Director of Public Prosecutions v Barton (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0184

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
RYAN BARTON (A PSEUDONYM)[1]	Respondent

[1]To ensure that there is no possibility of the identification of victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the respondent and his victims.

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JUDGES:	PRIEST, BEACH and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2025
DATE OF JUDGMENT:	28 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 202
JUDGMENT APPEALED FROM:	[2024] VCC 1402 (Judge Gucciardo)

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CRIMINAL LAW – Sentence – Crown appeal – Multiple sexual offences against children – Persistent sexual abuse of a child under 16; sexual penetration with a child aged 16 or 17 under care, supervision or authority; grooming for sexual conduct with a child under 16 (2 charges); sexual assault of a child under 16; sexual assault of a child aged 16 or 17 under care, supervision or authority – Course of conduct charges – TES of 9 years and 9 months, with NPP of 6 years – Manifest inadequacy – Whether individual sentences, orders for cumulation and TES manifestly inadequate – Substantial delay – Respondent remanded and subject to lockdowns and restrictions during pandemic – Lenient sentences and orders for cumulation leading to lenient TES – Sentences and orders not wholly outside permissible range of sentences open to sentencing judge – Appeal dismissed.

Sentencing Act 1991, ss 5(2F), 5(2G), 5A, 5B, 6D, 6E and 11A.

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Counsel
Appellant:	Mr BF Kissane KC with Ms J Poole
Respondent:	Mr OP Holdenson KC with Ms E McKinnon

Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Doogue & George

PRIEST JA
BEACH JA
TAYLOR JA:

On 9 February 2022, the respondent pleaded guilty in the County Court to two charges of grooming for sexual conduct with a child under the age of 16 (charges 1 and 5);[2] one charge of sexual assault of a child under 16 (charge 2);[3] one charge of sexual assault of a child aged 16 or 17 under care, supervision or authority (charge 3);[4] one charge of sexual penetration with a child aged 16 or 17 under care, supervision or authority (charge 4);[5] and one charge of persistent sexual abuse of a child under 16 (charge 6).[6]
[2]Contrary to s 49M(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4]Contrary to s 49E(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[5]Contrary to s 49C(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[6]Contrary to s 49J(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
Charges 2, 3 and 4 were ‘course of conduct’ charges within the meaning of clause 4A of Schedule 1 of the Criminal Procedure Act 2009, and therefore attracted the operation of s 5(2F) of the Sentencing Act 1991. Charges 2 and 6 were standard sentence offences within the meaning of s 3(1) of the Sentencing Act. The standard sentence for charge 2 was 4 years, and the standard sentence for charge 6 was 10 years. Charge 6 was a category 1 offence within the meaning of s 3(1) of the Sentencing Act, and therefore attracted the operation of s 5(2G) of the Sentencing Act.
On 2 September 2024, following a plea hearing on 7 May 2024, the respondent was sentenced as follows:[7]
[7]DPP v Barton (a pseudonym) [2024] VCC 1402 (Judge Gucciardo) (‘Reasons’).

Charge	Offence	Maximum	Sentence	Cumulation
1	Grooming for sexual conduct with a child under the age of 16	10 years	1 year and 3 months	3 months
2	Sexual assault of a child under the age of 16	10 years	2 years	6 months
3	Sexual assault of a child aged 16 or 17 under care, supervision or authority	5 years	2 years and 9 months	6 months
4	Sexual penetration with a child aged 16 or 17 under care, supervision or authority	10 years	4 years and 6 months	18 months
5	Grooming for sexual conduct with a child under the age of 16	10 years	12 months	Nil
6	Persistent sexual abuse of a child under the age of 16 years	25 years	7 years	Base
Total Effective Sentence:		9 years and 9 months
Non-Parole Period:		6 years
Pre-Sentence Detention declaration:		1,148 days
Section 6AAA statement:		11 years, with a non-parole period of 7 years and 2 months

The respondent, having been sentenced to terms of imprisonments on charges 1 and 2, was sentenced on charges 3, 4, 5 and 6 as a serious sexual offender pursuant to Part 2A of the Sentencing Act. In addition, pursuant to s 34 of the Sex Offenders Registration Act 2004, the judge made an order requiring the respondent to comply with reporting obligations referred to in that Act for life.
On 30 September 2024, the Director of Public Prosecutions (‘the Director’ or ‘the appellant’) filed a notice of appeal against the sentence imposed by the judge. The Director’s single ground of appeal is:
1.The individual sentences imposed on charges 1, 2, 4, 5 and 6, the orders for cumulation on all charges and the non-parole period are manifestly inadequate, resulting in a manifestly inadequate totally effective sentence.

Circumstances of the offending

The offending occurred between 1 July 2017 and 16 October 2020. During that period, the respondent was aged between 33 and 36. He lived in the eastern suburbs with his wife and child, and was a teacher employed at an eastern suburban college (which the judge referred to as ‘the college’).
The victims of the respondent’s offending were Alyson Larson[8] and Ana Stark.[9] Ms Larson and Ms Stark were students at the college. Ms Larson was in one of the respondent’s classes when she was in year 11. Ms Stark was not in any of the respondent’s classes. Ms Larson was born in March 2003, and Ms Stark was born in August 2005.
[8]A pseudonym.
[9]A pseudonym.
The offending against Ms Larson occurred between 1 July 2017 and 30 September 2019. During that period, Ms Larson was 14 to 16 years of age and in years 9 to 11 at the college. The offending against Ms Stark occurred between 1 February 2019 and 16 October 2020. During that period, Ms Stark was 13 to 15 years of age and in year 8 at the college and year 9 at another school.

Offending against Ms Larson

During 2017, Ms Larson messaged the respondent via WhatsApp to let him know that her younger sister would be absent from a sporting event. The respondent began messaging Ms Larson via WhatsApp every couple of months. On or after 1 July 2017, the respondent confronted Ms Larson over the sparseness of their messages. Ms Larson had the impression that the respondent wanted them to talk more often.
In November 2018, the respondent asked Ms Larson to send him a photo of her in a particular dress. Ms Larson complied, and the respondent replied by describing how he wanted to feel her body. The respondent then asked for photos of Ms Larson in her underwear and nude photos. Ms Larson sent approximately 20 photos in different outfits and her underwear. She did not send the respondent nude photos. By the end of 2018 or early 2019, the respondent and Ms Larson messaged daily (charge 1).
Charge 2 consisted of four occasions on which the respondent sexually assaulted Ms Larson.
On a day between 5 December and 10 December 2018, the respondent told Ms Larson to accompany him to his office. Once there, the respondent pulled Ms Larson towards him and brushed her buttocks with his hand (charge 2 – first occasion). The respondent then told Ms Larson to walk to the school gymnasium, where he again touched her buttocks (charge 2 – second occasion). He then moved his hand up and down Ms Larson’s vagina over her underwear for approximately a minute (charge 2 – third occasion).
On a further occasion during term 1 of 2019, the respondent told Ms Larson to follow him into the gymnasium. The respondent again lifted Ms Larson’s dress and rubbed his hand up and down her vagina, over her underwear (charge 2 – fourth occasion).
In March 2019, Ms Larson turned 16 years of age. Between 5 April 2019 and 30 September 2019, the respondent proceeded to sexually assault Ms Larson a further 13 times on seven different occasions (charge 3). This included placing his hands on Ms Larson’s buttocks, pulling her leggings down and rubbing his erect penis on her buttocks, kissing her thighs, rubbing her vagina over her shorts, caressing her buttocks and vagina, putting his finger in her vagina and licking her vagina directly.
From the start of July 2019, the respondent’s offending against Ms Larson escalated. Charge 4 involved four occasions on which the respondent sexually penetrated Ms Larson.
On 2 July 2019, the respondent met Ms Larson at a shopping centre. The respondent drove Ms Larson to his house and, while enroute, told Ms Larson to put her phone on ‘aeroplane mode’ so she could not be tracked. On arrival, he took Ms Larson to his bedroom and penetrated her vagina with his finger for two or three minutes (charge 4 – first occasion). In July 2019, the respondent told Ms Larson to delete all conversations between them to protect herself. Ms Larson deleted everything. Subsequently, on a date between 1 and 25 August 2019, the respondent took Ms Larson to his house and penetrated her vagina with his finger for three or four minutes (charge 4 – second occasion).
Between 26 and 30 August 2019, Ms Larson attended a school camp with the respondent. On 27 or 28 August 2019, Ms Larson visited the respondent’s cabin. The respondent told her to get onto the bed. He then penetrated Ms Larson’s vagina with his finger for two to three minutes (charge 4 – third occasion). Subsequently, on 30 August 2019, the respondent again penetrated Ms Larson’s vagina with his finger (charge 4 – fourth occasion).

