Director of Public Prosecutions v Dissanayake

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0121

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
PRADEEP DISSANAYAKE	Respondent

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JUDGES:	EMERTON P, TAYLOR JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2024
DATE OF JUDGMENT:	18 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 320
JUDGMENT APPEALED FROM:	[2023] VCC 1015 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Sexual penetration of a child under 16 – Sexual assault of a child under 16 – Grooming for sexual conduct with a child under the age of 16 – Guilty pleas – Whether individual sentences, orders for cumulation and total effective sentence manifestly inadequate – Respondent leader of religious sect to which complainants’ parents belonged – Respondent also a medical practitioner – Respondent accorded god-like status by cult members – Respondent used position and influence to create circumstances for offending – Repeated offending over months against two complainants aged 12 years – Offending objectively serious – High moral culpability – Limited mitigating factors – Remorse shown on day of sentencing – Prospects of rehabilitation not viewed as positively as by trial judge – Sentences imposed less than standard sentences – Importance of community protection and general deterrence – Serious sexual offender – Sentence manifestly inadequate – Appeal allowed – Respondent resentenced.

Sentencing Act 1991.

Director of Public Prosecutions v Nwigwe [2022] VSCA 14, distinguished.

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Counsel
Appellant:		Mr B Kissane KC, with Ms B Goding
Respondent:		Mr D Dann KC
Solicitors
Appellant:	Abbey Hogan, Solicitor for Public Prosecutions
Respondent:	Doogue + George

EMERTON P
TAYLOR JA
KIDD AJA:

Introduction

On 26 April 2023, the respondent pled guilty in the County Court of Victoria to five charges of sexual penetration of a child under 16 years, two charges of sexual assault of a child under 16 years, one charge of grooming for sexual conduct with a child under the age of 16 years, two charges of intentionally damaging property, and one charge of common law assault.
On 15 June 2023, the respondent was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Sexual penetration of a child under 16	15 years	3 years	9 months
2	Sexual penetration of a child under 16	15 years	3 years	9 months
3	A rolled up charge of sexual penetration of a child under 16	15 years	4 years	Base
4	Sexual penetration of a child under 16	15 years	3 years and 6 months	9 months
5	Sexual penetration of a child under 16	15 years	3 years and 6 months	9 months
6	A rolled up charge of sexual assault of a child under 16	10 years	18 months	4 months
7	Grooming for sexual conduct with a child under the age of 16	10 years	1 year	4 months
8	Sexual assault of a child under 16	10 years	1 year	4 months
9	Intentionally damage property	10 years	Convicted and discharged
10	Common law assault	5 years	14 days	-
11	Intentionally damage property	10 years	Convicted and discharged
Total Effective Sentence:		8 years
Non-Parole Period:		5 years
Section 6AAA Statement:		12 years

Pursuant to s 287 of the Criminal Procedure Act 2009, the Director now appeals the respondent’s sentence on the following two grounds:
Ground 1: The individual sentences imposed on Charges 1–8, the orders for cumulation, non-parole period and total effective sentence are manifestly inadequate.
Ground 2: The learned sentencing judge erred in his characterisation of the respondent’s prospects for rehabilitation.
For the reasons that follow, the appeal should be allowed and the respondent resentenced in the manner detailed below.

Circumstances of offending

The respondent was born and raised in Sri Lanka, where he qualified and practised as a medical practitioner. In 2006, the respondent and his family migrated to Australia, where he continued to practise medicine. In 2015, the respondent developed a strong interest in Buddhism and started preaching what was described as a mixture of Buddhism and Christianity to a number of families. Over time, this resulted in the formation of a sect, with the respondent as its leader. The respondent dictated to the members of the sect how and where they lived and how they raised their children.
The complainants were the children of members of the sect. The first and second complainants were 12 years old at the time of the offending against them.

Offences against the first complainant

(a)Charge 1: Sexual penetration of a child under 16

In December 2021, members of the sect were painting a property in Melton in preparation for its sale. The respondent took the first complainant with him to Bunnings, ostensibly to purchase painting supplies. He bought her a hot chocolate and then drove to a nearby back road. He told her to move to the back seat and lie on his lap. He told her to remove her shirt and crop top and he touched, kissed and licked her breasts (uncharged act). The respondent instructed the first complainant to remove her lower garments and he kissed her vagina. The respondent then tried to penetrate the first complainant’s vagina but had difficulty doing so. He exhorted her to ‘give me all the love’ and succeeded in penetrating her vagina with his penis. The respondent did not ejaculate. He asked the first complainant if she had enjoyed it, and when she stayed silent he became angry. Afterwards she told the respondent that the penetration did not hurt her, even though it had.
On their return to the property, the respondent gave a false account to members of the sect as to the reason for the delay in returning.
(b)Charge 2: Sexual penetration of a child under 16
On a later date in December 2021, the respondent took the first complainant from her home to a hotel. He kissed her stomach and lips and penetrated her vagina with his penis. The first complainant told the respondent she was happy and enjoyed it, but she did not enjoy it and wanted to get away from the respondent.
(c)Charge 3: A rolled up charge of sexual penetration of a child under 16
Between 31 December 2021 and 31 March 2022, the respondent took the first complainant to a hotel and penetrated her vagina with his penis on three further occasions. The circumstances were the same as those in charge 2.
(d)Charges 4 and 5: Sexual penetration of a child under 16
In March 2022, the respondent asked the first complainant to go to his medical practice with him and assist him with purchasing food for members of the sect. When she got in the car, the first complainant realised that the respondent had already purchased food. He took her to a nearby parking lot and instructed her to remove her underwear. He placed his penis in her mouth and told her to lick and suck it. He pushed her head up and down and instructed her how fast to move. He then told the first complainant to stop and began kissing her and rubbing her breasts and vagina, before penetrating her vagina with his penis. He then withdrew his penis and masturbated to ejaculation. The respondent took the first complainant back to the medical clinic, and it was around this time that he asked her whether she had had her period yet. The first complainant told him she had not. The respondent told her that this meant he did not need to use a condom.

