Hu v The King [2025] VSCA 60

1. The police investigation revealed that the applicant had been in a relationship with Ms Zedong for around three years. Police found photographs and videos on the applicant's phone of the applicant raping and sexually assaulting Ms Zedong while she was unconscious.
2. The offending against Ms Zedong was particularly serious. On 64 occasions between 14 February 2016 and 14 June 2019 (including after they separated in late 2018) the applicant drugged Ms Zedong, rendering her unconscious. On several occasions she was hospitalised.
3. As already mentioned, on 47 of these occasions, the applicant raped Ms Zedong. On some occasions there were multiple acts of rape, giving rise to a total of 67 rapes. The rapes mostly involved the applicant penetrating Ms Zedong's vagina with his penis, but also included him penetrating Ms Zedong's anus and mouth with his penis. On some occasions the applicant inserted a foreign object into Ms Zedong's anus. There was often associated (uncharged) sexual and other touching. It is unnecessary to describe the appalling offending against Ms Zedong in any greater detail.
4. On the 17 other occasions on which the applicant rendered Ms Zedong unconscious, he sexually assaulted Ms Zedong, including by touching her breasts and buttocks and rubbing his body against her unconscious body. The applicant filmed and photographed his rapes and other sexual assaults.

1. In November 2018 Ms Lan contacted police and stated that she believed she had been drugged and sexually assaulted by the applicant. She had attended the applicant's workplace for a job interview on Saturday 24 November 2018. While she was there, the applicant surreptitiously drugged her, causing her to lose consciousness - this was the conduct constituting charge 10 (intentionally causing injury). The applicant then took photographs of Ms Lan while she was unconscious. The last thing Ms Lan remembered was sitting at a computer desk in the applicant's office feeling dizzy. The next morning she awoke at a friend's house. She had a vague memory of being in hospital. The evidence was that Ms Lan's friend had taken her to hospital at 3.00 am on Sunday 25 November 2018. The doctors who saw her observed that she was heavily affected by something. The expert opinion was that her symptoms of dizziness, sleepiness and amnesia were consistent with the effects of the drugs midazolam and triazolam.

1. On 28 January 2019 Ms Fen attended the applicant's workplace for trial work. She consumed drinks that she had left alone with the applicant and subsequently became unconscious. While Ms Fen was unconscious, the applicant touched her vagina with his hand. He took photographs of her. This was the conduct constituting charge 11 (sexual assault).
2. On 2 February 2019 the applicant again drugged Ms Fen at his work. While she was unconscious, the applicant raped Ms Fen by penetrating her vagina with his penis. He also inserted a tube inside Ms Fen's anus. He touched her vagina, breasts and buttocks and kissed her lips. He photographed his conduct. This was the conduct constituting charge 12 (a rolled up charge of rape).

1. On 27 March 2019 the applicant surreptitiously drugged Ms Yan, causing her to lose consciousness. This was the conduct constituting charge 13 (intentionally causing injury). This occurred at his workplace, where Ms Yan had been employed by the applicant since February 2017. The applicant took photographs of Ms Yan unconscious with her head on a desk. That evening Ms Yan woke up and ran out of the building. She called a friend, who accompanied her to Melbourne East Police Station, and then to St Vincent's Hospital.

1. On 16 April 2019 the applicant surreptitiously drugged Ms Jian. This was the conduct constituting charge 14 (intentionally causing injury). This occurred at the applicant's workplace, where Ms Jian was completing her first day of employment in his business. The applicant took photographs of Ms Jian in a drowsy state and then unconscious. Ms Jian woke up in an Uber with the applicant, and told him there was something wrong with the water he had given her. The applicant denied drugging her. Ms Jian later woke in hospital, where she remained overnight.

1. On 19 and 22 April 2019 the applicant surreptitiously drugged Xinyi Kun, causing her to lose consciousness. This again occurred at the applicant's workplace, where Ms Kun had just started working. On 24 April 2019, on a work trip to Mildura, the applicant drugged Ms Kun prior to their flight and after checking into their hotel. Ms Kun woke up in Mildura Base Hospital, where she was told she was dehydrated. She returned to the hotel, where the next day the applicant drugged her again. The applicant took multiple images and videos of Ms Kun while she was unconscious. The conduct over these four days constituted charge 16 (a 'rolled up' charge of intentionally causing injury).

1. In July 2019 Ms Jin contacted the Melbourne Sexual Offences and Child Abuse Investigation Team and stated that she believed that she had been drugged and sexually assaulted by the applicant. She had attended at the applicant's business premises for a job interview, and had then been offered a day of probationary work on 23 July 2019. When she attended for work the applicant surreptitiously drugged her, causing her to lose consciousness. While Ms Jin was unconscious the applicant touched her vagina with his hand. He took photographs. This conduct constituted charge 15 (recklessly causing serious injury).
2. After these events, Ms Jin remembered waking up in hospital in the intensive care unit. An expert from the Victorian Institute of Forensic Medicine explained that on her admission to hospital, Ms Jin was very unwell and had to be intubated. She was placed on a ventilator to assist her breathing. She was tachycardic (extremely low heart rate) and later suffered a cardiac arrest that required cardiopulmonary resuscitation and defibrillation before she returned to normal circulation. She became profoundly hypotensive (dangerously low blood pressure), which required further care. She remained in the ICU from 23 July 2019 to 25 July 2019 and was discharged from hospital on 29 July 2019.
3. Blood, urine and hair samples from Ms Jin revealed the following drugs in her system:

(a) Scopolamine;

(b) Midazolam;

(c) Lignocaine; and

(d) Atropine.

1. The expert evidence concerning Ms Jin was that the serious deterioration in her health was likely to have been a result of an adverse reaction to the administration of the drug scopolamine and of lignocaine and chlorpheniramine overdosing.

