ABC (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0048

ABC (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]A pseudonym order was made by the County Court.

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JUDGES:	PRIEST, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2023
DATE OF JUDGMENT:	16 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 280
JUDGMENT APPEALED FROM:	[2023] VCC 446 (Judge Parrish)

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CRIMINAL LAW – Leave to appeal – Sentence – Application of statutory power to release – Whether judge had power to release where sentence at least 3 years – Recognizance release order only made where sentence less than 3 years – Where sentence at least 3 years, non-parole period set unless Court determines it should not be set, in which case prisoner serves entire sentence.

CRIMINAL LAW – Leave to appeal – Sentence – Attempt – Whether judge treated attempt as if it were substantive offence – Judge required to apply legislation so as to include attempt.

CRIMINAL LAW – Leave to appeal – Sentence – Discount for cooperation – Whether applicant’s cooperation fully helpful – Applicant prevaricated in record of interview – Open to allow some but not complete moderation for cooperation.

CRIMINAL LAW – Leave to appeal – Sentence – Manifest excess – Whether sentence on charge 1 and order for cumulation manifestly excessive – Consideration of seriousness of charge 1 – Offending the subject of charges 1 and 2 distinct – Sentence and order for cumulation not outside the range – Leave to appeal refused.

Crimes Act1914 (Cth); Criminal Code (Cth).

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Counsel
Applicant:		Mr P Kounnas
Respondent:		Ms K Breckweg with Mr J Manning
Solicitors
Applicant:	Olinda Legal
Respondent:	Mr J Carter, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
KAYE JA:

The applicant is a 71 year old man[2] who pleaded guilty before a judge of the County Court to Commonwealth child sex offences involving the use of a telecommunication service (both text and telephone) to procure and engage in sexual activity with a person he believed was a 14 year old girl. The charges were as follows:
(a)charge 1 alleged that the applicant had used a carriage service to procure a person believed to be under 16 years of age for sexual activity;[3] and
(b)charge 2 alleged that he used a carriage service for sexual activity with a person believed to be under 16 years of age.[4]
[2]He was 68 years old at the time of the offending, having been born on 30 July 1952.
[3]Contrary to Criminal Code (Cth), s 474.26(1) (‘the Code’). The maximum penalty is 15 years’ imprisonment.
[4]Contrary to the Code, ss 11.1(1) and 474.25A. The maximum penalty is 20 years’ imprisonment.
Following a plea in mitigation, the applicant was sentenced to a total effective sentence of 3 years and 9 months. That sentence was constituted by individual sentences of:
(a)3 years and 3 months on charge 2; and
(b)1 year and 6 months on charge 1.
The sentence on charge 1 will commence on 28 May 2025, resulting in a cumulation of 6 months and the total effective sentence just mentioned. As required by s 19AB of the Crimes Act1914 (Cth) (‘the Act’), the judge set a non-parole period of 2 years and 3 months.
As will appear, the Act prescribes a mandatory minimum term of imprisonment of 5 years in respect of the offence covered by charge 2.[5] The statutory minimum is subject to a potential reduction on account of a plea of guilty and cooperation with the authorities. In the present case, the judge said that he had ‘reduced the mandatory minimum sentence’ by 25 per cent for the applicant’s plea of guilty, and a further 10 per cent (out of a possible 25 per cent) for the applicant’s cooperation,[6] which the judge said was helpful ‘to some extent’.[7]
[5]The Act, s 16AAA, item 13.
[6]DPP (Cth) v ABC (a pseudonym) [2023] VCC 446, [97] (‘Reasons’).
[7]Ibid [87].
The applicant seeks leave to appeal on four proposed grounds (one of which has two sub-grounds). For the reasons that follow, there was no error by the judge and the application for leave to appeal should be refused.

