DPP v Whitlock

pre-recordings proceeded on 29 November 2022 and we finished up with Ms Murray on 2 December 2022 and then broke for the weekend. 7. It was however by then quite apparent that if we empanelled a jury, we were unlikely to be able to finish the trial before Christmas so rather than actually empanelling a jury, we decided to continue on with some other pre-recordings. Things then 'ran off the rails' at that point on 5 December as concerns were raised for the first time by Ms Strugnell as to your fitness. We went no further with the pre-recording and the matter was adjourned off to late April 2023 to permit a defence expert report to be obtained on that issue. It was, you were judged by the defence expert to be fit to stand trial and the issue went away, or so I thought. Of course we had to select a trial date suitable to all of the parties, we did, selecting 5 February 2024 as a trial date, and even though I supervised the matter with a late mention being called in December 2023 to ensure that everything was ready to go, in January 2024, whilst the Court was in recess, the issue was once again raised by the defence. That then required further investigation. 8. I will not set out the full dreadful chronology. Ultimately, there was a fitness investigation with a number of witnesses called. That proceeded earlier this year. I found you were fit, we empanelled a jury and we got on with the trial, with the pre-recording's played and some other witness called live before the jury. 9. Upon verdict, your counsel applied to adjourn the plea to get yet a further report and that has now been obtained. 10. The plea was then conducted on 29 May. On that day there were four other charges on a separate plea indictment filed before me. You pleaded guilty to those four charges being two charges of persistent contravention of an Intervention Order and two charges of contravening such an order intending to cause harm or fear. That itself has something of a history for Charges 3 and 4 had been included in an earlier trial indictment and you had pleaded guilty to them right back in November 2022 when you were then arraigned on that original trial indictment. At that stage those matters to which you had pleaded guilty were severed off and I was told then by your counsel that you intended to plead guilty to two other charges and those two other charges are Charges 1 and 2 on this recently filed plea indictment. 11. On 29 May 2025, that plea matter was opened to me with an agreed summary dated 5 May 2025 which was marked as Exhibit A. We completed the formalities by having your prior criminal history put to you and admitted, and by the taking of your personal particulars. 12. You are now 46 years of age and have admitted a lengthy enough prior court history with a number of instances of breaching Apprehended Violence Orders up in New South Wales. I do note there is some duplication of those matters so they are not as recent or as frequent as they might appear at first blush upon looking at the criminal history. 13. The maximum penalties for the matters that I am dealing with are 25 years' imprisonment for the rape charges and 10 years' imprisonment for the sexual assault charges and the criminal damage charge. The four Intervention Order matters on the plea indictment each have a five year maximum prison term. 14. Each of the rapes are Category 1 offences where a custodial sentence is required. That is in this case purely academic. Irrespective of that provision, there could be simply no alternative to prison as was conceded by Ms Strugnell who appeared on your behalf. 15. Given the commission date of the rapes, they are each covered by the standard sentence scheme. The standard sentence for rape is 10 years. Further you will fall to be sentenced as a serious sexual offender by the time of the fourth sentence on the trial indictment, as that is in fact the third sexual matter. That has a number of ramifications, and I will discuss those later in my reasons. 16. Let me turn as briefly as I might then to the sentencing facts here.

1. On a guilty plea, there is usually a written statement as to the facts presented to the court. Most often these days it is an agreed statement as between the parties and of course that is the position here for the plea indictment, as I have mentioned.
2. For those four charges, I sentence in accordance with that agreed summary dated 5 May 2025 and marked as Exhibit A. That is simple enough then.
3. There is of course no agreed factual statement for the trial matter. In a trial setting, what happens is witnesses are called, and the evidence is then placed before a jury. That is what happened here but with the bulk of the evidence being the

pre-recorded evidence from the earlier hearing in late November and early December 2022. That evidence included the Video Audio Recorded statements of some of your children. There were also a number of exhibits. 4. On some occasions following a trial, it is actually not that easy to determine the factual basis of sentencing. 5. Of course, a guilty verdict will always signify that the jury was satisfied beyond reasonable doubt as to the proof of all the elements of the offence. That finding however may not necessarily convey an acceptance by the jury of some of the factual allegations that have been placed before them. 6. A judge in my position is always required to interpret the verdict and importantly, to sentence consistently with the jury verdict. For any matter of aggravation, I must be satisfied of it beyond reasonable doubt. 7. Ms Strugnell who conducted the trial on your behalf conceded there are no difficulties in interpreting these verdicts and that concession was well made. 8. Given these verdicts, the jury has plainly accepted that Georgia Murray, at the time of giving evidence, the complainant, of course now she is the victim given these verdicts, was a witness of truth in the critical areas. They have accepted beyond reasonable doubt her description of the events on the occasions covered by the indictment charges. The jury has accepted her account beyond reasonable doubt as to the happening of these seven sexual acts on these three occasions. They were satisfied beyond reasonable doubt that you damaged her property with the requisite intent (Charge 2), that you touched her sexually in the way alleged in relation to Charges 4, 5, 6 and that you raped her in the manner particularised in relation to Charges 1, 3, 7 and 8. 9. As to the sexual matters, it follows then that they accepted her account that each act took place, that she was not consenting and that you at the time had no reasonable belief that she was consenting. On the evidence before me, I am satisfied beyond reasonable doubt that you knew she was not consenting.

Ms Strugnell accepted that that was the correct position. 10. The jury verdicts of course were based on the assessment that they, the jury, made of all of the evidence placed before them in the course of the trial. 11. The evidence as to what took place within that house or in the driveway, or at the Lamplighter motel in the motel room, or at the door of the car was led from