1. On 1 August 2019 police charged the applicant with the offending and he was taken into custody. He was interviewed by police. During the interview, he acknowledged that Ms Lan, Ms Jian and Ms Jin had each become sick and unconscious whilst at work and in his presence, but he denied administering them any intoxicating substance.
2. Also in the interview, the applicant admitted having sex with Ms Zedong and filming these incidents, but stated that she was awake at the beginning of the sexual intercourse and fell asleep during intercourse. He said 'when she fall asleep it doesn't mean stop'. He also said that 'she agreed to sex but she learned about filming afterwards'. He said that Ms Zedong was lying and that he couldn't understand why she would lie.
3. In October 2019 the applicant declined a police request for a further interview.
4. A committal hearing was held on 25 and 26 August 2021, at which the applicant pleaded not guilty. Ms Zedong was cross-examined at the committal hearing. The applicant was committed to stand trial.
5. On 1 July 2022 the applicant pleaded guilty to the 16 offences and a plea hearing occurred on 28 February and 30 March 2023.

1. After setting out the circumstances of the offending, the judge turned to the nature and gravity of the offending. He summarised the seriousness of the offending as follows:

You deliberately took advantage of women who were known to you, or as was the case with most of the victims, where you were in a trusted position as their employer. You surreptitiously administered dangerous drugs to the victims in order to incapacitate them, rendering them defenceless and vulnerable. As to Ms Zedong and Ms Fen, once they were unconscious, you raped and sexually assaulted them as described above, documenting your conduct with videos and photographs, as you did with the victims the subject of the injury charges. Further, in many instances you uploaded the images of you assaulting the victims. In the circumstances, your conduct can only be described as terrifying and extremely serious.[15]

1. Next his Honour had regard to the victim impact statements of the victims.
2. The judge then turned to the applicant's personal circumstances. This part of his Honour's reasons includes a discussion of Dr Deacon's evidence, which we will consider in greater detail when we consider proposed ground 1 of the application for leave to appeal.
3. The judge then turned to matters put in mitigation. The first matter was the applicant's plea of guilty, about which the judge said as follows.

Given the number of victims and alleged incidents, a trial (or trials), would undoubtedly have taken up a significant amount of court time. Further, given the nature of the allegations, a number of victims would be required to give evidence and be cross-examined. That potentially traumatic experience has been avoided by your plea of guilty. Your plea of guilty has thereby brought the matter to a conclusion at the earliest reasonable opportunity and demonstrates your willingness to facilitate the course of justice.

Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as it was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[16]

1. The second matter in mitigation was the applicant's remorse. The judge accepted that the applicant had demonstrated insight about the nature and seriousness of his conduct and that he had expressed a degree of genuine remorse.[17]
2. The judge then turned to the applicant's reliance on principle 3 of Verdins. Again, we shall return to this aspect of his Honour's reasons in greater detail below. But, in short, the judge said that he considered that principle 3 of Verdins was not engaged, because it did not have a sufficient connection to the offending. However, the judge said that he would take into account the applicant's disorder as part of the applicant's personal circumstances.[18]
3. Next the judge turned to the applicant's prospects of rehabilitation. He observed that the applicant had no prior criminal history. The judge said that it was difficult to assess the prospects of rehabilitation at this stage, given the lengthy prison sentence to be imposed, but he considered that if the applicant engages in appropriate treatment, his prospects of rehabilitation are 'reasonable'.[19]
4. The judge also took into account, in mitigation, the fact that the applicant had served a significant part of his remand during the pandemic.[20]
5. Next the judge turned to more general matters. His Honour observed that general deterrence, denunciation and protection of the community were all 'prominent' sentencing considerations. He said as follows:

your offending is appalling and must be condemned in the strongest terms. A message must be conveyed that conduct such as yours involving repeated incidents of drugging women, and in relation to two of the victims, repeated incidents of drugging and raping women, is extremely serious conduct that will be met with significant punishment. Further, despite the fact that the prosecution do not call for a disproportionate sentence, which is discussed further below, the community must be protected from the risk you pose. As such, community protection must also be given weight in the sentencing calculus.[21]

1. In relation to specific deterrence, the judge said it, too, had a role to play, but that in assessing the weight to be given to specific deterrence, his Honour took into account the applicant's absence of any prior criminal history, the fact he had gained some insight into his condition, and the fact that he was willing to accept and engage in treatment.[22]
2. The judge also observed that charges 5, 6, 7 and 12 were standard sentence offences, for which the standard sentence is 10 years' imprisonment. And his Honour observed that, in relation to charges 3, 4, 5, 6, 7, 8, 9, 11 and 12 the applicant was to be sentenced as a serious sexual offender. This required that protection of the community be the principal purpose for which the sentence was imposed.[23]
3. Finally, the judge turned to the principle of totality. His Honour observed that, applying the principle of totality, there was a need to cumulate the sentences somewhat between the different charges.[24] He said that the total effective sentence to be imposed was 'significant'; however, the orders for cumulation were modest, and the magnitude of the offending and the resulting sentence required him to 'stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose'.[25]
4. The judge then imposed the following sentences:

• Total Effective Sentence 40 years
• Non Parole-Period 30 years

1. Sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6, 7, 8, 9, 11 and 12.

1. Ground 1 concerns the manner in which the judge dealt with Dr Deacon's evidence. Thus it is necessary to set out some aspects of Dr Deacon's evidence about the applicant's mental disorder.
2. Dr Deacon provided a 12-page report about the applicant dated 21 February 2023. He was not called to give oral evidence. In his report, Dr Deacon explained that he is a Consultant Psychiatrist and Fellow of the Royal Australian and New Zealand College of Psychiatrists; that he has advanced College certificates in Forensic and Child & Adolescent Psychiatry; that he was then employed at Alfred Health as the clinical lead in the Youth Forensic Specialist Service; and that he was previously employed at the Victorian Institute of Forensic Mental Health (Forensicare) in hospital, prison and community roles. He stated that he had experience in assessing and managing sexual offenders.
3. Dr Deacon's report stated that he had interviewed the applicant on 3 February 2023 and 17 February 2023 (the length of the interviews was not stated).
4. The report set out the applicant's personal history, as provided by the applicant. He then turned to the applicant's psychiatric history. Relevantly, his report said as follows:

Mr Hu said he attempted suicide by overdose in March 2019 in the context of feeling overwhelmed with stress, guilt and shame relating to his offending behaviour and 'toxic' relationship with Ms [Zedong]. He said they both engaged in other sexual relations whilst they were together. He said he had been thinking about suicide for a while. He said he overdosed on sleeping pills and attempted to jump out of window. His mother attended and dragged him away from the window. He was transported by ambulance to the Royal Melbourne Hospital. He was assessed at in the Emergency Department for one day. He was not admitted to a psychiatric inpatient unit. He was discharged and advised to contact a psychologist and Beyond Blue. He didn't not follow-up with these recommendations [sic].

