1. On 5 March 2022, following a 14 day trial, a jury in the County Court convicted the appellant of one charge of rape (charge 7) and six charges of sexual assault (charges 2 to 6 and 8).[1] A month later, on 8 April 2022, Judge Tinney sentenced the appellant to seven years and six months' imprisonment, with a non-parole period of 5 years, the sentence being structured as follows:

1. This Court set aside the appellant's convictions on 22 August 2023 and granted him a new trial.[5] At the same time, the Court granted bail to the appellant, who had been in custody up to that point for 539 days.
2. As it happened, however, there was no retrial, because the matter resolved on 5 December 2023. Subsequently, on 20 December 2023, the appellant pleaded guilty in the County Court to a single 'rolled-up' charge of sexual assault.
3. Following a plea in mitigation, on 26 April 2024 the judge sentenced the appellant to 12 months' imprisonment, and declared that the period of 539 days was to be reckoned as already served under the sentence.[6]
4. Pursuant to leave granted by a judge of this Court,[7] the appellant appeals against his sentence on two grounds as follows:
   1. The Learned Sentencing Judge erred in failing to take into account that the 539 days the [appellant] spent in custody would far outweigh any sentence that could be imposed on the sexual assault charge.
   2. The sentence imposed was manifestly excessive. [8]
5. For the reasons that follow, we would dismiss the appeal.

1. Before turning to the issues raised by this application, it is necessary to summarise the appellant's offending.
2. 'YW', the complainant, was a 26-year-old student from Korea, working as a hostess in a karaoke club. The role of a hostess does not include sexual services, something of which the appellant was fully aware.
3. At about 11.00 pm on 26 September 2017, the appellant arrived at the club where he had booked a private karaoke room. He chose YW to be his hostess. Over several hours they sat together, talked and drank some whiskey.
4. Shortly after 3.28 am the next morning, 27 September 2017, YW began to feel sick and lethargic and she struggled to keep her eyes open. The appellant touched her breasts over her clothing and kissed her on the lips. Although YW was aware of what the appellant was doing, she could not move and was unable to stop him.
5. The appellant then touched YW's vagina over her pants. He then spread her legs apart and once more touched her vagina over her pants. While he was doing these things, YW was slumped over, unable to move.
6. After a time, the appellant put his right hand down the front of YW's pants, into her underwear. YW attempted to grab his hand to stop him, but she was unable to do so. She then lost control of her body.
7. Next, the appellant put his left hand inside YW's singlet top and bra and touched her breasts. Her body was limp and she was barely conscious. She slid off the couch to a point where she was almost on the floor. The appellant continued to rub her vagina while kissing her.
8. Eventually, the appellant removed his hand from YW's underwear. She slid fully onto the floor. The appellant then dragged her limp body back onto the couch. He then once again touched her vagina over her pants. The appellant moved YW into a position where she was sitting, held her in that position and kissed her. YW awoke momentarily and attempted to push the appellant away, but was unable to do so. She again lapsed into unconsciousness and the appellant released his hold on her. Shortly afterwards, the appellant left the club.
9. On 16 November 2017, YW went to police with CCTV footage of the incident.
10. Two months later, on 18 January 2018, the appellant participated in a formal record of interview and initially denied the offending. When police showed the appellant an image from the CCTV footage of him touching YW between her legs, with his left hand on her breast while she appeared to be unconscious, the appellant admitted that his left hand was, 'around the breast', and his right hand was touching her 'inner thigh', but not her vagina. He claimed that YW 'wasn't extremely alert', but he 'wouldn't say she was totally knocked out at the time'. When asked if YW had consented to the touching her, the appellant said: 'She didn't push me out', and, 'She didn't say get away or she didn't at any moment - didn't push me out or anything like that'.
11. Towards the end of the interview, the appellant was shown more photographs from the CCTV footage. He admitted that: he thought he touched YW's vagina with his hand inside her pants but over her underwear; he touched her 'up to the pubic hair'; his right hand was inside her bra; he touched her breast; he considered the touching sexual in nature; and YW 'was quite unresponsive'. When asked whether YW was conscious when he touched her, the appellant admitted that she was 'unconscious'. He also stated that she vomited and that he got a bin for her to vomit in.