Offending against Ms Stark

At the start of 2019, the respondent and Ms Stark began talking. Ms Stark liked the way the respondent looked at her, as it made her feel good. She began confiding in the respondent about issues in her personal life. Ms Stark stated that after she confided in him, ‘stuff started happening’ (charge 5).
Between 24 April 2019 and 16 October 2020, the respondent frequently sexually abused Ms Stark on multiple occasions (charge 6). The circumstances of charge 6 were described by the judge in some detail.[10] For present purposes, they may be summarised as follows.
[10]See Reasons, [56]–[73].
The offending constituting charge 6 began with the respondent touching Ms Stark on her upper thigh and buttocks at the college campus. Ms Stark disclosed the touching to a friend. The respondent found out about this disclosure, and told Ms Stark to ‘look out’ and think about ‘how it will affect me if you tell people’.
The offending against Ms Stark then began to escalate. The respondent would meet with Ms Stark at night, sometimes as late as 2:00 am, in order to have sexual intercourse. To help Ms Stark re-enter her house without her parents noticing, the respondent brought a ladder from the college so that she could climb back up to a second-storey balcony. Despite some of the offending occurring at night during COVID-19 lockdowns, the respondent instructed Ms Stark to wear her school uniform for his sexual gratification. Ms Stark complied with these instructions.
Over the course of the offending, the respondent placed his penis on Ms Stark’s clothing, anus and vagina. He introduced his finger, tongue and an object (blueberries) into her vagina. On one occasion, the penetration made her vagina bleed. He further penetrated her mouth, vagina and anus with his penis. The penetration of Ms Stark’s anus caused her pain. The respondent was aware of this pain, but persisted.
The respondent only wore a condom twice. On one occasion, he ejaculated inside Ms Stark’s vagina while not wearing a condom. As a result, the respondent had to take Ms Stark to Chemist Warehouse to obtain the morning-after pill.
The acts described in paragraphs [21] and [22] above occurred at the college (including on one occasion inside the gymnasium during school hours, and on another occasion inside the campus library at 2:00 am) as well as inside the respondent’s house, beach house and vehicle.

Reasons for sentence

After observing that the respondent had pleaded guilty to the six charges on the indictment,[11] the judge immediately turned to the issue of delay, saying that the delay between the offending and sentencing was ‘out of the ordinary’ and that it impacted on the sentence to be imposed.[12] The judge said that, apart from the delay that occurred prior to the plea hearing, there had been a further delay from that date up to the date of sentencing which had not been caused by the respondent in any way.[13]
[11]Reasons, [1].
[12]Ibid [2].
[13]Ibid.
The judge summarised the respondent’s offending in considerable detail.[14] In the course of doing so, his Honour made the following observations:
[14]Ibid [4]–[79].
(1)The moral culpability involved in the respondent’s offending was high.[15]
(2)Care needed to be taken to avoid double punishment in relation to charges 3 and 4 (‘which contained in their elements … acknowledgment that both victims were under [the respondent’s] care, supervision or authority’).[16]
(3)The respondent’s offending in relation to charges 1, 2, 5 and 6 constituted a breach of trust and was an aggravating factor for each of those charges. The respondent’s breach of trust was ‘of a high level’.[17]
(4)The grooming constituting charge 1 involved the respondent engaging in ‘repeated and increasingly explicit communication’ and was a ‘knowing exploitation of a vulnerable girl’ in the respondent’s ‘pursuit of ultimate sexual gratification’, despite the respondent being fully aware that what he was doing was illegal and morally wrong.[18] While the grooming involved in charge 1 ‘was not extensive or threatening, it was manipulative and achieved its intended purpose’.[19] The sentence on charge 1 would be ‘moderate and proportionate to the offence as particularised’, but it was important that the offending under that charge ‘be met with appropriate punishment’. A ‘moderate cumulation’ of the sentence for that charge would apply ‘for that discrete offence’.[20]
(5)Charge 2 involved the commission of four acts, three of which were committed on one occasion, with the fourth being committed on a subsequent occasion. Charge 3 involved the commission of 13 acts on seven separate occasions, and charge 4 involved four acts on four separate occasions. Three of the charge 4 acts occurred on occasions on which an act or acts the subject of charge 3 occurred. In those circumstances, ‘the measure of totality [was] an important consideration’.[21]
(6)The respondent’s written instructions to Ms Larson to delete everything ‘to protect herself’, and statements that Ms Larson could be in trouble and might have to go to court, highlighted the measure of the respondent’s moral culpability.[22] The respondent was more culpable because he had an opportunity to desist from his criminality, having had the opportunity to reflect upon his wrongful behaviour.[23] For the respondent to decide, as he did, to resume the sexual abuse of Ms Larson and Ms Stark, which he knew was wrong, was conduct which called for ‘stronger denunciation and heavier punishment on each successive occasion’. Thus, the later offences involving Ms Larson and Ms Stark each became progressively more serious, and particularly so in relation to charge 6.[24]
(7)Beyond linking the grooming constituting charge 5 to the offending constituting charge 6, it was ‘not proper or possible to infer what kind of communication and the level of exploitation or manipulation which was used by [the respondent] in [the exchanges between the respondent and Ms Stark]’.[25] While the prosecution summary referred to sample text messages between the respondent and Ms Stark, these occurred outside the period particularised in charge 5 and related to the gravity of charge 6.[26] In the circumstances, despite s 16(1) of the Sentencing Act, the sentence to be imposed on charge 5 should be concurrent with that imposed on charge 6.[27]
(8)Charge 6 involved ‘12 separate acts of sexual abuse’[28] occurring over the period 24 April 2019 to 16 October 2020.[29] The bringing of a ladder on one occasion so that Ms Stark could climb back up to her bedroom disclosed the ‘level and length to which [the respondent] invested in [his] selfish gratification’. The arrangements he made in relation to this offending could ‘only be described as breathtaking’.[30]
(9)Messages dated 30 June 2019, subsequently found on the respondent’s phone, were indicative of the respondent’s attitude and state of mind in relation to his dealings with Ms Stark and Ms Larson — the respondent’s state of mind being focused primarily on his gratification and ‘imposing upon them [his] will and desires from a position of predominance of power’.[31] Moreover, messages which the respondent received at about this time (June 2019) should have given him ‘cause to desist’. Instead, the respondent ‘went on undeterred’.[32] The respondent’s moral culpability for the offending in relation to charge 6 was increased ‘by virtue of the fact that [he] had an opportunity to reflect on [his] conduct’. To continue with his sexual abuse, which the respondent knew to be wrong, after such an opportunity, was ‘conduct calling for stronger denunciation and heavier punishment with each instance becoming more grave’.[33]
[15]Ibid [7].
[16]Ibid [8].
[17]Ibid [9].
[18]Ibid [21].
[19]Ibid [24].
[20]Ibid [26].
[21]Ibid [30].
[22]Ibid [40].
[23]Ibid [39]–[41].
[24]Ibid [42].
[25]Ibid [53].
[26]Ibid [56].
[27]Ibid [51]–[56].
[28]In context, the judge’s reference to ‘12 separate acts’ was a reference to the various types of sexual abuse listed as (a) to (l) under charge 6 in the indictment: namely, the respondent (a) introducing his penis into Ms Stark’s vagina; (b) introducing his finger into her vagina; (c) introducing his tongue into her vagina; (d) introducing an object into her vagina; (e) introducing his penis into her anus; (f) introducing his penis into her mouth; (g) placing his penis on her vagina; (h) placing his penis on her anus; (i) placing his penis on her clothing; (j) touching her buttocks; (k) touching her thighs; and (l) kissing her.
[29]Reasons, [56].
[30]Ibid [61].
[31]Ibid [78].
[32]Ibid.
[33]Ibid [79].
The judge noted that the respondent, when interviewed by police in relation to his offending against Ms Stark, answered ‘no comment’ to the allegations; and that the respondent declined to be interviewed following Ms Larson’s statement to police.[34]
[34]Ibid [80].
The judge described in some detail the devastating consequences of the respondent’s offending as set out in the victim impact statements of Ms Larson and her parents, as well as from Ms Stark and her father.[35] In the course of doing so, his Honour observed that it is well-established that the harm caused by sexual abuse of children and young people is severe and long-lasting.[36]
[35]Ibid [81]–[90].
[36]Ibid [85].
The judge said that there were a number of features of the offending which made the assault, penetration and persistent sexual abuse offences serious examples of those offences.[37] The judge reiterated the fact that the level of breach of trust was ‘high’, before saying that the respondent’s breach was ‘egregious’.[38] The judge referred to the respondent’s knowledge of issues Ms Stark had at home; the respondent’s exploitation of the significant difference in age between himself and his victims; the respondent’s knowledge that he was acting in breach of trust and engaging in criminal conduct; and the respondent’s ‘high degree of planning on the one hand to avoid detection and incongruously taking risks to pursue [his] own sexual gratification’.[39] The judge said that this risk taking included the respondent’s refusal to use contraception, resulting in Ms Stark having to purchase the morning-after pill; pressuring Ms Stark to ‘continue when she wanted to stop’; pressing Ms Larson to delete messages to avoid detection; and ignoring the warnings of a senior teacher, given months before the respondent ceased offending upon his arrest.[40]
[37]Ibid [91].
[38]Ibid.
[39]Ibid [92].
[40]Ibid [93].

