Allen (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0058

CAMERON ALLEN (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	3 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 210
JUDGMENT APPEALED FROM:	DPP v Allen (a pseudonym) (Unreported, County Court of Victoria, Judge Harper, 28 February 2025)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of child sex offences and child abuse material offence – Sexual penetration of child under 12 not established on complainant’s evidence – Applicant admitted to sexual penetration in police interview – Whether sentence is manifestly excessive– Whether disclosure of offending given sufficient weight – Appropriate weight given to Doran discount – Principle of totality correctly applied – Order of cumulation well within range – Leave to appeal refused.

R v CLP [2008] VSCA 113; Doran v The Queen [2005] VSCA 271; DPC v The Queen [2011] VSCA 395; JBM v The Queen [2013] VSCA 69, discussed.

Goh v The Queen [2022] VSCA 24; Mush v The Queen [2019] VSCA 307; Ryan v The Queen (2001) CLR 267, referred to.

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Counsel on the papers
Applicant:		Ms E Allan
Respondent:		Ms B Kelly
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 12 February 2025 the applicant pleaded guilty to one charge each of sexual penetration of a child under 12, sexual assault of a child under 16 and possession of child abuse material. On 28 February 2025 he was sentenced as follows[1]:
[1]DPP v Allen (a pseudonym) (Unreported, County Court of Victoria, Judge Harper, 28 February 2025) (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Sexual penetration of a child under the age of 12[2]	25 years	5 years	Base
2	Sexual assault of a child under the age of 16[3]	10 years	2 years 9 months	1 year and 9 months
3	Possession of child abuse material[4]	10 years	3 years	2 years
Total Effective Sentence:		8 years 9 months
Non-Parole Period:		5 years 5 months
Pre-sentence Detention Declared:		422 days
Section 6AAA Statement:		Total Effective Sentence 12 years Non Parole-Period 7 years 9 months
Other Relevant Orders: 1. Sentenced as a serious sexual offender in respect of charge 3.[5] 2. Length of reporting period is life[6]

[2]Contrary to s 49A(1) of the Crimes Act 1958.

[3]Contrary to s 49D(1) of the Crimes Act.

[4]Contrary to s 51G(1) of the Crimes Act.

[5]Pursuant to s 6F of the Sentencing Act 1991.

[6]Pursuant to s 34 of the Sex Offenders Registration Act 2004.

The applicant now seeks leave to appeal against sentence on two grounds formulated as follows:
1.The sentence imposed on charge 1 is manifestly excessive because it fails to give proper weight to the disclosure of offending by the applicant in accordance with the principle in Doran v The Queen [2005] VSCA 271.
2.The order for cumulation on charge 2 is manifestly excessive and fails to adequately reflect totality.
For the reasons that follow leave should be refused.