Mr Hu said he was afflicted with intermittent suicidal ideation between March and August 2019 when he was arrested. He did not engage in any further episodes of self-harm or suicide attempts. He said he was in a 'downhill spiral'. He said he neglected his financial responsibilities and his self-care declined. He reduced his engagement with his two children. He said the 'guilty feeling was eating me' in relation to his offending behaviour. He said he felt that he 'could not stop it', and he therefore wanted to die.

1. Next Dr Deacon's report dealt with the applicant's psychosexual history:

Mr Hu said he was first exposed to pornography depicting people asleep after 2015. He thought he may have searched 'sleep' on a website. He said his interest in sleeping women 'later became a fetish'. He didn't think he developed a specific fetish for women's underwear. Mr Hu said his only deviant sexual interest was sleeping women. He denied a history of sexually sadistic fantasies involving the humiliation, degradation or induction of fear in women. He noted that he had taken the victims to hospital to suggest he offered some care despite being the direct cause of their potentially fatal plight.

1. Dr Deacon's report then set out in some detail the applicant's account of his offending. It is not necessary to traverse that account in detail here. The more significant part of Dr Deacon's report is that part where he expressed his opinions and recommendations. Relevantly, Dr Deacon said as follows:

It is noted that Mr Hu said he first accessed pornography depicting sleeping women in 2015, in advance of the relationship commencing with Ms [Zedong]. It therefore seems possible that the seed to his deviant behaviour was introduced through pornography, but then propagated through real experiences with Ms [Zedong].

Mr Hu reported that the stimulus to his decision to continue engaging in the conduct of administering soporific medications was in two inter-related, but mutually exclusive parts. He reported that he developed an attraction to women sleeping, but this then extended to him being deviantly sexually aroused by the same visual stimulus. The repetitive nature of his sexual misconduct likely precipitated and perpetuated the development of a specific sexual fetish consistent with somnophilia.

Somnophilia - derived from the Latin word 'somnus' (meaning sleep) and the Greek word 'philia' (meaning love) - refers to a sexual interest in engaging in sexual activity with a sleeping person. It can also be more broadly defined as a sexual interest in a person who is unconscious. In this broader understanding, sexual arousal is gained from the passivity of the person being abused. This distinction is relevant, as a sleeping person may wake during the sexual act, whereas an unconscious person cannot. Mr Hu appears to have sought to ensure each victim was sedated to such an extent that it rendered them unconscious; rather than asleep and potentially rousable.

Somnophilia is considered to be a rare paraphilia. It has been characterised as a type of sexual fetishism. It is classified under Other Specified Paraphilic Disorder in DSM V (Diagnostic Statistical Manual of Mental Disorders - Version 5). There is very limited scientific literature on this atypical paraphilic behaviour. It has been proposed that an attraction to passivity may stem from a fear of rejection or ridicule. This proposition seems to correlate with Mr Hu's profile of seeking to avoid conflict. He has avoidant and emotional detachment personality traits.

...

Mr Hu gave the impression that he had a level of medical knowledge based on his basic first aid training. He seemed to partially understand the potential seriousness of his conduct in regards to administering potentially lethal medications at the time of committing the offences, but he was nonetheless reckless.

Mr Hu reflected that through the period of the offending, albeit over many years, that his 'logic was not normal'. He appears to have developed a somnophilic disorder that he struggled to regulate and control. It progressed to the extent that he subjectively experienced distress. He reported that he became acutely aware of the seriousness of his wrongful conduct in late 2018-early 2019 when he commenced offending against victims other than Ms [Zedong]. He noted that on multiple occasions he assessed the victims' vital signs, including a lowered heart rate and shallow, slowed breathing. He sought medical intervention either by calling for an ambulance, or alternatively facilitating transport to hospital. He recognised the potential seriousness of his conduct, but he didn't appropriately inform paramedic or medical clinicians about the underlying cause of the victim's condition.

...

Mr Hu's somnophilic disorder appears to have been reinforced through his engagement and 'membership' to the deviant pornography website .... He was rather coy and noncommittal when asked to provide details of his engagement in this 'community' of likeminded people with shared sexually deviant interests in sleeping people. He was similarly vague when asked to explain why he chose to photograph and film the victims.

...

Mr Hu likely experienced a level of depression through 2019 leading to his arrest in the context of feeling overwhelmed by his complex circumstances and subjective sense of feeling trapped in a paraphilic affliction he struggled to control. He said he was relieved and grateful that he was arrested, although this was not apparent in the early stages when he maintained a state of denial of wrongdoing. He said he was too cowardly to admit fault; perhaps commensurate with his longitudinal history of denial and lying.

Mr Hu appears to have appropriately reflected and mostly taken responsibility for his offending against the numerous victims. He presented as genuinely contrite and remorseful, but perhaps lacking deeper empathy for the predictably traumatic impact on the victims.

Mr Hu reported that he had not experiencing [sic] ongoing deviant sexual fantasies throughout the 3.5 years he has been on remand. Instead, he reported that he had lacked a libido and effectively consciously denied himself the inclination to turn his mind to being a man with sexual drives and needs. He seemed to impress that he wanted to turn a new leaf and start his life again.

1. In an important paragraph for present purposes, Dr Deacon said this:

Mr Hu's somnophilic disorder provides an explanation for the unusually complex sexual offending patterns. It does not however correlate with him not having the ability to appreciate the nature and wrongfulness of his conduct. He was well aware that his behaviour was seriously wrong throughout the years that it occurred. It appears that his somnophilic disorder reached a level of intensity and preoccupation that he struggled to exercise self-control, and to this extent, it can be considered to be a paraphilic disorder that contributed to some degree of impairing his ability to make calm and rational choices. There is no indication that Mr Hu otherwise suffered from a mental condition that affected his mental functioning or impacted in any way on the offending as detailed in the Prosecution Summary. ...

1. On the plea the applicant's counsel relied, in particular, on the final paragraph quoted above, as the basis for his submission that principle 3 of Verdins was engaged:

The amelioration of the need for [general] deterrence, now, of course offending of this nature has to be - general deterrence has to play some part in offending such as this because it shocks the consciousness and no doubt will shock the general public. But my point in relation to the fact that general deterrence is perhaps less relevant than it otherwise would be is that it goes back to this very specific and unusual somnophilic disorder that Dr Deacon describes.

