Long (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0116

PAUL LONG (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the victim of a sexual offence, this judgment adopts a pseudonym in place of the name of the applicant, as well as other related individuals.

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JUDGE:	ORR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	20 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 15
JUDGMENT APPEALED FROM:	[2024] VCC 311 (Judge D Sexton)

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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 – Application for leave to appeal – Sentence – Incest – Applicant was victim’s grandfather – Applicant 74 years old at time of offending and 76 at time of sentence – Offending led to terminated pregnancy – Applicant had previously offended against victim when she was a child – Applicant showed no remorse – Whether sentence ‘crushing’ due to applicant’s advanced age and ill health – Whether sentence manifestly excessive – Sentence justified in circumstances – Sentence not manifestly excessive – Leave to appeal refused.

DPP v G [2002] VSCA 6; DPP v Talbot(a pseudonym) [2024] VSCA 321; Mohamed v The Queen [2022] VSCA 136; R v AMP [2010] VSCA 48; R v AP [2009] VSCA 249; R v Belbruno (2000) 117 A Crim R 150; R v RLP (2009) 213 A Crim R 461.

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Counsel for written submissions
Applicant:		Ms T Skvortsova
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	Martin Middleton Oates Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA:

The applicant seeks leave to appeal his sentence for two charges of sexual penetration of his lineal descendant.[2] The offending occurred in 2022, when the applicant was 74 years of age. The applicant sexually penetrated his biological granddaughter, Michelle Robinson,[3] in the months prior to and following Michelle’s 19^th birthday.[4]
[2]Contrary to s 50C(1) of the Crimes Act 1958.
[3]A pseudonym.
[4]The sentencing reasons incorrectly record that Michelle was 19 years old throughout the period of offending.
The applicant pleaded guilty to the two charges, one of which was a rolled-up charge. On 21 February 2024, he was sentenced to a total effective sentence of 7 years and 9 months’ imprisonment with a non-parole period of 5 years and 7 months. This comprised a sentence of 6 years and 6 months’ imprisonment on charge 1 and 4 years’ imprisonment on charge 2, with 15 months of the sentence on charge 2 ordered to be served cumulatively upon the sentence imposed on charge 1. The maximum penalty for each offence is 25 years’ imprisonment.
The application for leave to appeal was filed about three and a half months out of time.[5] The applicant therefore seeks an extension of time within which to seek leave to appeal his sentence. There are two proposed grounds of appeal. First, the sentence is said to be a crushing sentence when proper regard is had to the applicant’s advanced age and ill health. Second, the sentence is said to be manifestly excessive.
[5]The reasons for the delay relate to advice obtained from counsel and attempts to secure legal aid funding.
For the reasons that follow, I would refuse the extension of time within which to seek leave to appeal.

