IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
Suitable for Publication	

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
RYAN TULK (A PSEUDONYM)		

---

JUDGE:	HIS HONOUR JUDGE PARRISH	
WHERE HELD:	Melbourne	
DATE OF PLEA HEARING:	23 November 2022 	
DATE OF SENTENCE:	16 December 2022	
CASE MAY BE CITED AS:	DPP v Tulk (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2022] VCC 2316		

REASONS FOR SENTENCE

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Subject:		CRIMINAL LAW

Catchwords: 		Sentence – one charge of rape 

Legislation Cited:		Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016, s38(1), s38(3); Sentencing Amendment (Sentencing Standards) Act 2017; Sentencing Act 1991, s3(1), s5(2G), s10A, s10AB and s16; Sex Offenders Registration Act 2004

Cases Cited:		Cheung v R (2001) 209 CLR 1 [196]; R v Brown [2018] VSC742,Brown v R [2019] VSCA 286; Muldrock v R (2011) 244 CLR 120; Lugo (A Pseudonym) v R [2020] VSCA 75; Hoang Dung Tran v R [2011] VSCA 383; Ryan v R (2001) 206 CLR 267; R v Liddell [2000] VSCA 37; Director of Public Prosecutions (DPP) (Cth) v Afford [2017] VSCA 201; Director of Public Prosecutions v Mobbs [2003] VSCA 148; R v Rau [2010] VSC 370; Tones v R [2017] VSCA 118; Thomas v R [2019] VSCA 223; R v Nikodjevic [2004] VSCA 222; R v Merrett; Piggott and Ferrari (2000) 14 VR 392; R v Miceli [1998] 4 VR 588; R v Idilo (unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Tadgell and Ormiston, 21 April 1998

Sentence:		Convicted and sentenced to 6 years imprisonment with a non-parole period of 3 years 7 months; 37 days of pre-sentence detention deducted administratively from the sentence ordered.
---

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr N Goodenough at Plea	Office of Public Prosecutions	

	Ms V Jones at Sentence 		
For the Accused	Mr R. Thyssen	Kurnai Legal 	

HIS HONOUR:

1	Ryan Tulk, pursuant to indictment K11632917, you were charged with one count of rape, in that you at Yarraville on 24 February 2018 raped Lucy Edwards by intentionally sexually penetrating Lucy Edwards by introducing your penis into her vagina without her consent.  In circumstances where you did not legally believe that Lucy Edwards consented to such penetration.
2	You have always maintained that there was sexual penetration albeit for a relatively short time, impacted by issues of impotence and also maintained that such act was completely consensual.
3	You stood your trial which commenced on 2 November 2022 with the evidence being completed on 7 November 2022 and the jury sent out to commence their deliberations on that day.
4	On 9 November 2022 a jury of 12 found you guilty of the offence of rape.  Such offence is contrary to s38 of the Crimes Act 1958 with the maximum penalty being levelled to imprisonment 25 years maximum.
5	This offence is also subject to the Standard Sentencing Scheme which was introduced by the sentencing amendment, the Sentencing Standards Act 2017.  That Act introduced standard sentencing for various serious offences committed on or after February 2018.  Section 38(3) of the Crimes Act, provides that the standard sentence for the offence of rape is 10 years.
6	Furthermore, s3 of the Sentencing Act 1991, defines a 'category 1' offence to include an offence under s38(1) of the Crimes Act 1958, s5(2G) of the Sentencing Act 1991 directs that subject to sub-s(2GA) in sentencing an offender for a category 1 offence a court must make an order pursuant to Division 2 of Part 3, other than a sentence of imprisonment imposed in addition to making a Community Correction Order in accordance with s44.
7	Given the nature of your offending you are also subject to the provisions of the Sex Offenders Registration Act (SORA), however given the nature of such offending registration is discretionary and the prosecution has declared that it does not seek an order for registration in this matter.  Given all the circumstances, I will not make any order for your registration.
Material relied on by the prosecution
8	Counsel for the prosecution tendered the following documents; (a) a victim impact statement from the complainant, Lucy Edwards declared on 15 November 2022, Exhibit A; (b) a document headed, 'prosecution submissions re sentence' dated 
21 November 2022, Exhibit B.
9	Counsel for the prosecution also provided a 'sentencing snapshot' in respect of rape, over the period 2015/16 to 2019-2020.  I direct that such document be tendered and marked as Exhibit C.
