Kelly v The King [2024] VSCA 109 (31 May 2024)

Last Updated: 31 May 2024

SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCR 2023 0217

KENNETH KELLY	Applicant
v
THE KING	Respondent

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JUDGE:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2024
DATE OF JUDGMENT:	31 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 109
JUDGMENT APPEALED FROM:	[2023] VCC 2042 (Judge Gwynn)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Detention of victim for a sexual purpose – Sexual assault – Sexual activity directed at another person – Assault – Aggregate sentence – Whether reasonably arguable that sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

Sentencing Act 1991, s 9.

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Counsel
Applicant:			Mr C K Wareham
Respondent:			Ms S Lenthall
Solicitors
Applicant:			Victorian Aboriginal Legal Service
Respondent:			Solicitor for Public Prosecutions

BOYCE JA:

Introduction

1. The applicant pleaded guilty in the County Court on 9 August 2023 to charges of detention for a sexual purpose,^[1] sexual activity directed at another person,^[2] common assault,^[3] and sexual assault.^[4] On 31 October 2023, the applicant was sentenced on all charges to an aggregate sentence of 4 years and 2 months’ imprisonment. Her Honour directed that the applicant serve a period of 2 years and 4 months before becoming eligible for parole; 272 days was reckoned as time having already been served.
2. The applicant seeks leave to appeal against the sentence imposed. The applicant’s sole proposed ground of appeal is that the total effective sentence and non-parole period are manifestly excessive when regard is had to:

(a) the applicant’s acquired brain injury and the necessary reduction of his moral culpability and reduced weight to be attached to general and specific deterrence;

(b) the applicant’s personal circumstances, including the trauma and disadvantage that he has experienced;

(c) the objective gravity of the offending; and

(d) the applicant’s plea of guilty and its inherent utility.

