Adkins v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0092

JIM ADKINS	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2023
DATE OF JUDGMENT:	22 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 23
JUDGMENT APPEALED FROM:	[2022] VCC 979 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of six counts of sexual penetration of a child under 16 – Total effective sentence of 2 years 9 months’ imprisonment, non-parole period of 1 year 3 months – Factual error made by trial judge during initial sentencing remarks as to complainant’s age at time of offending – After discovery of error, and resuming sentencing upon corrected age, trial judge applied a ‘6 month reduction’ to the sentence ‘originally fixed on’ – Whether trial judge adopted a ‘two stage’ approach to sentencing – Leave to appeal granted and appeal allowed – Applicant resentenced to total effective sentence of 2 years and 2 months’ imprisonment, non-parole period of 12 months.

Wongv The Queen (2001) 207 CLR 584; Markarian v The Queen (2005) 228 CLR 357, applied.

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Counsel
Applicant:		Mr PJ Smallwood with Ms K Mildenhall
Respondent:		Ms DI Piekusis KC with Ms R Barrett
Solicitors
Applicant:	Nelson Brown Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MACAULAY JA:

After pleading guilty in the County Court to six charges of sexual penetration of a child under the age of 16,[1] the applicant was sentenced on 21 June 2022 as follows:
[1]Contrary to s 45(1) of the Crimes Act 1958 at the time of offending.

Charge	Offence	Maximum	Sentence	Cumulation
1	Sexual penetration of a child under 16	10 years	1 year, 9 months	2 months
2	Sexual penetration of a child under 16	10 years	1 year, 6 months	2 months
3	Sexual penetration of a child under 16	10 years	1 year	1 month
4	Sexual penetration of a child under 16	10 years	2 years	Base
5	Sexual penetration of a child under 16	10 years	1 year, 3 months	2 months
6	Sexual penetration of a child under 16	10 years	2 years	2 months
Total Effective Sentence:		2 years, 9 months
Non-Parole Period:		1 year, 3 months
Pre-sentence Detention Declared:		nil
Section 6AAA Statement:		6 years, 6 months with a non-parole period of 4 years
Other Relevant Orders: 1. Sentenced as a serious sexual offender in respect of charges 3, 4, 5 and 6 (pursuant to s 6F of the Sentencing Act 1991 2. Life reporting (pursuant to s 34 of the Sex Offenders Registration Act 2004)

Having heard the plea submissions on 3 May 2022, the judge commenced to sentence the applicant on 17 June 2022. Part way through delivering her reasons, but before pronouncing sentence, the judge discovered that she had misunderstood the complainant’s age to be 14 rather than 15 during the course of offending. The judge adjourned the sentence for four days, received some further written submissions in the meantime, and resumed sentencing the applicant on 21 June 2022, pronouncing the sentences as set out above.
In the course of her sentencing remarks on 21 June 2022 the judge decided that:
the just and appropriate course to take is to reduce the sentences that I had originally fixed on for the individual charges, and the total effective sentence. I have done that by a 6 month reduction.[2]
[2]DPP v Adkins [2022] VCC 979 (Judge Hampel), [93] (‘Revised Reasons’). From pars 1−71 of the Revised Reasons the judge retained those parts of her sentencing remarks delivered on 17 June 2022 up to the point when she discovered her error. Between 17 June and 21 June, a paragraph numbering error was corrected so that what appeared to be 70 paragraphs in the 17 June transcript became 71 paragraphs in the Revised Reasons.
The judge rejected a submission put on behalf of the applicant that a Community Correction Order (‘CCO’) was the appropriate sentence in the circumstances.
The applicant seeks leave to appeal against sentence on the following grounds:
1. The sentence first imposed resulted from a ‘two-stage’ approach that departed from sentencing principle.
2. The sentence first imposed was manifestly excessive because the wrong type of sentence was imposed.
For the reasons that follow we give leave to appeal, uphold the appeal on ground 1 but not on ground 2, and resentence the applicant to a total effective sentence of 2 years and 2 months with a non-parole period of 1 year.

Circumstances of the offending[3]

[3]This summary of facts is taken from the judge’s summary in the Revised Reasons which, in turn, summarised the facts set out in the amended summary of prosecution opening dated 27 April 2022 tendered as Exhibit P-1 on the plea.