Circumstances of the offending
10	You fall to be sentenced on a basis consistent with the jury verdict at your trial, see Cheung v The Queen [2001] 209 CLR 1 at p9, paragraph 6.  It follows that this effectively means that you are to be sentenced on the basis of the account of the complainant who gave evidence at the trial.  I note the following circumstances of the offending.
(a)	The complainant in this matter is Lucy Edwards who on Friday 23 February 2018 had drinks with colleagues after work at her workplace in the Melbourne CBD, after which she and one of her workmates then went to a variety of bars and had a number of alcoholic drinks.  She arranged to meet her nephew later that evening and organised an Uber to meet him at her residence at about 9.52 pm.  Later, the complainant, one of her workmates and her nephew left the complainant's residence and travelled back into the city and thereafter attended a number of bars and had a variety of drinks.
(b)	A decision was made to attend a Hotel in Melbourne in order to see a band which was playing there.
(c)	You worked at that Hotel most Friday nights as a security officer and you and the complainant had known each other for about a year and have exchanged texts.
(d)	In December 2017, you had asked the complainant out on a number of occasions but the complainant had refused to go out sometimes stating that she was involved with someone else.
(e)	On reaching the Hotel the complainant, her workmate and her nephew had more drinks and the complainant danced to the music inside the hotel.
(f)	Outside you had a general discussion with her workmate, her nephew and it was agreed that you would all go to another bar. You were able to get off work early and drove your car with the complainant sitting in the front passenger seat and the workmate and nephew of the complainant sitting in the back seat.
(g)	You all arrived at the next venue and looked for another bar, but finally entered no bar and the complainant indicated that she wanted to go home.  You offered to drive all of them home.
(h)	You and the complainant walked back to the car where it was parked holding hands, but when you tried to kiss the complainant she pulled back straight away.
(i)	The workmate and the nephew of the complainant decided they would not go home at that stage and ultimately you drove the complainant back to her apartment at about 3.30 am on 24 February 2018. 
(j)	The complainant in her evidence described herself as being 'tipsy' as a result of the drinks over the evening. 
(k)	When you arrived at the complainant's premises, the following evidence was given by the complainant:
Q:	“Was there any conversation at the point that you arrived?”---
A:	Um, he asked – he asked me if he could come inside.
Q:	What did you say?----
A:	No, it’s not like that.
Q:	What, if anything, did he say?---
A:	He said, ‘Well, can I come and get a glass of water?’.
Q:	What was your response to that?---
A:	Yes.
Q:	What did the two of you – from the car, what did the two of you then do?---
A:	Um, we walked up my driveway. So the block of flats, I was at the end so you have to walk up the driveway.
Q:	Was there any conversation in the driveway?---
A:	Um, yes. Ryan said to me that my neighbours are really close.
Q:	When you got to your front door, what did you do?---
A:	Um, I unlocked it and walked inside.
Q:	What did Ryan do?---
A:	He walked in behind me.
Q:	When you went into the flat, what did you do?---
A:	Um, I put my handbag on the couch and I pointed to where my glasses are, because in my kitchen you can see it’s got a cabinet with a glass door and you can see where the glasses are.
Q:	What did you do?---
A:	Um, I went to go to the toilet in my ensuite, which is off my room.
Q:	When you finished in the bathroom what did you do?---
A:	Um, I came out from the bathroom and Ryan was standing right there.
Q:	When you say ‘standing right there’, what do you mean?---
A:	Um, so once I opened the door, Ryan was standing there, like, right next to my chest of drawers.
Q:	How far away from you was he?---
A:	I would say like a foot.  Like, not far.
Q:	What happened?---
A:	Um, he said that I was beautiful.
Q:	Did you respond to that?---
A:	Yes, I said, ‘Thanks’.
Q:	What happened then?---
…
A:	Then he lent and he kissed me.
Q:	Where did he kiss you?---
A:	On the lips.
Q:	What did you do when he did that?---
A:	I stepped back.
Q:	Did you speak to him at that point?---
A:	I said ‘What the fuck are you doing?’.
Q:	Was there a response from him?---
A:	Yes.
Q:	What was that?---
A:	‘This has been a long time coming.’
Q:	What happened then?
HIS HONOUR:
Q:	Ms Edwards, (sic) it’s a matter for you.  I’m happy enough if you want a break.  The only other thing I can say is just if you want to keep going at this stage just take a deep breath and just say what you have to say or want to say but if you need a break I’ll certainly grant that to you now. Would you like to go on or have a quick break?---
A:	I’ll go on.