3. For the reasons that follow, I consider that leave to appeal should be refused.

The offending

4. At the time of the offending the applicant was 54. On 23 October 2022, he met the complainant outside a Centrelink office in a rural township in Victoria. The complainant was 42 and did not have a permanent residence, or indeed anywhere to stay. The complainant was at Centrelink with her belongings. The applicant offered her a place to stay. The complainant agreed.
5. The applicant lived with his nephew, his nephew’s partner and their three children. Nevertheless, over the period from 23 October to 1 November 2022 — when she stayed at the applicant’s house — the complainant did not see any of these people.
6. The applicant’s home was dilapidated. The locks on the front and back door worked poorly. But there was a chair, some bed slats, a yellow piece of string and a toilet roll holder placed either against, or around, the back door. These items prevented entry into the house from the outside; they had to be moved in order to exit from the home. A curtain was pulled across the front door. This prevented the front door being opened easily from either direction.
7. Whilst the complainant was staying with the applicant, the applicant asked the complainant to kiss him. He told the complainant that he was going to die of bowel cancer. The complainant politely refused. The complainant’s partner came over to stay on the night prior to 1 November. On 1 November, the applicant and the complainant were together at the house. That day passed without incident.
8. Later, on the evening of 1 November at approximately 8:00 pm, the complainant was in a bedroom playing on her iPad. The applicant burst open the door of the room, entered the bedroom and said to the complainant: ‘You owe me girlie, I’m going to get some of that cunt tonight, I’m going to be feeling that clit’. The complainant was in shock. She struggled to understand the applicant. The applicant directed the complainant to stand up and get off her iPad. He became enraged when she did not comply with his demands with enough speed. The applicant came up close to the complainant’s face and said: ‘I’m going to knock you out’. He asked the complainant to get his guitar for him.
9. The complainant was terrified. She tried to buy some time in order to find an exit so as to leave the house. She told the applicant that she needed to go to the toilet. The complainant walked to the toilet and the applicant followed behind her. As the complainant sat on the toilet, the applicant stood above her and watched her. This activity on the applicant’s part formed part of the charge 1 offending. The applicant exposed his erect penis. He masturbated and said to the complainant: ‘I’m going to have some of that cunt tonight’. This formed the basis of charge 2. When the complainant had finished on the toilet, the applicant directed her to his bedroom. The applicant continued to block all exit points and ushered the complainant into his bedroom. This formed part of charge 1.
10. When the two reached the doorway of the applicant’s bedroom, the applicant shoved the complainant into the bedroom and said: ‘Get in there and make the bed for me, I’m going to have that tonight, tell me you’re going to make love to me and that you want it’. These acts formed part of charge 3. The complainant tried to convince the applicant to let her leave the bedroom so that she could get some massage oil. The applicant permitted her to do so but followed her closely when she went to her bedroom to collect the oil. This activity formed part of charge 1.
11. As the complainant re-entered the applicant’s bedroom, he demanded that she remove her clothes. As she started to remove her clothes, the applicant said: ‘I’m going to get my fingers in that white cunt, I’m going to make you bleed. I haven’t had a woman in two years’. He also called the complainant a ‘prejudiced white slut’.
12. The applicant grabbed the complainant’s bra, raised his fist at her and said: ‘I’m going to smack you to the ground’. The complainant continued undressing herself. She was in fear of the applicant. This activity formed part of charge 3. By this stage, the complainant was sitting on the bed and the applicant was standing at the end of the bed wearing only a t-shirt. The applicant was masturbating as the complainant undressed.
13. The complainant told the applicant to take off his t-shirt. She wished to distract the applicant by giving him a massage. The applicant refused, however, and grabbed the inside of the complainant’s thighs. He said: ‘I want to get inside you’. This formed the commission of charge 4. As she feared being penetrated, the complainant grabbed the applicant’s penis and the applicant rolled over. She massaged the applicant’s feet so that she could be as far away as possible from his penis. The applicant told the complainant to untie her hair and suck his penis. The complainant told the applicant that she needed to go to the toilet again. The applicant replied: ‘You’re not fucking going anywhere’. As he said this the applicant raised his fist at her.
14. The applicant then got off the bed and allowed the complainant to go to the toilet. He blocked each of the exits to the house as he ushered the complainant towards the toilet. The complainant grabbed her jacket on the way to the toilet. Then the complainant heard someone banging on the front door. The complainant heard a male voice. The applicant said to the complainant: ‘Don’t fucking say a word’. By this stage the applicant was trying to find clothes to wear. As the complainant got up off the toilet, the toilet lid made a noise. This further angered the applicant. The applicant threw a blanket to the complainant and she walked into the kitchen following the applicant.
15. The complainant decided that she would try to escape. She ran towards the back door but could not get out due to the barricade. The applicant followed the complainant. The complainant was yelling at the applicant telling him that she: ‘couldn’t do this’. The applicant then said to the complainant that he was not going to keep her there anymore. The applicant then let the complainant go. The complainant ran to the front door as fast as she could and ripped down the curtain. The complainant then left the home out the front door.
16. The complainant ran directly to the local police station. She was wearing only her jacket. She covered herself with the blanket that the applicant had thrown at her. She arrived at the police station at approximately 9:15 pm and made an immediate report to police.
17. On 2 November 2022, the applicant was arrested and interviewed by police. The applicant denied the offending and described the complainant as a ‘junkie’ who had stolen from him.

The applicant

18. By the time of the plea the applicant was 55 years old. He is a man of Aboriginal heritage and was born in the local area. He completed Year 11 and had studied at TAFE. He had worked with heavy machinery. At 18 he sustained a head injury. He had not formally worked since that time apart from busking.
19. The applicant has suffered some trauma in his life. He saw his aunt cut her own throat when he was seven. He suffered a bad motor vehicle accident when he was 18. This required metal plates to be inserted into his skull. More screws and plates were required by way of surgical intervention some five years prior to the present offending after he was struck by a baseball bat. He once came across a dead body.
20. The applicant’s health was not good. It was complicated by a history of angina; neuralgia; chronic obstructive airway disease; gastro-oesophageal reflux disease; general pain; hypertension; hepatitis C; osteo-arthritis and asthma. The applicant has a long-standing problem with alcohol and, more recently, he had abused methylamphetamine and heroin. Since being on remand the applicant had been taken to hospital on some eight occasions. He reported constant pain, arthritis, gout and rectal bleeding.

