Director of Public Prosecutions v Talbot (a Pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0073

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
WILLIAM TALBOT (A PSEUDONYM)	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 321
JUDGMENT APPEALED FROM:	DPP v Talbot (a pseudonym) (County Court of Victoria, Judge Gaynor, 12 April 2023)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Respondent convicted of incest, administering intoxicating substance for sexual purpose and child abuse material offences –Whether individual sentences for incest manifestly inadequate – Whether orders for cumulation manifestly inadequate – High gravity of incest offending against three children – Absence of remorse – Moderate to high risk of reoffending – Serious sexual offender – Importance of community protection – Importance of general deterrence – Bugmy principles of some relevance to moral culpability – Sentences on incest charges manifestly inadequate – Orders for cumulation manifestly inadequate – Appeal allowed – Respondent resentenced.

Crimes Act 1958; Sentencing Act 1991; Sentencing Amendment (Sentencing Standards) Act 2017.

DPP v Karazisis (2010) 31 VR 634, followed.

DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37; R v Sposito (Supreme Court of Victoria, 8 June 1993); DPP v G [2002] VSCA 6; DPP v Dalgliesh [2016] VSCA 148; DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37; DPP v Walsh (a Pseudonym) [2018] VSCA 172; DPP v Herrmann (2021) 290 A Crim R 110; Crawford (a pseudonym) v The Queen [2018] VSCA 113; Grantley (a pseudonym) v The Queen (2018) 272 A Crim R 340; Bugmy v The Queen (2013) 249 CLR 571, referred to.

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Counsel
Applicants:		Mr B Kissane KC DPP with Ms B Goding
Respondent/s:		Mr D Gurvich KC with Mr J Connolly
Solicitors
Applicants:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent/s:	Haines & Polites Legal Practitioners

EMERTON P
TAYLOR JA
KIDD AJA:

On 1 December 2022 the respondent entered a plea of guilty to nine charges concerning sexual offending against children. On 12 April 2023 he was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment M11692573
1	Produce Child Abuse Material[1]	25 years	3 years	6 months
2	Distribute Child Abuse Material[2]	10 years	3 years	6 months
3	Sexual Penetration of a Child or Lineal Descendant[3]	25 years	7 years	Base
4	Administration of an Intoxicating Substance for a Sexual Purpose[4]	10 years	2 years	4 months
5	Sexual Penetration of a Child or Lineal Descendant[5]	25 years	6 years	12 months
6	Administration of an Intoxicating Substance for a Sexual Purpose[6]	10 years	2 years	4 months
7	Sexual Penetration of a Child or Lineal Descendant[7]	25 years	6 years	12 months
8	Sexual Penetration of a Child or Lineal Descendant[8]	25 years	5 years	4 months
9	Possession of Child Abuse Material[9]	10 years	2 years	4 months
Total Effective Sentence:		11 years 4 months’ imprisonment
Non-Parole Period:		8 years
Pre-sentence Detention Declared:		514 days
Section 6AAA Statement:		12 years’ imprisonment with a non-parole period of 9 years.
Other Relevant Orders: 1. Pursuant to s 6F of the Sentencing Act 1991, offender is sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6, 7, 8 and 9. 2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is life.

[1]Contrary to 51C(1) of the Crimes Act 1958.

[2]Contrary to s 51D(1) of the Crimes Act 1958.

[3]Contrary to s 50C(1) of the Crimes Act 1958.

[4]Contrary to s 46(1) of the Crimes Act 1958.

[5]Contrary to s 50C(1) of the Crimes Act 1958.

[6]Contrary to s 46(1) of the Crimes Act 1958.

[7]Contrary to s 50C(1) of the Crimes Act 1958.

[8]Contrary to s 50C(1) of the Crimes Act 1958.

[9]Contrary to s 51G(1) of the Crimes Act 1958.

Pursuant to s 287 of the Criminal Procedure Act 2009 the Director now appeals on the single ground that the sentences imposed on charges 1 to 9, the orders for cumulation and the resulting total effective sentence and non-parole period are manifestly inadequate.
For the reasons that follow the appeal should be allowed and the respondent resentenced in the manner detailed below.

