1. For the reasons set out below, we have concluded that the application for leave to appeal against conviction ought be refused. As set out below, leave to appeal against sentence is granted and the applicant will be resentenced.

Summary of the offending and relevant evidence

1. The complainant recounted meeting the applicant at a nightclub on Friday 18 October 2019. Later, she returned to the applicant's apartment with the applicant and three other friends, two of whom subsequently left. The complainant, the applicant and the remaining male friend played a 'truth or dare' dice game involving the loser of an individual game removing an item of clothing. Ultimately, the applicant and the male friend wore only underpants. The complainant inhaled cocaine off the bodies of the men, and cocaine was inhaled from her body. She declined participating in a 'threesome' and told the men she was a virgin. Ultimately, she ended up in the applicant's bedroom; she and the applicant kissed and she performed oral sex upon him. Later, after exchanging phone numbers with the applicant, she left the apartment.
2. Over the next two weeks, the applicant and the complainant exchanged sexually-charged text messages. The applicant advised her to try LSD, saying it makes one 'super horny'. She agreed to try it with him.
3. The applicant invited the complainant to travel to 'Peninsula Hot Springs' on the Mornington Peninsula. He picked her up to drive there on Friday 1 November 2019. On the trip there, he gave her a small square of paper which he said was LSD. The complainant stated in evidence that she did not think it had any great effect on her. It was not detected in a subsequent urine sample.
4. At the Peninsula Hot Springs, after bathing, further consensual sexual activity occurred including fellatio. The complainant stated that in the private bath, the applicant attempted to have penile-vaginal intercourse, however the complainant moved away. She agreed in cross-examination that she made it clear to him that she did not wish to have penile-vaginal sex.
5. Late in the evening, they left the hot springs and returned to Melbourne. In the car, the applicant rolled a marijuana joint and they both smoked it. They met friends at around midnight to celebrate a birthday at a floating beer garden on the Yarra. The group later went to the Workshop Bar in Elizabeth Street. The group (including the complainant and applicant) consumed alcohol at this venue. The applicant became obviously intoxicated at this stage.
6. Just before 3:00 am, the applicant and complainant left the Workshop Bar and travelled to the applicant's apartment. The applicant was too drunk to drive and the complainant insisted that they take an Uber.
7. The complainant stated that when they were in the applicant's bedroom, he asked her to kiss him, so she kissed him. She took her clothes off. In evidence, she vacillated on how her underpants were removed, however, ultimately, she could not recall whether her underpaints remained on, or if not, by whom they were removed. She performed consensual oral sex upon the applicant. As they were lying on the bed, they kissed again. She started to pull back and resist. The kissing continued and the applicant rolled her over and she ended up beneath him. She pulled back and resisted again. He said, 'You're going to do it either way. Don't fight it. Stay calm', or 'You might as well do it with me'. He tried to roll her to one side so that he could penetrate her from behind. The complainant resisted and the applicant gripped her arms/wrists 'really hard', 'pinning [her] down'. He put his penis near her vagina. She said 'no' on approximately four occasions. She yelled at him, 'Stop, stop'. He then forced his penis inside her vagina; the complainant was shocked and felt intense pain. She screamed and the applicant immediately withdrew. The complainant slid off the bed and noticed that she was bleeding profusely.
8. She ran to the bathroom, distressed and crying. The applicant followed her. She dressed, although she could not find her shoes or her bra. She took photos of the blood on her legs. She took photos of the mattress and of the applicant. She sent a text to a friend at 3:43 am and again at 4:02 am which stated, 'I got raped'. She tried to leave the apartment but was restrained by the applicant. He grabbed her hands; she threatened to call the police. The applicant continued to physically restrain her and at one stage placed her in a bear hug. The complainant bit his arms which eventually caused him to release her and she left the apartment.
9. During this restraint period, the complainant was able to call one of the friends who had been at the Workshop Bar. Evidence was given by that friend ('FK') of the complainant's state of distress in that phone call and of the text messages they subsequently exchanged. We shall return to the content of that phone call and those text messages at paragraphs [18]-[19].
10. When the complainant left the applicant's apartment, she left behind her bra and shoes. She said this was because she 'was scared [the applicant] would come and grab [her] again ... so [she] ran without them'. A subsequent medical examination disclosed bruising and abrasions to her arms and legs. The complainant declined an internal examination as she 'was bleeding ... and in a lot of pain'.
11. The complainant flagged down an Uber. She stated that she told the driver that she had been raped. The driver took her to her then-boyfriend's residence, 'YN'. She was distressed and told him she had been raped.
12. At Flemington Police Station, the complainant spoke to Senior Constable Cameron Morris ('SC Morris'). He observed that 'she was shaking and physically upset'. He observed blood on her legs and she was taken to the Royal Women's Hospital. She remained distressed. Her complaints to police and doctors included that she did not want to have sex but she was pinned down and forcibly penetrated.

1. The following witnesses (among others) were called by the prosecution, in addition to the complainant:

(a) 'KN';

(b) 'FK';

(c) 'RN';

(d) SC Morris;

(e) Dr Supriya Krishnan;

(f) Detective Senior Constable Linda Robinson ('DSC Robinson'); and

(g) Detective Leading Senior Constable Tony So ('DLSC So').[3]

To each of these witnesses, the complainant exhibited varying levels of distress and made relatively consistent complaints of non-consensual sexual penetration.

