Gilmore (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0231

TYRONE GILMORE (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	20 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 98
JUDGMENT APPEALED FROM:	[2023] VCC 2247 (Judge Chettle)

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

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CRIMINAL LAW – Sentence – Charges concerning child abuse material and child sexual offending – Whether judge gave sufficient weight to principle of totality – Whether judge gave sufficient weight to applicant’s youth – Application for leave to appeal refused.

R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43 considered.

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Counsel
Applicant:		Ms E Clark with Ms L Bull
Respondent:		Ms E Allan
Solicitors
Applicant:	Docherty Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 1 November 2023 the applicant pleaded guilty to 12 charges concerning child abuse material and child sexual offending. On 24 November 2023 he pleaded guilty to one related summary offence. On the same day the applicant was sentenced for all charges as set out in the table below.[1]
[1]DPP v Gilmore (a pseudonym) [2023] VCC 2247 (‘Sentencing reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Possess child abuse material	10 years’ imprisonment	2 years’ imprisonment	6 months
2	Use carriage service to access child abuse material	15 years’ imprisonment	3 years’ imprisonment	Nil
3	Produce child abuse material	10 years’ imprisonment	2 years’ imprisonment	6 months
4	Possess child abuse material	10 years’ imprisonment	2 years’ imprisonment	3 months
5	Possess child abuse material	10 years’ imprisonment	18 months’ imprisonment	3 months
6	Produce child abuse material	10 years’ imprisonment	2 years’ imprisonment	6 months
7	Sexual assault of a child under 16	10 years’ imprisonment (Standard Sentence: 4 years)	3 years’ imprisonment	6 months
8	Sexual penetration of a child under 12	25 years’ imprisonment (Standard Sentence: 10 years)	9 years’ imprisonment	Base
9	Sexual activity in the presence of a child under 16	10 years’ imprisonment (Standard Sentence: 4 years)	3 years’ imprisonment	6 months
10	Sexual assault of a child under 16	10 years’ imprisonment (Standard Sentence: 4 years)	18 months’ imprisonment	6 months
11	Sexual assault of a child under 16	10 years’ imprisonment (Standard Sentence: 4 years)	9 months’ imprisonment	Nil
12	Sexual activity in the presence of a child under 16	10 years’ imprisonment (Standard Sentence: 4 years)	3 years’ imprisonment	6 months
Related Summary Offence
110	Contravene conduct condition of bail	3 months’ imprisonment or 30 penalty units	2 months’ imprisonment	Nil
Total Effective Sentence:		13 years’ imprisonment
Non-Parole Period:		9 years
Pre-sentence Detention Declared:		435 days
Section 6AAA Statement:		18 years’ imprisonment with a non-parole period of 13 years
Other Relevant Orders: Pursuant to the Sex Offenders Registration Act 2004, the length of the reporting period is life. A disposal order was made for green vegetable matter.

The applicant seeks leave to appeal against his sentence on two grounds, namely:
(1)The sentencing judge erred in failing to have proper regard to the principle of totality in imposing a sentence of 9 years in relation to charge 8, and ordering that 6 months of each of the sentences imposed on charges 1, 3, 6, 7, 9, 10 and 12 be served cumulatively upon each other and upon charge 8.
(2)The sentencing judge erred in his consideration of the applicant’s youth and application of the principles in Mills[2] and Azzopardi[3] in relation to sentencing young people.
[2]R v Mills [1998] 4 VR 235 (‘Mills’).
[3]Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 (‘Azzopardi’).
For the reasons that follow, leave to appeal should be refused.