Circumstances of the offending

In the period of approximately six years prior to the offending, the applicant and Michelle had been estranged. Their estrangement was the result of earlier offending by the applicant against Michelle. In July 2016, the applicant had been sentenced to 15 months’ imprisonment, with a non-parole period of 8 months, for offences of grooming a child under 14 years for unlawful sexual activity, and indecent assault of a person under 16 years old. The applicant had sent Michelle numerous sexually explicit messages and communications over a six-month period for the purpose of encouraging, procuring and grooming her to engage in sexual intercourse with him. He had also passionately kissed her on the lips when she visited his house when she was 12 to 13 years old.
The applicant’s sentence expired on 22 May 2017.
During the first half of 2022, Michelle re-engaged with the applicant and her grandmother, Bonny Perry.[6]
[6]A pseudonym.
In April 2022, Michelle and her then boyfriend commenced renting a property in Victoria. The applicant helped them move in. The first charge relates to offending that occurred at this address.
On or about 22 April 2022, the applicant engaged in multiple acts of digital and penile vaginal penetration of his granddaughter. On one occasion on or about this date, the applicant drove to Michelle’s house and said to her ‘do you want to go have sex cos I’m horny’. She responded ‘whatever’. Michelle then gave the applicant a Viagra tablet and they both went to the bedroom. The applicant undressed and lay on the bed. He kissed Michelle and digitally penetrated her vagina. He then told Michelle to get on top of him, which she did. The applicant penetrated Michelle’s vagina with his penis. On a separate occasion on or about the same date, the applicant again penetrated Michelle’s vagina with his penis. These three acts of penetration comprise charge 1.
The applicant turned 19 on 25 April 2022. She spent her 19^th birthday at her grandparents’ farm in New South Wales. After this, she started spending time at the farm and occasionally sleeping there overnight. Initially, she slept in a spare bedroom but at some point her grandmother relocated to a caravan on the property and later to a nearby caravan park. After her grandmother left the house, the applicant told Michelle to sleep in his bed with him.
On 16 July 2022, the applicant and Michelle drove to Bendigo in the applicant’s car. They stayed at the Bendigo Motor Inn for the night, before returning home the following day. At the hotel room that night, the applicant attempted to penetrate Michelle’s vagina with his penis but was unsuccessful due to erectile dysfunction. He then began touching Michelle on her vagina and breast, while laying down on the bed. He rubbed Michelle’s vagina with his fingers and introduced his finger into her vagina. This act of penetration comprises charge 2.
At times during this period, the applicant sent Michelle ‘dirty talk’ messages. He bought her a new mobile phone and a car that was worth $13,000.
On 12 September 2022, Michelle disclosed the offending to her mother and grandmother. She and her mother drove to the Swan Hill Police Station. Michelle told police that she had been having sexual intercourse with the applicant for the last five to six months, that she was pregnant, and that she believed the applicant was the father. DNA analysis which was conducted following the subsequent termination of the pregnancy confirmed this to be the case.
The following day, Michelle participated in a VARE[7] at the police station. Michelle stated that the applicant suffered from erectile dysfunction and had commenced taking Viagra to be able to have sex with her. She said that the applicant had assured her that ‘plenty of people around the world do it, like, it’s completely normal, you got nothing to worry about’. He had told her that he loved her and that no one else needed to know about what they were doing. He had also told her that because she had ‘consented’, if she opened her mouth, she would go to jail too, and that she would lose her child.
[7]Video and Audio Recorded Evidence.
Michelle then participated in a pretext telephone call with the applicant, which was recorded. During this call, the applicant displayed what the judge described as a ‘concerning lack of insight’ into his offending.[8] He told Michelle that she should have said no to having sex with him, and that she had wanted it.
[8]DPP v Long (a pseudonym) [2024] VCC 311, [14] (‘Reasons’).
On 26 September 2022, the applicant attended at the Swan Hill Police Station. He told police that he ‘didn’t know it was an offence’ and ‘just thought it was a sin against God’. In a formal interview conducted later that day, the applicant denied all allegations and referred to Michelle as a ‘manipulating bloody little bitch of a thing’ and ‘a thieving little bitch’ who had stolen about $8,000 from him. He said she was ‘demanding’ that they have sex and that although he had ‘mucked’ around with her and grabbed her ‘fanny’, and she would ‘bump his penis’, there was ‘nothing intended by it’.

