Lombard (a pseudonym) v The King

HaSUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0200

MARCUS LOMBARD (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]A pseudonym has been used in place of the name of the applicant in order to protect the identity of the victim of sexual offending.

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	1 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 51
JUDGMENT APPEALED FROM:	[2024] VCC 1499 (Judge Leighfield)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Sexual assault of a child under 16 (3 charges), Sexual penetration of a child under 12 (1 charge) – TES of 7 years 9 months, with NPP of 4 years 6 months – Applicant aged 84 years at sentencing – Sentence imposed following a trial – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 20 May 2024, following a nine day trial in the County Court, the applicant was convicted of three charges of sexual assault of a child under the age of 16 (charges 1, 2 and 3)[2] and one charge of sexual penetration of a child under the age of 12 (charge 4).[3]
[2]Contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3]Contrary to s 49A(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
On 30 September 2024, following a plea hearing on 30 August 2024, the applicant was sentenced as follows:[4]
[4]DPP v [Lombard (a pseudonym)] [2024] VCC 1499 (‘Reasons’).

Charge	Offence	Standard Sentence	Maximum Sentence	Sentence	Cumulation
1	Sexual assault of a child under the age of 16	4 years	10 years	2 years	3 months
2	Sexual assault of a child under the age of 16	4 years	10 years	3 years	6 months
3	Sexual assault of a child under the age of 16	4 years	10 years	2 years and 3 months	3 months
4	Sexual penetration of a child under the age of 12	10 years	25 years	6 years and 9 months	Base
Total Effective Sentence:			7 years 9 months
Non-Parole Period:			4 years 6 months
Pre-sentence detention:			31 days
Other relevant Orders:			Sentenced as a serious sexual offender on charges 3 and 4

The applicant now seeks leave to appeal against sentence on the following proposed ground of appeal:
1.The sentence imposed on charge 4 (6 years 9 months), the total effective sentence (7 years 9 months) and the non-parole period fixed (4 years 6 months) were each manifestly excessive.

Circumstances of the offending

The applicant’s offending occurred on 16 May 2020. At the time of the offending, he was 80 years of age, and the complainant, RM, was ten years of age. RM is the granddaughter of LE, who, at the time of the offending, had been the applicant’s de facto partner for over 20 years. The applicant was considered to be a close member of the family and would see RM frequently. RM referred to him as ‘Nonno’ or ‘Nonno Mark’.[5]
[5]Pseudonymising the applicant’s first name consistently with the pseudonym he has been given in this proceeding so as not risk identifying the victim of his sexual offending.
On the afternoon of 16 May 2020, the applicant and LE went to RM’s home for a family dinner. RM’s mother, father and her two sisters were all present at the dinner. Additionally, two of RM’s aunties and two of her cousins were also present. After they had eaten dinner, the applicant and RM were sitting together on a couch in the loungeroom. One of RM’s sisters was also in the room. While the applicant was sitting on the couch, he touched RM’s chest inside her clothes and under her top (charge 1). He also touched RM’s vaginal area over her clothing (charge 2).
After committing the offending constituting charges 1 and 2, RM got up and went to the bathroom, and everybody had dessert. Following dessert, RM and the other children changed into their pyjamas. RM, one of her sisters and her two cousins returned to the loungeroom, and the applicant and RM again sat next to each other on the couch.
While sitting on the couch on this occasion, the applicant again put his hand inside RM’s top, touched her on the chest and played with her nipple (charge 3). He then put his hands in her pants, under her underpants, and he moved his hand back and forth, touching the area between RM’s anus and vagina. During the course of this touching, the applicant penetrated the outer lips of RM’s vagina with his finger or fingers (charge 4).
Shortly after the offending constituting charges 3 and 4, the applicant and LE went home. Within half an hour of them leaving, and while RM was being put to bed by her mother, RM told her mother what had happened. The police were contacted, and RM made a statement to police by way of VARE, the following day.
On 29 May 2020, police attended at the applicant’s home. He was arrested and taken to the police station, where he was interviewed. He provided an account of the evening and agreed that he had been to RM’s house on the night in question, and had sat on the couch next to her. However, he denied touching RM in any sexual manner.