Offences against the second and third complainant

(e)Charge 6: A rolled up charge of sexual assault of a child under 16

In May 2021, the respondent collected the second complainant from her home. He told her mother they were going to Bunnings to collect construction materials. After attending Bunnings, the respondent drove to a quiet street and instructed the second complainant to get into the back seat. The respondent pressed his lips against her lips for approximately seven seconds, after which she pulled away.
About a week later, the respondent again took the second complainant to Bunnings, parked the vehicle and instructed her to get in the back seat. He kissed her lips, forehead and face. She pulled away and the respondent drove her home.
(f)Charge 7: Grooming for sexual conduct with a child under the age of 16
Between 1 May 2021 and 1 February 2022, the respondent collected the second complainant from her home and drove her to a motel, with a promise that he would give her a mobile phone if she came with him. He started to undress her, but she began to cry and told him she did not like what was happening. After 40 minutes, they left the hotel and the respondent purchased deodorant, perfume and a mobile phone for the second complainant.
(g)Charge 8: Sexual assault of a child under 16
In March 2022, the respondent told members of the sect that he and the second complainant were going to make arrangements to obtain a wi-fi plan. Instead, the respondent booked a hotel room and took the second complainant there. He instructed her to lie on the bed and kissed her face while she attempted to protect herself. He continued to attempt to kiss and touch her. The second complainant pushed the respondent away and went into the bathroom. When she returned to the room, the respondent was asleep. When he awoke shortly afterwards, he was angry with her, took her phone away and would not let her eat.
(h)Charges 9 and 10: Intentionally damage property and assault
Some time in February 2022, the respondent saw the second complainant’s internet history on her phone and noticed that she had been using YouTube. He smashed the phone on the ground and instructed her to do the same, which she did. While she knelt before him, he slapped her repeatedly across the face, causing her face to swell.

Offences against the third complainant

(i)Charge 11: Intentionally damage property

The third complainant is the second complainant’s brother. Between 29 June 2021 and 13 April 2022, the respondent observed the third complaint smiling at his phone. He took the phone and smashed it, and made the third complainant do the same.

Procedural history

The respondent was arrested on 5 April 2022 and interviewed three days later. He remained in custody until being granted bail on 4 May 2022. On 1 September 2022, the respondent was remanded for contravening conditions of bail.
The respondent was committed for trial on 20 December 2022. He pleaded guilty to all charges on 26 April 2023.

Respondent’s personal circumstances

The respondent’s personal circumstances are set out in the sentencing reasons[1] and in psychological reports tendered on the plea.
[1]DPP v Freeman (a pseudonym) [2023] VCC 1015, [40]–[46] (‘Reasons’).
The sentencing judge had two psychological reports: the first from Dr Angela Sorotos, a clinical and forensic psychologist, dated 3 April 2023 (‘Sorotos Report’); and the second, from Dr Tiffany Lewis, a forensic psychologist, dated 11 April 2023 (‘Lewis Report’).

Personal history

The respondent was 50 years old at the time of sentencing and is now 52 years old. He was born and raised in Sri Lanka and has three older siblings, two sisters and a brother. The respondent’s father died when he was four. His mother and siblings all currently live in Sri Lanka.
The respondent married in 2001 and has two sons, born in 2001 and 2003. Both are studying medicine in Melbourne.
The respondent’s primary, secondary and tertiary education all took place in Sri Lanka. He successfully completed a medical degree in 2000 and began practising as a doctor in Sri Lanka. During 2004 and 2005, he worked in hospitals in England.
In 2006, the respondent and his family migrated to Australia, and he later became an Australian citizen. From 2006 to 2015, the respondent worked as a general practitioner, first in regional locations and then in Melbourne. During that time he obtained further qualifications, including a masters degree from the University of Queensland. In September 2015, he established his own medical practice in South Yarra specialising in skin conditions.
The respondent’s work as a doctor came to an end in April 2022, when he notified the Australian Health Practitioner Regulation Agency of the charges against him and his licence to practice medicine was suspended.
As set out above, in 2015, the respondent deepened his interest in Buddhism. In 2016, he travelled to Sri Lanka to meet with Buddhist monks and in 2017, he started preaching to families in their homes. He preached a combination of Buddhism and Christianity. This resulted in the formation of a sect in which he assumed the role of leader.
The respondent created a set of rules and instructions which the members of the sect were bound to follow:
(a)When the respondent visited the home of a follower, that person, and his or her family, had to kneel when the respondent entered the house.
(b)Members had to provide the respondent with hourly text messages of praise.
(c)Members were required to seek the respondent’s permission for everything they did during the day, including leaving the house or showering.
(d)There were strict daily timetables with which members had to comply.
(e)Men were required to reside at one address, and women at another, to ensure that levels of purity were met.
(f)Members were to relinquish the parenting of their own biological children and parent their co-habitants’ children instead.
In addition, there were restrictions on the consumption of food, rules about what the women and girls could and could not wear, and rules about what the children could watch on their phones.
The respondent’s followers gave him money for being ‘God’.

