had been prosecuted promptly you would have been dealt with under a sentencing regime much more favourable to you. I accept that if those charges had been dealt with in isolation and promptly it is much less likely that you would have received a custodial sentence and certainly not one in an adult prison. However, the fact is those charges were not committed in isolation. You kept offending well into adulthood. So, whilst I do take into account the lost opportunity there is little I can make of it in the circumstances.

1. In determining the appropriate sentence I must consider how a term of imprisonment would be likely to impact you, particularly given your cognitive and psychological profile and physical ill health.
2. I accept that your time in custody will be harder because of your medical comorbidities. The evidence is less clear in relation to your mental health and cognitive functioning with both Mr Jackson and Mr Candlish noting various benefits conferred by the structured prison environment albeit Mr Candlish also referred to you as having an increased risk of suicidality and being mentally impacted by your medical conditions. Dr Hodder simply expressed the view that your mental health and adverse developmental history may make prison more burdensome, although he also referred to your risk of suicide and the limitations your medical conditions may pose to properly treating your mental health.
3. Suffice to say I am satisfied that the combined effect of your mental ill health and medical ill health does mean that prison will be harder for you than other prisoners and I take that into account in fixing your sentence.
4. As for whether any of your conditions are likely to deteriorate in the prison environment so as to enliven Verdins limb 6, or its equivalent in relation to your physical health, I am not satisfied that is the case. In terms of your mental health, all that Mr Candlish said is:

'Mr Webb is at greater risk for suicidality and self-harm in the event that he receives a lengthy prison term. His personality disorder is severe in nature and will not increase in severity. His characterological negative affectivity, combined with low mood could[28] lead to a deterioration in his mood and the manifestation of a depressive disorder. He does appear to be responding to psychotropic medication, however.'

1. This falls well short of what is required to enliven limb 6 which is not only that the risk of deterioration will be serious but also that the decline be significant.[29]
2. In terms of your physical health, Mr Lewis argued that you have been receiving inadequate care in prison and that that has had a deleterious effect on your health. There is no doubt you have complex medical issues which would be hard to treat in any environment. However, I am not satisfied that your conditions have significantly worsened because of your incarceration and nor am I satisfied that this is likely to happen in the future.

1. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
2. Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality.
3. In your case those general sentencing principles are qualified by some specific sentencing provisions applicable to your charges of rape and attempted rape. What those provisions mean is that given I will be imposing terms of imprisonment on Charges 2 and 3, once I come to sentence you on Charge 5, you will be a serious sexual offender. That means in respect of the sentences for rape from Charge 5 onward I am required to consider protection of the community as the principal sentencing purpose and am entitled to impose a disproportionate sentence to achieve that purpose. Further, your status as a serious sexual offender gives rise to a statutory presumption of cumulation of individual sentences for the rape charges. The law says the more serious the overall offending the more that presumption operates to moderate the principle of totality.[30]
4. Even without those provisions your offending clearly warrants a substantial term of imprisonment. The prosecution has not submitted that a disproportionate sentence is necessary, and I am satisfied even having regard to the fact I consider that you are a risk of reoffending, that I have enough sentencing discretion to achieve the purpose of community protection in your case without imposing one.[31]
5. Similarly, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation of each sentence on the rape charges, especially given two of the rape charges occur on the same occasion (that being Charges 14 and 15). Indeed, I consider substantial concurrency of sentences is necessary to avoid a crushing and wholly disproportionate sentence and 'otherwise direct' to give effect to my orders.
6. In fixing the individual sentences for the rapes I have taken into account the context in which they occurred whilst being careful not to doubly punish you, nor to sentence you for crimes with which you have not been charged.[32]
7. The courts have repeatedly emphasised that general deterrence and denunciation are paramount sentencing considerations in sentencing for sexual offences and in sentencing for crimes of family violence. Your crimes fall into both categories. In your case there is also clearly a need to specifically deter you and to protect the community.
8. Of course, my sentence must also be just. It must reflect your mitigating factors and as far as possible promote your rehabilitation by the fixing of a non-parole period. Further, your disadvantaged background and psychological profile requires that there be some moderation of the principle of general deterrence.

1. Weighing up the competing considerations as best I can you are convicted on each charge and sentenced to terms of imprisonment as follows.

Rape, contrary to s 38(1) of the Crimes Act 1958.

Attempted rape, contrary to s 321M and s 38(1) of the Crimes Act 1958.

Rape, contrary to s 38(1) of the Crimes Act 1958.

Rape, contrary to s 38(1) of the Crimes Act 1958.

Rape, contrary to s 38(1) of the Crimes Act 1958.

Rape, contrary to s 38(1) of the Crimes Act 1958.

Rape, contrary to s 38(1) of the Crimes Act 1958.

Rape, contrary to s 38(1) of the Crimes Act 1958.

Rape, contrary to s 38(1) of the Crimes Act 1958.

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

• Pursuant to s 6F, sentenced as a Serious Sexual Offender in respect of charges 5, 7, 14, 15, 16, 24 and 27.**

1. That makes a total effective sentence of 14 years and six months, or 174 months and in respect of that sentence, I set a non-parole period of 10 years. That is the earliest time at which you may be released, Mr Webb. It is up to the Adult Parole Board as to whether you are released at that time.
2. Pursuant to s6F, I declare and direct that it be entered in the records, that you are sentenced as a serious sexual offender in respect of Charges - sorry, I wrote this down, 5, 7, 14, 15, 16, 24 and 27, they being all the rape charges from Charge 5 onwards.

1. I declare that you have served a total of 485 days, not including today, in custody already in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.
2. So, Mr Webb, the total effective sentence, as I have said, is 14 years and six months, with a non-parole period of 10 years. Just put up your hand if you understand what I have said. All right, thank you.
3. Now, are there any matters any counsel wish to raise with me?
4. MS GILLIS: No, Your Honour.
5. MR LEWIS: No, Your Honour.
6. HER HONOUR: And can I thank you Mr Lewis, and Mr Grant's not here, for your assistance in this matter, which has been a complex sentencing exercise and you Ms Gillahan as well.
7. MR LEWIS: That's much appreciated, Your Honour, thank you. Can we leave the link open for a minute or two?
8. TIPSTAFF: Yes I can.
9. MR LEWIS: As the court pleases.

[3] Section 5(2) of the Sentencing Act 1991.

[24] DPP v Mokhtari [2020] VSCA 161 at [41]

[25] [2022] VSCA 263 at [80].

[26] I am required to take into account is the impact of your offending on your victims and their personal circumstances - Section 5(2)(daa), (da) and (db).

[27] Skeates (a pseudonym) v The King [2023] VSCA 226

[29] Nguyen v The King [2023] 210 at [16].

[30] DPP v Bales [2015] VSCA 261 at [38] ff and Mush v The Queen [2019] VSCA 307 [89] to [91].

[31] DPP v DDJ [2009] VSCA 115 at [29].

[32] In accordance with the discussion in DPP v Ierardo [2024] VSCA 181 at [115] ff.