Sentencing reasons

After outlining the circumstances of the offending, the sentencing judge addressed the impact of the offending on Michelle. Michelle had declined to make a victim impact statement. The judge was nonetheless prepared to presume that Michelle was harmed by the offending. He said that notwithstanding the fact that Michelle was older than many of the incest victims seen in the Court, and there were complex relationship dynamics between Michelle and the applicant, as evidenced in their communications and the pretext call, the applicant had sexually exploited Michelle. He had done so in circumstances where he had already sexually offended against her when she was 12 to 13 years old. In addition, as a result of the offending, Michelle had fallen pregnant, and endured a termination procedure. The applicant’s counsel had conceded that these consequences of the offending would have caused Michelle distress.[9]
[9]Reasons, [4]–[17].
The judge then turned to the nature and gravity of the offending. He noted that the statutory maximum penalty of 25 years’ imprisonment reflected the community’s abhorrence of this type of offending. While the applicant’s conduct did not represent the most serious example of incest, it was still extremely serious offending. His biological relationship with Michelle carried with it a critical component of trust. The applicant had breached that trust by sexually debasing Michelle. His conduct was not isolated, given the multiple acts of penetration.[10]
[10]Reasons, [18]–[19].
The judge described the fact that the applicant’s offending had caused Michelle to fall pregnant, leading to a termination of the pregnancy, as an ‘extremely aggravating feature’ of the offending. The offending was also aggravated by the applicant’s statements to Michelle that if she disclosed what was going on she would go to jail and lose her child. These statements revealed that the applicant appreciated the gravity of his wrongdoing, and that he wanted to avoid detection.[11]
[11]Reasons, [19].
The judge noted that the applicant’s counsel had not submitted that the applicant’s moral culpability was reduced due to any mental impairment, disability or developmental disadvantage. He observed that the applicant had not been deterred from sexually exploiting Michelle by his earlier sentence of imprisonment. He had a continuing sexual interest in Michelle, which he was prepared to act on. The fact that he reoffended against Michelle elevated his moral culpability and increased the need for specific deterrence.[12]
[12]Reasons, [20].
The judge accepted that in incest cases, the age of the victim is often an important indicator of the seriousness of the offending. Michelle was not a child at the time of the offending, and this impacted upon the gravity of the offending and the applicant’s culpability for it. However, the judge nonetheless found the applicant’s level of culpability to be high.[13]
[13]Reasons, [21].
The judge then turned to the applicant’s personal circumstances. He commenced by noting that the applicant was 74 at the time of the offending, and was now aged 76. The applicant’s stepfather had been violent towards him as a child, and towards his mother. The applicant’s education was very limited. He had left school at the age of eight and subsequently worked as a stock handler, a motor mechanic, an opal miner, and in manufacturing and selling charcoal and firewood. He was now semi-retired and receiving an aged pension. He and Ms Perry had four children, one of whom was Michelle’s mother.[14]
[14]Reasons, [22]–[25].
In addition to his prior convictions for offending against Michelle, the applicant had prior matters dating back to when he was 19 years old, and he had been dealt with for dishonesty offences in the late 1960s and 1970s. He had received a short sentence of imprisonment in 1968 for stealing.[15]
[15]Reasons, [26].
The judge recorded that at the initial plea hearing on 8 November 2023, the applicant presented as a man of advanced age with a number of physical ailments, as well as anxiety about the status of his cardiovascular functioning. The applicant reported a history of hypertension, asthma, type 2 diabetes and coronary artery disease, with stent surgery in the right coronary artery in 2002, followed by stent surgery in the left coronary artery in 2012. He was medicated for hypertension and diabetes and there was an indication of current issues in relation to his heart function. Further, he had suffered from a level of depression following the offending and in the context of the pending legal proceedings. However, the judge observed that the applicant did not appear to be ‘completely isolated’, given that both Ms Perry and Michelle’s mother attended court for the plea hearing, and were said by the applicant’s counsel to do so in support of the applicant.[16]
[16]Reasons, [27]–[31].
The judge then turned to mitigatory matters relevant to his sentencing exercise. He referred to the applicant’s early plea of guilty as warranting a discount to his sentence. The applicant had accepted responsibility for his offending, facilitated the course of justice and spared Michelle and other affected persons the extreme stress of a trial. A Worboyes v The Queen[17] discount was also applied in recognition of the applicant’s plea being provided at a time when the Court was dealing with the COVID-19 backlog of cases.[18]
[17](2021) 96 MVR 344; [2021] VSCA 169.
[18]Reasons, [33]–[34].