Ms Murray. That was the pre-recorded evidence from the late 2022 pre-recordings that I have mentioned. 12. You did not give evidence at trial, as was your right. There were some lengthy police interviews where you denied any of the acts and in fact denied even being at the motel. That position altered before the jury. 13. Your interview denials have of course been rejected beyond reasonable doubt by the jury. 14. At trial, there was no dispute that you had previously been in a domestic intimate relationship with Georgia Murray. There was no dispute that together you had a number of children and that the relationship had broken down. There was no dispute at trial that you attended at the Lamplighter motel on 19 July 2018. You through your counsel denied that there was any sexual activity at all with Ms Murray on that occasion or that she even went up to the room. You denied engaging in any sexual activity on any of the occasions alleged in the indictment. So whilst you admitted attending at the Lamplighter Motel on 19 July 2018, you denied any sexual act. Whilst admitting that you attended at Ms Murray's home on 19 December 2019 at around 5 or 6 pm, you denied attending late at night at 11.30 pm and denied that there was any sexual activity at all. As to the driveway incident the subject of the first charge, you denied that event altogether. 15. So through your counsel, you denied engaging in any of the sexual acts alleged, either the one falling sometime between March 2018 and July 2018, so that driveway incident I have just described, the one at the Lamplighter motel on 19 July 2018 and the various acts said to have taken place upon your attendance at Ms Murray's home on the evening of 19 December 2019. 16. As to the criminal damage alleged to have taken place on the day of the Lamplighter motel incident, you did not deny causing damage to Ms Murray's car but disputed through your counsel that it was intentional**.** 17. You were not raising any aspect of Ms Murray consenting to any of these sexual acts or your having any belief in such consent. The happening of each act was hotly in dispute. That was the matter in dispute in this trial. 18. Plainly then the jury was satisfied of her account beyond reasonable doubt. They accepted her as a reliable and truthful witness when she gave her account of what you had done to her on these occasions in question. I am not at all surprised. She was an excellent witness. The acts took place in the manner described. She was not consenting, and you knew that. 19. I see no need to trawl my way through the evidence in great detail. Ms Murray gave evidence very much in accordance with the way the matter was summarised in the Crown further amended summary dated 29 November 2022. The factual basis of sentencing is hence adequately summarised in that amended summary of prosecution opening for trial. 20. By way of brief summary, Ms Murray was born in 1971 and she would have been between 47 and 48 years of age at the time of these events. She was living at [address redacted] in Cheltenham. You were younger, born in 1979 and so you were between I think 39 and 40 years old at the time. The two of you had originally met up in Wagga Wagga and you had been in a relationship for a number of years commencing in the early 2000s. There were six children of that relationship as at the time of these events. You had separated in around 2012 but continued to see each other in a social capacity up until around 2015. The sexual component stopped in around that year, 2015. Nothing much hangs on that in terms of the precise time that the sexual component stopped. She relocated to Melbourne with the children. You came to Melbourne as well, though by then, undoubtedly the relationship had ceased 21. Charge 1 on the indictment is a charge of rape by penile/vaginal penetration which took place in the driveway of her home. You attended at her home at night in that between dates period sometime between March and July 2018. The five youngest children were home. You stayed for a visit and you then ignored requests that you leave the house. Ms Murray exited the home on the pretext of getting a charger for her phone from the car. That really was done in the hope that you would be enticed to actually leave her home. You did and as she reached into the car, you grabbed her from behind and then you raped her in the manner described. In the course of that act she was saying 'no, no don't'. She was physically resisting you and your endeavours to pull her clothes down. You manhandled her and you forced yourself into her from behind and penetrated her vagina with your penis. This was in the driveway of her house up against the car sometime after the children had gone to bed. They were told to go to bed at about 8 or 8:30 but she did not know how long you had stayed in the house before she went to get her charger out of the car. Despite being told to stop, you did not and you completed the act, ejaculating just below the entrance of her vagina. It was an unprotected act and it was one that was completely unwelcome, as you well knew at the time. 22. The second incident took place later that year on 19 July 2018. You were homeless and you rang her and told her that you needed somewhere to stay. You demanded that she bring a sleeping bag and some food. She agreed to meet you but she brought your oldest son with her. She met you so as to avoid you coming to her home but also because she still had some concern for your predicament. She met you at a service station. You essentially ordered her to take you to a motel. She did. You refused to get out of the car. You were not in a pleasant mood, that is for sure and continued making these demands. She responded to your threatening conduct by at one point locking you out of the car. I am not dealing with any sort of threats by the way. I am not sentencing you for that, that was merely the context for what then took place. For you damaged her door handle, pulling it off, and obviously the jury was satisfied beyond reasonable doubt that you did that with the requisite state of mind, hence the verdict on Charge 2 (Criminal Damage). You got back into the car and she drove you to the Lamplighter motel where she paid for your accommodation. She returned to the car but you simply would not leave and eventually, in desperation, she relented, believing that you would not leave unless she briefly went up to the room with you. She said she was going up but that she had to go back to the children. The children were still at home, other than the one who was out in the car. 23. Upstairs, you pulled her into the room forcibly. You then raped her. She was saying 'no' and 'stop, I don't want to'. You pinned her down. You pulled down her pants and underpants. You overcame her physical resistance, forced her legs apart and penetrated her vagina with your penis, ejaculating within her without any protection. Your interview account of not being to that motel was of course quite absurd given the abundant independent evidence on that topic (see Exhibits M-P) and even though that denial was abandoned before the jury, the suggestion floated in cross examination that she had not actually been up to the room was looking very sick and sorry indeed given the unerringly accurate description of the interior of that room that she provided. She had been inside that room as you had in fact pulled her into that room and raped her within. She attended a doctor in August for testing for blood borne viruses. 24. The final incident was on 19 December 2019. By this stage there was a full family violence intervention order in place. See the particulars on the plea indictment charges and paragraph 4 of the Summary of Opening for Plea dated 5 May 2025. The Order meant nothing to you. You turned up late at night at her home, unannounced and unwelcome. As one of the boys let the dog in through the back door, you swept in that back door opportunistically. You were told directly by Ms Murray that you were not allowed to enter and that you needed to go. You just ignored her. You spoke with your son Kevin[3] who was still up and he was soon sent to bed. You were asked to leave again. You just refused. 25. You then sexually assaulted her in a brazen fashion in the kitchen trying to pull down her underpants (Charge 4). You were manhandling her and overcoming her verbal and physical resistance. You forced her onto your lap, onto your erect penis which she could feel through your clothes (Charge 5). There was a struggle, she freed herself and she ran to the bedroom to call for help on her phone. 26. You followed her and then raped her in that bedroom forcibly. Prior to that rape, you had pushed your exposed erect penis towards her mouth (Charge 6). She was slapping and punching you. You were manifesting your jealousy asking her some really quite bizarre questions about other male friends, including one person who had been dead for many years. She thought you were affected by drugs but to avoid any prejudice to you, that opinion, that evidence, was not before the jury. You pinned her down and she was saying 'no', she did not want this, 'no'. You forced your fingers into her vagina hence Charge 7, the charge of digital rape. Your fingernails hurt her. You then inserted your penis into her vagina and forcefully penetrated her until you ejaculated inside her body. It was plainly, from the evidence before the jury, a very lengthy event. 27. She was resisting you. She was saying 'no stop' but she could not risk having the children come in and see what was happening. 28. She was bleeding and experienced pain in the days after these events. 29. She complained about this incident in early January 2020 and sought testing for sexually transmitted diseases. 30. The summary of prosecution opening gives a very brief summary of your police interviews. You purported to have no interest in her and told the police you wanted her out of your life. You were reversing the true position of course. The other material placed before the jury spelt out your almost obsessional desire to continue with the relationship, whatever her attitude. You denied raping her anywhere. You denied any of these acts. As I have said, you denied even being at the Lamplighter motel ever. 31. The summary sets out the sequential way in which Ms Murray reported matters at different times and explains why there were multiple police interviews conducted, not all of which were placed before the jury by the way. 32. I have said already, this jury was satisfied beyond reasonable doubt that each of these acts took place in the circumstances described by Ms Murray. That was conceded to be the position by Ms Strugnell. They were satisfied beyond reasonable doubt that she was not consenting and satisfied beyond reasonable doubt that you held no reasonable belief in her consent. As a matter of law, that final element can be established in one of three ways. I am satisfied beyond reasonable doubt you believed she was not consenting. In fact of course, you knew she was not. She was conveying directly by word and by deed her complete lack of consent and her complete unwillingness to engage in any of these sexual acts. You knew that. You just ignored her protests. You simply overcame any physical resistance that she presented. She was challenged in the course of cross‑examination as to essentially being a liar with a motivation to lie, being a strong desire to keep you away from the children. What they the jury were not awake to was the supervised access visit which had taken place a couple of days before and your later breach that day of the intervention order in the terms described in the plea summary now placed before me. They were not awake to the full history of breaches of orders by you over many years, those ones up in New South Wales. Keeping you away from the children was plainly not in her make up or her charter as she tried to make clear. Indeed, she was still prepared to assist you, and she described how she would keep items in her car for you in the event that you rang in some position of need. She was undoubtedly sick of your interventions in her life but she still recognised that you were the children's father and she was not trying to cut you out of their life at all. You have succeeded in doing that yourself owing to your violent and persistent conduct. 33. The suggestion was made on your instructions that she had not been up to the motel room. There was a regrettable selective use of photographs by your counsel, challenging the witness as to the absence of a microwave oven from the curated photographs. That item was in fact captured in other photographs not shown to Ms Murray as became clear in re-examination. You well knew that she had been up in that room. You well knew you had dragged her into it and you well knew you had raped her within. 34. You are completely remorseless. 35. So much then for my summary of the offending. Greater detail can of course be found in the trial evidence. 36. However I see no need to go into more detail as to the facts here, as there is simply no controversy as to what these verdicts mean or the factual basis of sentencing on the trial indictment. Nor do I see any need to go into the detail of the agreed plea indictment summary. I sentence pursuant to those agreed facts. The communications referred to spell out your obsession or infatuation with Ms Murray and your complete lack of preparedness to accept that she did not want any intimate relationship with you. Charges 1 and 2 on the Plea indictment connect up with the events the subject of Charges 4 and 8 on the trial indictment with a breach of the intervention order a couple of days before 19 December and one breach on that day itself. Charges 3 and 4 relate to the later conduct and the communications that are referred to in the exhibits which were tendered. That conduct postdated being interviewed by the police for some of the sexual matters. 37. I turn then to the impact of the crime.

