IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR-22-01653
Indictment No.  N11178862

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
Carter McMAHON		

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JUDGE:	HIS HONOUR JUDGE TINNEY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 June 2023	
DATE OF SENTENCE:	23 June 2023	
CASE MAY BE CITED AS:	DPP v MCMAHON	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1071 	

REASONS FOR SENTENCE

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Subject: Rape; cultivation of cannabis (simplicter); assault emergency worker x2; resist emergency worker x1; 27 years of age as at sentence, some relevant criminal history.  Early plea; limited remorse.  Highly vulnerable victim.

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms J. Fallar 
(For Plea)	Office of Public Prosecutions	
			
	Ms O. Ventura		
	(For Sentence)		
			
For the Accused	Ms K. Rolfe	Dribbin & Brown Criminal Law	

HIS HONOUR:  
1	Carter McMahon, earlier this week, you pleaded guilty to five charges laid on the indictment filed in this court.  Those charges were a single charge of rape, two charges of assaulting an emergency worker on duty, one of resisting such a worker and a charge of cultivation of cannabis. 
2	You are 27 years of age and have admitted a criminal history.  
3	The maximum penalties are correctly set out in the prosecution agreed summary.  Rape is a standard offence.  The standard sentence is 10 years.  It is also what is described as a category 1 offence.  The cannabis offence has differing maximum penalties and they are dependent upon the view that the Court takes as to whether any purpose related to trafficking has been excluded.  That is an onus that rests upon the accused.  The Crown do not suggest the higher penalty provision applies.  I am satisfied the burden has been discharged given the nature, the size and the number of the cannabis plants, and so I will apply the lower maximum penalty under s72B(a) to my task.  
4	The matter was opened to me on Monday of this week by the prosecutor, Ms Fallar, pursuant to a written summary dated 9 January 2023.  Ms Rolfe who acts for you told me it was an agreed summary.  It is a very lengthy document and there is really no need for me to descend to the fine detail of the facts in these, my reasons, as I will sentence in accordance with that agreed document.  
5	However, I should very briefly summarise the facts so that my sentencing remarks might be understood by anyone who happens to access them.  
6	You and some friends went to a club in Sydney Road in Brunswick just before midnight on 30 of April last year.  You were with your girlfriend Melissa Ryan, who also uses the name ‘Bella’.  You were with a number of others.  You drove to the club from your house in Essendon.  Some of those others who went to the club with you had to leave the club and they went back to your home in Essendon and one of those had a role in witnessing later events.  I will come to that in due course. 
7	Back though to the club. you met an associate named Lisan Ferguson inside the club.  Mr Ferguson knew the victim.  The victim, 29-year-old Min Choi, arrived at the club after midnight.  You were introduced to her as 'Carter'.  She met your girlfriend, who introduced herself as Bella.  
8	Whilst she was at the club, Ms Choi snorted a small amount of ketamine.  At one point she felt dizzy and very unwell and she in fact was asked to leave by the club security.  This was at about 2.48 am.  She was actually carried out by you and Mr Ferguson and she was put onto a park bench.  She was limp. She was unable to hold her head up or remain upright.  She was in fact trying to dry retch into a bucket.  You and Mr Ferguson agreed that you would drive them both home to your place so that Ms Choi could recover and then get an Uber home from your home.  That was the plan.  She was assisted into the back seat of the car at around 3 am, but she then requested that Mr Ferguson go back into the club and retrieve her headphones and jacket which had been left inside, such was the nature of her departure from the club.  Mr Ferguson agreed and went inside to get those items and return to the car.  When he came out, you had already driven off.  
9	This involved a compete departure from the agreed plan and there had been no variation discussed.  Within a short space of time you were back at your home and it is plain that at least by that point, you were intent upon sexually assaulting Ms Choi.  I was considering when it was that you had hatched any such plan.  I asked your counsel, Ms Rolfe, if there was any explanation for your driving off other than the sinister one.  Ms Rolfe had already taken instructions from you as to why you had left the club without Mr Ferguson, as it was a pretty obvious problematic and potentially aggravating feature in this case.  The explanation provided by your counsel on your instructions was that you drove off as you were double-parked and had been asked to move on.  Ms Rolfe told me you had no memory of arriving home, that you had no memory of the sexual act, that you had no memory of speaking to Ms Biddle when she came out near the side of the house that you had no memory of whether or not you had used a condom but that you had a memory of your reason for leaving the club in your vehicle.  Well, the CCTV footage does not lie.  There are stills from that footage which demonstrate that your account provided to Ms Rolfe is not correct at all.  You had obtained your car from the car park and you were parked out the front of the club. You were not double-parked at all.  There is no sensible reason proffered as to why you drove off without Mr Ferguson.  However, I acknowledge that no burden rests upon you to raise any factual matter and my rejection of your instructions on this topic does not unerringly lead to a finding of an aggravating feature existing in this case.  I must be satisfied of any feature of aggravation beyond reasonable doubt and I can say now, I will say later, but I am not ultimately satisfied beyond reasonable doubt that you were planning to rape Ms Choi at the point when you drove off from the club.  
