Anonymized Summary of Court Opinion

Factual and Procedural Background

This opinion begins with a reporting restriction pursuant to the Sexual Offences (Amendment) Act 1992: no matter likely to identify the Victim as the victim of the sexual offences may be published during the Victim's lifetime, and the court did not waive or lift that prohibition.

The Solicitor General applied for leave to refer a sentence as unduly lenient. The Defendant was convicted by a jury of two offences: one count of rape and one count of assault by penetration. The trial took place in April 2025 at The Court. The aggregate sentence originally passed by Judge Barker was six years and six months' imprisonment; the Solicitor General was granted leave to refer the sentence.

Factual summary (as found by the court and set out in the opinion):

• On the night of 20–21 August 2022 the Victim (aged 16 at the time) attended a night out in The City and became very intoxicated after consuming a large quantity of alcohol.
• The Defendant (aged 26 at the time) was also out, had consumed a large amount of alcohol and had taken a small amount of cocaine.
• In a club the Defendant was in the company of the Victim for over 20 minutes. The Victim was plainly intoxicated. The Victim's brother told the Defendant that she was only 16 and very drunk and asked the Defendant not to express sexual interest; the Defendant said he was not interested in that way, a statement the judge found to be deceptive.
• After the club closed, the Victim left and was stumbling and disorientated. The Defendant followed, guided the Victim to The Park, removed the Victim's underwear, digitally penetrated her vagina and then raped her vaginally. The Victim's underwear was left in the park and later located by the police.
• The Victim immediately reported the assault; the Defendant was identified from a prior video clip and arrested shortly afterwards. In interview the Defendant admitted penetrative sexual activity but asserted the acts were consensual, claiming the Victim had led the activity; he also admitted significant alcohol consumption and some cocaine use.
• The Defendant was charged in August 2023; the Victim gave a video-recorded pre-recorded cross-examination in March 2024; trial was in April 2025 resulting in conviction on both counts.

Legal Issues Presented

1. Whether the sentencing judge erred in categorising the rape and assault by penetration offences as falling within harm Category 3B rather than Category 2B under the relevant sentencing guidelines.
2. Whether the sentence imposed by Judge Barker on the lead offence (rape) was unduly lenient when assessed by reference to correct categorisation, aggravating and mitigating features, and the principle of totality in relation to the concurrent sentence for assault by penetration.
3. If the sentence was unduly lenient, what is the appropriate sentence to be imposed for the lead offence, and whether any adjustment to the concurrent sentence was required.

Arguments of the Parties

Solicitor General's Arguments

• The judge was wrong to categorise the offences as Category 3B; they should have been Category 2B, which carries higher starting points (rape: starting point eight years, range seven–nine years; assault by penetration: starting point six years, range four–nine years).
• There were serious aggravating features that outweighed mitigation and warranted an upward adjustment from the appropriate starting points.
• The judge made no discernible adjustment to reflect the additional criminality of the assault by penetration when imposing the concurrent sentence, which was an error leading to an unduly lenient outcome.

Defendant's Arguments (Attorney Levine)

• The sentence was not unduly lenient; the judge was entitled to categorise the offences as Category 3B and to fix the sentence at the level imposed.
• No statutory aggravating features applied and there was no evidence of severe psychological harm to the Victim that would push categorisation or sentence higher.
• The Defendant's lack of relevant convictions and substantial positive character evidence were significant mitigating factors and made the sentence proportionate.
• If the appellate court were to find the sentence unduly lenient, it should exercise restraint and only intervene to the minimum extent necessary.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed statutory reporting restrictions under the Sexual Offences (Amendment) Act 1992 and confirmed those restrictions were not lifted.

On the core sentencing issues, the appellate court undertook the following analysis based on the material and the judge's findings:

1. Correct categorisation: Although the sentencing judge had categorised the rape as Category 3B, the appellate court found that was plainly wrong. The sentencing judge had expressly found the Victim was "particularly vulnerable" due to extreme intoxication and that the Victim had suffered psychological harm. Applying the authority cited (R v BN), those findings required placement in harm Category 2 for both offences. Culpability remained in factor B for both.
2. Starting points: With Category 2B established, the correct starting point for the rape count was eight years' custody; for the assault by penetration the starting point was six years' custody. The court noted no basis in the material to select a lower point within the applicable ranges before considering aggravating and mitigating features.
3. Aggravating features: The Solicitor General identified five significant aggravating features which the court accepted: (1) the Defendant specifically targeted a particularly vulnerable Victim; (2) the offence occurred in a public park; (3) it took place in the early hours of the morning; (4) the Defendant was under the influence of alcohol and drugs when offending; and (5) the Victim was 16 years old and the Defendant knew this, having been warned by her brother.
4. Mitigation: The Defendant's mitigation consisted primarily of a lack of relevant prior convictions and substantial positive character evidence. The court held those mitigating factors did not come close to outweighing the significant aggravating features.
5. Adjustment for aggravating/mitigating features (rape): The court concluded that, standing alone, the rape offence warranted an upward adjustment from the eight-year starting point by not less than one year to reflect the net effect of aggravating and mitigating factors — producing a minimum appropriate sentence in the region of nine years if the rape were viewed in isolation.
6. Totality and concurrent sentence (interaction with assault by penetration): The court examined whether and how the assault by penetration (count 2) altered the appropriate sentence for the lead offence under the totality principle. The two offences formed part of one continuous incident (the assault followed quickly by rape). While totality precludes simple aggregation of standalone sentences, the court found it was an error in principle for the sentencing judge to make no adjustment at all to reflect the additional criminality arising from count 2. The correct inquiry was to ask to what extent the penetration offence made the overall criminality worse and to adjust the lead sentence accordingly.
7. Final assessment: Recognising rape as the most serious aspect but also accounting for the additional criminality from the assault by penetration, the appellate court determined that the least sentence that would properly reflect the overall criminality was ten years and six months' imprisonment. The original sentence of six years and six months was therefore wrong in principle for both miscategorisation and failure to reflect the additional criminality, and it was unduly lenient.

Holding and Implications

Holding: The appellate court quashed the sentence previously imposed on the rape count and imposed a new sentence of 10 years and 6 months' imprisonment for count 1 (rape). The sentence imposed on count 2 (assault by penetration) was not adjusted.

Implications and consequences:

• Direct effect on the parties: The Defendant's lead sentence (rape) has been increased from the aggregate six years and six months to 10 years and six months' imprisonment. The concurrent sentence for the assault by penetration remains as originally imposed.
• Reasoning significance: The court's decision emphasises correct application of the sentencing guideline categories where the Victim is particularly vulnerable due to extreme intoxication, the proper identification and weighting of aggravating and mitigating features, and the need to apply the totality principle when multiple offences arise from a single course of conduct.
• Precedential effect: The opinion applies existing sentencing guidance and the authority cited (R v BN) to the facts; it does not purport to create a new legal principle beyond its application of established categorisation, aggravation/mitigation balancing, and totality reasoning to the case at hand.