1. Counsel then read the passage set out in paragraph 49, above. He then said that 'limb 3 [of Verdins] requires the Court to consider whether general deterrence can be moderated or eliminated, and I don't say it should be eliminated as a sentencing consideration'. Counsel then referred the judge to some passages from Pato v[26]he Queen.26 Drawing the threads together, counsel then said this:

ultimately what I'm seeking the Court to do is moderate to a fairly limited extent and really to summarise the basis for the submission, it's that ... to place great weight on general deterrence in the sentencing as to [Mr Hu] would be to ignore the fact that he's at the very least, a very unusual vehicle for general deterrence because he's got this complex background and this rare condition.

So [he's] not someone who calmly and rationally made a decision unencumbered by any particular psychiatric or psychological condition to offend in this way. Now, that seems a bit of a strange submission to make because this sort of offending probably wouldn't be committed by someone who didn't have some sort of strange and unusual paraphilic condition. But the point is that that's what we have in Mr Hu.

The offender here does have that rare unusual condition and that's why at least part of the explanation as to why he offended and he's not a perfect vehicle in sending a message to the community that you shouldn't do this sort of thing.

1. In submissions in response, the prosecutor took the judge to the decision of this Court in R v Vuadreu.[27] He submitted that principle 3 of Verdins was not engaged. Alternatively, the prosecution submitted that if principle 3 was engaged, 'it should be limited in scope'.

1. In the judge's reasons, his Honour initially summarised Dr Deacon's evidence and then said that he had taken the contents of Dr Deacon's report into account. Later in his reasons, he returned to the report and said that, on the basis of the report, he accepted that the applicant had demonstrated insight as to the nature and seriousness of [his] conduct and ... expressed a degree of remorse'.[28] His Honour then turned to the question of Verdins, and said this:

[Applicant counsel] concedes, correctly in my view, that Dr Deacon's view precludes any reduction in moral culpability, however submits that principle 3 of Verdins remains applicable because of the rare and unusual form of paraphilia that motivated your offending. As I understand the submission, it is put that because your disorder is so unusual, you are in effect an 'outlier', or a highly unusual vehicle for general deterrence.

The prosecution reject this submission, stating that your condition should not lead to the conclusion that you are an unsuitable vehicle for general deterrence, or alternatively, if principle 3 of Verdins is engaged, then it should only be given very minimal weight in the sentencing discretion. The prosecution did not challenge the evidence of Dr Deacon but submitted that while your disorder may explain your conduct to a degree, the requisite connection or causal link between the impairment and the offending is not established on the evidence.

Dr Deacon's view is that your disorder contributed 'to some degree' in impairing your ability to make calm and rational choices. This language is ambiguous. Your offending was not limited to a single occasion where it might be said that your disorder contributed to your decision making and conduct, or the making of a poor choice in that instance. Your conduct was cold, calculated and repetitive. Once you had rendered your victims unconscious, you then meticulously documented the incident by photographing the respective victim. Your offending involved considerable planning, multiple victims and extended over a number of years. Thus, your offending on one view, demonstrates very calm and rational conduct.[29]

1. The judge then quoted a passage from Langton (a pseudonym) v The Queen, where this Court said as follows concerning principle 3 of Verdins:

In the context of general and specific deterrence, the question will be whether the offender's impairment has such an effect on their mental capacity, and in particular their capacity to moderate their behaviour, that general or specific deterrence should be moderated or eliminated as a sentencing consideration. Again, this requires some 'realistic connection' or 'causal link' between the impairment and the offending.[30]

1. The judge concluded as follows in relation to Verdins:

While I accept the opinion of Dr Deacon that your disorder provides an explanation for your offending patterns, I also note that Dr Deacon's view is qualified when he states that there is no indication that you otherwise suffered from a mental condition that affected your mental functioning or impacted 'in any way' on your offending.

In the circumstances, while I take into account your disorder in the general sentencing discretion as part of your personal circumstances, the evidence does not support a realistic connection or causal link to the offending and as such, in my view, principle 3 of Verdins is not engaged.[31]

1. In issue under ground 1 is whether the judge's statement that 'the evidence did not support a realistic connection or causal link to the offending' involved error. The applicant submitted that the statement involved two errors:

(a) first, that the judge erred by requiring a causal link between the applicant's mental condition and his offending in order to enliven principle 3 of Verdins; and

(b) secondly, an error in the conclusion that no such connection was demonstrated in the present case.

1. In oral argument the applicant resiled, to some extent, from the first alleged error, although that aspect of his argument was not, as we understood his submissions, abandoned. It will thus be necessary to deal with that argument.

1. In considering ground 1, the starting point is, as the judge correctly noted, that the offending in the present case was extremely serious conduct, which required the imposition of a very substantial sentence of imprisonment.[32] That evaluation by the judge referred both to the objective gravity of the offending, and also to the applicant's moral culpability for it. As the judge noted, each of the component rape charges involved criminality that was of both high moral culpability and high objective gravity.[33]
2. Counsel for the applicant correctly accepted that the applicant's somnophilic disorder did not, in any way, reduce the applicant's moral culpability. Clearly, there was an insufficient connection between that disorder and the applicant's offending to warrant any reduction in his subjective responsibility for the offending. In each instance, the offending involved the applicant undertaking a number of pre-planned steps, to render his victim either unconscious or semiconscious. As the judge noted, the applicant's conduct was 'cold, calculated, repetitive'.[34] Once he had rendered his victims unconscious, he documented the incidents by photographing the victim. Thus, the judge correctly concluded that the applicant's offending demonstrated 'very calm and rational conduct'.[35]
3. That description of the applicant's conduct was consistent with the opinion expressed by Dr Deacon as to the applicant's psychological functioning at the time of the offending. As Dr Deacon noted, at that time, the applicant appreciated the nature and wrongfulness of his conduct, he was well aware his behaviour was seriously wrong throughout the years in which it occurred, and there was no indication that, apart from the somnophilic disorder, he otherwise suffered from a mental condition that affected his mental functioning, or impacted upon his offending.
4. It is for those reasons that the applicant's somnophilic disorder did not, and could not, in any way, reduce, or qualify, his moral culpability for the offending. He was, subjectively, fully responsible for his extremely serious criminal offending against his helpless victims.
5. The principle that, in an appropriate case, the weight accorded to general deterrence may be reduced by reason of an offender's mental disorder was developed in the decisions of the Court of Criminal Appeal in R v Mooney[36] and R v Anderson.[37] The underlying rationale for that proposition, as explained by Young CJ in Mooney is that an offender with such a mental disorder or abnormality is not an appropriate medium for making an example to others.[38] The principle was summarised in Verdins, as 'principle 3', as follows:

Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.[39]

1. In Verdins the Court referred with approval to the remarks of Winneke ACJ in Yaldiz:

It is not appropriate to simply fasten on to the words 'recognised psychiatric disorder' and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.[40]

... [It] can be seen that, before the decision of this Court in Verdins, the principles relating to the relationship between an offender's mental illness and the concept of general deterrence were articulated in cases in which the offender suffered from a serious psychiatric or intellectual disability. In such cases, the disability had played an important role in diminishing the offender's capacity to form a rational judgment in relation to the offending. Sometimes considerations of humanity precluded the offender who was afflicted with such a condition from being considered to be a suitable medium for the full application of the principles of general deterrence, although the impairment did not contribute to the offending.

Nothing said in Verdins modifies or alters those principles, so far as they relate to the question of general deterrence in sentencing, save that it recognises that the 'nature and severity' of an offender's impairment falling short of a serious psychiatric illness may require some moderation of general deterrence.[41]

1. It is thus important to understand that the decision in Verdins was not to the effect that where a person's mental functioning is impaired at the time of the offending then general deterrence must be, or necessarily will be, moderated as a sentencing consideration. Rather, the question is whether general deterrence should be moderated. That will depend both on the nature and severity of the condition, suffered by the offender, and the effect of that condition on the mental capacity of the offender, either at the time of offending, or at the date of sentence, or both.[42] As the Court explained in O'Neill:

...[T]here must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient that the offender suffer from a particular mental impairment. There must be proper, and informed, consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending, or of how the offender's condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.[43]

Did the judge err by requiring a 'causal link' in order to enliven principle 3 of Verdins?

1. As noted above, the applicant's first argument under ground 1 was that the judge had erred by requiring a 'causal link' between the applicant's somnophilic disorder and his offending.
2. In his written submissions in this Court the applicant relied on Tran v The Queen, where Maxwell P and Neave JA said this:

We note that a question was raised by the judge about whether the general deterrence aspect of Verdins relies on proof of a causal connection between the offending and the mental condition. The relevant section of Verdins makes it clear that such a connection is not required.[44]

1. We pause to note that their Honours' remark was by way of obiter dicta, because principle 3 of Verdins was not in issue in that case.
2. Later decisions make clear that the passing remark made by Maxwell P and Neave JA in Tran was a truncated way of making a more nuanced point. That is, while a causal connection is not required in order for principle 3 of Verdins to apply, nonetheless later cases make it clear that some connection between the mental condition and the offending is required (which connection may be causal).
3. Thus, for example, in O'Neill the Court said this:

[I]n order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant's moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some 'realistic connection' with the offending; or have 'caused or contributed' to the offending; or be 'causally linked' to the offending. ...

... [T]o show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender's ability to appreciate the wrongfulness of the conduct, or obscured the offender's intent to commit the offence, or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence.[45]

1. These remarks were reiterated and applied by this Court in Binse v The Queen[46] and, most recently, by this Court in Langton. In the latter case this Court set out the Verdins principles and then said as follows:

In the context of general and specific deterrence, the question will be whether the offender's impairment has such an effect on their mental capacity, and in particular their capacity to moderate their behaviour, that general or specific deterrence should be moderated or eliminated as a sentencing consideration. Again, this requires some 'realistic connection' or 'causal link' between the impairment and the offending.

In our opinion, the evidence in this case falls short of establishing the necessary link or connection.[47]

1. We note that there might be a residual set of cases where, even in the absence of a realistic connection or a causal link between the disorder and the offending, the relevance of general deterrence might be modified. So much was recognised in O'Neill[48] and by the New South Wales Court of Criminal Appeal in R v Engert.[49] In Engert Allen J said this:

Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: 'Well, you would not expect him to get the same sentence as someone else'.[50]

1. But no submission was made, either at trial or on the appeal, that such an approach was applicable in the present case.
2. The applicant contended that the judge's sentencing remarks 'suggest' that the judge 'proceeded on the erroneous assumption that general deterrence could only be moderated if there were both a causal connection between the disorder and the offending; and an absence, on the part of the offender, of an appreciation of the wrongfulness of his conduct'.
3. That submission cannot be sustained. The judge was plainly directing himself to whether there was either a 'realistic connection' or a 'causal link'; he did not require the applicant to demonstrate a causal link. In that regard, it is clear that his Honour was applying the decision of this Court in Langton. In light of that case, and the other authorities discussed above, it was indeed necessary for there to be some 'realistic connection' or 'causal link' between the applicant's disorder and his offending in order for general deterrence to be moderated or eliminated as a sentencing consideration. The authorities make clear that it is not sufficient for an offender simply to adduce evidence of a mental disorder of some kind, and thereby attract the application of principle 3 of Verdins.
4. In so far as the applicant suggested that the judge also required that there be an absence, on the part of the applicant, of an appreciation of the wrongfulness of his conduct, the judge did not say that, and there is no basis for inferring that the judge required such an absence in order for principle 3 to be enlivened.

Did the judge err in failing to find a realistic connection or causal link?

1. The second aspect of ground 1 is the applicant's contention that, if a connection or causal link between the applicant's disorder and his offending was required, the judge erred in failing to find such a connection. This was the principal focus of his oral submissions. In his written submissions, he said as follows:

Dr Deacon's finding that the applicant's 'somnophilic disorder reached a level of intensity and preoccupation that he struggled to exercise self-control', was not materially diminished by the qualifier, 'that contributed to some degree of impairing his ability to make calm and rational choices'. In context, that qualification simply acknowledged the fact that the applicant, notwithstanding his condition, retained some understanding of the nature and quality of his actions.

