Nathan DAVIES (a pseudonym)[1] v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0137

NATHAN DAVIES (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2023
DATE OF JUDGMENT:	18 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 225
JUDGMENT APPEALED FROM:	[2022] VCC 1395 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Multiple charges of using a carriage service to transmit indecent communications to persons under 16 – Multiple charges of using a carriage service to solicit child abuse material – Applicant subject to reporting obligations at time of offending for prior convictions of child sex offences – Applicant failed to report contact with 43 children – Guilty plea – Total effective sentence of 5 years and 3 months’ imprisonment with non-parole period of 3 years and 6 months – Sentencing judge incorrectly considered maximum prescribed penalty for failure to report contact as 10 years’ imprisonment instead of 5 years’ imprisonment – Applicant sentenced to 15 months’ imprisonment for rolled-up charge of failure to report contact – Whether sentencing judge’s error was material and whether a different sentence should be imposed – No reasonable prospect of a lower sentence being imposed – Leave to appeal refused.

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Counsel
Applicant:	Ms A Wong
Respondent:	Ms K Breckweg and Mr P Botros
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Mr S Bruckard, Solicitor for Commonwealth Public Prosecutions

PRIEST JA:

I agree with Macaulay JA, whose reasons for judgment I have had the considerable advantage of reading in draft.

MACAULAY JA:

Between the dates of 24 January and 7 November 2020, the applicant, then aged 24 years,[2] engaged in conversations with 43 different female children between the ages of 12 and 17 years, through the Facebook Messenger app. He did this using two accounts with usernames, ‘Nat Davies’ and ‘Nathan Davies’.[3] During these conversations, the applicant would ask the children their age and whether they had a boyfriend, inform them of his age, and ask whether they liked older men and would date him.
[2]His date of birth is 27 November 1995.
[3]The applicant’s pseudonym has been substituted for the actual usernames.
The applicant had previously been convicted of a registrable offence pursuant to the Sex Offenders Registration Act 2004 (Vic) (‘SORA’) which required him to report to police any contact with children, within 24 hours of that contact, for a period of eight years. The applicant failed to report his online conversations with any of these 43 children, in breach of his SORA reporting obligations. In relation to 25 of the children, beyond the failure to report the contact, no additional offending occurred. In relation to the other 18 children, however, the applicant also transmitted overtly sexualised messages or requested sexualised images of the children giving rise to further offences.
Arising from these events (and others that the applicant voluntarily disclosed), on 26 November 2021, the applicant pleaded guilty to one State charge of failing to comply with reporting obligations.[4] He also pleaded to a number of Commonwealth charges, namely: 10 charges of using a carriage service to transmit indecent communications to a person under 16,[5] seven charges of using a carriage service to solicit child abuse material,[6] one charge of using a carriage service to cause child abuse material to be transmitted to oneself,[7] one charge of using a carriage service to menace,[8] two charges of using a carriage service to cause offence,[9] one charge of possessing child abuse material obtained or accessed using a carriage service,[10] and one charge of using a carriage service to procure a person under 16 years.[11]
[4]Contrary to Sex Offenders Registration Act 2004 (Vic), s 46(1A).
[5]Contrary to Criminal Code (Cth), s 474.27A(1).
[6]Contrary to Criminal Code (Cth), s 474.22(1).
[7]Contrary to Criminal Code (Cth), s 474.22(1).
[8]Contrary to Criminal Code (Cth), s 474.17(1).
[9]Contrary to Criminal Code (Cth), s 474.17(1).
[10]Contrary to Criminal Code (Cth), s 474.22A(1).
[11]Contrary to Criminal Code (Cth), s 474.26(1).
Following a plea in mitigation on 27 July 2022, a County Court judge sentenced the applicant on 24 August 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1 3 6 9 10	Use carriage service to transmit indecent communications to a person under 16	10 years	12 months 12 months 6 months 6 months 12 months
16 17 18 19 20	Use carriage service to transmit indecent communications to a person under 16.	10 years	27 months 27 months 27 months 27 months 27 months	27 months — Base (Cth) to commence at the end of the sentence on charge 2
2	Fail to comply with reporting obligations	5 years	15 months	Base (State)
4 7 8 14	Use carriage service to solicit child abuse material	15 years	12 months 12 months 12 months 12 months
21 23 24	Use carriage service to solicit child abuse material	15 years	36 months 36 months 36 months
5	Use carriage service to cause child abuse material to be transmitted to oneself	15 years	12 months
11	Use carriage service to menace	3 years	8 months
12 13	Use carriage service to menace	3 years	12 months 6 months
15	Possess child abuse material obtained or accessed using a carriage service	15 years	12 months
22	Use carriage service to procure a person under 16 years	15 years	36 months	21 months
State Sentence:		15 months (no non-parole period fixed)
Federal Sentence		4 years’ imprisonment with a non-parole period of 2 years and 3 months
Total Effective Sentence:		5 years 3 months
Non-Parole Period:		3 years 6 months
Section 6AAA Statement:		1 years and 10 months (on charge 2 State offence)
Other Relevant Orders: Life reporting pursuant to section 34 of the Sex Offenders Registration Act 2004 (Vic).