The judge’s reasons for sentence

21. The judge characterised the charge 3 (assault) offending as the complainant being caused ‘to fear the immediate apprehension of force’.^[5] The judge also paid particular attention to the manner in which the charge 1 offending had been settled as between the parties. This settlement was that the applicant:

remained within arm’s length of the [complainant] and stood in the doorways physically preventing her from exiting the rooms that she was in. This occurred up until the moment immediately prior to the sexual assault taking place.^[6]

22. The judge clarified that the facts occurring after the commission of charge 4 were ‘part of the general context and circumstance of what transpired on 1 November 2022’.^[7]
23. The judge accepted that the common law assault (charge 3) and sexual assault (charge 4) were ‘not at the higher end’. Nevertheless, the judge concluded that, overall, the offending was ‘extremely concerning’. The judge found that when the offending commenced, the applicant was ‘well aware of [the complainant’s] disinterest’. Her Honour considered that, in a sense, the applicant’s residence was in fact the complainant’s home ‘where [she] was entitled to feel safe’. The judge thought that the applicant ‘took advantage of a woman made vulnerable due to homelessness’ — a fact of which the applicant was ‘clearly aware’.^[8]
24. The judge was unable to ‘form the view that [the applicant’s] offending was planned or premeditated’, yet her Honour considered that the applicant was:

aware of the impediments of exiting via the back door and the awkwardness of exiting the premises via the front door when [he] chose to detain [the complainant] in the way outlined in the Crown summary.^[9]

25. The sentencing judge noted that the complainant was on the toilet and also ‘vulnerable’ when the applicant exposed himself and masturbated ‘at what must have been around her head height’. The judge remarked that:

[The applicant’s] behaviour towards [the complainant] was crude, aggressive and undoubtedly frightening, at all times maintaining [his] control over her.

Overall, the events occurred for a period of about one hour, during which time [the complainant] was constantly trying to negotiate her safety. [The applicant] allowed [the complainant] to leave only at a point after which [he was] aware that someone had attended at [the applicant’s] premises and was banging on the door.^[10]

26. The judge had ‘little doubt’ that the complainant would have been ‘fearful’ from the point at which the offending commenced until the complainant was allowed to leave. The complainant would have been ‘embarrassed and humiliated’, the judge considered, at having to flee the applicant’s residence in a ‘partial state of nudity’. The judge held that the applicant’s offending merited:

clear denunciation by the court and that general and specific deterrence and the protection of the community remain important sentencing factors.^[11]

27. The judge noted that the applicant had indicated his ‘current plea’ on the morning the trial was due to commence. The applicant was entitled to a utilitarian benefit on the plea. But it was acknowledged that the complainant had been required to give evidence at committal. A utilitarian benefit flowed, also, because the ‘court’s operations were disrupted by the pandemic’. There was no evidence of remorse.^[12]
28. The judge referred to two reports written by the psychologist Gina Cidoni that were tendered on the applicant’s behalf during the plea. It is apparent that the judge did not find these reports to be of great assistance, although a later health summary sheet confirmed diagnoses that had been referred to by Ms Cidoni.
29. A Forensicare report of Dr Guha did, however, provide some foundation for accepting that the applicant possessed ‘some form of cognitive impairment’. A neuropsychological report by Dr Fratti confirmed the presence of ‘brain damage’ due to an ‘internal plate and screw fixation in the left orbital floor’. There was also an indication of neurovascular disease. The applicant possessed a full-scale IQ of 72. The report by Dr Fratti permitted the judge to conclude that:

there are significant impairments in [the applicant’s] learning and memory abilities, particularly when information is presented verbally. There was clear evidence of executive dysfunction and severe deficits in [the applicant’s] capacity to self-monitor [his] responses and override impulsive reactions, as well as in verbal abstract reasoning, verbal fluency and divided attention.^[13]

