1. As we have said, on 3 December 2019, MN was walking along the Merri Creek Trail listening to music on her telephone when, at about 7.30 pm, the applicant came from behind her and placed his hand on her right buttock. He told MN to come with him, and began grabbing at her. MN refused and started screaming. She ran away from the applicant but he quickly caught up with her. MN tried to kick the applicant to the groin, but the applicant grabbed her around her upper body and dragged her down the steep embankment towards Merri Creek, about nine metres away, and about 3.7 metres lower than the path.
2. MN continued to scream and tried to break free, but was unable to do so. She clawed the ground to try to stop the applicant from dragging her into the water. As he dragged MN into the creek and threw her down onto her stomach, he said: 'Shut up. Stop screaming'.
3. The water in the creek was shallow. As he lay on top of her, the applicant pushed MN's head under the surface. When she turned her head to the side so she could take a breath, the applicant again pushed her head under the water with his hands around her neck, holding her head there for about 30 seconds. MN was terrified that she was going to pass out. These activities placed MN in danger of serious injury (charge 1 - reckless conduct endangering serious injury).
4. After the applicant released her head, MN was on her knees in the creek. The applicant said: 'I'll let you live if you let me fuck you'. MN tried to say, 'Let me live. Let me live', but the applicant yelled at her to shut up. The applicant let go of her neck, and MN sat up against the creek embankment. The applicant then pulled her leggings and underwear down, and pulled down his own pants without fully removing them. Believing she could not stop the applicant, MN removed her right running shoe so she could remove the right leg of her leggings and her underwear. She believed that if the applicant became violent again, this would make it easier for her to get away.
5. The applicant then stood in the water between MN's legs and inserted his penis into her vagina. Without a condom, he continued to penetrate her vagina with his penis, which was not fully erect, for about a minute (part of charge 2 - rape). The applicant then removed his penis and inserted the fingers of his right hand into her vagina. His movements were brutal, and he stabbed over the outer parts of MN's vagina with his fingers (part of charge 3 - rape). MN was afraid that the applicant was going to kill her. He asked her if she liked what he was doing. When she replied 'no', he told her to just say 'yes'. The applicant told MN that he wanted to make her orgasm and that, if she did so ten times, he would let her go.
6. After removing his fingers from MN's vagina, the applicant again inserted his partially erect penis (part of charge 2 - rape). He then removed his penis and again inserted his fingers into MN's vagina. He was rough, poking at MN's vagina and only partly inserting his fingers, apologising as he did so (part of charge 3 - rape).
7. As he penetrated MN with his fingers, the applicant started licking her vagina (charge 4 - sexual assault). The applicant then picked up a muddy stick from the embankment, which he used to prod MN's vagina, causing her pain (charge 5 - sexual assault). She told him that it hurt. The applicant then dropped the stick and told MN to rub her vagina, which she did for about a minute (charge 6 - sexual assault by compelling sexual touching).
8. MN could hear people walking along the trail above. The applicant pushed her into the bushes and told her to be quiet. It was starting to get dark. The applicant told MN to bend over. She complied, bending over, still standing in the water, resting her arms on the embankment. The applicant's penis then touched her anus (charge 7 - sexual assault). He then inserted his penis into her vagina from behind (part of charge 2 - rape). The applicant said: 'I'm almost there. Keep going. Then we can go'.
9. In the course of the offending, the applicant made MN kiss him. He lifted her t-shirt and sports bra and kissed her breasts and the side of her waist. After MN said she was cold, the applicant gave her his hooded jumper, telling her to put it on. He then once more inserted his penis into MN's vagina (part of charge 2 - rape).
10. The applicant then asked MN to call her friends to tell them she was all right. She said that she would do so once they left the area, suggesting they go somewhere dry together, as she was now cold and wet. Eventually the applicant agreed. He and MN walked to the Merri Creek Trail. She dressed herself and returned the hooded jumper. MN was devising various plans to escape. The applicant told MN to hold his hand while they were walking. He asked her if she would tell police. She said no, and that she just wanted to go home. He said: 'But you enjoyed it, didn't you? You came'. She told him no. Bizarrely, the applicant then asked if she was going to visit him in gaol, MN said she would not. The applicant then said: 'Sorry for raping you. I've ruined your life, haven't I?'.
11. At about 10.00 pm, as they approached a nearby McDonald's restaurant, MN tried to pull the applicant towards it, but he tried to pull her back. MN yelled, and the applicant stopped. She grabbed a metal pole at the entry to the McDonald's, so the applicant could not drag her away, telling him to go home. The applicant loitered in the entry way to the restaurant for about a minute before running away. MN ran into the restaurant and asked someone to call police.