In response to a submission that the applicant’s plea of guilty demonstrated remorse and therefore warranted a further discount, the judge said there was no evidentiary foundation for any further meaningful discount in relation to remorse. A report of Dr Fiona Best, forensic psychiatrist, was silent on the issue of remorse. The applicant had been dismissive of his granddaughter’s concerns in the pretext call, and had attempted to deflect responsibility for his misconduct. In his interview with police, he had repeatedly denigrated his granddaughter, while denying all allegations.[19]
[19]Reasons, [35].
The judge turned to the relevance and impact of the applicant’s advanced age and ill health. He noted that the day after the initial plea hearing on 8 November 2023, following which the applicant was remanded in custody, he had suffered a heart attack in the Mildura police cells. He was taken to Mildura Base Hospital and then moved to the Alfred Hospital, where he underwent cardiac angiograms, with three stents being inserted. The applicant was discharged the following day and returned to police custody, having been referred for review in four to six weeks, with a plan for 12 months of dual antiplatelet therapy and cardiac rehabilitation. Some weeks later, on 31 December 2023, he was briefly treated in the prison hospital after reporting that he felt dizzy. He subsequently underwent a mental and physical health assessment and referrals were made for various reviews, including a cardiology review and a sleep study.[20]
[20]Reasons, [36]–[38].
The judge noted that the applicant’s counsel had indicated that the applicant’s health conditions were being treated by medication and ongoing review, and that he was currently stable. There was no suggestion that his conditions could not be managed in custody, although they were said to be burdensome and therefore relevant to the sentencing exercise.[21]
[21]Reasons, [39].
The judge described the principles in relation to the impact of advanced age and ill health on sentencing as clear. The age and health of an offender were relevant to the exercise of the sentencing discretion. While not determinative of the quantum of any sentence, advanced age and ill health were weighty considerations when an offender was likely to spend the whole, or a very substantial portion, of the remainder of their life in prison. The judge also observed that other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that an offender may not live to be released and that their ill health will make their period of incarceration particularly onerous. Just punishment, proportionality and general and specific deterrence nonetheless remained primary sentencing considerations. Advanced age and ill health did not justify the imposition of an unacceptably inappropriate sentence.[22]
[22]Reasons, [40]–[41], citing R v RLP (2009) 213 A Crim R 461, 476 [39] (Neave, Redlich JJA and Hollingworth AJA); [2009] VSCA 271 (‘RLP’), itself cited in Fichtner v The Queen [2019] VSCA 297, [89] (Maxwell P and Kaye JA).
The judge observed that the applicant was 76 years of age and clearly in ill health. He said it was reasonable to assume that, given the sentence he was to impose, the applicant would spend at least the majority of his remaining years in prison. He said that he was satisfied that a mitigatory allowance was warranted due to the applicant’s advanced age, in accordance with the principles he had outlined. He was also satisfied that the applicant’s time in custody would represent a greater burden on him by reason of his ill health, warranting a mitigatory allowance. And in light of the applicant’s documented history of depression, and Dr Best’s opinion that a custodial sentence would likely weigh more heavily on the applicant than on a person without such a mental illness or condition, a further mitigatory allowance was made in accordance with the fifth principle set out in R v Verdins.[23] Nevertheless, the applicant’s serious criminality was to be denounced, and the applicant was to be justly punished for it.[24]
[23](2007) 16 VR 269, 276 [32(5)] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 (‘Verdins’). The fifth of the six ways in which the Court of Appeal identified in Verdins that impaired mental functioning can be relevant to sentencing is that the existence of a mental condition at the date of sentencing (or its foreseeable recurrence) may mean that a sentence will weigh more heavily on the offender than it would on a person in normal health.
[24]Reasons, [40], [42].
As to the applicant’s prospects of rehabilitation, the judge noted that an assessment of this matter was particularly difficult given the circumstances of his case. The applicant was now of advanced age, with physical and psychological fragilities. He had pleaded guilty at an early stage, reflecting acceptance of his wrongdoing. But this was not the first time he had sexually offended against his granddaughter, and the offending represented a significant escalation in his criminality some years later. The applicant’s prospects of rehabilitation were speculative, but the judge said that to the extent appropriate, he took into account the need to facilitate the applicant’s rehabilitation.[25]
[25]Reasons, [43]–[44].
The judge considered current sentencing practices, as evidenced in previous sentencing decisions to which he had been referred and in the most recent sentencing snapshot from the Sentencing Advisory Council for the crime of incest. He noted that previous decisions were not binding precedents and that none was, in any event, entirely factually analogous to the applicant’s case.[26]
[26]Reasons, [45]–[46].

