1A sentencing judge's reference to 'an element of a breach of trust' arising from the circumstances in which a complainant came to be in the offender's presence does not necessarily constitute an impermissible finding that a friendship is a relationship of trust for sentencing purposes; consistently with DPP v Gorgulu (2023) 70 VR 578, such a reference may permissibly describe how the offending came about and how the complainant was rendered vulnerable.
2Where alternative factual pathways to conviction were left to the jury and it is unclear which pathway was adopted, the sentencing judge may still draw upon the evidence supporting those alternative pathways as evidence of the general circumstances in which the offending took place, provided the judge proceeds on the basis most favourable to the offender.
3A sentence approaching the high end of the available range for rape by compelling sexual penetration committed against a vulnerable, intoxicated or sleeping victim may be stern but within range, particularly where the offender was convicted at trial and could not avail himself of any discount for a guilty plea or remorse.