10	However, within 10 minutes of leaving the club you had arrived back at your house in Pascoe Vale Road.  Ms Choi was very unwell and that was obvious indeed.  She was looking around for somewhere to vomit.  You said to her, 'It's okay, it's just me', and you then dragged her along the side of the house through to the rear of the property.  Unmistakably by this stage, your intentions were evil.  There was nothing stopping you from entering the house, but of course you did not.  Your bedroom was inside.  There were the people inside who had come back from the nightclub.  These were your friends.  Your girlfriend was not one of them, as she was still back at the club. 
11	Ms Choi was limp. She could hardly talk.  As you dragged her along the side of the house, one of the people inside the house came out for a smoke and saw you holding up an obviously drunken female who was slumping forward.  You told that person, this was Ms Biddle, to, as you put it, 'Fuck off'.  She believed that that woman was your girlfriend and for that reason she was content to leave you two alone. 
12	You took Ms Choi into an outside building that had a toilet and there she vomited.  You then dragged her towards a garage and pushed her up against a wall and tried to remove her jeans.  She used her hands to stop you from unbuttoning them.  You took her inside the garage and then you positioned her up against the washing machine, she with her back to you.  You then pulled down her jeans and underwear and you penetrated her vagina from behind with your penis, raping her in this way.  She was in pain and was saying, 'No, No, No'.  You did not stop, you continued to penetrate her.  She said in the course of this act, 'Why are you doing this to me?'  You replied:  'I have a fetish'.  That is an agreed fact in this case.  Very evidently you were not wearing a condom.  Ultimately that fact was conceded on the plea, though the concession really might have been made a bit more swiftly given the existence of the scientific evidence in this case.  
13	The summary descends to the events following this serious crime.  You took her inside your home at that point.  You changed your clothing.  You also provided a false name to her then and later.  She asked you why you raped her and you said, 'I think you're hot'. 
14	You later drove her and one of your friends, a Mr Agustin, back to the club at around 4 am and during that journey you were pretending that your name was ‘Steve’.  You denied having had any role to play in raping her and you denied that you had a girlfriend named ‘Bella’.  You were distancing yourself from your true identity.  
15	Again there is much detail in the summary as to the later events, the toing and froing.  I see no need to set it all out in my reasons.  I sentence pursuant to the agreed statement though.  
16	Ms Choi and Mr Ferguson confronted you at the club at around 6:08am.  You denied any rape but went on to say that there had been a strange man who had followed you back to the house who must have been the person who raped her. A strange man named Steve.  
17	You were taking very calculated steps indeed to shield yourself and had done so from moments after the crime.  Whatever Ms Cameron may say, you were exercising a decent level of consequential thinking and rational thought processes.
18	I am not at all impressed by the steps taken by your girlfriend to distance you from the house and from the possibility of any such criminal act having occurred.  However, that is by the by, as I am sentencing you, not her.  
19	The matter was reported to the police that morning and a forensic examination took place including internal sampling of your victim.  Your semen was detected on a number of swabs.  That made, as I say, the initial refusal by your counsel to acknowledge the unprotected status of the penetration slightly puzzling.  The matter was stood down and she reflected on the materials including the scientific statement and then conceded that which has to be conceded:  that there was a matter of aggravation existing here by virtue of the unprotected penetration.
20	You claim to have no recollection of the penetration at all.  
21	On 18 May police attended at your home to arrest you.  You fled in advance as your girlfriend had taken steps to delay their entry.  A handful of small cannabis plants were found, hence Charge 2.  They are the least of your problems, given the nature of that cultivation.
22	You were arrested on 10 June last year at a hotel in Russell Street.  You resisted Senior Constable Drady and you assaulted Detective Sergeant Wrout and Detective Sergeant Jessica Graham.  This was no minor incident at the hotel.  Indeed in the course of the struggle you were reaching for one of the members firearms and it took some minutes to subdue you and two members sustained some bruises and one a small cut.  
23	You declined to be interviewed by the police, as was your right, and you have been in custody since.  
24	So much then for my summary of the summary.  That is what it is.  I will sentence pursuant to the far more detailed agreed statement.  This was serious offending indeed.  The impact of the rape has been far reaching and I turn to that impact now.