1. Ms Murray has read her impact statement aloud. It is marked as Exhibit B on the plea. I have read it again myself since the plea and I do not intend to traverse every aspect of that impact statement in my remarks; it is very detailed. I do not let the impact of the crimes swamp my due consideration of the many other matters which of course I am required to take into account in the exercise of my discretion.
2. Put simply, the impact of your crimes has been vast. Your crimes have hugely impacted on every aspect of her life; emotionally, physically, financially and socially. You have changed her world. You have changed her outlook on life. You have deprived her of feelings of safety, security and confidence. She struggles with feelings of fear and insecurity. She feels a sense of shame and unworthiness. She has no reason to, these crimes were yours, but she just cannot help the way she feels. Her view of herself has been very badly dented. She descended into homelessness with her children so she could be safe. She questions her abilities and struggles to look at herself in the mirror; when she does, she sees sadness, pain and ugliness reflected. She keeps the blinds closed and questions her ability to open the front door or to admit visitors. She struggles with simple daily tasks that are just no longer simple; things such as going to the shops or leaving the house. You and your crimes have changed her life forever. They did not just involve physical violence, not just involving invasion of her body, there is deep emotional impact, a shattering of trust and the shattering of the ability for her to feel safe. The impact of your serious crimes has been profound.
3. I take that into account as I must.

1. Ms Strugnell conducted the pretrial recordings, the fitness investigation, the trial and then the plea in mitigation on your behalf.
2. She filed an extensive set of submission on the plea dated 26 May 2025. She filed a report from a neuropsychologist Dr Laura Scott.
3. That report of Dr Scott went into detail as to your background as did some of those other reports that Ms Scott had access to. The written submissions had some detail as to your background from paragraph 10 to 16. I am not going to repeat back all the details of your background in these my reasons. There is just no point.
4. Either by reference to the report she relied upon, or the written submissions filed on the plea, I had some detail as to your personal circumstances for instance aspects of your family background as well as your educational and employment background. I also had details of your substance use history, your relationship history and there was much material as to your medical history as well as your level of cognitive functioning.
5. She conceded that this was very serious offending with many features of aggravation. She had seen the comprehensive Crown written sentencing submissions and they were not under challenge. She conceded that you had a relatively poor history of breaching orders designed to protect the very same victim when you lived up in New South Wales. You had breached those orders. You had assaulted her. You breached the orders in place in Victoria as well, as is made plain by the plea indictment.
6. In her plea in mitigation conducted on your behalf, she relied principally on the following matters:
   • Your relatively unenviable background;
   • The application of the 5th limb from the case of Verdins that you heard discussed;
   • The additional custodial burden posed by your complex medical issues and the management of them_._

She conceded the seriousness of the offending and that there was not much by way of mitigatory material. She conceded that a substantial prison term was required here, one plainly of a dimension necessitating the fixing of a non-parole period.

1. Mr O'Toole, who prosecuted the trial, had filed some detailed written sentencing submissions. I asked Ms Strugnell who confirmed they really were not controversial. The Crown argued that this was serious offending given the victim was your former partner, someone who had ended the relationship. She was offended against in her own home with children under the same roof. There were a host of serious features, the Crown said, including physical force and the unprotected penile vaginal/penetration leading to ejaculation. The last incident they reminded me occurred in the currency of a full intervention order. You raped her and sexually assaulted her in her own home. There were, the Crown argued, many serious features here. They were spelt out in much greater detail in their written submissions and as I say, Ms Strugnell did not challenge that submission made on behalf of the Prosecution.
2. You had a relevant history and the Crown took me to some of the summaries of some of your past offending including four matters against her and they submitted there was material touching upon your disobedience to Court orders designed to protect her and also material speaking of your infatuation or obsession with her. That you had not been deterred.
3. They took me to a handful of other sentencing decisions. I have read those cases, and I am awake to the ramifications of the so-called single transaction/criminal episode rule referred to in some of those cases. The sentences disclosed in those other cases were of little value to me. None of them was on all fours, one followed a guilty plea, and in any event, I must exercise my discretion in your case and I am well familiar with sentencing practice for these crimes.
4. The Director of Public Prosecutions was of course calling for a head sentence and a non-parole period, but Ms Strugnell, your own counsel, had already correctly conceded that such an outcome was quite inevitable here.
5. The Crown also made application for a Sex Offender Registration order under the Sex Offender Registration Act and the making of that order was opposed by your counsel who argued that it would only set you up to fail given some of your limitations. I was taken to some case law in that respect by the Crown. I will discuss that issue later.