The facts

A description of the offending was set out in a prosecution summary which formed the basis of an agreed statement of facts.
The offending related to communications between the applicant and an undercover police operative who was posing as a 14 year old girl named ‘Skyler’. A transcript of the entirety of the communications was annexed to the prosecution summary. It is unnecessary to rehearse the material in any great detail.
Charge 1 concerned text-based communications between the applicant and Skyler using the ‘Chatiw’ platform. It involved the applicant in an attempt to procure sexual activity. During the text exchange, Skyler and the applicant had exchanged false photographs of each other and Skyler twice told the applicant that she was 14. The applicant used explicit language, telling Skyler that he was aroused, was masturbating and wanted her to take her top off and that he would listen to her while she masturbated. Skyler provided the applicant with her mobile number and wrote ‘mum will be home soon r u gonna call’.
Charge 2 related to a subsequent 23-minute conversation between Skyler and the applicant.
On the part of the applicant the conversation was explicit, telling Skyler that he was masturbating and ejaculating and that he wanted her to rub his penis. The applicant said that he wanted to see her breasts and Skyler reiterated that she was only 14. The applicant said that he would not show anybody. In his texts the applicant had referred to himself as a policeman and he told her he was a policeman in the phone call.
The applicant told Skyler that he was masturbating and he sent an image of an erect penis that he falsely said was a picture of him. The applicant told Skyler that he would not tell anyone about their talking and that he would get a telephone to use just for the two of them and that she should not text him on the phone he was using.
Police executed a search warrant at the applicant’s home. The applicant showed them the computer and phone that he had used to communicate with Skyler. The applicant participated in a recorded interview with police in which he admitted to communicating with Skyler both by text and telephone and to sending a photograph of a penis. He told police that he believed Skyler was an adult and that she looked 20 years old in the photo she had sent him. Later in the interview he said that he had asked Skyler if she was 18 to which she responded that she was 16.

The statutory provisions

Part IB of the Act sets out the provisions governing the imposition of Commonwealth sentences.
Section 16A(1) provides that in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) sets out a list of matters that a sentencing court must take into account in imposing a sentence.
Section 16A(2AAA) of the Act provides:
In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters that are relevant and known to the court:
(a)when making an order—to impose any conditions about rehabilitation or treatment options;
(b)in determining the length of any sentence or non-parole period—to include sufficient time for the person to undertake a rehabilitation program.
Section 16AAA provides that subject to s 16AAC, the court must impose a sentence of imprisonment of at least the period specified in column 2 for the relevant offence. Item 13 to the table provides that for an offence against s 474.25A(1) of the Code, the Court must impose a sentence of imprisonment of at least 5 years.
Section 16AAC is in the following terms:
Exclusions and reductions—minimum penalties
People aged under 18
(1) Section 16AAA and subsection 16AAB(2) do not apply to a person who was aged under 18 years when the offence that the relevant provision specifies a minimum penalty for was committed.
Reduction of minimum penalty
(2)A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:
(a)the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;
(b)the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.
(3)If a court may reduce a sentence, the court may reduce the sentence as follows:
(a)if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(b)if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(c)if the court is taking into account both of the matters in paragraphs (a) and (b)—by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.

Non-parole and recognizance release orders

Relevantly, s 19AB(1) provides that subject to s 19AB(3), a court must fix a single non-parole period in respect of a federal sentence if:
(a)a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
(b)      the court imposes the sentence or sentences on the person; and
(c)      either or both of the following subparagraphs apply:
(i)      any of the sentences is a federal life sentence;
(ii)      the sentences, in the aggregate, exceed 3 years; and
(d)when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence.
Section 19AB(3) empowers the court to decline to fix a non-parole period in certain circumstances. The effect of that provision would be to require the person to serve the entire head sentence without any prospect of parole.
Section 19AC requires the court to impose a ‘recognizance release order’ in certain circumstances. Section 16 provides that a recognizance release order means an order made under s 20(1)(b).
Again, as presently relevant, s 19AC(1) provides that subject to ss 19AC(3) and (4), a court must make a single recognizance release order and ‘must not fix a non-parole period’ where:
(a)a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
(b)the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and
(c)at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;
Section 20 is headed ‘Conditional release of offenders after conviction’. Section 20(1) is relevantly in the following terms:
(1)Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a)by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i) …; or
(b)sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):
(i)if none of the offences is a Commonwealth child sex offence—either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(ii)if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(iii)if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances—immediately.

