The Victorian Court of Appeal held that where rape is committed with an honest but unreasonable belief in consent (the third mental state under s 38 of the Crimes Act 1958), the offence is generally of lower objective seriousness and moral culpability than rape committed with knowledge of non-consent or without any thought as to consent, placing it below mid-range against the 10-year standard sentence. The Court found the original 8-year sentence on the rape charge was manifestly excessive because it failed to reflect the full combination of mitigating factors — including the lower objective gravity, early guilty plea, absence of prior sexual offending, delay, and rehabilitation steps — and resentenced to 5 years and 6 months on the rape charge with a total effective sentence of 6 years and 9 months. The Court declined to disturb the cumulation on the FVIO contravention and assault charges, holding those sentences and cumulation orders were comfortably within range given the seriousness of family violence offending and the choking assault.
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