Psychological reports

Between his arrest and the plea hearing, the respondent voluntarily attended and paid for 10 therapy sessions with Dr Sorotos.[2] During these sessions, the respondent discussed his offending, sexual scripts and sexual arousal patterns and worked on relapse prevention. According to Dr Sorotos, the respondent told her that
he wished to accept responsibility for his offending, and be taken to prison as soon as possible for the sake of the victims and himself. He noted, “I don’t feel right being in the community anymore. I want to cleanse myself and repent”. He stated that he wished to attend therapy in order to better understand his offence process, how to cope in prison, and to obtain mental health support for the circumstances he now faces.
[2]The sessions were conducted between 2 August 2022 and 23 February 2023.
However, Dr Sorotos found that while the respondent did at times present as ‘reflective and forthcoming’, for the most part he ‘demonstrated over-valued beliefs with regards to religion and used these as a primary defence mechanism to explain his offending’.
Dr Sorotos suggested several factors that were likely to have contributed to the respondent’s offending, including being revered by women and authority figures throughout his childhood and early adulthood. This resulted in
a narcissistic personality structure which resulted in him developing a belief that he is extraordinary and exceptional and can only be understood by, or should connect with, other extraordinary figures (in this case God); further, a grandiose logic of self-importance and a fixation with fantasies of control and idyllic love (i.e. the “Lord’s” love).
Dr Sorotos reported the respondent’s professed desire to ‘fix’ his victims by showing them love.
Dr Sorotos reported that the respondent engaged in several problematic ‘sexual scripts’, including the belief that ‘sexual happiness is the number one marker of happiness overall’, that ‘whatever [he] did, [he] did with love’, and that ‘if it was distressing for [the first complainant], she would have told [him]’. According to Dr Sorotos, initially the respondent did not consider the effect his actions could have on his victims, their families or his own family; but he now recognised certain high-risk situations to avoid and was regretful for his behaviour.
Dr Sorotos opined that the respondent had made some treatment gains, with his risk level lowering after commencing treatment. However, further offence-specific treatment was required in order to continue to reduce his risk of re-offending. Dr Sorotos was concerned by the respondent’s placement of the locus of control on an external construct — God. In her opinion, this increased his risk of future offending.
Dr Lewis assessed the respondent for one hour on 15 March 2023 over video conference. She then carried out a series of psychometric tests.
Dr Lewis reported that while the respondent admitted his offending, he had difficulty explaining it. He provided conflicting accounts of his motivation: on the one hand he strongly denied any sexual attraction to either victim; on the other hand, he spoke of his sexual attraction to the second complainant. He explained that his attention and sexual favour was ‘a reward for “hard work and devotion”’, as the complainants were the most devout members of his religious group. The respondent also reported that when he kissed the second complainant it was out of thanks, as opposed to any sexual intent.
Dr Lewis opined that although the respondent does not meet the criteria for a narcissistic personality disorder within her assessment, there were narcissistic personality traits evident in his behaviour which had appeared at a young age. She reported that the respondent was displaying these traits at the time of the offending, and they would have contributed to the offending behaviour. Dr Lewis stated:
His narcissistic traits help understand his explanation for his offending, that he was attempting to help his victims, though it is clear this is a cognitive distortion. His narcissistic personality traits did not cause the offending but made it easier for him to rationalise and justify his behaviour.
Dr Lewis considered that the respondent displayed limited insight into his offending, most often reporting he had given in to his ‘demonised nature’ and reported little understanding of how to avoid similar offending in the future. Despite this, the respondent told Dr Lewis that he was open to treatment in the future.
The respondent completed five psychometric tests to assess his risk of future sexual violence. Dr Lewis reported these results and concluded:
Should [the respondent] develop greater self-awareness, develop insight into factors contributing to his offending, be willing to address his possible sexual preferences in a treatment setting, gain an understanding of the impact of his early life experiences and develop more functional coping strategies, his ability to manage his risk may be improved.
Dr Lewis opined that imprisonment was unlikely to have an effect on the respondent’s symptoms and/or be more difficult for him than for someone without narcissistic personality traits. As for future treatment, Dr Lewis recommended that the respondent be given ‘a minimum of moderate intensity treatment to address his offending behaviours’, which would include engagement with forensic intervention services while in custody and with a private forensic psychologist or psychiatrist skilled in treating sex offences if he was not in custody.