Reasons for sentence

In comprehensive reasons for sentence, the judge set out the facts of the offending, matters relating to the personal circumstances of the applicant and so much of the law as was necessary to deal with the submissions that had been made to him. It is sufficient to refer to his conclusions.
The judge observed that any offence involving sexual offending with children is inherently serious.[8] Addressing the objective gravity of the particular offending, the judge described it as falling ‘into the low to middle range of this type of offending’, noting in particular that the contact was limited to a relatively short period of time, there was no physical contact with the victim and there were no plans to meet with the victim.[9]
[8]Ibid [80].
[9]Ibid [85].
The judge noted that the offending took place on a single day: charge 1 involved transmitting a series of communications by way of computer over about an hour and a half, and charge 2 involved an explicit 23-minute phone conversation that followed shortly thereafter. The judge said that there could be no doubt that the content of the conversations with ‘Skyler’ was explicitly graphic and sexual from the very beginning.
There was no evidence of any inducements or threats. The ‘victim’ was an adult police officer. That said, the applicant believed Skyler to be 14 and there was a large age and power differential between them. The judge noted that describing himself as a policeman conveyed ‘an initial impression [of] safety or legitimacy’.[10]
[10]Ibid [84].
Turning to matters in mitigation, the judge addressed in some detail the psychological evidence and character references that were tendered on the plea. The expert opinion relating to the applicant was contained in reports from clinical and forensic psychologist Patrick Newton and provisional psychologist Geoffrey Burrows. In addition, expert reports concerning the applicant’s wife and daughter provided by Jeffrey Cummins were also tendered.
The following salient features were taken by the judge from that material:
(a)the applicant grew up in South Australia as the eldest of four siblings. The applicant reported harsh physical and mental abuse at the hands of his mother, who he said was ‘vicious and brutal’;[11]
(b)the applicant left school at 15, worked as a shearer and later in a factory before joining Victoria Police in 1981 where he remained, rising to the rank of inspector. Although he did not complete secondary school, he completed tertiary studies and at the time of sentence was studying towards a PhD on the topic of domestic violence;
(c)the applicant reported to be a shy and awkward young person and introverted as an adult. His first marriage failed and he has been married to his present wife for 34 years and has one child from his first marriage and a daughter from his second;
(d)Mr Newton noted a ‘variable’ degree of participation by the applicant in interview: he was forthcoming on some aspects but reticent about the offending and unwilling to go through the summary.[12] The applicant was tearful and presented with severe symptoms of depressive mood at the first consultation but composed in the second;
(e)Mr Newton regarded the applicant as downplaying his role in the offending, describing a ‘passive role’ and that he had been ‘playing along’;[13]
(f)Mr Newton noted that the applicant expressed shame and regret for the impacts of his arrest, his pre-occupation and prosecution upon his wife and daughter, but he could not be meaningfully engaged in a discussion of the impacts of such sexualised chat with young people, or the potential effects on the undercover operative;[14]
(g)Mr Newton regarded the risk of further offending as moderate, with the applicant’s behaviour showing significant sexual deviance and dysfunctional sexual arousal patterns;
(h)Mr Newton considered that the offending was not associated with any thought disturbance or psychosis and there was no nexus between his depressive condition and the offending; and
(i)Mr Newton noted that protective custody was likely and that this would provide a more limited range of educational, recreational and other opportunities while in prison. In turn, these factors would tend to exacerbate the applicant’s depression. Mr Newton said it was almost certain that the applicant’s depression would deteriorate and his period in custody would be more onerous than other prisoners who were not facing these challenges.[15]
[11]Ibid [19].
[12]Ibid [22].
[13]Ibid [27].
[14]Ibid [30].
[15]Ibid [40].
The judge accepted that the applicant had assisted authorities ‘to some extent’ at the time of the execution of the warrant. However, he did not accept that he was ‘fully helpful’ in his record of interview, when he had downplayed certain aspects of the offending and was vague about details.[16] After referring to all the evidence, including the early guilty plea, the judge considered that evidence of remorse was ‘at best scanty’ and his prospects of rehabilitation were guarded.[17]
[16]Ibid [87].
[17]Ibid [87]–[88].
The judge accepted that the applicant is a person ‘who is socially awkward and pathologically introverted, with a very limited desire for closeness with others and social interaction’, a pattern that Mr Newton described as a hallmark of a personality disorder.[18] The judge ruled out any connection between the offending and the applicant’s difficult upbringing, personality traits or disorder, observing that he had ‘led seemingly, a blameless life, rising to the high rank in the police force, and conducting a very successful karate business’.[19]
[18]Ibid [89].
[19]Ibid [91].
The judge did, however, make an allowance for the considerations colloquially described as Verdins limbs 5 and 6,[20] reflecting the additional hardship the applicant would endure as a result of his depressive condition, and took into account the hardship occasioned to his wife and daughter.[21]
[20]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[21]Reasons, [86]. See Totaan v The Queen (2022) 108 NSWLR 17, 36 [77], 39–40 [92]–[93] (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed); [2022] NSWCCA 75.
Although the judge said that prior good character did not carry the same weight in the context of sexual offending against children as in other situations, he nevertheless gave some weight to the applicant’s good past record and the character references which were provided in support of the applicant.
In the course of his reasons, the judge addressed the particular provisions of the Act that imposed a mandatory minimum sentence on charge 2 (of 5 years),[22] and rejected a submission that he could exercise the power in s 20 to release the applicant on a security or recognizance. The judge noted that charge 2 was the subject of a mandatory minimum sentence of 5 years under s 16AAA and that this was subject to the operation of ss 16AAC(2) and (3).
[22]The Act, ss 16AAA and 16AAC.