Reasons for sentence

The judge commenced her reasons for sentence by observing that the applicant had been found guilty by a jury, before setting out the relevant maximum penalties and standard sentences for the applicant’s offences. The judge observed that the offence of sexual penetration of a child under the age of 12 is a category 1 offence under the Sentencing Act 1991, requiring the imposition of an immediate custodial sentence (not combined with a Community Correction Order).[6]
[6]Reasons, [1]–[2].
After summarising the circumstances of the applicant’s offending,[7] the judge noted that, having been interviewed by police in May 2020, it was not until some three years later, in April 2023, that he was charged.[8] The judge noted that the applicant had been committed by way of a straight hand-up brief to the County Court in July 2023, and that he had remained on bail throughout the trial until the plea hearing, when her Honour remanded him into custody.[9]
[7]Ibid [3]–[9].
[8]Ibid [10].
[9]Ibid.
The judge summarised victim impact statements made by the complainant and her mother,[10] before saying that there was no doubt that the applicant’s offending had had a significant impact on the complainant, as well as having been ‘felt by the wider family unit’.[11]
[10]Ibid [11]–[13].
[11]Ibid [14].
Under the heading ‘Gravity of Offending’, the judge made the following findings:
(1)The applicant’s offending was objectively serious, involving a gross breach of trust. The complainant considered the applicant to be her grandfather. She was 70 years younger than the applicant, and was particularly vulnerable given her young age and the position of trust which the applicant held in the family.
(2)While the offending was of relatively short duration on one single evening, was opportunistic rather than pre-planned, and did not involve any threats to the complainant, it took place in the complainant’s family home, which was a place where she was entitled to feel safe.
(3)The offending occurred on two occasions on the same evening with some separation in time between the two. Rather than desisting from further offending after the first incident, the applicant went on to engage in the second incident of offending, which was more serious than the first.
(4)While other offending might involve younger children, more protracted periods of offending, or the use of force, taking into account all of the circumstances of the present case (and, in particular, the breach of trust involved), each of the offences committed by the applicant fell ‘in the middle of the range for this type of offending’.[12]
[12]Ibid [18].
Under the heading ‘Personal Circumstances’, the judge referred to the following matters:
(1)At the time of sentencing, the applicant was 84 years of age and had no prior convictions.
(2)The applicant was born overseas in a small village, and was the sixth of ten children. His family was very close, and he had a strong relationship with both of his parents. He left school at the age of 14 and commenced a bricklaying apprenticeship.
(3)The applicant was 18 when he arrived in Australia. He obtained employment and worked continuously for many years. A reference provided by the managing director of a company where he worked for his last 19 years of employment described the applicant as a model employee who was exceptionally reliable and hardworking.
(4)The applicant had two adult children by his ex-wife, who he divorced in 1995. His second significant relationship was with LE. He was in that relationship for approximately 25 years, with the relationship ending on the day police interviewed him in respect of his offending against the complainant.
(5)References from members of his family tendered on the plea spoke highly of the applicant as a loving and supportive father, grandfather and uncle, who had worked exceptionally hard and was always willing to lend a hand to others. As the judge put it, the applicant was ‘someone of impeccable character with a very solid work history’, who it was apparent that, despite his offending, continued ‘to have the unwavering support of many of [his] family’.[13]
[13]Ibid [19]–[29].
For the purposes of the plea hearing, the applicant was examined on 22 July 2024 by a forensic neuropsychologist, Dr Loretta Evans; and on 19 June 2024 and 3 July 2024, by a consultant geriatrician, Dr Supriya Krishnan. Under the heading ‘Burden of imprisonment — Mental and Physical Health’, the judge referred in detail to the reports of these experts.[14] The judge referred to the medical evidence showing that the applicant had ‘some cognitive inefficiencies in [his] visuo-spatial skills and [his] ability to integrate information’, which symptoms were ‘being exacerbated by an underlying depressive mood disorder that [was then] currently poorly managed’; that ‘there should not be a deterioration of [the applicant’s] cognitive functioning whilst in custody, aside from normal age-related decline’; given the applicant’s underlying mood disorder, he ‘may be at risk of psychological decompensation, particularly if [given] a lengthy custodial sentence’; and that the applicant would require ‘ongoing geriatric monitoring, together with ongoing support of the prison mental health team, throughout any term of imprisonment’.[15]
[14]Ibid [30]–[38].
[15]Ibid [31]–[32].
The judge also noted various physical health issues, including hypertension, gout, hydrocele repair, psoriasis, allergic conjunctivitis, bacterial upper respiratory tract infection, solar keratosis, osteoarthritis, tinea cruris, previous COVID infections, and benign prostatic hyperplasia.[16] The judge accepted that the applicant’s mental and physical health would make any time he spends in custody ‘somewhat more burdensome’ than it would be for a prisoner who was not suffering from any of the applicant’s conditions. The judge also accepted that there was ‘a real risk of imprisonment having a significant adverse effect on [the applicant’s] mental health, given the interplay between his mood disorder and his neurocognitive functioning’. The judge said:
Accordingly, I have given some weight in mitigation of sentence to the impact of your mental and physical health upon you.[17]
[16]Ibid [33].
[17]Ibid [38].
Under the heading ‘Relevance of Advanced Age to Sentence’, the judge said:
Aside from the physical impacts, your advanced age is of itself a significant mitigating factor in sentencing. You are now almost 85 years of age, and, put simply and bluntly, you are at risk of dying in custody. Each year of the sentence of imprisonment I impose upon you will represent a substantial portion of the remaining period of your life. Additionally, as identified in the research into older persons in custody, which was tendered on your behalf on the plea, the custodial environment can be lacking in meaningful programs and age-specific socialisation for those who are of an advanced age.
As has been identified by the higher courts, it is a weighty consideration that an offender may well spend the whole or a very substantial portion of the remainder of their life in custody. Other sentencing considerations may be required to surrender some ground to the need to exercise compassion or mercy to take account of the real prospect that the offender may not live to be released. However, whilst relevant to the exercise of the sentencing discretion, the age and health of an offender are not determinative of the quantum of sentence, and just punishment, proportionality and general deterrence all remain primary sentencing considerations in determining the sentencing disposition. Importantly, the courts have noted that old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.
I have taken these principles into account in sentencing you. As I have already noted I am of the view that your advanced age is a significant mitigating factor in the sentencing synthesis. I am also of the view that your advanced age reduces the weight which needs to be given to specific deterrence in sentencing – even though you have not to date acknowledged your offending conduct. I make it very clear that the sentences I intend to impose in this case would have been longer if you were not of such an advanced age. However, having said that, given the gravity of your offending, the terms of imprisonment I intend to impose are still substantial.[18]
[18]Ibid [39]–[41] (footnote omitted).
Under the heading ‘Delay’, the judge noted that she was sentencing the applicant ‘some four and a quarter years since [he] committed these offences’.[19] After noting that significant delay can be a powerful mitigating factor,[20] the judge said that the delay in this matter had caused the applicant ‘some anxiety’ and had ‘taken a toll on [his] mental health’.[21] The judge observed, however, that during the period of delay, the applicant had shown no acknowledgement of, or remorse for, his offending; nor had he undertaken any specific rehabilitative steps.[22] The judge said that, accordingly, she took into account delay on the basis that the applicant had had ‘the weight of this matter, and the uncertain suspense as to the possible consequences, hanging over [his] head for an extended period of time’.[23]
[19]Ibid [42].
[20]Ibid [43].
[21]Ibid [45].
[22]Ibid.
[23]Ibid [46].
Next, the judge said that, falling to be sentenced as a serious sexual offender on charges 3 and 4, she was required to regard protection of the community from the applicant as the principal purpose for which sentence was to be imposed.[24] After referring to s 6E of the Sentencing Act, which requires every term of imprisonment imposed on a serious offender for a relevant offence to be served cumulatively unless otherwise directed by the court, the judge said that while effect had to be given to that section, the section did not exclude the application of the principles of totality and proportionality.[25] The judge then said:
In the circumstances of this case, I am going to direct that there be other than full cumulation. Whilst I am of the view that there is a need for some cumulation as between each of the charges to reflect the separate conduct encompassed by each charge and the fact that there were two separate incidents, given that all of the offending occurred within a relatively short time frame on the same evening I am of the view that any cumulation imposed should be of modest proportion in order to avoid infringing the principles of totality and proportionality.[26]
[24]Ibid [48].
[25]Ibid [49].
[26]Ibid (footnote omitted).
In the course of discussing the standard sentencing provisions in the Sentencing Act, the judge noted that under s 11A of the Sentencing Act, she was required to fix a non-parole period of at least 60 per cent of the total effective sentence unless she considered it to be in the interests of justice not to do so.[27]
[27]Ibid [50].
Under the heading ‘Other Sentencing Purposes and Principles’, the judge said that, in respect of all four of the applicant’s offences, general deterrence, denunciation and just punishment were ‘all weighty sentencing purposes’.[28] With respect to rehabilitation, the judge said:
Insofar as your prospects of rehabilitation are concerned, I accept that you have no prior criminal history, a very extensive work history, and the strong support of your family – all factors which are usually productive of good prospects of rehabilitation. However, those prospects must be somewhat tempered by reason of the fact that you have – to date – neither acknowledged, nor taken responsibility for, your offending. I do however still propose to give weight to rehabilitation as a sentencing purpose and will be imposing a sentence which will provide you with an opportunity for an extended period on parole.[29]
[28]Ibid [56].
[29]Ibid [57].
Finally, the judge returned to the issue of the standard sentence and non-parole period, acknowledging that the sentence she was about to impose on each charge was lower than the relevant standard sentence. Her Honour then concluded the Reasons by saying:
[H]aving regard to all of the matters I am required to take into account in sentencing you, including those features that weigh in aggravation and mitigation of penalty as outlined in my reasons for sentence, I am of the view that a sentence lower than the standard sentence on each offence is appropriate. I am also of the view that it is in the interests of justice to impose a non-parole period which is slightly less than 60 per cent of the head term taking into account all of the factors in this case and in particular your advanced age at the time of sentencing.
Having said that, I note in sentencing you that I have also borne in mind that you may be required to serve every day of the sentence I impose, and I have taken care to ensure that the sentence imposed is still an appropriate one if you are required to serve every day of it.[30]
[30]Ibid [58]–[59].