The offending

The complainant relevant to charges 1 and 2 was the seven-year-old niece of the applicant. He had a close, father-like relationship with her and had helped raise her at times when she was not in her mother’s care. During the period of the offending the complainant resided with her mother, siblings and maternal grandparents in the grandparents’ home. The applicant lived with his brother in a unit in the same suburb. His brother’s ex-wife and three children lived next door. The complainant was a frequent visitor to both premises.
On a day between 1 August 2023 and 25 December 2023 the applicant was in the loungeroom of his parents’ house with the complainant. He rubbed her vagina with his hand under her clothing and penetrated her vagina with his fingers (charge 1 — sexual penetration of a child under 12 years). On a separate occasion in that period the applicant was again in the loungeroom of his parents’ home with the complainant. He rubbed her vagina over her clothing for five to ten minutes before rubbing her vagina underneath her clothing. The applicant had an erection. He grabbed the complainant’s hand and put it on his erect penis over his clothing (charge 2 —rolled-up charge of sexual assault of a child under 16 years).
On Christmas Day 2023 the applicant was with his family in his parents’ home. He told his brother and sister that he had naked photos of his nieces (being his sister’s daughters) on his phone. The applicant’s siblings looked through the phone and found child pornography involving unknown children, including photographs and videos of children who appeared to be as young as three years of age. The applicant told his siblings that he had a sexual attraction to children but denied knowing there was child pornography on his phone.
The applicant’s sister (the mother of the complainant) asked the applicant if he had touched her children. He denied having done so. The applicant became upset and said that he had been attracted to children since he was 14 years old. He termed himself a monster, said he was sorry and that he wanted to kill himself.
On New Year’s Eve 2023 the applicant was again with his family in his parents’ home. He told his brother’s partner that he was interested in children and a ‘sexual predator’. The applicant’s sister overheard the conversation. An argument ensued during which the applicant admitted that he had ‘sexually touched’ the complainant. He said that the girls had touched his penis and there was nothing wrong with it. The applicant further said that he was ‘grooming’ kids.
The applicant’s siblings took the complainant aside and asked if the applicant had been touching her. The complainant told her mother and uncle he had. When asked to show where the applicant had touched her, the complainant touched her vaginal area. The complainant became upset and said that it sometimes hurt when the applicant touched her and that he did not stop when she asked him to. She said that the touching had last occurred when she had stayed with the applicant and her other uncle.
On 3 January 2023 the complainant gave a VARE[7] to police. She said that the applicant had touched her vagina — the part of her body she uses to wee — under her clothing. The complainant did not describe any act of penetration. She said that the touching had happened at her grandmother’s house and at her uncle’s house.
[7]Visual and Audio Recording of Evidence.
The applicant was arrested the same day. He participated in a record of interview (‘ROI’) during which he made certain admissions including that:
(a)He had rubbed the complainant’s vagina underneath her clothing. This normally occurred in his parents’ house and had happened more than once (although he declined to say how many times). He would rub her vagina until she grabbed his hand or said no. He would get an erection when he did so.
(b)He had once rubbed the complainant’s vagina at the unit in which he lived with his brother (uncharged act).
(c)After initially denying that he digitally penetrated the complainant’s vagina, that he ‘once or twice’ put his fingers through the lips of her vagina ‘down the slit, past the clit and then towards the bum’.
(d)The complainant had previously told him to stop and that it hurt and was uncomfortable.
(e)He had ‘preyed’ on the complainant and should have been someone whom she could trust to protect her.
(f)He knew it was wrong.
(g)He dealt with his urges by looking at child pornography, usually on his phone. He downloaded images and videos, mainly of young girls touching themselves sexually, and had conversations on online forums about child pornography.
The applicant also told police that:
(a)It was the complainant who instigated the touching by putting his hand on her vagina.
(b)He had ‘dobbed’ himself in and told his siblings that he had touched the complainant multiple times.
(c)He had ‘never really sexually assaulted’ the complainant. He had only ‘just groomed’ her.
(d)He had a sexual attraction to ‘the younger generation … below the legal age’ and ‘little girls’.
At the time of his arrest police seized a mobile phone belonging to the applicant. Upon later analysis it was found to contain a total of 1,151 images and 259 videos of child abuse material. Of these, 748 images and 201 videos fell within Interpol Baseline Category 1 child abuse material. They included depictions of prepubescent children — including toddlers — engaged in acts of sexual penetration. The remaining 403 images and 58 videos fell within Interpol Baseline Category 2 child abuse material. They included sexualised imagery of children.