Impact

25	There is an impact statement from Ms Choi, who has, as I understand it, since turned 30 years of age.  She has very evidently been deeply affected by your crime.  She was tested for sexually transmitted infections and had to wait some months for the negative results to come forward.  She describes the impact upon pretty much every aspect of her life, including her PhD studies.  She was so excited to have been engaged in those studies, in that candidature, and your crime has threatened her ongoing studies.  She is scared to use public transport or to go out in public.  She was falling behind in her studies such that she has been warned of the possible termination of her candidature.  She battles to sleep and financially there have been significant impacts as well.  She will not go out at night much anymore.  She has lost a sense of trust in others.  She has been very deeply affected by your crime and that will persist deep into the future, of that I have no doubt.  I take into account the impact in this case.  It has been very large indeed, which is hardly surprising given the nature and setting of the crime you committed upon her.  
In mitigation
26	Ms Rolfe, who appeared upon your behalf, relied upon an outline of plea submissions dated 16 June 2023.  She filed a psychological report from Ms Naomi Cameron, a letter from Dr Champion and a brief note from a Dr Price.  There was also a bundle of course certificates which show you have been making some efforts in custody.
27	She told me about your family, educational, relationship and employment history. Also your substance use and mental health history.  She made some submissions as to the relevant purposes of sentencing in this case and as to the objective seriousness of the offending, as well as to your prospects of rehabilitation into the future.  She also told me about some of the issues which had existed in custody with some quarantine and also a lockdown and a couple of assaults.  She made some submissions as to the operation of the standard sentence scheme in relation to Charge 1.
28	In the course of the plea conducted on your behalf, she relied upon the following matters in mitigation:
•	The early guilty plea in the course of the global pandemic; 
•	The presence of some remorse; and 
•	The application of two principles from the case of Verdins (the third and the fifth limbs of that case).
29	She conceded the inevitability of a sizeable prison term here, and one where there would be the need to fix a non-parole period.  She was arguing for what she described as a 'longer than usual' parole period.  There is really no such thing as a usual parole or non-parole period, but of course I took her to be arguing that there should be a decent enough gap as between the head sentence and the non-parole period.
Prosecution
30	The prosecutor Ms Fallar made a number of submissions as to sentence.  She dealt with the various matters in mitigation and aggravation.  She raised one obvious feature of aggravation, being the level of vulnerability of your victim, your having her in your care and taking advantage of that situation.  She pointed to a level of premeditation and the fact of your isolating the victim and transporting her to your house, where she was further isolated.  You did not take her inside where you had a bedroom, she submitted.  Rather you went to the outside area and engaged in unprotected penetration in the manner described and then you set about hiding your crime.  The Crown challenged you explanation for leaving the club without Mr Ferguson and they relied upon the CCTV and the still image.  They argued that there were many features of aggravation in this case.  Though they did not dispute that there could be some moderation under the third limb of Verdins and that there might be some increase in burden such as to enliven the fifth limb of that case, they submitted that your risk of sexual reoffending was relatively high, as was made clear in the reports; and on the Static test, the risk would increase once convicted of the assault matters.  They pointed to the opinion as to your sexual deviancy and also the extent of your minimisation of offending and limited empathy and remorse.  They also pointed to the risk scenarios spelt out in Ms Cameron's report and submitted that community protection was of real importance in this case.  They made submissions also as to the level of seriousness of the assault matters.
Background
31	I will turn now to your background, but I will do that briefly.  I see no need to set it out in any detail in my reasons.  That is because I accept the personal and family background that has been placed before me.  You were born on 7 November 1995.  You are the youngest of three children.  You were brought up in Queensland.  Your parents remain up on the Gold Coast, though I was told are presently overseas.  Frankly, it still seems strange that they have not joined the hearing in some shape of form by way of link. 
32	You attended school to the end of Year 12.  You had then sporadic employment in bars and labouring.  You then buckled down, it would seem, and you completed an apprenticeship in carpentry at the age of 22 and you worked in that area until coming to Melbourne in 2018.  More recently you had worked in car detailing.  You also worked up at the snowfields for a number of seasons.
33	You have been in a long-term relationship with Melissa Ryan. That was not a protective factor obviously in terms of this offending.  
34	You have had long-term problematic use of a variety of drugs.  
35	There have also undoubtedly been some mental health issues, with various diagnoses made over the years including autism spectrum disorder (Asperger's), ADHD and even, it would seem, oppositional defiance disorder.  I am not going to descend into the full detail of the report of Ms Cameron either now or later.  I will come back to it later, but I see no link between any of your conditions and this serious instance of rape.  You were plainly enough disinhibited by drugs and alcohol and your counsel was not suggesting that there was any realistic connection between any of the mental health conditions referred to and the offending.  In disavowing any reliance on limb 1 of the case of Verdins, your counsel informed the court that there was no causative link and, over and above that, no realistic connection or contribution.  That is not to say that I ignore those conditions. It is just that I cannot take any of them into account in reducing your moral culpability or in leading to any sizeable moderation of general deterrence in this case.  
36	You have been held in protection.  You have been assaulted a couple of times.  You are up at Hopkins and had to complete a two-week period of quarantine and there has also been a lockdown.  I take that into account and I do recognise that COVID-19 restrictions have led to some level of increased burden.  It must be said though that the restrictions have mostly been eased.  
37	You are doing courses and programs whilst in custody, as Exhibit 4 makes plain, and that is a positive.  You are also working.   
38	You have a criminal history comprising a good many appearances in Queensland and NSW.  There is no point my setting it all out. It speaks for itself.  There are no prior sexual convictions, that much is clear.  There are a range of other offences including dishonesty, drug and driving matters. Also a number of assaults.  You have not always taken your chances.  You have not, however, received in the past any actual prison term to serve.  
39	You do not fall to be sentenced a second time for any of those past matters.  You received those sentences and you served them by paying the fine or doing the probation or complying with such conditions or orders as were specified by the court.  I have to make judgements as to your risk of reoffence, your prospects of rehabilitation and the extent of the need for deterrence and community protection.  Your history has some relevance to my task but certainly not the heightened relevance it would take on if you were, for instance, a repeat sexual offender.  The report of Ms Cameron is far more pertinent to risk of reoffence than your past criminal history is.  
40	I mentioned a short time ago it was quite odd that none of your family were linked into the plea hearing.  Now, I recognise, one of the sisters is overseas, and likewise your parents, but it still seems odd to me.  Your girlfriend did not join the hearing. She may have good reasons for not doing so.  I am prepared in the circumstances to accept that you do have some family support. 
41	I turn then to the matters that have been raised in mitigation on your behalf.  Firstly, your guilty plea.  
Guilty plea
42	You have pleaded guilty at what I will treat as the earliest stage of proceedings.  You have taken early responsibility for your crimes and, by your plea, you have admitted your guilt.  You have facilitated the course of justice.  The community has been saved the time, the cost and the effort associated with a committal in the Magistrates Court or a trial up in this court.  Witnesses, including your victim, have been spared the need to give evidence and giving evidence can really be a harrowing experience, even with all the alterations to the way evidence is given by witnesses in this day and age.  I take into account your early guilty plea.  There must be a sizeable reduction in sentence owing to that fact.   
43	There is also a heightened benefit attached to that plea, which is a plea occurring amidst the backlog of cases which has mounted up during the global pandemic.  The many reasons for that heightened benefit are described in the case of Worboyes, which was cited by your counsel.  There have been a number of decisions since Worboyes which have approved that approach.  Your case was never part of the backlog of cases.  There is a heightened value in pleading guilty and that is so despite the fact that pandemic conditions have eased along the way.  The fact is the backlog is still there and your case is not part of that backlog.