1. About 1.00 am the following morning, Wednesday, 4 December 2019, the applicant entered a Coles Express store in Carlton, wearing the same hoodie. After putting his hoodie over his head, the applicant asked the attendant to open the till. When the attendant refused, the applicant said his mother was in hospital and he needed the money. The attendant told the applicant he was being recorded and activated the store alarm. In a louder voice, the applicant said: 'I have a knife on me, and I'll stab you'.
2. The applicant then tried to reach the till from over the counter. He pulled it out, but the attendant pushed him away. A customer in the store, who saw what happened, approached. The applicant remained in the store as the attendant called '000'. He asked for cigarettes and the attendant told him the 'smokes' were locked. The applicant then left the store (charge 8 - attempted robbery).

1. At 1.12 am, shortly after being notified of the attempted robbery, police identified the applicant at an intersection in Carlton and arrested him. He was taken to the Melbourne West Police Station. Police viewed CCTV footage from Coles Express, which depicted the applicant. At about 3.30 am, police investigating the rapes were advised that the applicant was in police custody regarding the attempted robbery, that he was wet, with mud on his clothing, and that he appeared to match the description provided by MN. Shortly afterwards, the applicant's clothing was seized.
2. From 5.57 pm the applicant was formally interviewed. In summary, he denied the rapes and denied meeting a woman on the Merri Creek Trail. He claimed that: he had been walking the streets and playing the pokies; he had been assaulted and robbed by a man and woman, who stole his mobile phone; and he could not remember walking to McDonald's with a woman. The applicant also denied wearing the clothes he was arrested in. He was charged and remanded in custody.

1. Weeks earlier, at 11.25 pm on 15 October 2019, the applicant was seen in Brunswick East using pliers attempting to cut through a chain securing a bicycle to a rack. Police were called. Two police arrived at the location at 11.31 pm and arrested the applicant. When searched, the applicant was found in possession of two box-cutter knives, which are controlled weapons.

Damaging property and committing an indictable offence on bail

1. On 23 November 2019, the applicant was an inpatient at the Royal Melbourne Hospital. At 12.50 pm he picked up a large wooden table in his room and started smashing a glass window with it, breaking the table. At the time, the applicant was on bail, granted on 16 October 2019, for the attempted theft of the bicycle.