Plea hearing

The respondent’s plea hearing was conducted on 12 May 2023. In his submissions on the plea, senior counsel for the respondent attempted to explain to the judge that the mindset described in the psychological reports was not the respondent’s then current mindset. Rather, it was his mindset at the time of the offending that he was trying to explain to the psychologists. His counsel submitted that he accepted that the offending was unforgivable, but there was a ‘religious overlay’ to it at the time, and he did not properly appreciate the damage that was being done or the illegality involved. However, in the period since, he had worked hard to try to gain that particular insight.

Following the plea hearing, on the day of sentence, senior counsel for the respondent described and read out parts of a letter from the respondent in which he expressed his remorse for his conduct. Among other things, the respondent:
(a)purported to ‘respectfully express his heartfelt promise of genuine remorse to the child victims and family members of the child victims and also the community for the sex crimes that he has committed against vulnerable children’;
(b)explained that he wanted to conclude the criminal proceedings in a speedy fashion in order to prevent further distress to the victims and related family members;
(c)emphasised that he had been attending the targeted treatment sessions with Dr Sorotos as he had some form of cognitive distortions which led him to struggle to develop thorough insight;
(d)explained that further therapy sessions, targeted at his cognitive behaviour, helped him to clear his clouded cognition, which he believed was due to the strong religious beliefs that he held previously;
(e)admitted, conceded and acknowledged that he has caused harm to the young children, who are in no position to consent to his sexual acts;
(f)recognised that his offending behaviour was a disgrace not only to his former profession as a medical practitioner but also as a member of the general community, as a husband and as a father; and
(g)acknowledged that he was in a much better place to recognise his offending behaviour and that his actions had caused psychological harm for the victims.

Sentencing reasons

Having set out the circumstances of the offending and considered the victim impact statements, the respondent’s personal history and the psychological reports, the sentencing judge discussed the respondent’s offending by reference to the purposes of sentencing, namely, condemnation, deterrence, protection of the community and rehabilitation.
The judge condemned the respondent’s offending against the first and second complainants, noting that in the eyes of their parents, the respondent enjoyed an elevated position as their religious leader, stating that the respondent ‘preached morality and yet behaved with gross immorality’.[3] His Honour recognised the harm caused to the first two complainants.[4] He stated that although the respondent was remorseful, there was a real need for the sentence to deter him from the same or similar offending,[5] and that the sentence imposed should also protect the community and deter others from offending in the same or similar fashion.[6]
[3]Reasons, [62].
[4]Reasons, [63].
[5]Reasons, [64].
[6]Reasons, [65].
His Honour noted that the respondent had no previous convictions or findings of guilt[7] and had therefore never been in prison before, and concluded that ‘the reality of a sentence of imprisonment, especially a heavy one, will act as a deterrent’.[8]
[7]Reasons, [39].
[8]Reasons, [67].
In assessing the respondent’s moral culpability, the judge had regard to the gravity of the offending, noting that:
(a)it extended over a lengthy period, from May 2021 to March 2022;[9]
(b)charges 3 and 6 are rolled up charges. Charge 3 contains three occasions of the offence of sexual penetration of a child under 16 years, and charge 6 contains two occasions of sexual assault of a child under 16 years;[10]
(c)at the time of the offending the respondent was a middle-aged male and the complainants were very young females — the difference in age was not small;[11]
(d)the respondent assumed the leadership of the sect, exacting forms of strict obedience, which made it easier to draw the first and second complainants away from their families and get them to comply with his sexual abuse;[12] and
(e)his behaviour included aspects of grooming.[13]
[9]Reasons, [78].
[10]Reasons, [79].
[11]Reasons, [80].
[12]Reasons, [81].
[13]Reasons, [82].
However, the judge made no express finding in relation to the gravity of the offending or the respondent’s moral culpability.
In his reasons, the judge set out the maximum penalties for the offending,[14] along with the standard sentences for sexual penetration of a child under 16 and sexual assault of a child under 16. He referred to the provisions of the Sentencing Act 1991 (‘Sentencing Act’)[15] requiring him to sentence on charges 3–8 on the basis that the respondent was a serious sexual offender. This elevated the protection of the community to the principal sentencing purpose and required sentences imposed to be served cumulatively upon each other unless directed otherwise.[16] It also allowed the judge to impose a disproportionate sentence, although this was not requested by the prosecution.
[14]Reasons, [71].
[15]Sentencing Act, ss 6D and 6E.
[16]Reasons, [72]–[75].
As to rehabilitation, the judge observed that there was evidence of cognitive distortion, ranging from the respondent’s expressed belief that the complainants had consented to the sexual activity to him saying he had given in to his ‘demonised nature’.[17] The judge noted Dr Lewis’ evidence that the respondent showed little understanding of how to avoid similar offending in the future,[18] but considered that the sentence of imprisonment would act as a powerful deterrent against future misbehaviour, irrespective of whether it would set the respondent on the path to rehabilitation.[19]
[17]Reasons, [66].
[18]Reasons, [58].
[19]Reasons, [67].
Overall, he assessed the respondent’s prospects of rehabilitation to be ‘good’.[20]
[20]Reasons, [70].
The judge observed that the respondent’s guilty pleas were made at the earliest reasonable opportunity.[21] While they did not evidence the kind of remorse that pointed to a determination not to reoffend, the guilty pleas represented a significant benefit to the criminal justice system,[22] especially while the effects of COVID-19, although fading, were still felt.[23] The pleas had the significant benefit that the complainants were not required to give evidence.[24]
[21]Reasons, [83].
[22]Reasons, [84].
[23]Reasons, [86].
[24]Reasons, [87].
The judge referred to the respondent’s previous good character, but observed that it had assisted his offending against the first two complainants.[25] In regard to the aggravating feature of breach of trust, the judge recognised the need to avoid double punishment and referred to the fact that legislatively, he was bound to disregard previous good character due to the breach of trust.[26] The judge referred to the respondent’s loss of career and the alienation of his immediate family.[27]
[25]Reasons, [90].
[26]Reasons, [91].
[27]Reasons, [68], [92], [98].
In relation to remorse, the judge said this:
Today you have expressed your remorse for your offending. I accept you are genuine in that regard.
Finally, the judge explained[28] why the sentences were less than the standard sentences in each case:
My sentences for the standard sentence offences in this case are less than the standard sentence in each instance. They are less because of the combination of factors including the timing and effect of your guilty pleas, your prospects of rehabilitation and the effect of your offending upon the complainants and their families and upon yourself through your career and the alienation of your immediate family.[29]
[28]As required by s 5B(5) of the Sentencing Act.
[29]Reasons, [98].

