Greene (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0113

SHANE GREENE (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	BOYCE and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2024
DATE OF JUDGMENT:	8 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 226
JUDGMENT APPEALED FROM:	DPP v Greene (a pseudonym) [2023] VCC 942 (Judge Ellis)

---

ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Sentence – Leave to appeal – 11 charges relating to sexual offending against child under 16 years – One charge of using carriage service for sexual activity with person under 16 years – One complainant aged 7 to 14 during period of offending – Other complainant aged 12 to 13 years – Complainants related to applicant’s then girlfriend – Total effective sentence of 13 years and 8 months’ imprisonment with non-parole period of 9 years and 2 months – Whether sentence manifestly excessive – Leave to appeal granted – Applicant re-sentenced.

Criminal Procedure Act 2009, s 280(1)(b); Sentencing Act 1991, s 5(2)(b).

Clarkson v The Queen (2011) 32 VR 361; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v McKenzie [2018] VCC 120; Osman v The Queen [2021] VSCA 176; DPP v Hester (a pseudonym) [2022] VCC 121; Lai v The King [2023] VSCA 151.

---

Counsel
Applicant:		Ms E Clark
Respondent:		Ms J Warren
Solicitors
Applicant:	Pica Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

---

BOYCE JA
ORR JA:

On 27 February 2023, the applicant was convicted by a jury after a trial in the County Court of 11 offences contained on indictment M11089304.1A (the ‘State trial indictment’). All offences involved the same complainant. In her reasons for sentence,[1] the sentencing judge gave this complainant the pseudonym ‘Claire Rogers’. ‘Claire’ was born in February 2004. The applicant subsequently pleaded guilty to a single charge of using a carriage service for sexual activity with a person under 16 years on indictment M11089304.1B (the ‘Commonwealth plea indictment’). That offence involved a different complainant. This complainant was the first complainant’s older sister. The sentencing judge gave this complainant the pseudonym ‘Anna Rogers’. ‘Anna’ was born in May 2001.
[1]DPP v Greene (a pseudonym) [2023] VCC 942, [1] (‘Sentencing reasons’).
Following a plea hearing, the applicant was sentenced as follows:

Charge on Indictment	Offence		Max Penalty	Sentence	Cumulation
Indictment M11089304.1A
1	Indecent act with a child under the age of 16[2]		10 years	12 months	3 months
2	Sexual penetration of a child under the age of 16[3]		25 years	6 years and 6 months	2 years and 6 months
3	Indecent act with a child under the age of 16[4]		10 years	6 months	–
4	Indecent act with a child under the age of 16[5]		10 years	9 months	4 months
5	Indecent act with a child under the age of 16[6]		10 years	15 months	5 months
6	Sexual penetration of a child under the age of 16[7]		10 years	5 years	9 months
7	Sexual penetration of a child under the age of 16[8]		10 years	8 years	Base
8	Indecent act with a child under the age of 16[9]		10 years	12 months	3 months
9	Indecent act with a child under the age of 16[10]		10 years	3 months	–
10	Sexual penetration of a child under the age of 16[11]		10 years	5 years	12 months
11	Sexual assault of a child under the age of 16[12]		10 years	6 months	2 months
Total Effective Sentence:		13 years and 8 months’ imprisonment
Non-Parole Period:		8 years and 6 months
Indictment M11089304.1B
1	Use a carriage service for sexual activity with a person under 16 years of age[13]		15 years	1 year and 8 months	Effective cumulation of 8 months upon non-parole period on State sentence
Total Effective Sentence:			20 months’ imprisonment (to be eligible for release on recognizance after serving eight months)
Non-Parole Period:			Release after serving 8 months upon giving security by recognizance of $500 and undertaking to comply with various conditions
Global Total Effective Sentence:			13 years and 8 months’ imprisonment
Global Non-Parole Period:			9 years and 2 months
Pre-Sentence Detention Declared:			100 days
Section 6AAA Statement:			Indictment M11089304.1A: Not applicable Indictment M11089304.1B: 22 months’ imprisonment with release on recognizance after serving 12 months
Other Relevant Orders: 1. Sex Offenders Registration (life) 2. Sentenced as a serious sexual offender on charges 3–11 of Indictment M11089304.1A

[2]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 2006.

[3]Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes Legislation Amendment Act 2010.

[4]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[5]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[6]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[7]Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[8]Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[9]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[10]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[11]Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

[12]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Sentencing Amendment (Sentencing Standards) Act 2017.

[13]Contrary to s 474.25A of the Criminal Code Act 1995 (Cth), as amended by the Crimes Legislation Amendment (Sexual Offences against Children) Act 2010 (Cth).