In the course of referring to the purpose of the offences covered by charges 3 and 4, the judge described the respondent’s conduct as ‘a gross and grossly inappropriate violation of [the respondent’s] obligations, in order to satisfy [his] sexual desires’, before saying that this was ‘not an isolated act of stupidity, but a repetitive and sustained course over a protracted period of time’.[41]
[41]Ibid [94].
The judge said that it was of the ‘first importance that offending of this kind be met with severe punishment’.[42] His Honour noted a submission by the respondent’s counsel that the grooming ‘did not display overtly coercive, overbearing or threatening features’. The judge accepted that this was ‘accurate as far as that offence goes’, but that he had little doubt that the content of the messaging and face-to-face exchanges involved in the grooming ‘were manipulative, increasingly sexualised and designed to ultimately make actual sexual activity possible’.[43]
[42]Ibid [95].
[43]Ibid [96].
Referring to the fact that charges 2, 3 and 4 were course of conduct charges,[44] the judge made the following observations:
(1)Section 5(2F) of the Sentencing Act required a sentence to be imposed that reflected the totality of the offending constituted by the course of conduct.[45]
(2)Apart from the principle of totality, of which the judge was ‘particularly conscious’, and the ‘other usual sentencing principles applicable’, the only constraint on the judge’s discretion for sentencing in relation to a course of conduct charge was that the sentence must not exceed the maximum penalty (10 years in the case of charges 2 and 4, and five years in the case of charge 3).[46]
(3)The prescribed maximum penalty is a yardstick by which the gravity of the offending was to be assessed, despite that offence being charged as a course of conduct offence.[47]
(4)What is a just and appropriate sentence for a course of conduct sexual offence will be informed by the nature of the acts, the frequency and persistence of the acts, the age and other personal circumstances of the victim and the impact of the offending on the victim.[48]
(5)The totality of the offending the subject of charge 2 covered four acts which, although serious in themselves, constituted sexual offending that ‘lies towards the lower end of a scale of gravity’.[49]
(6)While the fourth act covered by charge 2 was ‘the most serious act out of the four’, the principle of totality remained applicable.[50]
[44]Ibid [98].
[45]Ibid [100].
[46]Ibid.
[47]Ibid [101].
[48]Ibid [102].
[49]Ibid [104].
[50]Ibid [105].
The judge noted that charge 2 was subject to the provisions regarding standard sentences set out in s 5A of the Sentencing Act.[51] After referring to authority and discussing the approach to be taken when sentencing for a standard sentence offence,[52] the judge said that charge 2 ‘is below the mid-range of this type of serious offending’.[53] His Honour said that, when measured against ‘the vast range of pernicious conduct that can constitute sexual assault of a child under 16, it falls towards the lower end of that range’.[54] The judge said that, in imposing sentence, he would endeavour to:
resolve a tension between the standard sentence, the maximum penalty, the need for denunciation, punishment and deterrence on the one hand, and your circumstances, mitigating factors such as your plea, prospects for rehabilitation, totality and parsimony on the other.[55]
[51]Ibid [106].
[52]Ibid [106]–[112].
[53]Ibid [112].
[54]Ibid [113].
[55]Ibid.
Next, the judge referred to the serious offender provisions in Part 2A of the Sentencing Act. His Honour noted that, in imposing a sentence of imprisonment on charges 1 and 2, the respondent would fall thereafter to be sentenced as a serious sexual offender on each of charges 3, 4, 5 and 6, under s 6B(2) of the Act, and that it would also be necessary to have regard to ss 6D, 6E and 6F of the Act.[56] In the course of discussing these matters,[57] the judge made the following observations:
(1)The purpose of s 6D(a) was to ensure that proper consideration was given to the question of community protection; and s 6D(b) conferred a discretion to impose a disproportionate sentence so as to achieve community protection.
(2)Section 6E requires sentences imposed for relevant offences to be served cumulatively unless otherwise directed by the court. While s 6E does not abrogate the principle of totality, sentencing judges need to be astute not to undermine the legislative policy of that section by applying the totality principle as if the section was not on the statute books.
[56]Ibid [115].
[57]Ibid [116]–[121].
The judge noted that the prosecution did not seek a disproportionate sentence, and said that he did not intend to impose such a sentence. The judge said that community protection could be achieved by a proportionate sentence, which he would impose.[58]
[58]Ibid [121].
The judge discussed the principles to be applied when sentencing for the offence of persistent sexual abuse (charge 6) as a standard sentence offence.[59] In the course of doing so, his Honour said:
In relation to Charge 6 I have taken into account that it is the persistence of the sexual relationship over time which is at the heart of the offence. … Such persistence is likely to heighten impact on the victims and increases the damage they suffer. At the same time, I have little doubt that you became progressively more aware of the damage you were causing. The nature and intensity of the sexual abuse, your age relative to the age of the victim, the context in which the acts were committed and the period of time during which these acts were committed. In relation to Charge 6 they were of great significance.
On some occasions, multiple sexual acts were committed. I have considered the extents to which each act added to the criminality of your conduct, the total criminality of the offences covered by the charge. The total effective sentence will be imposed in respect of six individual sentences, two of which are for standard sentence offences and I will fix a non-parole period in accordance with s 11A (4) of the Sentencing Act.
I consider Charge 6 to be well in the higher level of mid-range of offending seriousness, but it will still, appropriate to the relevant synthesis of all the relevant matters, fall somewhat below the standard sentence. This is so despite the fact that I have little doubt your moral culpability increased with your persistent offending because of your ample opportunity to reflect on what you were doing and desist. It was calculated, premeditated, planned and despicable. This charge carries a standard sentence for an offence of mid-range objective seriousness set at 10 years. And with a presumed minimum for the non-parole period of at least 60 per cent of the head sentence under ss 5A and 11A of the Sentencing Act.[60]
[59]Ibid [123]–[127].
[60]Ibid [125]–[127] (citation omitted).
The judge took into account the respondent’s plea, noting that a plea had been entered in October 2021, on a straight hand-up brief, and that the indictment was not finalised until January 2022, with the respondent being arraigned in February 2022.[61] The judge then summarised some of the procedural history, which included: a summary of prosecution opening being filed in January 2023; a plea hearing proceeding in February 2023 at which the prosecution opening and victim impact statements were read; a defence application for an adjournment followed by defence submissions and reports being obtained from psychologists (Patrick Newton and Geoffrey Burrows) being obtained and provided during 2023 and early 2024.[62]
[61]Ibid [128].
[62]Ibid [128]–[129].
After referring to a reference from the respondent’s mother dated 23 January 2024,[63] the judge said:
This delay is without doubt exceptional. The last part of it, which concerns the last period leading up to the plea in May and then to today, is not referable to the parties and certainly not to you [the respondent]. I take this delay into account as a significant factor in mitigation and consequent reduction of your sentence.
Delay particularly of this extent gives rise to consideration of fairness to you and the attendant uncertainty as to your future whilst on remand. It is clear that such an extended period of remand would have been accompanied by anxiety and frustration. This was made worse by the prevailing conditions of remand subject to COVID pandemic requirements. It is accepted by the prosecution that your indication of a plea of guilty was made early in the chronology. As to the reasons why from that point such an extended period was taken up, appears initially or in part to be related to the details of the indictment, particulars as to dates and the necessity of an agreed prosecution opening as well as the need to obtain adequate psychological reports, but the subsequent delay I accept has been due to Court processes and then my own particular situation.[64]
[63]Ibid [130].
[64]Ibid [130]–[131].
The judge noted that the respondent’s plea was made in the context of the pandemic and, applying this Court’s decision in Worboyes v The Queen,[65] said that this required a ‘pronounced amelioration of sentence’.[66] The judge then said:
Firstly, the plea has increased utilitarian value. Your plea avoided a criminal trial and its costs and delays as well as the cross-examination of the two young complainants. It indicated an acceptance of responsibility and facilitated the course of justice.
COVID-19 was first identified in January 2020 and a state of emergency announced in March 2020. Jury trials and criminal cases were suspended in May/June 2020, and the capacity to dispose of criminal matters were severely impacted leading to a substantial backlog. A further lockdown was declared in May 2021. You entered your plea in October 2021. The restrictions which the pandemic imposed on correctional service and those in its custody continued to be severe.