Applicant’s submissions

The applicant contended that the sentence imposed on charge 4, the total effective sentence and the non-parole period were all manifestly excessive. In support of that contention, the applicant noted that he was 84 years of age when he was sentenced; had no prior convictions; had committed all of his offending on the one day, when he was 80; had been charged more than two years and ten months later; and had been sentenced approximately four years and four months after he was interviewed. The applicant also relied upon Dr Evans’s assessment that he (the applicant) ‘produced a “patchy” neuropsychological profile that was suggestive of a vascular load’; and Dr Krishnan’s conclusion that the applicant’s cognitive deficits ‘pointed to probable mind neurocognitive disorder’ — the doctor having reported:
From a geriatric medicine perspective, due to his [advanced] age and comorbidities, [the applicant] would require frequent monitoring of physical, mood and cognitive health to enable appropriate and timely treatment optimisation and relevant multidisciplinary input.
More particularly, the applicant submitted that the sentence imposed on charge 4, the total effective sentence and the non-parole period were each manifestly excessive, given the combination of:
•the applicant’s age;
•the absence of prior convictions, in addition to other material before the sentencing judge that illuminated the applicant’s character;
•delay;
•the applicant’s cognitive deficits and comorbidities;
•the hardship in custody arising from the applicant’s mental and physical health;
•the real risk of imprisonment having a significant adverse effect on the applicant’s mental health;
•totality (to the extent that giving it weight did not undermine the serious offender provisions); and
•the statutory prohibition against the imposition of a sentence greater than necessary to achieve the applicable sentencing purposes.[31]
[31]Sentencing Act 1991, s 5(3).