1. FK gave evidence of a phone call between herself and the complainant at around 3:35 am on 2 November 2019. FK stated that the call took a 'while to connect' so she placed the call on speaker so that she could hear the complainant. She stated the complainant was screaming, 'What the fuck is wrong with you, I'm, bleeding everywhere'. FK replied, 'What do you mean?' but the complainant did not answer; instead, the complainant 'was just screaming' and then hung up. FK gave evidence that the complainant was 'obviously stressed ... Like panicking'. Another person, 'RN', who had been at the Arbory Bar and Workshop Bar, was with FK at the time of the phone call. He gave evidence that the complainant 'sounded extremely distressed', that 'she was basically shouting'. He heard her say, 'There's blood everywhere' and 'It's all your fault'.
2. Shortly after the phone call from the complainant, text messages were exchanged between her and FK. These text messages were tendered as evidence at trial, and included:

(a) a text from the complainant at 3:43 am which stated, 'I got raped', and replies from FK expressing concern and asking the complainant to call her;

(b) a photograph sent by the complainant with blood on her legs, sent at 3:43 am, and replies from FK, pleading for her location so she could pick her up; and

(c) a text message from the complainant at 4:02 am which again stated, 'I got raped', followed by, 'I'm calling the cops'.

1. The applicant was interviewed by police on Sunday 3 November 2019. In very brief substance, the applicant said that he met the complainant at a night club a few weeks' earlier through a mutual friend. He said that he and the complainant 'clicked straightaway and were sort of, like kissing' They then they went back to his apartment, had more drinks and played games and '[made] out a little bit'. They exchanged phone numbers and he subsequently asked her out to go on a road trip to the hot springs. In relation to the day of the alleged offending, he said that:

(a) on Friday morning (1 November 2019), they went to the hot springs, they had 'a really good time there'. He denied having oral sex there, or anywhere else;

(b) they went back to the city, went to the Workshop Bar, had 'some [drinks]' with some friends. He became 'a little bit drunk';

(c) they got an Uber to his apartment and he got changed and they '[kissed] a little bit'. As he was drunk, he tried to get to sleep, and then 'all of a sudden ... [the complainant] was just screaming and there was blood everywhere';

(d) the complainant was clothed at all times and there was no sexual activity other than kissing;

(e) he freaked out and tried unsuccessfully to calm down the complainant;

(f) she left his apartment with 'like, a stranger; and ... they drove somewhere'. He subsequently cleaned up some of the blood;

(g) he then passed out for a while; and

(h) he denied ever penetrating her vagina with his penis.

1. It was undisputed at trial that the applicant told a number of lies in this police interview, including that:

(a) there was no oral sex at the hot springs;

(b) there was no sexual activity back at his apartment except for some kissing;

(c) because he was drunk, he tried to get some sleep;

(d) the complainant was clothed at all times; and

(e) he was trying to get some sleep when the complainant started screaming.

The prosecution argued to the jury that these admitted lies might adversely affect their evaluation of the applicant's credit.

1. Evidence was led from DLSC So to the effect that the applicant had no prior convictions and had never been arrested or interviewed by police.

1. In substance, in his evidence, the applicant denied the offending. He said all sexual contact, including the penile-vaginal penetration was consensual and that his penis was inside the complainant for 'not even one second'. The applicant was referred to his record of interview. He accepted that he had lied to the police when, in his interview, he had denied any sexual activity with the complainant, and also when he said that he woke up to find the complainant screaming and that he did not know why. He stated that he lied because there was so much blood and he was scared. The applicant gave evidence that:

(a) prior to penetrating her, the 'sexual vibe' was very intense and he believed her to be consenting. She stroked his penis and he was 'spooning' her;

(b) he stopped penetrating the complainant as soon as he realised she was uncomfortable, which was after she screamed;

(c) he then tried to calm her down;

(d) he only restrained her so that she would stop throwing her arms round;

(e) he bear-hugged her, but said that he did not intend to deprive her of her liberty. Later, in cross-examination, however, he agreed he had restrained her to stop her from leaving because 'it wouldn't be good for [him]' if she had left; and

(f) during a car ride (apparently referring to the return trip from the hot springs), he asked the complainant if he could put his penis in her vagina, and said that she had replied, 'Yes, maybe'.

1. The applicant agreed that after he had inserted and removed his penis, she was yelling and saying words like, 'Why did you do that?'
2. We will refer in more detail to this evidence when considering the applicant's proposed appeal grounds.

PART A: THE APPLICANT'S APPEAL AGAINST CONVICTION

Proposed ground 1(a) - prior inconsistent statements

1. Under the first part of this proposed ground, the applicant contends that the judge failed to properly direct the jury on the permissible use of three prior statements made by the complainant that were assertedly inconsistent with the complainant's evidence in the trial. The inconsistent statements are identified as follows in the applicant's written case:

(a) the complainant stated to a treating medical officer and to investigating police that all sexual contact between the applicant and her on the morning of the alleged offending was non-consensual. At trial, her evidence was that only the final act of penetration was non-consensual - all other earlier sexual activity was consensual; and

(b) the complainant told SC Morris, an investigating police officer, that the applicant pushed her face into the bed before the impugned offending act of rape. At trial, when asked in cross-examination, the complainant said that she could not recall if that had occurred; and

(c) the complainant gave 'differing [accounts] as to whether she was wearing underpants at the time she was sexually penetrated'. One of those accounts was that she removed her underpants before the offending conduct. At trial, the complainant said, that she took off '[her] shirt and [her] bra ... and [her] pants' and that she did not think she had any clothes on.