The offending took place between October 2016 and March 2017 during which time the complainant was 15 years and the applicant was 21 and 22 years (born 8 February 1995). There was an age gap of a little over six years between them.
The complainant was the younger sister of an old school friend of the applicant. She and the applicant were also members of the same unit of Cadets.
At the time of the offending the complainant was a school student whilst the applicant had been out of school working for some five years, living independently from time to time or between one parent or the other. To the applicant’s knowledge, the complainant had recently been discharged from a mental health inpatient unit where she had been treated for depression and an eating disorder. The applicant was welcomed into the complainant’s family home as a friend of her older brother and as a person whom the complainant’s parents thought would be a positive, mature influence for her.
There were six incidents which gave rise to the six charges, two of which (charges 1 and 6) were rolled-up charges capturing both digital and penile penetration occurring within the same incident.
Leading up to the first of those incidents, the applicant began visiting the complainant at her home on a regular basis, sometimes up to a couple of times a week. He was trusted and welcomed in the home to the point of watching movies with the complainant in her room, initially with the door open but eventually with the door closed. One night, whilst watching movies with the complainant in her bedroom, the applicant held her hand, told her she was pretty and smart and that he wanted to kiss her. He did kiss her. Thereafter he began exchanging sexual messages with her on Snapchat, encouraging her to watch sexually explicit pictures of him and to send explicit pictures of herself. The applicant suggested over Snapchat that the next time they met they should have sex, warning her that nobody could know and that her brother would kill the applicant if he found out.
In October or November 2016 the applicant went to see the complainant, took her shopping and bought her gifts. They returned to her home to watch a movie. Whilst watching a movie behind closed doors in her bedroom he touched her genitals, had her touch his and then he sexually penetrated her, first with his finger and then his penis. He told her to be quiet so that her mother, who was nearby, would not hear. He did not use a condom and he ejaculated inside her (rolled-up charge 1).
About a month later, in mid-December 2016, the applicant took the complainant on a picnic at a waterfall, making it clear that he planned to have sex. He told the complainant that he did not like using condoms and asked her if she was taking contraceptives. He took her to a secluded place, bent her over a log and penetrated her from behind with his penis, pulling her hair while he did so (charge 2). He told her to go and wash herself.
On their way back to her home from the picnic, he bought the complainant a strawberry scented lubricant suggesting that it would make sexual intercourse more fun and suggesting that they could try it out if nobody was home upon their return. No one was at home upon their return to the complainant’s house and the applicant and the complainant engaged in more sexual activity. The applicant touched her genitals and she touched his, and then he digitally penetrated her (charge 3).
A few days later, the applicant arranged with the complainant for her to slip out of her home in the middle of the night. The applicant waited in a nearby car out of sight of the home. He drove the complainant to a factory carpark nearby. This time he produced lubricant which he used on her before inserting his penis into her vagina. The applicant asked the complainant, whilst penetrating her, if he could lightly choke her. Saying that she had never done it before, the complainant said she was willing to try. The applicant grabbed her neck and held it in a tight grip while continuing the act of sexual penetration (charge 4).
The next morning, the applicant sent the complainant a message saying that he could not wait until she was old enough so they could start telling people about each other.
On Christmas Day 2016 the applicant had been invited to join the family for the day. At one stage during that occasion he took the complainant into her bedroom, removed her underwear and inserted his penis into her vagina, continuing until he ejaculated (charge 5). He returned her underwear to her and left the room. No condom was worn.
Finally, some time in February or March 2017 the applicant arranged for the complainant to leave her house at night to meet him. Again he was parked nearby. She got into his car and he took her to his mother’s house, sneaking her into his own bedroom. He then produced a pair of black leather handcuffs and told the complainant that it was a birthday present. He removed her top and bra and began to suck on her nipples. The applicant turned her around, pulled her hands behind her back and handcuffed her. He then removed her lower body clothing, bent her over the end of the bed, applied lubricant to her vagina and penetrated her, first with his fingers and then his penis. Not using a condom, he ejaculated inside her (rolled-up charge 6).
The applicant drove the complainant back near her home and dropped her off. On this occasion, the complainant’s father happened to be driving past and saw her in the street and also observed the applicant driving off. The father stopped the applicant and the applicant made up a story about having seen the complainant in the street and having taken her home. The applicant messaged the complainant so she could tell the same lie. When her parents confronted her she repeated the lie that the applicant had suggested she tell.
According to her statement made to the police, the complainant did not want her relationship with the applicant to continue but she did not know how to stop it. Eventually, she told the applicant that she was ‘moving on’ but the applicant pressed her to continue. She declined. Soon afterwards, the applicant went to the Northern Territory to work. Contact between the two of them ceased.
Some two and a half years later, the complainant’s then partner discovered sexual messages between the applicant and the complainant on her phone. She informed her partner that the applicant had had sex with her when she was only 15. Some communication then occurred between the complainant’s partner and the applicant. Eventually, the complainant reported the matter to police making a full statement in December 2019 and a further one in August 2020. In her first statement, the complainant said:
I was having a consensual relationship with Jim for about six-seven months. At the time I didn’t think anything of it. It wasn’t until my dad catching me sneaking out I thought this is not good. I started googling age gaps and knew it wasn’t right I started not seeing Jim as much but didn’t know how to end it.
A couple of weeks after Dad had caught me sneaking out I had one of my male friends come over. I didn’t know that Jake and his friends were going to come around as well. Jim wanted to know who this male friend was. I told Jim it was just a friend and he didn’t like that my door was closed with my male friend inside.[4]
…
I have provided this statement as I have a lot of guilt and feel ashamed of what happened with Jim when I was 15 years old. Jim would always say during our physical interactions that I shouldn't say anything to anyone and he could get into trouble with police. He also said that I could get into trouble if the police knew about the physical relationship.[5]
[4]Set out in the Amended Summary of Prosecution Summary, 27 April 2022, [27].
[5]Revised Reasons, [22] .