The judge approached s 16AAA in the manner indicated by the Court of Appeal of Western Australia in Bahar v The Queen,[23] and s 16AC by reference to the Court of Criminal Appeal of New South Wales in Glasheen v The Queen.[24]
[23](2011) 45 WAR 100; [2011] WASCA 249.
[24][2022] NSWCCA 191 (‘Glasheen’).

Proposed grounds

Ground 1

Ground 1 is as follows:
The learned sentencing judge erred in finding that ss 20(1)(b)(ii) and (iii) had no application in circumstances where a mandatory minimum of over 3 years is imposed. In the alternative the learned sentencing judge erred by not tackling the argument as to whether or not s 20 of the Act gives rise to a separate type of recognisance considered in s 19 and whether or not the exceptional circumstances test was applicable in these circumstances.
The applicant had submitted to the judge that s 20 of the Act provided a power to order the release of a person (even where the sentence imposed was 3 years or longer) provided exceptional circumstances exist. The applicant repeats that submission in this Court.
He says that s 20 of the Act provides an alternative avenue under ss 20(1)(b)(ii) and (iii) for release on a ‘recognisance’ or ‘otherwise’.
The judge rejected that submission. The judge held that s 19AB(1) provides that a court must impose a non-parole period where a sentence of 3 or more years is imposed unless one of the limited exceptions in s 19AB(3) is satisfied. In those cases, the person would have to serve the full term of the head sentence. By contrast, the judge noted that s 19AC provides that the court must make a recognizance release order where two or more Federal sentences in the aggregate do not exceed 3 years’ imprisonment.
The answer to the ground lies in the process of statutory construction. That process requires close attention to the text, read in its context. Often the meaning of a particular provision will be informed by having regard to the structure which the legislation as a whole employs and recognising that an Act must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[25]
[25]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381–2 [70] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
Here, it is necessary to draw together three provisions — ss 19AB, 19AC and 20 — and the definition of a ‘recognizance release order’ in s 16. When regard is had to those four sections it is abundantly clear that the Act enables a recognizance release order to be made only where the sentence to be imposed is less than 3 years’ imprisonment. The applicant accepted that, having imposed a sentence of more than 3 years’ imprisonment, the judge could not impose a recognizance release order, but contended that s 20 contemplated an early release (in the sense of release before the expiration of the head sentence) that was neither parole nor a recognizance release order. He made that submission on the basis that s 20(1)(a) refers to the court ordering release ‘by recognizance or otherwise’.
To accede to the applicant’s argument would be entirely inconsistent with the statutory structure. It is simply not possible consistently with the evident structure of the relevant provisions to construe s 20 as allowing for immediate release or even release after the expiration of the non-parole period without a grant of parole. The plain legislative intent is that where a sentence of 3 years or longer is imposed, a non-parole period will be set unless the Court determines that a non-parole period should not be set. There is no third means. As already observed, the effect of such a decision is that the prisoner will serve out the entire sentence.
It follows that the judge was correct and the proposed ground cannot be upheld and leave should be refused in respect of it.