Charges 1, 3, 6, 9 and 10 (transmit indecent communications) and 4, 7, 8 and 14 (solicit child abuse material) related to offending that occurred before the introduction of mandatory minimum sentences on 23 June 2020.[12] Charges 16–20, and 21, 23, and 24, related to offending for the same two offences but committed after that date.[13]
[12]Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act2020.
[13]Section 16AAB of the Crimes Act1914 (Cth) applies mandatory minimum head sentences for certain Commonwealth sexual abuse offences occurring after 23 June 2020, where the offence is a ‘serious offence’ or where the offender has a previous conviction for a child sexual abuse offence. In the present case, these provisions applied to charges 16 to 24 by virtue of the applicant’s previous conviction on 1 February 2019 for using a carriage service to groom a child under 16, contrary to s 474.27 of the Criminal Code (Cth). Each mandatory minimum head sentence was reduced by the maximum available reduction of 25 per cent to take into account the applicant’s plea of guilty pursuant to s 16AAC of the Crimes Act 1914 (Cth).
The applicant seeks leave to appeal against sentence on two grounds:[14] first, that the sentencing judge applied the incorrect maximum penalty for charge 2; and, secondly that the sentence imposed on charge 2 is manifestly excessive having regard to the applicable maximum penalty, the mitigating factors present and current sentencing practices.
[14]The applicant abandoned a third proposed ground of appeal contending that the total effective sentence was manifestly excessive.
The table of sentences appearing above records, correctly, the maximum sentence for a failure to comply with reporting obligations contrary to s 46(1A) of the SORA (charge2) as being a term of 5 years’ imprisonment. In his reasons for sentence,[15] the sentencing judge incorrectly referred to the maximum penalty for that offence as being a term of 10 years’ imprisonment. The respondent concedes that the judge was in error in that regard.
[15]CDPP v Davies (a pseudonym) [2022] VCC 1395 (Judge Lauritsen) (‘Reasons’).
Notwithstanding that error, for the reasons below, I would refuse leave to appeal on each of the proposed grounds of appeal.

Circumstances of the offending[16]

[16]The circumstances of the offending were detailed in an agreed Summary of Prosecution Opening for Plea, exhibited on the plea. What follows is a condensed version of that summary (using acronyms for the names of the child victims to prevent disclosure of their identities).

Between 24 January 2020 and 7 November 2020, the applicant, being a registrable offender, communicated with 43 children aged between 12 and 17 years using various online platforms and text messaging services, without reporting any of those communications to police as required by the SORA (charge 2).
Between 30 January and 22 June 2020, the applicant communicated with complainant SM, a 15 year old female residing in Queensland. The conversation was sexually explicit and many communications were indecent (charge 3). Between 5 February 2020 and 2 April 2020, the applicant solicited child abuse material from SM (charge 4).
Between 24 January and 24 February 2020, the applicant transmitted indecent communications with complainant AE, a 12 year old female residing in Victoria. The applicant received an image from AE and replied ‘you’re sexy’, asking if she would date him (charge 1).
Between 13 February and 18 February 2020, the applicant communicated via text message with complainant CK, a 15 year old female. On 13 February 2020, CK forwarded a close-up image of a female exposing her bra and breasts along with the accompanying message, ‘don’t show anyone’. The applicant asked the size of her breasts and CK responded with an image exposing her breasts. Later that evening at the applicant’s request, CK sent an image of her exposed vagina (charge 5). During this exchange, the applicant sent CK a picture of his erect penis.
Between 18 February and 20 February 2020, the applicant transmitted indecent communications with complainant BI, a 14 year old female residing in Victoria (charge 6). The applicant responded ‘sexy’ to an image sent by BI.
Between 24 February and 15 March 2020, the applicant solicited child abuse material from complainant JE, a 13 year old female residing in Victoria. The applicant ‘asked her to send explicit photos to him’ (charge 7). JE did not send any in response. The applicant continued to give JE compliments and requested photos of her ‘breasts and stuff’, telling her she had a ‘sexy body’.
On 16 March 2020, the applicant solicited child abuse material from complainant LS, a 17 year old female residing in New Zealand. The applicant sent an image of his erect penis to LS and made a video call to her which continued for 3 minutes and 33 seconds. The applicant requested nude images from LS during the call and again via messenger (charge 8).
On 18 March 2020, the applicant transmitted indecent communications to complainant JM, a 13 year old residing in Queensland (charge 9). The applicant requested a picture of JM, responding ‘Ur sesxy’.
Between 18 March and 23 March 2020, the applicant transmitted indecent communications with complainant MH, a 14 year old female residing in New South Wales (charge 10). The applicant requested nude images. He asked if she wanted to see a picture of his penis and commented on its size.
On 2 April 2020, the applicant used a carriage service to menace complainant ND, a female of an unknown age (charge 11).[17] He asked ND if he could be her ‘fuck buddy’ before sending her an image of his face. When she declined, he said ‘I will rape you’.
[17]Along with the offences the subject of charge 12, this offence does not fall into the category of child abuse and exploitation offences.
On 5 April 2020, the applicant used a carriage service to cause offence to 11 adult complainants. The applicant forwarded a video that is approximately 1 minute and 20 seconds in duration, titled ‘I’ve worked out what started the corona virus’. The video depicts an elderly Asian male sitting on the floor with no pants on and holding a chicken between his legs. The male lubricates his penis with his own saliva and continually penetrates the chicken with his penis (charge 12).
On 4 May 2020, the applicant used a carriage service to cause offence to complainant KK, a 17 year old female residing in Queensland. The applicant asked KK for a photo of herself and if she would date him. KK declined. The applicant forwarded a video depicting adult females exposing their breasts and performing sexual acts involving their breasts (charge 13).
Between 10 May and 11 May 2020, the applicant solicited child abuse material from complainant NSEC, a 17 year old female. He requested sexually explicit images from NSEC on numerous occasions (charge 14).
Pausing the narrative of offences here, on 26 April 2020 police were contacted by the Sex Offenders Registry. Police enquiries revealed the applicant was using online accounts which had not been reported in line with his SORA obligations. On 27 May 2020, police executed a search warrant at the applicant’s residence and seized a blue OPPO mobile phone and a Lenovo laptop. The applicant participated in a record of interview. The applicant was charged with failing to comply with his SORA obligations and released.
After analysis of the applicant’s phone on that date it was found to contain child abuse material, namely an image which depicted a female child standing naked in front of a mirror. The child identified was 16 years old, AK. The image was forwarded to the applicant by another user (charge 15).
On 17, 23, 24 and 27 October 2020, the applicant transmitted indecent communications to female complainants’ TB (aged 13 years old), RS (aged 14 years old), AM (aged 15 years old, BB (aged 14 years old) and DW (aged 14 years old) (charges 16‑20). Communications included the applicant responding ‘sexy’ to images of the complainants, as well as requesting sexual intercourse or discussing his penis.
On 1 November and 4 November 2020, the applicant solicited child abuse material from female complainants MC (aged 17 years old), JT (aged 16 years old) and CS (aged 16 years old) all residing in New South Wales (charges 21, 23 and 24). Communications included requesting to see the complainants’ ‘breasts’ and ‘bodies’. He said to JT, ‘will you let me play with ur tits and pussy in bed’. The applicant sent CS an image of his erect penis and asked whether she wanted to suck it.
Between 1 November and 4 November 2020, the applicant procured a child for sexual activity (charge 22). Complainant BK was a 15 year old female residing in Victoria.
This summary completes the outline of the charged offences on the indictment.
At the plea hearing, pursuant to s 16BA of the Crimes Act 2014, the applicant admitted two additional offences that the court could take into account, without convicting him for them, when sentencing him for nominated charged offences. The first was that on 2 November 2020 the applicant solicited child abuse from BK, by stating ‘Can I touch ur tits…show me’ (to be taken into account in relation to charge 22). Secondly, on 6 November 2020, one child abuse image was located on the applicant’s black Telstra ZTE mobile which depicted a female child standing naked in front of a mirror exposing her breasts (to be taken into account in relation to charge 15). The child was identified as 15 year old CK, who had sent the applicant the image on 18 February 2020.[18]
[18]See charge 5.