Ground 1 – manifest inadequacy

Director’s submissions

The director submits that the individual sentences imposed on charges 1–8, the orders for cumulation, non-parole period and total effective sentence are manifestly inadequate.
The Director submits that the respondent’s offending was a serious example of each of the offences in charges 1–8 and that the respondent’s moral culpability was high. As a result, the Director submits, the sentences imposed do not reflect the seriousness of the offending.
The Director submits that the following factors are relevant to the assessment of the objective gravity of the offending:
(a)the significant age gap between the respondent and the complainants (37 years);
(b)the vulnerability of the complainants, whose families were subject to the leadership of the respondent, and separated at his behest;
(c)the respondent used his position as leader of the sect with both the complainants and their parents to facilitate access to the complainants and exert influence over them in the commission of the offending;
(d)the pattern of grooming employed by the respondent;
(e)the predatory and clandestine nature of the offending, which included planning such as booking hotels, and pre-purchasing food to provide a consistent excuse for contact;
(f)the overall period of the offending;
(g)the respondent’s failure to wear a condom; and
(h)charges 3 and 6 were rolled up charges.
Moreover, the Director submits, the matters relied upon in mitigation were limited, being the plea of guilty, the existence of extra-curial punishment, the respondent’s independent engagement with psychological treatment, and the impact of COVID-19 on the plea of guilty. The Director contends that the loss of career and reputation were to be afforded somewhat less weight than other mitigating factors.
The Director submits that the individual sentences imposed by the judge are so far below the standard sentences for the relevant offending that they clearly fall outside the range of sentences reasonably available. The inadequacy of individual sentences is not cured in the orders for cumulation.
The Director points out that the offence of sexual penetration of a child under 16 and the absolute prohibition on sexual activity with a child is founded on a presumption of harm to the child, recognised as long-term and serious, and both physical and psychological. He submits that the impact of the offending on the complainants and their families is profound, as is clear from the victim impact statements.
The Director submits, in particular, that the judge failed to take into account the total criminality involved in the rolled-up charges — charges 3 and 6 — in order to arrive at appropriate individual sentences. Charge 3 was a rolled up charge for three discrete occasions of penile/vaginal penetration, each of which took place at a hotel that had been prebooked by the respondent. The sentencing judge imposed a sentence of 4 years’ imprisonment. In contrast, a sentence of 3 years and 6 months was imposed on charge 5, which was a single occasion.
As to cumulation, the Director points out that the same cumulation was ordered on charges 1, 2 and 5 as on charge 4, notwithstanding that charges 1, 2 and 5 were discrete incidents to charge 3 (which attracted the base sentence), while charge 4 occurred on the same occasion. Similarly, the same orders for cumulation were made on charge 6, a rolled up charge, as on charge 8, which was a stand-alone charge.
Further, the Director submits, there was no difference in the orders for cumulation between those charges for which the serious offender provisions applied (charges 4 and 5), and those that were not subject to those provisions (charges 1 and 2). The operation of s 6E of the Sentencing Act meant there was a presumption of cumulation as between charges 3 to 8. While the principle of totality is not displaced by s 6E, the scope for its application is necessarily more limited than where s 6E does not apply.
The Director submits that although a disproportionate sentence was not sought, the sentencing judge was required to have regard to the protection of the community as the primary purpose of the sentence and that insufficient weight was given to the status of the respondent as a serious offender and to the need to protect the community as a principal purpose of sentencing.
Finally, the Director argued that the need for general deterrence was adverted to only in passing by the judge. Insufficient weight was given to the need to deter others from committing offences of the same or a similar nature.

