Reid (a Pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0216

WILLIAM REID (A PSEUDONYM)[1]	Applicant
	v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the 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:	MAXWELL P, WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2014
DATE OF JUDGMENT:	1 July 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 145
JUDGMENT APPEALED FROM:	R v [Reid (a pseudonym)] (Unreported, County Court of Victoria, Judge Hampel, 16 October 2013)

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CRIMINAL LAW – Appeal – Sentence – Sexual offences — Incest, indecent act with child under care, supervision or authority, producing child pornography – Victim was applicant’s step-daughter – Offending occurred over four and a half years – Instances of humiliating and degrading treatment – Total effective sentence 18 years and 8 months’ imprisonment, non-parole period 14 years and 8 months – Whether manifestly excessive – Importance of consistency of sentencing – Consideration of current sentencing practices – Sentences outside range reasonably open – Appeal allowed – Resentenced to 14 years’ imprisonment, non-parole period 10 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A J Gray	McNamaras Solicitors
For the Crown	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WHELAN JA:

We have had the considerable advantage of reading in draft the reasons for judgment of Priest JA. For the reasons which his Honour has given, we too would allow the appeal. We would resentence the applicant as his Honour proposes.

This was, as his Honour has emphasised, extremely serious offending. Not only did the applicant’s persistent sexual abuse take away his victim’s childhood, but he humiliated and degraded her. That he posted pictures of his acts of penetration on the internet for the gratification of others simply defies credulity.

The conclusion that the sentence must nevertheless be reduced is a reflection not of any undervaluing of the seriousness of the offending but rather of the fundamental importance of consistency of sentencing. It is precisely because conduct of this kind is so abhorrent — and because it is therefore so difficult to determine an appropriate term of imprisonment — that guidance must be sought from sentences imposed in comparable cases.[2] That consideration necessarily extends to sentences imposed in cases where the offending is even more serious.[3]
[2]DPP v OJA (2007) 172 A Crim R 181, 195–6 [29]; FD v The Queen [2011] VSCA 8, [22]–[34]; PDI v The Queen (2011) 216 A Crim R 577, 593–4 [83].
[3]See, eg, RSJ v The Queen [2012] VSCA 148; DPP v Jones [2013] VSCA 330.

Only by this means is it possible to ensure that like cases are treated alike, and that there is appropriate differentiation between cases which are materially different. Justice and fairness require nothing less.[4]
[4]Lowe v The Queen (1984) 154 CLR 606, 610–611.

Priest JA has carried out a very detailed review of sentencing decisions for offences which fall into this category of seriousness. As this Court has often pointed out, an offender who pleads guilty is reasonably entitled to assume that he/she will

be sentenced in accordance with current sentencing practices.[5] The Sentencing Act 1991 (Vic) itself requires that current sentencing practices be taken into account in the sentencing exercise.

[5]DPP v CPD (2009) 22 VR 533, 549 [69]; DPP v DDJ (2009) 22 VR 444, 460 [65].

What his Honour’s analysis reveals is that, contrary to the conclusion reached by the sentencing judge, the total sentence of 18 years and eight months, with a minimum of 14 years and eight months, cannot be reconciled with current sentencing practices. That being so, the requirement of consistency necessitates a reduction.

This Court has previously questioned whether current sentencing practices for the offence of incest sufficiently take into account the guidance provided by the maximum penalty of 25 years.[6] That question does not arise in this appeal.
[6]See, eg, R v Bellerby [2009] VSCA 59, [38]. See also DPP v CPD (2009) 22 VR 533, 549 [68]; DPP v DDJ (2009) 22 VR 444, 460-1 [67]–[72].

PRIEST JA:

On 13 June 2013, the applicant pleaded guilty to 13 charges of incest (11 of them — charges 2, 4, 5, 6, 8, 9 and 11 to 15 — being said to be ‘representative’), one charge of producing child pornography (which was representative) and one charge of committing an indecent act with a 16 or 17 year old child under his care, supervision or authority.

Following a plea conducted on 27 and 30 September 2013, on 16 October 2013 the applicant was sentenced to a total effective sentence of 18 years and eight months’ imprisonment, with a non-parole period of 14 years and eight months, according to the following table:

Charge Offence Maximum Sentence Cumulation

1 Incest[7] 25 years 7 years 8 months

2 Incest (representative) 25 years 7 years 8 months

3 Produce child pornography[8] (representative) 10 years 5 years 2 years

4 Incest (representative) 25 years 7 years 4 months

5 Incest (representative) 25 years 10 years Base sentence

6 Incest (representative) 25 years 5 years 4 months

7 Indecent act with child under 16 or 17 under care, supervision or authority[9] 5 years 2 years 6 months 8 months

8 Incest (representative) 25 years 7 years 8 months

9 Incest (representative) 25 years 7 years 8 months

10 Incest 25 years 10 years 12 months

11 Incest (representative) 25 years 5 years 4 months

12 Incest (representative) 25 years 5 years 4 months

13 Incest (representative) 25 years 5 years 4 months

14 Incest (representative) 25 years 5 years 4 months

15 Incest (representative) 25 years 5 years 4 months

Total Effective Sentence: 18 years and 8 months’ imprisonment

Non-Parole Period: 14 years and 8 months

Pre-sentence Detention Declared: 19 days

6AAA Statement: 25 years’ imprisonment with a non-parole period of 21 years

Other orders:

Forensic sample order

Disposal order

Sentenced as serious sex offender (charges 3-15) – life reporting obligation

[7]Crimes Act 1958 (Vic) s 44(1).
[8]Ibid s 68(1).
[9]Ibid s 49(1).