Remorse
44	I turn to the issues of remorse.  You have pleaded guilty and you have done so at an early stage.  A guilty plea is often indicative of some remorse.  However, here there are some pretty disturbing statements in the report of Ms Cameron as to your lack of empathy and the extent of your minimisation.  See paragraphs 71 to 80 and 129 to 133 of that report.  I do not accept your account of having no memory of the act or, for that matter, your account of being double-parked.  Having considered all the materials placed before me, I am left with significant reservations as to the extent of any actual remorse in this case.  I am not persuaded on the balance of probabilities that there is anything like fulsome remorse here.  Now, it is true some of this may be owing to the conditions that are described in the report of Ms Cameron, but I can only find remorse if it exists.  I will find the existence of some limited remorse here as implied from your guilty plea.  I take that into account in mitigation.  

The expert material including the report of Ms Cameron
45	I have mentioned the report of Ms Cameron and the two other brief letters or reports.  Ms Cameron's report is very lengthy indeed.   I see no need to set out slabs of the report in my reasons.  It seems clear to me that there have been various diagnoses made over the course of your life.   You were diagnosed some years back with Asperger's.  See Dr Price's brief note from 2013.  That is supported by the report from Mindtree Psychology from 2019.  There is also a reference to ADHD.  Ms Cameron set out the various diagnoses at paragraph 162 of her lengthy report and they included some anxiety and depressive conditions as well.  
46	I have no reason to doubt any of the diagnoses, but, as I have said previously, I am not satisfied on the balance of probabilities that there is any causative link to the offending, not that a causative link is required to enliven Verdins.  I am, however, not even satisfied of there being any realistic connection or contribution between any of the conditions and the offending.  That finding is not in any way controversial.  Indeed your own counsel in discussions in the course of the plea specifically disavowed any reliance on the first limb of Verdins.  She recognised that the report was problematic in terms of the impact of disinhibition brought about by alcohol and drug use, not to mention some problematic aspects of your account given to Ms Cameron.  In fact Ms Rolfe was never relying on the first limb of Verdins and confirmed that was still the position.  She abandoned in the running any reliance on limb 4 from that case relating to the reduction of the weight to be given to specific deterrence, accepting that your condition did not impede that purpose being achieved or given full weight.  She did, however, maintain her argument as to the application of the third and the fifth limbs from that decision.
47	As to the third limb, though not satisfied to the required degree that there was any causative link or even any realistic connection or contribution as between the conditions spoken of and this actual offending, that is not the end of my task.  
48	As I have said, I do not doubt that you have the conditions spoken of.  
49	There must be an evidentiary basis to moderate general deterrence.  It is not sufficient to do so just because the court finds that an offender happens to suffer from a mental impairment or a relevant condition.  Moderation might arise after engaging in a proper and informed consideration of how the 'impairment' materially diminished the offender's capacity to reason appropriately about the wrongfulness of their conduct at the time of the offending.  Of course, that is not relied upon here.   Equally though, there might be some consideration of how the offender's condition or conditions might make him an inappropriate vehicle for the full weight to be given to general deterrence.  That was the way the matter of moderation was argued before me by your counsel.   The Crown did not appear to challenge that suggested moderation.  I say 'moderation' as Ms Rolfe was not suggesting the principle of general deterrence was eliminated or even significantly reduced.  I do allow for some modest reduction of the weight given to general deterrence for the reasons advanced by your counsel.  
50	I see no basis at all to reduce the weight to be given to specific deterrence.  You can and you must be deterred  
51	Nor does the report suggest to me that there is any sizeable increase in your custodial burden arising from any of these conditions.  I will give the fifth limb some modest weight.  
52	The report also deals with your minimisation, with your lack of empathy, with your sense of entitlement and with the existence of attitudes that seemingly support sexual offences.  See paragraphs 129 to 133.  
53	It really is a quite worrying report.  The author speaks of your sexual deviance at paragraph 136.  You told Ms Cameron that you had, as you put it, an ‘appreciation of the Asian aesthetic’.  See paragraph 74.  You told your victim that you had a fetish and that that was why you were acting against her in the way that you were.
54	The report also spells out the risk of future sexual offending and it is by no means low in this case.  There is a moderate to high risk of sexual offending without intervention.  