Circumstances of the offending

In May 2022 the Victoria Police Joint Anti Child Exploitation Team (JACET) received information that the applicant was uploading child abuse material via Facebook Messenger. On 11 August 2022 police attended the applicant’s residential premises to execute a search warrant. The applicant’s mobile phone was seized along with several other items.
A preliminary analysis of the applicant’s mobile phone at the scene revealed that he had a large number of image and video files saved to his downloads folder which contained male and female children who appeared to be aged between three and seven years old.
In a field interview the applicant made admissions to possessing child abuse material and accessing the internet to obtain it, but denied he possessed it for sexual gratification. He also denied that any of the videos depicted him engaging in the sexual abuse of children.
The applicant was charged and released on bail, conditions of which included that he was not to possess an internet enabled device and was required to notify the informant if he obtained a new phone.
An initial analysis of the child abuse material downloaded on the applicant’s phone identified a series of 48 self-produced videos. These had been created between 19 January 2022 and 8 June 2022. They depicted the applicant and showed that he had personally produced child abuse material by recording his own sexual abuse of two of his nieces, Colette[4], who was three years of age and Tiffany[5], who was seven years of age.
[4]A pseudonym.
[5]A pseudonym.
On 15 September 2022 police returned to the applicant’s premises for the purposes of executing a further search warrant. The applicant was found in possession of an internet enabled mobile phone that he had purchased shortly after his release on bail (charge 110 – contravene conduct condition of bail).
The applicant participated in both a field interview and a formal record of interview. He made admissions to touching his nieces and filming them whilst being sexual towards them, but blamed his conduct on the breakdown of his relationship with his girlfriend in February 2022 and his resulting mental health difficulties. He also claimed that he had been sexually assaulted himself when he was younger and that he had resorted to the offending as a coping mechanism.
On the same day police attended the residence of the applicant’s sister. Tiffany gave a VARE in which she said that the applicant had touched her on numerous occasions.
Charge 1 concerns the applicant’s possession of child abuse material on 11 August 2022 and 15 September 2022 (excluding the videos taken of Collette and Tiffany) and relates to a total of 1,569 video and image files of both category 1 and category 2 classification. These files were downloaded from various sexual child abuse sites by the applicant and depict children being penetrated by adults and other children. These files also included images and videos of Willow Stockton,[6] a 14 year old girl, who had recorded them herself before forwarding them to the applicant via Snapchat and Facebook Messenger.
[6]A pseudonym.
Charge 2 is a rolled-up charge that relates to the applicant’s use of the internet to download child abuse material on 24 separate occasions between December 2021 and August 2022. In total the applicant downloaded 677 images and videos of child abuse material.
Charge 3 is a rolled-up charge that encompasses all of the videos containing child abuse material involving Collette that the applicant personally produced. In total the applicant took 13 videos of Collette on 19 January, 18 February and 3 April 2022. Charge 4 is a rolled-up charge to cover the applicant’s possession of these same 13 videos.
Charge 5 is a rolled-up charge that encompasses the 21 child abuse videos that the applicant possessed of Tiffany, which were made on 19 January, 12 February, 3 April, 9 April, 10 April, 21 April, 16 May, 20 May and 6 June 2022. Charge 6 relates to the applicant’s production of these same 21 child abuse videos.
Charge 7 is a rolled-up charge that covers the seven occasions on 18 February 2022 during which the applicant sexually assaulted Collette. Each of these occasions was recorded by the applicant on video and involves the applicant touching Collette’s vagina (either over her underwear or on her naked vagina) with his fingers.
Charge 8, sexual penetration of a child under 12, is a rolled-up charge consisting of three[7] separate occasions on 18 February 2022 during which the applicant digitally penetrated Collette. In the video depicting the first occasion, the applicant pulled away Collette’s underwear while she was sleeping and forced his fingers and then his thumb into her vagina. In the video depicting the second occasion, the applicant pulled down Collette’s pants while she was sleeping and parted her vagina before exposing his penis and inserting his thumb into her vagina. In the video depicting the third occasion, the applicant moved Collette’s baby drink bottle and pulled her pants down before inserting his fingers into her vagina in a forceful way. That caused her to wake up, grab at the applicant’s hand and run from the bed.
[7]The indictment referred to four separate occasions of digital penetration, but the video file evidence depicted three.
Charge 9 is a rolled-up charge of sexual activity in the presence of a child under 16 and concerns two incidents of offending upon Collette on 18 February 2022. On the first occasion Collette woke to the applicant’s phone light shining on her face. The applicant began masturbating his erect penis in her face. Collette moved away from him and rolled over onto her stomach. On the second occasion the applicant exposed his penis and masturbated above Collette after having pulled the covers off her while she was in bed.
Charge 10 relates to a sexual assault of Colette on 3 April 2022. In the video made by the applicant depicting this offending, he pulled down Collette’s clothing and underwear before touching the outside of her vagina with his fingers. When Collette awoke, the applicant told her that he was looking for a bug.
Charge 11 relates to a sexual assault of Tiffany on 20 May 2022. The applicant recorded a video of Tiffany walking around the house. During the video, the applicant followed her around and exposed his penis. When Tiffany climbed onto the kitchen bench on her knees, the applicant touched her bottom over her clothing with his hand whilst pushing his exposed penis against her left foot.
Charge 12 is a rolled-up charge of sexual activity in the presence of a child under 16 concerning five separate acts on 20 May 2022 involving Tiffany. On each of the five occasions, the applicant exposed his penis and masturbated close to Tiffany, who woke up and told the applicant to let her sleep.