…
MR GOODENOUGH:
Q:	After he said ‘This has been a long time coming’, what happened?---
A:	Um, I said, ‘What’s been a long time coming?’.
Q:	What did he say, if anything?---
A:	He just said that I was a tease.
Q:	What happened?---
A:	Ryan grabbed me by both shoulders.
Q:	What did he do?---
A:	He turned and threw me on my bed.
Q:	What happened after he threw you on the bed?---
A:	Sorry.  I said to him, ‘What the fuck are you doing?’.
Q:	Can you continue?---
A:	Sorry?
Q:	Can you continue.  What happened?---
A:	I said to him, ‘What the fuck are you doing?’, and he said to me, ‘You teased me when you were at the bar’.
Q:	Where was your body?---
A:	On the bed.
Q:	Where was his body?---
A:	At that stage he was on top of me.
Q:	How was he on top of you?---
A:	One leg was on side of me and the other leg was on the other.
Q:	What about his hands?---
A:	They were on my arms.
Q:	Could you move?--- 
A:	(No audible response.)
Q:	You’ll need to answer because of the - - -?---
A:	No.
Q:	Thank you. When he was on top of you – what happened immediately after he was on top of you?---
A:	Can I have just like a minute?” (T82, L32 – T85, L12)
…
Q:	Ms Edwards, you were giving evidence about Ryan being on top of you, you remember that?---
A:	Yes.
Q:	What happened then?---
…
A:	Ryan tried to undo my jeans.
Q:	How did he do that?---
A:	With his hands.
Q:	And what happened?---
A:	(Indistinct) have a heart attack. He pulled my jeans down, but only to wear my bottom is. And I was trying to stop him with my hands.
Q:	What were you doing with your hands?---
A:	Trying to push him away - like push his hands.
Q:	And what happened?---
A:	And then he pulled my pants down.
Q:	How far did he pull your pants down?---
A:	All the way off.
Q:	Were you wearing underwear?---
A:	Yes. They came off with my pants. And then he tried to take my top off, but he couldn’t.
Q:	What about his clothes?---
A:	No, his clothes were on.
Q:	What happened after your jeans came off?---
A:	He tried to take my top off, but he couldn’t.
Q:	Was there any conversation at this point?---
A:	I said to him, ‘No,’ and I asked him to get off me. And I said to him to leave, but he didn’t, and - - -
Q:	What happened?---
A:	And then he sat up and he was undoing his belt. Sorry.
Q:	Where was he in relation to you when he was undoing his belt?---
A:	On top of me. And when he was undoing his belt I tried to get out from under him and I – I just tried with my legs and arms. But I couldn’t. And he grabbed my face and he said if I tried that again he’ll do something worse.
Q:	What happened to his pants?---
A:	He got up off the bed and he was taking his pants off, and I got up off the bed to get away and he pushed me back onto my bed and then as I fell and I went to get back up, he was already on top of me.
Q:	When you say on top of you, how was he on top of you?---
A:	One leg on one side and one on the other.
Q:	Was he wearing pants at this point?---
A:	No.
Q:	Could you see his penis?---
A:	Yes.
Q:	Was his penis soft or hard?---
A:	Hard.
Q:	What happened? What happened then?---
A:	Ryan grabbed his penis and put it in my vagina.
Q:	Was he wearing a condom?---
A:	No.
Q:	What happened when he put his penis in your vagina?---
A:	I asked him to stop.
Q:	Did he stop?---
A:	No.
Q:	What did he do?---
A:	He kept going and -  - -
Q:	What did he do when his penis was inside your vagina?---
A:	He raped me.
Q:	What do you mean by that?---
A:	Well, I asked him to stop.
Q:	What did his penis do?---
A:	He came inside me.
HIS HONOUR:
Q:	Sorry, to interrupt. I didn’t catch that.
MR GOODENOUGH:
He came inside me.
HIS HONOUR:
Yes thank you.
MR GOODENOUGH:
Q:	How long was his penis inside your vagina?---
A:	I don’t know. I don’t know.
Q:	Was his penis - - -?---
A:	Not long.
Q:	Was his penis still in your vagina or was it moving?---
A:	It was moving.
Q:	Do you recall how many times it moved?---
A:	No.
Q:	And how did it end?---
A:	He came inside my vagina.
Q:	What made you think that?---
A:	Because I felt it. And he said, ‘I should have pulled out.’ And he laughed when he said that.