Rehabilitation
55	I turn now to your prospects of rehabilitation.  You are still a relatively young man and of course I must not and do not lose sight of that fact.  You have a pretty reasonable employment record.  You have a criminal history where you have been given some chances by the courts over the years and you have not taken them all.  You have had long-term issues with drugs and that sort of thing always casts something of a shadow over a person's future rehabilitation.  I accept that there still is some family support. 
56	You have already spent time in prison and there will be much more of that ahead for you to serve.  That will surely deter you to a degree.   
57	The rape is a serious offence indeed.  You were prepared to take advantage of an extremely vulnerable stranger and you have only quite limited remorse for that serious conduct.  There is, as I have said, a high enough risk of sexual reoffending and some worrying matters within Ms Cameron's report.  One would hope that sex offender treatment and counselling would reduce that level of risk, but it is notoriously difficult to predict how all that will pan out.  You are at least not resistant, as some are, to treatment it would seem, and you are doing courses and programs in custody and those things are positives.  Ultimately I can only be quite guarded here as to your future prospects.  I am though, prepared to find that you have realistic prospects of rehabilitation in the future.  

The offences
58	I am not going to say much more about the offending.  I have already summarised the facts very broadly and, whilst rape is an inherently serious offence, that agreed summary I am sure would drive home to any reasonable person the seriousness of this instance of rape.  The seriousness of it is still, to a degree, lost on you.  You still minimise your offending, to a degree.  Your victim was a virtual stranger to you.  She was in need of help.  You volunteered to help her but instead you ultimately used her vulnerability against her.  You were entirely in control.  She had no capacity to consent to any act or to meaningfully obstruct your efforts.  She was in truth, helpless.  She did what she could and what she did was to convey by word and by deed her complete lack of consent to any sexual act.  
59	I have mentioned already my rejection of the account you have given to your counsel as to why you drove off without Mr Ferguson.  I am able to reject that account, as I am not satisfied of your instruction on the balance of probabilities.  The CCTV stills show you were not double-parked and there really was no reason for you to drive off without Ms Choi's friend, but you did.  As I have said previously, though, I am not able to find to the highest standard, so beyond reasonable doubt, that you were intent upon raping her at the moment that you drove off from the club.  
60	However, it was only a short trip home.  Once you arrived home it is plain as day that rape was in your mind as you took her down the side of the house.  I am satisfied of that beyond reasonable doubt.  There is obviously a level of planning or premeditation.  
61	You were interrupted by Ms Biddle, who came out for a smoke.  Rather than her presence bringing you to your senses, you told her to leave the scene, less politely than that, so you could follow through with what was then your plan. A plan which by then had certainly taken shape.  You had taken Ms Choi back to your house.  You were purporting to assist her.  Well, within moments of arriving at your home, I am satisfied beyond reasonable doubt that you had formed an intent to rape her.  It follows that in driving her to your home, though I am not satisfied beyond reasonable doubt that any evil intent existed as you set out from the club, by the time you arrived at your home she was, as a matter of fact isolated, and you well knew that fact.  
62	She would not have had any idea where she was.  She was truly friendless and helpless.  She was then totally isolated, with you.  She had been vomiting in your presence.  You could have entertained no doubt as to her complete incapacity to consent to any sexual act.  You tried to remove her jeans and she stopped you from doing so.  That is the woman you chose to rape, Mr McMahon:  a helpless one at that stage, as you well knew.  You dragged her to the garage, you pushed her up against a wall and ultimately took her into the garage, bent her over a washing machine, removed her clothing and despite her saying no repeatedly, you then penetrated her from behind and continued to do so until you ejaculated.  It was plainly unprotected penetration.  
63	You then within moments were seeking to distance yourself from the serious crime you knew you had committed, altering your clothing, providing a false name, denying that you had a girlfriend named Bella and even later creating out of thin air a stranger who you were suggesting might have been responsible.  But it was your crime, not Steve's. Steve did not exist. Your crime has had deep impact upon your victim.  Those steps do not aggravate the crime, they were steps taken after the event, but they show you were engaging in some consequential and rational thinking, thinking pretty clearly about how to best avoid liability for your serious criminal act.
64	Your use of drugs and/or alcohol is in no way mitigatory, nor does it really even come close to explaining your actual conduct.  The fact is you had the wherewithal to be driving from Essendon to Brunswick. You volunteered to drive home from Brunswick to Essendon and then you went back to the club and you were then pretty nimble in creating a false account and changing your appearance.
65	I remain unimpressed by the submission that it is somehow mitigatory that the act was relatively brief.  If it was of greater duration that would no doubt be a matter in aggravation.  Well, I am not sentencing you for a lengthy or prolonged act.  The setting was plainly of significant aggravation, whatever the duration of the act, and the fact is it went for as long as you needed it to go for. That much is very clear.  You ejaculated within her.