Sentencing reasons

In clear and comprehensive sentencing reasons the judge termed sexual offending against children ‘abhorrent’[8] and the applicant’s offending against his niece ‘disgraceful’.[9] The offending in charges 1 and 2 was noted to be a gross breach of trust of a seven-year-old girl in her own home.[10] That in charge 3 was said to involve a vast amount of child abuse material, including of ‘infants being violated in the most unimaginable ways’. That material was ‘vile and depraved in nature’.[11] The judge noted that every image involved a child victim and the public interest in the protection of children is high.[12]
[8]Reasons, [21].
[9]Reasons, [48].
[10]Reasons, [22]–[23].
[11]Reasons, [48].
[12]Reasons, [26].
Overall the applicant’s offending was assessed as ‘serious’ and his moral culpability as ‘high’.[13]
[13]Reasons, [27].
The judge said that the applicant’s early plea of guilty spared the complainant and other family members the need to give evidence, had significant utilitarian benefit and facilitated the administration of justice. Remorse was termed a ‘complex consideration’[14] because while the applicant disclosed the offending he had also said that there was nothing wrong his conduct and that the complainant had instigated the offending.[15] The judge accepted that there had been some indications of remorse, but gave it less than full weight in the sentencing exercise.[16]
[14]Reasons, [29].
[15]Reasons, [29].
[16]Reasons, [31].
After referring to the impact of the offending upon the complainant, the complainant’s mother and wider family, the judge summarised the applicant’s personal circumstances as follows.[17] The applicant is an Aboriginal man, one of five siblings and was 28 years of age at the time of sentencing. His parents separated when he was young and he moved between Queensland and Victoria in his childhood. He completed Year 8 and commenced Year 9 before finding work variously in butcher shops and as a plasterer, car spray painter and arborist. At the age of 14 years the applicant experienced depressive symptoms and commenced looking at child pornography. He also abused alcohol and cannabis. At about the age of 19 years the applicant’s mother suggested he move close to his family for support. At the time of his arrest the applicant was smoking cannabis daily and drinking half a slab of beer. His remand on 3 January 2024 was the applicant’s first experience of custody.
[17]Reasons, [36]–[40].
The judge referred to a clinical neuropsychological report of Ms Jane Lofthouse and a psychological report of Dr Matthew Barth tendered on the applicant’s behalf at the plea hearing.[18] Based on those reports the judge found the applicant’s need for treatment to be ‘very high’.[19]
[18]Reasons, [41]–[47].
[19]Reasons, [47].
Ms Lofthouse found the applicant fell within the low-average to average range of intellectual function but with impairment in verbal comprehension and knowledge, and in both verbal and nonverbal memory. She said these deficits would have been present at the time of the offending. Ms Lofthouse further said that the applicant’s intellectual impairment should be noted against his report of longstanding difficulty participating in social situations, which ‘may have possibly contributed to him forming an inappropriate relationship with [the complainant]’. His chronic drug and alcohol use was also a factor ‘destabilising his behaviour and impacting … his behavioural control and capacity for clear thinking’. The applicant told Ms Lofthouse that he had long experienced sexual urges towards younger children but believed there was no possibility that he would reoffend.
The applicant had refused to discuss his sexuality and the motivation for his offending with Dr Barth. That was a limiting factor on Dr Barth’s assessment. Dr Barth said nonetheless that the gravity of the applicant’s offending indicated significant dysfunction and that his sexual adjustment was sufficiently problematic to warrant the diagnosis of Pedophilic Disorder. Dr Bath said that intensive specialist sex-offender treatment was ‘clearly required’. The applicant’s risk of sexual recidivism was assessed as moderate. Dr Bath diagnosed the applicant with both Cannabis-Use Disorder and Alcohol-Use Disorder. Each was then ‘in remission in a controlled environment’. Dr Barth further found the applicant to have anxiety-related and depressive symptoms of moderate intensity. While they caused him distress, those symptoms were within the normal limits for an individual in the applicant’s position. Dr Barth also noted that the applicant expressed remorse for his offending.
The judge found general deterrence to be of paramount importance in the sentencing exercise.[20] Specific deterrence[21] and community protection[22] were also emphasised.
[20]Reasons, [49].
[21]Reasons, [50].
[22]Reasons, [51].
As to the Doran[23] discount the judge said
When arrested, you made full and frank admissions, voluntarily disclosing that you penetrated [the complainant’s] vagina in Charge 1. Without this admission, the charge could not have been made out as the act of penetration was not disclosed by [the complainant] in her VARE.
Where an offender provides proof of an otherwise unknown offence, a significant benefit must be applied in moderation of the sentence I impose on that charge. This is known as a Doran discount and must be a significant one, as without your admission there would not have been a charge.[24]
[23]R v Doran [2005] VSCA 271 (‘Doran’).
[24]Reasons, [52]–[53] (citations omitted).
The judge noted that both counsel submitted that a term of imprisonment involving a head sentence and a non-parole period was the only available sentence with respect to charge 1.[25] The judge further noted that both charges 1 and 2 were standard sentence offences with standard sentences of 10 and 4 years imprisonment respectively.[26] The import of the standard sentence regime on the sentencing task was correctly stated by the judge. The judge also referred to the standard sentencing cases submitted by the applicant’s counsel as comparable[27] but noted, again correctly, that each case turns on its own facts.[28] The judge said that the sentences to be imposed on both charges 1 and 2 were lower than the standard sentence.[29]
[25]Reasons, [54].
[26]Reasons, [55].
[27]These were DPP v Dillon (a pseudonym) [2024] VCC 1070; DPP v Sutcliffe (a pseudonym) [2024] VSCA 63 (‘Sutcliffe’); McPherson v The Queen [2021] VSCA 53 (‘McPherson’); and Tobin (a pseudonym) v The Queen [2021] VSCA 180.
[28]Reasons, [56].
[29]Reasons, [57].
As terms of imprisonment were to be imposed on charges 1 and 2 the judge noted that the applicant fell to be sentenced as a serious sexual offender with respect to charge 3. The judge said that she would not impose a disproportionate sentence on that charge but said both that protection of the community was an ‘elevated consideration’[30] and that there was a statutory presumption of cumulation.[31]
[30]Reasons, [58].
[31]Reasons, [59].
The judge said that she had applied the principle of totality, noting particularly that charges 1 and 2 involved the same complainant.[32] The restrictions upon the applicant arising from his placement in protection in a mainstream prison were also considered by the judge.[33]
[32]Reasons, [60].
[33]Reasons, [61].