Arrest and committal

On 6 November 2020, police spoke to the applicant. His black Telstra ZTE mobile phone was found to contain text-based conversations with users believed to be children. The matter was referred to the Joint Anti Child Exploitation Team (JACET) and a further search warrant was executed at the applicant’s residence. Six mobile phones were seized. The applicant participated in a second record of interview.
On 23 February 2021, the applicant was arrested, charged and remanded into custody.
The matter resolved to a plea of guilty on 26 November 2021 after four committal mentions. The plea hearing proceeded on 27 July 2022 and, as stated, he was sentenced on 24 August 2022.

Sentencing remarks

The judge began by outlining the applicant’s criminal history. Between 4 May 2016 and 3 September 2021 the applicant had appeared in a criminal court on eight occasions and was found guilty or convicted of 65 charges, twice being sentenced to imprisonment with the longest sentence being only 90 days. The judge noted the applicant’s conviction of a registrable offence requiring him to report to police for a period of eight years, as mentioned above. That conviction occurred on 1 February 2019 when, among other charges, the applicant was found guilty of a Commonwealth charge of using a carriage service to groom a child for a sexual act.
The judge observed that only one of the many complainants had made a victim impact statement. In it, she described the ‘trust issues, pressure and anxiety and stress’ which had arisen for her from the applicant’s offending.
The judge rehearsed the applicant’s personal circumstances. In summary, the applicant grew up in rural Victoria as one of seven siblings. When the applicant was quite young his father separated from his mother despite continuing to live with her under the same roof for some time. He died whilst the applicant was a teenager. As did other partners of the applicant’s mother, the applicant’s father physically abused him. The applicant reported having been raped within the community many times. He and his siblings were removed from his parents’ care in 2008 after which the applicant lived in and out of residential facilities operated by the Department of Health and Human Services until he was about 17. Following a few years of living again with family, he moved into supported accommodation when he was about 20 where he lived until his arrest and detention in custody.
Next, the judge summarised the applicant’s education history and work capacity. The applicant attended primary and secondary schools in several Victorian rural towns, including a special school for the disabled, and worked at a few jobs after leaving school. He had not worked since 2018. Significantly, he was assessed by a neuropsychologist in 2016 as having a full-scale intellectual quotient of 48, placing him in the category of persons with a moderate intellectual disability. For many years he has received a Disability Support Pension due to his intellectual disability and, since February 2016, has had a guardian and administrator of his financial affairs. He reported a number of occasions of attempted suicide. Use of alcohol and cannabis, especially alcohol, had caused problems for him.
A number of psychological and medical reports were considered by the judge. Mr Jeffrey Cummins, a clinical and forensic psychologist, assessed the applicant on 20 September 2021 as presenting with a moderate-high risk of sexually reoffending. Mr Cummins considered the applicant was intellectually disabled and suffered from a Borderline Personality Disorder and a Major Depressive Disorder of moderate severity, agreeing that his IQ of 48 pointed to a moderate intellectual disability. Dr Ria Zergiotis, a consultant forensic psychiatrist, assessed the applicant on 16 December 2021. The judge noted Dr Zergiotis’s recommendations that the applicant be referred to the Problem Behaviour Program conducted by Forensicare and, when returned to the community, undergo a high level of support and supervision to reduce his risk of reoffending and maximise his overall level of psychosocial functioning. The judge also noted the doctor’s opinion that prison would be more onerous for the applicant than someone without his complex needs due to his intellectual disability and vulnerability to stress and abuse even in a special unit of Port Phillip Prison.