1. It is common ground between the parties that the judge gave an impeccable direction on the use that may be made of these prior inconsistent statements insofar as they could affect the complainant's credibility and reliability as a witness.
2. The complaint under this part of proposed ground 1 is that the judge should also have directed the jury that there was a hearsay use to which these prior inconsistent statements could be put. The argument is that the judge should have directed the jury that should they find that the prior statements were made, then the jury could have acted upon the assertions in those statements as evidence of the truth of the facts so stated.
3. Section 60 of the Evidence Act 2008 ('the Act') contemplates that once evidence of a previous representation is admitted for a non-hearsay purpose (such as proof of a prior inconsistent statement admitted to support an attack on a witness' credit), it may be utilised to prove, through hearsay means, the existence of an asserted fact.[4] Thus, s 60 allows for an exception to the exclusionary hearsay rule expressed in s 59 of the Act.[5]
4. Notwithstanding this legislative permit (which does not reflect the common law) this part of proposed ground 1 is lacking merit:

(a) the use of the statements as proof of the facts asserted was never urged on the jury at trial by the applicant's counsel. The prior inconsistent statements were relied upon solely for credit purposes;

(b) it is hard to envisage that hearsay evidence that the applicant had previous non-consensual penetrative oral sex with the complainant would have advanced the defence case on the rape charge; and

(c) similarly, establishing through hearsay evidence that the applicant had pushed the complainant's face into the bed immediately before the alleged rape, would hardly have assisted the applicant's cause.

1. Whilst there may have been some mild forensic advantage in establishing that the complainant removed her underpants prior to the alleged rape, this would necessarily have been a hazardous approach for defence counsel, because:

(a) there were other accounts given by the complainant - namely that the applicant pulled her underpants down or that she could not really remember how they were removed - which would have undermined the possible forensic advantage referred to above; and

(b) if this piece of hearsay evidence has been relied upon as proof of the facts asserted, it would have been an open invitation to the prosecution to seek to rely upon the other highly prejudicial hearsay evidence referred to in paragraph [30] above (concerning prior non-consensual sex and pushing of the complainant's face into the bed just before the alleged rape) as proof of the facts asserted.

1. It is thus readily understandable that the applicant's counsel did not seek to use the impugned evidence beyond for credit purposes. The contention that this Court should now conclude error from the judge's failure to address a purpose that was never ventilated before her, is unsustainable and must be rejected.
2. We note that it has been suggested that there is authority that, if a party seeks to rely on hearsay evidence as proof of the facts asserted, this should be made clear and a ruling should be obtained from the court that the evidence may be used for that purpose, and that such a procedure suggests consideration of s 136 of the Act to limit permissible use.[6] In this case it is unnecessary to determine whether such a ruling is required or desirable. The hearsay statements were never sought to be relied upon as proof of the facts asserted.

Proposed ground 1(b) - unreliable witness direction

1. The second part of proposed ground 1 contends that, in respect of the complainant's evidence, an unreliable witness direction pursuant to s 32 of the Jury Directions Act 2015 should have been part of the judge's charge to the jury. This part of proposed ground 1 must also be rejected. We shall explain this conclusion.
2. In his written case, the applicant set out the various attacks that were said to be made upon the complainant's credit at trial. In short compass, the more prominent attacks were as follows:

(a) the complainant travelled with the applicant to the Peninsula Hot Springs on 1 November 2019. On that trip, she consumed a substance she believed to be LSD. She admitted consuming alcohol and cannabis during that evening and further cannabis on the return trip to Melbourne;

(b) on many occasions (allegedly over 100 in total) the complainant answered questions in evidence with words to the effect, 'I don't recall'. This was said to give rise to a risk of confabulation about matters which she asserted she did recall;

(c) the complainant concealed her drug use from police. She conceded that in her statements to police, she did not mention any drug use, and that she only revealed her LSD use after a urine test detected drugs;

(d) the complainant concealed her previous consensual sexual relations with the applicant from investigating police;

(e) the complainant gave different accounts as to whether or how she said 'no' to penetration;

(f) the complainant failed to disclose to police her relevant text messages to the applicant;

(g) the complainant gave prior inconsistent statements to police about the events of 2 November 2019 at the applicant's apartment (as identified in part 1 of proposed ground 1);[7] and

(h) the complainant's account of events of 2 November 2019 was implausible, because she asserted that she had consented to all sexual acts excluding penetrative vaginal sex.