The applicant seeks leave to appeal against his sentence. A judge of this Court refused the applicant leave to appeal on 24 October 2023.[14] Pursuant to s 315(2) of the Criminal Procedure Act 2009 (‘CPA’), the applicant elects to renew his application for leave.
[14]Greene (a pseudonym) v The King [2023] VSCA 252 (‘Leave reasons’).
The applicant’s sole proposed ground of appeal is in the following terms:
Ground 1: The individual sentences on charges 2, 6 and 7 on Indictment M11089304.1A, orders for cumulation on charges 2, 6 and 10, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars:
The learned sentencing judge gave too much weight to the circumstances of the offending, age of the victim, impact on the victim, and insufficient weight to the age and lack of prior convictions of the applicant, in respect of charge 2;
The learned sentencing judge gave insufficient weight to the maximum penalty and too much weight to the circumstances of the offending, age of the victim, and impact on the victim, in respect of charges 6 and 7;
The learned sentencing judge gave insufficient weight to the principle of totality.
For reasons that follow, we would grant leave to appeal, allow the appeal and re–sentence the applicant.

Circumstances of the offending

The applicant was born in December 1989. In 2010 or 2011 — when he was aged 21 — the applicant met his girlfriend who was then aged 17. The relationship lasted some seven years. Throughout the course of this relationship, the applicant lived with his parents and sisters in the family home. The applicant’s girlfriend lived with her family.
The applicant’s girlfriend was a cousin to the two complainants. Their mothers are sisters. The two families were close.
The circumstances of the applicant’s offending were summarised fully in the leave reasons. It is convenient to set that summary out in full.
Indictment M11089304.1A
Charges 1 and 2
The applicant first met Claire at a family function at [his girlfriend’s] family home between February 2011 and February 2013 when Claire was between 7 and 8 years of age. The applicant approached her in the kitchen and took her to [his girlfriend’s] bedroom. The applicant locked the door, took off Claire’s clothes and started to touch her breast and chest area, telling her ‘you feel so good’ and calling her ‘baby’ (charge 1 — indecent act with a child under 16).
The applicant then got Claire onto [his girlfriend’s] bed, put his hands underneath her tights and underwear and penetrated her vagina with his finger. At trial Claire described this as ‘stingy and uncomfortable’. The applicant’s hand was on Claire’s vagina for about 5 to 10 minutes (charge 2 — sexual penetration of a child under 16).
At one stage the applicant attempted to remove Claire’s tights but was interrupted by a sudden knock on the door. The applicant told Claire to get dressed, helped her do so and instructed her to wait a minute after he had left the room before she did. The applicant also told Claire to tell no one about what had occurred and that it would be all her fault if something happened. Claire complied with the applicant’s instructions.
Charges 3 and 4
In 2015 [the applicant’s girlfriend] held her 21^st birthday party at the home of her aunt, being Claire and Anna’s family home. Claire was then aged 11 years. During the function and after it became dark, Claire went outside and sat by herself. The applicant approached her and, standing next to her, touched her on the side of her groin area, outside her clothing (charge 3 — indecent act with a child under 16).
The applicant then touched Claire on the breast area before she pushed his hand away. The applicant asked Claire to go to the toilet with him. She complied. The applicant sat on the toilet seat and lifted Claire onto his lap before touching her high up on her groin area (charge 4 — indecent act with a child under 16). The applicant was interrupted by a knock on the door. He told Claire to come out five minutes after him. Claire did as she was told.
Charges 5–7
When Claire was either 11 or 12 years old, the applicant — then aged 26 or 27 — asked her mother if Claire could come for a sleepover in his home so that she could see his cats and watch some movies. The applicant led Claire’s mother to believe that [his girlfriend] would be present, along with the applicant’s parents and sisters. The day before the sleepover [the applicant’s girlfriend] told Claire’s mother that she would not be present, but that the applicant’s mother, father and sisters would be.
On the day of the sleepover the applicant drove to Claire’s home, collected her and, rather than return to his own home, drove to a farm. That farm was owned by a friend of [the applicant’s girlfriend’s] family. The applicant had previously stayed there with [his girlfriend] and knew the location of a hidden key. When Claire went to bed, the applicant told her that he needed to sleep in the same room as her ‘for safety reasons’.
Once in the bedroom together, the applicant told Claire to remove her clothes. The applicant touched and kissed her before exposing his penis. He instructed Claire to grab it and move her hand up and down. She complied (charge 5 — indecent act with a child under 16). The applicant also used his fingers to penetrate Claire’s vagina (charge 6 — sexual penetration of a child under 16).
The applicant then positioned himself so that his penis was close to Claire’s vagina. Claire attempted to push him away and told him that she did not want to ‘do this’. The applicant continued to kiss Claire and asked ‘why would you want to stop?’. The applicant then forced his penis into Claire’s vagina — described by Claire at trial as ‘the tiniest bit inside’. Then, for about 30 minutes, the applicant continued to attempt to penetrate Claire’s vagina while she was trying to push away from him. Twice more the applicant managed to penetrate Claire’s vagina to the same extent. After ejaculating the applicant told Claire to get dressed (charge 7 — sexual penetration of a child under 16). That night the applicant slept in the same bed as Claire. The following morning he took her back to her family home.
Charges 8–10
When Claire was aged 11 or 12 years she attended a calisthenics competition held in a theatre in which the applicant worked, operating the lighting. At the conclusion of the competition the applicant took her to a back room. There he removed his pants, exposed his penis and told Claire to touch it (charge 8 — indecent act with a child under 16). He touched Claire’s breast area (charge 9 — indecent act with a child under 16). The applicant then put his finger in Claire’s vagina (charge 10 — sexual penetration of a child under 16).
Charge 11
In 2016 Claire, then aged 14, attended the wake of her grandfather. The applicant attended with [his girlfriend]. At one stage Claire left the function room and sat alone on some steps. The applicant approached and tried to persuade her to go to the toilets, saying ‘it’ll be fun’ in her ear. Claire told him to leave her alone. The applicant put his hand under her dress and to the side of her underwear whilst sitting beside her, but did not manage to touch her vagina (charge 11 — sexual assault of a child under 16).
Indictment M11089304.1B
During the period of the applicant and [his girlfriend’s] relationship, he and Anna were in communication via a number of social media platforms. Between 2014 to 2015, when Anna was 12 or 13 years of age, she was home alone and communicating with the applicant using Google Hangouts. He asked her to remove her clothes and touch herself, saying that it was ‘normal’. Anna complied and filmed herself touching her breasts and vagina whilst the applicant filmed himself masturbating his penis (charge 1 — use carriage service for sexual activity with person under 16).
When Anna turned 14 she received a mobile phone. Thereafter she began communicating with the applicant via Snapchat. When Anna was 17 years of age and after his relationship with [his girlfriend] had ended, the applicant used Snapchat to send Anna pictures of his penis. That behaviour was not the subject of a charge, but was relied upon as context evidence.[15]
[15]Leave reasons, [7]–[19].