The judge observed that there was a range of disparities between the applicant’s age at the time of offending (24 years) and the ages of his victims (ranging between 12 and 17 years). He accepted that the nature of the applicant’s communications, including the language used, had the potential to corrupt the children. The judge referred to submissions from the Director, quoting from the Explanatory Memorandum to the Bill which introduced the mandatory minimum sentences, to the effect that current sentences had not sufficiently recognised the harm suffered by victims of child sex offences or that the market demand for, and commercialisation of, child abuse material often led to further sexual abuse of children.
Nonetheless, the judge also noted some mitigatory features of the offending. First, although some of the charges involved children exposing parts of their bodies none of the images involved physical harm to them and there was no commercial aspect to the applicant’s activities. The applicant did not attempt to disguise his identity. He acted alone. The judge referred to Mr Cummins’ opinion that the applicant felt the need to relieve his loneliness due to social isolation, boredom and the lack of an intimate partner.
The judge accepted the submission on behalf of the applicant that five of the six propositions stated in R v Verdins[19] were engaged in the applicant’s case, namely principles 1, 3, 4, 5 and 6.[20] The Director conceded their applicability. Owing to the effects of the applicant’s intellectual disability upon his judgment and decision-making capacity, the judge accepted that the applicant’s moral culpability was reduced. He also accepted the submission that, as a sentencing purpose, general deterrence was greatly reduced because few in the community would identify with the applicant owing to the extent of his disability. Additionally, due to his difficulty in accepting responsibility for what he had done and understanding the effect of his actions on the victims, the judge accepted there should be some modification in the sentencing purpose of specific deterrence notwithstanding that the applicant was subject to an existing sentencing measure at the time he committed the relevant offences.
[19](2007) 16 VR 240; [2007] VSCA 102 (‘Verdins’).
[20]Verdins (2007) 16 VR 240, [32] (Maxwell P, Buchanan and Vincent JJA). Those five propositions are: 1. The condition could reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that was so, the condition affected the punishment that was just in all the circumstances; and denunciation was less likely to be a relevant sentencing objective. … 3. Whether general deterrence was to be moderated or eliminated as a sentencing consideration depended upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence was to be moderated or eliminated as a sentencing consideration likewise depended upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health. 6. Where there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment.
Additionally the judge accepted that the principles of Bugmy v The Queen[21] applied to a degree, given the applicant’s profound childhood deprivation and the contribution it made to the applicant’s difficulty with perception, judgment and reasoning ability. Nevertheless, the judge observed that although that circumstance may reduce moral culpability, it may also increase the need to protect the community and found that it did so in the applicant’s case.
[21](2013) 249 CLR 571; [2013] HCA 37.
As for the applicant’s guilty plea, the judge accepted it had been made at an early stage in the prosecution process, thus deserving a greater discount on sentence because it occurred during the COVID-19 pandemic.[22] He treated the applicant’s plea of guilty as evidence of ‘an element of remorse’ despite the applicant’s difficulty in realising the wrongfulness of his actions. Overall, the judge accepted that the guilty plea required a ‘very significant discount’ on the sentences he would otherwise have imposed. The judge also acknowledged that, overall, the applicant’s period on remand was made more difficult due to it occurring during the pandemic.
[22]Worboyes v The Queen [2021] VSCA 169.
The judge considered the applicant’s prospects of rehabilitation to be ‘uncertain’ given Mr Cummins’ assessment, but took into account the prospect that the applicant would receive specific treatment both whilst in prison and upon his release.
Section 16AAB of the Crimes Act 1914 came into force on 23 June 2020 and provides for mandatory minimum sentences for Commonwealth child sexual abuse offences where the person has been previously convicted of a child sexual abuse offence. The mandatory minimum sentence specified under s 16AAB(2) can be reduced by up to 25 per cent under s 16AAC(2)(a) and (3)(a) if the court considers it appropriate taking into account the person’s guilty plea.
In this case, the mandatory minimum sentences under s 16AAB applied to charges 16 to 24 as they were committed after 23 June 2020 and the applicant had previously been convicted on 1 February 2019 of a child sexual abuse offence, namely use a carriage service to groom a person under 16 years of age. The sentencing judge applied the 25 per cent reduction to each of these charges having regard to the applicant’s plea of guilty pursuant to s 16AAC(2)(a) and (3)(a).
Further, pursuant to s 19(5), because the Commonwealth charges were for child sex offences, a presumption of cumulation with each other sentence for child sex offences (both Commonwealth and State) applied. This operates subject to s 19(6) which provides that the presumption of cumulation under subsection (5) does not apply if concurrency would still result in a sentence that was appropriately severe in the circumstances. Section 19(7) requires the court to state its reasons if it departs from the presumption of cumulation.
In accordance with ss 19(6) and (7), the sentencing judge in his oral reasons referred to the totality of the applicant’s circumstances as the reason for departing from the presumption of cumulation under s 19(5) in respect of all the Commonwealth sentences other than for charge 22.
In addition to the prior conviction on 1 February 2019 for using a carriage service to menace and a conviction for grooming a child under 16, the applicant was sentenced on 3 September 2021 to 90 days’ imprisonment for failing to comply with his reporting obligations. This conviction occurred after the relevant offending (2020), but before the plea (2022) and the prosecution submitted it was relevant to any assessment of the applicant’s prospects of rehabilitation.
As can be seen from the table of sentences set out above, the judge sentenced the applicant to 15 months’ imprisonment on charge 15, the only State charge. On charges 16, 17, 18, 19 and 20 he imposed a sentence of 27 months in each case, reflecting the maximum available 25 per cent reduction from the mandatory minimum sentence of 3 years. Likewise, on charges 21, 22, 23 and 24 he imposed a sentence of 36 months’ imprisonment in each case, reflecting the maximum available 25 per cent reduction from the mandatory minimum sentence of 4 years.
The total effective sentence of 5 years and 3 months (63 months) was arrived at by cumulating the 15 months on charge 2, the 27 months on charge 18, and 21 of the 36 months imposed in respect of charge 22. Apart from those 3 sentences, all other sentences were to be served concurrently. The non-parole period of 3 years and 6 months (42 months) was arrived at by the addition of the straight sentence of 15 months on charge 2 followed by a Federal non-parole period of 27 months.
It should be acknowledged that this was a complex sentencing exercise virtue of a combination of factors, including that:
(a)it involved a joint Commonwealth-State indictment;
(b)there were a large number of offences charged (some of which were rolled-up charges);
(c)pursuant to s 16 AB of the Crimes Act1914, other (non-charged) offending was taken into account for sentencing purposes in respect of two charges;
(d)the applicant had prior convictions for some offences or for cognate offending;
(e)mandatory minimum head sentences applied to some, but not all, of the offending after the legislative change that occurred part way through the course of the offending;
(f)each of the State and Commonwealth Acts had its own required sentencing considerations; and
(g)there was a need to separately consider the operation of the two different regimes for cumulation, concurrency and setting non-parole periods and, relatedly, the operation of the principle of totality to the overall sentence.