1. Each of these asserted insults to the complainant's credit was explored in cross-examination and competently addressed by both defence and prosecution in their closing submissions. The issue of the complainant's credit was the central issue at trial and thoroughly agitated before the jury.
2. Sections 11 and 12 of the Jury Directions Act 2015 provides that before closing addresses, legal practitioners must request of a trial judge any particular directions sought in respect of matters in issue and or the evidence in the trial relevant to those matters.[8] Obviously, an unreliable witness direction pursuant to s 32 of the Jury Directions Act 2015 is such a matter.[9]
3. No such request was made of the trial judge.
4. The trial judge was statutorily prohibited from giving the impugned direction,[10] unless she concluded that despite counsel's failure to request it, there were substantial and compelling reasons for doing so.[11]
5. It follows that, for this part of proposed ground 1 to succeed, the applicant must demonstrate that there existed substantial and compelling reasons for giving that direction. The applicant has not come close to demonstrating this. Whilst the complainant's credibility and reliability were critical issues in the trial, the same can be said about almost every trial of a sexual offence. As we have observed earlier in these reasons,[12] the complainant's credit was interrogated exhaustively at trial. There were no hidden traps that may have caused the jury to underestimate the credit attack.
6. The complainant gave evidence of consuming alcohol, cannabis and LSD over a period leading up to the offences, however there was no suggestion that her memory was consequentially affected. To the contrary, it was suggested in cross-examination that the LSD may have had an aphrodisiac effect. Her response in her evidence was that that LSD did not have much of an effect. In defence counsel's closing address there was no suggestion that intoxication affected the reliability of the complaint's memory, nor was there any suggestion that there was a risk of confabulation due to alcohol or drugs.
7. To the suggestion that the complainant gave different accounts as to whether she said 'no' before penile-vaginal penetration, in cross-examination, defence counsel asked an ambiguously double-barrelled question, as follows:

[Defence counsel]: ... I'm suggesting you didn't say no, you say you did. I'm saying the only thing you did to indicate you weren't liking it at any point, I'm saying, was pull away for a moment, as you've told us you did. And then immediately afterwards, you'd carried on kissing each other and touching each other, as if to continue the sexual interaction, all right? What do you say about that?

[Complainant]: 'Um, yes'.

1. It is unclear whether the applicant was agreeing to the totality of the propositions contained in this question, or something less than that. It may be that she was agreeing that she pulled away; it may be that she agreed that she had pulled away and then continued kissing; or it may be that she agreed that she did both these things and did not say 'stop'. The answer should have been clarified. Against that, in other evidence the complainant consistently said that she said 'no' loudly and on numerous occasions.
2. The complainant's initial denial to police that she used drugs at material times was thoroughly tested before the jury. Similarly, the complainant's prior consensual sexual activities with the applicant were thoroughly explored in defence cross-examination.
3. We disagree with the applicant's submission that the complainant gave an implausible account of the rape and its surrounding circumstances. Women exercising their right to place boundaries on sexual activity is not implausible at all. It is normal human behaviour.
4. In our view, there was nothing in the evidence of this case - whether viewed piecemeal or in combination - which compels the conclusion that there were substantial and compelling reasons for her Honour to provide an unreliability warning to the jury.
5. Further, defence counsel's decision at trial not to ask for an unreliability warning, if he turned his mind to it, was forensically sound. On any view of the evidence, the applicant appears to have been considerably more intoxicated than the complainant. In CCTV footage recorded as he and the complainant left the bar and walked to a waiting Uber, he appeared quite unsteady and the complainant walked normally. Evidence from other witnesses on the relevant evening described the applicant as 'extremely loud', 'hyper ... and loud in a pretty drunk way' and 'really loud or sometimes a bit touchy or obnoxious'. In circumstances where the applicant gave evidence at trial, an unreliability direction about the complainant's evidence, stemming from the potential impact of drugs and alcohol, would have very likely had a knock-on impact on the applicant's evidence upon which he relied to establish reasonable doubt.
6. Proposed ground 1 must be rejected.

Proposed ground 2 - unsafe and unsatisfactory verdict

1. This proposed ground covers much of the same factual territory as proposed ground 1 of this application and reasons, and regrettably requires some repetition.
2. We have set out a summary of the evidence at paragraphs [5]-[24] of these reasons. The applicant's contention, in substance, is that the complainant's evidence was such that the jury could not conclude that she was a truthful witness and were bound to reject her evidence. The applicant contended that '... a fair reading of the complainant's evidence is that she was deliberately evasive and not making a genuine effort to assist the Court by providing truthful and complete answers to questions where it did not suit her.' The applicant relied on the asserted inconsistencies and implausibility that underpinned proposed ground 1.
3. This proposed ground of appeal is brought under s 276(1)(a) of the Criminal Procedure Act 2009.[13] To succeed under this proposed ground, the applicant must satisfy the court that 'the verdict of the jury is unreasonable or cannot be supported having regard to the evidence'.[14]
4. The proposed ground is directed only to the conviction on charge 1 - that is the rape conviction.
5. In this application, this Court is required to conduct its own independent evaluation of the evidence,[15] however, in doing so, it must give full weight to the jury's advantage in seeing and hearing the witnesses, and the principle that the jury was the body entrusted with the principal responsibility of determining the guilt, or otherwise, of the applicant.[16]
6. The starting point of this Court's evaluation is the assumption that the jury regarded the complainant's evidence on material matters as both credible and reliable.[17] The court is then required to examine the record to see whether, notwithstanding that assumption

• either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[18]