Reasons for sentence

As explained, on 17 June 2022 the judge commenced to sentence the applicant. What follows is a summary of the reasons which her Honour gave on that occasion. This portion of her Honour’s sentencing reasons was incorporated, unchanged, in the Revised Reasons given on 21 June 2022.
Her Honour commenced by outlining the facts giving rise to the charges and leading to the applicant’s arrest. She then made general observations about the offending affecting her assessment of its seriousness. In doing so, she referred to the presumed harm occasioned to the complainant,[6] and to the actual harm as described in the complainant’s victim impact statement. Her Honour noted that this was not a case of there being no great difference in age between the offender and the complainant, referring to a ‘six year gap’. She emphasised that there were multiple acts over six months; there was no use of a condom thus exposing the complainant to health risks and pregnancy; the applicant took the initiative in the sexual conduct, some involving degrading acts; some acts displayed brazenness; and the applicant told the complainant to keep their conduct secret and to lie to her parents. Her Honour referred to the complainant’s recent mental illness, concluding that there was a power imbalance between the complainant and the applicant who knew of her vulnerability. Her Honour found that the applicant’s conduct involved exploitation of the complainant and a breach of trust perpetrated for his sexual gratification.
[6]Clarkson v The Queen (2011) 32 VR 361.
Turning to matters personal to the applicant and to mitigatory factors, the judge noted that the applicant was, at the time of sentencing, 27 years of age, having no prior convictions and no matters pending. She noted the positive testimonials from his family and from church members referring to his acknowledgement of the wrongfulness of his conduct. The judge referred to the applicant’s schooling difficulties, including his diagnosis of Attention Deficit Hyperactive Disorder, observing, however, that he had completed Year 11 and had had no trouble holding down employment.
The judge acknowledged that the applicant had suffered severe injuries to both wrists in a motorcycle accident in 2018. They had left him with indebtedness, pain, permanent impairment, a need for surgery and ongoing rehabilitation, with consequent disruption to his employment. The judge accepted that his injury would make imprisonment more burdensome for him.
As to prospects of rehabilitation, the judge noted evidence of the applicant’s genuine remorse. She referred to the reports of two psychologists, Dr Barth to whom the applicant was referred for a psychological assessment, and Dr Burrows with whom the applicant had participated in a Sexual Offender Treatment Program (SOTP) for nine sessions over a period of many months. She accepted the psychologists’ assessment of the applicant having a low to moderate risk of reoffending.
The judge concluded there were many positive factors in favour of his prospects of rehabilitation, he had a genuine commitment to continuing the SOTP and the risk of reoffending was likely to reduce further over time if that program was continued. The only reservation the judge had to fully accepting the psychologist’s reports was their characterisation of the offending as lacking any attendant violence. In the judge’s view, the hair-pulling, choking and use of handcuffs was evidence of the use of violence.
To that point in her reasons, delivered on 17 June, the judge had stated on seven occasions, expressly or by implication, that the complainant was 14 years of age, namely:
(a)‘All charges involved the same child, and occurred over a period of about six months, when she was 14, and you 21’.[7]
(b)‘She was 14 and still at school.’[8]
(c)‘It was not until two and a half years later … that she told her partner that you had sex with her when she was only 14’.[9]
(d)When reading from the complainant’s statement to police where she had said that she was 15 years old, as extracted in the passage at [21] above, the judge paused to interpolate that ‘as the evidence turns out, she was only 14’.[10]
(e)‘There was a 6 year age gap between you and your victim (21 and 14) — seven years actually — and the difference in maturity and life experience between a 14 year old schoolgirl and a 21 year old adult who had been in the workforce for 5 years, cannot be underestimated’.[11]
(f)‘The offender in Rose was 18 at the time, not 21 as you were. The age gap in Rose was four years, not six or seven’.[12]
[7]Revised Reasons, [1].
[8]Revised Reasons, [5].
[9]Revised Reasons, [20].
[10]Revised Reasons, [22].
[11]Revised Reasons, [27].
[12]Revised Reasons, [71].
Continuing with the judge’s sentencing remarks, her Honour considered the submission made by defence counsel that the appropriate disposition was a non-custodial sentence (that is, a CCO). The judge acknowledge the additional hardship of imprisonment in the times of COVID-19. She said that she had had regard to various cases which either the defence or prosecution had submitted were comparable. One of those cases was the very recently decided Rose (a pseudonym) v The Queen.[13]
[13][2022] VSCA 112 (‘Rose’).
After mentioning that there were both similarities and differences between Rose and the case before her, the judge announced that she was unable to conclude that a CCO was ‘within range’. In doing so, the judge made the remark set out above at [28(f)]. It was at that stage that defence counsel interrupted the judge to point out the error the judge had repeatedly made referring to the complainant as being 14 rather than 15, presumably provoked by the reference to the age gap being six or seven years.
Having discovered her error (which the judge readily acknowledged) the judge adjourned the sentence for four days until 21 June 2022. She explained that ‘there is a difference in the complainant being 14 or 15 in terms of that gravity of harm to the complainant’.[14] She thought it best to stand down for some time to reflect on ‘what weight I should give to that 15 as opposed to 14 before proceeding to sentence’.[15]
[14]Unrevised Reasons (17 June 2022), [90].
[15]Unrevised Reasons (17 June 2022), [91].
Continuing with the sentence on 21 June 2022, the judge took up her remarks at the point at which she had discovered her error. In the ensuing 22 paragraphs of her further reasons, her Honour recapped the error she had made, the stage the proceeding had reached at the time of the error, and that she had said a number of times there was a six year age gap. The judge observed that she had evidence as to the applicant’s social immaturity but no evidence before her as to the complainant’s level of maturity, reiterating her view that the principal fact to be borne in mind was that the complainant was a schoolgirl under the age of consent and there was a six year age gap between herself and the applicant.[16]
[16]Revised Reasons, [90], [91].
The judge stated that she remained comfortably persuaded that no sentence other than one of imprisonment was appropriate having regard to the applicant’s age of 21 and the significance of the six year age disparity between him and an underage schoolgirl.[17]
[17]Revised Reasons, [92].

