1. The applicant and GH were both residents in the same shared specialist accommodation facility. Each had their own room. Each was 19 years of age and suffered cognitive impairment.
2. On 25 October 2019 the applicant went out with friends. He returned home heavily intoxicated by alcohol. At about 2:00 am the following morning GH woke to find the applicant in her room. He told her to take her clothes off and that they were going to have sex. GH, then in bed, refused and told the applicant to leave. She offered him money to do so. The applicant pulled GH's skirt and underwear off. She tried to fight him and push him away. The applicant placed both hands around GH's neck and began to strangle her (charge 1 - common assault). GH and the applicant then fell to the floor where he continued to strangle her. GH said she could not breathe. At trial she gave evidence that she was in fear for her life.
3. At one stage GH managed to get away from the applicant, but he grabbed her leg and pulled her back onto the bed. The applicant penetrated GH's vagina with his penis (charge 2 - rape). He then knelt next to GH and told her to suck his penis before inserting his penis into her mouth (charge 3 - rape). The applicant got up, covered GH with a blanket and left her room.
4. Shortly thereafter GH reported the offending to the community mental health practitioner associated with the residence. Upon later forensic medical examination GH was observed to have bruising on the neck behind the jaw and on the cheek, as well as abrasions to the neck, cheek and elbows.

1. During the afternoon of 19 July 2019 the applicant met AT, then 16 years of age, and her friend BG at a train station. Together they went to a house in Kensington where they consumed alcohol and played video games. LM, a friend of BG, was also present.
2. By late afternoon AT was sufficiently affected by alcohol that she vomited in the bathroom. She thereafter ceased drinking alcohol.
3. At about 9:00 pm the applicant and AT were left alone in the loungeroom after LM went to bed and BG went for a walk. The applicant kissed AT on the lips. She pushed him away saying 'we shouldn't' as she was there to be with BG. When BG returned to the room the applicant was again kissing AT. BG then went to bed.
4. The applicant had partly pulled down his pants. He pushed AT's head towards his groin. AT moved her head away. The applicant again tried to kiss AT but she said 'no'. The applicant then stopped. AT went to a spare bedroom to sleep. She laid down fully clothed on the bed. A short time later the applicant entered the room stating that it was the room in which he normally slept. AT said that he could lay next to her but that nothing was going to happen between them.
5. The applicant put his arm under AT's neck and his other arm up her top. AT grabbed his arm and pushed it away. A few seconds later the applicant forced his hand down AT's underwear. Again AT pushed his arm away. The applicant then forced his hands down AT's underwear and touched the outside of her vagina (charge 1 - sexual assault). AT pushed the applicant away, forcing his back against the wall, and told him to stop. There followed a brief struggle during which the applicant held AT down on her stomach. AT was able to look over her shoulder and see that the applicant had his pants down. She struggled, rolled over and pushed the applicant to the floor. The applicant remained on the floor for a short time before leaving the room. The following morning AT told BG about the incident.