Leave to appeal against sentence is sought on three grounds:

1.The sentence is manifestly excessive in all the circumstances.
2.The sentencing judge failed to accord sufficient weight to the guilty plea before the commencement of committal proceedings.
3.The sentencing judge failed to accord to the principles of totality and ordered a head sentence that was crushing ‘such as to not hold a proper measure of hope for or encouragement to rehabilitation or reform’.

For reasons that follow, I would grant leave to appeal, allow the appeal and make orders so as to sentence the applicant to be imprisoned for 14 years, upon which I would fix a non-parole period of 10 years’ imprisonment.

The offending

The offending occurred over a four and a half year period between April 2007 and February 2012. ‘Melissa’, the victim, was the applicant’s step-daughter.[10] She was born on 17 April 1994, and was at relevant times aged between 13 and 17 years. The applicant, who was born on 14 October 1964, was aged between 42 and 47 years at the time of his offending, and was aged 48 at the time of sentence.
[10]The sentencing judge used the pseudonym ‘Melissa’ for the victim, ‘Renée’ for her mother and ‘Jordan’ for her brother. For the sake of convenience, I will adopt those pseudonyms.

Charge 1, incest, relates to events which occurred between 17 and 25 April 2007, when the victim was aged 13. She and the applicant were at home, alone, watching television. The applicant touched the victim all over her body, then penetrated her vagina with his fingers.

Shortly afterwards, the victim complained to some school friends. She then gave an account to a school counsellor, saying that the applicant had ‘touched her boob while she was lying on the couch’. Police and the Department of Human Services became involved. The applicant pressured the victim into saying that nothing happened and that it was an accident, saying that the family would be ruined. Although police investigated, it was determined that no offence had been committed. Given the treatment of the victim’s complaint by the authorities, it seems that the applicant became emboldened to continue his criminal conduct.

Charge 2 was a representative charge of incest. When the victim was aged 14 years, late one afternoon she and the applicant were on his bed. For some time the applicant had been trying to convince her to have sex with him. The victim touched the applicant’s penis as he touched her breasts, bottom and vagina. He inserted his finger into her vagina. After he assured the victim that he had feelings for her and that sex would not hurt, they had penile-vaginal sexual intercourse.

It seems that by 3 January 2010, the applicant had made the victim join a website called ‘Fantasti’, which included pornography, live chat and other social media functions. The applicant had an email account linked to Fantasti, ‘[email protected]’. He and the victim could communicate via Fantasti, and other users could access and participate in those communications. The victim’s username on Fantasti was ‘myslutypics’. Users ‘requested’ each other in order to start communicating. They were able to access photographs that had been uploaded and posted.

Charge 3 was a representative charge of producing child pornography, which had several aspects. Prior to 24 February 2010, sexually provocative photos of the victim were taken and uploaded to Fantasti. Those uploaded in January 2010 were explicit, and showed parts of the victim’s body, but not her face. By 24 February 2010, however, when the victim was aged 15 years, the photographs showed her face. On 14 February 2010, a number of photos were uploaded depicting vegetables inserted into the victim’s vagina. It appears that these were uploaded following a conversation between the applicant and another user, in which that user made a request for that kind of photo of the victim to be uploaded. The next month, on 19 March 2010, the words ‘Little slut loves Daddys cock … Little Fuck Toy’ [sic] was written on the victim’s groin, and this too was photographed and uploaded by the applicant to Fantasti. And some months later, on 1 August 2010, photographs of the applicant’s penis penetrating the victim’s vagina were uploaded to Fantasti.

The events founding charge 4, incest, occurred on 24 February 2010, when the victim was aged 15 years. The applicant gave handcuffs and a collar and leash to the victim and asked her to wear them. He then had her sit on a dining room chair wearing the items, simulating bondage. Whilst in this position the victim performed fellatio on the applicant. They also had penile-vaginal intercourse which the victim described as ‘extremely awkward’.

A few weeks later, on 12 March 2010, when the victim was still aged 15 years, the applicant had the victim insert a baseball bat which he owned into her vagina. He photographed the victim with the baseball bat inserted, which he that day uploaded to Fantasti. The taking of the photo formed part of representative charge 3, producing child pornography, and penetration with the bat was part of representative charge 5, incest.