Summary of offending

The respondent was aged 31 years at the time of the offending. His co-accused (who contested the charges) was his 25 year old domestic partner Melissa McIntosh.[10]
[10]A pseudonym.
The three identified victims of the offending were:
(a)Steven,[11] the then six month old son of the respondent and McIntosh.
(b)Brisa,[12] the then five year and one month old daughter of the respondent and his ex-wife.
(c)Morgan,[13] the then seven year and 10 month old daughter of the respondent and his ex-wife.
[11]A pseudonym.
[12]A pseudonym.
[13]A pseudonym.
Steven lived with the respondent and McIntosh full-time. Brisa and Morgan lived primarily with their mother but spent time in the home of the respondent and McIntosh during weekends.
On 7 March 2020 the respondent and McIntosh were at home. They took Steven to their bedroom and placed him naked on a towel on their bed. McIntosh held Steven face down on the towel. The respondent penetrated Steven’s anus with his penis (charge 3 — sexual penetration of a child or lineal descendant).
At the same time the respondent used his mobile phone to take two images of himself penetrating Steven (part of rolled up charge 1 — producing child abuse material).
On 2 July 2020 Brisa and Morgan were staying overnight in the home of the respondent and McIntosh. Shortly after 7 pm McIntosh exchanged text messages with her friend, BH:
McIntosh:Hey hun just a question just wondering what do you use to get it kids to sleep
McIntosh:Just because I’m just been having trouble sleeping coz teething
BH:Melatonin or Phergan
McIntosh:Justin question do you have a little bit that you can bring so we can try to see if it works please and [the respondent] said he will give you some cash if that’s ok
BH delivered about 1.5–2 millilitres of melatonin and a syringe to McIntosh at her house sometime after 9 pm. BH told McIntosh that the appropriate dose was 0.3 millilitres.
Sometime after that the respondent administered the melatonin to both Brisa and Morgan (charges 4 and 6 — administer an intoxicating substance for sexual purpose).
At 12:44 am the following morning McIntosh and the respondent exchanged the following text messages:
McIntosh:      The girls fell asleep
McIntosh:      in the lounge room
Respondent:    sweet
Between 1:00 am and 2:57 am the respondent sexually assaulted both Brisa and Morgan on a mattress in the lounge room. He digitally penetrated the vaginas of both girls (charges 5 and 7 — sexual penetration of a child or lineal descendant ). The respondent tied a white electrical cable around Brisa’s ankle restraining her on the bed. At some point he used adhesive tape to hold open Brisa’s labia. By doing so he penetrated her vagina (charge 8 — sexual penetration of a child or lineal descendant).
During the one hour and 46 minute episode the respondent used his phone to take at least 24 images and one video of his offending in which the genitals of both girls are depicted, including the taped open labia of Brisa (part of rolled up charge 1 — producing child abuse material).
Acting upon information that the respondent had uploaded child abuse material to Snapchat, police executed a warrant at the home of the respondent and McIntosh on 10 March 2021. Electronic devices, including the respondent’s mobile phone and three laptops, were seized. Thereafter the accused participated in a record of interview in which he denied using either a TikTok or Snapchat account. He denied creating the specified Snapchat account or sharing Snapchat images using it. He could not explain why that account was linked to his phone and email address. He said that people had asked him if they could use his phone ‘for fucking pokies and this and that’. He added that he would not be giving anybody any of his ‘shit’ from then on.
The seized electronic devices were later analysed.
The mobile phone and one of the laptops contained large amounts of both category 1 and category 2 child abuse material.
The category 1 material depicted pre-pubescent children and babies being anally, orally and vaginally penetrated by adults, as well as images focused on the genital area of pre-pubescent female children. There were 211 such images and one such video on the phone, and 565 such images and 193 such videos on the laptop. Of this material, two stills from differently titled videos on the phone and 24 images on the laptop were created at the same time as the respondent’s 3 July 2020 offending against Brisa and Morgan.
The category 2 material depicted naked children, particularly female infants with their vaginas are visible, as well as anime or computer generated images of infants being sexually penetrated or abused. There were 76 such images and 13 such videos on the phone and 1110 such images and 19 such videos on the laptop. Of this material one image on the phone was a computer generated image of a female child being restrained on a bed by her ankles next to two adult males with erect penises and an adult female.
Additionally, a number of programs or apps were found on the phone, namely:
(a)TOR browser, a web browser designed for anonymous web surfing and protection against traffic analysis. It is a prerequisite to gain access to the Dark Web.
(b)SIGNAL, a cross-platform centralized encrypted instant messaging service. It can be used to send one to one and group messages including files, voice notes, images and videos.
(c)WICKR, an instant messenger application allowing users to exchange end-to-end encrypted and content-expiring messages, including photos, videos and file attachments.
(d)DISCORD, a VoIP, instant messaging and digital distribution platform allowing users to communicate with voice calls, video calls, text messaging, media and files in private chats or as part of communities called ‘servers’.
(e)TUNNELBEAR (VPN), a virtual private network enabling users to mask their IP addresses when visiting websites.
(f)MEGA, a user-controlled encrypted cloud storage application.
The internet browser history of the phone revealed almost daily access to pornography related websites with topics such as ‘Pedo Pictures’, ‘father and daughter pictures’, ‘toddler pictures’, ‘JB[14] teen photo sets’, ‘incest mother Loli’ and ‘incest, pedo, pedophillia’.
[14]Meaning ‘jailbait’.
On 6 August 2021 police executed a second warrant on the home of the respondent and McIntosh in company with Child Protection Officers. Steven was removed from their care. A further mobile phone belonging to the respondent was seized. It contained 14 images of category 1 child abuse material and three images of category 2 child abuse material.
The electronic devices seized on 10 March and 6 August 2021 contained a combined total of 1979 photos and 226 videos of child abuse material (charge 9 — possess child abuse material).
Subsequent police inquiries showed that the respondent uploaded a total of six images of child abuse material (charge 2 — distribute child abuse material). Two of these images had been uploaded to Snapchat, one of which depicted an erect adult penis about two to three centimetres from the vagina of an infant and the other a young female child (approximately three to six years of age) holding an erect adult penis. The remaining four images had been uploaded to the Dark Web. These depicted:
(a)Steven being anally penetrated by the respondent’s penis. His hands and those of McIntosh are visible on Steven’s bottom/lower back.
(b)Brisa sitting on a chair wearing a nightie but no underwear. Her legs are open and her vagina is visible. Morgan is also visible in the image wearing a nightie. Neither girl’s face is visible.
(c)A close up image of Brisa’s vagina and anus visible through blue underwear with a split in the crotch as she lies face down. The respondent’s thumb and forefinger holding Brisa’s labia open is shown.
(d)An image of Brisa lying face down on a mattress wearing blue underwear with a split in the crotch. White electrical cables are tied around her left ankle. Her legs are spread wide, exposing her buttocks. The lower part of a second person kneeling on the bed behind the child is visible.
The respondent was arrested on 11 August 2021 and participated in a record of interview. He denied viewing or gaining access to child pornography. He denied taking sexual photos of children. He denied sexually penetrating his son and daughters. He said that he did not know how the child abuse images got on his electronic devices.