Respondent’s submissions

The respondent concedes that his offending was serious and involved a number of aggravating features. He submits, however, that it can be seen that the sentencing judge specifically addressed each of the purposes of sentencing and directly identified the need for denunciation, specific deterrence, general deterrence and protection of the community. The judge also specifically addressed the serious offender provisions in the Sentencing Act as well as the standard sentence provisions that arose for application in this case. The judge’s sentencing remarks were directed to a description of the impact of the respondent’s offending on the victims, and his Honour directly addressed the gravity of the respondent’s offending.
The respondent points to a number of important matters in mitigation, including the plea of guilty at the first reasonable opportunity. This avoided the time and expense of contested committal and trial proceedings and, most significantly, spared the young complainants the ordeal of giving evidence. Furthermore, at the time the respondent entered his guilty plea, the impact of the COVID-19 pandemic on the criminal justice system was still being felt.
The sentencing judge accepted that the respondent was genuinely remorseful for his offending. He had also suffered and would continue to suffer extra-curial punishment in that he would never be able to practice as a doctor again and he had lost the support of his family and his standing in the community.
Furthermore, it is submitted that while there was still work to be done, the respondent had made extensive efforts towards rehabilitation. The judge was entitled to find that the respondent had good prospects of rehabilitation looking to the future, having regard to the impact of a long period of imprisonment and the impact of further treatment while the respondent is in custody.
The respondent submits that apart from the finding as to the respondent’s prospects of rehabilitation, none of the favourable findings made by the judge are challenged by the Director in this appeal. There was also a significant consideration of totality in this case.
The respondent submits that given the stringency of the test to be applied and the vital importance of respecting the discretion reposed in sentencing judges, the Director has failed to demonstrate that appellate intervention on the ground of manifest inadequacy is required.

Consideration – Ground 1

This Court has frequently observed that the ground of manifest inadequacy is difficult to establish. In Director of Public Prosecutions v Karazisis,[30] the Court said:
Error of this kind will not be established unless the appellate court is persuaded that the sentence was “wholly outside the range of sentencing options available” to the sentencing judge. 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/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[31]
[30](2010) 31 VR 634; [2010] VSCA 350 (‘Karazisis’).
[31]Karazisis, 662–3 [127] (Ashley, Redlich and Weinberg JJA).
In this case, we have concluded that the sentencing discretion miscarried. The sentences imposed on the individual sentences, the periods of cumulation and the total effective sentence were wholly outside the range of sentencing options available.
As the respondent recognised, this was very serious offending that has had a profound impact on the victims and their families. There is an absolute prohibition on having sex with a child under 16 for very good reason. As this Court said in Clarkson:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[32]
[32]Clarkson v The Queen (2011) 32 VR 361, [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
The respondent, a medical practitioner and an obviously intelligent and well educated man, well knew that he was breaching this absolute prohibition when he offended against the first and second complainants. The fact that he knew that he was breaching a prohibition is evidenced by the steps he took to conceal his conduct from the complainants’ parents and other adults. We do not accept that he was unaware of the illegality of his actions due to some kind of religious ‘fog’.
The impact of the offending on the first and second complainants and their families has been profound. The respondent was ostensibly a spiritual leader to the families and a person to whom they were devoted. Both complainants describe their distress and the fear that they felt as a result of the respondent’s predatory conduct.
In her victim impact statement, the first complainant describes ongoing distress. She finds it difficult not to think about what happened and does not think she will ever forget the fear that she felt. She prefers to be alone most of the time, finds it hard to trust people and is uncomfortable being around certain people because she is scared. The crime affected her relationship with her family and it took a very long time to open up and trust her parents again.
The second complainant described the respondent taking her to secret locations, including to his clinic on the weekend, and being ‘super intimate’ with her in circumstances where she could not do anything about it. She said wanted to scream for help or run away but felt frozen. She was living in constant fear and eventually started losing the will to live.
The offending involved planning and lying to the parents and other adults to conceal or cover up the offending. It took place over a significant period, from May 2021 to April 2022, and involved repeated offending, which left the complainants in fear. The second complainant feared that she could not indefinitely stave off being raped by the respondent. The first complainant, of course, experienced that horror from the outset.
Apart from the significant age difference between the respondent and the complainants and the obvious power imbalance between him and them, the respondent was able to emotionally manipulate them due to his godlike status as the leader of the sect. The proposition advanced by the respondent to the psychologists that he raped and assaulted these young girls in order to teach them how to ‘respect the lord’ and that he did not derive any sexual satisfaction from it is both delusional and chilling.
The complainants were vulnerable young girls whose families were in the thrall of the respondent. He used his position and influence to facilitate access to the complainants and exert influence over them to commit the crimes. The offending was predatory offending of a disgusting and shameless kind.
In addition, in offending against the first complainant, the applicant did not wear a condom, considering it unnecessary to do so as she told him that she had not begun menstruating. He clearly had no regard for her physical health.
Against this, as the Director submitted, there were limited mitigating factors. Apart from his voluntary engagement in psychological therapy and the extra-curial punishment of losing his profession and his family, the only factor of real significance is the respondent’s guilty plea, which meant that the complainants did not need to give evidence against him. Although the respondent expressed remorse, which the judge accepted as genuine, we do not regard his prospects of rehabilitation as positively as the judge’s conclusion suggests, given that the psychological reports showed him to have been at least ambivalent about whether his offending was morally reprehensible at that time. While the judge concluded that the respondent’s prospects were ‘good’, this was subject to some material reservations expressed by the judge, namely, that the contradiction in the respondent’s explanations for the offending did not give ‘great confidence’, and that the respondent’s rehabilitation was contingent upon successful treatment.