The plea

On the plea, the applicant emphasised that he had no prior convictions. Nor, indeed, had the applicant offended subsequently. The applicant accepted that he had offended in breach of trust. It was put that the applicant was still relatively young (21) when he had commenced offending. It was conceded that the ‘farm incident’ — charges 5 to 7 — was the most serious instance of the offending overall.
It was contended by the applicant that he was a socially isolated individual. He had suffered abuse during childhood at the hands of his father. Nevertheless, the applicant’s relationship with his father had — it seems — improved somewhat in recent years. The applicant’s ‘main contact’ was, however, his mother. The applicant had left school in Year 10. He then went to TAFE. He studied at TAFE and obtained qualifications in the technical aspects of theatre production. The applicant ultimately worked in that area.
The applicant relied upon expert psychological evidence;[16] but it was not submitted that the well-known principles described in R v Verdins[17] impacted in any manner upon the present sentencing exercise. The expert psychologist observed that the applicant experienced moderate depression and anxiety associated with his present legal predicament, including his separation from his mother. He spoke of the applicant’s ‘moderate risk’ of ‘sexual recidivism’. The applicant admitted to the expert psychologist that he had in fact committed charges 1 and 2 on the State trial indictment.
[16]A report authored by Dr Mathew Barth.
[17](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
It was submitted that the applicant’s prospects of rehabilitation were ‘good’. This was due to the family support available to the applicant looked at in combination with the applicant’s history of employment, lack of further offending and lack of any cognitive impairment.
Ultimately, the applicant conceded that the sentencing judge was bound to impose a sentence of imprisonment with a non-parole period. The applicant sought a ‘lengthy’ parole period.