1. Under cover of ground 1, the appellant's counsel submitted that, in the course of the plea, defence counsel placed particular emphasis on the fact that the 539 days spent in custody would far outweigh any sentence that could be imposed on the rolled-up sexual assault charge. The judge was asked to have regard to the unfairness that situation created when considering the appropriate sentence for the rolled-up charge. Counsel submitted that the judge declared the 539 days as pre-sentence detention on the 12 month sentence of imprisonment imposed, but there is no indication thereafter that she took the additional punishment associated with the 539 days of custody into account when imposing the individual sentence for the rolled-up charge. Indeed, the sentencing remarks are completely silent on this issue.
2. Counsel for the appellant submitted that it is well established that time spent in custody 'which is a period of time, that with the benefit of hindsight should not have been served' can be taken into account when considering the imposition of sentence.[9] In that context, the grave injustice arising from a period of time wrongly spent in custody has been recognised.[10] The period in the appellant's case was time that was wrongly served: it was not time in custody that was associated with unrelated offending. Nor was it a situation where the appellant was attempting to use the time wrongly spent in custody as some form of 'credit' upon which he was seeking to draw when being sentenced at a later time for wholly unrelated offending.
3. The appellant's counsel submitted that the judge's failure to reduce the sentence on account of the period of time which had to be recognised as wrongly served, amounted to discrete sentencing error. The sentencing discretion has been reopened, and a lesser sentence should be imposed.
4. In our view, ground 1 is without substance.
5. Upon a fair reading of the reasons as a whole, it is apparent that the judge was aware of, and took into account, the time the appellant had spent in pre-detention in determining the just and proportionate sentence. The judge twice referred to the fact that the appellant had spent 539 days in custody.[11] Later in her reasons, the judge said that she had taken into account 'the time [the appellant] spent in custody when conditions were very restrictive due to the pandemic'.[12] This is to be understood as a reference to the 539 days of pre-sentence detention. There can be no doubt that the judge would have been aware that the sentence she ultimately imposed was less than the pre-sentence detention. It may be accepted that the judge did not refer distinctly to the injustice occasioned by a person having spent more time in pre-sentence detention than the sentence ultimately imposed, but that omission does not mean that the judge failed to take into account a matter she was required to take into account. The fact that the judge did not refer expressly to 'dead time', or some similar concept, is unsurprising, because there can be no 'dead time' until after the sentence is determined. Until that point, the pre-sentence detention is simply pre-sentence detention.
6. Furthermore, the essential task of a sentencing judge is to impose a sentence that is just and proportionate having regard to the factors set out in s 5(2) of the Sentencing Act 1991.
7. Among the factors that the judge must take into account are the nature and gravity of the offence; the offender's culpability and degree of responsibility for the offence; the impact of the offence on the victim of the offence; the offender's previous character; and the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances. So much was explicitly acknowledged by the judge in her sentencing remarks when she said:[13]

I must impose a sentence which is an appropriate sentence to you, taking into account your personal circumstances and all the matters I am required to under the Sentencing Act.

Notwithstanding the matters raised in mitigation, given the seriousness of your offending and to give proper expression to the sentencing principles of general deterrence, denunciation and just punishment, a sentence of imprisonment is the only appropriate sentence in your case.

1. It is clear that the judge was of the view - paying due regard to the factors spelled out in s 5(2) - that a just and proportionate sentence for the appellant's offending was 12 months' imprisonment. It is also clear that the judge was aware that the appellant had spent 539 days in custody, and, as explained above, had taken that into account in the process of instinctive synthesis. Once pre-sentence detention was declared, that necessarily meant that the appellant had spent 174 days in custody that could not be credited or otherwise offset. So much was an inevitable consequence of the imposition of a proper sentence.
2. Once the judge had taken the 'dead' time into account in mitigation as part of the intuitive sentencing synthesis, there was no other mechanism by which the appellant could be compensated for the unwarranted time spent in custody. There is no warrant for expanding the principles developed in Renzella and related cases,[14] which concerned time in custody that could not be taken into account as pre-sentence detention.

1. In support of ground 3, the appellant's counsel conceded that the appellant's offending was 'serious', and 'that in different circumstances, the offending, as represented by the rolled-up charge, may well have warranted a sentence around the 12-month mark'. Counsel submitted, however, that by the time the appellant came to be sentenced the second time, he was in a position to demonstrate a powerful collection of matters in mitigation, including:

(a) the plea of guilty, entered at the earliest opportunity, carrying with it the utilitarian benefit associated with the saving of the time and expense of a retrial, coupled with the fact that the Worboyes 'discount'[15] applied;

(b) the appellant had previously been a man of good character, with no prior convictions;

(c) the significant delay in finalising the matter, in circumstances where the offending occurred in September 2017; the appellant was interviewed on 18 January 2018; he was not charged until 13 June 2019; and he was not sentenced the second time until April 2024; so that the 'unfairness limb' associated with delay was enlivened, the appellant having suffered from anxiety and major depression during the period of delay;

(d) the appellant had also suffered the grave injustice of serving time in custody that would far outweigh any sentence that could now be imposed;

(e) the appellant had served his time in custody in difficult conditions;

(f) it was accepted during the period of delay the appellant had been 'rehabilitated'; and

(g) the applicant suffered extra-curial punishment, being unable to pursue his chosen career and being subject to damaging publicity.