The applicant’s personal circumstances

The applicant was between 18 and 19 years of age at the time of his offending and 20 years old at the time of sentencing.
He was one of five children born to his mother, all of whom had different fathers. The applicant’s mother was a drug user and he was removed from her care when he was six years old. Thereafter he was separated from his siblings and had very limited contact with his mother, who died in 2017.
The applicant used cannabis on a daily basis from the age of 15 and ice when he was in residential care at the age of 16. He left school in Year 10 and worked in a pizza shop for about six months. Thereafter he took up a position with a home maintenance company and maintained that job until the time of his arrest.
A report from Carla Lechner, Clinical Psychologist, was tendered at the plea hearing. The applicant reported to Ms Lechner that he had been sexually abused at a residential unit when he was about seven or eight by a 15 year old girl. He also reported that he had been told that he had been sexually abused on another occasion as a young child, but that he was unsure of the details because he only had vague memories and flashbacks of it.
Ms Lechner gave the opinion that the applicant was potentially able to keep his sexual urges relating to younger children at bay when he was more psychologically stable. This was based on the applicant’s report that he commenced accessing adult pornography but then came to access child pornography ‘while [he was] intoxicated and had a lot going on’.
Ultimately Ms Lechner concluded that the applicant poses a moderate/high risk of contact reoffending and a high risk of reoffending with respect to child abuse material. He exhibits sexual deviance, mental health issues, substance abuse problems and poor interpersonal competence. She opined that the applicant lacks adaptive coping skills and a supportive network, and that his formative years had given rise to symptoms of complex PTSD, including chronically low self-esteem, interpersonal mistrust, avoidance, emotional and behaviour dysregulation, hypervigilance and intrusive thoughts. She also concluded that the applicant suffers from anxiety and his capacity to inhibit his deviant sexual urges is diminished when he is substance affected.
A report from, Shealyn Jeffrey, psychologist, was also tendered. Ms Jeffrey noted that the applicant had commenced treatment with her in February 2019. He was referred to her by Youth Justice for intervention at this time after he had been found in possession of child pornography.[8] Ms Jeffrey said that the applicant’s early development experiences, including his exposure to alcohol and drugs, early sexual experience, and exposure to violence while in the care of his mother, had reinforced his deviant behaviour and distorted sexual attitudes. She noted that the applicant has borderline cognitive function and co-existing complex post-traumatic stress disorder and concluded that he requires psychological intervention with a trauma informed approach.
[8]This was as a result of a Therapeutic Treatment Order imposed in the Children’s Court. The charge that led to that order was not and was not treated by the judge as a prior conviction – Sentencing reasons, [57].

The plea hearing

Counsel for the applicant relied on several matters in mitigation. His plea of guilty was made at the earliest opportunity and had significant utilitarian value, particularly in circumstances where the courts continue to deal with the COVID-19 backlog.[9] Coupled with his admissions to police during numerous interviews, the plea was also said to be indicative of remorse on his part. The applicant’s youth was emphasised notwithstanding the seriousness of the offending.
[9]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’).
By reference to the psychological reports, it was argued that the applicant’s early exposure to alcohol and illicit substances had resulted in his drug addiction, and that this warranted a reduction in the applicant’s moral culpability. Relatedly, the childhood trauma, violence and neglect the applicant had been exposed to was said to enliven the principles in Bugmy.[10] It was also submitted that the applicant’s diagnosis of complex PTSD constituted an impairment in the applicant’s mental functioning that diminished the applicant’s ability to make calm and rational choices at the time of the offending, thus enlivening limbs 3 and 4 of Verdins.[11] Finally, the applicant’s borderline intellectual functioning was argued to be a factor in mitigation.
[10]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[11]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
Counsel for the applicant submitted that the applicant had a limited criminal history and that his prospects of rehabilitation were ‘reasonable’, assuming he received appropriate treatment in custody. It was contended that the principle of totality was important and that it was open to the judge to impose a non-parole period of less than 60 per cent of the head sentence.
During oral submissions counsel for the prosecution submitted that a non-parole period of less than 60 per cent of the head sentence was not appropriate in the applicant’s case taking into account the seriousness of the offending and all other factors.