There were restrictions on movement, family visits, opportunities for work and vocational programs. The continued danger of contagion and illness in the closed prison environment was ever present and the use of lockdowns and solitary confinement requires an appreciable and pulpable reduction in the sentence, which I will apply, even though at the time of the sentence these considerations have been reduced by the Court having largely overcome the pandemic effect upon its work.
Within your remand, I was informed that you had three periods of COVID-19 quarantine, each of 14 days, which meant 42 days alone in a cell for 24 hours. You had approximately 118 days in full lockdown and 78 days of half-day lockdowns due mainly to staff shortages in Deakin unit. Later in 2023, you had another 114 full days and four half day lockdowns. Your unit also apparently had reduced access to industries, library and educational opportunities. the restrictions were highlighted by your limited ability to access courses.[67]
[65][2021] VSCA 169 (Priest, Kaye and T Forrest JJA) (‘Worboyes’).
[66]Reasons, [132].
[67]Ibid [132]–[135].
The judge noted that, as a sex offender, and apart from the pandemic regime, the respondent had been in a protection regime. The judge said that it was to the respondent’s credit that, ‘despite these remand conditions’, the respondent had engaged in rehabilitative programs and attended a large number of sessions with Mr Burrows for psychological treatment.[68]
[68]Ibid [137].
The judge accepted that the respondent’s plea itself was some evidence of remorse, and that the plea was accompanied by ‘some degree of expressed remorse’.[69]
[69]Ibid [138].
In summarising the respondent’s personal circumstances, the judge noted the following matters:
(1)The respondent was 40 years of age at the time of sentencing. His parents were still alive and he had two siblings. He attended a private secondary school, completing a Bachelor of Applied Science, majoring in psychology, and then a Postgraduate Diploma of Education.[70]
(2)The respondent’s childhood was not marked by any forms of mistreatment and was generally unremarkable. He married in 2010, but is now estranged from his wife. He has a daughter who, at the time of sentencing, he had not seen since 2021.[71]
[70]Ibid [139].
[71]Ibid [140].
The judge noted that, on the plea, the prosecution conceded that the respondent was entitled to rely on his previous good character. The judge accepted that s 5AA of the Sentencing Act did not apply because his Honour was not affirmatively satisfied that the respondent’s prior good character or lack of previous convictions had been of assistance to him in the commission of the offences for which he was charged.[72]
[72]Ibid [142]–[143].
The judge accepted that the respondent was ‘of otherwise good character’, and took that fact into account. With reference to ‘good deeds’ about which submissions had been made on the plea, the judge said that these had to be weighed against ‘factors which might diminish [their] mitigatory weight’, which included ‘the occasions and duration of offending and the breach of trust involved in it’.[73]
[73]Ibid [144]–[147].
The judge accepted, and took into account, that ‘there have been instances of extra-curial punishments’.[74] The judge referred to these in the following terms:
You have lost the ability to help your parents in this latter stage of their life. You have brought shame and embarrassment upon them. There has been media reporting about your case impacting on family members and on your time on remand. You have lost your wife, any connection with your daughter. You have lost your chosen profession as a teacher and you will likely never coach sport again. You have lost your personal and professional reputation with your colleagues. It was noted during the plea that you could not produce a letter from either the school or from an earlier contact in past years, so that you could only rely on a letter from your mother as a personal reference.
This experience of opprobrium as extra curial punishment may be viewed as just deserts, but is nevertheless a part of the retributive justice which I take into accounts in sentencing you. As I have said, much was made of the length and condition of your remand. Details were given during the plea of the condition of your remand. And I have outlined them above. The aspects of detention were: being held in maximum security, being held in protection for extended periods with limited access to yard, being confined to a small cell, frequent strip searches, restricted family visits, long periods of solitary confinement, your unsuccessful application to be a peer educator, and programs are being cancelled, inter alia.[75]
[74]Ibid [148].
[75]Ibid [148]–[149].
The judge noted that there are ‘various circumstances where … the fact that the prisoner’s experience of custody is more burdensome when compared to the general experience of other prisoners … will warrant mitigation of penalty’. The judge said that these included ‘a number of conditions that have occurred here’.[76] The judge said that the consequences of the pandemic, and the delays to which he had referred, justified ‘weighty mitigatory significance to be attributed to the sentence to be imposed’.[77]
[76]Ibid [151].
[77]Ibid [152].
The judge referred to the reports of the psychologists, Mr Newton and Mr Burrows, which had been tendered on the plea.[78] The judge said that these reports were ‘of significant assistance in a number of contexts, particularly the second limb of delay, that is, the progress made towards rehabilitation and the issue of [the respondent’s] prospects of rehabilitation and the issue of risk assessment which is important when sentencing … as a serious offender, and more generally matters going to background and personal circumstances including remorse’.[79] The judge described the contents of the report in some detail.[80] In the course of doing so, the judge noted that the respondent had participated in a sex offender treatment program at his own expense, participating in at least 40 sessions by the time of the plea hearing.[81]
[78]Mr Newton’s reports were dated 21 April 2023 and 15 January 2024, and Mr Burrows’ reports were dated 23 April 2023 and 22 January 2024.
[79]Reasons, [153].
[80]Ibid [154]–[172].
[81]At Reasons, [169] the judge recorded that Mr Burrows’ second report noted the respondent’s participation in 46 sessions. Mr Burrows’ second report, in fact, only referred to 43 sessions. In the circumstances of this case, however, this apparent discrepancy is not material.
The judge noted the progress the respondent had made as identified in the reports of Mr Newton and Mr Burrows. The progress was described as ‘slow but positive’,[82] with improvements being made in the respondent’s level of remorse, empathy and insight.[83] The judge accepted that the respondent had ‘made progress in [his] path to rehabilitation’.[84]
[82]Reasons, [167].
[83]Ibid [168].
[84]Ibid [169].
The judge described the respondent’s prospects of rehabilitation as ‘good’, provided that the ‘effort in treatment’ continued.[85]
[85]Ibid [170].
After observing that ‘risk assessment of future conduct is always a fraught exercise’, the judge concluded that the risk, so far as the respondent was concerned, was ‘a moderate risk’. The judge said that, if the respondent continued with treatment, that risk would ‘hopefully diminish’. The judge said that, given those matters, the respondent was ‘not a risk of the kind which requires protection of the community’.[86]
[86]Ibid [171].
The judge concluded his analysis of the expert reports by saying:
I accept that your remorse is a developing factor as it often is. Not fully formed, yet in progress. Despite your lack of a criminal history which I take into account and your developing insight into your offending, in my view given the matters discussed and the expert opinion, specific deterrence is still a relevant matter to be taken into account.[87]
[87]Ibid [172].
The judge referred to a letter written by the respondent’s mother — describing the letter as ‘impressive’, and noting the description in the letter of the respondent’s offending as ‘reprehensible and inexcusable’.[88] The judge said that the love and support of the respondent’s family referred to in the letter would be an important factor in the respondent’s rehabilitation and future.[89]
[88]Ibid [173].
[89]Ibid.
The judge concluded the Reasons by saying:
In this case I must under s 5B (4) and (5) of the Sentencing Act in imposing sentence for a standard sentence offence, give reasons for the fixing of a non-parole period. I have confronted the tension between standard sentence, maximum penalty, the need for denunciation, the need for punishment, primary need for general deterrence. There's also the still relevant object of specific deterrence, the subjective personal circumstances including previous good character, delay and conditions of reclusion. As well as the provisions as to serious offender and your plea. As well as parsimony and totality principles. I have concluded that a sentence reflecting appropriately the total criminality involved in Charge No.6 will fall below the applicable standard sentence, in order to properly reflect the matters I have just listed and in order to effect a totality which is not disproportionate, despite the fact that the offence sits well in the mid-range of offending.
The sentence for Charge 2, the other charge in which the standard sentence applies and which is one of the factors to consider in the synthesis, also falls below the yardstick and is not fully within the mid-range of offending. In reflecting these evaluations, I have fixed a non-paroled period which properly in my view reflects the period after which you should be eligible to apply for parole and is contemplated by the relevant provision.[90]
[90]Ibid [174]–[175].