Q:	Sorry, I missed that last bit. What did you say, sorry?---
A:	He laughed.
HIS HONOUR:
Q:	Sorry, just so I understand this. He said, ‘I should have pulled out,’ and that’s when he laughed. Is that what you’re saying?---Yes, that’s right.
Okay, thank you.
MR GOODENOUGH:
Q:	What happened then?---
A:	And then he got up off the bed and he put his pants on and he said to me not to tell my friends, or any of my friends.  And then once his pants were on and his belt, he said to me, ‘I guess I’ll see you next week.’
Q:	What did he do then?---
A:	He then walked out of my room and left my house, and I heard my flyscreen door close. And I got up and I locked the door.” (T89, L19 – T92, L1)
(sic)
Victim impact statement
11	Counsel for the prosecution pursuant to the instructions of the complainant read her victim impact statement during the plea hearing.  
12	In her Victim Impact Statement, the complainant states that she moved to Melbourne from New Zealand in about 2014 and found living, at that stage, in a big city, to be very exciting, giving rise to various dreams and ambitions, and a full life.  
13	However, she described that, as a result of the rape, her life was, “ripped out from under her” and all her dreams were taken from her without any control.  
14	She describes how she lost confidence, not only of herself, but with all the people around her, which, in turn, caused lost friendships and strained relationships with family members. The complainant notes that she experienced nightmares and was sleep deprived for a long time, and also suffered from “extreme anxiety”, which she had never experienced to this level before. This in turn impacted on her ability to go into public places and be around clients and people and ultimately she quit her job as a barista.
15	The complainant also asserts that she felt “scared, angry, and lost for a very long time, in fact years and still to this day, [she] suffers from anxiety because of [you] and what [you] did. 'I did not deserve this had to happen to me”. She also asserts that she has effectively stopped “living”, and, in particular, stopped socialising and running after work, as she had done in the past.  
16	The complainant also describes how she went to counselling and saw a psychologist for years after to help her get back to who she was, because she was of the view that her old self has “died” and she has to learn, again to trust people and trust herself.  Finally she states, “Ryan destroyed me as a person, and I hope he does not have the chance to do this to another person”.
Position of the prosecution
17	Counsel of the prosecution submits that:
“The circumstances of this case, involve a violent attack on a vulnerable victim in her own house in the early hours of the morning.  The offending is serious, even if opportunistic.  No condom was used. It involved a threat as well as physical actions and over the protest of the complainant”.
18	Counsel for the prosecution notes “there is no remorse”.  This must be viewed in the context that you do not accept that you have committed the crime of rape.  
19	Ultimately, counsel for the prosecution submitted that deterrence, both specific and general, have a role to play in this matter.  Furthermore, denunciation, protection of the community and just punishment are also of “significance”. Counsel for the prosecution submitted that a sentence involving a term of imprisonment with a non-parole period is within range and that the seriousness of such offending is “mid-range offending”.
20	Counsel for the prosecution detailed a chronology which is attached to his written submissions.  The chronology in this matter is important and I direct that it be individually tendered and marked (Exhibit D).
21	It is noted that:
(a)	The offending occurred on 24 February 2018 and you were interviewed by police on 22 March 2018, just over three weeks from when the rape was said to have occurred.  However, it was not until 10 June 2019 (some 
15 months later) that you were charged on summons.  I note that counsel for the prosecution concedes that there was a “delay” in the initial charging and, indeed, the informant gave evidence that such delay was caused due to workloads;
(b)	Also it is to be noted from the chronology that, from being charged on 
10 June 2019, it was not until 30 November 2021 (some two years and five months later) that you commenced your first trial involving this matter;
(c)	As the chronology makes plain, over the period from 30 November 2021, the commencement date of the first trial - up until 2 November 2022 (just short of 12 months) - the date on which your last trial commenced, there were a series of aborted trials for one reason or another, none of which was due to your fault.  Counsel for the prosecution also concedes that the loss of these juries was through no action of yours, but had the consequence that your trial was “delayed”.
Matters put by your counsel
22	Your counsel tendered the following materials:
(a)	A document headed “Defence Plea Submissions”, dated 16 November 2022 (Exhibit 1).