1. The applicant, now aged 30 years,[10] was removed from his parents' care at the age of four, and spent the next 14 years in foster care. His cognitive impairment places him in the intellectually disabled range, with long-standing significant deficits in adaptive functioning. When released from custody in July 2019, having completed a previous sentence of imprisonment for rape, he experienced a progressive deterioration in his mental health in the community. He then committed a number of serious offences, including the rapes and associated offences perpetrated against MN.
2. It appears that the applicant's childhood deprivation commenced in the womb, when he was exposed to his mother's illicit drug use. He was born eight weeks premature, weighing just over two kilograms. Due to severe neglect and emotional abuse, he was permanently removed from his parents' care aged four. Thereafter, he had minimal contact with his mother, and cycled between various foster placements and residential care in NSW and Victoria, where he was physically and sexually abused. These placements were punctuated by intermittent short stays with his biological father, who suffered from schizophrenia and was no stranger to the criminal justice system.
3. The applicant was starved and physically abused during one foster care placement. Despite reporting his experience to child protection authorities, he was returned to the placement when he repeatedly absconded. Sometimes the applicant would run away from placements to try and find his stepmother and father, at whose hands he would then also experience physical abuse. He attended a special school in Frankston, but displayed behavioural difficulties which resulted in a cycle of truanting, returning to school (where he was behind), and then truanting again. When truanting, the applicant associated with peers whom he had met in care, and who had a further negative effect on his behavioural difficulties. He was introduced to drugs, and commenced methamphetamine use at the age of 16. The applicant left special education at the age of 17, part way through year 10. Although the applicant had short term stints assisting his father with concreting and roof tiling (when his father was not in custody), any employment he had was frequently disrupted by his own remand. He claimed to have experienced sexual abuse by a staff member at a Youth Justice Centre during one of these remands.
4. The applicant was sentenced to a five year term of imprisonment for rape and other offences in 2015, serving the full term. During that period in custody, he completed some drug and alcohol courses, and a sex offender program.
5. In a report tendered to the sentencing judge, Ms Carla Ferrari, forensic psychologist, expressed the view that the applicant met the diagnostic criteria for Attention Deficit Hyperactivity Disorder; Borderline Personality Disorder; Post-traumatic Stress Disorder; Alcohol Use Disorder; and Stimulant Use Disorder. Ms Ferrari suggested the likely presence of Unspecified Schizophrenia Spectrum or other psychotic disorder (given the symptoms the applicant had reported), but was unable to be definitive about its impact on the applicant's offending of 3 December 2019, given the lack of a requisite assessment being conducted whilst he was in police custody following his arrest. She expressed the opinion, however that there is a high possibility that the applicant was experiencing a psychotic episode at the time of that offending.
6. Dr Laura Anderson, a neuropsychologist, considered that the applicant meets the diagnostic criteria for an Intellectual Disability of mild severity. He has demonstrated a long-standing history of developmental and cognitive difficulties, and currently presents with global cognitive impairment that is at least two standard deviations below the average level of functioning expected from neurotypical individuals. The applicant demonstrates clear, long-standing, significant deficits in adaptive functioning. In Dr Anderson's view, the applicant was undoubtedly impaired by his disability on 3 December 2019. Dr Anderson was of the view that the applicant is likely to have been impeded in his clarity of thought, his consequential thinking skills, his impulse control, and his overall functioning, rendering it extremely difficult for him to effectively moderate his behavioural response to any impulsive thoughts or emotions he experienced at that particular time. His reduced cognitive functioning likely made it more difficult to understand and appropriately respond to his internal emotional state (and vice versa). The applicant's reduced mood state at the time of the offending, characterised by suicidal ideation, is likely to have further impeded his clarity of thought; his consequential thinking skills; his impulse control; and his overall functioning. It would be extremely difficult for the applicant to effectively moderate his behavioural response to any impulsive thoughts or emotions he experienced on 3 December 2019.
7. It seems that the applicant has attempted suicide multiple times. On 16 October 2019, he was admitted to Royal Melbourne Hospital after a suicide attempt by strangulation. He was taken there by police exercising powers under the Mental Health Act 2014. And on 19 November 2019, he was admitted to Royal Melbourne Hospital after another suicide attempt by attempted methylamphetamine overdose. Whilst there, he attempted to damage a window, so as to jump out and kill himself. During the afternoon of 3 December 2019, the applicant intentionally consumed an excess of his Lyrica medication (a pain management medication for a recent back injury) while intoxicated by alcohol, in an attempt to end his life. He then left his accommodation at Francis House and went to the Merri Creek Trail.

1. Very significantly, the applicant has, as we have indicated, a prior conviction for rape. Hence, on 28 April 2015, a judge of the County Court sentenced the applicant to a total effective sentence of five years' imprisonment, with a non-parole period of three years for rape and other offences.[11] The circumstances of that rape are disturbingly similar to the instant offending. They were summarised by the sentencing judge in his sentencing reasons as follows:[12]

On 24 July 2014, at 5.44 am, you were observed via CCTV footage to walk east along Beach Street Frankston and make your way to the Frankston Railway Station. You boarded a Flinders Street train and at 7.14 am, got off the train at Caulfield Station. You walked to a nearby plaza shopping centre and loitered around female toilets for a short time and sat outside a Coles supermarket. At one stage, a female shopper walked out of the supermarket and you followed her to the Derby Road exit and out of the plaza.