66	It was not accompanied by threats or extravagant violence or the use of a weapon.  Had those things been present, no doubt they would be features of aggravation.  They would be different features of aggravation.  The fact is of course your victim was helpless; that is a feature of aggravation here.  
67	She was treated as an object.  When she said no, you continued.  When she asked you why you were doing what you were doing, you put it down to having a fetish.  You were ignoring her protests and her pleas to stop and she was totally isolated.  She suffered pain and of course the impact has been very large.
68	One can always imagine or construct a worse example of any crime, badging up some hypothetical crime with every imaginable aggravating feature.  But doing that says nothing at all about the level of seriousness of the offence actually before the court, especially one with as many aggravating features as plainly exist in this case.
69	I have mentioned these things already, but I have your level of control. I have her vulnerability, your acting as her protector in the sense of driving her to your home and taking her into your care when she was helpless, then acting in this way.  So too the unprotected nature of the act.  There was obviously some premeditation.  You were manhandling her down the side of the house, ordering Ms Biddle to remove herself from the scene and then forcing your victim into the shed.  You removed her clothes in the face of protest and then penetrated her despite her protestations.  Then you acted in a remarkably cold and calculated way to avoid any liability for the serious crime you knew you had committed.   
70	I totally reject the contention in paragraph 22 of your counsel's submissions where she argues that this instance of rape can be distinguished from cases falling at the mid-to-upper end of seriousness and hence implying by that submission that this instance somehow falls at a lower level.  It does not at all in the circumstances.  There are many features of aggravation here, even if some other matters of aggravation that can be contemplated were absent.  As I said, her heightened vulnerability and your use of that vulnerability in engaging in an unprotected act in the face of protests place this offending well above the mid-level of objective seriousness, in my view.  
71	The other offending is plainly less serious.  The cannabis cultivation barely merits any further mention.  The two assaults and the resist were more serious than the cannabis offence.  It was a very unpleasant scene of your making at that hotel and it went for some time.  We are not talking about seconds. It went for minutes.  Members received bruises and one a cut.  It was pretty alarming as you were reaching for one member's firearm and using a handcuff to swing at the members.  You were biting, kicking and throwing your arms and legs at the members.  It is a difficult job that the police perform at the best of times and the courts must strive to protect those who are acting in accordance with their duty.  These three members obviously were.  They were arresting you for an allegation of rape.
Purposes
72	I have to consider a number of purposes of sentencing.   
73	I must pay regard to your prospects of rehabilitation.  You do certainly have some realistic prospects of rehabilitation and you are still relatively young and I do not ignore these facts.  However, you have very seriously offended on this occasion.
74	I am required to punish you for your crimes, though I must do that justly and proportionately.  Punishment is obviously an important purpose of sentencing in this case.
75	I must also denounce your conduct.   This really was outrageous conduct, raping Ms Choi in the way that you did.  I strongly denounce your conduct.  You really should be ashamed of yourself, a good deal more ashamed than you seem to be.
76	I must give weight to specific deterrence.  This relates to the need to deter you, or dissuade you, from offending in the future.  It is of real importance and that is so despite the absence of any past sexual offending.  The limited remorse on display here and the extent of minimisation is quite worrying.  You must understand that you must never act in this way again.  Ms Cameron spells out in her report the level of risk and the scenarios that would present the higher risk of reoffence.  These are scenarios that you may well find yourself in again:  out at night at venues where alcohol or drugs are being consumed.  Well, I must deter you and that is an important consideration.  I do accept that specific deterrence will in part be achieved by the lengthy sentence I will soon impose.  
77	Community protection is of importance given the nature of the offending.  It must be given adequate weight.
78	General deterrence is also an important purpose of sentencing in this sort of case and that is conceded to be the position by your counsel.  That is so despite the Verdins-driven moderation that I have spoken of.  I must try to deter others from doing what you have done; from taking advantage of a situation that presents itself to sexually offend against a highly vulnerable person.  I must send a loud and clear message that that sort of conduct will be met with a sizeable prison sentence.  So too I must send a message to those who might think it is open to assault or to resist police, police who are trying to arrest someone, police who are acting in the course of their duties.  The courts must strive to deter potential future offenders.  
79	I must have regard to the maximum penalties as well.  Rape is punishable by a 25-year maximum prison term.  It is also subject to the standard sentence scheme.