It is submitted that the learned sentencing judge fell into error by placing too greater weight on the fact that the offender knew and appreciated the wrongfulness of his actions. That conclusion should not have precluded a finding that there was a causal connection between the impairment and the offending, or that the principle of general deterrence should have been moderated in this case.[51]

1. This aspect of his Honour's decision turned on paragraph 25 of Dr Deacon's report, which has been set out above. It is convenient to repeat the key passage:

Mr Hu's somnophilic disorder provides an explanation for the unusually complex sexual offending patterns. It does not however correlate with him not having the ability to appreciate the nature and wrongfulness of his conduct. He was well aware that his behaviour was seriously wrong throughout the years that it occurred. It appears that his somnophilic disorder reached a level of intensity and preoccupation that he struggled to exercise self-control, and to this extent, it can be considered to be a paraphilic disorder that contributed to some degree of impairing his ability to make calm and rational choices. There is no indication that Mr Hu otherwise suffered from a mental condition that affected his mental functioning or impacted in any way on the offending as detailed in the Prosecution Summary.

1. The applicant contends that he was wrongfully deprived of the benefit of a moderation in general deterrence. In order that this submission not be considered in a vacuum, it is appropriate to explain why general deterrence was such an important sentencing consideration in the particular circumstances of this case.
2. At the risk of stating the obvious, the principal of general deterrence is directed to deterring others; thus attention must be paid to the impact of a particular sentence for a particular offence upon others.[52] Offences involving the rape and sexual assault of women are all too prevalent in the community. General deterrence, and denunciation, have a significant role to play in relation to such offending. Furthermore, as this Court has previously observed, sexual violence within an intimate partner relationship, such as occurred in the present case, is a particularly insidious and degrading form of domestic violence.[53] Deterrence and denunciation of such behaviour thus plays an important role in sentencing for that offending. Finally, administration of drugs to women, followed by their sexual assault and/or rape, is also a particularly serious form of offending, for which general deterrence remains important.
3. We emphasise, again, that Verdins does not require that, in circumstances where a realistic connection or causal link is established, general deterrence is necessarily modified. As Gleeson CJ explained in Engert, the existence of a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence.[54]
4. In the present case, the applicant's offending involved repeated instances of pre‑meditated rape and sexual assault after the offender had rendered his victims helpless by drugging them. Furthermore, as we explained above, he accepted that his moral culpability was not diminished by reason of his somnophilic disorder. In those circumstances, it is difficult to see any basis on which the importance of general deterrence should be moderated. To the contrary, the nature and seriousness of the applicant's offending is such that the sentencing purpose of general deterrence had to be of significant importance, together with protection of the community. It was important that the sentences imposed on the applicant be of such severity as to constitute a clear and unequivocal message that any person, who might be minded to engage in such offending, will, on apprehension, lose their right to remain in the community for a considerable period of time.
5. Turning to Dr Deacon's report, we accept it provided some evidence of a connection between the applicant's somnophilic disorder and his offending. For instance, in the parts of the report that have already been extracted above one finds Dr Deacon opining that the applicant's disorder was of a type that the applicant 'struggled to regulate and control'. The disorder was one, according to Dr Deacon, in which the applicant felt 'trapped'. The disorder provided an 'explanation' for the applicant's 'unusually complex sexual offending patterns'. Dr Deacon's view was that the applicant's disorder appeared to reach a 'level of intensity and preoccupation' such that he 'struggled to exercise self-control'. Finally, Dr Deacon opined that 'to this extent' the applicant's disorder 'can be considered to be a paraphilic disorder that contributed to some degree of [sic] impairing his ability to make calm and rational choices'.
6. But even assuming that Dr Deacon's opinion provided some basis to ground a connection between the applicant's disorder and his offending, in the circumstances of this case, the connection was not one that required any moderation of general deterrence. That is particularly so given that Dr Deacon had also opined that the applicant was 'well aware' that what he did 'was seriously wrong' and, as noted above, where it was correctly conceded by the applicant that his somnophilic disorder did not reduce his moral culpability. There was, of course, no other mental disorder that afflicted the applicant.
7. Examined from this perspective, the connection between the applicant's somnophilic disorder and his offending was limited. It was very different from the causal connection between an offender's condition and offending that may, in other cases, warrant, as a matter of justice, some moderation of the weight to be attributed to the important sentencing purpose of general deterrence. In short, the circumstance that the applicant in some way succumbed to his urges, caused by his disorder, to drug his victims in order to render them totally helpless, and to thus satiate the desire aroused in him by reason of their state of unconsciousness, does not in this case provide a basis upon which to moderate the weight to be attributed to general deterrence in determining the appropriate sentence to be imposed on the applicant.
8. Furthermore, if, contrary to the above, there should be any moderation of the sentencing purpose of general deterrence due to the applicant's disorder, that would necessarily have required greater weight to be placed on the sentencing purpose of community protection. As Gleeson CJ explained in Engert, a mental disorder suffered by an offender will often point in two entirely opposite directions. As his Honour put it:

A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in a case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.[55]

1. These observations are of particular relevance when it comes to the applicant's present submission. If there was a 'realistic connection' or 'causal link' between the applicant's somnophilic disorder and his offending then, in circumstances where the respective natures of offending and disorder are so closely aligned, the existence of any such connection would demand that greater importance be placed upon specific deterrence and the need to protect the public. The sentencing judge took specific deterrence[56] and protection of the community[57] into account in general terms. But if the judge failed to find the 'realistic connection' or 'causal link' contended for by the applicant, the applicant correspondingly received the benefit of not having weighted against him features in aggravation of penalty that inevitably would have followed upon a contrary finding.
2. In short, the increased importance of both specific deterrence and community protection, consequent upon a relevant finding of 'realistic connection' or 'causal link', would have cancelled out any conceivable benefit to the applicant as a result of some possible moderation of general deterrence (which could, in any event, only have been slight). On the theory that the 'realistic connection' or 'causal link' was established, the applicant - by dint of his proclivities - presented as an even greater threat to women.[58]
3. For the foregoing reasons, the judge was correct to conclude that no moderation of general deterrence was required in this case.
4. Accordingly, ground 1 must fail.

Ground 2: were the total effective sentence and the non-parole period manifestly excessive?

