DPP v Winters

p196-198). 19. The jury, having been given appropriate directions as to the need for proof beyond reasonable doubt and to the law insofar as inconsistency, must have accepted the evidence of the victim that she did not tell Mr Baldwin all the details, and the prosecution submission that in his evidence Mr Baldwin must have confused such with another reported rape made to him by the victim. 20. As to sentencing, I make it clear that I am sentencing only on the basis of the sexual activity involving sexual intercourse, as detailed by the victim. 21. Coming then to Charges 7 and 8, which occurred on 27 and 28 May 2020. In this incident there had been an argument in the home. Thereafter one child, Thomas,[3] left and the two younger boys were subsequently put to bed. Thereafter in the bedroom Mr Winters turned on the victim. He put a restraint on her which involved her arm, neck and ankles, which was exhibited at the trial as Exhibit L, he choked and headbutted her. He placed a dildo in her anus, which is the circumstance making up Charge 7, and put his penis in her vagina, which is the circumstance making up Charge 8. 22. Both penetrations then continued simultaneously. The rapes were of such a force that she bled significantly, and such blood was seen on the sheets of the bed. A neighbour, Darren Shelton,[4] who gave evidence in the trial, cleaned those sheets of extensive amounts of blood. The victim had not mentioned the blood to the police as she was concerned to limit what she said, according to Mr Shelton, because she was scared that if she said too much, Mr Winters would come after her. 23. Albeit the victim concealed this fact initially, but clarified the matter in her evidence, I accept beyond reasonable doubt her evidence as to the impact of these rapes, the bodily effect upon her, and that the blood from those two rapes was spread over the sheets. 24. I accept the proposition put by the prosecution that the two rapes were accompanied by humiliation, degradation, and violence, and resulted in significant bleeding from one or possibly two of the victim's personal orifices. I therefore classify the objective seriousness of Charge 2 as mid range, and as to Charges 7 and 8, as significantly higher than mid range. 25. I stress that such classification and my finding as to objective seriousness is made for the purpose of s5A(1)(b) and 5B(5), and I take such sections into account as legislative guideposts, being part of the instinctive synthesis relevant to this sentence as detailed by the Court of Appeal in Brown [2019] VSCA 286, [57] and [55]. 26. Coming then to the assaults. 27. Charge 4, as I have said, was a charge of intentionally cause injury. It occurred on the day of the victim's birthday, in January 2020. Apparently, it was the view of Mr Winters that his partner had been away from home longer than she should have been. An argument developed in which he advised his partner that as a result of what she had done, to use the words from the trial 'she had fucked up her birthday'. As a result, he smashed her head into the doorframe of the bedroom. She received a bump on the head, was dizzy and lightheaded. 28. The final charge is Charge 5, of common law assault. On this day the victim had taken her son to a learn to drive program. On the way home at a BP service station, she had injured her arm when she walked into the door. When she got home an argument developed and Mr Winters, to use her evidence 'lost it'. He grabbed her injured arm to the extent of leaving finger marks on the arm. 29. As has already been said, the Court also has to pronounce sentence for the plea of guilty to Indictment L11561121B, being the possession of cannabis under s73(1) of the Drugs, Poisons and Controlled Substances Act 1981. It involved 50 grams of cannabis, and the sentence is on the basis that it is for personal use, as is indicated from the maximum fine that can be imposed of 5 penalty units. 30. The Court also accepted a plea of guilty to a summary charge, that was to contravene a family violence intervention order dated 12 March 2020 as Mr Winters attended the home on 27 and 28 May 2020, and in fact was arrested there in breach of that order. The maximum penalty for such offence is two years imprisonment and/or a financial penalty of 240 penalty units. 31. I come then to the subjective factors and the plea of Mr Marshall. Mr Marshall tendered: 1. the defence submissions dated 1 August 2025; 2. the psychological report of Ms Christine Kennedy dated 27 July 2025; and 3. Character references on behalf of Mr Winters, firstly four of his family, a sister, the victim's sister, two nieces, three friends and his supervisor at work. His current partner, two aunties of the complainant and an ex-girlfriend. 32. As I said in the plea, such character evidence does not align with the findings of the jury or the evidence against Mr Winters. While I accept such references in his favour, they are starkly at odds with the real Mr Winters. I find that Mr Winters's crimes and treatment of his partner, at times in the presence of his three children, to be a textbook example of a violent coercive male behaving abominably to his partner, in breach of the fundamental trust which attached to that relationship. 33. As I said in the plea, the applicable metaphor in regard to Mr Winters, given those character references, is 'house devil and street angel'. 34. In sentencing therefore it is necessary for the Court to take into account the words of this State's Court of Appeal in DPP v Pasinis [2014] VSCA 97, where the Court said:

[53] Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.