1. I will turn firstly then to your background, and I will do that quite briefly. As I said earlier, I am not going to set out all the detail placed before me and that really is because I am prepared to accept the details of your background. You were born in February 1979 and you are presently 46 years of age. You were born up in Wagga Wagga in New South Wales and you are of Aboriginal descent. You cannot provide a complete account of your early childhood. I am told you lived with an aunt and uncle in early childhood, and later in foster homes. You have previously advised that you met your biological mother close to adulthood. So there were a number of years in foster care, seemingly no early developmental association with your mother and though it is plainly not allegeable against you as part of any prior criminal history (and I do not have access to it), I was told by Ms Strugnell, and accept, that there was a sizeable enough juvenile court history indicating early drug use and many court orders. Your mother died in 2021 due to complications from diabetes. There is reference to that event in some of the text exhibits placed before the jury. I have been told that you had a positive relationship with your stepfather, who now has dementia.
2. You have no other supports available in the community. You were without supports during much of this offending other than the support provided by Ms Murray. You raped and sexually assaulted the person who was your greatest supporter.
3. Back to your background. You attended local schools up in Wagga with formal education ending, I was told, only in Year 7. You told Ms Strugnell that you got some letter of exemption from a court. It is not clear whether you had any formal learning disability detected in childhood. You certainly did not prosper.
4. You have been in receipt of the Disability Support Pension since the age of 18 but the reasons for that were unclear to Ms Strugnell, as they are to me. You have had a very poor employment record with only a few instances of quite sporadic employment in a circus, spray painting and also some work in demolition.
5. I mentioned earlier, there is much material before me as to your cognitive functioning. I am not going to traverse it all in these reasons. You show significant deficits in cognitive functioning related to low pre-morbid intellect. You have had multiple concussions over the years, with brief losses in consciousness. You had young onset alcohol and drug use.
6. There are also multiple chronic health issues including but not limited to diabetes, cardiac disease, high cholesterol, and high blood pressure.
7. On formal testing, you obtained a full scale IQ score of 65 which is in the 'extremely low' range. It in fact meets the criteria for a mild intellectual disability. It is likely, the expert says, that there has been a deterioration down to that level over the years for the reasons that she describes in her report. That you likely did not have an intellectual disability as a child. There is a suspicion that you may have had ADHD.
8. Ms Scott explains that in the context of significant global cognitive impairment, you present with particular weaknesses in things such as basic attention span, reading, higher educational abilities (including attention to detail and attentional switching), aspects of memory function, and aspects of executive functioning. You present with evidence of acquired brain injury on a background of low premorbid function. You are functionally illiterate and innumerate.
9. Drugs have been very problematic over very many years, with drug use from the age of 14, maybe earlier still from that juvenile history I was told about. Drug use has involved a variety of drugs including amphetamine, cannabis, methamphetamine, heroin, and significant consumption of alcohol, and even sniffing of petrol. You have used methamphetamine daily from the age of 14 or so. This use continued until you were remanded into custody.
10. I have already mentioned some of your medical issues.
11. You have a number of complex chronic medical or other conditions including - and I lump into this some non-physical things such as anxiety, depression, type II diabetes, hypertension, fatty liver disease and atrial fibrillation
12. You are currently prescribed something like 20 medications daily.
13. You have had a history of some heart attacks, the first occurring in custody back in 2021 and another during some surgery that was undertaken at the Royal Melbourne Hospital.
14. Your diabetes is poorly controlled and there is also some evidence of some respiratory disease.
15. Many of the conditions are likely to exacerbate any underlying cognitive impairment arising from your acquired brain injury and your neurodevelopmental vulnerabilities. The illegal drugs taken by you over the decades have certainly not assisted your level of functioning, that much is clear.
16. You are said to be at a high risk of cerebrovascular diseases such as stroke or ischaemic disease.
17. Ms Scott says it is likely that you had noticeable impairments in cognition and behaviour at the time of offending, but it was conceded by your counsel, she submitted it explicitly, that no clear causal nexus could be established. Nor even any realistic connection hence I had that explicit disavowal by your experienced counsel of the applications of limbs 1, 3 and 4 of Verdins. That may be so but I do not of course ignore the acquired brain injury or any of these other matters spoken of and I take them into account in a general fashion.
18. Ms Scott says you are likely to be eligible for support from the NDIS and that you may show modest improvements over time. You are however, likely to require

life-long supports to manage symptoms of disability, including cognitive, emotional and behavioural problems. 19. It is a pretty gloomy outlook. It is gloomier still when I consider the seriousness of this offending and your criminal history. 20. There is a long enough prior criminal history. I note at the outset there are no sexual matters contained within it and I have mentioned already there was a bit of a doubling up of matters given some of the orders imposed by courts were then breached by you. So the more recent entries relating to family violence matters relate to earlier court outcomes and being called up again for the purposes of resentence. Nonetheless, it is plain enough there are a number of occasions where you have breached Apprehended Violence Orders up in New South Wales. I mentioned there are some summaries marked as Exhibit D and I was taken to them and also to how they connected up with the criminal history. You have been unable to leave Ms Murray alone with breaches going back to the early 2000s. 21. Now you do not fall to be sentenced a second time for any of those past matters. You received those sentences and you served them. Nor do those matters in any way aggravate the matters I am dealing with, or in any way remove the need for a proportionate response. It is just that I have to make assessments as to your future risk of offending, and the need to deter you and the need to protect the community from you. I have to make judgements as to your future prospects of rehabilitation. They are not rosy. It is plain that you must be deterred. You have demonstrated scant regard for court orders or for Ms Murray's right to live safely and independently in the community. You have raped her when she was protected by a serious formal court order. It is plain from the dates of some of the plea indictment charges that you even continued to breach the Intervention Order after you had been arrested and interviewed for some of the sexual matters that ultimately you have been convicted of. 22. Your offending has escalated to the point where you have committed the most serious offences that you have ever committed and by far. 23. Well I said I would not set out the full detail of your background and I have not. I act on the background placed before me.