Applicant’s contentions

Ground 1 — the Doran discount

The applicant contends that the sentence imposed on charge 1 is manifestly excessive in that it failed to sufficiently moderate the sentence ‘commensurate with the quality and importance of the applicant’s disclosures’.
It is argued that the applicant’s disclosures during the ROI were voluntary even though he did not instigate them and was apparently ignorant to the fact they amounted to an admission of digital penetration.
The applicant submits that without the admission there was no chance that the offence could have been proved and that it followed that the admission was deserving of a greater leniency in sentence than if the authorities had real prospects of obtaining other evidence to prove the offence. To illustrate that argument the applicant sought to contrast JBM v The Queen[34] and Ryan v The Queen[35] with R v CLP[36] and DPC v The Queen.[37]
[34][2013] VSCA 69 (‘JBM’).
[35](2001) 206 CLR 267; [2001] HCA 21 (‘Ryan’).
[36][2008] VSCA 113 (‘CLP’).
[37][2011] VSCA 395 (‘DPC’).
The applicant further submits that a ‘fairly crude’ way of assessing whether the sentence imposed on charge 1 is manifestly excessive is to compare the 5 year term with the sentences imposed in Sutcliffe and McPherson where the offenders, neither of whom received a Doran discount, received (after successful appeals in each case) terms of imprisonment of 6 years and 6 years and 6 months respectively. The 12–18 month difference in the applicant’s sentence with these sentences is argued to demonstrate that he did not receive a ‘significant benefit’ from the Doran discount.

Ground 2 — cumulation on charge 2

The applicant submits that the order for cumulation on charge 2 was manifestly excessive and failed to adequately reflect the principle of totality. The following four matters are pressed to advance that submission:
(a)Charges 1 and 2 involved the same complainant.
(b)The charge 2 offending was less serious than the charge 1 offending.
(c)Both offences occurred within the same six month period.
(d)There was no presumption of cumulation as the applicant had no criminal history and was not to be treated as a Serious Sexual Offender[38] in respect to charges 1 and 2.
[38]As defined in s 6B(2) of the Sentencing Act.