30. The judge noted Dr Fratti’s opinion that the applicant had a permanent acquired brain injury which left the applicant ‘prone to impulsive reactions and verbal aggression when [his] needs are unmet or [he] encounters stress’. The applicant’s ‘cognitive and communication challenges’ hindered his ability to manage his responses effectively. This impairment would get worse if the applicant was ‘overwhelmed, emotionally heightened’ or ‘substance affected’. Dr Fratti opined that it appeared that at the time of the offending the applicant’s cognitive difficulties had affected his ability to regulate his behaviour.^[14]
31. On the basis of Dr Fratti’s opinion, the judge accepted that the applicant’s cognitive impairment was in existence at the time of his offending. There existed therefore a basis for a ‘limited’ reduction of the applicant’s moral culpability as well as the need for both ‘general and specific deterrence’. Dr Fratti did not consider that the applicant’s cognitive difficulties would make more burdensome his service of a prison sentence or that a prison sentence would make worse the applicant’s mental health problems.^[15]
32. The applicant did not have a prior history of sexual offending. But the applicant does have an extensive criminal history in both Victoria and interstate. The applicant’s prior matters included offences of violence. The applicant had served numerous prior sentences of imprisonment.^[16]
33. As to totality, the judge recorded that the applicant had been in custody since 2 November 2022. On 15 March 2023, the applicant was sentenced in the Magistrates’ Court to three months’ imprisonment. The applicant’s pre-sentence detention was 272 days.
34. The judge accepted that the applicant’s time on remand had been difficult and that his acquired brain injury might inhibit his rehabilitation. The applicant did enjoy the support of a son.^[17]
35. The judge rejected defence counsel’s submission that the applicant ought be sentenced to a combination gaol/community correction order. The judge ultimately sentenced as indicated above. Had the applicant not pleaded guilty, the judge indicated that she would have sentenced the applicant to 5 years and 4 months’ imprisonment with a minimum term of 3 years and 6 months.^[18]

The applicant’s submissions

36. In submitting that the sentence imposed upon the applicant was manifestly excessive, the applicant emphasised Dr Fratti’s opinion that the applicant had a permanent acquired brain injury and that this had an effect on the applicant’s level of cognitive functioning. It was argued that the applicant had ‘never benefitted from appropriate treatment and support’ for his brain injury. It was submitted that while the judge clearly had lessened the sentence imposed because of the brain injury, her Honour had not done so sufficiently.
37. It was submitted, also, that while the applicant’s background did not give rise to the sort of mitigation described in Bugmy v The Queen,^[19] the background of ill-health and trauma still had ‘not been adequately reflected’ in the sentence imposed.
38. The applicant submitted that the objective gravity of his offending fell ‘towards the lower end of the spectrum of seriousness’. The applicant submitted that the offending ‘lacked serious aggravating features’; this was evident when close consideration was given to the individual features of each specific charge. The utilitarian benefit flowing from the pleas was noted and relied upon.
39. It was submitted that the imposition of an aggregate sentence rendered somewhat ‘opaque’ the means by which the sentence was arrived at. Whilst issue was not taken with the decision to impose an aggregate sentence, it was submitted that had the judge sentenced along more conventional lines — that is to say via the imposition of appropriate individual sentences with proper orders of cumulation — then it was ‘unlikely’ that a sentence of present order would have been imposed. The applicant relied on sentences that had been imposed in other cases in order to underscore that particular submission.^[20]

The respondent’s submissions

40. The respondent, on the other hand, submitted that the sentence imposed was within range and that it was not reasonably arguable that this sentence was manifestly excessive.
41. The respondent submitted that there was no basis for the sentencing judge to have further reduced the applicant’s sentence on account of Dr Fratti’s opinion. The reduction that was already ordered was entirely appropriate given the tenor of Dr Fratti’s opinion which was that the applicant suffered from only a ‘mild neurological disorder’. It was put that Dr Fratti’s opinion was less than wholly decisive in any event. Dr Fratti considered it difficult to assess the reliability of the applicant’s claims in light of the applicant’s tendency to confabulate. Defence counsel on the plea had accepted that there was only scope for ‘limited’ reduction by reliance on Dr Fratti.
42. The respondent submitted that given the applicant was unable to rely on the principles set out in Bugmy there was therefore little scope for mitigation when it came to consideration of the applicant’s background.
43. The respondent called attention to the maximum penalty of 10 years’ imprisonment set by the legislature for the charge 1 offence. The respondent emphasised that the offending lasted an hour; that the applicant blocked the complainant’s ability to leave the residence and that the complainant’s opportunity to escape was purely serendipitous, arising as it did from the chance happening of a person knocking on the front door. Yet, even then, the applicant exhorted the complainant to not ‘fucking say a word’.
44. The respondent submitted that the charge 2 offending was a ‘serious example of that offence’. The respondent emphasised the terror that the complainant must have experienced; something that would have been magnified given her right to ‘feel safe’ in the place where she found herself. The respondent endorsed the sentencing judge’s opinion concerning the offending’s objective gravity and the judge’s decision to impose an aggregate sentence. Contrary to the applicant, the respondent submitted that the applicant could have expected to have been sentenced to ‘much the same overall term of imprisonment’ had the judge chosen, more conventionally, to impose individual sentences with appropriate orders for cumulation.
45. As to the other sentencing cases that were relied on by the applicant, the respondent submitted that in fact there was such a dearth of authority concerning the charge 1 offence that it was impossible to say for that offence that a sentencing practice existed. It was submitted that the County Court sentences of Kim, Pace and Saiin were distinguishable on their facts in any event.
46. The respondent submitted that the applicant’s pleas were late; that he had denied the offending and, as such, there was no evidence of remorse.