You then returned to the plaza, walked around the plaza for a short time before you walked in the direction of the Monash University Caulfield Campus. At the campus, you entered female toilets, where you remained for some ten minutes. You then left the campus in the direction of the Caulfield East Reserve at approximately 8 am. A short time later, you approached the front of the football pavilion of the Caulfield East Reserve. For a period of time, you watched a female jogger as she ran passed. You approached her and reached out your hand towards her, she ran away from the area.

A short time later, at 8.10 am, your victim left her nearby address and walked along the pathway used by joggers and passed the sports oval where you were. She saw you standing some distance off and you seemed to be staring at her. This made her feel uncomfortable. She attempted to avoid you by walking around you. She observed that you continued to watch her. Your victim had only walked about 12 steps passed you when you grabbed her from behind with both hands around her mouth. You then made a threat to her and said to you, 'Be quiet or I will kill you'. You victim managed to pull your hand away from her mouth and screamed for help. Your victim continued to scream.

At one stage, you pushed her to the ground and grabbed her again around her mouth. In the fall, your victim struck her chin on a stone and her chin bled. At one point, you said to your victim, 'Be quiet. I'll let you go if you be quiet'. At this stage, you were still behind your victim and grabbed her at the front of her jeans and tried to pull them down. At the same time, you attempted to undo your pants. However, these manoeuvres were unsuccessful. You did, however managed to reach inside her jeans and underwear and start to rub her vagina. You then inserted your fingers into her vagina.

At the same time, you were continually shouting out and saying, 'Yes, yes'. Your victim started crying. It is the digital rape of your victim's vagina, which forms the subject matter of Charge 1, rape.

The victim in this matter was an Indonesian national and a student. She arrived in Australia only a short time before this incident, on 9 July 2014. She was aged 16 years of age and attended Monash University as a full time student. She was a virgin.

After you had digitally raped your victim, by chance, a male jogger came by and saw you and the complainant on the ground. Your victim was on her back. The male jogger asked what was going on and what you were doing and you replied, 'Don't worry, I know her'. Thankfully, the male jogger did not desist at that stage and continued to ask questions. He asked the complainant, 'Do you know this guy?' And your victim shouted out, 'No, help me'. The male jogger then approached you and told you to leave her alone, where upon you got up, walked one or two steps towards the male jogger and then left.

Thereafter, the police were called and investigations were commenced. DNA samples were taken and upon analysis, showed the high likelihood of a match with your DNA.

1. As we will later discuss in more detail, counsel for the applicant on the plea in the present case relied on the applicant's childhood deprivation as a mitigating factor. And we do not doubt that the applicant endured an extremely deprived childhood, blighted by emotional, physical and sexual abuse. Quite clearly, however, notwithstanding his deprived background, the applicant's criminal record remains highly relevant. Albeit he is not to be punished again for his prior offending, his very poor criminal antecedents are relevant as an indicator of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, relatedly, the community's need for protection); and the increased importance of specific deterrence as a factor in sentencing.[13] As the High Court made clear in Veen [No 2],[14] although the applicant's antecedent criminal history 'cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence', it is relevant

to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

1. The facts relating to Veen [No 2] are instructive. Veen had an appalling history. In 1971, when not quite 16, Veen stabbed himself in the chest with a knife (puncturing a lung), after he had been taken to a police station (albeit he was not charged over this incident). Later that year, Veen stabbed his landlady three times in the chest and once in the back, after she had tried to get him to go to bed. He was convicted of malicious wounding in the Children's Court and committed to an institution. Several years later, in 1975, when he was aged 20 and working as a prostitute, Veen stabbed a man to death after the man refused him payment.[15] A jury convicted him of manslaughter. Eventually, the High Court set aside his original sentence of life imprisonment and substituted a sentence of 12 years' imprisonment. Veen [No 2] was concerned with an incident in 1983 in which Veen stabbed a man repeatedly with a bread knife. He pleaded guilty to manslaughter on the basis of diminished responsibility and was sentenced to life imprisonment.[16] Ultimately, in his appeal to the High Court, the Court took into account not only the bare fact of his previous convictions, but also the factual circumstances underpinning his previous acts of violence.
2. Veen's life - much like the applicant's - was a 'sorry story'. He was Aboriginal and had been given to non-Aboriginal foster parents at the age of two and a half years. His childhood was 'disturbed', and he was removed from his foster parents' care. A male teacher sexually molested him and he had poor academic performance. He had abused alcohol, leading to brain damage. Importantly, however, notwithstanding Veen's deprived background, the High Court did not disturb the sentence imposed at first instance. Upholding the life sentence imposed upon him, the majority observed that, the 'tragedy of Veen's life, which ... must excite sympathy for him, has to be balanced against the exigencies of the criminal law especially the protection of society'.[17]
3. More recently, in Bugmy, the High Court observed that an inability to control violent responses to frustration, borne of exposure to violence and substance abuse, may increase the importance of community protection as a feature in sentencing:[18]