Applicable principles

There is no dispute that in sentencing the applicant the judge incorrectly referred to the maximum penalty for failing to comply with reporting obligations pursuant to s 46(1A) of the SORA as being 10 years’ imprisonment when in fact it was 5 years’ imprisonment. The error appears to have originated from an incorrect reference in the original Outline of Crown Submissions on the Plea, albeit that the error was corrected in the Amended Outline of Crown Submissions on the Plea. That being the case, an error is established.
The question on this application for leave to appeal is what flows from that error. Before turning to the submissions on each ground, it is useful to refer to some applicable principles.
In respect of the State charge (charge 2), s 5(2)(a) of the Sentencing Act1991, lists the prescribed maximum penalty as a mandatory sentencing consideration.
In R v Beary,[23] Callaway JA stated the relevant principle that applies if a sentencing judge makes a mistake in applying the prescribed maximum penalty:[24]
First, the law is settled in this State that not every mistake as to the maximum penalty vitiates the sentencing discretion. It depends on the circumstances. Secondly, the only possible justification for that view, in the face of s 5(2)(a) of the Sentencing Act, is that, in Mason J’s words, a factor may be so insignificant in a particular case that the failure to take it into account could not have materially affected the decision. Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such a mistake does not re-open the discretion we have to be satisfied that it could not have materially affected the sentence. Of course, even where the discretion is re-opened, the court may be of opinion that no different sentence should be passed.
[23]R v Beary (2004) 11 VR 151; [2004] VSCA 229 (‘Beary’). See also R v Butler [2005] VSCA 293.
[24]Beary (2004) 11 VR 151, 159 [21] (Callaway JA, Buchanan JA agreeing 163, [39]).
A person sentenced for an offence may only appeal to the Court of Appeal against the sentenced imposed if the Court of Appeal grants leave to do so pursuant to s 278 of the Criminal Procedure Act2009. Assuming leave is granted, an appeal can only succeed if the Court of Appeal is satisfied of two things: first, that there was an error in the sentence and secondly that a different sentence should be imposed.[25] Failure on either of those limbs means the Court of Appeal must dismiss the appeal.[26] The need to satisfy the Court of both limbs for a successful appeal has implications for obtaining leave to appeal.
[25]Criminal Procedure Act2009, s 282(1).
[26]Criminal Procedure Act 2009, s 281(2).
Section 280 of the Criminal Procedure Act 2009 provides:
280 Determination of application for leave to appeal under section 278
(1) The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
(2) An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3) On refusing an application by reason of subsection (1)(b), the Court of Appeal may, it if considers it appropriate to do so—
(a) amend the sentence first imposed by substituting a less severe sentence; and
(b) make any other order that the Court of Appeal considers ought to be made.

