Greene (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0113

SHANE GREENE (A PSEUDONYM)0F[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	24 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 252
JUDGMENT APPEALED FROM:	DPP v Greene (a pseudonym) [2023] VCC 942 (Judge Ellis)

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

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CRIMINAL LAW – Leave to appeal – Sentence – 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 7–14 during period of offending – Other complainant aged 12/13 – Complainants younger cousins of 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 refused.

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Counsel for written submissions
Applicant:	Ms E Clark
Respondent:	Ms M Mahady
Solicitors
Applicant:	Pica Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and summary

On 27 February 2023 the applicant was convicted by a County Court jury of 11 child sexual offences, being all charges on indictment M11089304.1A. All offences involved the same complainant, Claire Rogers1F[2]. He subsequently pleaded guilty to a single charge of using a carriage service for sexual activity with a person under 16 years, being the only charge on indictment M11089304.1B. That offence involved a different complainant, Anna Rogers,2F[3] the older sister of the first complainant.
[2]A pseudonym.
[3]A pseudonym.
Following a plea hearing on 23 May 2023, the applicant was sentenced on 5 and 7 June 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation / Commencement
*Indictment M11089304.1A*
1	Indecent act with a child under 16 years	10 years	12 months	3 months
2	Sexual penetration of a child under 16 years	25 years	6 years and 6 months	2 years and 6 months
3	Indecent act with a child under 16 years	10 years	6 months	N/A
4	Indecent act with a child under 16 years	10 years	9 months	4 months
5	Indecent act with a child under 16 years	10 years	15 months	5 months
6	Sexual penetration of a child under 16 years	10 years	5 years	9 months
7	Sexual penetration of a child under 16 years	10 years	8 years	Base
8	Indecent act with a child under 16 years	10 years	12 months	3 months
9	Indecent act with a child under 16 years	10 years	3 months	N/A
10	Sexual penetration of a child under 16 years	10 years	5 years	12 months
11	Sexual penetration of a child under 16 years	10 years	6 months	2 months
Total Effective Sentence imposed on Indictment M11089304.1A		13 years and 8 months’ imprisonment
Non-Parole Period		8 years and 6 months
*Indictment M11089304.1B*
1	Using a carriage service for sexual activity with a person under 16 years (contrary to s 474.25A of the Criminal Code Act 1995 (Cth)	15 years	1 year and 8 months, to be released on recognisance of $500 after serving 8 months	To commence upon completion of non-parole period of total effective sentence imposed on Indictment M11089304.1A
Total Effective Sentence imposed on Indictment M11089304.1B:		1 year and 8 months’ imprisonment, to be released on recognisance of $500 after serving 8 months
Section 6AAA Statement (Indictment M11089304.1B):		1 year and 10 months, eligible for release on recognisance after serving 12 months
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
Other Relevant Orders: 1. Sentenced as a serious sexual offender on charges 3–11 of Indictment M11089304.1A. 2. Registration and reporting period of life pursuant to s 34 of the Sex Offenders Registration Act 2004.

The applicant seeks leave to appeal on the following grounds:
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:
a.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;
b.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;
c.The learned sentencing judge gave insufficient weight to the principle of totality.
For the reasons that follow, leave should be refused.

Circumstances of the offending

The applicant was born in December 1989. In 2010 or 2011, when he was aged 21 years, the applicant began dating Kathryn Williams3F[4], who was then aged 17 years. That relationship lasted some seven years. Throughout its course, the applicant lived with his own parents and sisters in the family home. Ms Williams lived with her family in their family home.
[4]A pseudonym.
Ms Williams is the cousin of the two complainants – Anna, born in May 2001 and Claire, born in February 2004. Their mothers are sisters and the two families were close.

Indictment M11089304.1A

Charges 1 and 2

The applicant first met Claire at a family function at Ms Williams’ 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 Ms Williams’ 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 Ms Williams’ 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 Ms Williams 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 Ms Williams would be present, along with the applicant’s parents and sisters. The day before the sleepover Ms Williams 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 Ms Williams’ family. The applicant had previously stayed there with Ms Williams 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 Ms Williams. 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 Ms Williams’ 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 Ms Williams 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.