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[19] An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

1. With the principles set out above in mind, we turn to those aspects of the judge's reasons for sentence impugned under cover of the first proposed ground of appeal.
2. In her sentencing remarks, the judge observed:

It is clear you are an extremely dangerous offender. You violently raped a teenage girl in 2015 and only four months after your release on that sentence launched an horrendous sexual attack that was considerably worse than your earlier offending. You present as a high risk of re-offending. In my view protection of the community, in this case the community of women, dominates the sentencing exercise before me. However deplorable your upbringing, however pitiable the circumstances of your birth, the objective threat you present to women generally cannot be underestimated. Your personal deficits and disabilities while deserving of consideration, also serve to undermine your capacity for reform and your prospects of rehabilitation. As a result, other mitigating sentencing considerations must lose their force.

1. Relying on certain observations from Veen [No 2],[20] counsel for the applicant submitted in support of the first ground of appeal that the judge's remarks reveal error. Counsel submitted that, although community protection was a significant sentencing consideration, and the sentencing judge was required to regard the protection of the community from the applicant as the principal purpose for which the sentence was imposed on those charges on which he was sentenced as a serious sexual offender,[21] this was not a case in which a disproportionate sentence was required in order to achieve that purpose.
2. Further, the applicant's counsel submitted that the circumstances of deprivation, abuse and other social disadvantage to which the applicant had been exposed, and his impaired mental functioning, were required to be given due weight in the sentencing calculus. The applicant's moral culpability was substantially reduced, and there needed to be moderation of both general and specific deterrence. Sentencing principle required the effects of the applicant's profound childhood deprivation - which had resulted in him having impaired mental functioning - to be given full weight.
3. The applicant's counsel submitted that there was specific error in the sentence first imposed, in that the applicant's personal deficits and disabilities were given full weight to the extent that they operated in increasing the importance of community protection, but were diluted in weight to the extent that they operated in mitigation.
4. We detect no error in the sentencing judge's approach. In Veen [No 2],[22] the majority observed that

sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.

1. Bearing steadily in mind that the factors which explained the applicant's offending were not of his making, we consider it to be incontrovertible that the applicant will present a considerable danger to women into the foreseeable future. Community protection is therefore a prominent feature animating the exercise of the sentencing discretion. Women must be protected from the applicant's violent sexual predations. That, of course, does not mean that it is acceptable to impose a sentence simply to 'warehouse' the applicant. But it does mean that a proportionate sentence towards the upper end of the range of available sentences of imprisonment is warranted.
2. In our view, the judge was entirely correct to observe that the applicant presents a high risk of re-offending. The judge was also entirely correct to say that the protection of the community, in particular women, must dominate the exercise of the sentencing discretion. In so saying, the judge did not eliminate all other factors relevant to sentence from the equation. The sentencing judge simply observed - consistently with established authority - that, in the particular circumstances of the case before her, one feature needed to predominate. She was correct to do so.
3. The first ground cannot succeed.