Ground 1 (error in sentence on charge 2)

Applicant’s submission

The applicant emphasised that s 5(2) of the Sentencing Act 1991 requires that sentencing judges must take into account the maximum penalty. He submitted that the maximum penalty must be given appropriate weight when determining sentence because it reflects Parliament’s view of the gravity of the offending[27] and provides a yardstick for sentencing when balanced with other relevant factors.[28]
[27]Latif v The Queen [2013] VSCA 51, [59] (Weinberg, Harper JJA).
[28]Markarian v The Queen (2005) 228 CLR 357, 372 [30]–[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25.
Drawing upon Callaway JA’s statement in Beary, that a mistake as to the maximum sentence reopens the sentencing discretion unless the appellate court is satisfied that the error could not have materially affected the sentence,[29] the applicant submitted that this Court cannot be satisfied that the error was immaterial. He relied upon the following matters:
(a)the sentence imposed on charge 2 represents a disproportionately large fraction (over 23 per cent) of the total effective sentence which itself covers 23 charges;
(b)the erroneous 10-year maximum penalty is twice the applicable five-year maximum being a substantial difference that would ordinarily bear upon the assessment of the gravity of the offence; and
(c)the sentence imposed on charge 2 is high having regard to the circumstances of the offending, the factors in mitigation and current sentencing practices (which are matters advanced in relation to ground 2).
[29]Beary (2004) 11 VR 151, [21] (Callaway JA), [39] (Buchanan JA).
Additionally, he submitted that he is not required to prove that the mistake actually influenced the judge’s reasoning, but only that it had the capacity to do so. Because a sentence is the product of a judge’s instinctive synthesis of all appropriate considerations, he submitted that courts must be cautious before concluding that a mistake was not material.

Respondent’s submission

In written submissions, whilst conceding that the sentencing reasons disclose that the judge applied the incorrect maximum penalty on charge 2, the respondent nevertheless submitted that, in the circumstances of this particular case, the error was immaterial. The respondent relied upon those aspects of Callaway JA’s remarks in Beary emphasising that not every mistake as to the maximum penalty vitiated the sentencing discretion and that it all depended on the circumstances.[30]
[30]Beary (2004) 11 VR 151, [21] (Callaway JA).
To support its argument that the error was immaterial, the respondent submitted that although the maximum penalty on charge 2 was a relevant and mandatory consideration, the influence of the misstated maximum penalty was ‘dwarfed’ by the overwhelming impact of other relevant considerations. Because of those other considerations, notwithstanding the misstated maximum and the mitigating factors which the applicant called in aid, the sentence of ‘only’ 15 months on charge 2 was not only well within the range properly open to the sentencing judge, it was toward the lower end of that range (a submission expanded upon in relation to ground 2).
In oral submissions, the respondent concentrated on its alternative submission that, even if there was an error as contended, leave to appeal ought to be refused as there is no real prospect that this Court would impose a different sentence (relying on s 280(1) of the Criminal Procedure Act 2009).

Analysis

In my opinion, it is difficult to conclude that knowledge of the correct maximum penalty could not have materially affected the judge’s decision as to the appropriate sentence on charge 2. The judge thought the maximum was double what it actually was. Clearly, as a mathematical proposition, that is a substantial difference. Other mathematical consequences can be used to illustrate the significance of that difference. For example, 15 months is only 12.5 per cent of the maximum if it is assumed to be 10 years, but 25 per cent of the maximum if it is known to be 5 years. As the applicant correctly submitted, the maximum penalty is intended to provide some yardstick in the sentencing process, balanced with all other factors. It represents Parliament’s view of the gravity of the offence.
Nevertheless, there is some force in the respondent’s submission that whether the 15 months is seen as 12.5 per cent or 25 per cent of the maximum, when all of the relevant considerations peculiar to this case were taken into account, 15 months was such a lenient sentence that it shows that the judge had already poured into the sentencing calculus all of the favourable factors available to the applicant such that knowledge of the lower maximum could not have made any difference.
Ultimately, however, I am not persuaded by that argument. Knowledge of the true maximum penalty could have made some difference, even if slight, in the subtle process of instinctive synthesis. As the applicant submitted, there is no need to find that the judge would have made a different decision, but only that knowledge of the true maximum penalty had the capacity to influence the judge in coming to a different decision. The hurdle for the prosecution to satisfy the court that the error is immaterial is quite high.
I therefore find that the applicant has established an error of the kind which, if leave to appeal is granted, would satisfy the first condition under s 281(1) of the CPA. For reasons I will now explain, that conclusion, of itself, is not enough for the grant of leave to appeal.
The relevant ‘error in the sentence’ is not simply that the judge mistook the maximum penalty — that alone would not vitiate the sentence. Rather, the error was making a mistake as to the maximum penalty of a nature that could have made a material difference to the sentence arrived at through the judge’s instinctive synthesis of all relevant considerations. In other words, materiality is a necessary ingredient of the error in the sentence.
As the applicant himself submitted, the question whether the mistake could have materially affected the judge’s decision enquires about the capacity of the mistake to have influenced the judge’s instinctive synthesis. Answering that question affirmatively says nothing about whether the Court of Appeal, faced with all of the same sentencing considerations, would impose a less severe sentence.
For example, knowledge of the correct lower maximum penalty could have influenced a sentencing judge to impose an even more lenient sentence than a lenient sentence imposed under the mistaken view as to the maximum penalty. So, in that scenario, the test of materiality is satisfied. Yet, looking at the case for itself, the Court of Appeal may not think there is any reasonable prospect that the Court would impose a less severe sentence than that which was actually imposed.