The sentencing reasons

The sentencing reasons are summarised — comprehensively — in the leave reasons.[18] It is convenient to set out that summary in full.
[18]Leave reasons, [20]–[34].
The learned sentencing judge commenced her reasons by noting the charges detailed above and their maximum penalties[19] before outlining the circumstances of the offending.[20] The judge noted the denials made by the applicant to police on 26 March 2020 when interviewed in relation to the offending against both complainants.[21]
[19]Sentencing reasons, [1]–[2].
[20]Sentencing reasons, [4]–[44].
[21]Sentencing reasons, [46].
Next the judge summarised the victim impact statements of Claire, Anna and both of their parents[22] and the procedural history of the matter.[23]
[22]Sentencing reasons, [47]–[54].
[23]Sentencing reasons, [55]–[56].
Turning to the personal circumstances of the applicant, the judge noted that he had no prior criminal history[24] and was 33 years old at the time of sentence.[25] Prior to his remand the applicant lived with his parents and, at the time of offending, his sisters also lived in the house. The applicant’s childhood had been very difficult. His father abused alcohol heavily and was both verbally and physically abusive to the applicant, particularly when he was aged 7–12 years.[26] The physical abuse ceased during the applicant’s teenage years but his relationship with his father remained difficult and detached.[27] The applicant was non-verbal until at least 4 years old and he completed an extra year of kindergarten as a result.[28] His limited communication skills made primary school difficult both socially and scholastically, and he was at that stage diagnosed with and medicated for Attention Deficit Disorder (‘ADD’).[29] In secondary school the applicant was subjected to regular bullying and his poor academic performance led to further medical tests. They revealed that he did not have ADD but rather that his comprehension levels were significantly below his age peers. The applicant completed school to Year 10.[30] He then completed a TAFE Certificate IV in Live Theatre Production and later found work as a theatre technician.[31]
[24]Sentencing reasons, [57].
[25]Sentencing reasons, [58].
[26]Sentencing reasons, [59].
[27]Sentencing reasons, [60].
[28]Sentencing reasons, [61].
[29]Sentencing reasons, [62].
[30]Sentencing reasons, [63].
[31]Sentencing reasons, [64].
The applicant’s first and only intimate relationship was with [his girlfriend]. Although he was some four years older than her, she was by far the more mature partner. The relationship ended a short time after [the applicant’s girlfriend] refused the applicant’s proposal of marriage.[32] The applicant has never used illicit substances[33] but, throughout his relationship with [his girlfriend], was a binge drinker of alcohol. For a period following their separation and again after he was charged for these offences, the applicant’s reliance on alcohol increased and he consumed in excess of a bottle of vodka per day.[34]
[32]Sentencing reasons, [65].
[33]Sentencing reasons, [68].
[34]Sentencing reasons, [66]–[67].
The sentencing judge noted that the applicant’s time in custody had been a difficult adjustment. It was his first time out of home. He was in a protection unit. The restrictions consequent upon the COVID-19 pandemic had exacerbated that experience. The applicant did have frequent contact with his parents. He had also undertaken available courses in custody.[35]
[35]Sentencing reasons, [69].
The applicant was assessed by Dr Matthew Barth, a forensic psychologist, following the jury verdict. The judge noted Dr Barth’s findings that the applicant did not meet criteria for intellectual impairment or mood, anxiety or adjustment disorders, but experienced moderate depression and anxiety associated with the proceedings and his separation from his mother. The judge considered Dr Barth’s finding that the applicant’s significant interpersonal problems had culminated in difficulty achieving healthy adult intimacy to be relevant to his moral culpability.[36] The judge also noted the finding that the applicant was likely to internalise the punitive aspects of sentence which could risk a deterioration in his mental state, whilst recording that the applicant had not submitted that the principles in R v Verdins were applicable.[37]
Her Honour then detailed the character references submitted on behalf of the applicant.[38]
Next the sentencing judge detailed the nature and gravity of the offending. Her Honour characterised sexual offences against children as abhorrent and ‘inherently evil and depraved’,[39] violating norms of civilised behaviour and undermining the value the community accords to the lives and wellbeing of young people, more so when it involved a breach of trust reposed in an offender.[40]