(b)	Various references, (Exhibit 2) from:
(i)	your former wife, Mrs Chloe Kirby;  
(ii)	Mr Henry McGee, dated 18 November 2020, who is a secondary and early childhood teacher, who has known you for approximately 
11 years;  
(iii)	Mr Ben McClemens, who has known you for some 20 years;  
(iv)	your mother, Mrs Elizabeth Tulk; 
(v)	Mr Callum Strong, dated 22 November, 2022.  Mr Strong is the Director of the company where you have been employed since September 2021 as a fabricator at a manufacturing plant in Morwell;  
(vi)	Ms Bianca Dixson, who has known you for at least 18 years;
(vii)	Mr Harry Ewers, dated 20 November 2022, who was the manager of an auto wreckers in Morwell.  He has been friends with you for about eight to nine years;
(viii)	Mr Nicholas Wells, who is your uncle and has known you all your life. 
 I have read all of these references.
23	Based, in part, on the material which has been tendered, and in part, based on various submissions made by your counsel, I note the following in relation to your circumstances:
•	You are 37 years of age, having been born in Victoria in April 1985. Your father was a truck driver in the army and your mother a nurse.  You have two siblings- an older sister, who teaches at TAFE, and a younger sister who works at a pizza restaurant.
•	During your childhood, the family moved around due to your parents’ occupations and you calculated that you lived in over thirty plus houses and attended twelve to sixteen different schools.  Your attended your most recent High School until the Year 11, which was not completed.
•	Initially, you worked as an apprentice hairdresser, before joining the Navy for about nine months.  You were training as a marine technician, but suffered a back injury, causing you to leave the Navy.
•	You have had numerous jobs, involving maintenance work and  you have also worked in hospitality and managing bottle shops.  
•	In particular, you have been involved in security work for over thirteen years.
•	You have primarily lived in the Gippsland area, and were living there at the time of the subject offence.  
•	Throughout the various jobs that you have worked in, you have also worked at security at times full-time, or part-time, with other occupations.
•	More recently, after being charged, you have been working with 
at a local business for a year, and renting your home. You are earning approximately $1000 a week and paying rent of $340.
•	Over the years, you have had two significant relationships during your life.  The first was with Chloe Tulk (now Ms Chloe Kirby) for about 15 years and you  were married to her for about eight of those.  As a result of that relationship, you have two sons, aged eleven and sixteen.  The second relationship is with your current partner, Ms Amy Hay and you and Ms Hay share joint custody of your sons on an amicable 50/50 basis with your former wife.
•	You separated from your wife in 2015/16 and, shortly thereafter commenced a relationship with your current partner. 
•	For about eight years you have been actively involved in your sons’ soccer activities, helping to coach their teams.  At times, when working security at, you would work in Melbourne, return next morning to coach the soccer, and then return that night to continue work in security for the rest of the weekend.
•	You were also involved in the CFA, attaining the rank of Lieutenant at the 
local CFA. You have also been involved in rugby and Touch Football Victoria.
•	All the sporting community activities had to stop, as did your security work, and your involvement with the CFA had to cease after you were charged with the rape.
•	Your counsel notes that you are devastated with the outcome of your trial and distraught at the effect on your former wife, your current partner, and most particularly, the effect on your sons in their formative teen years.  
•	Your counsel submits that “obviously’ remorse is not in issue as you pleaded not guilty at your trial and, as already noted, your counsel submits that there was a “significant delay involved in the prosecution of the case” and over this period of time, you have been on bail for over four years, which you adhered to at all times.  It was noted by your counsel that you have always attended court punctually and been respectful of the proceedings.  Clearly enough, you would have had stressors with all the aborted proceedings leading up to your final trial.
Conclusion
24	The offence of rape is a serious offence, made clear by the inherent nature of the offence and, indeed, the maximum penalty of twenty-five years’ imprisonment.  As I have recorded, you maintained at all times, that you are not guilty of such offence and that the sexual activity between you and the complainant was totally consensual.  
25	Of course, you are entitled to such view, but in the circumstances here, a jury has found you guilty of such offence.  You are not entitled to any discount on your sentence for any plea of guilty and, indeed, as has been noted, you have no remorse for any offending.
26	Counsel for the prosecution submits, correctly in my view, that your offending must be seen as “opportunistic” and I accept that there was no planning on your behalf for the event to occur.  In this respect, I note that, at one stage, it was anticipated that you would drive, not only the complainant, but the workmate and nephew of the complainant home also.  
27	Counsel for the prosecution also notes, which is common ground, that no condom was used and, in your record of interview, you made clear you did not carry condoms because you did not have the expectation that any sexual encounter will occur.
28	During the trial, there was some issue as to whether you ejaculated.  The expert medical evidence available during the trial could be construed either way, from a finding of ejaculate which could have been consistent with pre-ejaculate or as a result of ejaculation.  