1. By ground 2 the applicant contended that the total effective sentence - of 29 years - and the non-parole period - of 22 years - were manifestly excessive. He relied, in particular, on three matters
   1. The learned sentencing judge failed to give sufficient weight to the applicant's plea of guilty at an early opportunity during the COVID-19 pandemic;
   2. The sentence imposed failed to reflect the utility of the plea.
   3. The learned sentencing judge failed to give sufficient weight to the principle of totality, particularly in relation to the orders for cumulation.
2. The applicant commenced his written submissions by conceding that his offending was very serious, involved high moral culpability, and that a lengthy term of imprisonment was appropriate. However, he submitted that this sentence was the highest sentence imposed by a Victorian court for a sexual offence matter, at least of which he was aware. That, he said, invites appellate scrutiny, although it does not mean that the sentence was manifestly excessive.
3. The applicant conceded that the sentencing judge acknowledged all of the matters relied upon in mitigation. But, he submitted, these matters were not properly reflected in the total effective sentence and the non-parole period.
4. This ground cannot succeed. The judge's reasons were careful and thorough. As the applicant accepted, the judge expressly considered all the matters put in mitigation. The sentence which his Honour imposed was comfortably within the range open to him.
5. As discussed, the offending in this case was extremely serious, and the applicant's moral culpability for it was equally grave. The applicant's offending was premeditated. In each case, it involved a gross breach of the trust reposed in him by his victims. The applicant's conduct, in surreptitiously causing his victims to become unconscious or semiconscious, was designed to, and did, render them entirely defenceless. The applicant aggravated the gravity of his conduct by photographing and video recording his offending against them.
6. The offences of intentionally causing injury were of particular gravity. A number of the applicant's victims were hospitalised as a result of the applicant inducing them to imbibe drinks that were laced with soporific drugs. That conduct was particularly dangerous. The applicant is an intelligent person, and he must have had a real appreciation of the substantial risk to which he was exposing each of his victims. The applicant's conduct was aggravated by the fact that, when his victims required medical attention, he failed to inform the medical clinicians about the underlying cause of their conditions.
7. As discussed under ground 1, in the present case, the sentencing purposes of general deterrence and denunciation were of particular significance in the sentencing equation. It was of utmost importance that the sentences imposed on the applicant be of sufficient severity, in order to send a clear and unequivocal message to other persons, who might be minded to engage in similar conduct, that, if apprehended, those person would lose their right to remain in society for a substantial period of time. Further, it was important that the sentences imposed on the applicant be sufficient to express the Court's and the community's abhorrence of his appalling conduct. In addition, it was necessary that the sentences be sufficiently severe, and of such duration, in order to protect other members of the community.
8. In those circumstances, the individual sentences imposed on the applicant could not be regarded as wholly outside the range of sentences available to the judge. The sentences were entirely appropriate, and were, indeed, sufficiently moderated in order to have regard to the requirement, that the total effective sentence not exceed that which would be appropriate in view of the gravity of the offending, and the mitigating circumstances relied on by the applicant.[59]
9. Further, the orders for cumulation were particularly modest. In that regard, it is plain that the judge applied the principle of totality appropriately, indeed perhaps generously, in relation to cumulation. For example, for the charges of raping Ms Zedong, the cumulation was as follows:

(a) charges 1, 2, 3 and 7 - cumulation of 18 months;

(b) charge 4 - cumulation of 1 year;

(c) charge 5 - cumulation of 6 months.

Each of these charges was a rolled up charge involving multiple rapes on multiple days. Charge 1, for example, was for six rapes on six days. Charge 2 was for 13 rapes on seven days. Charge 4 was for three rapes on one day. And charge 5 was for two rapes on two days (thus explaining its lesser cumulation).

1. Similarly, charge 8 involved seven sexual assaults on seven days and charge 9 involved 10 sexual assaults on 10 days. These offences each attracted 1 year cumulation.
2. Given the rolled up charges, and the extent and circumstances of the offending against Ms Zedong, a significant degree of cumulation was required. The cumulation imposed by the judge for charges 1 to 9 was on no view manifestly excessive.
3. Nor was the cumulation imposed in relation to the offending against the applicant's other victims manifestly excessive. This offending involved six other women, which plainly required a significant degree of cumulation. One of those women was subjected to sexual assault and raped. The cumulation for that offending (1 year and 2 years, respectively) was modest. The cumulation for the offence of recklessly causing serious injury to Ms Jin plainly warranted significant cumulation given the very serious harm caused to her. And the cumulation for the remaining offences, of causing injury intentionally, was measured in months and was modest in the circumstances. In our view it is patently obvious that the judge, properly applying the principle of totality, moderated the cumulation for all of the sentences (other than the base sentence) in an appropriate, and arguably generous, manner.
4. Finally, the fact that there may never have been a higher sentence for a sexual offence matter says little, other than that this offending was, as we have said, one of the most serious sets of offences ever to have occurred in Victoria. The applicant referred to earlier cases involving women who were drugged and sexually assaulted as comparator cases.[60]

(a) In one case, R v Xydias,[61] the offender pleaded guilty to 25 counts of rape and 61 counts of indecent assault, committed against 11 women over a 15-year period. He was sentenced to a total effective sentence of 28 years with a non‑parole period of 20 years.

(b) In another case, R v Doo,[62] the offender pleaded guilty to seven counts of procuring a minor for the purposes of child pornography, 10 counts of producing child pornography, one count of sexual penetration of a child under 16 years, six counts of rape, 12 counts of an indecent act with a child under 16 years, one count of administering a drug for the purpose of sexual penetration, two counts of indecent assault and one count of possessing child pornography. He was sentenced to a total effective sentence of 25 years and 6 months' imprisonment, with a non-parole period of 22 years.

(c) In a third case, R v Barkas,[63] the offender pleaded guilty to three counts of rape, committed against three different women over a 14-year period. On each occasion he had drugged the women before raping them. He was sentenced to a total effective sentence of 13 years and 6 months' imprisonment, with a non‑parole period of 9 years.