Sentencing Reasons

The judge commenced her sentencing reasons[15] by summarising the respondent’s offending. Next the judge noted the maximum penalties for the offences and the various Sentencing Act 1991 provisions that applied. Incest is an offence with a standard sentence of 10 years’ imprisonment. It is also a category 1 offence requiring the imposition of a term of imprisonment not involving a community corrections order unless certain exceptions apply. Each of the offences is Schedule 2 serious offence triggering the serious sexual offender provisions in the event that a term of imprisonment is imposed for two or more of the charges. The respondent was to be registered on the sex offenders register for life.
[15]DPP v Talbot (a pseudonym) (County Court of Victoria, Judge Gaynor, 12 April 2023) (‘Reasons’).
Turning to the respondent’s personal circumstances, the judge said that the respondent was 34 years of age at the time of sentence. He is the second of four children, his older brother being his only full sibling. The respondent had a difficult upbringing. His parents separated when he was about seven years old. Prior to the separation his father would physically beat him. After the separation, and together with his older brother and mother, the respondent moved house about 15 times to avoid his father. This involved attending about six different primary schools. The respondent’s father ceased pursuing the family when the respondent was about 11 years of age.
At the age eight the respondent was diagnosed with attention deficit hyperactivity disorder. At the age of ten his older brother began to sexually abuse him. This abuse continued when he and his brother were sent to live with their grandmother. It ceased about a year later when his brother, who was six years older, moved away. The respondent told his mother of the abuse. She did not believe him.
The respondent was expelled from school for disruptive behaviour when he was in Year 8. He then attended a technical school but did not adapt to its self-paced learning environment. He dropped out in Year 9 after a girlfriend died in a car accident. The respondent’s mother re-enrolled him at a high school in Year 10, but he attended for only a few weeks. Eventually he completed Year 10 at another secondary school. At the age of 16 the respondent undertook an automotive pre-apprenticeship.
The respondent began smoking cannabis at age 13 and thereafter, until his remand, weekly used about an ounce of that drug. In his late teens the respondent moved to Queensland with a girlfriend. Together they used ‘ice’ in a binge/abstinence pattern. He worked in fast food shops and undertook some automobile transmission work. The respondent and his girlfriend ‘semi-adopted’[16] a young ward of state, Michael.[17] They returned to Victoria with Michael in 2008. Their relationship ended in 2009. Michael then went to live with the respondent’s mother. The respondent has had no contact with him since being charged with the instant offences.
[16]Reasons, [36].
[17]A pseudonym.
In 2009 the respondent began a relationship with the mother of Morgan and Brisa. Morgan was born in 2011 and the pair married in 2012. At about that time the respondent recommenced his binge/abstinence pattern of ice use. That led to the loss of their rental accommodation at the end of 2014 and a shift to a boarding house in a country location. There the respondent became depressed and commenced serious ice use. Brisa was born in 2015. That same year the family moved to private rental accommodation. The respondent met McIntosh in 2017 through their mutual use of ice. His relationship with her led to the breakdown of his marriage. In 2018 Morgan, Brisa and their mother moved to a Melbourne suburb. The respondent and McIntosh moved to the same suburb to enable him to have contact with his daughters. That contact was on a weekend or bi-weekend basis. The respondent and McIntosh were using ice and cannabis daily.
The judge detailed the respondent’s criminal history. It dates from 2011 when he received an intensive corrections order for violence and driving offences. The respondent failed to comply with the conditions of the order. He received community corrections orders in 2014, 2015 and 2016 for firearm, driving and violence offences. The 2016 order was breached numerous times, including by further offending, for which another community corrections order was imposed in 2021. Prior to his remand for the instant offending, the respondent had never experienced custody.
The judge considered victim impact statements made by Morgan, Brisa and their mother. Neither child has any recollection of the abuse committed by the respondent and both expressed sadness to a family violence manager that their father was going away. Their mother wrote of her confusion and disbelief that the respondent had offended against his daughters, as well as her guilt for not knowing. She endured her daughters being removed from her care pending an investigation by the Department of Families, Fairness and Housing into her knowledge of or involvement in the respondent’s offending. She ‘couch surfed’ during that time so that the girls could stay in their own home. She was only permitted to spend one hour on four days a week with them. She has since relocated her daughters to a new town to protect them from notoriety. That has involved practical and financial hardship. She has been told that it would be presently unethical for her daughters to have counselling or their memories ‘unlocked’. She does take them to ‘play therapy’. She worries about their future wellbeing in the event that they do remember the offending.
The judge then considered the opinion of Dr Prashant Pandurangi, forensic psychiatrist, expressed in a report tendered by the respondent. Dr Pandurangi found no evidence that the respondent had any low mood, anxiety or depressive condition. The respondent’s personality problems, arising from his traumatic formative years, did not reach a threshold to warrant a diagnosis of personality disorder. Dr Pandurangi said that the nature of the offending raised the possibility of an underlying paedophilic disorder, but such diagnosis could not be confirmed in the face of the respondent’s denial of sexual arousal from deviant fantasies involving pre-pubescent children. Dr Pandurangi said that the respondent’s denial or claimed lack of memory of the offending may be as a result of guilt or shame. He assessed the respondent’s risk of reoffending as being in the moderate to high category if underlying risk factors remained unaddressed.
Next the judge summarised the submissions of counsel.
The judge said that the prosecutor argued that the four charges of incest were ‘highly aggravated’ examples of the offence, further aggravated by their recording and the upload of those images to the internet. The prosecutor emphasised the presumption of harm to children who are victims of sexual abuse. The pictures of the respondent’s children will remain on the internet indefinitely. The prosecutor also submitted that the respondent had lied when he said that he could not remember the offending or did not know how the child abuse material came to be on his electronic devices. The judge said that the prosecutor ‘retreated from’ a submission that the offending fell into the highest category in the range of seriousness for such offences, instead arguing that it was ‘extremely serious’. Denunciation, condign punishment and both general and specific deterrence were argued to be prominent sentencing principles.