1. We have carefully scrutinised the transcript of evidence and submissions made to the jury.[19] Whilst it is correct that the complainant used drugs and alcohol both in the day and evening of 1 November 2019, and perhaps alcohol in the early morning of 2 November 2019, there is no real suggestion from the evidence that she was so affected by these substances that her memory was compromised or that she was confabulating. As we have observed, the LSD taken by the applicant was suggested by the applicant to contribute to her sexual arousal. Further, whilst her memory was described by defence counsel in his closing address as 'appallingly bad', this was never linked to alcohol or illicit drugs. Further, it was not suggested to her in cross-examination that she was confabulating as a consequence of alcohol or drugs or both. It was simply and bluntly put to her that she was lying.
2. We agree with the respondent that the purported inconsistences in the complainant's evidence are either inconsequential and/or readily-enough explicable. In particular, the complainant's failure to fully disclose her illicit drug use to police, and her failure to tell the police or the forensic doctor about her prior consensual sexual activities with the applicant are explicable by the predicament the complainant found herself in when dealing with those people. On any view, she had sustained an internal injury during the act of penetration with profuse bleeding and she was highly agitated and distressed. She explained in her evidence that she was scared to tell the police of her drug use and, in any event, she was asked by them only of the events in the immediate lead up to the impugned incidents. The complainant accepted that she did not tell police about her prior consensual activity. She said this was because she was in shock; she gave her first statement whilst in that state and she did tell the police that her and the applicant had been 'making out' prior to penetration.
3. Despite the assertions in the applicant's written case, the complainant did not give differing accounts of whether she said 'no' just before being penetrated. The complainant's account was entirely consistent - she said 'no' on multiple occasions and 'stop' before penetration. We regard her answer to the double or triple-barrelled question referred to at [42] of these reasons as equivocal. The question should not have been asked in that form, should have been the subject of objection, and once answered, the answer should have been clarified. Without that clarification, the answer is effectively meaningless.
4. The complainant's explanation for going to the applicant's apartment is plausible. She denied going there with the intention of having sexual contact or intercourse, and stayed to make sure 'he was okay'. That they subsequently had some consensual sexual contact simply does not mean she lied about this.
5. In evidence, the complainant initially stated that her underpants remained on, despite saying in an earlier police statement that the applicant had removed them. Later in evidence, she stated she could not remember whether her underpants remained on or not. These shortcomings are, in our view, relatively inconsequential and typical of the sorts of variance that are regularly observed in this type of criminal trial.
6. The complainant was criticised by defence counsel for not providing relevant text messages to police. In cross-examination, she denied withholding this information from police and said that while she did not volunteer information to police about the text messages, she gave them her unlocked phone so 'they [could] look themselves'. The complainant admitted that some of the text messages may be flirtatious but she said she could not recall the details nor if they included any discussions about sex. A review of the text messages shows they were mutually flirtatious but with no explicit discussions about sexual activity.
7. Further, many of these criticisms made by the applicant are peripheral to the impugned events. The complainant's credit was vigorously tested in cross-examination, and we consider that on central matters, her credit and reliability remained intact. Shortly after the alleged offending, she complained to almost everyone that she spoke to (including the Uber driver) that she had been vaginally penetrated against her will. It is unreasonable to expect precise recall from a young person who, on any reasonable view, was distressed and internally injured.
8. We consider that there is nothing 'implausible' about the complainant consenting to some forms of sexual activity, but not full penile-vaginal sex. That is her inalienable right. As we have said, there is nothing implausible about a woman exercising her right to place boundaries on sexual activity.
9. After independent examination of the record, including the evidence of the complainant, the applicant and the other witnesses, and of the evidence tendered as exhibits at trial, we consider that the applicant has failed to establish that the jury must have entertained a reasonable doubt on the charge of rape. As we have said, it must be presumed that the jury found the complainant to be a reliable and credible witness. In our view, that presumption is well justified on the evidence and has not been successfully challenged.
10. We would refuse leave to appeal on proposed ground 2.

PART B: THE APPLICANT'S APPEAL AGAINST SENTENCE

1. The sole ground of appeal against sentence alleges manifest excess. It is expressed as follows:

The learned sentencing judge erred in imposing a head sentence and non-parole period in respect of charges 1 and 2 that was wholly outside the range of available sentences in the [circumstances] of the case.

1. The applicant correctly accepts that he assumes the burden of demonstrating

not merely that it is likely the Court on appeal may impose a different sentence, but that the impugned sentence is 'wholly outside the range of [sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion]'.

The applicant further correctly accepts that the sentence itself must bespeak underlying error.[20]

1. The judge comprehensively summarised the offending. It is unnecessary to rehearse this. The judge then interpreted the jury verdict and made the following findings of fact arising from the verdict:

(a) the complainant did not consent to penile-vaginal intercourse and physically resisted the applicant, as well as saying 'no' or 'stop' repeatedly;

(b) the applicant knew that the complainant was not consenting and proceeded regardless;

(c) the applicant forcefully penetrated the complainant from behind causing sudden pain, resulting in her screaming; and

(d) the pain was ongoing for several hours after the event and frustrated a speculum vaginal examination.

1. The judge then turned to a characterisation of the gravity of the offending. Her Honour determined that the rape was a 'mid-range example' of that offence having regard to the following factors:

(a) the applicant was six years older than the complainant and they had only known each other for a matter of weeks;

(b) the complainant was a virgin and the applicant knew that. She had already demonstrated that by avoiding his attempts to insert his penis into her vagina at the hot springs;

(c) there was flirtation and interest from both sides;

(d) the applicant abused the complainant's trust by taking advantage of a situation where she was alone and isolated at his apartment;

(e) despite the verbal and physical protests from the complainant, the applicant persisted and forcibly penetrated her vagina whilst not using a condom, causing profuse bleeding and sharp pain; and

(f) the penetration was very brief and the rape was not premeditated.