The alternative analysis is that once it is shown that a mistake was made about the maximum penalty, regardless of its materiality, an error in the sentence of the kind required for a successful appeal, pursuant to s 281(1)(a), has been established. The question of materiality — that is, whether it could have made a difference to the sentencing judge’s discretion — may now be catered for by the second condition required for a successful appeal, pursuant to s 281(1)(b), namely that the Court is satisfied that a different sentence should be imposed. At the time Beary was decided, sentence appeals were governed by s 568(4) of the Crimes Act 1958. That provision did not, in terms, require that error be shown; only that the Court thought ‘that a different sentence should have been passed’. Nonetheless, in practice, the Court did not interfere with a sentence unless satisfied there was an error.[31]
[31]Ludeman v The Queen (2010) 31 VR 606, 617 [72] (Ashley and Redlich JJA); [2010] VSCA 333.
If it matters, I prefer the first analysis. The formulation of the error pronounced in Beary focuses upon the perspective of the sentencing judge and asks whether that judge might have imposed a different sentence with knowledge of the true maximum penalty, whereas the focus in s 281(1)(a) and (b) is upon what the Court thinks at the time of hearing the appeal. It is not safe to assume that the different elements of the Beary error, formulated when s 568(4) of the Crimes Act 1958 governed sentence appeals, can be neatly distributed into the separate provisions of the Criminal Procedure Act 2009.
In any event, it is not necessary to decide between these two alternatives. In either event, the applicant must still pass through the gateway of s 280(1) to obtain leave to appeal. Even if the error is established on the bare finding that a mistake about the maximum penalty was made, leave to appeal will still be refused if the Court considers, despite the error, there is no reasonable prospect it would impose a less severe sentence than the one first imposed.
In short, the finding of an error (or arguable error) does not foreclose the possible application of s 280(1)(a) whether or not materiality is an ingredient in the finding of that error. Therefore, the finding of error leaves open the question whether the Court of Appeal should grant leave to appeal.
It is convenient to defer a conclusion on the respondent’s alternative argument as to the application of section 280(1)(a) until after consideration of ground 2.

Ground 2 (sentence on charge 2 was manifestly excessive)

Applicant’s submission

In arguing that the 15 months’ imprisonment imposed the charge 2, without a non‑parole period being fixed pursuant to s 11(2) of the Sentencing Act 1991, was manifestly excessive, the applicant relied upon two factors: the applicable maximum penalty (advanced in respect of ground 1) and the mitigating factors available to the applicant.[32]
[32]A third factor advanced in written submissions (current sentencing practices) was abandoned during oral argument.
Before listing the mitigating factors, the applicant conceded that charge 2 is a serious example of the offence. It was a rolled-up charge encompassing a failure to report contact with 43 children; the offending continued after he was arrested and charged in May 2020; the applicant has a relevant prior conviction for failing to comply with reporting obligations; and the offence was committed during the two-year operational period of a good behaviour bond imposed on 1 February 2019.
Despite the weight that needed to be given to community protection and specific deterrence, the applicant argued that significant leniency was nonetheless warranted because of the ‘powerful constellation’ of mitigating factors and circumstances of the offending. Accepting that they were all acknowledged by the sentencing judge, the applicant enumerated them as follows:
(a)First, the applicant has a moderate intellectual disability with a full-scale intelligence quotient of 48. His disability has an adverse effect on all areas of daily living.
(b)Secondly, the Verdins principles were invoked by reason of the applicant’s intellectual disability which had the effect that:
(i)his moral culpability was reduced if not eliminated;
(ii)general deterrence was greatly reduced as a sentencing consideration;
(iii)specific deterrence was modified as a sentencing consideration;
(iv)imprisonment would weigh more heavily him than on those without his disability; and
(v)imprisonment would pose a serious risk of adverse impact on his mental health (referring, in particular to Justice Health records that were tendered on the plea concerning the deterioration in the applicant’s mental state and attempts to self-harm whilst in custody).
(c)Thirdly, the applicant experienced profound childhood deprivation attracting the application of Bugmy principles. In particular, the applicant had been physically abused by both parents, and was removed from his family home when aged 12 to 13 years (with evidence tendered and referred to during the plea of the involvement of Child Protection with the family since he was aged eight or nine years).
(d)Fourthly, the applicant made an early plea of guilty, attracting a greater discount than usual due to the impacts of the COVID-19 pandemic on the criminal justice system.
(e)Fifthly, the applicant showed remorse.
(f)Sixthly, the applicant would face additional hardship in custody in the COVID‑19 environment.
Relevant to the applicant’s moral culpability for his offending, the applicant also noted that the judge took into account that, although the applicant knew the wrongfulness of his actions, the applicant committed the offending out of ‘loneliness and boredom’. This, it was suggested, was because the COVID‑19 pandemic caused a significant reduction in his support services and access to the community, and he lived at supported accommodation where other residents were non-verbal.
Despite the judge taking into account all of the factors listed, it was the applicant’s submission that they were simply not reflected in the sentence imposed on charge 2. With the ‘weighty considerations’ of moral culpability, general deterrence and specific deterrence reduced or eliminated (as appropriate), the sentence did not bear out that all of the factors in mitigation had been accounted for. More specifically, the failure of the sentence to bear out those mitigating factors was reflected in the excessive length of the sentence or, if the term was to be 12 months or longer, the absence of a non-parole period.