With that, the judge concluded this section of her remarks with a passage that included the part we have already extracted at [3] above. Because of its significance, it is now useful to set out that passage in its entirety:
Having said all of that, I have nonetheless decided that the just and appropriate course to take is to reduce the sentences that I had originally fixed on for the individual charges, and the total effective sentence. I have done that by a 6 month reduction. That is in part to reflect the exacerbation of the anxiety and uncertainty caused by the delay, and in part to acknowledge the perception, despite my best effort to remain intellectually honest, that my mistaken belief about the victim's age led to a greater sentence that I would otherwise have imposed. I have deliberately not embarked upon an analysis exercise of trying to work out if I had known the victim was 15 from the start as opposed to 14, whether I would have fixed on the same or lessor (sic) sentences because I don't think that I could have done that with intellectual honesty or intellectual objectivity, I suspect is probably a better way to characterise it. As I said, I have done my best to be intellectually honest and to put my ego aside.[18]
[18]Revised Reasons, [93].
Her Honour then returned to her analysis, picking up from where she had been discussing Rose on 17 June. In Rose, this Court resentenced an offender for similar offending and who, at the time of offending, was 18 years of age, by substituting a CCO for the term of imprisonment originally imposed. Her Honour drew attention to differences between Rose and the current case in the following way:
•the applicant and complainant in this case had a six year age gap, not four as in Rose;
•the applicant here was 21, having been five years out of school in the workforce, not an 18 year old teenager having a relationship with a student at the same school;
•here, the applicant knew the conduct was illegal whereas in Rose that finding could not be made;
•in Rose the offender could have been sentenced in the youth justice system but for delay, whereas that disposition was not available in the present case;
•the offender’s rehabilitation prospects were stronger in Rose than in the present case, meaning that imprisonment would have a greater detrimental effect on the prospects of rehabilitation in that case;
•in Rose the applicant’s conduct was characterised as ‘teenage sexual experimentation’ whereas that characterisation would not apply here;
•in Rose the applicant met the DSM criteria for a major depressive disorder, whereas the present case had no equivalent feature.
The judge reiterated that she remained of the view that, to mark the seriousness of the offending, no sentence other than one of imprisonment was open. Her Honour then proceeded to pronounce sentence recorded above.

Ground 1: did the judge err by adopting a two-stage approach to sentencing?

In Wong v The Queen,[19] Gaudron, Gummow and Hayne JJ explained what was meant by a ‘two-stage approach’ to sentencing: it is a mathematical approach to sentencing in which there are increments to or decrements from a pre-determined range of sentences. Their Honours explained that such an approach is apt to give rise to error and departs from principle because the task of the sentence is to take account of all of the relevant factors and arrive at a single result which takes account of them all, that is to say, arriving at an ‘instinctive synthesis’.[20] Because the task is to take account of all of the circumstances of the offence and the offender,
… to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise.[21]
[19](2001) 207 CLR 584 (‘Wong’).
[20]Wong (2001) 207 CLR 584, 611.
[21]Ibid 612.
In Markarian v The Queen,[22] Gleeson CJ, Gummow, Hayne and Callinan JJ approved what had been said in Wong with the qualification that there may be occasions when some indulgence in an arithmetical process would better serve the ends of transparency and accessible reasoning. As an example, their Honours mentioned a simple case in which the circumstances of the crime have to be weighed against one or small number of other important matters.[23]
[22](2005) 228 CLR 357 (‘Markarian’).
[23]Ibid [39].
Here, the applicant submitted that the Revised Reasons show that the judge arrived at individual sentences and a total effective sentence on 17 June 2022 premised upon the complainant being 14 years of age (the ‘starting point’), and then on 21 June 2022 reduced the total effective sentence by a factor of six months to take into account her error. The starting point was infected by error. To simply apply a mathematical deduction of a period of months from that misinformed starting point, the applicant submitted, neither conforms to the instinctive synthesis approach nor does it serve the objectives of transparency for accessible reasoning.
So, the applicant submitted, a specific error has been identified and this Court should resentence the applicant.
The respondent did not deny that a form of two-stage sentencing occurred but submitted that, in the difficult situation that eventuated, to do so was appropriate and defensible and did not amount to sentencing error.
As the applicant himself had submitted before the judge,[24] the respondent argued that the question of the complainant’s age went to the issue of the objective gravity of the offending. The sentencing judge, submitted the respondent, consistently and correctly referred to a six year age gap between the complainant and the applicant and highlighted the significance of that age gap when dealing with a school child and an adult with life experience — matters important to the assessment of objective gravity. Further, the respondent pointed out that the sentencing judge did not believe that the error in her assumption about the complainant’s age had influenced her reasoning because the real influence upon her reasoning was the age gap.
[24]Unrevised Reasons, (17 June 2022), [77].
Next, the respondent submitted that the law favours transparency and accessible reasoning, as Markarian points out. Referring to the judge’s explanation given in the paragraph extracted above at [34], the respondent argued that in this instance it was appropriate for the judge to indulge in a form of arithmetic process to serve those ends. Indeed, according to the respondent, in the paragraph just referred to the judge explained her reasoning in a manner ‘that could be clearly understood by the complainant, the applicant, this Court and the public’.