Consideration

As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[32] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[33]
[32]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[33]Ibid.
The offending in this case was very serious. It was an appalling breach of trust for the applicant to sexually assault and sexually penetrate the ten year old complainant in her own home, in a place where she was entitled to feel safe and protected. Had such offending occurred in circumstances where little could be said by way of mitigation, one would have expected sentences no shorter than the relevant standard sentences to be imposed in respect of each offence. That there were significant matters in mitigation, explains what could otherwise only be regarded as the very modest sentences imposed by the judge.
Of the matters the applicant was able to rely on in mitigation of sentence, without deprecating from the significance of all of the other matters relied upon by him, the most significant was the applicant’s advanced years and ill-health. In R v RLP,[34] this Court, when resentencing a 77 year old offender in ill-health, summarised the relevant principles as follows:
1.The age and health of an offender are relevant to the exercise of the sentencing discretion.
2.Old age or ill health are not determinative of the quantum of sentence.
3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[35]
[34](2009) 213 A Crim R 461; [2009] VSCA 271 (Neave and Redlich JJA, and Hollingworth AJA) (‘RLP’).
[35]RLP (2009) 213 A Crim R 461, 476 [39] (footnotes omitted).
Given the applicant’s age and health, as well as the other matters he is able to rely upon in mitigation, it might be thought that the sentence imposed by the judge was a stern one. Properly analysed, however, no such conclusion is reasonably open. To the contrary, the sentence imposed on charge 4, the total effective sentence and the non-parole period, are as modest as can reasonably be expected when one synthesises all of the circumstances of the offending with all of the circumstances of the applicant and the matters he relies upon in mitigation. To have imposed a lesser sentence on charge 4, or a lesser total effective sentence or a lesser non-parole period would have been to risk letting the age and health of the applicant swamp the sentencing synthesis.
Moreover, it is to be remembered that the sentences passed by the judge in this case were imposed following a trial. The applicant was perfectly entitled to run his trial, and to contest the complainant’s evidence and the charges laid against him. In doing so, however, he lost any entitlement he may otherwise have had to the very significant mitigatory benefit he might have received had he taken a different course, and pleaded guilty to the offences with which he was charged.[36]
[36]Cf Hester (a pseudonym) v The King [2023] VSCA 41, [35].
In short, following a contested trial, in detailed and exemplary reasons for sentence, the judge imposed moderate sentences on each of the four charges on which the applicant had been found guilty, made modest orders for cumulation, and arrived at a moderate total effective sentence in all the circumstances. Her Honour then fixed a non-parole period that was less than the 60 per cent prescribed by s 11A(4)(c) of the Sentencing Act. The individual sentences ranged between 50 and 75 per cent of the relevant standard sentences, and between 20 and 30 per cent of the relevant maximum penalties. All of this, in a case where the judge was required to regard protection of the community from the applicant as the principal purpose for which sentence was to be imposed on charges 3 and 4, and cumulation was to be ordered in respect of those sentences unless the court otherwise directed.
When one has regard to all of these matters and the circumstances of the offending and of the applicant, it is simply not open to say that the sentence on charge 4, the total effective sentence or the non-parole period (or any of them) were wholly outside the permissible range of sentencing options available to her Honour. The applicant’s complaints of manifest excess are not reasonably arguable.

Conclusion

The applicant’s application for leave to appeal against sentence must be refused.
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[2025] VSCA 51

1 April 2025