Sentencing reasons

The judge commenced his Sentencing reasons by summarising the applicant’s offending and assessing the objective seriousness of each charge.[12] The applicant’s personal circumstances and the findings contained in the reports of Ms Lechner and Ms Jeffrey were then detailed.[13]
[12]Sentencing reasons, [7]-[42].
[13]Sentencing reasons, [45]-[60].
The judge accepted that the applicant’s pleas of guilty were entered at an early stage and had spared the victims and their family the trauma of an extended criminal trial. The judge found that the applicant was entitled to a greater discount in light of Worboyes.[14] The judge also accepted that the applicant was remorseful for his offending, albeit that his expressions of remorse had been rigid and formulaic.[15]
[14]Sentencing reasons, [63].
[15]Sentencing reasons, [64].
The applicant’s youth was a significant matter in mitigation, although the judge recognised that the seriousness of the applicant’s offending reduced the impact of this factor to some extent.[16] The judge accepted that the applicant’s diagnosis of complex PTSD would make custody more onerous for him and that his condition may be negatively impacted by his time in custody.[17]
[16]Sentencing reasons, [65].
[17]Sentencing reasons, [67].
The judge found that the principles in Bugmy were applicable and reduced the applicant’s moral culpability to an extent, although noted it was ‘difficult to assess exactly how much’.[18]
[18]Sentencing reasons, [66].
The judge termed the applicant’s offending ‘appalling’ and said that the principles of general deterrence, specific deterrence, denunciation and just punishment were significant factors in sentencing.[19] The submission that a non-parole period of less than 60 per cent of the head sentence should be imposed was rejected.[20]
[19]Sentencing reasons, [69]-[70].
[20]Sentencing reasons, [73].
While noting that all of the applicant’s sexual offending was serious, the judge found that charge 8 represented the most serious offending, which was in the ‘upper mid-level’ of objective seriousness.[21] The judge also took into account the standard sentences of 10 years’ imprisonment on charge 8 and 4 years’ imprisonment on charges 9 and 12 respectively.[22]
[21]Sentencing reasons, [34]-[35].
[22]Sentencing reasons, [14], [37], [42]. Although not specifically referred to by the Judge, it is to be noted that charges 7, 10 and 11 (Sexual assault of a child under the age of 16) each carried a standard sentence of 4 years’ imprisonment pursuant to s 49D(2A) of the Crimes Act 1958.

Ground 1 – Totality

Applicant’s submissions

The applicant argues that the combined consideration of the sentence imposed on charge 8, orders for cumulation on charges 1, 3, 6, 7, 9, 10 and 12, total effective sentence and non-parole period against the whole of the offending, demonstrates the misapplication of the principle of totality.
Specifically with respect to the sentence imposed on charge 8, although it carried a standard sentence of 10 years’ imprisonment and the applicant’s offending on this charge was found to be more serious than a mid-range example, it is submitted that the applicant had powerful factors in mitigation including his youth and personal circumstances.
Given the impugned orders for cumulation, it is argued that the total effective sentence and non-parole period imposed can only be described as ‘crushing’ for an offender of the applicant’s age.