Consideration

47. The judge’s decision to impose an aggregate sentence meant that the sentence imposed could not exceed the total effective period of imprisonment that could have been imposed in respect of the separate offences on the current indictment if the court had imposed a separate sentence of imprisonment in respect of each offence.^[21]
48. If one were to approach the analysis of this sentence through consideration of what the individual sentences may have been on each individual charge had the judge not imposed an aggregate sentence, it might be thought that the most serious offence was the charge 1 (detention for a sexual purpose) offence. But care would need to be taken, on this analysis, not to aggravate the penalty for this offence by reference to the applicant’s commission of the other, separate, offences whose commission arose during the almost total umbrella coverage of charge 1.^[22] As was settled between the parties on the plea, the charge 1 period ended at the commencement of charge 4. Equally, care would need to be taken not to invest charges 2 to 4 with aggravation referable to the fact of the complainant’s detention for the purposes of charge 1.
49. The s 47 — charge 1 — offence replaced its predecessor, s 55 of the Crimes Act 1958, in 2016.^[23] Sentences for the ‘abduction’ variety of the present offence, or its earlier s 55 manifestation, seem to have varied widely.^[24]
50. Assuming that the charge 1 sentence would likely have formed the base sentence of any total effective sentence imposed if the sentencing task had been approached along more conventional lines, the opacity of the present aggregate sentence prevents — when attempting to test the applicant’s contention of excessiveness — one helpfully asking what sentence would have been imposed on the charge 1 offence had the applicant not gone on to commit charges 2 to 4 ‘but instead [had] desisted from that plan’.^[25]
51. In one sense the applicant’s commission of charge 1 was really quite serious even when it is shorn entirely of the circumstances of the commission of charges 2 to 4. It does not appear to be any part of proof of the s 47 offence that the offender’s intent to commit a sexual act be communicated to the detained victim. But presumably if this intent was in fact communicated this may have a bearing on the offence’s seriousness. In this case there was clear communication to the complainant of the applicant’s intent to commit a sexual act upon her. And this intent, as communicated, was — it seems — to commit sexual acts upon the complainant that were of greater seriousness than the acts ultimately achieved. The complainant was detained, all up, for about an hour. As the sentencing judge properly recognised, the state in which the complainant found herself when she fled to the police station provided a graphic illustration of the terror that the applicant had instilled in her. It was quite by chance, it seems, that the applicant was prevented from carrying out his plan through to its intended end.
52. There was little about this case that was compellingly mitigating. The applicant was of course entitled to mitigation on account of the utilitarian benefit that ensued upon his pleas. And the expert evidence did ultimately establish that the applicant suffered from cognitive deficits that were connected to his decision to offend in the first place. But the judge took all this into account, and mitigated accordingly.
53. On the other hand, there were some troubling aspects about this case, as the judge properly recognised. One might mention the barricading of the back door. Then there was the fact that the offending occurred after the complainant had made it abundantly clear that the she was not desirous of intimacy with the applicant. The applicant pleaded guilty, but he was entirely lacking in remorse.
54. In my view, all things considered, the sentencing judge properly balanced all of the relevant and competing considerations in this case and imposed a sentence that I consider to be within range. I am not persuaded, despite the able submissions made on the applicant’s behalf, that it is reasonably arguable that this sentence stands wholly outside the range of sentences open to be imposed in this case in the reasonable exercise of the sentencing discretion.^[26] I am not persuaded that it is reasonably arguable that this sentence is manifestly excessive.
55. Finally, if I might respectfully record that while no issue was taken in this case with the judge’s decision to impose an aggregate sentence, the decision to do so has made the foregoing analysis somewhat more difficult than it might otherwise have been. This Court has held that the kind of case where it will be appropriate to impose an aggregate sentence is one where ‘the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality’.^[27] It would not have been artificial in this case to have imposed individual sentences and made orders for cumulation in the conventional manner.
56. The application for leave to appeal is refused.