Respondent’s contentions

Ground 1 — the Doran discount

The respondent submits that it is clear from the sentence imposed on charge 1 that the judge gave appreciable weight to the Doran discount. It is argued that it was but one matter that had to be considered in the sentencing synthesis for grave offending of high moral culpability in which denunciation, just punishment, community protection and both general and specific deterrence were important matters. The respondent makes arguments to distinguish McPherson and Sutcliffe from the applicant’s case. Further, the respondent argues that the sentence imposed on charge 1 was expressly stated to be intentionally below the standard sentence of 10 years.
The respondent further submits that the evident Doran discount was generous in light of the following three matters.
(a)In contradistinction with the appellant in Doran, the applicant’s disclosures did not demonstrate genuine remorse.
(b)The applicant’s prospects for rehabilitation were characterised by the judge as guarded. In Doran the appellant’s admissions reduced the need for specific deterrence and increased his prospects of rehabilitation.
(c)The applicant’s case can be distinguished from JBM in which the victim was three years of age and incapable of giving a coherent account.
Ground 2 — cumulation on charge 2

The respondent submits that the order for cumulation made with respect to charge 2 did not offend the principle of totality and was in fact modest. The following five matters are relied upon in support of that argument.
(a)The maximum penalty for charge 2 was 10 years’ imprisonment. The applicant’s conduct was a serious example of the offence.
(b)The standard sentence for charge 2 was 4 years’ imprisonment.
(c)Charge 2 was a rolled-up charge encompassing two discreet acts. The applicant fell to be sentenced for the totality of his conduct. That conduct warranted an order for cumulation which reflected its total seriousness.
(d)Charge 2 represented an escalation in the applicant’s offending.[39]
(e)Charges 1 and 2 occurred on discrete dates within a six month period. The complainant had, prior to the charge 2 conduct, told the applicant to stop and that she was in pain and uncomfortable. The respondent referred to the observations of this Court in Mush v The Queen[40] as to the likelihood of a victim of serial sexual abuse experiencing heightened fear each time the abuse recurs.[41]
[39]The applicant cited [45] of the Reasons. In that paragraph the judge quoted the report of Dr Barth which read ‘While [the applicant] was very guarded about his sexuality, the gravity of his offending indicates significant dysfunction. Specifically, he has accessed pornographic material depicting children and then acted-out sexual behaviour with a female child from his own family in the ‘real world’. This clearly indicates deviant cognitions and sexual arousal patterns involving underage individuals. The escalation that was evident in [the applicant’s] offending behaviour is very concerning.’
[40][2019] VSCA 307 (‘Mush’).
[41]Mush [2019] VSCA 307, [73]–[74] (Maxwell P, Kaye JA).
The respondent further submits that the combined effect of the orders for cumulation on charges 2 and 3, being 3 years and 9 months on the base sentence of 5 years’ imprisonment, illustrates the application of the totality principle.

Discussion and analysis

It is frequently observed that a ground of manifest excess is difficult to make out. To succeed an applicant must establish that the sentence imposed was wholly outside the range of sentences available in the sound exercise of the judge’s sentencing discretion.[42] I am unable to conclude that it is reasonably arguable that the applicant has done so in this case with respect to either ground.

Ground 1 — the Doran discount

[42]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at [1]); [2010] VSCA 350; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.