1. In relation to the false imprisonment the judge considered the context of the rape, the complainant's distress, her pain and bleeding, that he prevented her from leaving for approximately 15 minutes by physically holding her or blocking her from exiting the ensuite, and that her screams were heard by a neighbour. The judge rejected the applicant's explanations that he was restraining the complainant in self-defence and that he did not want to let her leave as he was concerned for her. However, her Honour noted that many of the aggravating factors for false imprisonment were not present;[21] that, unlike premediated circumstances, this was 'a frantic scene' involving 'the sight of blood and the amount of blood was no doubt distressing to [the applicant]'.[22] As such, the judge considered the false imprisonment to be 'a lower end example of that offence'.[23]

1. The judge then turned to the applicant's personal circumstances. He came to Australia alone at the age of 15 to further his education. He suffered depression, anxiety, low self-esteem and difficulty adjusting to life in this country. Despite living with guardian families for his first few years, he had difficulty adjusting to life here and was overwhelmed by a different language and culture.
2. The judge reviewed two reports from:

(a) Mr Watson-Munro, dated 14 November 2024; and

(b) Dr Pamela Matthews, dated 1 November 2024.

1. The applicant, after considerable effort, gained entry initially to a diploma course in accountancy and then to a degree course in Marketing and Communications at University of Technology in Sydney. The judge agreed with Mr Watson-Munro that it was to the applicant's credit that his diligence enabled him to undertake tertiary study. The applicant left this course after about a year to start a partnership in a Sydney restaurant which was successful for about two years before failing in its third year. Mr Watson-Munro considered this exacerbated the applicant's underlying depression.
2. The applicant returned to Melbourne and tertiary study, completing a Bachelor of Accounting. He worked as an accountant to a business in Geelong until his remand.
3. He has a son, now aged 7 years, from a previous relationship. He has limited but positive contact with the child.
4. The applicant has no prior convictions, although he received a good behaviour bond in Sydney for resisting police in 2013. The judge stated that the applicant had a history of drug abuse throughout his 20's including cannabis, cocaine, methylamphetamines, LSD, MDMA, ketamine and benzodiazepines. He was dealt with in Melbourne Magistrates' Court in 2022 for possession of various drugs and received a non-conviction good behaviour bond. He successfully completed this undertaking.
5. The judge accepted and favourably commented upon the applicant's long CISP bail history whilst largely controlling his drug habit, more recently abstaining from drugs, and simultaneously maintaining stable and quite demanding employment. Her Honour also remarked upon the applicant's current stable relationship of some four-and-a-half-years' duration. His partner is supportive of him and was present in court during the plea, together with other family members. We interpose to note that it seems that the offending conduct occurred before this relationship commenced.
6. Her Honour rehearsed the effect of a significant body of favourable character evidence and stated that this evidence would be taken into account.

1. Insofar as the prospect of deportation is concerned, her Honour said this:

Your immigration status is now uncertain as a result of your convictions and the sentence you will receive for this offending. You are currently on a bridging visa which will likely be cancelled. As a result of the sentence I impose you are likely to be deported.

Higher Courts have said that is a proper matter for me to consider.[24] In your case you have spent the greater portion of your life, and certainly your formative years, living in this country. You consider it to be your home. You have a son here. You have a partner here with whom you have future plans and goals. You have extended family here. Although your parents remain in Vietnam and are supportive of you, you have not lived with them or in that country for many years.

Those are matters which will weigh very heavily on you during your time in custody. I accept the likelihood of deportation and the loss of your relationships in Australia will add to the burden of incarceration and I take it into account.[25]

1. Similarly, her Honour set out the extraordinary delay that attended the entire criminal proceedings. The judge recited the torturous history which we set out in paragraph [91(e)] of these reasons. Her Honour then said

I do however accept the submission made by [defence counsel] that delay is a significant feature in sentencing you. He submits, and I accept, that the delay in your case is exceptional, and that it should be significantly mitigating.

Delay is relevant to sentence in two ways: first because it is common that an offender experiences the anxiety and strain of having unresolved serious offences hanging over them for a period of time; and second, it is relevant where an offender can demonstrate efforts towards rehabilitation in the intervening period. Both of these considerations apply here.

In your case I take into account that you are a person with no prior criminal history. You were 27 when you committed these offences, 28 when you were charged and 32 when the guilty verdict was delivered. Now, five years on from your offending you are no doubt very much affected by having this matter hang over you for that extensive period of time. No doubt you feel yourself to be a very different person.

I have read the psychological reports. They attest to your history of difficulty generally with low self-esteem and with anxiety and the fact that those conditions have undoubtedly been negatively affected by this period of delay.

I accept that continuing to work and participate in community activities under those circumstances is very difficult. Nonetheless that is what you have done, maintaining employment, a relationship, stable residence, connection to a range of family and friends and some connection to your son. Those matters demonstrate your capacity for rehabilitation.

You have not reoffended in any similar way during that period of time. You were on bail from the time you were charged until I remanded you after the jury verdict. You have become abstinent with regard to illicit drug use. Those matters are positive.

You sought treatment with Dr Matthews. That is to your credit. Her report of your comments about these events reveals some aspects of victim blaming and a lack of insight.[26]

1. The judge correctly gave 'very limited weight' to the applicant's offer to the prosecution to seek a sentence indication for the false imprisonment charge,[27] but with no such offer on the rape charge.