Standard sentence scheme
80	I must have regard to the standard sentence.
81	The effect of that scheme has been discussed in a number of cases including in the case of Brown, Victorsen and Quah.
82	There is also some discussion of the provisions in the Judicial College of Victoria Sentencing Manual.
83	The standard sentence for the offence of rape is 10 years.  That period is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.  See s5A(1)(b).  This is done without reference to purely personal matters.  See s5A(3)(a).
84	Well, as I have announced, it is my view that this instance of rape falls well above the mid-range, taking into account only those objective factors affecting the seriousness of the offence.  Viewed objectively, it is in my view, a serious example of the offence of rape.  
85	What is plain from the Sentencing Act itself and from the various decisions interpreting the Sentencing Act provisions is that the standard sentence is only one of a number of matters that I am required to take into account.  Where it does apply, I must take it into account as one of the factors.  It does not have primacy over other factors which have to be taken into account.  It introduces an additional factor in the form of this legislative guidepost.  
86	This scheme was never intended to interfere with intuitive synthesis, which is really at the heart of sentencing in this State. Nor was it intended to lead to a two-stage sentencing approach.
87	It does not and it must not represent some starting point from which the sentence is to be fashioned or structured, with a series of additions or subtractions made along the way.  I do not start at that point in relation to Charge 1, rape, and then work my way either up or down from that standard sentence figure, making adjustments in either direction.  That would be quite wrong.  That would involve two-stage sentencing and of course there is no starting point.  
88	Nor does the scheme otherwise affect the matters that a court must take into account.  It does not change the requirement that exists here for me to assess the seriousness of the offence or the manner of assessing the seriousness of the offence.
89	These amendments do impact upon the consideration of past sentencing practices.  When considering sentencing practices or looking at comparable sentences, I must only have regard to sentences imposed for the offence of rape when it was dealt with as a standard sentence offence.  It follows that sentences imposed for instances of rape which predate the scheme are not to be taken into account, but that does not impede my taking into account statements of principle from cases which happen to pre-date the scheme.   That is not prohibited at all.
90	The standard sentencing regime also has consequences for the setting of a non-parole period and the ratio of the non-parole period to the head sentence.  See s11A(4).
91	I have mentioned the need to pay regard to current sentencing practice.  I must do that for each offence that I am dealing with, not just for the offence of rape.  
92	Current sentencing practice is not a controlling factor.  As to the rape I have looked at the Sentencing Advisory Council Snapshot No. 255 of 2021, but it is of very little use as it was compiled in relation to sentences spanning the period 2015-16 to June 2020.  A very large portion, if not the lion's share of those cases, would not have been subject to the standard sentence scheme, as that scheme only came into force for crimes committed after 1 February 2018.  However, I have learnt that a new and useful feature of the Sentencing Advisory Council online data is the ability to look at the statistics held only in relation to past sentences which related to offences covered by the standard sentence scheme.  I have done that.  I have also looked at the relevant Sentencing Advisory Council online sentencing statistics for assault and resist.  
93	Statistics have inherent limitations.  They say nothing at all about the individual feature of the crime or of the offender.  They say nothing about matters that exist in aggravation or mitigation.  Really all the things which might explain a given sentence are omitted from the data. 
94	I have looked at overviews of cases from the Judicial College of Victoria Sentencing Manual, but other cases are not precedents, and it is almost impossible to find a truly comparable case.  
95	No amount of looking at other cases and no amount of looking at statistics will ever provide the answer to my task.  My task is not a statistical or mathematical one.  I am exercising a sentencing discretion in your case.  
Totality
96	In doing so, I must take into account also the principle of totality of sentence.  Here I have a variety of offences.  Now, the rape is the most serious offence by a long shot.  The cultivation of cannabis is the least serious offence by a long shot.  The assaults and resist were not proximate to the rape and they were no minor examples of those offences.  They took place on a later occasion at a point when you were being arrested for that rape.  So there is at least some link, but of course I have different victims in relation to Charge 3, 4 and 5.  I must adequately recognise each crime and each victim.  They are not to be reduced to meaningless statistics.  I recognise, though, that those three crimes were committed in the same tight time frame and that necessarily commands a level of concurrency to be brought to bear.
97	I have to pass appropriate sentences for each crime.  I then have to make judgements as to the extent of the need for cumulation if any.  
98	I have engaged in a last look at the effect of the sentences to satisfy myself that the overall effect is commensurate with your overall criminality.  Your criminality was high in this case.
99	Prison is always a disposition of last resort, but of course there is no alternative to a substantial prison sentence here.  That much is readily conceded.  
Disposal order
100	There is a disposal order and I pronounce that now.  Application is made pursuant to the provisions of s78 of the Confiscation Act for the forfeiture to the State of the property referred to in the schedule.  That property includes some clothing but also the cannabis plants and some loose cannabis.
101	There is no opposition taken to the making of this order.  I am satisfied that the matters required to be proved under s78 are made out.  I order pursuant to those provisions the forfeiture to the State of the property and I direct that it be handled and managed in the way contemplated by the signed order, which I have pronounced in an abbreviated fashion.
102	I am sorry I have taken so long to get to this point.  I will have you stand up now, please, Mr McMahon.