The applicant argued that the sentence is manifestly excessive specifically because insufficient weight was given to the Doran discount.
In Doran the appellant had been arrested and interviewed with respect to his interactions with young girls in a park. He made full and frank admissions to taking photographs of the exposed buttocks and vagina of a nine-year-old girl. About a month later the appellant telephoned the police officer who had conducted that interview to tell him that he had committed a number of other offences against children. The appellant said he had sought psychological assistance and had been told it was essential to his rehabilitation to admit to the commission of those crimes. As a result the appellant pleaded guilty to five counts of an indecent act with a child under the age of 16 years, five counts of producing child pornography, three counts of sexual penetration of a child under the age of 16 years and one count of possession of child pornography.
His initial total effective sentence of 10 years’ imprisonment with a non-parole period of 6 years and 6 months was reduced on appeal to 7 years 6 months’ imprisonment with a non-parole period of 4 years and 6 months.[43] Buchanan JA said that while the offences were serious and ‘warranted stern punishment’[44] there were significant mitigating factors including the earliest possible plea of guilty and genuine remorse.[45] Buchanan JA continued
Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant’s admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.[46]
[43]The conviction on count 1 was quashed as the evidence led in support of it was subsumed by another count: Doran [2005] VSCA 271, [16]–[17] (Buchanan JA, Eames JA agreeing at [18], Nettle JA agreeing at [19]).
[44]Doran [2005] VSCA 271, [15] (Buchanan JA, Eames JA agreeing at [18], Nettle JA agreeing at [19]).
[45]Doran [2005] VSCA 271, [13] (Buchanan JA, Eames JA agreeing at [18], Nettle JA agreeing at [19]).
[46]Doran [2005] VSCA 271, [14] (Buchanan JA, Eames JA agreeing at [18], Nettle JA agreeing at [19]).
Buchanan JA concluded that the initial sentence did not ‘adequately reflect the significance of the appellant’s conduct since the detection of the offences’[47] in the park.
[47]Doran [2005] VSCA 271, [15] (Buchanan JA, Eames JA agreeing at [18], Nettle JA agreeing at [19]).
Since Doran, courts have applied a ‘discount’ where an offender has voluntarily provided authorities with evidence then used against him or her. That is because of the public interest served by encouraging offenders to alert authorities of previously unknown offending.[48] That said, the weight to be attributable to the ‘discount’ is dependent upon the likelihood that, in the absence of disclosure, the offences would have been discovered by authorities or capable of being proven beyond reasonable doubt.[49] The ‘discount’ is not to be applied ‘quantitatively, rigidly or mechanically’.[50] As observed in Goh v The Queen[51], the conduct of the appellant in Doran was
exceptional in nature, involving as it did the accused contacting police to confess to offending that was not then known, and likely would never have become known.[52]
[48]Ryan (2001) 206 CLR 267, 295 [95] (Kirby J); [2001] HCA 21.
[49]Ryan (2001) 206 CLR 267, 272, [13] (McHugh J); [2001] HCA 21.
[50]Ryan (2001) 206 CLR 267, 273, [15] (McHugh J); [2001] HCA 21.
[51][2022] VSCA 24 (‘Goh’).
[52]Goh [2022] VSCA 24, [32] (T Forrest and Walker JJA).
In JBM the three-year-old complainant told her mother that the she had licked the penis of the appellant and he had touched between her legs with his hand. The complainant’s mother reported the matter to the police. In a subsequent VARE the complainant could not particularise any specific incident. The appellant was then interviewed. He immediately admitted to the offending ‘voluntarily, and without any prevarication’,[53] likely cognizant of the fact that ‘the complaint would hardly have been able to put together a coherent account of anything that he had done to her.’[54] He subsequently pleaded guilty to one charge of sexual penetration of a child under 16 and one charge of an indecent act with a child under 16. In reducing the total effective sentence from 7 years’ imprisonment with a non-parole period of 4 years and 6 months to a total effective sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months, Weinberg JA observed there to be ‘powerful’[55] mitigating factors. These included the appellant’s plea of guilty which demonstrated genuine remorse and that prosecuting him would have been impossible but for his cooperation and full admissions. As to the latter Weinberg JA said
It is true, in one sense, that the appellant’s offences were already ‘known to police’. As a matter of practical reality, however, they were ‘known’ only from a theoretical perspective. What the police had been told could not possibly have formed the basis of any prosecution. It was likely that the appellant would have appreciated that fact.[56]
[53]JBM [2013] VSCA 69, [43] (Weinberg JA, Priest JA agreeing at [52]).
[54]JBM [2013] VSCA 69, [8] (Weinberg JA, Priest JA agreeing at [52]).
[55]JBM [2013] VSCA 69, [41] (Weinberg JA, Priest JA agreeing at [52]).
[56]JBM [2013] VSCA 69, [42] (Weinberg JA, Priest JA agreeing at [52]).
In CLP the appellant admitted to sexual offending against his four teenage daughters some 22 years after the fact. The Court observed that the confession to police appeared to have been prompted by ‘events in his family’.[57] It seemed that one of his daughters had told her partner of the abuse prompting him to telephone the appellant and state that the appellant should either tell police what he had done or ‘deal with me’. The Court observed that although the admissions were ‘not entirely unprompted’,[58] they were deserving of considerable weight. The Court concluded that the sentencing judge had given the admissions appropriate weight and left the original sentence undisturbed.
[57]CLP [2008] VSCA 113, [21] (Neave JA, Kellam JA agreeing at [53], Osborn AJA agreeing at [54]).
[58]CLP [2008] VSCA 113, [22] (Neave JA, Kellam JA agreeing at [53], Osborn AJA agreeing at [54]).
In DPC the appellant had been interviewed by police with respect to historic sexual offending against two children. During that interview he disclosed that he had also offended against another child and did what he could to identify her. But for that disclosure it was unlikely that the appellant would have been charged with that offending. Ultimately the appellant pleaded guilty to 24 charges of sexual offending against the three complainants about 40 years after the crimes had been committed. The Court held that insufficient weight had been given to the appellant’s voluntary disclosure as to the third complainant.
These cases do no more than illustrate that, while appreciable weight must be given to the Doran discount where an offender volunteers the evidence of an offence, the quantum of that weight will vary according to the facts of the case and the other circumstances of the offender.
It is to be remembered that manifest excess is a conclusion
‘… which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.[59]
[59]Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J); Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
In this case the judge was required to, and did, consider the Doran discount. It was one of many matters to be assessed and weighed as part of the sentencing discretion. The judge was also required to consider that the applicant had demonstrated less than genuine remorse and insight into his behaviour, his prospects of rehabilitation were guarded and there was obvious need for specific deterrence. Those considerations arose in part from the quality of the voluntary disclosure. Unlike the appellants in Doran, JBM and DPC, for example, the disclosure was not immediately forthcoming nor motivated by true contrition. Here, the admission to penetration arose from a description of how the applicant moved his fingers. That description was sufficient to satisfy the legal definition of sexual penetration. Further, the offending was self-evidently very serious. The applicant’s moral culpability was high. The need for the sentence to reflect both general deterrence and community protection was considerable.
In all the circumstances I am unable to conclude that in passing a sentence of 5 years’ imprisonment on charge 1 the judge did not give proper weight to the applicant’s voluntary disclosure of an act of penetration. The maximum penalty for an offence of sexual penetration of a child under 12 is 25 years’ imprisonment. The standard sentence, being a sentence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle range of seriousness, is 10 years’ imprisonment. While the standard sentence is a legislative guidepost and only one matter to consider, in light of the relatively limited matters upon which the applicant could rely in mitigation of penalty I am of the view that the sentence imposed gave appropriate and significant weight to the Doran discount.
Ground 1 cannot succeed.