1. In her lucid Reasons the judge summarised the circumstances of the offending before addressing its nature and gravity. The judge said that the offending against both victims was objectively serious.
2. The judge described AT as vulnerable due to her intoxicated state and limited prior knowledge of the applicant and the other men present in the house. AT had clearly articulated her lack of consent and moved to a different room. The applicant's use of force was found by the judge to aggravate his offending.
3. With respect to GH, the judge said that the strangulation of a woman at the hands of a man was well accepted to be a serious type of assault. That this offending occurred three months after the applicant's offending against AT demonstrated an escalation in the gravity of his offending. The offending was aggravated by the applicant's intrusion into GH's bedroom in the middle of the night, uninvited and unannounced. GH's situational vulnerability was exacerbated by her own cognitive impairment. The applicant did not use a condom and exposed GH to the risk of pregnancy and sexually transmitted diseases. The judge found that the applicant's moral culpability was further aggravated by his persistent and protracted use of force to strangle, contain and prevent GH from escaping, as well as by putting his hand over her mouth to prevent her screaming.
4. The judge rejected the applicant's submission that it was open to find that he held a genuine, albeit unreasonable, belief in both victims' consent to the sexual acts committed against them. Accordingly the judge concluded that the offending against GH was a serious example of the offences of rape and common assault, and that the offending against AT was a mid-range example of the offence of sexual assault. The judge said that the applicant's moral culpability would nonetheless be appropriately tempered by his own cognitive impairments.
5. The impact of the applicant's offending on both victims was detailed by the judge. The applicant's personal circumstances were then summarised as follows.
6. The applicant was 19 years of age at the time of offending and 23 years of age at the time of sentencing. He was born in country Victoria to parents who separated when he was three years old. He has a number of siblings and half-siblings. As a child he had limited contact with his biological father. At about the age of two the applicant experienced multiple strokes which resulted in an acquired brain injury ('ABI'). During childhood he was diagnosed with attention-deficit/hyperactivity disorder ('ADHD') and, aged 17 years old, was assessed as performing at lower than age expectations in his processing speed, complex higher level attention and executive functions, largely because of his ABI. The applicant attended school in regional Victoria but struggled academically and behaviourally. He left school before completing Year 11. As a teenager the applicant was exposed to family violence between his mother and her partners. His attempts to protect her led to him experiencing physical violence. The applicant left home in his teens. He was introduced to drugs at the age of 13 through peers at school. He commenced using marijuana before turning to methylamphetamine. The applicant attended a residential rehabilitation facility for a few months, later returning to it twice between 2017 and 2019. He professed a desire to remain drug and alcohol free in the future. On his release from custody the applicant planned to live with his half-sister and half-brother and obtain a Certificate III in construction.
7. The judge then detailed the references tendered to the Court on the applicant's behalf.
8. The neuropsychological evidence was then addressed. The judge said that past neuropsychologists had consistently said that the applicant's ABI was likely to have negatively impacted upon his ability to monitor his behaviour and regulate his emotions. This increased his propensity for risk taking behaviour and mental health difficulties. Dr Laura Anderson (who gave evidence in the trial concerning GH) twice tested the applicant's cognitive functioning. She said that the applicant's ABI had contributed to the delay in his cognitive and emotional development. She assessed his executive dysfunction as being of mild severity. This meant that his ability to critically assess numerous pieces of external information or stimuli and react appropriately was impaired. That impairment is exacerbated by acute intoxication. Dr Anderson said that the applicant's cognitive impairment was unchanged between the time of offending and sentence. He met the criteria for a diagnosis of alcohol use disorder. Provisionally he met the criteria for a diagnosis of schizoid personality disorder and adjustment disorder with mixed anxiety and mood.
9. The judge next addressed the various sentencing considerations.
10. Weight was given to the utilitarian value of the applicant's plea to the charge concerning AT. That value was augmented by the Worboyes[7] principles. The judge did not consider that plea to be evidence of genuine remorse. Nonetheless her Honour accepted Dr Anderson's opinion that the applicant's ABI made it difficult for him to extend empathy and understanding to others.
11. The judge said that the applicant's significant cognitive impairments were relevant to reducing his overall moral culpability to a 'significant' degree. In particular, denunciation was a less relevant sentencing purpose, although the further compromise of the applicant's executive functioning skills during the offending by alcohol consumption meant that protection of the community remained relevant. The evidence that the applicant understood right from wrong meant that his actions in strangling GH prior to his sexual offending against her had to be weighed against the factors diminishing his moral culpability. The judge said that a modest level of just punishment and denunciation were warranted in the sentencing synthesis. Based on Dr Anderson's evidence of the nexus between the applicant's impairment and the offending behaviour, her Honour accepted the need to moderate the application of both general and specific deterrence.
12. The judge said that notwithstanding his mental impairment, the serious nature of the applicant's offending and the relevant sentencing regime meant that a term of imprisonment with a non-parole period was warranted.
13. The judge recorded Dr Anderson's opinion that the applicant had the capacity to function and 'get by' in a custodial environment. Dr Anderson also said that he was extremely vulnerable to negative influence from peers in custody and was unlikely to be able to develop adaptive strategies. The judge concluded that the applicant would experience the hardships of custody more keenly than another prisoner who did not live with his cognitive impairments but was not satisfied, in all the circumstances, that imprisonment would have a significant adverse effect upon his mental health.
14. The judge noted that the applicant had no criminal history for sexual offending nor any criminal history at all in the adult jurisdiction. His remand following the jury verdict was his first experience of custody. He had been slow to adjust to certain aspects of prison life. The applicant had, however, completed a commendable range of courses in custody. The judge observed that given the delay in the listing of his trial consequent upon the COVID-19 pandemic, the applicant had missed the opportunity to spend time in a Youth Justice Centre rather than in an adult gaol. The judge further noted that the applicant had not offended whilst subject to bail and that the delay had impacted adversely on his mental health.
15. The judge considered the applicant to have reasonable prospects for rehabilitation in light of his youth, limited criminal history and the prosocial use of his time in custody. The judge noted that those prospects would remain reasonable if the applicant could remain abstinent from drugs and alcohol and obtain the necessary clinical assessments and treatment.
16. In addition to other sentencing purposes the judge took into account the principle of parsimony and had regard to current sentencing practices. The judge noted that rape is a Category 1 offence.[8] The judge also considered the standard sentence for the crime of rape as well as its maximum penalty. Her Honour said that the sentences to be imposed for rape would be lower than the standard sentence of 10 years' imprisonment considering that the seriousness of the offending was tempered by the applicant's cognitive impairment and consequent reduced moral culpability.
17. The judge said that the applicant fell to be sentenced as a serious sexual offender on the second rape, which was charge 3 of the trial indictment concerning the offending against GH. While protection of the community was thereby the primary sentencing purpose, her Honour concluded that the applicant's relative youth, lack of relevant prior convictions and reduced moral culpability meant that an order for complete cumulation of the sentence for that offence of rape would result in a disproportionate sentence.
18. The judge further had regard to s 11A of the Sentencing Act in fixing the non-parole period.