Appellant’s submissions

The appellant contended that the individual sentences imposed on charges 1, 2, 4, 5 and 6, the orders for cumulation on all charges, and the non-parole period are all manifestly inadequate, resulting in a manifestly inadequate total effective sentence. In support of that contention, the appellant submitted that the manifest inadequacy ‘becomes apparent’ when one has regard to:
(a)the objective gravity of the offending, particularly in relation to charges 4 and 6;
(b)the status of charges 2, 3 and 4 as course of conduct charges;
(c)the ‘minimal matters’ in mitigation;
(d)the standard sentence and maximum penalty for charge 6;
(e)the maximum penalty for charges 1 and 5;
(f)the presumption of cumulation for charges 3, 4, 5 and 6; and
(g)all of the circumstances of the case.
The appellant observed that this Court has said many times that, for sexual offending involving children, denunciation, general deterrence and just punishment are primary sentencing considerations.[91] The appellant submitted that the individual sentences on charges 1, 2, 4, 5 and 6, the orders for cumulation, the total effective sentence and the non-parole period imposed by the judge, all ‘fail to meet those considerations’.
[91]See, for example, Campbell v The Queen [2019] VSCA 158, [46] (Priest and Beach JJA).
In relation to the objective seriousness of the offending, the appellant made the following observations and submissions:
(1)The offending took place against two separate victims, in an overlapping timeframe, the offending against Ms Larson lasted approximately 27 months, and the offending against Ms Stark took place over 21 months. The victim impact statements disclosed the ‘terrible impact’ on the victims, as well as the ongoing guilt and sadness of their parents arising from their inability to protect their children.
(2)The respondent’s moral culpability was ‘especially high’ because he had the opportunity to desist from the offending, but elected not to. Notwithstanding that the respondent received warnings that his conduct was being scrutinised, instead of ceasing his conduct, he took active steps to allow it to continue. An offender who reoffends after an interval of time is more culpable on that occasion by virtue of the fact that he has had the opportunity, during the intervening period, to reflect on his conduct.[92]
(3)Adding to the gravity of the respondent’s offending was the fact that there was a significant age gap between him and each of his victims. Moreover, there was ongoing manipulation by him of his victims to conceal his offending.[93]
(4)The grooming offences (charges 1 and 5) took place immediately before the penetrative offences. The seriousness of the grooming offences is recognised by the maximum penalty of 10 years. Grooming involves a separate criminality and, in this case, the grooming ‘allowed the contact offending to occur’. Grooming offending is calculated to harm children who are vulnerable to abuse, and it is an offence which usually merits a term of immediate imprisonment.[94]
(5)In light of the inherent seriousness of charges 1 and 5, the sentences imposed on those charges were manifestly inadequate, as was the cumulation of only three months for charge 1, with no cumulation for charge 5. The lack of cumulation on charge 5 is ‘especially problematic given the operation of s 6E of the Sentencing Act’.
(6)Charge 3 was a serious example of the offending of sexual assault when one has regard to ‘the content of the assaults’, the fact that there were 13 occasions, and the length of time over which they took place (over six months). While the sentence on charge 3 was within range, the cumulation of only six months was manifestly inadequate and led, in part, to the manifestly inadequate overall term of imprisonment.
(7)Charge 4 involved multiple instances in which Ms Larson was penetrated, despite the fact that she was under the respondent’s supervision and was, accordingly, owed a duty of care. During the first occasion of charge 4, Ms Larson was trying to avoid the respondent and successfully moved away from him. Despite her obvious discomfort, the respondent ‘grabbed her and proceeded to penetrate her’. During this occasion, and on other occasions, Ms Larson experienced pain and described being ‘frozen’ and ‘trying not to cry’.[95] Adding to the seriousness of charge 4 was the brazenness of the respondent’s conduct and the lengths he went to in order to conceal his offending (requiring Ms Larson to put her phone on ‘aeroplane mode’ so that she could not be tracked). The sentence imposed on charge 4, and the cumulation of just 18 months, failed to recognise the gravity and repetitive nature of this offending, as well as the serious breach of trust involved.
(8)Charge 6 was ‘a particularly egregious example of the persistent sexual abuse of a child under the age of 16 years’. It took place over 17 months. It included digital, lingual and penile penetrations. It also included penile-anal penetration, causing pain. The respondent was aware of the pain, but persisted. Charge 6 also included multiple penile penetrations without a condom, with the respondent ejaculating into his victim’s vagina on one occasion — necessitating the use of the morning-after pill to avoid a pregnancy. The offending also included ejaculating into the child’s mouth and onto her body; and placing objects (blueberries) in her vagina, before eating them. The offending was ‘degrading and dehumanising’. The respondent’s conduct ‘would necessarily have had a momentous impact on Ms Stark’s nascent sexuality’. The respondent used both his physical dominance and the imbalance of power between him and his victim to satisfy his own depraved desires. Charge 6 was ‘a high-end example of the offence’; it warranted ‘a much higher sentence’, particularly in light of the maximum penalty of 25 years and the standard sentence of 10 years.
(9)With the possible exception of some of the sexual assaults, the offences committed by the respondent ‘were not spontaneous and certainly none were isolated’. The respondent ‘took great pains to arrange occasions where he could see the victims and engage in sexual abuse of them’. There was both preplanning and premeditation. The objective seriousness of the respondent’s offending ‘was of a high order’. The sentences handed down do not reflect this.
[92]DPP v Polat [2020] VSCA 174, [24] (Maxwell P and Beach JA, with whom Croucher AJA agreed).
[93]Reasons, [60].
[94]DPP (Cth) v Singh [2017] VSCA 146, [64] (Redlich, Beach and McLeish JJA).
[95]Reasons, [37], [44].
The appellant submitted that each of the sentences on charges 2 and 4 failed to give sufficient regard to their status as course of conduct charges; and that the orders for cumulation for each of charges 2, 3 and 4 were manifestly inadequate.
In relation to mitigation, the appellant submitted that the respondent had ‘limited matters’ in mitigation: namely, a plea of guilty, delay, the impact of the pandemic and good character. While the appellant accepted that each of these matters had ‘a role to play’, none of them (either alone or in combination) were of such weight as to justify the sentences in this case.
In relation to the respondent’s previous good character, the appellant did not seek to resile from the prosecutor’s acceptance of its relevance on the plea. The appellant submitted, however, that the weight given by the judge to the respondent’s good character was disproportionate when considered in the context of his offending which was protracted and calculated. In making that submission, the appellant relied upon authorities which have held that, in circumstances where the offending occurs over a long time, that fact will operate logically to reduce the weight that could be given to any previous good character as a mitigatory factor.[96]
[96]See, for example, Page v The Queen [2021] VSCA 364, [53] (T Forrest JA and Macaulay AJA). See also Ryan v The Queen (2001) 206 CLR 267, 278 [33]–[34] (McHugh J) (‘Ryan’).
In relation to the serious sexual offender provisions in Part 2A of the Sentencing Act, the appellant acknowledged that the judge was ‘cognisant of the relevant provisions … along with the authorities relating to the same’. The appellant submitted that, while his Honour discussed the tension inherent in balancing the principles of totality and the presumption of cumulation in s 6E of the Sentencing Act, his Honour ‘provided no rational reason why charges 3 to 6 should not have been treated as s 6E require[d]’. The appellant submitted that the modest cumulation on charges 3 and 4, and the lack of any cumulation on charge 5, ‘undermine[d] the legislature’s intent in introducing s 6E’.[97]
[97]See DPP v Hopson [2016] VSCA 303, [59] (Redlich and Whelan JJA, Beale AJA).
The appellant submitted that the absence of sufficient cumulation on charges 3 to 6 contributed to a total effective sentence that was manifestly inadequate and which failed to meet the objectives of sentencing.