Turning to the offending against Claire, the judge termed it ‘extremely serious’. It occurred for the first time, opportunistically and for the applicant’s sexual gratification, when Claire was only 7 or 8 and on the first occasion the applicant met her. That Claire was then under 12 years was a factor of aggravation, reflected in the higher applicable maximum penalty with respect to charge 2. Her Honour also noted that the applicant himself was relatively young — then aged 21 years — and had also later admitted the conduct in charges 1 and 2 to Dr Barth.[41] Charges 3 and 4 were described by the judge as a resurfacing of the applicant’s willingness to take risks and prey upon Claire.[42] The judge described charges 5, 6 and 7 as ‘particularly repugnant and disturbing predatory conduct’, noting the degree of planning and premeditation. Her Honour stated that during the offending the applicant had ejaculated without a condom, behaviour that exposed Claire to the risks of sexually transmitted diseases and, ‘generally speaking’, the possibility of pregnancy. Her Honour regarded this offending as ‘most grave’ and the most objectively serious of all the offending behaviour.[43] Charges 8, 9 and 10 were described as a significant breach of trust, predatory and brazen.[44] Charge 11, occurring at Claire’s grandfather’s wake, was described by the judge as opportunistic and done with little regard to Claire’s feelings and wishes, at a time when the applicant was in his mid-20s.[45] The judge also noted that on occasion, the applicant attempted to normalise his behaviour to Claire and told her that if she told anyone it would be her fault.[46] The fact that the offending spanned some 7 years showed it to be persistent and absent any reflection on the part of the applicant.[47] Further, the breach of trust was amplified by Claire being vulnerable as a result of frequent bouts of serious ill-health, later diagnosed as caused by a rare genetic disease.[48]
The judge described the offending against Anna as serious, ‘not at the lower end’ and an abuse of trust of an adolescent entering her pubescent years in which the applicant attempted to normalise offending behaviour.[49] The applicant later sending her photos of his penis demonstrated that it was not isolated behaviour.[50]
The sentencing judge assessed the applicant’s moral culpability with respect to both complainants as high.[51]
The judge took into account the applicant’s plea of guilty to the charge of using a carriage service for sexual activity with a person under 16, noting that it spared Anna from giving evidence at trial, had utilitarian value, particularly as a result of the COVID-19 backlog, and was evidence of some remorse.[52] However, her Honour found that charges 1 and 2 aside, the applicant’s maintenance of his innocence regarding the offending against Claire meant there was no evidence of contrition in that respect.[53]
Turning to issues of rehabilitation, her Honour noted Dr Barth’s opinion that the applicant’s offending was indicative of significant psychosexual pathology and a grossly distorted concept of sexual boundaries which required participation in a comprehensive sex offender treatment program.[54] Dr Barth assessed the applicant as being [of] no less than a moderate risk of sexual recidivism.[55] The judge concluded that after balancing Dr Barth’s assessment with the applicant’s lack of prior criminal history, employment history, family support, pattern of offending conduct, little remorse and limited insight, his prospects of rehabilitation were reasonable. It was possible that engagement with offence-specific programs could improve those prospects to ‘good’.[56]
The judge then noted applicable legislation. First, as she intended to sentence the applicant to a term of imprisonment on all charges, he fell to be sentenced as a serious sexual offender pursuant to the Sentencing Act 1991 on charges 3 to 11 of indictment M11089304.1A.[57] Second, with respect to indictment M11089304.1B, the judge noted she would regard the factors relevant to sentence in s 16A(2) of the Crimes Act 1914 (Cth) and ss 19(5)–(7) of that Act in considering whether the term of imprisonment for that offence was to be served wholly cumulatively on the state offences.[58] Third, that charge 11 was both a category 1 offence and a standard sentence offence pursuant to the Sentencing Act 1991, meant, respectively, that imprisonment was mandatory and could not be combined with a community correction order and that the standard sentence was 4 years’ imprisonment.[59] In this regard, the judge took the standard sentence into account as a legislative guidepost,[60] and, balanced with other factors, intended to impose a sentence on charge 11 that was lower than the standard sentence.
The judge took into account current sentencing practices[61] and the principle of totality, noting that both the length of the individual sentences and the periods of cumulation had been moderated to avoid a crushing sentence.[62] The Reasons outlined her Honour’s consideration of the need for just punishment, general and specific deterrence, denunciation, community protection and parsimony.[63]
[36]Sentencing reasons, [70].
[37]Sentencing reasons, [71].
[38]Sentencing reasons, [72]–[75].
[39]The sentencing judge referred to Fichtner v The Queen [2019] VSCA 297, [67] (Maxwell P and Kaye JA).
[40]Sentencing reasons, [76].
[41]Sentencing reasons, [77]–[80].
[42]Sentencing reasons, [81].
[43]Sentencing reasons, [82]–[84].
[44]Sentencing reasons, [85].
[45]Sentencing reasons, [86]–[87].
[46]Sentencing reasons, [88].
[47]Sentencing reasons, [89].
[48]Sentencing reasons, [90].
[49]Sentencing reasons, [91].
[50]Sentencing reasons, [92].
[51]Sentencing reasons, [93].
[52]Sentencing reasons, [94]–[96].
[53]Sentencing reasons, [97]–[98].
[54]Sentencing reasons, [99].
[55]Sentencing reasons, [101].
[56]Sentencing reasons, [102]–[105].
[57]Sentencing reasons, [106]–[107].
[58]Sentencing reasons, [109]–[110], [121].
[59]Sentencing reasons, [111]–[112].
[60]The sentencing judge cited Brown v The Queen (2019) 59 VR 462; [2019] VSCA 286.
[61]Sentencing reasons, [120].
[62]Sentencing reasons, [122]–[125].
[63]Sentencing reasons, [126]–[133].