Respondent’s submissions

The respondent contends that the sentence imposed does not suggest the judge misapplied the principles of totality or parsimony. The total order for cumulation of 4 years on top of the base sentence of 9 years on charge 8 demonstrates that the judge properly took into account the principle of totality.
With respect to charge 8, the respondent submits that the sentence of 9 years was a lenient disposition in circumstances where the judge assessed the offending as ‘a serious example of a serious offence’ for a charge carrying a standard sentence of 10 years. The very young age of and distress caused to the victim, the force and persistence used during the offending, the number of penetrations represented in the rolled-up charge and the position of trust of the applicant made the offending constituted by charge 8 very serious.
The respondent also notes that all charges, except for charges 10 and 11, were rolled-up charges encompassing multiple occasions of offending and that three of the charges carried a standard sentence. In light of this, the orders for cumulation are argued to be modest. That the judge appropriately recognised that punishment was warranted for the distinct conduct constituting each charge whilst being careful not to doubly punish the applicant is submitted to be reflected in the structure of the sentence, such as the judge’s decision to make the sentence on charge 2 wholly concurrent.
Finally, the respondent argues that when regard is had to the maximum penalties for each offence and the gravity of the applicant’s offending, including the fact that it was repetitive and involved multiple young victims, it is clear that the judge came to a sentencing outcome that reflected an appropriate balance between these factors and the age and personal circumstances of the applicant.

Analysis

The sentencing task confronting the judge was undoubtedly a very difficult one. In his careful Sentencing reasons and the structure of the sentence, the judge was clearly cognisant of the need to apply the principle of totality. The complaint made under cover of ground 1 is, however, as to a failure to give sufficient weight to totality. To succeed, it must be reasonably arguable that the sentence imposed on charge 8 and the orders for cumulation on charges 1, 3, 6, 7, 9, 10 and 12 were wholly outside the range of sentences open to the judge in the sound exercise of his sentencing discretion.
In arriving at the sentence imposed on charge 8, the judge viewed the videos made by the applicant of the three occasions of his digital penetration of Collette. Given the offence of sexual penetration of a child under 12 carries a standard sentence of 10 years’ imprisonment, the judge, as he was required to do, made an assessment of the relative seriousness of the offence, taking account of only objective factors. The judge found that the offending was significantly more serious than a mid-range example of the offence.[23] The judge immediately continued:
I have, however, taken into account the matters mitigating your offending and in particular, your age and background in arriving at an appropriate sentence for charge 8. As I said, the standard sentence is only one of the relevant sentencing considerations.[24]
[23]Sentencing reasons, [21].
[24]Sentencing reasons, [23].
The offending was of three instances of digital penetration of a three year old child, the niece of the applicant who was in his care at the time. The judge was correct to describe the offending as ‘appalling’ and as significantly more serious than a mid-range example of the offence of sexual penetration of a child under the age of 12. That the sentence imposed was 9 years, being one year less than the standard sentence, illustrates that the judge did give effect to the applicant’s disadvantaged background, his pleas of guilty, remorse, complex PTSD and youth, the latter to the extent available given the seriousness of the offending. The sentence imposed further illustrates that the judge did consider the individual sentence as part of the combined sentencing exercise.
The orders for cumulation made on charges 1, 3, 6, 7, 9, 10 and 12 also demonstrate appropriate consideration by the judge of the principle of totality. Charge 1 concerned over 1,500 video and image files depicting children being sexually penetrated. None of that material related to either Collette or Tiffany. Charge 3 related to 13 videos of child abuse material of Collette made by the applicant on three different dates. Charge 6 related to 21 videos of child abuse material of Tiffany made by the applicant on nine different dates. Charge 7 related to seven occasions of the applicant’s sexual assault of Collete by touching her vagina different from the acts of penetration the subject of charge 8. Charge 9 related to two incidents in which the applicant masturbated over Collette, different from the sexual assaults in charge 7 and the digital penetration in charge 8. Charge 10 involved a further, separate act of sexual assault by the touching of Collette’s vagina. Charge 12 relates to five separate occasions on which the applicant masturbated close to Tiffany, distinct from the subject of charge 6.
These seven charges represented distinct and serious offending warranting some appreciable cumulation of the sentences. The cumulation ordered for each of them was 6 months, meaning that their total cumulative effect was 3 years and 6 months. In all the circumstances that well illustrates the weight the judge gave to the principle of totality. That conclusion is reinforced by the other orders for cumulation or concurrency. Charges 2 and 11 were totally concurrent. Charge 2 had significant overlap with charge 1. Charge 11, although concerning a sexual assault of Tiffany, was a ‘lower mid-level’[25] example. That was in contradistinction to the ‘upper mid-level’[26] example of the sexual assault of Collette the subject of charge 10. Charges 4 and 5 each attracted orders for cumulation of 3 months. Again, these charges had significant overlap with charges 3 and 6.
[25]Sentencing reasons, [40].
[26]Sentencing reasons, [39].
Ground 1 must fail. It is not reasonably arguable that the sentence imposed on charge 8 or the impugned orders for cumulation were wholly outside the range available to the sentencing judge.