Respondent’s submissions

The respondent submitted that, in light of the substantial matters in mitigation of sentence which were accepted by the judge, and notwithstanding the objective gravity of the offending, the individual sentences imposed on charges 1, 2, 4, 5 and 6, each of the various orders for cumulation, the total effective sentence and the non-parole period, were all within range, each individual sentence and order made being reasonably open to the judge in the proper exercise of the sentencing discretion.
In relation to mitigation, the respondent made the following observations and submissions:
(1)The respondent had pleaded guilty at an early stage. At no stage was any witness required to give evidence, thereby ensuring that the two victims and their families, and the other witnesses, were relieved of the stress, ordeal and trauma to which they might otherwise have been subjected. The respondent had accepted full responsibility for his offending, and actively and willingly facilitated the course of justice. In the circumstances, the respondent’s pleas of guilty had substantial utilitarian value. Moreover, the respondent pleaded guilty during the course of the pandemic. Having been remanded in custody for a month from 19 October 2020, and then again from 12 August 2021 until the date of sentence, the respondent was entitled to a substantial Worboyes discount. Additionally, the judge found that the respondent had ‘expressed some degree of remorse for his offending’.
(2)By reason of the restrictions imposed upon prisoners by the authorities during the pandemic, the circumstances in which the respondent had been remanded in custody were ‘very harsh’, with the consequence that the burden of imprisonment upon the respondent was substantially greater than for a person on remand at a time when such restrictions were not in force.
(3)The respondent was a person of previous good character. He fell to be sentenced as a first offender, and was therefore entitled to some leniency. Moreover, he had for many years performed ‘good deeds’, having actively engaged in community work and provided assistance to people who were financially or socially disadvantaged.
(4)The respondent had suffered extra-curial punishment. He had not only lost his wife and young daughter, but also his circle of friends. Having betrayed his colleagues, he had lost his chosen vocation. He would never again have the opportunity to do the work for which he had been educated and which he enjoyed. Additionally, the case was the subject of publicity in the media, which not only caused shame to the respondent but also brought shame upon the members of his immediate family — a matter about which the respondent was well-aware.
(5)Throughout the lengthy period during which the respondent was on remand, he endured the uncertainty of not knowing his fate, being variously required to await the resolution of the charges, then the resolution of the factual basis of the offences for which he fell to be sentenced and, finally, the outcome of his plea. In short, throughout this lengthy period of time, the respondent had the charges ‘hanging over his head’, and he endured ‘much anxiety’. With respect to these matters, the approach adopted by the judge was entirely in accordance with authority — it being trite that delay constitutes a ‘powerful mitigating factor’.[98]
(6)The respondent had voluntarily, actively and conscientiously sought, and engaged in, offence-specific treatment in an effort to eliminate the cause of his offending and to ensure that he did not reoffend. Moreover, the judge found that the respondent was ‘not a risk of the kind which requires protection of the community’.[99]
(7)The respondent had ‘good’ prospects of rehabilitation.[100]
[98]See generally R v Merrett (2007) 14 VR 392, 400 [35] (Maxwell P, Chernov JA agreeing at [50], Habersberger AJA agreeing at [51]); DPP v Merryfull [2023] VSCA 244, [44]–[45] (Emerton P, Macaulay and Taylor JJA); Weatherburn v The King [2023] VSCA 283, [42]–[45] (McLeish, Taylor and Kaye JJA); Tori v The King [2024] VSCA 162, [32]–[35] (Priest and Kaye JJA).
[99]Reasons, [121], [171].
[100]Ibid [170].
In relation to charge 1, the respondent submitted that none of the communications giving rise to that charge had been threatening, overbearing, demanding or accompanied by coercive conduct. The respondent submitted that, in those circumstances, the sentence imposed on charge 1 could not properly be described as manifestly inadequate.
In relation to charge 2, the respondent made the following observations and submissions:
(1)The touching was not prolonged, was not accompanied by coercive conduct or force, and was over the clothing or over the underwear worn by Ms Larson.
(2)Charge 2 involved the commission of four acts, three of which were done on one occasion, with the fourth having been done on a separate (and subsequent) occasion.
(3)The factual basis of charge 2 was ‘very different from the typical course of conduct charge which involves a large number of instances of the one offence’.[101]
(4)When one takes into account all of the circumstances of charge 2, the sentence imposed on it could not properly be described as manifestly inadequate.
[101]See, for example, Poursanidis v The Queen (2016) 50 VR 681; DPP v Tullipan [2021] VSCA 191.
In relation to charge 4, the respondent made the following observations and submissions:
(1)Charge 4 involved the commission of four acts, those acts having been done on four separate occasions. Three of the four acts the subject of charge 4 were, however, committed on an occasion when an act or acts the subject of charge 3 was or were committed.
(2)The factual basis of charge 4 was ‘very different from the typical course of conduct charge which involves a large number of instances of the one offence’.[102]
(3)When one takes into account all the circumstances of charge 4, the sentence imposed on it could not properly be described as manifestly inadequate.
[102]Ibid.
In relation to charge 5, the respondent submitted that the ‘limited factual basis of this charge’ meant that the judge was not able to draw any inferences concerning the content of the communications the subject of this offence.[103] As a result of the terms of the respondent’s communications with Ms Stark being unknown, it is not now possible to describe the sentence of imprisonment imposed on charge 5 as manifestly inadequate.
[103]See Reasons, [53].
In relation to charge 6, the respondent submitted that, in assessing the gravity of this offence, regard had to be had to a number of factors, including the number of sexual acts committed, the nature of those acts, the age of the offender, the age of the victim, the context in which the acts were committed and the period of time during which those acts were committed. With respect to the factual basis of charge 6, the respondent submitted that three matters were of particular significance in the exercise of the sentencing discretion, namely:
(1)The sexual acts committed by the respondent varied in gravity.
(2)Many of the sexual acts were not committed on separate occasions. That is, on some occasions, multiple sexual acts were committed.
(3)It was necessary to consider the extent to which each sexual act added to the criminality of the respondent’s conduct the subject of each occasion, it then being necessary to consider the extent to which the respondent’s conduct the subject of each occasion added to the total criminality of the respondent covered by the charge.
By reason of the matters just referred to, the individual sentence of imprisonment imposed on charge 6 cannot properly be described as manifestly inadequate.
In relation to the orders for cumulation, the respondent made the following observations and submissions:
(1)The substantial matters the respondent was able to call in mitigation of sentence, and which were accepted by the judge, were all relevant, not only to the imposition of each individual sentence, but also to each of the orders for cumulation.
(2)The offending the subject of charge 1 led to, and thereby facilitated (as was intended), the offending the subject of charges 2, 3 and 4 involving Ms Larson. In those circumstances, it was open to the judge to give significant weight to both the sentencing principles of totality, and the statutory presumption of concurrency contained within s 16(1) of the Sentencing Act, in making limited orders for cumulation of the individual sentences imposed on charges 1 and 2. The orders for cumulation on charges 1 and 2 cannot be properly described as manifestly inadequate.
(3)Charges 3 and 4, occurring within the same period, involved some acts covered by charge 3 occurring on the same occasion as some of the acts covered by charge 4. In these circumstances, in making the orders for cumulation of the individual sentences imposed on charges 3 and 4, it was open to the judge to give significant weight to the sentencing principle of totality. This was so, notwithstanding s 6E of the Sentencing Act, because the sentencing principle of totality has not been wholly abrogated by Part 2A of that Act.
(4)The offending the subject of charge 5 led to, and thereby facilitated (as was intended), the offending the subject of charge 6. In those circumstances, and keeping in mind the limited factual basis for charge 5, it was open to the judge to give weight to the sentencing principle of totality, and thereby make no order for cumulation of the individual sentence of imprisonment imposed on charge 5. Again, this was so, notwithstanding s 6E of the Sentencing Act, because the sentencing principle of totality has not been wholly abrogated by Part 2A of the Sentencing Act.
(5)There was no evidentiary basis for the imposition of a disproportionate sentence as provided for in s 6D(b) of the Sentencing Act. As a result, the judge was required to evaluate the overall criminality involved in all of the sexual offences to which s 6E applied, so as to ensure that there was no disproportion between the totality of the criminality the subject of those offences and the totality of the effective length of sentence to be imposed.
(6)With respect to the amount of cumulation to be ordered, the magnitude of the risk of the respondent reoffending was a relevant consideration. The judge having found that the respondent’s risk of reoffending was not of the kind which required protection of the community,[104] it was well open to the judge to make the orders for cumulation made by him.
[104]Reasons, [171].

On the proper application of ss 6D and 6E of the Sentencing Act, to the findings of fact made by the judge, none of the orders for cumulation can properly be described as manifestly inadequate, each being reasonably open to the judge in the proper exercise of the sentencing discretion.
None of the individual sentences are manifestly inadequate and none of the orders for cumulation are manifestly inadequate, with the consequence that the total effective sentence was within the range of sentences reasonably open to the judge. As a result, the non-parole period cannot properly be described as manifestly inadequate — its magnitude being unremarkable in light of the magnitude of the total effective sentence.