1. Ms Strugnell was explicit in submitting to me that she was not making a Bugmy submission to the court. She said she just did not have the sufficient detail of your background to advance such a submission. Now whether those principles applied or not, I would still be taking into account your background as after all, you are the person I am sentencing. I could hardly ignore your background.
2. An offender's circumstances and their experience during their childhood and in their formative years must be considered in the court's sentencing task. Now that is not just out of some historical curiosity, but because the effects of social disadvantage where it exists do not diminish with time. They are likely to have profound and lasting consequences, and they can sometimes explain, but not excuse, offending. Taking lifelong damage that is the result of exposure to violence, or abuse, or neglect into account when sentencing is just the mark of a humane society.
3. Though it was not advanced, indeed it was directly disavowed, when I examine what little we do know of your background, it seems to me there is plainly some disadvantage on display, just not the precise details of it.
4. The Bugmy principles have been referred to in many other cases in this State, including the decision of Herrmann.[4]
5. The application of these principles does not depend upon proof of any causal connection between the background and the offending.
6. Recent cases have made clear that to attract these principles from Bugmy at least in the general fashion spoken of in that case law, there does not have to be a particular threshold reached of 'profound' or 'significant' disadvantage. There has got to be disadvantage though, plainly enough.
7. Despite the responsibly cautious submission made in this area by Ms Strugnell, I am going to take your background into account in the general fashion discussed in that case law.
8. I am satisfied that from little we do know that there was a level of disadvantage and/or dysfunction in your developmental years. You were not brought up by your mother or by your father, but rather by an aunt and uncle and then you went into foster care. I am told there was early drug use and crime and obviously minimal education. There was also a low level of functioning. You were not dealt much of a hand and nothing too enviable leaps out of the page for me when I examine this material.
9. So I give it full weight in the way in which that phrase is employed in the case law, including the cases of Bugmy and Herrmann which I have mentioned, but also other cases, cases such as Sabatucci[5], Newton[6] and Dhal[7].
10. This case law makes it clear enough that social disadvantage will not attract the same weight in every case, or in the same fashion. That the weight to be given to disadvantage will depend on the nature and the extent of the disadvantage, the nexus, if any, with the offending, though no causal link is required, but also the nature of the crime or crimes and the relative importance in a particular case of sentencing considerations, such as deterrence, community protection and rehabilitation. See the case of Terrick.[8] Our backgrounds leave their mark, of course they do, and no doubt yours has left a mark on you to some extent.
11. So I do take into account your background as far as I am able to and I apply those principles from Bugmy in the general fashion to my task, despite the explicit disavowal made by your counsel.

Verdins & increased burden including medical issues

1. I will not set out all of the submissions made as to your state of cognition and the mental health issues or the raft of physical health issues that you labour under. Your counsel was arguing that the 5th limb from the case of Verdins had some role to play here in my task, and only that limb. It really was in a way a combined increased prison burden flowing from the acquired brain injury and depression and the many medical issues as well. The things spoken of in point 8 of the opinion on p15 of the report of Ms Scott. I accept that submission. There is some application of the 5th limb in this case. Those matters lead to some increased prison burden in your case. There are also complex medical issues which undoubtedly increase your burden of imprisonment. I do not ignore those either. Together, I just do not doubt that there is an increase in your burden of imprisonment over and above that experience by a 'run of the mill' prisoner. I take that into account in mitigation.

1. No argument was addressed to me as to the delay in these proceedings and in saying that, I am not for one moment being critical of Ms Strugnell. Plainly she did everything she could for you both in the course of the trial and in the plea. The fact remains though that this matter has had an excruciating procedural history. I will not set it all out but I do not think it can have been easy having the matter waiting off in the wings for you or for your victim actually. I have seen you on many occasions, during procedural listings of the matter, and I have observed that the process and the uncertainty of it has taken something of a toll on you. It has been difficult for you to understand. I take that into account as far as I am able to.

1. I have said little about the plea indictment matters and nor will I.
2. For those matters, I must take into account the fact that you have pleaded guilty. It was an early guilty plea.
3. You have taken that responsibility for those crimes by pleading guilty at an early stage or indicating your intention to plead to what became Charges 1 and 2 at an early stage.
4. So as a result of your guilty plea, the time, and the cost and the effort of a committal hearing in the court below, or a trial up in this court, in relation to those matters has been avoided. Of course, witnesses have been called and of course, some of the evidence led at trial including some of that evidence was led, but these breach matters were never disputed in any fashion at all.
5. You have in these ways then in the plea indictment facilitated the course of justice and you must be rewarded for doing so.
6. So I take those various matters into account in mitigation. It is a bit hard to infer any remorse for that conduct. I will treat your plea in those matters as being indicative of some minimal remorse for that conduct on the plea indictment.

1. What then are your future prospects of rehabilitation? For obvious reasons, your counsel did not use extravagant adjectives to describe those prospects.
2. They are not good. You function at a very low level. You have been using drugs for decades to the detriment of your level of functioning. You are in very poor physical health. You are a repeat customer before the courts, and you have breached a number of Apprehended Violence Orders in the past. You would not leave Ms Murray alone. You have but minimal education, you are illiterate and innumerate, and you have had no employment for many years. You have few skills and now, nothing by way of supports awaiting you in the community. Your greatest supporter, as I have said, was Ms Murray and you have seriously offended against her. Ms Scott speaks of the many conditions needed to foster your rehabilitation in the future. It is a long wish list. Perhaps the NDIS will become involved but that is to a degree speculative. You have a sizable enough history before the courts. You have not respected court orders in this State or in New South Wales. You have demonstrated a disobedience to protective orders made by the court in the past in an intimate partner setting, pertaining to this very same partner.
3. Your offending has very seriously escalated. You deny any wrongdoing as is your right. You are remorseless in relation to the trial matters, and I really have no reason to think that your obsession or infatuation with Ms Murray will have just evaporated. Perhaps my lengthy sentence might deter you to a degree, but that is far from assured.
4. It is possible that you may be required to do some sex offender program as a condition of being granted parole. I really cannot make any judgments currently as to the benefits that may flow from those sorts of programs. You still deny any wrongdoing and of course that may persist.
5. I fear that you have but very limited prospects of rehabilitation. I view those prospects as being really quite bleak or poor.

1. I am dealing with four crimes of rape which fall under the standard sentence scheme.
2. The period of 10 years is specified as the 'standard sentence' for the crime of rape. That period is the sentence for an offence that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness, without regard then to purely personal matters.
3. The standard sentence is only one of a number of matters that I am required to take into account. Where it applies here, as it does in relation to the rape charges 1, 3, 7 and 8, I must take it into account as one of the matters to be taken into account.
4. This scheme was not intended to interfere with intuitive synthesis which lies at the heart of sentencing in this State.
5. It does not have primacy over other factors which must be taken into account. The standard sentence scheme introduces an additional factor in the form of this legislative guidepost.
6. It does not represent some notional starting point from which the sentence is to be fashioned. I do not start at that point, 10 years, and then work my way either up or down from that standard sentence figure, making a series of adjustments, taking into account matters raised either in aggravation or in mitigation. Two-stage sentencing is still entirely prohibited.
7. Nor does the scheme otherwise affect the matters that the court must take into account. It does not change the requirement to, or the means and manner of, assessing the seriousness of the offence.