Finally, the judge recorded that upon his conviction on charge 1, the applicant fell to be sentenced on charge 2 as a serious sexual offender pursuant to pt 2A of the Sentencing Act 1991. Pursuant to those provisions, protection of the community was to be the principal purpose of the sentence; a sentence that was disproportionate to the gravity of the offence considered in light of its objective circumstances could be imposed; and there was a presumption of cumulation. The judge said that he was satisfied that a degree of cumulation was required in the circumstances of the case, subject to the overarching principle of totality and the need to avoid a crushing sentence, particularly having regard to the applicant’s advanced age and ill health.[27]
[27]Reasons, [47], [50].

Proposed grounds 1 and 2: Advanced age and ill health, manifest excess

It is convenient to deal with the proposed grounds together.

Submissions

In respect of proposed ground 1, the applicant accepts that the judge referred to, and gave some consideration to, his advanced age and ill health. Nevertheless, the applicant submits that when proper regard is had to the principles which apply when sentencing of offenders of advanced age,[28] and to his deteriorating health, the sentence imposed was crushing.
[28]RLP (2009) 213 A Crim R 461, 476 [39] (Neave, Redlich JJA and Hollingworth AJA); [2009] VSCA 271.
The applicant submits that in determining whether the sentence imposed was crushing, the appropriate sentence to consider is the head sentence of 7 years and 9 months’ imprisonment, not the non-parole period of 5 years and 7 months. This is because the non-parole period is the minimum time — barring executive action — that the applicant must serve before being eligible for consideration for conditional release. Any decision whether to grant him conditional release following the expiration of the minimum term of imprisonment set by the Court rests with the Parole Board, not the Court.[29] By the time the head sentence expires, the applicant will be 83 years and 9 months old.
[29]Hunter v The Queen (2013) 40 VR 660, 691 [121] (Priest JA); [2013] VSCA 385.
In respect of proposed ground 2, the applicant submits that his sentence was manifestly excessive given both the matters advanced under cover of proposed ground 1, and the following additional matters:
(a)the discount afforded to him due to COVID-19, including in relation to the utility of his guilty plea;
(b)the fact that he suffered a serious, life-changing medical condition in late 2023, with the Court accepting this meant that the fifth principle in Verdins[30] had been enlivened, in that imprisonment would weigh more heavily on him than a person who had not suffered such a condition;
(c)the principles of totality and parsimony; and
(d)that, notwithstanding that he stood to be sentenced as a serious sexual offender on charge 2, the Crown did not seek a disproportionate sentence.
[30](2007) 16 VR 269; [2007] VSCA 102.
The applicant emphasises that the judge recognised that his offending was not the gravest example of incest that the courts have had to deal with.[31] However, he accepts that it was serious offending, which was aggravated by his relevant prior convictions in respect of the same victim.
[31]Reasons, [18].
In respect of proposed ground 1, the respondent submits that although an offender’s age is a relevant consideration in the sentencing exercise, this was not a case where it was suggested that the applicant’s age meant that imprisonment may affect his health, that he may pose less of a risk to the community, that he may die in prison, or that imprisonment may be more burdensome for him than a younger offender. Nor was it suggested that the applicant was not being adequately cared for in custody. Indeed, when the applicant suffered the heart attack on 9 November 2023, he was treated in custody, including by the insertion of three stents.
In any event, the respondent submits that the applicant committed the offences as an elderly man. Advanced age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[32] Indeed, the objective gravity of an offence may require that an offender spend the remainder of their life in custody.[33] The judge took into account the applicant’s age and health, but identified that just punishment, proportionality and general and specific deterrence remained primary sentencing considerations. The sentence was not crushing when regard is had not only to the applicant’s advanced age but also to the objective gravity of the offending.
[32]RLP (2009) 213 A Crim R 461, 476 [39] (Neave, Redlich JJA and Hollingworth AJA); [2009] VSCA 271.
[33]Holyoak v The Queen (1995) 82 A Crim R 502, 507 (Allen J, Handley JA agreeing at 503).
In respect of proposed ground 2, the respondent submits that the sentence was within sound discretionary judgment. This was not isolated offending. Despite being imprisoned for offending against Michelle when she was aged 12 to 13, the applicant continued to hold a sexual interest in her and reoffended against her six years later.
In addition, the respondent refers to a number of other factors which are said to render the offending particularly grave:
(a)the offending involved a breach of trust;
(b)the applicant groomed Michelle in the lead up to and during the offending by purchasing a phone and car for her, telling her he loved her, and telling her that the offending was normal;
(c)Michelle fell pregnant to the applicant and terminated the pregnancy; and
(d)the applicant had threatened Michelle with jail and the loss of her child if she disclosed the offending.
The respondent also refers to the fact that the applicant blamed Michelle for the offending, by accusing her in the pretext call of ‘stirring him up’ and wanting the sexual contact. The respondent emphasises that in his record of interview, the applicant denied the offending and referred to Michelle as a ‘manipulating bloody little bitch of a thing’ and a ‘thieving little bitch’. These matters are said to demonstrate a lack of remorse, as the judge found,[34] and a high level of moral culpability. The applicant had not taken issue with the judge’s finding that this was ‘extremely serious offending’.[35]
[34]Reasons, [35].
[35]Reasons, [18], [21].
The respondent also emphasises that charge 1 encompassed three occasions of offending, each of which carried a maximum penalty of 25 years’ imprisonment. In circumstances where the offending resulted in a pregnancy, a sentence of 6 years and 6 months’ imprisonment was said to be wholly within range.
In relation to charge 2, the respondent submits that although this charge related to a single instance of digital penetration, the offending occurred after the applicant had unsuccessfully tried to penetrate Michelle with his penis. Further, the applicant stood to be sentenced on this charge as a serious sexual offender, which meant that the judge was required to regard protection of the community as the principal sentencing purpose and there was a presumption of cumulation. In these circumstances, a sentence of 4 years’ imprisonment was wholly within range.[36]

Consideration of proposed ground 1: a ‘crushing’ sentence?