1. The argument put by the applicant at the oral hearing of the application differed somewhat from that in his written case[9] (which did not address his status as a serious sexual offender on charge 3). The argument presented was as follows.
2. The two sexual penetrations of GH (charges 2 and 3) occurred in a single transaction and within moments of each other. This Court in Flynn (a pseudonym) v The Queen[10] held that sentences imposed for acts of penetration giving rise to separate charges that occur in close proximity to each other normally warrant a substantial degree of concurrency.[11] The Court in Flynn referred to comparative single victim, single episode cases in forming its conclusion, including cases where the offender fell to be sentenced as a serious sexual offender for (at least) one of the offences.[12] The applicant argues that because the Court's conclusion was informed by cases involving serious sexual offenders, a substantial degree of concurrency is required even where the offender falls to be sentenced as a serious sexual offender for (at least) one of the offences. In short the applicant contends that s 6E of the Sentencing Act does not 'wipe out' the Flynn approach to single victim, single episode cases.[13]
3. Employing the language of Flynn, the applicant contends that in this case the order for cumulation of 18 months of the 3 year sentence imposed on charge 3 on the 4 year sentence imposed on charge 2 was an error because it is 'out of kilter'[14] with the way that cumulation ought ordinarily to apply in cases of multi-charge sexual offending occurring in close temporal proximity. It is put that the conduct relevant to charge 3 was less serious than that relevant to charge 2. The charge 2 vaginal penetration lasted about 15 minutes.[15] The oral penetration lasted only 15 seconds[16] and must have occurred moments after the vaginal penetration ended. In those circumstances it is contended that half of the sentence on charge 3 cumulated on the base sentence of 4 years' imprisonment for charge 2 is at odds with the practice in 'single victim, close proximity' cases.
4. As a result, it is contended that the judge failed to sufficiently apply the principle of totality to the total effective sentence. The applicant accepted at the hearing of his application that, in considering this argument, this Court must have regard to whether, in effect, the total effective sentence is manifestly excessive. In this respect the applicant rehearsed the relevance of his cognitive impairment, provisional diagnoses of personality disorders and the other matters upon which he relied in mitigation of penalty including delay, relative youth, abstinence and reasonable prospects of rehabilitation.

1. The respondent emphasises the s 6E Sentencing Act presumption for the entirety of the sentence imposed on charge 3 to be served cumulatively on other sentences imposed. The judge was required to apply the totality principle in a manner which did not undermine the legislative policy underlying the serious offender provisions.
2. It is contended that the 'one transaction rule' where the sentences in respect of two or more offences committed in the course of a single transaction are to be concurrent rather than consecutive is no longer a rule. So much was said in Flynn. The mere fact that a number of offences are committed against the same victim at the same time does not require a sentencing judge to order little or no cumulation of the sentences. It is put that the facts of each case will determine whether and what degree of cumulation is required to reflect the overall criminality. In particular it is put that there is no mathematical or percentage based measure of appropriate cumulation.
3. In this case it is argued that the duration of the charge 3 oral penetration and the fact that it occurred shortly after the vaginal penetration are less important than other features of the applicant's offending. The applicant used significant violence against GH after bursting into her room in the middle of the night. The modes of penetration are significantly different and that the oral penetration followed immediately after the vaginal penetration is characterised by the respondent as an act intended to further degrade GH. In all the circumstances the respondent argues that this offending does not call for a 'substantial degree of concurrency'.[17]
4. With respect to the principle of totality, the respondent argues that the judge determined the rapes to be serious examples of the offence. They were, objectively, above the middle range of seriousness and each received less than half the standard 10 year sentence for rape.[18] The total effective sentence for the applicant's offending against GH, encompassing a serious common assault perpetrated to effect the two serious rapes, was 5 years and 8 months' imprisonment. The global total effective sentence, including the mid-range sexual assault against AT, was 6 years and 2 months' imprisonment. The respondent argues the total effective sentence, both with respect to GH and globally, is 'lenient'. It demonstrates that the judge gave appropriate weight to the applicant's cognitive state, (provisional) psychological difficulties and other mitigating factors.