Ground 2 – Youth

Applicant’s submissions

The applicant contends that although his offending was serious, it was not a case where there was no realistic prospect of rehabilitation such that the mitigatory consideration of the applicant’s youth could be viewed as all but extinguished.[27] This was particularly so in circumstances where the judge found that the applicant’s prospects of rehabilitation were entirely dependent upon proper completion of the sex offenders’ program and obtaining assistance to deal with his drug abuse issues.
[27]Azzopardi, [44].
The applicant further submits that the judge only had regard to the applicant’s youth in determining the non-parole period. The judge was required to apply the principles relevant to the applicant’s youth to the individual sentences on each charge and orders for cumulation, as well as the non-parole period. In particular, the applicant’s youth was relevant to the assessment of his moral culpability, the need to give primacy to rehabilitation and the impact of adult custody on someone of his age.

Respondent’s submissions

The respondent argues that the judge was cognisant of the importance of the applicant’s youth and referred to this factor as a matter in mitigation on numerous occasions at the plea hearing and in the Sentencing reasons. The seriousness of the offending, particularly on charge 8, meant, however, that the mitigating impact of the applicant’s youth was reduced to some extent. The judge did not consider that the impact was entirely extinguished.
It is submitted that the nature and gravity of the offences, the impact of the offending on the victims, and principles of deterrence, denunciation and community protection rightly occupied prominence in the sentencing exercise and justified a significant period of imprisonment. The judge did not misapply the principles in Mills and Azzopardi and gave the applicant’s youth appropriate weight.

Analysis

The judge made three express references to the applicant’s youth in the Sentencing reasons. These were:
Thirdly and significantly, I take into account your age at the time you offended. You were only 18 or 19 years of age at the time. The seriousness of your offending reduces the impact of your youth as a mitigating factor to some extent. Your youthfulness is clearly a relevant matter when I come to determine the non-parole period for your offending.[28]
…
Your counsel submitted that a non-parole period of less than 60 per cent of the head sentence to be imposed is in the interests of justice in your case. Primarily your counsel relied upon your young age in this regard. Section 11A sub-s(4) of the Sentencing Act requires the court to fix a non-parole of at least 60 per cent of the relevant term if that term is less than 20 years unless the court considers it is the interest of justice not to do so.
In my view the objective seriousness of your offending and in particular that involved in charge 8, is of such gravity and seriousness that it is not in the interests of justice to fix a non-parole period less than the mandated 60 percent minimum.
You committed multiple offences against multiple young victims. I have factored in your youth and background in determining the non-parole period.[29]
[28]Sentencing reasons, [65].
[29]Sentencing reasons, [72]-[74].
Plainly the judge did not regard the mitigatory impact of the applicant’s youth to be extinguished.
Further, that the judge expressly referred to the relevance of the applicant’s youth with respect to the non-parole period does not indicate that the judge did not consider it with respect to the individual sentences and orders for cumulation. Rather, such reference followed a submission by the applicant’s counsel that, because of his youth, the non-parole period should be less than 60 percent of the head sentence. While the judge rejected that submission, he nonetheless made clear that he did give particular weight to the applicant’s youth in arriving at the appropriate non-parole period.
There is nothing in the individual sentences imposed or the orders for cumulation that indicates that the judge failed to give appropriate weight to the applicant’s youth as part of the sentencing exercise. The applicant’s offending was very serious. It involved both online and contact offending. It involved three known victims, two of which were his nieces of extremely tender ages and who were in his care at the time of the offending. There was also a significant amount of child abuse material involving other children. Against the objective gravity of the offending and considering all relevant factors upon which the applicant could call in aid, the sentences imposed were within the range available to the sentencing judge.
Ground 2 must fail.

Conclusion

The application for leave to appeal must be refused.

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[2024] VSCA 98

20 May 2024