Consideration

There is no suggestion that, in sentencing the respondent, the judge misapprehended any of the relevant facts or failed to apprehend the relevant principles which fell to be applied. To the contrary, the judge provided detailed reasons disclosing a thorough and comprehensive understanding of the circumstances of the respondent’s offending and all of the relevant principles which fell to be applied. The issue in this case is, notwithstanding the judge’s detailed understanding of the circumstances of the case, and his Honour’s references to relevant principles, the judge nevertheless imposed sentences and/or made orders for cumulation which were manifestly inadequate, and which resulted in the imposition of a total effective sentence which was also manifestly inadequate.
At the risk of repetition, in sentencing the respondent, the judge was required to consider, and take account of, the following matters:
(1)Charges 2, 3 and 4 were ‘course of conduct’ charges within the meaning of clause 4A of Schedule 1 of the Criminal Procedure Act, and therefore attracted the operation of s 5(2F) of the Sentencing Act. Section 5(2F) requires a court, sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge, to impose a sentence ‘that reflects the totality of the offending that constitutes the course of conduct’. The section, however, prohibits the Court from imposing a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence. In Poursanidis v The Queen,[105] Weinberg JA (with whom Priest JA agreed) said that sentencing ‘this … form of offending should be governed by orthodox sentencing principles’.[106] His Honour went on to say that this meant that ‘close attention must be given to the maximum sentence available for the offence charged’, and that the maximum remained a ‘yardstick’ by which the gravity of the offending was to be assessed, even though the offence might have been charged in ‘course of conduct’ terms.[107]
(2)Charges 2 and 6 were standard sentence offences within the meaning of s 3(1) of the Sentencing Act; a standard sentence for an offence being the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[108] The standard sentence for charge 2 was 4 years, and the standard sentence for charge 6 was 10 years.
(3)Charge 6 was a category 1 offence within the meaning of s 3(1) of the Sentencing Act, and therefore attracted the operation of s 5(2G) of that Act — requiring the respondent to be sentenced to a term of imprisonment for that offence.
(4)The respondent fell to be sentenced on charges 3, 4, 5 and 6 as a serious sexual offender pursuant to Part 2A of the Sentencing Act. This required the Court to regard the protection of the community from the respondent as the principal purpose for which sentence was to be imposed on those charges;[109] as well as requiring each term of imprisonment imposed on those charges to be served cumulatively, unless the court otherwise directed.[110]
[105](2016) 50 VR 681.
[106]Ibid 683 [11].
[107]Ibid.
[108]See s 5A(1)(b) of the Sentencing Act. See also s 5B of that Act and Brown v The Queen (2019) 59 VR 462, 466–80 [10]–[57] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
[109]Sentencing Act, s 6D(a).
[110]Sentencing Act, s 6E.
It cannot be gainsaid that the respondent’s offending in this case was very serious. The offences are inherently very serious, and the offending constituting each offence in this case (with the possible exception of charge 5 about which we will say more below) was itself serious — particularly so, in relation to the two most serious offences, charges 4 and 6. That said, the offending was, by any standards (to use the words of the judge adopted from the respondent’s mother’s letter), reprehensible and inexcusable.
The submissions made by the appellant about the objective seriousness of the respondent’s offending and his high moral culpability can, and should, be accepted for the various reasons given by the judge in sentencing the respondent.
However, the undoubtedly high moral culpability of the respondent and the objective seriousness of his offending is not the end of the matter. Additionally, while protection of the community, denunciation, general deterrence and just punishment were primary considerations in the sentencing of the respondent, that did not mean that there was no work for other sentencing considerations such as totality, proportionality and parsimony. Moreover, and contrary to the submissions of the appellant, there were more than ‘minimal matters’ in mitigation.
Of particular significance on the issue of mitigation in this case was the respondent’s early plea of guilty, the delay (described by the judge as ‘out of the ordinary’ and ‘without doubt exceptional’)[111] and the harsh conditions under which the respondent was held on remand (the respondent having pleaded guilty during the pandemic).[112] To highlight these matters is not to overlook the other matters the respondent relied upon in mitigation, including his active participation in offence-specific treatment and the progress he has made in that regard.
[111]Reasons, [2], [130].
[112]Ibid [131]–[135].
Moreover, while one might not give any great weight to the respondent’s previous (or otherwise) good character, the respondent was entitled to at least some leniency (rather than no leniency) for his otherwise good character.[113] Similarly, there was no error in the judge giving some weight to the fact that the respondent had suffered extra-curial punishment.
[113]Ryan (2001) 206 CLR 267, 278 [35] (per McHugh J).
In short, this was a case which required the judge to synthesise some significantly competing sentencing considerations: specifically, the very serious and appalling nature of the respondent’s offending against children, as against the very significant delay and conditions in which the respondent was held on remand during the pandemic coupled with the other mitigatory matters to which we have referred.
To establish manifest inadequacy in a sentence, the Director must show that the sentence was ‘wholly outside the range of sentencing options available to the sentencing judge’.[114] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did if proper weight had been given to all the relevant circumstances of the offending and of the offender. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good.[115]