1. I am required to take into account current sentencing practices. That is not a controlling factor. The standard sentence scheme I have just mentioned does impact upon the ability to take into account sentencing practices from cases dealt with where the scheme did not apply. Where the scheme applies, as it does here, I must only take into account current sentencing practices in relation to cases where the scheme applied to those past sentences.
2. This scheme only came into force for offences committed after February 2018. Some offences of rape in the sentencing statistics would relate to non-standard sentencing exercises. There is now the useful ability in the Sentencing Advisory Council online statistics to narrow the search down to sentences imposed where the offence was a standard sentence offence.
3. Of course it was your right to run a trial and you must not be punished for doing so. It follows though that in relation to these trial indictment matters, all of them, not just the rapes, you have none of the very sizeable benefits that accrue to a person who has pleaded guilty and who is remorseful for the crime. Those things are worth a great deal indeed and are completely absent here in relation to the trial matters.
4. I have looked at the case collections available on the online Judicial College of Victoria sentencing site relating to rape and sexual assault.
5. For the rape matters, as I say, given that I am dealing with the standard sentence scheme, I only have regard to past sentences where the sentence was imposed for a standard sentence offence.
6. I have looked at the Sentencing Advisory Council online statistics pertaining to sentences for rape and sexual assault. Again though, as I have made plain, I look only at the rape sentences which were covered by the standard sentence scheme. So, those narrowed down statistics.
7. This sort of statistical material is just inherently limited.
8. Statistics are just bare numbers. They provide none of the detail of the offence or the offender. They do not disclose the nature of the conduct. They do not describe the nature of the relationship if any between the victim and the offender. They do not identify any of the surrounding circumstances. They do not descend into the detail of the impact in a particular case. They do not describe whether the matter was a sentencing exercise conducted after a trial or after a guilty plea. They do not touch upon aspects of remorse or prospects of rehabilitation, risk of reoffence or even the nature of the penetrative act.
9. I am a Judge exercising a sentencing discretion in relation to your crimes. I am not acting as a mathematician or a statistician. What has happened in other cases, or as is disclosed in the statistical data, simply cannot provide the answer to my task. What has happened in other cases does not operate as some precedent for me to follow.
10. So many of the cases represented in the statistics would arise from guilty pleas with a whole range of mitigatory features that are completely absent in this case.
11. I have looked at the cases provided by the Crown. None of those is on all fours. For instance, a guilty plea existed in the matter of De Haas[9].
12. One can never find an identical case, and frankly, even if one could be found, there is no such thing as one correct sentence. There is instead a range of available sentences open to the court.

1. I am required to consider the gravity of the offences before the court. There was no dispute that this was really serious offending. I am not going to trawl my way back through all the facts. Many features of seriousness are referred to in the Crown written sentencing submissions and as I said earlier, they are not in any way challenged by Ms Strugnell.
2. Each offence was serious. The rapes are the most serious of the offences. With the exception of Charge 7 which involved digital penetration, they involved unprotected penile vaginal penetration with at least the risk of disease. It is less clear to me as to the risk of pregnancy given Ms Murray's age at the time. Maybe there was that risk. Maybe there was not. I cannot make any finding against you on that score to the high criminal standard.
3. The rapes went for differing periods. The driveway incident was relatively brief, but was occurring though in the driveway of her property. The act the subject of Charge 8 was of long duration. Each rape occurred with a level of force and against someone who was voicing her strong objections to the act. Not just voicing objections but taking physical steps to try and avoid it. You would not let her leave the motel. You took dogged steps to ensure she came up to the room and you then dragged her into the room. Again, there was obvious physical and verbal resistance. The last incident which included three sexual assaults and two rapes was late at night. You were not welcome at that house. You were prohibited from attending by a formal court order. You snuck in opportunistically with the dog, in through the back door, and once your son was sent to bed, you then commenced your attack in the kitchen with two quite brazen sexual assaults. Your victim fled down the hallway to her bedroom, you followed her there, you then sexually assaulted her again and then digitally penetrated her vagina with multiple fingers. It hurt her. Charge 8 involved a struggle, it involved you winning and then having your way with by then your exhausted, helpless victim in her own bedroom, in her own home, with your children in the home at the time under that same roof. You would not take no for an answer. What was she to do? Call out, so that your and her children could come to the room and witness what their father was doing to their mother?
4. This was not isolated conduct. It occurred as it did on these three quite separate occasions over a period of around 18 months. There was violence and force and the overcoming of her resistance on each occasion. You knew she was not consenting. You just did not care.
5. This was extremely serious offending.
6. Your conduct was highly culpable.
7. There is always a danger in trying to rank offences by endeavouring to apply an adjective to describe where they fit on the spectrum of offence seriousness.

Low-level, mid-level, high-level or falling towards any of those levels, what does it really mean? There is no mathematical precision in applying an adjective. No doubt, those terms mean different things to different practitioners or different judges. It is a practice that has been, to at least some extent, disapproved of by the Court of Appeal in the case of Weybury.[10] It is much better that I focus on what you did rather than trying to select an adjective. 8. Yet of course, I must strive to reach a view as to the nature and the gravity of these offences, and further, the standard sentence scheme leads me to consider where the rape offences sit, viewed purely objectively. 9. I believe the rapes all fall above the mid-range viewed purely objectively. I regard the final rape as the most serious occurring as it did in the currency of the active Intervention Order and being as prolonged an act as it was in the setting described.

1. I will be sentencing you on five charges as a serious sexual offender. I will sentence in the order of the indictment charges which means that those provisions will apply for the sentences imposed from Charge 4 onwards on the trial indictment only. That is because Charge 2, the criminal damage, is not a relevant offence. Hence the prison terms which will be imposed on Charges 1 and 3 are the triggering matters.
2. Under the Serious Sexual Offender provisions set out under the Sentencing Act, unless I otherwise direct, those sentences passed upon you as a serious sexual offender would be served cumulatively upon the earlier sentences imposed upon you and upon each other.
3. Additionally, for the sentences imposed on those charges, where you fall to be sentenced as a serious sexual offender, I am required to treat the protection of the community as the principal purpose of sentencing - see s6D. To achieve that purpose, for those charges where you fall to be sentenced as a serious sexual offender, there exists the power under the legislation to impose a disproportionate sentence to achieve that principal purpose. I will not be exercising that power here.
4. I am required to give weight to the Serious Offender provisions. I cannot just ignore them. It is clear though that I must still pay regard to the principle of totality of sentence, which I will move to discuss shortly. Totality, though modified by these provisions, is still of importance in my overall task.

1. I will turn briefly to some general matters of sentencing.
2. There are a large range of matters which must be taken into account by the court when imposing sentence, including things such as the maximum penalties, the impact of the offending, current sentencing practices and in the case of the rapes, the existence of the standard sentence scheme.
3. I must consider the various purposes of sentencing that are set out within the Sentencing Act. Those purposes are punishment, rehabilitation, denunciation, deterrence and community protection.
4. I have mentioned already, I find that you have poor or quite bleak prospects of rehabilitation.
5. I have to punish you. I have got to do that justly and proportionately. Of course that is an important purpose of sentencing for these crimes.
6. I must denounce your conduct. That too is important. I do strongly denounce your conduct. Ms Murray was one of your few supporters and you have offended most seriously against her. You should be ashamed of yourself.
7. I am required to consider the protection of the community from you. On the trial indictment, as I have said that is the principal purpose from the fourth charge where you fall to be sentenced as a serious sexual offender. You obviously present some risk to the community. Ms Murray is part of that community. So too any other future intimate partner. You present real, not illusory, risks of offending in the future. It is very hard to calculate the level of risk.
8. I must give weight to general and specific deterrence.
9. Specific deterrence is easy enough to understand. It relates to the need to deter you from offending in the future. The lengthy sentence shortly to be imposed by this court will serve to deter you to a large degree, I am sure of that. I must still give some weight to that purpose. The chronology of offending is disturbing. Some of it occurring on an Intervention Order. Some on the plea indictment even after you had been interviewed for rape. You must be deterred from ever committing such crimes as these ever again against any intimate partner. Ms Murray or anyone else. You have a bad track record with her.
10. Then there is general deterrence which relates to the need to deter others who might be minded to commit this type of offending. General deterrence looms large in this sort of case. It is a highly relevant purpose of sentencing. These were sexual crimes targeting an ex-intimate partner in her own home or at the motel.
11. We, as judges, are required to send a clear, decisive message to those who may think it open to sexually offend against an ex-partner trying to leave a relationship or one who has left it. The courts, by the sentences imposed in these kinds of cases, must make clear to others in the community that such serious conduct as yours will simply not be tolerated and will be met with stern consequences. We must seek to deter other like-minded future offenders from offending in the future.