Ground 2(b)

By this ground the applicant, if granted leave, would contend as follows:
The sentencing discretion miscarried because the learned sentencing judge treated an attempt as if it were the substantive offence for the purposes of section 16AAA of the [Act].
As already noted, the table to s 16AAA refers to an offence against s 474.25A(1) of the Code. In the statement of offence relevant to charge 2, the indictment stated:
Statement of Offence — Attempt to use a carriage service for sexual activity with a person under 16 years of age, contrary to sub-sections 11.1(1) and 474.25A of the [Code].
The applicant submits that s 16AAA does not extend to an attempt to commit one of the specified offences. That submission cannot be accepted. There are a number of provisions of the Code that assimilate an attempt with the principal offence, including for the purposes of sentence.
Section 11.1(1) of the Code provides that:
A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
Section 11.6 of the Code relevantly provides:
11.6 References in Acts to offences
(1)...
(2)A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3)Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
In our view the position is plain. Sections 11.1 and 11.6 require that the table in s 16AAA be applied so as to include an attempt to commit an offence specified in the table. Even if it were necessary to construe a provision imposing a mandatory minimum sentence strictly, the language of the provisions is intractable. They leave no room for ambiguity.
It follows that ground 2(b) must be rejected.

Ground 3

Ground 3 is in the following terms:
The learned sentencing judge erred in finding that the applicant was ‘not fully helpful to the authorities’ and the resulting attribution of 10% discount was in error.
It will be recalled that the judge said he would reduce ‘the mandatory minimum’ by 25 per cent to accommodate a reduction in respect of the guilty plea and a further 10 per cent in recognition of the applicant’s cooperation. Applying that approach, the judge reduced the mandatory minimum by 1 year and 3 months on account of the plea of guilty and a further 6 months for the cooperation.[26]
[26]Glasheen [2022] NSWCCA 191, [14]–[15] (Price J, with whom Beech-Jones CJ at CL and Garling J agreed).
It appears that the judge concluded that, putting to one side the plea of guilty and cooperation, the minimum sentence in s 16AAA was appropriate.[27] In that respect the judge said that although he did not consider the offending was at the ‘lowest level’, he referred to Rex v Taylor[28] as authority for the proposition that there is no legislative requirement that the mandatory minimum penalty can only be imposed where the offence in respect of which the sentence is to be passed is characterised as ‘the least serious category of offending’.[29] The judge then applied a total reduction of 35 per cent to take into account the plea[30] and cooperation.[31] That produced a sentence of 3 years and 3 months on charge 2.
[27]Reasons, [94]–[95].
[28][2022] NSWCCA 256.
[29]Reasons, [94].
[30]The Act, s 16A(2)(g).
[31]Ibid s 16A(2)(h).
In support of his proposed ground the applicant made two related points. First, he contended that the judge’s description of the applicant’s cooperation as not ‘fully helpful’ was erroneous, in that the applicant had done all that he could to cooperate, particularly at the execution of the warrant. In support of this point the applicant submits that at the time of the record of interview, at which the judge found that the applicant was not fully cooperative, no feature of the offending to be used in the prosecution was in issue. Second, he says that the attribution of a reduction of only 10 per cent was not open to the judge.
Although the sentencing provisions of the Act are founded on the judicial application of instinctive synthesis,[32] the provisions that seek to impose a mandatory minimum sentence push that concept close to, if not past, breaking point. In this case, however, the applicant did not cavil with the approach taken by the judge to s 16AAC, but only with the outcome. For that reason, it is not necessary to explore the complexity of s 16AAC and its relationship with s 16AAA.[33]
[32]Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
[33]Glasheen; R v Delzotto [2022] NSWCCA 117, [3]–[4] (Beech-Jones CJ); R v Stiller [2023] QCA 51, [29]–[32] (Mullins P, with whom Dalton and Flanagan JJA agreed).
Turning to the first complaint, we are not persuaded that the judge’s somewhat qualified assessment of the applicant’s assistance was not open to him. The context is important. The police had participated in the communications that comprised the offending and had a full recording of them. They obtained a warrant and on its execution were in a position to seize telephones and computers located at the address. To have the applicant point them out and provide computer passwords was of assistance but likely only brought forward the inevitable.
The applicant’s admissions that he had participated in the exchanges with Skyler were undoubtedly important to investigators. But by the time of the record of interview the admissions were hardly unqualified. Contrary to the applicant’s submission that there were no remaining matters in issue, at that point a critical issue was the applicant’s belief as to the age of his correspondent. On that topic the applicant prevaricated, telling police that he believed that the person was an adult, that her photo did not look young, and that he asked her whether she was 18 to which she responded that she was 16 ‘or something like that’.[34] It was open to the judge to proceed on the basis that there was not complete candour on the part of the applicant, with the corollary that he could have done more.
[34]Reasons, [15].
Although not relevant to the extent of cooperation, it is noted that in providing a history to Mr Newton the applicant again downplayed his role, reinforcing the impression that, at least from the time of his interview with police, he was not entirely forthcoming.
Section 16A(2)(h) of the Act provides that a sentencing judge may take into account that the person has cooperated with law enforcement agencies in the investigation of a Commonwealth child sex offence. Section 16AAC authorises a court to impose a sentence of up to 25 per cent less than the period specified in the table in s 16AAA in the event of a person’s cooperation. The judge applied a 10 per cent reduction on account of the applicant’s cooperation with authorities.
Cooperation with authorities, where it occurs, is often regarded as an important mitigating factor in sentence.[35] The nature and extent of the cooperation and its utility will be fact and context specific.[36] For example some forms of cooperation will not merely advance an investigation and thereby serve the administration of justice, but it may also imperil the person who cooperates or make any term of imprisonment more burdensome by reason of protective measures taken by prison authorities. In other cases, cooperation will involve no more than admissions.
[35]For example, in a State context. See R v Johnston (2008) 186 A Crim R 345; [2008] VSCA 133.
[36] DPP v Cooper [2018] VSCA 21, [45] (Weinberg, Priest and Beach JJA).
Whatever form the cooperation takes, the impact which it has in sentencing, including under s 16AAC, cannot be reduced to a mathematical formula. Although s 16AAC refers to a percentage reduction of the minimum sentence in the table in s 16AAA, it does not follow that a person who cooperates to the extent they can must qualify for the maximum reduction. There remains a degree of judgment for the sentencing judge.
In this case, given the judge’s findings as to assistance, it was well open to him to allow some but not complete moderation based on the applicant’s cooperation. The figure arrived at does not bespeak any error. For that reason the ground must fail.