1. To that list may be added R v Vaitos.[64] In that case the offender was charged with twelve counts of rape and other counts of buggery with violence, aggravated burglary, assault occasioning bodily harm and burglary. The alleged offences involved 16 women and occurred over a period of 14 months. He was sentenced to a total effective sentence of 28 years, with a non-parole period of 25 years.
2. However, the sentences imposed in those cases tell us very little about whether the sentence in the present case was manifestly excessive. They do not set an upper limit for the total effective sentence that may be imposed for multiple rapes and sexual assaults. Rather, they may serve as 'yardsticks' to 'illustrate (but not define)' the possible range of sentences available.[65] In short, the fact that the applicant's sentence was one year higher than the sentences imposed in Xydias and Vaitos does not mean that it was manifestly excessive.
3. Ultimately, taking into account the most serious nature and extent of the offending, and the important sentencing purposes of general deterrence, denunciation and protection of the community, and giving appropriate weight to the mitigating factors relied on, it could not be maintained that the individual sentences, the orders for cumulation, or the total effective sentence and non-parole period, were wholly outside the range of sentences available to the judge. On the contrary, the sentences were entirely moderate and appropriate.

1. For the reasons set out above, we would refuse leave to appeal.

[3] Contrary to s 38(1) of the Crimes Act 1958.

[4] Contrary to s 40(1) of the Crimes Act.

[5] Contrary to s 18 of the Crimes Act.

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

[7] Contrary to s 38(1) of the Crimes Act.

[8] Contrary to s 18 of the Crimes Act.

[9] Contrary to s 18 of the Crimes Act.

[10] Contrary to s 17 of the Crimes Act.

[11] Contrary to s 18 of the Crimes Act.

[12] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 273 [17] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 ('Verdins') citing R v Yaldiz [1998] 2 VR 376, 381 (Batt JA) ('Yaldiz').

[13] R v Hu [2023] VCC 739, [124] ('Reasons').

[14] A table setting out the individual sentences is set out later in these reasons.

[16] Reasons, [114]-[115] (citations omitted).

[23] Reasons, [129], [131]-[132].

[24] In this regard, the judge turned his mind to s 6E of the Sentencing Act 1991, which required the sentences to be served cumulatively unless the Court directed otherwise, and foreshadowed that he would direct otherwise: Reasons, [132].

[25] Reasons, [142] citing R v Creed (1985) 37 SASR 566, 568 (King CJ).

[26] [2011] VSCA 223.

[27] [2009] VSCA 262.

[30] [2022] VSCA 79, 34 (Maxwell P, McLeish and Macaulay JJA) (citations omitted) ('Langton').

[36] (Full Court of Supreme Court of Victoria, Unreported, 21 June 1978) ('Mooney').

[37] [1981] VicRp 17; [1981] VR 155 ('Anderson').

[38] Anderson [1981] VicRp 17; [1981] VR 155, 160 (Young CJ and Jenkinson J) quoting from the judgment of Young CJ in Mooney (Full Court of Supreme Court of Victoria, Unreported, 21 June 1978).

[39] Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.

[40] Verdins [2007] VSCA 102; (2007) 16 VR 269, 273 [15] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 citing Yaldiz [1998] 2 VR 376, 383.

[41] [2015] VSCA 325; (2015) 47 VR 395, 408-9 [54]-[55] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325 (citations omitted) ('O'Neill').

[42] Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102; O'Neill [2015] VSCA 325; (2015) 47 VR 395, 410 [59] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325; Brown v The Queen [2020] VSCA 212; (2020) 62 VR 491, 507-8 [61] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212; Langton [2022] VSCA 79, [34] (Maxwell P, McLeish and Macaulay JJA).

[43] O'Neill [2015] VSCA 325; (2015) 47 VR 395, 410 [59] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325.

[44] [2012] VSCA 110; (2012) 35 VR 484, 488 [12]; [2012] VSCA 110 ('Tran').

[45] O'Neill [2015] VSCA 325; (2015) 47 VR 395, 414-15 [74]-[75] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325.

[46] [2016] VSCA 145, [70] (Whelan, Beach and McLeish JJA).

[47] Langton [2022] VSCA 79, [34]-[35] (Maxwell P, McLeish and Macaulay JJA).

[48] [2015] VSCA 325; (2015) 47 VR 395, 408-9 [54] (Warren CJ, Redlich and Kaye JJA); [2015] VSCA 325.

[49] (1995) 84 A Crim R 67 ('Engert').

[50] Engert (1995) 84 A Crim R 67, 72 (Allen J, Sully J agreeing at 72).

[52] Engert (1995) 84 A Crim R 67, 72 (Allen J, Sully J agreeing at 72).

[53] See, eg, Perry v The King [2023] VSCA 218, [28] (Beach and Walker JJA).

[54] Engert (1995) 84 A Crim R 67, 71 (Gleeson CJ, Allen J agreeing at 72, Sully J agreeing at 72).

[55] Engert (1995) 84 A Crim R 67, 68 (Gleeson CJ, Allen J agreeing at 72, Sully J agreeing at 72) (emphasis added).

[58] See, eg, Brown [2020] VSCA 212; (2020) 62 VR 491, 509-10 [70]-[71] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212; Wright v The Queen (2015) 257 A Crim R 261, 263 [6], 275 [57] (Maxwell P, Redlich and Osborn JJA); [2015] VSCA 333; R v Kemp [2015] VSCA 108, [48] (Whelan, Santamaria and Beach JJA); R v Patterson [2009] VSCA 222, [50]-[51] (Maxwell P, Redlich JA and Vickery AJA).

[59] Although the applicant's plea of guilty was given before trial, and during the COVID-19 pandemic, it was not an early plea - the applicant required Ms Zedong to be cross-examined at the contested committal hearing. This meant that the plea was of somewhat less utility than it might have been.

[60] We note that these cases were decided before the introduction of the standard sentence for rape (which is 10 years' imprisonment). Section 5B(2)(b) of the Sentencing Act provides that when a court is sentencing for a standard sentence offence, it 'must only have regard to sentences previously imposed for the offence as a standard sentence offence'. However, some of the applicant's conduct subject to the charges of rape occurred before the introduction of the standard sentence regime, thus these cases are relevant to at least those charges.

[61] [2009] VSC 272 ('Xydias').

[62] [2010] VSC 325.

[63] [2010] VCC 498.

[64] (1981) 4 A Crim R 238 ('Vaitos').

[65] R v Dalgleish (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428, 445 [52] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41 citing Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 537 [54]; [2010] HCA 45; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, 74 [41]; [2014] HCA 2.