The sentencing reasons

The learned sentencing judge commenced her reasons by noting the charges detailed above and their maximum penalties4F[5] before outlining the circumstances of the offending.5F[6] 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.6F[7]
[5] DPP v Greene (a pseudonym) [2023] VCC 942, [1]–[2] (‘Reasons’).
[6]Reasons, [4]–[44].
[7]Reasons, [46].
Next the judge summarised the victim impact statements of Claire, Anna and both of their parents7F[8] and the procedural history of the matter.8F[9]
[8]Reasons, [47]–[54].
[9]Reasons, [55]–[56].
Turning to the personal circumstances of the applicant, the judge noted that he had no prior criminal history9F[10] and was 33 years old at the time of sentence.10F[11] 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.11F[12] The physical abuse ceased during the applicant’s teenage years but his relationship with his father remained difficult and detached.12F[13] The applicant was non-verbal until at least 4 years old and he completed an extra year of kindergarten as a result.13F[14] 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’).14F[15] 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 10.15F[16] He then completed a TAFE Certificate IV in Live Theatre Production and later found work as a theatre technician.16F[17]
[10]Reasons, [57].
[11]Reasons, [58].
[12]Reasons, [59].
[13]Reasons, [60].
[14]Reasons, [61].
[15]Reasons, [62].
[16]Reasons, [63].
[17]Reasons, [64].
The applicant’s first and only intimate relationship was with Ms Williams. Although he was some four years older than her, she was by far the more mature partner. The relationship ended a short time after Ms Williams refused the applicant’s proposal of marriage.17F[18] The applicant has never used illicit substances18F[19] but, throughout his relationship with Ms Williams, 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.19F[20]
[18]Reasons, [65].
[19]Reasons, [68].
[20]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.20F[21]
[21]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.21F[22] 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 Verdins22F[23] were applicable.23F[24]
[22]Reasons, [70].
[23](2007) 16 VR 240.
[24]Reasons, [71].
Her Honour then detailed the character references submitted on behalf of the applicant.24F[25]
[25]Reasons, [72]–[75].
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 depraved25F[26],’ 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.26F[27]
[26]Her Honour referred to Fichtner v The Queen [2019] VSCA 297, [67].
[27]Reasons, [76].
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.27F[28] Charges 3 and 4 were described by the judge as a resurfacing of the applicant’s willingness to take risks and prey upon Claire.28F[29] 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.29F[30] Charges 8, 9 and 10 were described as a significant breach of trust, predatory and brazen.30F[31] 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.31F[32] 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.32F[33] The fact that the offending spanned some 7 years showed it to be persistent and absent any reflection on the part of the applicant.33F[34] 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.34F[35]
[28]Reasons, [77]-[80].
[29]Reasons, [81].
[30]Reasons, [82]-[84].
[31]Reasons, [85].
[32]Reasons, [86]–[87].
[33]Reasons, [88].
[34]Reasons, [89].
[35]Reasons, [90].
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.35F[36] The applicant later sending her photos of his penis demonstrated that it was not isolated behaviour.36F[37]
[36]Reasons, [91].
[37]Reasons, [92].
The sentencing judge assessed the applicant’s moral culpability with respect to both complainants as high.37F[38]
[38]Reasons, [93].
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.38F[39] 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.39F[40]
[39]Reasons, [94]–[96].
[40]Reasons, [97]–[98].

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.40F[41] Dr Barth assessed the applicant as being no less than a moderate risk of sexual recidivism.41F[42] 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’.42F[43]
[41]Reasons, [99].
[42]Reasons, [101].
[43]Reasons, [102]–[105].
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 Act1991 on charges 3 to 11 of indictment M11089304.1A.43F[44] 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 Act1914 (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.44F[45] Third, that charge 11 was both a category 1 offence and a standard sentence offence pursuant to the Sentencing Act1991, 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.45F[46] In this regard, the judge took the standard sentence into account as a legislative guidepost46F[47], and, balanced with other factors, intended to impose a sentence on charge 11 that was lower than the standard sentence.
[44]Reasons, [106]–[107].
[45]Reasons, [109]–[110], [121].
[46]Reasons, [111]–[112].
[47]Her Honour cited Brown v The Queen (2019) 59 VR 462.
The judge took into account current sentencing practices47F[48] 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.48F[49] The Reasons outlined her Honour’s consideration of the need for just punishment, general and specific deterrence, denunciation, community protection and parsimony.49F[50]
[48]Reasons, [120].
[49]Reasons, [122]–[125].
[50]Reasons, [126]–[133].

Applicant’s submissions

The applicant argued that three of the individual sentences — the sentences on charges 2, 6 and 7 — are manifestly excessive.
The applicant argued that the sentence imposed on charge 2 indicates that the judge gave insufficient weight to the applicant being aged 21 years, a young offender, and having no prior convictions. The judge also gave too much weight to Claire’s age, evidenced through multiple references to her then age and the judge’s description of the incident leaving an indelible imprint on her childhood.
In describing the offending relevant to charge 7, the applicant argued that the judge referred to the risk of pregnancy although Claire’s evidence at trial was that the applicant did not ejaculate inside her vagina. That meant that even if Claire had gone through puberty at the time of the offending, that risk was far less likely to arise.
In contradistinction to other charges, the judge did not refer to the maximum penalty for either charges 6 and 7 as part of the reasoning for the sentences imposed. The maximum penalty for each was 10 years. The Sentencing Snapshots published by the Sentencing Advisory Council show that sentences of six years or more were extremely rare. And, the sentence on charge 7, being 80% of the maximum penalty, makes it ‘an outlier by a significant margin’.
The applicant further argued that the orders for cumulation on charges 2, 6 and 10 are insufficiently moderated such that the total effective sentence is crushing.