Applicant’s submissions

The applicant submitted that three of the individual sentences — the sentences on charges 2, 6 and 7 — are manifestly excessive.
The applicant framed his submissions by reference to various features of the offending which the respondent had said were aggravating features. These included, relevantly:
(1)the young age of the victim;
(2)the opportunistic nature of the offending (in respect of charge 2);
(3)the motivation of the offending being the applicant’s own sexual gratification;
(4)the applicant’s manipulation of the victim in telling her that if she complained it would be all her fault;
(5)the impact of the offending on the victim.
The applicant also alleged various errors on the part of the sentencing judge.
The applicant argued that the sentence imposed on charge 2 indicates that the sentencing judge gave insufficient weight to the applicant’s relative youth (21) and lack of prior convictions when that offence was committed. It was submitted that the judge also gave too much weight to Claire’s age at the material time. Care had to be taken in determining whether Claire’s age at the time of charge 2’s commission was an aggravating factor in view of the fact that the complainant had to be under 12 in order for the higher maximum penalty to be applicable.
It was contended, also, that it seemed somewhat inconsistent to aggravate the charge 2 offending by dint of its ‘opportunistic’ nature in the way contended for by the respondent, when aggravation was also said by the respondent to flow from the ‘pre-planned’ or ‘premeditated’ nature of the offending the subject of charges 5 to 7.
In respect of the commission of the charge 7 offence, the applicant informed the Court that at trial the three penetrations that occurred during the incident at the farm were treated as a single act.
The applicant submitted that the sentencing judge had overvalued the risk of pregnancy to Claire. It was not clear whether Claire had entered puberty at the relevant time. The applicant had not ejaculated inside Claire’s vagina. The applicant submitted that the risk of pregnancy was therefore ‘low to nil’.
The applicant conceded that it was an aggravating feature that he had asked Claire to keep the offending a secret. As for the impact that the offending had had upon Claire, it was submitted that the precise impact could not reasonably have been foreseen by the applicant. Therefore, it could not properly be seen as an aggravating circumstance per se. Nor could the fact that the overall offending was carried out so as to provide the applicant with ‘sexual gratification’. The applicant’s sexual gratification was no more than an essential aspect of the offending itself.
In contradistinction to other charges, it was submitted that the judge failed to refer to the maximum penalty for either charges 6 and 7. That maximum penalty was 10 years’ imprisonment. The sentencing snapshots published by the Sentencing Advisory Council revealed that for these offences sentences of six years or more were extremely rare.[64]
[64]Sentencing Advisory Council, Sentencing Trends for Sexual Penetration with a Child Aged 12 to 16 in the Higher Courts of Victoria 2011–12 to 2015–16 (Snapshot No 209, May 2017) 3. Of 119 offenders sentenced to a term of imprisonment for a charge of sexual penetration with a child aged 12 to 16: 13 offenders (10.92 per cent) were sentenced to a term of less than 1 year; 20 offenders (16.81 per cent) were sentenced to a term of 1 to less than 2 years; 41 offenders (34.45 per cent) were sentenced to a term of 2 to less than 3 years; 31 offenders (26.05 per cent) were sentenced to a term of 3 to less than 4 years; 10 offenders (8.4 per cent) were sentenced to a term of 4 to less than 5 years; and 4 offenders (3.36 per cent) were sentenced to a term of 5 to less than 6 years. This snapshot was said to be the only snapshot capable of providing relevant and accurate data, because of the different penalty applicable to the offence prior to 2011–12 and after 2015–16.
That the sentence imposed on charge 7 stood at 80 per cent of its applicable maximum penalty made that sentence ‘an outlier by a significant margin’. The applicant submitted that the highest known sentences for the charge 7 offence were two County Court sentences: one, where a penalty of 6 years’ imprisonment was imposed;[65] and another, where a sentence of 6 years and 9 months’ imprisonment was imposed.[66] The sentence of 6 years and 9 months’ imprisonment had been imposed after a trial but — crucially — that sentence related to a ‘course of conduct’ charge encapsulating offending that spanned some 14 months in duration. The victim in that case was aged between nine and 10; the offender was aged between 72 and 73. Similarly, the sentence of six years was also imposed in respect of a ‘course of conduct’ charge; again, this was after a trial.
[65]DPP v McKenzie [2018] VCC 120 (‘McKenzie’).
[66]DPP v Hester (a pseudonym) [2022] VCC 121 (‘Hester’).
The applicant submitted that, hitherto, the highest sentence imposed for a ‘single instance’ commission of the charge 7 offence was a sentence of 5 years’ imprisonment.
As to the orders for cumulation on charges 2, 6 and 10, the applicant argued that they were insufficiently moderated. This meant that the total effective sentence was crushing.
The applicant submitted that the non-parole period of eight years and six months that was ordered in respect of the State trial indictment was manifestly excessive. The further eight months ordered to be served in respect of the sole charge on the Commonwealth plea indictment was not impugned. But a consequence of the manifestly excessive non-parole period ordered on the State trial indictment was that the ‘global’ non-parole period of nine years and two months (ordered across both indictments) was also manifestly excessive.