1. Recently in DPP v Dillon (a pseudonym)[19] this Court identified the principles relevant to the interplay between cumulation, totality and ss 6D and 6E of the Sentencing Act.[20]
2. The Court said that the discretion to make orders for cumulation is broad, constrained only by principle. Such orders are designed to reflect differences in each offence and recognise each victim, as well as allow for appropriate overall sentencing outcomes commensurate with overall criminality. With reference to the High Court's observations in RH McL v The Queen[21] the Court said that ss 6D and 6E have modified the role of totality with respect to the sentencing of 'serious offenders' by mandating protection of the community as the principal purpose of imposing the sentence and establishing a presumption of total cumulation. The Court noted the tension between the policy underlying s 6E and the principle of totality[22] before concluding:

What is clear is that, in fixing orders for cumulation for serious sexual offenders, totality must give way, to some degree, to s 6E. After reviewing earlier authority, including the statements reproduced above, this Court said in Zhao v The Queen:

• It follows from these statements of principle that s 6E and totality both apply, but that the full effect of totality is to be somewhat reduced, in order to give proper effect to the legislative intent manifested in the section.

It has become equally plain that

• [o]n any view, in cases of multiple sexual offending, even those which involve the same victim, and where the offences are closely associated in time, some level of cumulation is, today, very much to be expected. The Sentencing Act 1991, and its treatment of serious sexual offenders, supports that approach.

On the question of the need to accumulate, when individual sentences are moderated, it is helpful to recall the following observation of the High Court in Nguyen v The Queen:

• Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.[23]

1. The question in this case is whether the judge yielded too much of the principle of totality to the serious offender provisions in circumstances where the applicant fell to be sentenced in a single victim, single episode case.
2. The answer to that question is not to be found in percentages or other mathematical concepts. Neither the characterisation in Flynn that the order for cumulation in that case was 'out of kilter' with the way in which principles of cumulation ought ordinarily to apply in single victim, single episode cases,[24] nor the reference in Flynn to a third of the sentence for the second rape being cumulated on the sentence for the first[25] should be read as suggesting otherwise.
3. To the contrary, Flynn makes clear that each case is fact dependent. After reviewing comparative cases the Court concluded that

In short, a sentencing judge should always strive to impose the sentence that is appropriate to each charge in a multi-charge indictment. The judge should deal with the principle of totality by making appropriate orders for cumulation. In some cases, it may be proper, and indeed necessary, to order little or no cumulation. That would be so where the offences are, basically, of the same order, and all committed at the same time, against the same victim.[26]