Analysis

It is right to say that the judge’s reasoning transparently divulged that she took six months off the sentences she had ‘originally fixed’. But that of itself does not suffice as the ‘transparency’ that the law requires. Why, and for what legitimate purpose, did the judge apply that reduction of six months?
As the respondent submitted, her Honour appeared to maintain that her reasoning was more influenced by the age gap — said to have been correctly and consistently identified as six years — rather than the complainant’s actual age. Further, upon resuming the sentence, her Honour appeared to adhere to her views as already expressed on 17 June about the gravity of the applicant’s offending and the appropriate disposition. Why, therefore, any reduction in the sentence ‘originally fixed’?
In the passage that the respondent relies upon, the judge said that it was ‘in part’ due to the further (4 days) delay in the sentencing process and the attendant anxiety, and also ‘in part’ to address a perception that the judge’s mistaken belief about the complainant’s age might have led to a greater sentence than what she would otherwise have imposed. This is somewhat problematic given that the judge emphasised that the raw age itself was not what directed her thinking; it was the fact that the complainant was school girl, under the age of consent, and the applicant was an adult six years older than her.
Further, and in any event, it is not strictly accurate to argue that the judge had ‘consistently’ referred to an age gap of six years, as opposed to seven. On two occasions throughout her remarks up to the point of discovering the error the judge referred to an age gap of seven years or ‘six or seven’, one of which came immediately after the judge specified their respective ages as being ‘21 and 14’.[25]
[25]Revised Reasons, [22].
Regrettably, in our view, much is not explained, transparent nor readily understood as to why the 6 month reduction was applied, how it was applied and to what it could be attributed. In particular, we know of no justification for applying a sentencing discount to redress a perception of error in the sentencing process: that appears to us to use an error to correct an error.
We pause to acknowledge that this was not an easy predicament. There is no shame in making a factual error. It happens often enough, despite applying earnest and diligent concentration on the issues, as was self-evidently the way the judge approached this sentencing task. But, fundamentally, as matters transpired, the applicant was not sentenced by a judge appraised of all the relevant circumstances, taking them all into account and arriving at a single sentence in one step. The judge’s approach plainly involved a two-stage process, commencing with an erroneous starting point and applying a mathematical deduction for reasons which, in our view, are not sufficiently clear.
We do not accept, as the respondent argued, that there was little more the sentencing judge could do, once the mistake was discovered, than to approach the matter in the way that she did. For example, one alternative approach would have been to take more time, if necessary, and completely rethink the appropriate sentence afresh upon the correct facts. We note the judge’s frank view that she might not have been able to do that ‘with intellectual honesty or intellectual objectivity’. If the judge did not believe she could properly sentence the applicant with intellectual honesty, another course would have been to terminate the sentencing and arrange for another judge to sentence him.
Because we are persuaded that the judge was in error when sentencing the applicant, the question arises whether a different sentence or sentences should be imposed.[26]
[26]Criminal Procedure Act 2009, s 281(1).

Ground 2: the wrong sentence?