1. Under cover of ground 2, counsel for the applicant submitted that the total effective sentence imposed and the non-parole period fixed were each manifestly excessive. Those conclusions are arrived at having regard to the weight that fell to be given to the combination of the applicant's guilty pleas; the Bugmy considerations; the first, third and fourth Verdins[23] propositions; the effect of the pandemic;[24] delay; the prohibition against imposing a sentence more severe than necessary to achieve the applicable sentencing purposes;[25] and totality.
2. Counsel for the respondent submitted that the individual sentences, orders for cumulation and the resulting total effective sentence and non-parole period appropriately reflect the objective seriousness of the applicant's offending and cannot be said to be wholly outside the range of sentences properly open. The sentencing judge appropriately regarded this as a 'most serious example' of the already serious charge of rape (and related offending). Among the factors informing an assessment of the objective seriousness of the offending are the following:
   • the applicant's was a terrifying, humiliating, and degrading attack on a woman who had simply gone for a walk;
   • the applicant's conduct was predatory, and he attacked his victim in a relatively isolated location;
   • when his victim first attempted to run away from him, the applicant persisted in his attack, chasing her down and, ignoring her screams, dragged her down a steep embankment towards the creek out of sight;
   • insofar as the offending might have been unpremeditated up to that point, it lost that character as the offending conduct persisted;
   • the applicant used violence and the threat of death to subdue his victim, including holding her head under water for approximately 30 seconds;
   • the violent, persistent, and protracted nature of the offending clearly had the effect of heightening the victim's fear and the harm caused;
   • the applicant raped and sexually assaulted the victim repeatedly, the prolongation and repetition of the conduct make the offending especially serious;[26] and
   • the applicant did not wear a condom, thereby exposing the victim to risk of pregnancy and disease.
3. The respondent's counsel further submitted that the impact on the victim has, understandably, been nothing short of devastating. As the sentencing judge observed:

Unsurprisingly, the complainant's Victim Impact Statement makes for utterly distressing reading. An entirely innocent young woman who simply went out for a walk on a still-light summer's evening on a well populated trail, she now experiences depression, anxiety, Post-Traumatic Stress Disorder ('PTSD'), low mood, constant emptiness, disconnection, lack of energy, panic, or startle response if anyone touches her, and experiences of disgust, hurt, shame, anger, fear and frustration whenever she thinks of the rape. She is jumpy, hypervigilant, experiences significant startle response during ordinary tasks like working, shopping, or driving, has difficulty with focus and memory, had significant difficulty completing her university degree, struggled with attendance for a time after the rape, and experiences significant anxiety and high alert if she sees a man in the street looking at her. She no longer enjoys walking in nature and completely avoids the area where she was so violently assaulted. She stated:

There is no way I can accurately convey the enormous weight of these burdens I carry with me every single day. There is no limit to the anger I feel knowing that the most life-threatening risk I took was to go for a walk alone and to 'be a woman'.

1. Counsel for the respondent also submitted that it is important to note that the charges of rape (charges 2 and 3) were each rolled-up charges comprising four instances of penile-vaginal penetration and two instances of digital-vaginal penetration. Thus, the sentencing judge was required to consider the whole of the circumstances of the offending covered by each of these charges - including the extended period over which the offending occurred - and to impose sentences which adequately reflected the totality of the harm embraced by those charges.
2. Moreover, counsel for the respondent submitted, the circumstances giving rise to charge 1, conduct endangering persons, also represented a particularly serious example of that offence. Having dragged his victim down an embankment to the edge of the creek, the applicant held her head under water for approximately 30 seconds. She could not breathe, and feared she would pass out or die. Upon eventually releasing her head, the applicant stated to her, 'I'll let you live if you let me fuck you'. The sexual offences were then committed on the edge of the embankment for over approximately two hours. The sentence of three years' imprisonment imposed on charge 1, of which 18 months was to be cumulated upon the base sentence, appropriately reflected the objective seriousness of that individual charge.
3. Furthermore, counsel submitted, despite the presumption for total cumulation of the sentences imposed on charges 2, 3, 4, 5, 6 and 7,[27] the sentencing judge still gave effect to the principle of totality, so much plainly informing the relatively modest orders for cumulation of the sentences imposed on charges 3, and 4 to 7 (being two years on charges 3, and seven months on each of charges 4 to 7).
4. The approach of this Court to a complaint that a sentence is manifestly excessive was discussed in Leimonitis:25F[28]

• 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,26F[29] 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.27F[30] 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.28F[31] 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.29F[32]