[36]Sentencing Act 1991 ss 6D(a), 6E.

By proposed ground 1, the applicant seeks to characterise his sentence as a ‘crushing’ sentence given his advanced age and ill health. However, even if a sentence can be described as ‘crushing’, in the sense that it ‘induce[s] a feeling of helplessness in an offender and destroy[s] any reasonable expectation of a useful life after their release from custody’, there is no separate sentencing principle prohibiting the imposition of a such a sentence.[37] Rather, a characterisation of a sentence as ‘crushing’ is a particular expression of the fundamental sentencing principle of rehabilitation. That principle requires that the sentence imposed should, so far as possible consistently with the other sentencing purposes to be served, promote the rehabilitation of the offender.[38]
[37]Mohamed v The Queen [2022] VSCA 136, [5]–[6], [76] (Maxwell P, Emerton and Sifris JJA) (‘Mohamed’).
[38]Mohamed [2022] VSCA 136, [6] (Maxwell P, Emerton and Sifris JJA).
The objective of rehabilitation, while central to the sentencing process, is often in tension with other sentencing objectives which must also be served.[39] Just punishment, proportionality and general and specific deterrence are primary sentencing considerations, even where an offender is of advanced age and in ill health.[40]
[39]Mohamed [2022] VSCA 136, [76] (Maxwell P, Emerton and Sifris JJA).
[40]RLP (2009) 213 A Crim R 461, 476 [39] (Neave, Redlich JJA and Hollingworth AJA); [2009] VSCA 271.
In this case, such considerations were particularly significant, given the objective gravity of the offending, the applicant’s prior offending against his granddaughter and his lack of remorse.
As the respondent observes, no challenge is made to the judge’s finding that the applicant’s offending was extremely serious. The applicant took advantage of his granddaughter, a young woman whom he had previously groomed and indecently assaulted when she was a child. Not satisfied with having sexually offended against her as a 12 to 13 year old, and not deterred by the term of imprisonment he served for that offending, the applicant proceeded to escalate his criminality and to reoffend against Michelle on multiple occasions while she was still a teenager.[41] He groomed her again, threatened her, and breached the trust reposed in him as her grandfather. When interviewed by the police, he denigrated Michelle and blamed her for his conduct.
[41]This was not a case where the offences had been committed many years previously and the applicant had since rehabilitated himself: see R v RGG [2008] VSCA 94, [11]–[12] (Neave JA).
An extremely aggravating feature of the offending was that it resulted in a pregnancy, leading Michelle to experience the ordeal of a termination.
The applicant will be close to 84 years old when his head sentence expires. Given his advanced age and range of physical ailments, it may be accepted that it is a real possibility that he will spend the remainder of his life in custody. This is, at least in part, a consequence of the applicant offending at the age of 74 years old, when his health was already compromised and he had undergone various surgeries in response to his impaired cardiovascular function. In any event, advanced age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[42]
[42]RLP (2009) 213 A Crim R 461, 476 [39] (Neave, Redlich JJA and Hollingworth AJA); [2009] VSCA 271.
As this Court said in R v Belbruno:
Age, whether young or old, will, of course, always be a factor relevant to the sentencing discretion, but those of advancing years who commit crimes as serious as these were, cannot expect to escape appropriate punishment by reason of that factor alone.[43]
[43](2000) 117 A Crim R 150, 153 [9] (Winneke P, Callaway JA agreeing at 154, Buchanan JA agreeing at 154); [2000] VSCA 201. The offending in Belbruno was of a different nature: the trafficking of commercial quantities of heroin and cannabis. Nevertheless, the principle also applies in respect of other types of offending.
In R v AMP,[44] the offender had committed a series of sexual offences against children over a period of 50 years. The offender was 71 years old when sentenced, and around the same age when he committed the last of the offences. He received a total effective sentence of 14 years’ imprisonment with a non-parole period of 9 years. In refusing leave to appeal against sentence, this Court referred to the proposition that age alone ‘cannot be permitted to justify the imposition of an unacceptably inappropriate sentence’. The Court also referred to two other cases, RLP[45] and R v AP,[46] in which sexual offenders who were in their late 70s, and in ill health, had nevertheless been sentenced to terms of imprisonment of well over a decade.[47]
[44][2010] VSCA 48.
[45](2009) 213 A Crim R 461; [2009] VSCA 271.
[46][2009] VSCA 249 (‘AP’).
[47][2010] VSCA 48, [50]–[58] (Neave and Redlich JJA).
The case of AP is also instructive. AP sexually abused his daughter from when she was eight years old. He had sex with her on multiple occasions when she was in her 20s. After pleading guilty to 13 charges of sexual offending, AP, who was 77 years old, was sentenced to a total effective sentence of 12 years’ imprisonment with a non-parole period of 6 years and 6 months. This sentence took account of a significant factor in mitigation. There was an unexplained 15-year delay in commencing the investigation of the offending after the victim made her first statement to police, and the Court recognised that if the offending had been investigated promptly, AP would have been a much younger man when faced with prosecution and, ultimately, imprisonment.[48]
[48][2009] VSCA 249, [5]–[6] (Maxwell P and Buchanan JA).
Although no two cases are ever truly alike, these examples illustrate that in instances of serious sexual offending, it may be appropriate to impose a sentence that will cause an offender to spend the whole, or a substantial portion, of the remainder of their life in prison.
To the extent the sentence imposed on the applicant can be described as ‘crushing’, the judge was justified in imposing such a sentence in light of the circumstances of this case.