Respondent’s submission

As already noted, the respondent submitted that far from being manifestly excessive the sentence imposed on charge 2 was in fact lenient.
In making that submission, the respondent argued that a combination of features accompanying the commission of the reporting breach offence warranted a sentence of at least that duration. Those factors were:
•the applicant had two previous convictions for the same offence (albeit that the second occurred after the offending in charge 2, that conviction was relevant to the risk the applicant would reoffend);
•specific deterrence, although moderated due to the applicant’s mental health, was not eliminated and, in his sentencing remarks, the judge stated that he intended the sentence to convey a message to the applicant;
•the failure to report contact with children was not merely a technical contravention: rather, it was a deliberate decision not to report to police communications with 43 different female children aged between 12 and 17 years for a period of nine months which had the effect of facilitating the applicant to go on offending and which, in turn, illuminated the vice of the breach;
•the offending persisted after police interviewed the applicant in May 2020 and reminded him of his reporting obligations;
•the offending occurred while the applicant was subject to a good behaviour bond imposed on 1 February 2019; and
•protection of the community was a primary consideration for the sentencing judge.
Responding to the applicant’s arguments concerning the diminished weight to be given to moral culpability and general and specific deterrence, the respondent argued that those ‘benefits’ to the applicant were cancelled out by the high need for community protection and the applicant’s poor prospects of rehabilitation given his entrenched disability.
In conclusion, the respondent submitted that, despite accepting that there were significant mitigating factors in favour of the applicant, the fact that the ultimate sentence on charge 2 was only 15 months in the face of the significant aggravating features could only be explained by the fact that the sentencing judge gave very generous weight to those mitigating factors.

Analysis

The sentence on charge 2 is not manifestly excessive. If anything, given the seriousness of the offence, its rolled-up nature, the fact that the applicant committed it whilst on a good behaviour bond, the fact that he had a prior conviction for the offence, and that he persisted in not reporting his communications even after being reminded of his obligation to do so in May 2020, meant that a sentence of only 25 per cent of the maximum was indeed lenient.
Mr Cummins assessed the applicant’s risk of reoffending as ‘at least Moderate-High’. That measure was the fourth highest on a five-stage scale. For her part, Dr Zergiodis found that the applicant had a ‘well documented diagnosis of a moderate intellectual disability’, a ‘complex past mental health history and has attracted several diagnoses including borderline personality disorder, dysthymia and major depression’, and a history of problematic alcohol abuse which played a role in exacerbating his difficulties with self-regulation and increased his risk of offending. As a result, the doctor was of the view he would require a high level of support and supervision in the community to reduce his risk of recidivism and maximise his level of psychosocial functioning.
No alternative to imprisonment was suggested for this offence. In those circumstances, notwithstanding all of the factors in mitigation called upon, the purpose of community protection was a very prominent consideration in fixing the duration of the sentence.
The applicant also contended, in effect, that without providing a non-parole period (if the sentence was to exceed 12 months) the sentence would also be manifestly excessive. In substance, the applicant submitted that a non-parole period was warranted to give effect to a degree of concurrency between the State offence and the Federal offences. I reject that argument.
The judge was not required to impose a non-parole period. For any sentence between 12 months and 24 months the judge had a discretion, to be exercised having regard to all of the circumstances, whether or not to fix a non-parole period.[33] Those circumstances included the sentencing dispositions to be imposed in respect of the Commonwealth charges, the degree of cumulation or concurrency amongst them and any non-parole period fixed in respect of them. Having abandoned his challenge to the total effective sentence, the applicant is fixed with the orders for cumulation and concurrency among the Commonwealth charges, and the non-parole period ordered for them.
[33]Sentencing Act 1991, s 11(2).
Apart from the duration of the sentence on charge 2, the applicant conceded that he is limited to complaining about its full cumulation with the Commonwealth charges and the lack of a non-parole period. But, as pointed out by the respondent in relation to the arguments that had been mounted on (the abandoned) ground 3, the concurrency allowed on most of the Commonwealth charges is where much of the force of the factors in mitigation was applied.
The applicant’s argument in respect of the absence of a non-parole period to give effect to concurrency amounts to an argument about totality. In Nguyen v The Queen[34] the High Court said:
Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong.
[34]Nguyen v The Queen (2016) 256 CLR 656, [64] (Gageler, Nettle, Gordon JJ); [2016] HCA 17.
In Landale (a pseudonym) v The Queen, this Court commented upon the difficulty of assessing the appropriateness of orders for cumulation (or concurrency) in isolation, in the context of sentences for multiple offences:[35]
… cumulation and concurrency play an important role in assisting a sentencing judge to impose appropriate sentences for multiple offences involving distinct criminality, yet still achieve a total effective sentence that is consistent with the principle of totality. It is thus difficult to assess orders for cumulation in isolation from the totality of the offending and the total effective sentence imposed.
[35][2022] VSCA 121, [79] (Kyrou, T Forrest, Walker JJA).
In my view there is nothing at all wrong with the 15 month duration of the sentence on charge 2 so far as it was required to accurately reflect the gravity of the offending. To isolate only that sentence for that offence and claim it did not reflect all the mitigatory factors by reason of its length and the absence of a non-parole period is to ignore the careful design of all of the sentences imposed by the judge.
In my view, it is not reasonably arguable that the sentence on charge 2 was manifestly excessive.

Conclusion

It is now appropriate to return to the question whether, despite the error in the sentence argued under proposed ground 1, this Court should give leave to appeal.
For reasons already given, I think the sentence on charge 2 was lenient. In my view there is no reasonable prospect that, on appeal, the Court would impose a less severe sentence than 15 months, without a non-parole period, having regard to its lenient nature and the sentences imposed on the Commonwealth charges (including, in particular, the degree of concurrency among them and the non-parole period ordered).
Accordingly, I would refuse leave to appeal.
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[2023] VSCA 225

18 September 2023