Respondent’s submissions

The respondent submitted that in respect of the applicant’s commission of charge 2, the judge correctly identified the aggravating features that placed the gravity of the offending and the applicant’s moral culpability for it ‘at the higher end of the scale’. There was evidence of actual harm to the complainant. Her Honour balanced these matters against the applicant’s relative youth, the small degree of remorse evident upon the applicant’s late admissions to Dr Barth considered together with other matters available to the applicant in mitigation. It followed, it was submitted, that the sentence imposed on charge 2 was not manifestly excessive.
The commission of the charge 2 offence was ‘incredibly brazen’, the respondent submitted. This offending occurred on the first occasion that the applicant met the complainant. The complainant was then aged only seven or eight. She had attended a family function; she was entitled to feel safe. The applicant isolated the complainant in order to commit this offence. He only ceased this offending upon interruption. To make matters worse, the applicant told the complainant not to tell anyone about what had happened; he told her that if she did tell anyone there would be consequences and they would be her fault. This offending had clearly ‘left an indelible imprint on the [complainant’s] childhood’. The applicant’s offending was of such seriousness and deliberateness that his relative youth was hardly very mitigatory.
With respect to charges 6 and 7, the respondent argued that the judge correctly identified the many relevant aggravating features. Her Honour had set out the maximum penalties at the commencement of her reasons and the sentences imposed reflected her view that these offences were grave.
As to the applicant’s commission of the charge 7 offence in particular, the respondent submitted that whilst the applicant was to be sentenced as if he had committed only one act of penetration, that act was particularly bad given it was accompanied by a period of about 30 minutes during which the applicant was attempting to penetrate the complainant. Having tricked the complainant into going to the farmhouse, and isolating her at that location, the applicant proceeded to offend against her despite her clear protests.
It was submitted that the planning and deception that accompanied the commission of charges 5 to 7 elevated the applicant’s moral culpability from ‘high to extremely high’. The applicant was 26 or 27, and the complainant 11 or 12, when this offending occurred. There was a significant breach of trust when it came to what happened at the farm. The applicant had misled the complainant and her mother about who else was going to be present. The effect of the offending upon Claire’s mother was profound. She effectively blamed herself for not having adequately protected her daughter.
The respondent submitted that there was no error in how the sentencing judge had treated the risk of pregnancy that arose out of the commission of the charge 7 offence. The applicant had gone ahead and penetrated the complainant ‘presumably not knowing one way or the other’ whether the complainant had gone through puberty. The offending was properly characterised as ‘predatory’ and ‘sinister’; it deserved a penalty that stood at 80 per cent of the applicable maximum penalty.
The respondent informed the Court that — insofar as the charge 7 offence was concerned — other than in this case, no published sentence of 8 years’ imprisonment could be found. Nevertheless, the respondent pointed to mitigatory features that were present in the cases of Hester and McKenzie that were not in existence here.[67]
[67]In Hester, the offender was of advanced age and ill health at the time he was sentenced. In McKenzie, the offender had a developmental learning disability and was effectively illiterate.
It was submitted that it was overly ‘semantic’ to suggest an inherent inconsistency, or tension, in describing the applicant’s initial offending as aggravated due to its ‘opportunistic’ nature, while — at the same time — aggravating the offending at the farm due to it being ‘premeditated’ or ‘pre-planned’. The terms ‘opportunistic’, ‘premeditated’ and ‘pre-planned’ could all serve as consistent descriptions of aggravation.
With respect to totality, the respondent submitted that the sentencing judge was clearly aware of the applicable principles. The individual sentences imposed, and the orders for cumulation made, indicated that those principles had been correctly applied. The respondent submitted that the order for cumulation made in respect of the charge 10 sentence was ‘very modest’.
It was submitted by the respondent that even if the sentence imposed on charge 7 was manifestly excessive and needed to be reduced, there could be no reasonable prospect of a reduction to the total effective sentence.[68] This was so because any reduction to the charge 7 sentence would entail a ‘commensurate rise’ in the orders for cumulation made in respect of the other individual sentences.
[68]See CPA, s 280(1)(b).