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^[1] Contrary to s 47 of the Crimes Act 1958 (maximum: 10 years’ imprisonment).

^[2] Contrary to s 48 of the Crimes Act 1958 (maximum: 5 years’ imprisonment).

^[3] Contrary to common law (maximum: 5 years’ imprisonment).

^[4] Contrary to s 40 of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016 (maximum: 10 years’ imprisonment).

^[5] DPP v Kenneth Kelly [2023] VCC 2042, [21] (‘Reasons’).

^[6] Reasons, [29] (emphasis added). The sexual assault was charge 4.

^[7] Reasons, [30].

^[8] Reasons, [32]–[34].

^[9] Reasons, [35].

^[10] Reasons, [36]–[38].

^[11] Reasons, [39]–[42].

^[12] Reasons, [43]–[48].

^[13] Reasons, [83].

^[14] Reasons, [86]–[87].

^[15] Reasons, [89]–[91].

^[16] Reasons, [94]–[99].

^[17] Reasons, [103], [106].

^[18] Reasons, [113]–[114], [144]–[146].

^[19] Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).

^[20] The applicant relied upon three County Court sentencing cases: DPP v Kim [2022] VCC 1130 (‘Kim’); DPP v Saiin [2022] VCC 558 (‘Saiin’); DPP v Pace [2019] VCC 1631 (‘Pace’).

^[21] Sentencing Act 1991, s 9(2).

^[22] El-Waly v R [2012] VSCA 184; (2012) 46 VR 656, 670-671 [88]-[93] (Neave and Weinberg JJA and Bell AJA); [2012] VSCA 184 (‘El-Waly’).

^[23] By means of the Crimes Amendment (Sexual Offences) Act 2016. The new s 47 offence broadened the nature of the sexual act that, hitherto under s 55, had been required to be intended by the offender.

^[24] In DPP v Dowie (2009) 196 A Crim R 288; [2009] VSCA 154 the offender received two years’ imprisonment for the s 55 offence upon a plea of guilty. The offender abducted a 21-year-old woman at knife point and ‘frogmarched’ her into some Botanical gardens where he repeatedly raped her. In Singh v The Queen [2011] VSCA 317 the offender, on a guilty plea to the s 55 offence, received four years’ imprisonment for having dragged a woman from the street into a van where he tied her up and drove to an unknown location where he raped her. In El-Waly [2012] VSCA 184; (2012) 46 VR 656, upon conviction of the s 55 offence after a plea of not guilty, the offender was sentenced to three years’ imprisonment for having abducted a blind woman on the street. He bundled her into his vehicle and then drove her to a housing construction site where the woman was raped. In Pilgrim v The Queen [2011] VSCA 317, after a plea of guilty to the s 55 offence, the offender — who was armed with a pistol and a knife — abducted a woman, tied her up, and placed her into the boot of his car. He drove her to a house in a rural location where she was raped. He received five years’ imprisonment. The County Court sentences of Pace, Saiin and Kim were all cases of abduction of a vulnerable, intoxicated or unconscious, woman which ended with her being sexually assaulted or raped. The sentences imposed in these cases varied markedly: 20 months’ imprisonment after a plea of not guilty (Kim); two years’ and six months’ imprisonment on a plea of guilty (Saiin); and a combination gaol/community correction order after a plea of not guilty (Pace).

^[25] The Court in El-Waly [2012] VSCA 184; (2012) 46 VR 656 at 670 [90] considered the counterfactual approach helpful as a means of determining whether the ‘abduction’ sentence in that case was manifestly excessive, in the sense that it had fallen foul of double punishment as a result of the later commission of the rape.

^[26] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

^[27] DPP v Frewstal Pty Ltd (2015) VR 47 VR 660, 670 [44] (Maxwell P); [2015] VSCA 266 cited with approval in Stevens v The Queen [2020] VSCA 170, [55] (Emerton and Weinberg JJA). See, also, Sinclair v The Queen [2021] VSCA 144, [23] (Maxwell P and Kaye JA).