The judge said that defence counsel submitted that other than the ‘period of time’ in which the offending against his daughters had occurred, the respondent was otherwise a supportive father. It was argued that generally the offending was limited in time and the respondent had no memory of it. The respondent claimed to have been given ‘a clear liquid in a shot glass’ which he later came to believe was GHB. It was argued that it was possible, in light of Dr Pandurangi’s opinion, that the respondent had a potential sexual interest in pre-pubescent children which came to the fore with the disinhibiting effects of illicit drugs. While it was argued that the applications found on the respondent’s electronic devices were easy to download, counsel accepted that they were used to mask the respondent’s identity and that this showed a moderate degree of sophistication in his offending. Defence counsel emphasised the respondent’s early life of abuse and poverty. Counsel emphasised that the guilty plea was made at an early opportunity and the respondent’s criminal history did not encompass sexual offending. The plea to charges 4 and 6 was of particular utilitarian value given a possible argument that the administration of melatonin may not fit the category of substance envisaged in the legislation. Counsel accepted that the respondent fell to be sentenced as a serious sexual offender.
The judge said that there were a number of difficulties in the sentencing exercise. She accepted that according to the victim impact statements of Morgan and Brisa, they thought well of the respondent. While it was to be hoped that they never become aware of his offending against them, that could not be guaranteed. The judge described that offending as ‘depraved, self-indulgent and callous’. She said that the photographing of his posed daughters and the uploading of the material to the internet was an aggravating feature of the offending. While it occurred during a specific period, the respondent’s offending against his son was ‘depraved and a gross violation of his vulnerability and utter dependency’ on the respondent and McIntosh. The judge characterised the filming of the offending activity and the uploading of it to the internet as ‘bespeaking an utter disregard for the welfare of [the respondent’s] son and [his] duties as his father’. The child abuse material possessed by the respondent was said to be of ‘the basest kind’.
The judge rejected the respondent’s assertion of lack of memory of the offending, particularly given the deliberate actions involving in downloading and using the apps on his electronic devices coupled with the filming of the sexual offending against his children and the later uploading of the resultant material.
The judge said that the respondent was not a youthful offender and, partly on this basis, distinguished the County Court sentence imposed in DPP v McKinley (a pseudonym)[18] to which she had been referred. While accepting that the respondent’s criminal history did not involve sexual offending, the judge said that the respondent had demonstrated an inability to complete any community corrections order, including the one extant at the time of the instant offending. She found that this did not speak well of the respondent’s character generally. The judge accepted the utilitarian value of the plea and that it was enhanced by its timing when the courts were struggling with a backlog caused by the pandemic. The judge did not accept that it demonstrated any remorse. The respondent continued to deny his offending and had no insight into it. Given his likely paedophilic disorder, the judge found protection of the community to be the ‘dominating factor’ in the sentencing exercise. Denunciation was also emphasised. The judge said that the respondent’s difficult upbringing enlivened the Bugmy[19] principles.
[18][2022] VCC 2066.
[19]Bugmy v The Queen (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37 (‘Bugmy’).
In announcing the individual sentences and orders for cumulation the judge said that she had deliberately given lesser cumulation in relation to charges 7 and 8.