29	In any event, there is no evidence the complainant fell pregnant as a result of such encounter or suffered any adverse medical condition.
30	Counsel for the prosecution also noted, rightly in my view, that on the basis of the evidence of the complainant, you made a threat and, again I refer to the particular evidence:
Q:	“Where was he in relation to you when he was undoing his belt?---
A:	On top of me. And when he was undoing his belt I tried to get out from under him and I – I just tried with my legs and arms.  But I couldn’t. And he grabbed my face and said ‘f I tried that again he would do something worse’.” (T90, L11-16)
31	I do accept that while rape can be ultimately seen as an act of violence, there was no overt violence on your part - such as striking the plaintiff, slapping her, pulling of her hair or anything like that, during the course of the sexual activity between you and complainant.  
32	However, I also take account, based on the evidence of the complainant, the circumstances surrounding the rape must have been extremely frightening. Again I do note that the complainant ultimately stated that your penis was in her vagina for “not long”.  
33	On the basis of the available material - including both the evidence given at trial by your prior wife and your present partner, and the various references which were tendered during the plea hearing, I am of the view, apart from the current offending that you were otherwise of good character.  In this respect, you have no prior convictions for any criminal offending prior to this event, and indeed since this event, there is no evidence that you have come under the notice of the police for any sexual offending, or indeed, any other offending.  Several propositions can be gleaned from the authorities:  
(a)	a lack of similar prior convictions is “a significant matter of mitigation”. (Hoang Dung Tran v The Queen [2011] VSCA 383 at paragraph [29]);
(b)	an offender's good character will always entitle them to some leniency, although may minimal:  (Ryan v The Queen (2001) 206 CLR 267 at 278 -279, 297-300);
(c)	good character must be balanced against the circumstances of the offence for sentencing purposes. (see Ryan v R (op cit)) and the weight to be given to good character may depend on the seriousness of the offence and whether it was an isolated act or part of a course of conduct (R v Liddell [2000] VSCA 37 at paragraphs [72]-[75]; Ryan v R(op cit) at 278 [34]; Director of Public Prosecutions (DPP) (Cth) v Afford [2017] VSCA 201 at paragraphs [29] – [56]);
(d)	good character is significant in cases of first offenders, particularly mature first offenders (see DPP v Mobbs [2003] VSCA 148 at paragraph [18]);
(e)	good character is also relevant to an offender's prospects of rehabilitation (see R v Raw [2010] VSCA 37 at paragraph [32]).
34	I do take your good character into account and, bearing in mind that I consider the subject offending to be opportunistic, I consider such good character also impacts on the unlikelihood that you will reoffend, which in turn, diminishes the need for specific deterrence.
35	The second matter which I consider to be of some relevance, is the issue of “delay”.  Significant delay between the time an offender is interviewed by police and the time charges are laid, as well the delay between the laying of charges and trial, can be a powerful mitigating factor (see Tones v The Queen [2017] VSCA 118 at paragraph [36]; Thomas v R [2019] VSCA 223 at paragraph [66]).
36	Although delay in itself creates no automatic right to a sentencing discount, it is clear enough that, when the prosecution unduly delays bringing the matter to court, there is much more likely to be a discount (see R v Nikodjedic [2004] VSCA 222 at paragraph [22]).  Generally, delay is analysed as a mitigating factor by reference to two limbs -  the first concerning “unfairness” to the offender, in that a charge (or its prospect) was “hanging over” his or her head and caused him or her anxiety.  The second limb concerns whether, during the course of the delay, the offender made progress towards rehabilitation and if prospects of rehabilitation are good (“rehabilitation”) (see R v Merrett; Piggott and Ferrari (2000) 14 VR 392, 400-401, 
 at  [36]- [39]).
37	I consider the first limb, concerning unfairness is particularly relevant to your situation, bearing in mind the delays I have set out earlier in these reasons.  Although, where the unfairness limb is invoked, psychological reports sometimes give support to the distress endured by the offender. However there are also cases where, depending on the duration of the delay, its cause and other circumstances, a court might accept delay caused anxiety to the offender without need for supporting evidence. (See Torence v The Queen (op cit) at paragraph [38]).
38	Although delay does not have to be “inordinate” before it may be considered in mitigation (See R v Miceli [1998] 4 VR 588 at 591),  if such delay is “unduly long” it may often be taken as a mitigating factor (see The Queen v Idilo 
(unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Tadgell and Ormiston, 21 April 1998).