1. Few, if any, cases of violent sexual offending within the experience of the members of this Court have been as grave as the applicant's. Quite obviously, the applicant's vile conduct is apt to provoke a strong, visceral, emotional response. Notwithstanding that this is so, this Court must consider the matter on a purely objective basis.
2. Plainly, the applicant's offending was extremely serious. It had devastating, life-altering consequences for his victim. Even paying due regard to the applicant's intellectual deficits and psychological difficulties (products of his deprived childhood), any sentence imposed on the applicant was required to mark the Court's denunciation of his rebarbative offending and provide appropriately stern just punishment for it. And insofar as he is a vehicle for general deterrence, that factor - properly moderated - also needed to be reflected in the sentence imposed.
3. As we have said, the applicant presents a danger to women, and, so the evidence suggests, will continue to be dangerous long into the future. Women in the community must be protected from him. Any sentence imposed on the applicant had to be of such a nature as to deter the applicant - insofar as his deficits permit him to be deterred - from future violent sexual offending directed at females.
4. Undoubtedly, the applicant's prospects of rehabilitation are extremely bleak. He committed the offences against MN within a few months of having been released from custody with respect to an earlier sentence imposed for the similar rape of an unaccompanied young woman in a public place (that offence also having had very deleterious effects on the applicant's victim). Apparently, he had done a sexual offender program whist serving that sentence. Self-evidently, the applicant's participation in that program was ineffective in curbing his violent sexual proclivities. Albeit that it might be expected that the applicant's manifold difficulties will render it unlikely that he will have much (if any) capacity to reflect upon his conduct and gain insight into it, no sentence other than a substantial term of imprisonment is likely to effect any reformation in the applicant.
5. There is no doubting that the applicant's is a sad story. His development was marred by circumstances beyond his control. Nonetheless, his offending was abhorrent, and, making due allowance for his personal circumstances (born of the deprivation he has suffered), he needed to receive a sentence that properly balanced his circumstances and those of his offending, together with the features in aggravation, and those going in mitigation.
6. Balancing for ourselves all relevant features, we are unable to see that any aspect of the sentence imposed on the applicant suffers from the vice of manifest excess. We consider the impugned sentence - the individual sentences on each charge; the total effective sentence produced by the orders for cumulation; and the non-parole period - to be well within the range open to the judge in the proper exercise of the sentencing discretion.
7. Ground 2 must fail.

[1] Crimes Act 1958, s 23. The maximum penalty is 5 years' imprisonment.

[2] Crimes Act 1958, s 38(1). The maximum penalty is 25 years' imprisonment.

[3] Crimes Act 1958, s 40. The maximum penalty is 10 years' imprisonment.

[4] Crimes Act 1958, s 41. The maximum penalty is 10 years' imprisonment.

[5] Crimes Act 1958, ss 75 and 321M. The maximum penalty is 15 years' imprisonment.

[6] Crimes Act 1958, ss 74 and 321M. The maximum penalty is 5 years' imprisonment.

[7] Control of Weapons Act 1990, s 6(1). The maximum penalty is one year's imprisonment.

[8] Crimes Act 1958, s 197(1). The maximum penalty is 10 years' imprisonment.

[9] Bail Act 1977, s 30B. The maximum penalty is 3 months' imprisonment.

[11] DPP v Russo [2015] VCC 510 (Judge Hicks).

[13] R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA) ('O'Brien').

[14] Veen v The Queen [No 2] (1988) 164 CLR 465, 477-8 (Mason CJ, Brennan, Dawson and Toohey JJ) ('Veen [No 2]'). See also O'Brien, 718; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, 595 [45] ('Bugmy').

[18] Bugmy, 595 [44] (citations as in original). See also DPP v Herrmann [2021] VSCA 160, [36]-[41], [96] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).

[19] Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.

[21] See Sentencing Act 1991, s 6D.

[23] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [31].

[24] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344, 356-7 [35]-[39].

[25] Sentencing Act 1991, s 5(3); Wasif v The Queen [2022] VSCA 182, [45].

[26] Counsel referred to DPP v Mokhtari [2020] VSCA 161, [43].

[27] See Sentencing Act 1991, s 6E.

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

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

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

[32] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15].