Respondent’s submissions

With respect to charge 2, the respondent argued that the judge correctly identified 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 Claire, which was properly considered. Her Honour balanced these matters against the applicant’s relative youth and the small degree of remorse evident from his admission to Dr Barth, together with other matters available to him in mitigation, namely his lack of prior criminal history, strong work history and reasonable prospects of rehabilitation. It followed that the sentence imposed on charged 2 was not manifestly excessive.
With respect to charges 6 and 7, the respondent again argued that the judge correctly identified the many aggravating features of the offending. 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 and the most serious of the offences before her. That view was correct and consistent with current sentencing practices. The sentences imposed were open.
With respect to totality, the respondent submitted that the sentencing judge was clearly aware of the applicable principles and both the individual sentences imposed and the orders for cumulation indicated that those principles were applied correctly.

Analysis

The offending the subject of charge 2 was digital penetration of a 7 or 8 year old girl. It occurred in the bedroom of her cousin, in a house she was familiar with and was entitled to be present in whilst feeling safe. It caused her physical pain at the time and, along with the other offending behaviour of the applicant, has had long term consequences for her. In this regard the applicant’s injunction to ‘tell no one’ because it would be Claire’s fault, was particularly insidious. Claire, a young child, believed what the adult told her.
That the applicant as the adult was, at 21 years of age, relatively young, was expressly taken into account by the sentencing judge. So too were all other factors upon which he relied in mitigation of the sentence. The sentence imposed illustrates a careful balancing of those factors with the gravity of the offending and the applicant’s moral culpability for it. The applicant was a guest at a function in the family home of his girlfriend. There he met Claire for the first time and, for his own sexual gratification, isolated her from her family, invaded the physical sanctity of her body and threatened her with blame if she revealed what had happened. Further, general deterrence and denunciation were of the highest order in the sentencing exercise. The maximum penalty applicable, because of Claire’s young age, was 25 years’ imprisonment. In all the circumstances, a sentence of 6 years and 6 months’ imprisonment was well within range.
With respect to charges 5, 6 and 7 it is convenient to set out in full what the sentencing judge said.
You 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.50F[51]
[51]Reasons, [83]–[84].
Insofar as the applicant submits with respect to charge 6 that ejaculation occurred separately from penetration, thereby reducing the risk of pregnancy, it is clear from her Honour’s remarks that the absence of a condom was aggravating because it exposed Claire to the risk of sexually transmitted disease. The judge’s general reference to ‘a risk of the possibility’ of pregnancy was made cognizant of the evidence in the trial and of the absence of evidence as to whether Claire had gone through puberty. An argument that her Honour impermissibly aggravated the sentence imposed on charge 7 because of a miscalculation as to the degree of risk of pregnancy cannot be sustained.
Further, her Honour’s characterisation of the offending relevant to charges 6 and 7 (and charge 5) as ‘most grave’ was plainly correct.
The judge was aware that the maximum penalty for charges 6 and 7, being charges of sexual penetration of a child under 16 years, was 10 years’ imprisonment. Her Honour set out that maximum penalty, along with the maximum penalties for all other charges, at the commencement of the Reasons. It was unnecessary for her to do so again in order to demonstrate that she had considered that factor as part of her sentencing synthesis. That, in contradistinction, her Honour did so with respect to charge 2 (where the maximum penalty was 25 years’ imprisonment because of Claire’s then age) and charge 11 (as a category 1 offence and standard sentence offence) does not suggest otherwise.
Further, it is clear that the sentencing judge was aware of the need to consider current sentencing practices and in fact did so.51F[52] Her Honour stated that she had read each of the cases referred to by the applicant. Those cases lacked a number of the features of aggravation in the offending subject of charges 6 and 7, including that it occurred some seven years after the first instance of sexual penetration of the victim by the offender, was premeditated and planned to the extent that it involved a misrepresentation to both the victim and the victim’s parents as to the nature and location of the overnight stay and involved taking the victim to a remote location.
[52]Reasons, [120].
In considering current sentencing practices the judge correctly stated that each case must turn on its own facts and that such practices are only one factor in the sentencing synthesis. And, as was made plain in Director of Public Prosecutions v Dalgliesh (a pseudonym)52F[53] neither do they fix the boundaries of the appropriate range.
[53](2017) 262 CLR 428, 454 [83] (Gageler and Gordon JJ); [2017] HCA 41.
In all the circumstances, it is not reasonably arguable that the individual sentences imposed on charges 6 and 7 are manifestly excessive.
Turning to the issue of totality, the sentencing judge clearly explained how she intended to apply the principles. There is nothing in the orders for cumulation on charges 2, 6 and 10 on the base sentence on charge 7 that indicates that her Honour misapplied those principles. Further, given the gravity of the applicant’s offending, the global effective sentence is far from crushing.

Conclusion

The application for leave to appeal must be refused.
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[2023] VSCA 252

24 October 2023