Director’s contentions

Although the ground of appeal as framed appeals against all nine individual sentences, the focus of the Director’s oral submissions was the sentences imposed on the incest offences, being charges 3, 5, 7 and 8, and the orders for cumulation of those sentences. This appeal is determined on that basis. The contention made in the Director’s written case, that the respondent’s offending is a ‘most abhorrent and morally repugnant example of inherently abhorrent and morally repugnant conduct,’ must be understood in that light.
The Director argues that contrary to the finding of the sentencing judge, the plea prosecutor did maintain the submission that the offending fell within the highest range of seriousness for offences of incest and those relating to child abuse material. It is submitted that having regard to the recognised factors by which objective seriousness of these offences are measured, that is necessarily the case. While the recording of the incest offending cannot be considered as an aggravating factor as it is the subject of a separate charge, it remains relevant to the objective seriousness of each offence and illustrative of the respondent’s motivation for the offending. The respondent’s use of his three children as sexual playthings renders his moral culpability at the highest level.
The Director further contends that there were relatively few matters available to the respondent in mitigation of sentence. Given the COVID pandemic, his guilty plea was deserving of an enhanced utilitarian benefit but was no evidence of remorse. While the Bugmy principles were relevant in a general way, there was no causal connection between the respondent’s childhood experiences and the offending. He likely has ‘preferential paedophilic interests’ and poses a moderate to high risk of sexual reoffending. The respondent’s criminal history is significant.
The Director submits that it follows that the individual sentences on the incest charges, orders for cumulation and the resulting total effective sentence and non-parole period are wholly outside the range available to the judge. The sentences imposed on the incest charges range between 20 to 28 percent of the maximum penalty and fall well below the standard sentence. It is argued that if allowed to stand, these sentences will have the effect of undermining the proper sentencing standards for equally serious offences of incest and will have a compressing effect on future sentence for less serious offences. This would effectively reverse the steps taken in recent years to correct disproportionately low sentences practices in relation to the offence of incest.

Respondent’s contentions

The respondent contends that the Director has failed to overcome the difficult hurdle implicit in a ground of appeal of manifest inadequacy. The offending does not fall within the highest range of seriousness for such offences. The judge accurately described the seriousness of the incest, terming it ‘depraved’. The individual sentences imposed on charges 3, 5, 7 and 8 properly reflected the seriousness of each charge relative to each other and those on the rest of the indictment. Further, the sentences imposed on the incest charges demonstrate that the judge was careful to avoid double punishment given the overlap of factors common between them and charges 1, 4 and 6. The respondent argues that it was not advanced at the plea that the motivation for the incest conduct was the production of child abuse material and, in any event, such a finding is not open.
The respondent further contends that although there were few matters in mitigation they were nonetheless powerful. The value of the guilty plea should not be understated. Given the respondent’s upbringing, the Bugmy principles significantly reduce his moral culpability. Further, the principle of totality had real work to do in the sentencing exercise.
In the event that the Court is of the view that manifest inadequacy is established by the Director, the respondent submits that it should exercise its residual discretion to not interfere because of the delay in the resolution of the matter and the principle of totality.