Grounds 2(a) and 4

It is convenient to deal with these grounds together. Ground 4 contends that the sentence imposed on charge 1 is manifestly excessive.
The principles to be applied are well understood. In order to succeed the applicant must show that a sentence of 18 months’ imprisonment on charge 1 was not open to the judge, in that it was wholly outside the range available to the judge in the sound exercise of his sentencing discretion.
Charge 1 had a number of factors that made it serious: the graphic nature of the texts, the age difference, the applicant initiating the communication and describing himself as a policeman, and the speed with which the communication became sexual. The judge was right to observe that any offence involving sexual offending with children is inherently serious.[37] Procuring a young teenage girl to engage in sexual offending is a serious offence. The offence was complete at the conclusion of the texts and before the applicant spoke to Skyler in the conversation that is the subject of charge 2. Giving due allowance to the factors accepted by the judge in mitigation, we are not persuaded that a term of imprisonment of 18 months was outside the range.
[37]Reasons, [80].
It follows that the sentence on charge 1 is not manifestly excessive.
That leaves for consideration ground 2(a), which is directed to the order for cumulation.
There can be little doubt that the offending was closely related in time and context. The telephone conversation was foreshadowed in the texts and almost immediately followed them. However, the offending is distinct. Charge 1 is concerned with procuring and charge 2 with engaging in a sexual act. Some degree of cumulation was called for, and it has not been shown that 6 months’ cumulation is so long as to involve error.

Conclusion

Leave to appeal must be refused.

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[2023] VSCA 280

16 November 2023