Ground 2 — cumulation on ground 2

As noted above, the judge ordered that 1 year and 9 months’ of the 2 years and 9 months’ imprisonment imposed on charge 2 be served cumulatively on the base sentence of 5 years’ imprisonment imposed on charge 1.
Charge 2 was a rolled-up charge involving two discreet acts. The applicant rubbed the complainant’s vagina underneath her clothing for some five to ten minutes. He then grabbed her hand and put it on his erect penis over his clothing. The applicant knew that the complainant was uncomfortable with his touching of her vagina and that it also caused her pain. Despite there being no act of penetration, the offending was an escalation in the applicant’s behaviour insofar as he persisted in the face of the complainant’s resistance and forcibly made her touch his penis. A rolled-up charge is likely to attract a higher sentence than an isolated offence.
In my view the order for cumulation was well within the range open to the judge in the sound exercise of her sentencing discretion. It was appropriate that the distinct offending involved in charge 2 attract a period of imprisonment wholly referrable to it. Further, when the order for cumulation on charge 3 and the resultant total effective sentence of 8 years and 9 months’ imprisonment with a non-parole period of 5 years and 5 months’ imprisonment are examined, it can only be concluded that the judge correctly applied the principle of totality
Ground 2 cannot succeed.

Conclusion

Leave to appeal against sentence must be refused.

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[2025] VSCA 210

3 September 2025