1. The judge correctly considered the applicant's prospects for rehabilitation as very positive and considered that there were some expressions of remorse contained in testimonials. Her Honour said, 'I do accept you are sorry for what was obviously a distressing experience for [the complainant]'.[28]

1. The applicant submitted that the objective gravity of the rape offending sat below the mid-range into the lower-end of the objective spectrum. He submitted that the sexual penetration was very brief, perhaps for a second, and after prolonged consensual sexual activity which was pursued enthusiastically by both participants.
2. The applicant also relied on, inter alia, the following factors which he submitted ought to have operated together to substantially mitigate the penalty imposed for rape:

(a) he has no prior convictions and only one irrelevant finding of guilt a decade ago;

(b) he has very positive prospects for rehabilitation;

(c) he maintained stable, responsible employment whilst on bail;

(d) the delay was extraordinary and arose through no fault of the applicant; and

(e) the applicant will likely be deported to Vietnam after his release from custody, as her Honour found.

1. The applicant further submitted that current sentencing practices for similar cases revealed that the rape sentence of 8 years' imprisonment was an outlier when compared with comparable cases. He referred to three cases, all of which predated the operation of the standard sentence scheme.[29] He also referred to DPP v Caccamo.[30] In that case, the offender was convicted by jury of briefly inserting his penis into his then-housemate's vagina after she had indicated her lack of consent. He had no criminal history and was sentenced to a term of 4 years' imprisonment with a non-parole period of 2 years. In that case, the sentencing judge considered that the offender's moral culpability was reduced given 'the very brief duration of penetration and [the applicant's] voluntary withdrawal'.[31]
2. The applicant submitted that while her Honour correctly referred to all relevant matters, the sentence on its face bespeaks error - the judge must have given insufficient weight to the factors in mitigation, particularly when regard is had to the standard sentence of 10 years' imprisonment.[32]

1. The respondent correctly observed that the sentences imposed in Ivanov,[33] Worthington[34] and Moss[35] predated the introduction of the standard sentencing scheme and were of no assistance as comparators. He further correctly observed that sentences are not precedents to be applied or distinguished. At best, if true comparators, they can provide some indication of an appropriate sentencing range. It was further submitted that the offence was properly viewed as of mid-range seriousness. The respondent reviewed and relied on the judge's remarks and factual conclusions that we have reviewed in paragraph [67] of these reasons.

1. We consider her Honour's reasons for sentence to be impeccable. No identifiable error is alleged. Indeed, her Honour conscientiously identified every objective and subjective sentencing consideration in this difficult sentencing exercise. This, however, is not a complete answer to the applicant's submissions which contend that the head sentence on charge 1 (rape) betrays some underlying error in the sentencing process. In discussion, counsel for the applicant contended that the subjective factors affecting the applicant's circumstances were significant and must have been given considerably less attention in the sentencing synthesis than, in fact, they deserved. We agree with this submission.
2. There can be no sensible dispute with her Honour's findings about the objective gravity of the offending, and we disagree with the applicant's counsel on this aspect. This was not 'low range' offending. The standard sentence of 10 years' imprisonment is a legislative guidepost for courts considering a sentence for rape. It is a guidepost that presumes, based on objective factors only, that the offence under consideration is in the 'middle of the range of seriousness' for that type of offence.[36] It takes no account of subjective factors personal to an offender,[37] and is one of many factors a sentencing judge must take into account.
3. From his prior consensual sexual experience with the complainant, the applicant knew that this young woman was a virgin and that she wished to remain so. He knew he had no right to impose himself upon her, and yet he did so with some force. The complainant was in the company of a larger and stronger person - she was otherwise alone and isolated. During or just before penetration he rolled her over, held her arms above her head and penetrated her from behind causing sudden intense pain and substantial blood loss. He subjected her to the risk of unwanted pregnancy and STDs.
4. Whilst there were some factors of aggravation that were not present, and which often are in more serious examples of this type of offending, we consider that they do not operate to bring this case into a 'lower range' category. Put another way, the very limited duration of penetration - perhaps 1-2 seconds; the lack of premeditation; and the lack of a weapon or other threats or extreme or protracted accompanying violence are reasons why this offending is correctly characterised as being in the middle range of seriousness, and not at some higher level.
5. In our view, the applicant was able to point to some very powerful subjective factors that ought to have counted strongly in his favour in the ultimate sentence for rape. They are:

(a) at age 27 years, he had no prior convictions or findings of guilt of any significance;

(b) in the years after the offending, he had not committed any offences;

(c) he had achieved a tertiary qualification and had been gainfully employed throughout his adult life;

(d) his prospects for rehabilitation were, as her Honour found, 'very positive';[38]

(e) the delay from offending to ultimate disposition was quite extraordinary. The applicant was interviewed by police on 3 November 2019 and was ultimately sentenced on 28 November 2024. In the intervening 60 months, he had attended at County Court for trial on numerous occasions. In total, five juries were empanelled between November 2022 and August 2024. The first three juries were discharged for various reasons. The fourth jury could not agree on a verdict after three days of deliberations. This procedural history must necessarily have caused the applicant very significant uncertainty and anxiety over a protracted period. This is a substantial mitigating factor; and

(f) upon his release, there is a very real prospect that the applicant will be deported to Vietnam.[39] He is not an Australian citizen, despite living here for his adult life. He has a partner and a child in this country. The prospect of deportation will inevitably weigh heavily upon him over the period of his sentence and is also a significant mitigating circumstance.[40]