Consideration

The necessary analysis may commence with examination of the length of the base sentence imposed on charge 7, and the orders for cumulation. This is so because, as recognised above, even if one of the individual sentences — other than the base sentence — was thought to be infected with error causing that sentence to be manifestly excessive, so long as there was no reasonable prospect of a reduction to the total effective sentence leave to appeal might still be refused.[69]
[69]Ibid.
The fact that the charge 7 sentence proportionally constitutes 80 per cent of the applicable maximum — 10 years — invites scrutiny. The individual orders of cumulation on the State trial indictment seem all to be relatively modest, or low, save perhaps for the cumulation ordered in respect of the charge 2 sentence. That order cumulates two years and six months of an individual term of six years and six months.
The applicant’s proposed ground of appeal particularises contentions of manifest excess only in respect of the individual sentences imposed on charges 2, 6 and 7. The proposed ground impugns the orders for cumulation made only in respect of the sentences imposed on charges 2, 6 and 10.
Charge 7 was an act of penile/vaginal penetration that followed closely upon an act of indecency (the applicant instructing the complainant to put her hand on his penis) as well as an act of digital/vaginal penetration. There was — as the sentencing judge noted — something particularly sinister about this offending. Claire and her mother were tricked in order that Claire would be left isolated and vulnerable. It is helpful to set out precisely what the sentencing judge had to say about this particular aspect of the applicant’s offending, as a judge of this Court did in the leave reasons.
[The applicant] drove Claire to a farm. A farm that was relatively remote, being out of suburban Melbourne, unoccupied and with which she was unfamiliar. Claire was alone with you, and naively waiting for her older cousin to arrive. Having isolated her, you then went on to offend against her whereby she felt she had no option but to comply. This included kissing her, making her touch your penis, and penetrating her vagina with your finger. Despite Claire resisting and telling you that she did not want to do this, your offending culminated in you sexually penetrating her with your penis (after a number of attempts to penetrate), until eventually you ejaculated. You did so without a condom, an aggravating feature of your offending given that you thereby exposed her to the risks of sexually transmitted disease. There is also, generally speaking, a risk of the possibility of pregnancy although I accept that there is no evidence that Claire at that stage had gone through puberty.
Your offending on this occasion was entirely pre-meditated. You violated a child to satisfy your own depraved sexual desires, and with an utter disregard for the impact that this abhorrent behaviour might have had on someone so young during her formative years. There is a sinisterness to the way in which you went about this episode of offending, by isolating Claire, offending against her including sexual penetration, and then sleeping in the bed next to her. It is not difficult to imagine how terrifying this must have been for a child of 11 or 12, particularly given that she had previously been subjected to your sexual advances on other occasions. In doing so, as I have said, you breached the trust placed in you by Claire and her family. I regard this offending as most grave. It is the most objectively serious of the incidences of offending before me, although the first instance is also particularly serious having regard to Claire’s age.[70]
[70]Sentencing reasons, [83]–[84].
We endorse those observations. They fairly summarise the objective seriousness of the applicant’s offending at the farm, in general, and the commission of the charge 7 offence, in particular. Those remarks capture the essence of what the respondent had to say about this offending in submissions before this Court.
There was not a lot that could be said in mitigation of this particular offending. The applicant had no prior convictions; but, by this stage, he was aged 26 or 27 and had already offended against Claire on multiple occasions.
Nevertheless, a sentence of 8 years’ imprisonment is — apparently — the highest imposed for the charge 7 offence, and the highest — by a significant margin — ever imposed for this offence for a single act of penetration.[71] This of course does not, in and of itself, mean that the sentence is manifestly excessive;[72] but it does suggest that the charge 7 sentence is at least an ‘outlier’ when regard is had to current sentencing practices.[73]
[71]The charge 7 offence, of which the applicant was found guilty, was replaced in 2017 by the offence contained in s 49B of the Crimes Act 1958 (‘Sexual penetration of a child under the age of 16’) which carries a maximum penalty of 15 years’ imprisonment.
[72]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 434 [9] (Kiefel CJ, Bell and Keane JJ), 452–4 [79]–[84] (Gageler and Gordon JJ); [2017] HCA 41.
[73]Sentencing Act 1991 s 5(2)(b).
In order to establish that a sentence imposed on the applicant is manifestly excessive it must stand ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’.[74] As has often been observed, this ‘is a stringent requirement, difficult to satisfy’.[75]
[74]Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA). See also Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
[75]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
Taking into account the serious features of the commission of the charge 7 offence, and balancing these features with all that could be said in mitigation favourable to the applicant, we are persuaded that the sentence imposed on charge 7 was manifestly excessive and ought be reduced. We would set aside that sentence and, in its place, impose a sentence of 6 years and 6 months’ imprisonment.
We are not, however, persuaded — again in all the circumstances — that the individual sentences imposed on charges 2 and 6 are manifestly excessive. We would therefore confirm those sentences. None of the other individual sentences on the State trial indictment are impugned; nor is the individual sentence imposed in respect of the sole charge on the Commonwealth plea indictment. We would therefore confirm those sentences as well.
Had we sentenced the applicant at first instance, we may not have structured the orders for cumulation in quite the same manner as the sentencing judge. Nevertheless, we consider that the final result achieved, in terms of those orders, is appropriate.
This results in a total effective sentence of 12 years and 2 months’ imprisonment on the State trial indictment. Having reduced the total effective sentence on the State trial indictment we would, in consequence, set aside the non-parole period ordered on that indictment and in its place impose a non-parole period of seven years and six months.
We have already indicated that we would confirm the sentence imposed by the sentencing judge on the sole charge that is contained on the Commonwealth plea indictment (that is to say, the sentence of 20 months’ imprisonment to be released after eight months upon giving security by recognizance in the sum of $500.00 and to comply with a number of conditions). Like the sentencing judge, we would direct that this sentence commence on the expiration of the new non-parole period to be imposed on the State trial indictment.
It is implicit in what appears above that we reject the respondent’s submission that any reduction in the base sentence (charge 2 of the State trial indictment) ought be accompanied by a commensurate increase in the cumulation ordered on the other individual sentences imposed on that indictment.
This produces a ‘global’ total effective sentence of 12 years and 2 months’ imprisonment with a total effective period of eight years and two months before the applicant may be released on parole (in respect of the State offences) and on a recognizance release order (in respect of the Commonwealth offence).

Conclusion

The application for leave to appeal is granted; the appeal is heard instanter and allowed. The applicant is re-sentenced in accordance with what appears above.
---

[2024] VSCA 226

8 October 2024