1. I take into account the principle of totality of sentence and I have engaged in a last look at the sentences imposed by this court and the total effect of them. I do that, in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality.
2. Your criminality was high here with only some quite minimal reduction arising on a Bugmy basis.
3. I have mentioned already that from the point of the fourth sentence, I have the serious offender provisions of the Sentencing Act coming into play. The presumption of concurrency is deliberately removed.
4. Totality, though of course it is modified, is still an important consideration.
5. As to these eight charges on the trial indictment though, I am not dealing with a tightly grouped set of acts all occurring on a single day, where sizeable concurrency would be warranted. This was not some single criminal episode or transaction as referred to in some of the cases to which I was taken by the prosecutor. I have seven sexual acts spread across these three separate occasions. One rape falling in the period between March and July 2018 in the driveway. It was a serious crime. Then there is the Lamplighter motel incident. It was a quite separate serious rape on 19 July 2018, and then I have the three sexual assaults and the two rapes occurring on 19 December 2019 in the currency of the full Intervention Order.
6. These were each serious criminal acts, no doubt each of them having a role to play in the large overall impact spoken of by Ms Murray.
7. There is of course the temporal relationship between Charges 4 to 8 on the indictment and that close temporal relationship is obviously relevant to the degree of cumulation, or to put it more correctly where you fall to be sentenced as a Serious Sexual Offender, the degree of concurrency ordered by the Court. I do have regard to the so-called single or one 'transaction' 'rule'. I do not much like the terminology referring as it does to a sexual crime as a 'transaction'. Nor do I much like the description that seems to have crept into some of the case law as to it being a 'rule', which it is not.
8. These were not transactions at a shop. These were not repeated withdrawals or 'transactions' at a bank or at an ATM. Each of those acts in that final incident were serious crimes involving unwanted touching and/or invasion of her body and no doubt each of them would have added to her impact. She had a firm memory of each one of them. She described for instance the scraping of your fingernails occurring in the currency of the digital rape the subject of Charge 7. However, those five crimes did occur in that one episode, long though that episode was, and plainly that temporal connection must lead to a consideration of totality of sentence and the need for moderation of the extent of cumulation.
9. To make every sentence entirely cumulative either in relation to that final incident or more broadly across the whole indictment would very plainly infringe the principle of totality, modified though it is in this case from the point of the fourth sentence.
10. However, there is plainly a need to cumulate to some extent here. Ms Strugnell was not submitting otherwise.

1. I will now pass sentence
2. I am confident you will lose track of the sentences I am going to pronounce and the effect of my orders for cumulation and concurrency and what it all means to you in practical terms. I am dealing with two indictments. I am dealing with many charges. The arithmetic and the terminology can all be quite confusing. You will not know what it all means until I am finished. Do not just add up the numbers as we go along. At the end of this process, I will explain what it all means by way of a global total effective sentence as between these two indictments and I will tell you what the single non-parole period is as well as the extent to which there is to be credit for the time you have already served in prison on remand. It is only then that you will understand the true effect of the sentences that I now move to impose.

1. There is a disposal order sought here. There is no opposition to the making of that order. It is sought under the provisions of s78 of the Confiscation Act and I am prepared to make that order. I pronounce it in an abbreviated form. I am satisfied the conditions for the making of that order exist. I order pursuant to s78 of the Confiscation Act the forfeiture to the State of the property referred to in the schedule. I direct that it be placed into the custody of the Chief Commissioner of Police and managed and dealt with by the Chief Commissioner in the manner contemplated by that signed order, which I have pronounced in an abbreviated form. So my signature will be added to that document.

1. Let me deal then with the charges. As I say, I would normally get you to stand up. I will not because we are doing this by way of a remote hearing. I am sorry to have taken so long to get to this point, but as I say I had to explain not just to you, but to Ms Murray, and to others, why I am doing what I am doing.
2. On Charge 1, the charge of rape, you are convicted and sentenced to nine and a half years' imprisonment.
3. On Charge 2, criminal damage, I convict and sentence you to 14 days' imprisonment.
4. On Charge 3, rape, you are convicted and sentenced to 10 years' imprisonment.
5. From this point you fall to be sentenced as a Serious Sexual Offender.
6. On Charge 4 sexual assault, you are convicted and sentenced to eight months' imprisonment.
7. So too on Charge 5 sexual assault, I convict and sentence you to eight months' imprisonment
8. On Charge 6 sexual assault, I convict and sentence you to 12 months' imprisonment
9. On Charge 7 rape, I convict and sentence you to eight and a half years' imprisonment.
10. On Charge 8 rape I convict and sentence you to 11 years' imprisonment.

1. The base sentence is therefore the 11 years imposed on Charge 8.
2. I now direct as to the level of cumulation between these various sentences. I know that I am meant to express the degree of concurrency in relation to the matters for which you are sentenced as a Serious Sexual Offender. My cumulation orders will be easier to follow and they will as a matter of fact, disclose the extent of the concurrency which I do otherwise order.
3. I direct then that
   • Two years of the sentence imposed on Charge 1 rape,
   • Two years of the sentence imposed on Charge 3 rape,
   • Two months of each of the sentences imposed on Charges 4, 5 and 6; and
   • 10 months of the sentence imposed on Charge 7 rape,

is to be served cumulatively upon the base sentence and upon each other.

1. The 14-day term imposed on the criminal damage charge will be served concurrently with all other sentences on the trial and other indictment.

1. These orders that I have pronounced produce five years four months cumulation and they result then in a total effective sentence on the trial indictment of 16 years and four months' imprisonment.

1. On the plea indictment, on Charge 1, you are convicted and sentenced to three months imprisonment. I will nominate that as the base sentence.
2. On Charge 2, I convict and sentence you to three months' imprisonment.
3. Up to that point I am dealing with conduct occurring either a couple of days before the last rape or on the day of that actual attendance.
4. Thereafter, there are the persistent contravention charges taking place in a different time frame altogether.
5. On Charge 3, you are convicted and sentenced to three months' imprisonment.
6. On Charge 4, likewise you are convicted and sentenced to three months' imprisonment.
7. I have decided to run all of those sentences concurrently with each other and hence the total effective sentence on the plea indictment is three months.
8. I have decided also to direct that that three month sentence imposed on the plea indictment is to be served concurrently with the sentences that I have imposed on the trial indictment. So it does not impact upon the global total effective sentence.
9. The Global total effective sentence as between these two indictments therefore is 16 years four months' imprisonment.