Analysis

The principles applicable to a Director’s appeal on the ground of manifest inadequacy are uncontroversial. In order to succeed the Director must persuade this Court that the sentences under consideration are wholly outside the range of sentences reasonably open to the sentencing judge in the circumstances of the particular case. By its nature the test is a stringent one. It is difficult to make out. It is insufficient if this Court concludes that it would have imposed higher sentences than those imposed by the judge. It must be demonstrated that that the sentences were not open to the judge in the sound exercise of his or her sentencing discretion.[20]
[20]DPP v Karazisis (2010) 31 VR 634 (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
In this case we are satisfied that the Director has done so.
Incest is an extremely serious crime. It involves the sexual penetration of a child ‘which is, by its very nature, an act of violence’.[21] It is ‘so obviously contrary to every tenet of parental care for children’ and ‘every parent is taken to understand that sexual activity is absolutely prohibited’.[22]
[21]DPP v Dalgliesh [2016] VSCA 148 [46] (Maxwell ACJ, Redlich and Beach JJA) (‘Dalgliesh’).
[22]DPP v Walsh (a Pseudonym) [2018] VSCA 172 [33] (Maxwell P and McLeish JA).
More than 30 years ago this Court said:
A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt upon the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.[23]
[23]R v Sposito (Victorian Court of Appeal, 8 June 1993) (Marks J, Hampel and McDonald JJ agreeing at 5–6) 4.
More than 20 years ago this Court said:
This Court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the Court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes.[24]
[24]DPP v G [2002] VSCA 6, [9] (Winneke P).
The Court in DPP v G noted that the legislature had recently increased the maximum penalty for incest to 25 years’ imprisonment.[25]
[25]Ibid.
Not yet ten years ago, in 2016, this Court said
[C]ommunity values have an important role to play in assessments of the objective gravity of a particular offence. Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded.[26]
[26]Dalgliesh, [126].
The Court in Dalgliesh upheld the Crown’s submission that sentences imposed for incest offences of mid-range seriousness were disproportionately low when the objective gravity and the moral culpability of the offending was measured against the maximum penalty of 25 years’ imprisonment.[27] The Court called for incest sentences to increase. The High Court endorsed this Court’s conclusion that the objective gravity of the offending was not reflected in current sentencing practices for incest.[28]
[27]Dalgliesh, [7].
[28]DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37, 50 [53] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.
In 2017 Parliament made the standard sentence for sexual penetration of a child or lineal descendant ten years’ imprisonment.[29] The standard sentence is the sentence for an offence which, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. [30]
[29]Sentencing Amendment (Sentencing Standards) Act 2017, s 33(1).
[30]Sentencing Act 1991, s 5A(1)(b).
In 2018 this Court noted a ‘dramatic change in the sentencing parameters’[31] for incest offences since Dalgliesh and also said that consideration of a sentencing range by a sentencing judge must take account of that change.[32]
[31]Grantley (a pseudonym) v The Queen (2018) 272 A Crim R 340, [19]; [2018] VSCA 112 (Maxwell P and Kyrou JA).
[32]Crawford (a pseudonym) v The Queen [2018] VSCA 113, [57] (Maxwell P and Kyrou JA).
In assessing the gravity of incest a sentencing judge must consider the nature and extent of the specific offending, its frequency and duration and the circumstances in which it occurred. In this case there are several matters which particularly inform the gravity of the offending.
The respondent offended against multiple victims, specifically all three of his biological children. At the time of offending they were of very tender age. The youngest was six months old, the eldest just shy of eight years.
The degradation of each of the respondent’s children by his offending is marked. The anal penetration of a six month old baby while held face down by McIntosh and the restraining and posing of the respondent’s five year old daughter to display her taped open labia are nothing short of repulsive.
There are multiple elements of the respondent’s conduct which, while being subject to separate charges and therefore not to be considered as aggravating factors of incest, remain relevant to the circumstances in which the incest occurred. The respondent:
·Recorded images of his offending against all three victims;
·Used applications and platforms which facilitated anonymous and encrypted communication and file sharing;
·Disseminated the electronic images of his offending — both still and moving — for later consumption by other offenders who lurk in the darkest recesses of the internet;
·Enquired about, and procured, a sedative for his daughters to facilitate the offending; and,