[54] 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 [in that case I am referring to Pasinis but it equally applies here] it is common for victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable. The phenomenon was reflected in the behaviour of the defendant, which is described .... Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and long‑lasting psychological trauma.

1. In this regard I refer to Exhibit B, the victim impact statement of the victim, in particular at p4 as to the emotional impact of these crimes upon her, p5 as to the physical and social impact upon her and at p8, although I specifically disregard the alleged impact on the other members of the family because that is not a matter I take into account in this instance, I do accept that such crimes which occurred in the presence of other members of the family, caused distress to the victim.
2. As the Court further said in Pasinis:

The effects of domestic violence on [victims] are not unique ... Rather, they exemplify the consequences of an assault on an intimate partner.

General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.

1. I should indicate that I also considered DPP v Patil [2020] VSCA 337, which was also a trial. The rapes there were even more forceful, frequent, violent and protracted and involved 10 charges, and the victim in that case was more vulnerable.
2. I come then to the mitigating factors of the plea put by Mr Marshall.
3. Firstly, Mr Winters comes before the Court with no priors and no evidence of subsequent criminal behaviour.
4. Secondly, as found by Ms Kennedy, psychologist, in Exhibit 2, he comes from a loving and supportive family which is obviously demonstrated from the references I have referred to in Exhibit 3.
5. Thirdly, he is a hardworking truck driver and in that regard I note in particular the comments of his supervisor at work in Exhibit 3, as to the fact that since he has worked for him Mr Winters has been a very reliable worker.
6. I also note in Exhibit 2, the report of the psychologist, the resultant depression and anxiety which has developed, it seems that such has been associated essentially with his imprisonment and the impact on his family and father, fortunately his elder sons are able to visit him in gaol. They both gave evidence on his behalf in the trial. I do make a moderate allowance in regard to that anxiety and depression diagnosis, by way of principle 6 of Verdins.
7. One positive factor of course of gaol has been his loss of 38 kilograms, such loss of weight has the impact of relieving his diabetes issues, which clearly will need ongoing treatment in gaol.
8. The fifth factor is the positive signs as to rehabilitation. While on bail he found satisfactory employment and has effected a successful relationship with a new partner.
9. Sixthly, he has been subject to a significant delay, the last offending took place in May of 2020. At that stage the Courts were still getting over COVID and circuit issues, which delayed the trial. Further later recognition by the authorities of the need for a special hearing for the cognitive issues of the victim, further caused delay. I accept that none of those matters were Mr Winters's fault and such delay is a powerful mitigating factor in his favour. That is, because he has had the trial and the consideration of the ultimate sentence that is now being passed upon him, hanging over his head for a considerable period, and during that time he has been able to effect rehabilitation and there is no further offending. In this regard I refer to Duncan [1983] WASC 210; [1983] 47 ALR 746 at [8], and Miceli [1997] VSC 22; [1998] 4 VR 588.
10. In submissions, Mr Marshall, while accepting the predominant role of general deterrence and denunciation, stressed that Mr Winters comes before the Court aged 44 without priors. That is a factor which this Court sees as mitigatory, as this is his first time before a Court.
11. Mr Marshall also stressed to the Court the need to consider closely the principle of totality, given the requirement of the Parliament for cumulation, insofar as the sentencing of Charge 8 is concerned. He submitted that I should take the view that there is no further risk of offending and that I should accept, which was accepted by the prosecution, that this offending is situational and clearly related to domestic family offending; with the effect of that being that having served his period of imprisonment he is likely to effect rehabilitation. I accept those propositions.
12. Eight, of course Mr Winters by his plea, that is the plea of not guilty, does not get the benefit of any remorse. However, I want to stress to you, Mr Winters, you are not penalised in any way for fighting the trial. That is your right. However, you do not get the benefit of remorse but again you do not suffer in any way from exercising your rights.
13. Coming to the sentence, I must say with all those competing circumstances, it is obviously a complicated sentence.
14. As to such sentence, Mr Winters, as the High Court have said in DPP v Dalgleish (a pseudonym) [2017] HCA 41; [2017] 91 ALJR 1063, at 1075, and [64] and [68], you, Mr Winters, are entitled to individualised justice in regard to each charge, and a just sentence based on the facts which make up such charge.
15. As to the question of cumulation, totality must ultimately be taken into account despite what Parliament dictates. This of course creates a tension as this Court seeks to carry out the wishes of Parliament, as detailed by the High Court in McL v The Queen [2000] 203 CLR 452 at 476-477, at [75]-[76]. Those wishes are of course subject to passing a total effective sentence which is just.
16. This tension between the impact sought by Parliament and the need for a just sentence was referred to by Redlich JA, in John Gordon (a pseudonym) v The Queen [2013] VSCA 343, at [74] where he said:

A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner [that] will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile.

1. Having taken all those matters into account, I propose to sentence you as follows. Mr Winters, if you would be good enough to stand please.
2. Charge 2, the charge of rape, you will be sentenced to imprisonment for seven years.
3. Charge 4, the injury charge, you will be sentenced to imprisonment for six months.
4. Charge 5, the common law assault, imprisonment for six months.
5. Charge 7, the rape with the dildo, you will be sentenced to imprisonment for nine years.
6. Charge 8, the rape by way of penile intercourse, you will be sentenced to imprisonment for eight years.
7. The prosecutor did not submit in regard to Charge 8, albeit the serious sexual offender provisions applying, that a sentence should be passed in the interests of the protection of the community, over and above what the culpability requires.
8. The base sentence will be Charge 7 which is nine years. In regard to cumulation I intend to impose, I refer to my earlier comments of the tension with Parliament, but in particular in such cumulation I take into account that Charges 8 and 9 occurred on the same occasion, and I take into account the particularity of such occasion.
9. Having taken all of those matters into account, I order that on the base sentence of nine years, insofar as the sentence of Charge 8, there be two years cumulated upon the base sentence; and in regard to Charge 2, there be a further two years cumulated, making a total effective sentence of 13 years.
10. Taking into account the provisions of s11A(4), the non-parole period which I impose is eight years.
11. Notation must be made in the records of the Court that Mr Winters on Charge 8 has been sentenced as a serious sexual offender. Insofar as the indictment to which Mr Winters pleaded today, being the drug charge, I will sentence him to pay 2 penalty units, the relevant penalty units are $165.22 as of that date.
12. In the summary offence, for the breach of the family violence intervention order, I will sentence Mr Winters to two months' gaol.
13. The pre-sentence detention of 416 days, which Mr Winters has already served will be declared as service of this sentence, and notice of that declaration will be entered in the records of this Court.
14. As indicated, there is no SORA order and there is a forfeiture order to be signed, albeit not present to be signed today.
15. Mr Winters, if I can put it in laymen's language for you, despite that lengthy pronouncement of sentence, I am sorry for that, however it was necessary in order to appropriately sentence you and explain the reasons for the sentence. The total effective sentence for all of these crimes is 13 years. The time you must serve before being eligible for parole is eight years, less the 416 days that you have served. You can take a seat.
16. Mr Prosecutor or Mr Marshall, any issues?
17. MR McKENRY: Yes, Your Honour. Can I clarify the sentence on Charge 5 please.
18. HIS HONOUR: Six months.
19. MR McKENRY: Six months. The only other issue I have was, Your Honour, I don't know that it's necessary but is a 6AAA statement required for the breach charge, that Your Honour imposed two months for.
20. HIS HONOUR: I don't intend to give it.
21. MR McKENRY: Understood.
22. MR MARSHALL: Yes. They were the only matters, Your Honour, which I wanted particularly the Charge 5, so I have no other matters.
23. HIS HONOUR: Yes, thank you.
24. Yes, thank you, Mr Winters can be taken down.
25. Yes, thank you, Mr Tipstaff.