1. In that case the two rapes were committed 'perhaps seconds'[27] apart on the same victim. The rapes were both digital, the first vaginal and the second anal. Each penetration itself lasted seconds. It is implicit in the decision that the Court regarded the two rapes as being 'of the same order'.
2. We do not accept that the two rapes committed by the applicant on GH were of the same order. Temporal proximity and the necessary fact of two acts of sexual penetration underpinning two charges of rape are not the only relevant considerations. GH had been physically and psychologically subdued by the applicant through his choking her to the point she could not breathe (charge 1) and dragging her back to the bed when she attempted to flee. Charge 2 concerned a penile-vaginal penetration which lasted up to 15 minutes. The applicant did not wear a condom.
3. The applicant's actions in then forcing his penis into GH's mouth (charge 3) inevitably caused GH a sense of revulsion quite distinct from the distress she experienced as a result of the vaginal rape. That the oral penetration was of 15 seconds duration is immaterial. It was an act that carried additional humiliation and a different, separate harm; and it was committed upon GH when - due to the earlier offending - she must already have been in a state of significant distress.[28] As the coup de grȃce to an already extremely serious bout of offending, the act forming the basis of charge 3 possessed a certain wanton cruelty.
4. As the judge correctly recognised, this was not a matter which warranted a substantial degree of concurrency notwithstanding that it was a single victim, single episode case.
5. The effect of the judge's orders was that the applicant, after running a trial, received a total effective sentence of 5 years and 8 months' imprisonment for an assault and two rapes, each of which was a serious example of the offence, committed against a vulnerable woman in the sanctity of her bedroom in the early hours of the morning. In making those orders the judge imposed on each of charges 2 and 3 a significantly lower sentence than the 10 year standard sentence for rape, an offence which attracts a maximum penalty of 25 years' imprisonment. The global total effective sentence, including the sentence of 1 year imprisonment for the sexual assault on AT, 6 months of which cumulated on charge 2, was 6 years and 2 months' imprisonment.
6. As we have said, at the oral hearing of this application the applicant's counsel accepted that in order for the proposed ground of appeal to succeed, it was necessary for the Court to be persuaded that - in breach of the totality principle - the total effective sentence stood wholly outside the range of sentences that were reasonably open for imposition. Assuming, without deciding, that such an approach is proper, we are far from persuaded that this is such a case.
7. In assessing the application of the principle of totality by examining these sentences we cannot conclude that the judge failed in that application. Indeed we accept the characterisation of the respondent that the sentence was lenient. That is not to say that the judge failed to give effect to the legislative policy underpinning s 6E of the Sentencing Act. Rather it is to say that the judge applied the totality principle to the maximum extent possible within its limited operation consequent upon that provision.
8. The reason for that is clear. The applicant came before the court with cognitive impairments derived from his childhood ABI and had attracted provisional diagnoses of personality disorders. He otherwise had a number of powerful features which he could call in aid of mitigation of his sentence. They are detailed and considered in the Reasons.
9. The judge faced a somewhat difficult sentencing task. But it is plain that her Honour balanced the undoubtedly serious offending against the particular circumstances of the applicant in light of the various statutory provisions and sentencing principles that governed the exercise of her sentencing discretion.
10. There was no error in the order for cumulation on charge 3.
11. The proposed ground must fail.

1. The application for an extension of time within which to seek leave to appeal against sentence will be refused.

[1] DPP v Dyer (County Court of Victoria, Judge Hawkins, 8 May 2023) ('Reasons').

[3] Contrary to s 38 of the Crimes Act 1958.

[4] Contrary to s 40 of the Crimes Act.

[5] The applicant also originally sought an extension of time within which to file a notice of application to appeal against conviction. That application was abandoned.

[6] Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

[7] Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.

[8] Sentencing Act 1991, s 3(1) (definition of 'category 1 offence').

[9] The written case was prepared by a different member of counsel.

[10] [2020] VSCA 173 ('Flynn').

[11] Flynn [2020] VSCA 173, [116]-[117] (Niall, T Forrest and Weinberg JJA).

[12] These were Jurj v The Queen [2016] VSCA 57; Di Giorgio v The Queen [2016] VSCA 335; Mulligan (a pseudonym) v The Queen [2017] VSCA 94; Zhao v The Queen [2018] VSCA 267; and DPP v Mokhtari [2020] VSCA 161.

[13] Section 6E provides that every term of imprisonment imposed on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

[14] Flynn [2020] VSCA 173, [110] (Niall, T Forrest and Weinberg JJA).

[15] This was the evidence of GH in her video and audio recorded evidence ('VARE') on 7 November 2019. See Criminal Procedure Act 2009, s 367.

[16] This was the evidence of GH in the 7 November 2019 VARE.

[17] Flynn [2020] VSCA 173, [116] (Niall, T Forrest and Weinberg JJA).

[18] Sentencing Act, s 5A.

[19] [2025] VSCA 266 ('Dillon').

[20] Dillon [2025] VSCA 266, [59]-[68] (Walker, Orr and Kidd JJA).

[21] [2000] HCA 46; (2000) 203 CLR 452, 477 [76] (McHugh, Gummow and Hayne JJ); [2000] HCA 46 ('RH McL').

[22] As expressed in Gordon (a pseudonym) v The Queen [2013] VSCA 343, [74] (Redlich JA).

[23] Dillon [2025] VSCA 266, [66]-[68] (Walker, Orr and Kidd JJA) (emphasis in original) (citations omitted).

[24] Flynn [2020] VSCA 173, [110] (Niall, T Forrest and Weinberg JJA).

[25] Flynn [2020] VSCA 173, [116] (Niall, T Forrest and Weinberg JJA).

[26] Flynn [2020] VSCA 173, [130] (Niall, T Forrest and Weinberg JJA) (citation omitted).

[27] Flynn [2020] VSCA 173, [111] (Niall, T Forrest and Weinberg JJA).

[28] Recognising GH's state of distress at this point is not to doubly punish the applicant for his earlier offending; it is merely to mark the context in which the charge 3 offending occurred: see DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444, 452 [32] (Maxwell P, Vincent and Neave JJA); [2009] VSCA 115.