We observe that the applicant left his fullest expression of remorse until the day of sentencing, when he had his counsel refer to and read out parts of his letter, which at once expressed remorse and attempted to explain that he was a changed man. While the judge saw this expression of remorse as ‘genuine’, we consider it to have been too little too late. We cannot excuse his conduct as a product of a mind distorted by religious fervour. Nor do we accept the submission made on his behalf on the plea that the opinions expressed to the psychologists were not his then current opinions but an attempt to describe his mindset at the time of the offending. That is not how either of the psychologists understood them.
The offending was extremely serious. The moral culpability of the respondent is high. There is a corresponding need for the sentences to denounce the conduct, effect general deterrence and punish the respondent.
The sexual penetration charges are clearly the most serious, and they are very serious indeed.
The maximum penalty for sexual penetration of a child under 16 is 15 years’ imprisonment. The standard sentence is 6 years. That is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness.
For the reasons given, we consider the offending against the first complainant to be well above the middle of the range of objective seriousness for offending of that kind. Against this, we observe that the sentences imposed by the judge on charges 1, 2 and 4 are 50 per cent of the standard sentence, the sentence on charge 5 is marginally higher at 58 per cent, and the sentence on charge 3, which is the base sentence of 4 years imprisonment, is 66 per cent of the standard sentence.
The base sentence of 4 years applies to a rolled up charge of sexual penetration that encompasses three separate incidents, each incident involving the respondent taking the first complainant to a hotel, requiring her to undress and lie naked on the bed with him before penetrating her vagina with his penis. In our view, any one of those events would attract a sentence close to or above the standard sentence if charged separately.
A rolled up count is a collection of counts bundled together into a single count. It is a procedure which is to the advantage of the defence, as there would otherwise be separate charges, but can only occur by agreement with the defence and only for the purpose of a plea of guilty.[33] As a result of this structure, a significantly higher sentence is justified on a rolled up charge than for a single offence.[34]
[33]R v Jones [2004] VSCA 68, [13] (Charles JA, with Phillips JA and Bongiorno AJA agreeing).
[34]R v Samia [2009] VSCA 5, [12] (Nettle JA, with Dodds-Streeton JA agreeing); DPP v Conos [2021] VSCA 367, [74]–[75] (Maxwell P, Kaye and Sifris JJA); Narang (a pseudonym) v The Queen [2022] VSCA 103, [49]–[50] (Maxwell P).
In this case, however, the sentence of 4 years on the rolled up charge 3 is only a year more than the single episode charges 1 and 2, which attracted sentences of three years. The sentences on charges 1 and 2 are also considerably less than the standard sentence, notwithstanding that they also involved penile-vaginal penetration.
In his explanation of why the sentences for the standard sentence offences were lower than the standard sentences, the judge referred in part to the effect of the offending on the complainants and their families. That cannot have been a reason to bring the sentences under the standard sentence.
Furthermore, the applicant was to be sentenced as a serious offender on charges 3–8, which carried with it a presumption of cumulation and a requirement that the principal sentencing purpose was to be protection of the community.
In our view, the base sentence of 4 years on the rolled-up charge 3 is manifestly inadequate. So too is the base sentence of 18 months’ imprisonment on the rolled-up charge 6, which captured two separate incidents of offending. These two incidents took place when the complainant — this time, the second complainant — was taken shopping (a pretext) in the respondent’s car, driven to a side road and subjected to sexual assaults while trapped in the car with the respondent. Once again, the respondent received barely less for the single incident in charge 8.
As for the periods of cumulation imposed, in our view, they do not properly reflect the serious criminality involved in the individual offences, and the imperative to sentence on the basis that protection of the community is the principal sentencing purpose in relation to charges 3–8.
As a result, even having regard to the principles of totality and parsimony, the total effective sentence is manifestly inadequate.
The respondent urged the Court to have regard to Director of Public Prosecutions v Nwigwe,[35] where this Court held that a sentence of six years’ and six months’ imprisonment was not manifestly inadequate in circumstances where the applicant, a doctor, had pleaded guilty to four charges of sexual penetration of a child under 16 (one of which was a rolled-up charge) and a charge of using a carriage service to transmit an indecent communication to a person under 16.
[35][2022] VSCA 14 (T Forrest, Emerton and Walker JJA) (‘Nwigwe’).
At the time of the offending, Mr Nwigwe was a 43-year-old medical practitioner and surgeon who was married with three young children. The victim was a member of a neighbouring family and was aged 13 years. The neighbouring family had been particularly kind to Mr Nwigwe while he settled in to the region and his wife and children were overseas.
In Nwigwe, this Court explained its decision to uphold a plainly lenient sentence as follows:
There is no doubt, and there was no argument to the contrary, that the respondent’s conduct was reprehensible and repellent. The respondent has done lasting damage to a child who trusted him and to a family that was particularly kind and generous to him. His conduct was exploitative and supremely selfish. He breached in the most appalling way the trust of the people who were trying the hardest to help him settle into the community and to make him feel welcome.
Such conduct calls for stern denunciation and punishment.
In addition, as the Director emphasised, the sentencing judge had to have regard to the statutory guideposts provided by the maximum sentence of 15 years and the standard sentence of 6 years when imposing sentences for the individual charges. Two years’ imprisonment, for example, on charge 1 is obviously considerably lower than the standard sentence, as is 3 years and 9 months on each of charges 4 and 5, given the escalation in the offending.
However, the sentencing judge was required to include in his sentencing synthesis other important factors, and it is not enough for the Director to simply assert that the sentences passed do not reflect the gravity of the offending. In this case, there were important factors in mitigation, including the respondent’s early plea, his expression of genuine remorse, his good prospects of rehabilitation and the special hardship he experiences in prison in light of his isolation in Australia and radical separation (by distance, timezones and corrections policy) from his children and other family members. Additionally, although of somewhat less weight, he has lost the career and reputation he spent decades building.
A sentence must inevitably balance competing considerations, sentencing being the quintessential exercise of a judge’s discretion. Reasonable minds might differ about the weight to be accorded to the different considerations and the balance to be struck between them. In this case, there may not be much scope for dispute as to the weight to be attached to the moral culpability involved in this offending. However, reasonable minds, and reasonable judges, may differ on the weight to be accorded to other factors in play in this case, such as the offender’s isolation in prison and the collateral punishment represented by the loss of career and reputation.[36]
[36]Nwigwe, [75]–[79].
While the Court described the sentences as lenient, it was not persuaded that they reflected any failure to give proper weight to all sentencing considerations or that the judge’s sentencing discretion miscarried in any way.[37] It observed further that comparable cases have some — albeit limited — relevance to an assessment of the range of sentences open to a sentencing judge, but the circumstances of both the offending and the offender will differ significantly between cases.[38]
[37]Nwigwe, [83].
[38]Nwigwe, [82].
In this case, the respondent’s conduct has harmed two complainants and was particularly egregious given his role, not as a doctor, but as the leader of the sect to which the complainants’ parents belonged and over whom he exercised significant authority and control. Furthermore, the offending was planned and then concealed from other adults with lies. The respondent continued to be indifferent to the harm inflicted on the complainants until well after he was charged and, until at least April 2023, he was peddling the explanation that he had been doing the complainants some kind of favour. He left his substantial expression of remorse to the day of sentencing.
The individual sentences imposed on charges 1–8, the orders for cumulation, non-parole period and total effective sentence are manifestly inadequate. Those orders must be set aside and the respondent resentenced.