Consideration of proposed ground 2: manifest excess

A sentence will be manifestly excessive if it is ‘wholly outside the range of sentencing options available’.[49] As this Court has often observed, this is a ‘stringent’ test, which is difficult to satisfy.[50] The applicant must show that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[51] An appellate court must be ‘driven to conclude that there must have been some misapplication of principle’.[52]
[49]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’). See also Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
[50]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[51]Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
[52]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39.
Having regard to the circumstances of this case, including the advanced age and ill health of the applicant, I do not regard the sentence imposed on the applicant to be wholly outside the range of available sentences.
I acknowledge the matters relied upon by the applicant in mitigation, including his early plea of guilty against the backdrop of the COVID-19 pandemic. However, these matters must be balanced against the objective gravity of the offending, the applicant’s prior offending against Michelle and his lack of remorse, as well as the need for just punishment, general and specific deterrence and denunciation of the applicant’s conduct. Given its ‘capacity to erode decency of family life and the trust and confidence of its young victims’, incest is a crime which requires principles of general deterrence, denunciation and protection of young persons to be at the forefront of the sentencing exercise.[53] Offending of this kind, particularly of the gravity and nature seen in this case, must be met with a commensurate sentence.
[53]DPP v G [2002] VSCA 6, [9] (Winneke P, Buchanan JA agreeing at [12], Vincent JA agreeing at [12]), quoted in DPP v Talbot (a pseudonym) [2024] VSCA 321, [53] (Emerton P, Taylor JA and Kidd AJA).
Finally, while considerable care must be taken in relying on statistics that do not differentiate between specific features of either offending or offenders,[54] I note that the most recent sentencing snapshot published by the Sentencing Advisory Council indicates that between 2017–18 to 2021–22, the average term of imprisonment imposed for a charge of incest[55] was 6 years and 7 months, the median term of imprisonment was 6 years, and the most common term of imprisonment was between 6 and 7 years. As for total effective sentences, the median term was 9 years, and the most common term was between 9 and 10 years.[56]
[54]DPP v Currie [2021] VSCA 272, [130] (Beach, McLeish and Walker JJA).
[55]The offence of ‘incest’ is defined for the purpose of the snapshot as encompassing a number of different offences, including the offence in s 50C(1) of the Crimes Act 1958, of which the applicant was convicted.
[56]Sentencing Advisory Council, Sentencing Trends for Incest in the Higher Courts of Victoria 2017–18 to 2021–22 (Snapshot No 284, September 2023) 3–4.
When regard is had to the particular circumstances of this case, including the matters to which I have referred in [59] above, these statistics tend to confirm that the sentences imposed of 6 years and 6 months’ imprisonment on charge 1, 4 years’ imprisonment on charge 2, and the total effective sentence of 7 years and 9 months’ imprisonment, were within the range of sentences available to the judge.
For these reasons, each of the proposed grounds is without merit. I would therefore refuse the application for an extension of time within which to seek leave to appeal.
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[2025] VSCA 15

20 February 2025