Sentence 
103	I will now pass sentence upon you.   
104	On the first of the charges on the indictment, that is the charge of rape of Min Choi, I convict and sentence you to eight years, nine months' imprisonment.  That will be the base sentence.  
105	On Charge 2, cultivation of narcotic plant, this is the cannabis, I do not believe that a prison term is even warranted in relation to that matter.  I convict and fine you the sum of $750.
106	On Charge 3, the assault committed upon Detective Sergeant Wrout, I convict and sentence you to eight months' imprisonment.
107	Likewise on Charge 4, the assault upon Detective Sergeant Jessica Graham, you are convicted and sentenced to eight months' imprisonment. 
108	In relation to Charge 5, that is the charge of resisting Senior Constable Drady, I convict and sentence you to four months' imprisonment.
Base
109	The base sentence is therefore the eight years, nine months imposed on the rape charge.  
Cumulation
110	I direct that:
•	Two months of the sentence imposed on each of Charges 3 and 4; and 
•	One month of the sentence imposed on Charge 5
is to be served cumulatively upon the base sentence and upon each other. This produces five months' cumulation. 
Total effective sentence 
111	The total effective sentence is theref
112	ore nine years and two months' imprisonment. 
Non-parole period 
113	Unless I am satisfied it is in the interests of justice to do otherwise, I must fix a non-parole period of at least 60 per cent of the relevant sentence, which is the total effective sentence.  I am not so satisfied that it is appropriate to fix a lesser ratio in this case.
114	I am though obviously required by law to fix a non-parole period, given the dimensions of the sentence.  Whether you are released earlier than at the expiry of the head sentence is not a matter that I am allowed to take into account at all.  That will be a matter determined by the Adult Parole Board.  
115	I fix a period of six years during which you will not be eligible for release on parole. 

Pre-sentence detention 
116	You have served a total of 378 days by way of pre-sentence detention and that declaration is entered into the records of the court. 

6AAA
117	I have taken into account your guilty plea.  If you had pleaded not guilty and been found guilty of these offences by a jury I would have sent you to prison for 12 years.  I would have fixed a non-parole period of nine years and that declaration also is to be entered into the records of the court pursuant to s6AAA of the Sentencing Act.
Statement as to standard sentence.
118	Have a seat, please.  There is something more I have to say about the standard sentencing scheme. 
119	I must also make a statement pursuant to s5B(4) and (5) of the Sentencing Act.  Section 5B(4) requires a court sentencing an offender for a standard sentence offence, as I am here, to state the reasons for imposing that sentence.  Section 5B(5) requires me to refer to the standard sentence for the offence of rape and explain how the sentence I have imposed on you relates to the standard sentence.  I know some of my brother and sister judges in relation to that provision say that they believe they can simply say that it is less or more than the standard sentence, which I do not think is what is contemplated by the provision.
120	I am required to identify the facts and the matters and the circumstances which bear upon the judgment I have reached as to the appropriate sentence for that crime.
121	I believe that my lengthy reasons to this point would surely explain the reasons why the sentence imposed in relation to the single offence covered by the standard sentence scheme is lower than the standard sentence specified.  I regard the crime as being a serious example of rape, one falling well above the mid-range looked at purely objectively in terms of the seriousness.  
122	Of course, my sentencing task is not limited to an examination of the objective seriousness of the offence.  There are subjective matters, including subject matters in mitigation, which must be factored into by task.  
123	By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentence, taking into account all the matters I am required to take into account, including the existence of the standard sentence scheme.  It is, as I have said already, only one of many of the factors that I must have regard to.  
124	Let me just see if there's anything else I need to deal with.  Any matters that I need to further deal with, Ms Ventura?
125	MS VENTURA:  No, Your Honour.
126	HER HONOUR:  Ms Rolfe?
127	MS ROLFE:  No, Your Honour.
128	HER HONOUR:  Yes, all right.  Are you going to go down and see your client downstairs today?
129	MS ROLFE:  I will, Your Honour.
130	HER HONOUR:  Very well.  Look, I'll revise these remarks when I get them back from VGRS.  I generally do them pretty swiftly.  Once I've done that they'll be made available to the parties.  I should say I would anonymise in terms of the name of the complainant in the circumstances obviously, but once I've got those back I'll revise them and I'll get them to you, Ms Rolfe, and to the Crown.
131	MS ROLFE:  As Your Honour pleases.
132	HIS HONOUR: That completes the matter then, Mr McMahon.  So Ms Rolfe will come downstairs and have a chat to you downstairs about what's occurred here today, about the sentence and about your rights in relation to the sentence.  So Mr McMahon can now be removed, thank you.  
133	Yes, 10.30 Monday, please.
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