·Committed all offending in the company of McIntosh, the mother of Steven and stepmother of Brisa and Morgan.
This conduct demonstrates that, on each occasion, the offending was planned. It demonstrates that it was motivated, at least in part, to capture (and perhaps distribute) child abuse material. It demonstrates the respondent’s complete disdain for the physical and psychological wellbeing of his children.
Ultimately, whether the incest offending is best described as falling into the ‘highest category of seriousness’ for such offending or as ‘extremely serious’ is perhaps beside the point. On any objective view the respondent’s conduct was depraved and high end offending.
Turning to an assessment of the respondent’s moral culpability, the judge correctly found that the Bugmy principles were relevant. The respondent experienced a childhood of some deprivation and bears the lasting effects of that experience as part of his make-up. That said, the effect of that background on the respondent’s moral culpability for the instant offending is modest. In Bugmy, the offender’s childhood exposure to extreme violence and alcohol abuse likely explained his recourse to violence when frustrated because his inability to control that impulse was substantially compromised as a result of that background. Here, however, there was no evidence that the respondent’s background, including his own experience of sexual abuse, was causally connected to his offending against all three of his children (and otherwise generally). His offending was not the result of an inability to control an impulse when confronted with a given situation. It was considered and planned. And, there was no evidence that his likely underlying paedophilic disorder was as a result of his childhood experiences.[33]
[33]See also DPP v Herrmann (2021) 290 A Crim R 110; [2021] VSCA 160 (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
The other major factor available to the respondent in mitigation of his sentence was his plea of guilty. The judge acknowledged its full utilitarian value and was clearly correct in her conclusion that it did not evidence remorse.
It cannot be doubted that the judge faced a difficult sentencing task. For the reasons we have articulated, the offending on each of charges 3, 5, 7 and 8 was an objectively grave example of an inherently serious offence. That, combined with a consideration of the maximum penalty, the standard sentence and the importance of deterrence (both general and specific), denunciation and protection of the community when balanced with the modest factors in mitigation, persuades us that the individual sentences imposed on these charges are manifestly inadequate. We accept the Director’s submission that, if allowed to stand, they will undermine proper sentencing standards for equally serious offences of incest and will have a compressing effect on future sentences for less serious offences. That is so notwithstanding the obvious impact that the principle of totality has on the sentencing exercise in this case and thereby also on any future comparative process.
We are also of the view that the orders for cumulation made on charges 5, 7 and 8 are manifestly inadequate. In this regard we note that the respondent was to be sentenced as a serious sexual offender and the orders for cumulation needed to give real and obvious effect to the protection of the community, a sentencing purpose correctly identified by the judge as dominant. Further, the orders for cumulation must reflect the number of victims involved.
In light of the manner in which the Director conducted his case at the hearing of the appeal, the sentences and orders for cumulation imposed on the remaining charges are not considered.
Turning to the issue of the residual discretion, in Green v The Queen[34] a majority of the High Court identified the primary purpose of Crown appeals as ‘to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’.[35] The majority accepted that this purpose could be achieved to ‘a very significant extent’ by a statement of an appellate court that the sentences imposed ‘were wrong and why they were wrong’.[36] That is, it is a limiting principle. The burden lies on the Crown to demonstrate that the residual discretion should not be exercised.
[34](2011) CLR 462 (French CJ, Heydon, Crennan, Kiefel and Bell JJ); [2011] HCA 49.
[35]Ibid 465 [1], 477 [36].
[36]Ibid 478 [37].
In our view the Crown has done so in this case.
Of the non-exhaustive list of factors relevant to the exercise of the residual discretion in Karazisis[37] the respondent points in particular to delay and the totality principle. The delay in the resolution of this matter is neither unusual nor inordinate. And, despite the clear operation of the principle of totality in this case, the manifest inadequacy of the individual sentences on the incest charges and the orders for cumulation on charges 5, 7 and 8 is such that the interests of justice require the respondent to be resentenced.
[37]Karazisis, 658 [104].