The individual sentences

[114]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, with whom Warren CJ and Maxwell P agreed at 637 [1]).

[115]Ibid.

Synthesising for ourselves the circumstances of each offence with all of the other matters required to be taken into account as part of the sentencing synthesis, we are not persuaded that any of the individual sentences about which the appellant makes complaint are wholly outside the range of sentencing options that were available to his Honour. Plainly, terms of imprisonment had to be imposed for each offence. We are not satisfied, however, that the terms imposed by the judge on charges 1, 2, 4, 5 and 6 (or any of them) were outside the range open to his Honour. At best for the appellant, it could be said that each of the individual sentences (apart from the sentence on charge 3, about which no complaint is made) was at the low end of the range.
While the sentence on charge 6 was the most lenient of the sentences imposed by his Honour (particularly when one has regard to the standard sentence and maximum penalty for that offence), we are not persuaded that it was wholly outside the range available to the judge in light of the matters in mitigation to which we have already referred.
As has been said before, it is not to the point that a judge or judges of an appellate court might have imposed a different (in this case harsher) sentence than that imposed by the sentencing judge. The question to be asked is whether the sentence imposed was, in all of the circumstances of the offending and the offender, open as a proper exercise of the sentencing discretion. In this case, we are not persuaded that any of the individual sentences imposed by the judge were outside the permissible range.

The orders for cumulation

All of the orders for cumulation made by the judge are modest — particularly so in the case of the orders for cumulation on the charges for which the respondent fell to be sentenced as a serious sexual offender (charges 3 to 6). That said, we see no issue with the orders for cumulation on charges 1 and 2 (albeit that they might also be described as lenient). The more problematic are the orders made for cumulation in respect of charges 3 and 4, and not made in respect of charge 5.
The tension between giving effect to the principles of totality and the statutory requirement in s 6E of the Sentencing Act for terms of imprisonment imposed on a serious offender for a relevant offence being served cumulatively, unless otherwise directed by the court, is well-known and was recognised by the judge.[116] It is not necessary to say anything further about that tension in these reasons.
[116]Reasons, [118]–[120].
The orders for cumulation on charges 3 and 4 are, in light of s 6E, particularly lenient — even allowing for the overlap between the offending that constituted these charges, with three of the acts the subject of charge 4 being committed on an occasion when an act the subject of charge 3 was committed. That said, we are not persuaded that either of those orders was outside the permissible range in all the circumstances of this case.
The failure to order any cumulation in respect of charge 5 is, on any view, extremely lenient. At first blush, in circumstances where there was a statutory presumption in favour of cumulation, one might think that it would not be open to order that there be no cumulation. The circumstances in which this order came to be made are, however, in our view sufficiently exceptional so as to permit the order made by the judge to stand.
Specifically, the prosecution did not tender on the plea any material which might enable the judge to make any assessment of the actual circumstances of the grooming which was the subject of charge 5. All the judge had in that regard was the respondent’s plea of guilty on a summary that when Ms Stark was in year 8, she and the respondent ‘started talking … about general things like schoolwork or sport’, and that this would ‘often occur in the gymnasium’; with an assertion that Ms Stark ‘also liked the way he looked at her, it made her feel good’; together with her statement that, at the time, she ‘kind of felt lost’; that she talked to the respondent ‘about her parents and issues at home’; and that the respondent ‘listened to [her] and gave her support’.
For these reasons, we are not persuaded that any of the orders for cumulation (including the order for no cumulation) were manifestly inadequate.

The total effective sentence and non-parole period

While we are not persuaded that any of the individual sentences or orders for cumulation were manifestly inadequate, that does not dispose of this appeal. The possibility exists that, by virtue of the leniency of individual components of the sentence, a manifestly inadequate total effective sentence has been produced.
Looking at all of the criminality involved in the respondent’s offending and synthesising that with the respondent’s circumstances and the matters he is able to rely on in mitigation, we are not persuaded that, as a result of any compounding leniencies or otherwise, the total effective sentence was wholly outside the range open to the judge. Again, it is not to the point that a judge or judges of this Court might have imposed a sterner sentence if they had been sentencing the respondent. The issue is whether it was open to the judge to impose the sentence he imposed. For the reasons given above, the appellant has not persuaded us that the sentence imposed by the judge was manifestly inadequate — albeit that the total effective sentence could not be regarded as anything other than lenient.
In fixing the non-parole period, the judge complied with s 11A(4)(c) of the Sentencing Act[117] — fixing a non-parole period that was a little over 60 per cent of the total effective sentence. We having concluded that the total effective sentence was not manifestly inadequate, there is no basis for any conclusion that the non-parole period was manifestly inadequate.
[117]As his Honour was required to by virtue of having sentenced the respondent in respect of two standard sentence offences: Sentencing Act, ss 11A(1)(b), (3) and (5)(b).

Conclusion

The Director’s appeal against sentence must be dismissed.
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[2025] VSCA 202

28 August 2025