1. The appellant's counsel submitted if this 'exceptional' collection of matters in mitigation had been properly taken into account - and the errors embodied in grounds 1 and 2 had not occurred - a sentence of 12 months' imprisonment was not reasonably open.
2. Counsel for the respondent submitted that, given the objective gravity of the offending, the sentence of 12 months' imprisonment imposed indicates that appropriate weight must have been given to (in particular) the additional delay since the appellant had first been sentenced by Judge Tinney, including the appellant's rehabilitation, his early offer to plead guilty, and the fact that the appellant was not to be sentenced on the second occasion as a serious sexual offender. The sentence imposed was well within the available range.
3. The approach that this Court must adopt to a complaint that a sentence is manifestly excessive was set out in Leimonitis:[16]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[17] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[18] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[19] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[20]

1. Synthesising for ourselves all relevant considerations - including the circumstances of the offence and the offender, and the aggravating and mitigating features - we consider the contention that the sentence of 12 months' imprisonment is manifestly excessive is unsustainable. In so concluding, we consider the following observations by the judge in her sentencing remarks to be apposite:[21]

In my view this was a very serious example of the offence of sexual assault. It encompasses nine discrete acts of sexual assault over a period of some minutes on a young woman at her workplace. She was vulnerable being alone with you and even more so when she became observably ill and collapsed. Instead of helping her you callously took advantage of her. Why you, a middle-aged man of hitherto good character and standing in the community, behaved this way remains largely unexplained. Being alcohol-affected and disinhibited explains your behaviour only to some extent. Clearly you sought sexual gratification. You treated Ms [YW] as a sexual object. I accept the prosecution submission that your behaviour to Ms [YW] can be described as humiliating and degrading.

1. Acknowledging the force of the matters relied upon in mitigation, the appellant's offending objectively was very serious. It was not constituted by a single or momentary isolated act, but continued over some minutes. As the judge said, the rolled-up charge involved a number of discrete acts of sexual assault. YW was incapacitated by her ingestion of alcohol and therefore highly vulnerable to the appellant's sexual predations. The appellant took advantage of YW's condition to offend against her. He moved her into various positions and continued to offend against her while YW appeared to be unconscious. Plainly, the appellant's moral culpability was, as the judge found, 'high'. Furthermore, the sentencing objectives of general deterrence and denunciation had a significant role to play.
2. In our view, the sentence imposed by the judge was well within the range open to the judge in the sound exercise of the sentencing discretion.
3. Ground 3 must fail.

1. The appeal against sentence should be dismissed.

[1] The applicant was found not guilty on charge 1, administering a drug for sexual purposes.

[2] Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 40. The maximum penalty is 10 years' imprisonment.

[3] The applicant was sentenced as a serious sexual offender on charges 4 to 8.

[4] Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 38(1). The maximum penalty is 25 years' imprisonment.

[5] Kim v The King [2023] VSCA 228 (Priest, Taylor and Walker JJA).

[6] Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that, but for the plea of guilty, she would have sentenced the applicant to 3 years and 6 months' imprisonment, with 2 years non-parole.

[7] Kim v The Queen [2025] VSCA 10 (T Forrest JA).

[8] Leave to appeal was refused on ground 2. See ibid [7] and [14].

[9] Counsel cited Warwick v The Queen [2010] VSCA 166; (2010) 201 A Crim R 580, 585 [17] (Maxwell P and Weinberg JA).

[10] Counsel cited Karpinski v The Queen [2011] VSCA 94; (2011) 32 VR 85, 86 [7] (Weinberg JA).

[11] DPP v Kim [2024] VCC 553, [21], [43].

[13] DPP v Kim [2024] VCC 553, [69]-[70].

[14] R v Renzella [1997] 2 VR 88; (1996) 88 A Crim R 65; R v Stares [2002] VSCA 70; (2002) 4 VR 314; R v Chimirri [2003] VSCA 45; R v Wade [2005] VSCA 276; R v Solovastru [2005] VSCA 254; R v Giakoumogianakis [2005] VSCA 156; R v McMahon [2006] VSCA 240; R v Rosenow [2007] VSCA 265; Warwick v The Queen [2010] VSCA 166; Karpinski v R [2011] VSCA 94; (2011) 32 VR 85; R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123.

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

[16] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) ('Leimonitis').

[17] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12] (Priest JA); Allen v R [2013] VSCA 44; (2013) 36 VR 565, 573 [51]-[52] (Priest JA).

[18] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

1. [20] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15] [Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ].

[21] DPP v Kim [2024] VCC 553, [52].