Conclusion

We would set aside the sentences on charges 3, 5, 7 and 8 and the orders for cumulation on charges 5, 7 and 8. We would re-sentence the respondent as set out in the table below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment M11692573
1	Produce Child Abuse Material[38]	25 years	3 years	6 months
2	Distribute Child Abuse Material[39]	10 years	3 years	6 months
3	Sexual Penetration of a Child or Lineal Descendant[40]	25 years	10 years	Base
4	Administration of an Intoxicating Substance for a Sexual Purpose[41]	10 years	2 years	4 months
5	Sexual Penetration of a Child or Lineal Descendant[42]	25 years	8 years	18 months
6	Administration of an Intoxicating Substance for a Sexual Purpose[43]	10 years	2 years	4 months
7	Sexual Penetration of a Child or Lineal Descendant[44]	25 years	8 years	18 months
8	Sexual Penetration of a Child or Lineal Descendant[45]	25 years	7 years	6 months
9	Possession of Child Abuse Material[46]	10 years	2 years	4 months
Total Effective Sentence:		15 years and 6 months’ imprisonment
Non-Parole Period:		12 years
Section 6AAA Statement:		Total Effective Sentence 18 years Non Parole-Period 15 years
Other Relevant Orders: 1. Pursuant to s 6F of the Sentencing Act 1991, offender is sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6, 7, 8, 9. 2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is life.

[38]Contrary to 51C(1) of the Crimes Act 1958.

[39]Contrary to s 51D(1) of the Crimes Act 1958.

[40]Contrary to s 50C(1) of the Crimes Act 1958.

[41]Contrary to s 46(1) of the Crimes Act 1958.

[42]Contrary to s 50D(1) of the Crimes Act 1958.

[43]Contrary to s 46(1) of the Crimes Act 1958.

[44]Contrary to s 50C(1) of the Crimes Act 1958.

[45]Contrary to s 50C(1) of the Crimes Act 1958.

[46]Contrary to s 51G(1) of the Crimes Act 1958.

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[2024] VSCA 321

18 December 2024