39	In particular, the time from when you were initially interviewed by police until charge is “unduly long”  and throughout that period, you had hanging over you the prospect of being charged with rape.  Furthermore, the various trials that you underwent from November 2021 until your last trial in November 2022, involved you, on at least three occasions, getting to the stage where the jury was in deliberation, before the trial had to come to an end.  I accept as a general proposition, that it would have been stressful as each new trial date approached, commenced and aborted for whatever reason. I consider such situation as a relevant mitigating factor, based around the concept of delay.
40	 I should add, the delay to which I have referred, has been accepted by the prosecution to be caused by reasons other than anything to do with you.
41	The second limb of the concept of delay - the rehabilitation limb- seemingly would have little relevance, given your stance that you are not guilty of the offence.  However, I consider it of some significance that, since being charged with the subject offence, you have not come under the notice of police or charged with any other type of offence, sexual or otherwise.  
42	I propose to take the issue of delay and your previous good character into account when considering an appropriate sentence.
Standard sentencing considerations
43	I refer to s5A and 5B of the Sentencing Act 1991, which sets out the various matters relevant to a standard sentence.  Although the Standard Sentencing Scheme has been applied by a number of judges in the County Court, it was first dealt with in the Supreme Court by Champion J in R v Brown [2018] VSC 742.  That decision was appealed in Brown v R [2019] VSCA 286, where in a five-judge Bench of the Court of Appeal (consisting of Maxwell P, Priest,  Kaye, T Forrest and Emerton JJA) explained the operation of the new provisions.  The Court of Appeal largely upheld the reasoning of Champion J in Brown (op cit) at first instance.  Some assistance is also obtained from the High Court decision of Muldrock v R [2011] 244 CLR 120.
44	I refer to the Court of Appeal decision in Brown (op cit) at paragraphs 4-7 where in the Court of Appeal stated :
“For the most part the provisions are clear in the approach required is not in dispute.  The key new requirement is that a judge, when sentencing for a standard sentence offence, must take the standard sentence into account as one of the factors relevant to sentencing.  This requirement :
is to be treated as a legislative guidepost have the same function as the maximum penalty;
 does not affect the established ‘instinctive synthesis’ approach to sentencing;
 does not require or permit ‘two stage sentencing’; and 
does not otherwise affect the matters which the court may, or must, take into account in sentencing.  
The only area of uncertainty concerns the judge's assessment of the seriousness of the offence before the court (‘the subject offence’).  The ‘standard offence’ is defined as:
 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) of the Sentencing Act 1991]  
The provisions then specify that those ‘objective factors’ are to be determined:
 (a) without reference to matters personal to a particular offender or class of offenders; and 
(b) wholly by reference to the nature of the offending. [see s5A(3) of the Sentencing Act 1991]
 It is not in doubt that those specifications apply to the identification of the hypothetical ‘middle of the range’ offence.  The question which was explored at the hearing of these appeals was whether the new scheme required (or permitted) the sentencing judge to assess the seriousness of the subject offence ‘taking into account only the objective factors’ as thus defined.  
The submission of senior counsel for the Director was that, on their proper construction, the scheme provisions neither required or permitted such an assessment. For the reasons set out in Part 1, we would uphold that submission. In our opinion, the standard sentencing provisions do not have any bearing on the judge's obligation to assess the seriousness of the subject offence.  That assessment remains a necessary part of the process of instinctive synthesis and is not constrained by the legislative definition of ‘objective factors’.  Those constraints are referrable only to the assessment which gives content to the hypothetical offence as an offence ‘in the middle range of seriousness’.”

(My emphasis)
45	I refer to the matter of Brown (op cit) at first instance, where 
Champion J stated at paragraphs 96-97 and paragraph 99 as follows:
“…Matters personal to a particular offender such as the offender's age, state of health, family circumstances, employment and general background, are matters that bear little or no explanatory or relevant connection to the assessment of the nature of the offending. 
However matters such as the mental illness of an offender, the motivation for carrying out the offending, provocation and aspects of duress, are examples of factors that can have a relevant causal connection to the offending, such that they are fundamental qualities of the offence.  Such matters, by their fundamental nature, in my opinion can be relevant to the assessment of the objective seriousness of the offence. 
…
In my view the correct approach taken under s5A(3) of the Act is for a sentencing judge to make an assessment on what factors causally affect the relative seriousness of the offence, complying with the prescribed language and structure of the legislation”.