1. After anxious consideration and after synthesising all the relevant sentencing factors as best we can, we are compelled to the conclusion that the head sentence on the charge of rape is wholly outside the range of sentences available to her Honour. In our view, the factors in mitigation - particularly the extraordinary delay and the burdensome prospect of deportation - have received insufficient weight in the sentence imposed. The sentencing discretion must be reopened.
2. We are fortified, to some modest extent, in this conclusion by current sentencing practices. Every rape sentence will have its own particular circumstances and none are identical, however a perusal of recent sentences that have reached this Court suggest that individual imprisonment sentences of 8 years or beyond after a plea of not guilty are generally imposed for objectively more serious cases than this case.[41] Further, a number of sentences of less than 8 years, after trial, would appear objectively to be more serious than this case.[42]
3. Whilst the appeal ground alleges manifest excess in relation to charge 2 (the false imprisonment charge), this was not advanced in the applicant's oral submissions. To the extent that it was advanced in the written submissions, the applicant has failed to demonstrate manifest excess in relation to charge 2, although, as the sentencing discretion has been reopened, we must consider it in any event.

1. The sentences on charges 1 and 2 are set aside. In lieu, the appellant is to be resentenced to 6 years' imprisonment on charge 1, and 2 years' imprisonment on charge 2. We direct that 3 months of charge 2 be served cumulatively on the sentence imposed on charge 1.

As such, the appellant is re-sentenced to a total effective sentence of 6 years and 3 months' imprisonment. We direct that the appellant serve 3 years and 9 months' imprisonment before he is eligible for parole.

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

[3] The evidence from prosecution witnesses was recorded over three occasions: a pre-recording of the complainant's evidence and witnesses 'YN' and 'AH' in November 2022; a pre-recording of Dr Krishnan's evidence on 6 February 2022; and a recording from the remaining witnesses during Trial 3 in March 2024.

[4] Evidence Act 2008, s 60.

[5] Ibid ss 59, 60.

[6] Stephen Odgers, Uniform Evidence Law (Thomson Reuters 20th ed, 2025), at [60.60] and [60.120], citing Ghebrat v The Queen (2011) 214 A Crim R 140, 149 [47] (Tate JA, Buchanan JA agreeing at 141 [1] and Sifris AJA agreeing at 150 [58]); [2011] VSCA 299; and Russell v The Queen [2013] VSCA 155, [29]-[32].

[8] Jury Directions Act 2015, ss 11 and 12.

[9] Ibid s 32.

[10] Ibid s 15.

[11] Ibid s 16.

[12] See [35] of these reasons.

[13] Criminal Procedure Act 2009, s 276(1)(a).

[15] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; R v ZT [2025] HCA 9; (2025) 281 CLR 137, 158, [53] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ); [2025] HCA 9.

[16] See R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Pell v The Queen (2020) 268 CLR 123, 145, [39] (Kiefel CJ. Bell, Gaegler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 ('Pell').

[17] Pell (2020) 268 CLR 123, 164, [119] (Kiefel CJ. Bell, Gaegler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[18] Ibid 145, [39] (Kiefel CJ, Bell, Gaegler, Keane, Nettle, Gordon and Edelman JJ).

[19] This task has been complicated by the torturous procedural history of this matter. A jury was empanelled on no less than five occasions before verdict. All of the evidence in the ultimate trial was pre-recorded in earlier hearings. The only oral participation in this trial was through counsel's opening and closing addresses, various legal discussions in the absence of the jury, and the judge's charge.

[20] Applicant's written case, citing Lai v The King [2023] VSCA 151, [16].

[21] Such as violence, the threat of violence, and the use of weapons or physical restraints.

[22] DPP v Le [2024] VCC 1937, [91] ('Reasons').

[24] Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288; Matamata v The Queen [2021] VSCA 253.

[29] Ivanov (a pseudonym) v The Queen [2019] VSCA 219 ('Ivanov'); DPP v Worthington (a pseudonym) [2020] VCC 670 ('Worthington'); DPP v Moss (a pseudonym) [2021] VCC 1385 ('Moss').

[30] [2023] VCC 1733 ('Caccamo').

[32] Crimes Act 1958, s 38(3).

[33] Ivanov [2019] VSCA 219.

[34] Worthington [2020] VCC 670.

[35] Moss [2021] VCC 1385.

[36] Crimes Act 1958, s 38(3); Sentencing Act 1991, ss 5(2)(ab), 5A(1)(b).

[37] Those subjective factors may include the applicant's prior history, any psychological or psychiatric impairment, work and family history, and (where entered) any plea(s) of guilty.

[39] Migration Act 1958 (Cth) s 501(3A).

[40] Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 294-5 [25]-[27] (Maxwell P, Bongiorno JA and Beach AJA); [2010] VSCA 196.

[41] See, eg, DPP v Mokhtari [2020] VSCA 161; Saab (a pseudonym) v The Queen [2022] VSCA 116; Landale (a pseudonym) v The Queen [2022] VSCA 121; Lockyer (a pseudonym) v The Queen [2020] VSCA 321; DPP v Patil (a pseudonym) [2020] VSCA 337.

[42] See, eg, Ierardo v The King [2024] VSCA 181; Thornton v The Queen [2021] VSCA 325; Abdullahi v The King [2024] VSCA 156; Stafford v The King [2022] VSCA 229; Flynn (a pseudonym) v The Queen [2020] VSCA 173.