Resentencing

Having regard to the foregoing considerations, the respondent stands to be resentenced on charges 1–8 and 10.
We would set aside the orders of the judge made on 15 June 2023 in respect of charges 1–8 and 10, and resentence the respondent on those charges as follows.
On charge 1, a charge of sexual penetration of a child under 16, the respondent is sentenced to four years’ imprisonment.
On charge 2, a charge of sexual penetration of a child under 16, the respondent is sentenced to four years’ imprisonment.
On charge 3, a rolled up charge of sexual penetration of a child under 16, the respondent is sentenced to six years’ imprisonment.
On charge 4, a charge of sexual penetration of a child under 16, the respondent is sentenced to four years’ imprisonment.
On charge 5, a charge of sexual penetration of a child under 16, the respondent is sentenced to four years’ imprisonment.
On charge 6, a rolled up charge of sexual assault of a child under 16, the respondent is sentenced to three years’ imprisonment.
On charge 7, a charge of grooming for sexual conduct with a child under the age of 16, the respondent is sentenced to one years’ imprisonment.
On charge 8, a charge of sexual assault of a child under 16, the respondent is sentenced to two years’ imprisonment.
On charge 10, a charge of common law assault, the respondent is sentenced to 14 days’ imprisonment.
The base sentence is the sentence of six years on charge 3.
Twelve months of the sentences on each of charges 1, 2 and 4 are to be served cumulatively upon the base sentence and upon each other sentence.
Six months of the sentences on each of charges 5, 6 and 8 are to be served cumulatively on the base sentence and each other sentence.
Four months of the sentences on charge 7 is to be served cumulatively on the base sentence and each other sentence.
The remaining sentence on charge 10 will be served concurrently with the other sentences.
The total effective sentence is 10 years and 10 months’ imprisonment. We set a non-parole period of 8 years.
Pursuant to s 6F of the Sentencing Act, it is noted that the respondent is sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6, 7 and 8.
It is declared under s 6AAA of the Sentencing Act that but for his plea of guilty, we would have sentenced the respondent to a total effective sentence of 15 years’ imprisonment.
In the circumstances, it is unnecessary to deal with ground 2.
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[2024] VSCA 320

18 December 2024