46	I also refer to Lugo (a Pseudonym) v R [2020] VSCA 7, a Victorian Court of Appeal decision constituted by five judges.  At paragraphs 25-26 the court stated:
“For the reasons given by this court in Brown v The Queen [2019] VSCA 286, the comparative assessment was neither authorised nor required by the standard sentence provisions.  The judge's obligation to assess the seriousness of the subject offence was, the court said unaffected by the standard sentence provisions [at[7]]. Judges sentencing for standard sentence offences ‘should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability [at[55]].
The sentencing judge and R v Brown [(op cit)] had, likewise, undertaken a comparative assessment ‘taking into account only the objective factors’.  The Court concluded that, although His Honour had gone beyond what was required by the provisions, this  misapprehension had not affected His Honour's assessment of the seriousness of the offending…”.
(My emphasis)
47	I also refer to s11A of the Sentencing Act 1991, which directs, as to the process of fixing a non-parole period for a standard sentence offence or in respect of a total effective sentence imposed in respect of two or more sentences, at least one of which is a standard sentence offence (see s11A(1)).
48	Section 11A(4) of the Sentencing Act 1991 provides that, unless a court considers that it is in the interest of justice not to do so, the Court must fix a non-parole period for at least – relevantly - 70 per cent of a relevant term if that term is a term of 
twenty years or more, or 60 per cent of that relevant term if that term is a term of less than twenty years. The “relevant term” referred to in s11A(5) is defined to mean, inter alia, the total effective sentence referred to in ss(1)(b).
49	In Brown (op cit) the Court of Appeal also examined the standard non-parole period scheme and in particular referred to the High Court decision of Muldrock v R (op cit) and in particular, paragraphs [27]- [29].  The Court of Appeal then stated, at pages 9-10 that:
“These passages may be distilled into a number of propositions. as follows:
 (1) The standard non-parole period is a legislative guidepost in the same way as the maximum sentence is.  
(2) In order for it to serve as a guidepost ,meaningful content must be given to the legislature’s specification of the standard non-parole period as the non-parole period ‘for an offence in the middle of the range of objective seriousness’.
(3) Giving meaningful content to that specification requires that ‘objective seriousness’ be assessed:
(a) ‘without reference to matters personal or to a particular offender or class of offenders’; and
(b) ‘wholly by reference to the nature of the offending’.  
(4) The sentencing court is neither required nor permitted to assess whether the subject offence falls within ‘the middle of the range of objective seriousness’ by comparison with ‘an hypothesised offence answering that description’.  
(5) The requirement to give reasons for fixing a non-parole period above and below the standard non-parole period does not require the judge to ‘classify the objective seriousness of the offending’.
(6) The judge must, however, identify all the facts, matters and circumstances which bear on the conclusion reached as to the appropriate sentence. 
In the High Court's view, therefore, the standard non-parole period provisions required only one assessment of ‘objective seriousness’. That was the assessment which was necessary in order to give ‘meaningful content’ to the legislative description of the ‘hypothesised offence’, as an offence ‘in the middle of the range of objective seriousness’.  It was that assessment, the Court said, which must be undertaken ‘without reference to matters personal to the particular offender or class of offenders’ and ‘wholly by reference to the nature of the offending’.”
50	Consistent with the foregoing authorities, I do take into account the standard sentence in relation to the offence of rape, but noting that such standard sentence is to be treated as a 'legislative guidepost' and does not affect the established “instinctive synthesis” approach to sentencing.  I also should add that I accept the proposition of counsel for the prosecution that the objective seriousness of the subject offending is about midway.
51	In coming to a view as to an appropriate sentence, I consider that general deterrence, just punishment and denunciation are particularly relevant in coming to an appropriate sentence.  I consider that specific deterrence is not as critical, given your previous good character and the likelihood that you will not reoffend, given your past good character and to a lesser extent, the opportunistic nature of the subject offending.
52	I intend to convict you of this offence and sentence you to a period of imprisonment with a non-parole period.  I note s11A of the Sentencing Act in relation to the standard sentencing considerations relating to a non-parole period.  
53	Please be upstanding.
54	In relation to Charge 1 on Indictment no.K11532917, you are convicted and sentenced to a period of six years imprisonment with a non-parole period of three years, seven months.  
55	I declare that you have served up to but not including this day 37 days in pre-sentence detention and that such period should be administratively deducted for the sentence ordered against you.  
56	Yes, we’ll adjourn sine die, thank you. 
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