Having already determined that the sentence was infected by error, it is strictly unnecessary to consider ground 2 of the application. However, the arguments put on ground 2 effectively addressed the matters of significance on any resentencing of the applicant so it is convenient to rehearse those arguments. In the course of doing so we will briefly state our conclusion on that ground.
In short, the applicant contended that, in all of the circumstances, the judge should have concluded that it was unnecessary to impose a custodial sentence in order to achieve the purpose or purposes for which the sentence was to be opposed. Put another way, it was not open to the sentencing judge to come to the conclusion that a term of imprisonment should be imposed, as opposed to a CCO, because of the principle of parsimony expressed in ss 5(3) and 5(4) of the Sentencing Act 1991.
Those provisions provide that, subject to some exclusions to the operation of the principle which do not apply in this case, a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed; and it must not impose a sentence that involves confinement of the offender unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve confinement.
In effect, the applicant contended that the judge had to be satisfied that the relevant sentencing purpose or purposes could have been satisfied by a CCO, thus making it ‘not open’ to the judge to impose a custodial sentence.
The relevant circumstances which, according to the applicant, should give rise to this result were that the applicant was youthful (aged 21–22) and had no prior convictions; there had been a significant delay between the offending and the sentence; in that period there was no subsequent offending; in addition to his chronological youth, the applicant was also socially and sexually immature; in those circumstances the consideration of general deterrence was reduced; the applicant had willingly engaging in rehabilitation; and he would experience additional hardship in custody because of the pandemic and his wrist injuries.
In written submissions, the respondent enumerated a number of features of the offending informing an assessment of the objective gravity of the offences. Those features were referred to by the sentencing judge as summarised above. Without repeating that list, those features include that the applicant initiated the numerous sexual episodes over a period of about 6 months; prevailed on the complainant to keep their conduct secret, and to tell lies to keep it concealed; was aware of its wrongfulness; engaged in some behaviour that was brazen, domineering and degrading; engaged in the offending with a girl who was vulnerable because of her recent mental inpatient admission, and in a situation in which he breached the trust afforded to him by her parents; caused actual harm to the complainant (beyond the presumed harm); and took no precautions for the complainant’s risk to health or pregnancy, all for his sexual self-gratification.
There is no doubt that this offending was objectively serious for the reasons the respondent identifies. We do, however, consider that the implications of the applicant’s chronological age are somewhat moderated by the consistent evidence of his significant social and sexual immaturity as found in the opinions of Dr Barth and Dr Burrows and the testimonial of the applicant’s sister.
The prominent sentencing purposes for this offending are general deterrence, denunciation, community protection and rehabilitation. Accepting that a CCO may be suitable even in cases of relatively serious offences,[27] including those involving multiple charges of sexual penetration of a child under 16,[28] we see no reason to conclude that the judge was wrong to take the view that only a custodial sentence would achieve all the relevant sentencing purposes. Indeed, we have come to the same conclusion. The community’s denunciation of this offending requires a custodial sentence.
[27]Boulton v The Queen (2014) 46 VR 308, 338.
[28]Rose [2022] VSCA 112, [67]–[81].

Resentencing the applicant

Given that we do not consider that a non-custodial sentence is appropriate, the applicant must be sentenced as serious sexual offender on charges 3 to 6.[29] Community protection must therefore be regarded as the principal sentencing purpose.[30]
[29]Sentencing Act 1991, s 6B.
[30]Sentencing Act 1991, s 6D(a)
While general deterrence is an important consideration when sentencing offenders for committing sexual offences against children , its significance is reduced to a degree in this case because of the applicant’s particular immaturity. His recidivism risk profile was assessed as low to moderate and his continued participation in the SOTP was regarded as very important. Thus, his progress toward rehabilitation by participation in that program is to be encouraged so far as possible to serve the ends of both rehabilitation and community protection.
The applicant is resentenced as follows:
(a)On charge 6 (base), 18 months’ imprisonment;
(b)On each of charges 1 and 4, 15 months’ imprisonment;
(c)On each of charges 2 and 5, 12 months’ imprisonment; and
(d)On charge 3, 9 months’ imprisonment;.
(e)2 months of the sentence on Charge 1, 1 month of the sentence on Charge 2, 1 month of the sentence on Charge 3, 2 months of the sentence on Charge 4 and 2 months of the sentence on Charge 5 are to be served cumulatively upon each other and upon the base sentence, making a total effective sentence of 2 years and 2 months; and
(f)A period of 12 months is fixed as the time that the applicant must serve before being eligible for parole.
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[2023] VSCA 23

22 February 2023