1. I am required to fix a non-parole period. Unless it is in the interests of justice not to do so, I am required to fix a non-parole period of at least 60 per cent of the relevant term. The relevant term is the total effective sentence.
2. I do not believe it is in the interests of justice to fix a lesser ratio in this case.
3. Whether you are admitted to parole or not is none of my concern. That will be up to the Adult Parole Board. I am prohibited from even considering that likelihood. So I will not be speculating about whether you will be paroled or not, but I am required to fix a non-parole period.
4. I fix a period of 12 years four months during which you will not be eligible for release on parole.

1. You have spent already 1520 days in custody by way of pre-sentence detention. That period is reckoned as having already been served by way of pre-sentence detention and that is to be entered into the records of the court. So you will get credit obviously for the time you have served.

1. I have sentenced you as a serious sexual offender in relation to Charges 4-8 on the trial indictment. That is also to be entered into the records of the court.

Sex Offenders Registration Act 2004

1. The prosecution applied for an order under s11 of the Sex Offender Registration Act 2004 requiring you to comply with reporting obligations under that Act. Unlike automatic provisions which apply when dealing with someone for child sex offences, I have a power under s11 to order that an offender be subject to reporting obligations under the Act and in this case, were I to accede to this application, it is conceded it would be for the remainder of your life. I have been referred by the prosecutor to some of the case law in his area including the cases of Bowden[11] and Sayer. Indeed, from memory I was the Trial Judge in Bowden. Those decisions spell out what is described as the two-stage process involved in this style of application.[12]
2. I must be satisfied beyond reasonable doubt that at the time of your ultimate release you will pose a risk to the sexual safety of another as defined by the Act. The Crown assert that other is Ms Murray or anyone else who might become an intimate partner. It must be a real risk. Well here your earliest release date is many years off. Then if satisfied beyond reasonable doubt of the existence of that risk, as I am here, there is then a balancing exercise spoken of in the case law. Though plainly there is a risk, and not an insubstantial one here, when I engage in the balancing exercise referred to in para 99 of Sayers, I am not satisfied that it is appropriate to make the order in this case and so I decline to make it.

1. I am though required to make a statement under s5B(4) and (5) of the Sentencing Act. The first of those provisions, 5B(4) requires me to state my reasons for imposing the sentence in relation to a standard sentence offence and 5B(5) requires me to refer to the standard sentence for the offence of rape and explain how the sentences I have imposed on you relate to the standard sentences.
2. I am required to identify the facts and matters and circumstances which bear upon the judgment I have reached as to the appropriate sentence.
3. Well, I am sure my lengthy reasons to this point would surely explain the reasons why the sentence imposed in each of the standard sentence matters bears the relationship that it does to that standard sentence that is specified.
4. By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentences taking into account all the matters I am required to take into account, including the existence of that standard sentence scheme. It is, as I have said, but one of many factors to be taken into account by the court.

1. Finally, I have taken into account your guilty plea in relation to the matters on the plea indictment. Had you pleaded not guilty and been found guilty of those matters, I would have imposed greater sentences in each case; five months for each of Charges 1, 2, 3 and 4. That fact is also to be noted in the records of the court.
2. Let me just see if there is there anything else that I need to deal with. Mr Komesaroff, from your perspective, are there any other matters I need to deal with?
3. MR KOMESAROFF: No, Your Honour, nothing from the prosecution's perspective.
4. HIS HONOUR: And from your perspective, Mr Hart?
5. MR HART: No, Your Honour, nothing from defence.
6. HIS HONOUR: I mean obviously I will revise these reasons when I get them back from VGRS. I generally do that on the day that I get them back and they'll be made available to the parties once they're revised. I am assuming you will be organising a conference with Mr Whitlock and, whether it's one in conjunction with Ms Strugnell, but there'll be some form of conference to discuss his rights in relation to what has occurred here today, and his rights in relation to the trial of course. You'll be having those sorts of discussions with him in the not too distant future.
7. MR HART: Absolutely, we will.
8. HIS HONOUR: Good. Well he's heard you say that, so he knows that you will be in touch. Look I shudder to ask but the mathematics, do each of you understand the nature of the sentence, the structure of it, and do you agree with the mathematics? At least the fact that the orders I have pronounced, result in that ultimate global total effective sentence? Do you understand the effect of that? There is no issue in terms of the mathematics?
9. MR HART: No, at first blush I certainly agree with Your Honour's mathematics. That's all I can say at this time, Your Honour, but I agree that it seems to make sense.
10. HIS HONOUR: Well that is my intended outcome anyway, so just to go through again then, I won't go through the plea indictment, that patently enough, three months on each one of those matters on the plea indictment, running concurrently with each other and with the other sentences imposed on the trial indictment. But it was a nine and a half year term on Charge 1; 14 days on Charge 2 which is totally concurrent; 10 years on Charge 3; eight months on each of Charges 4 and 5; 12 months on six; eight and a half years on seven, and 11 years as the base sentence on Charge 8. I have cumulated two years of the sentence on Charge 1; two years on Charge 3; two months of each of the sentences imposed on Charges 4, 5 and 6- so that's an additional six months' cumulation; and then 10 months' cumulation on Charge 7. So that produces the cumulation of five years four months, and therefore 16 years four months with the non-parole period fixed as I have described of 12 years four months. So that is the mathematics of it.
11. All right, well there's nothing else to discuss then, so I think that completes the matter.
12. So Mr Whitlock, your legal team will be in touch with you. Has some sort of Webex or something been arranged already, Mr Hart, or not?
13. MR HART: Your Honour, Ms Reader, who is the instructing solicitor in this matter, spoke with Mr Whitlock yesterday. I understand that we are attempting to speak with him today, but I can't confirm that we are. It will be Monday if it is not today of course.
14. HIS HONOUR: It will be happening anyway, you won't have forgotten him. Mr Whitlock, you have heard that. Your legal team will be in touch with you to discuss your rights in relation to what has occurred not just today, but in the currency of the fitness investigation and the trial. So they'll be in touch with you, all right?
15. So that completes the matter then. I think what I'll do is I might stay online with my team, all of us who are a bit unwell today, and you can all of you exit the hearing if you would, thank you.
16. COUNSEL: As Your Honour pleases.

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

[5] Sabatucci v The Queen [2021] VSCA 340

[6] Newton (a pseudonym) v The King [2023] VSCA 22

[7] Dhal v The King [2023] VSCA 289

[8] DPP v Terrick [2009] VSCA 220

[9] De Haas v The King [2024] VSCA 141

[10] DPP v Weybury [2018] VSCA 120.

[11] Bowden v The Queen [2013] VSCA 382

[12] Sayer v The Queen [2018] VSCA 177 at [92]