Charge 6, incest, relates to events in late 2010, when the victim was 16 years of age. She was at home, sleeping in her bedroom. The applicant entered and started touching her breasts under her clothes, and touching her vagina under her shorts. Initially the victim said that she did not want to have sex, but relented following repeated requests. They had penile-vaginal intercourse in a number of positions.

The activities leading to charge 7, committing an indecent act with a 16 or 17 year old child under care, supervision or authority, and the representative charge of incest, charge 8, took place on 8 July 2011, when the victim was aged 17 years. She and the applicant went shopping together. He purchased underwear for her. They also drove to a sex shop. The applicant went into the shop and purchased, among other things, a ‘butt plug’. Several weeks later, when the victim’s mother was at work, the applicant asked the victim if she wanted to ‘break in the butt plug’. They went into the bedroom of the victim’s step-sister (which had mirrored walls), and the applicant asked the victim to insert the butt plug into her anus, providing lubricant for that purpose. While it was inserted, the applicant had penile-vaginal sexual intercourse with the victim. He next removed the plug and had penile-anal intercourse with her. The victim then fellated the applicant, before they resumed penile-vaginal sexual intercourse. This episode concluded when the applicant ejaculated into the victim’s mouth. The victim told police that she did these things to please the applicant and so as not to disappoint him.

Representative charge 9, incest, relates to a period between August and October 2011, when the victim was aged 17, and she and the applicant had penile-vaginal sex in the late afternoon or early evening in his bedroom whilst the victim’s mother was at work. Other activities included the victim fellating the applicant; the applicant penetrating the victim’s vagina deeply with his fingers; and the applicant causing the victim to insert into her vagina various sex toys which he and her mother had collected and used (being a vibrator, an orange phallus and a double dildo).

Charge 10, incest, related to an event in November 2011, when the victim was 17 years of age, and the applicant convinced the victim to let him insert his fist into her vagina. The victim told police that this caused her immense pain.

Representative charge 11, incest, relates to 6 December 2011, when the victim, aged 17 years, had moved out and was staying with her biological father. The applicant called by late morning or early afternoon when the victim’s father was not at home. She showed him around. In the lounge room the applicant kissed and touched the victim which led to penile-vaginal intercourse on the lounge room floor. He also penetrated her vagina with his fingers and performed cunnilingus on her; and she performed fellatio on the applicant. After he ejaculated and cleaned himself, the applicant left.

Various activities leading to representative charge 12, incest, occurred in the victim’s father’s apartment between 12 and 15 December 2011. The applicant performed cunnilingus on the victim on her bed, and they had penile-vaginal intercourse.

Representative charge 13, incest, related to 26 January 2012, when the victim was aged 17 years. She had spent the previous evening at the home of her mother and the applicant. At about 8:00am the applicant came into her room and woke her by taking off her bedcovers and touching her breasts. He asked her into his bedroom. When she entered the bedroom he was lying naked on the bed. She undressed and got into bed with him. The applicant then kissed her mouth, neck and breasts, and they had penile-vaginal intercourse which concluded with the applicant ejaculating into her vagina.

A few days later, on 30 January 2012, the activities making up representative charge 14, incest, occurred. The victim again visited her mother’s home. When she arrived in mid-afternoon her mother was not home. She decided to have a shower because it was a hot day and was joined in the shower by the applicant. He touched and kissed the victim and they had penile-vaginal intercourse in various positions, including one which involved the victim facing the applicant holding the door of the shower. They then continued having sex on the bathroom floor. The applicant gave the victim a ‘love bite’. He ejaculated inside her vagina.

About a week later, on 6 February 2012, the events founding representative charge 15, incest, occurred when again the victim was staying at her mother’s home. She woke up around 9:30am to find that her mother and the applicant were out. He returned around 10:15am and they talked in the kitchen. While she was seated on the kitchen bench, the applicant started cuddling the victim and kissed her on the lips, cheeks, neck and breasts. He undressed, and the victim performed oral sex on him. The applicant had the victim give him a love bite on his leg, thigh, stomach and left chest. He then placed his penis between the victim’s breasts and masturbated in this manner. The victim then again performed fellatio on the applicant until he ejaculated into her mouth.

At many times whilst he was engaging in sexual activity with the victim, the applicant warned the victim not to tell anyone about their relationship because of the effect it would have on her mother and on him.

Arrest, interview and committal

The applicant’s predations came to light on 9 February 2012, when the victim’s brother, Jordan, accidentally accessed the victim’s Facebook account and saw concerning messages from the applicant. Jordan advised their biological father of what he had found. The victim contacted the applicant, who told her to ‘wipe everything’ from her computer. She deleted most of the relevant material.

When interviewed by police on 23 February 2012, the applicant denied the offending and made no admissions.

On the first day of the contested committal, however, fixed for 13 June 2013, the applicant indicated that he wished to plead guilty.

Defence submissions on the plea hearing

It was conceded that the offences were very serious examples of serious offending, but the offending was not at the highest end of the scale, it was submitted, since features such as physical intimidation, violence, or threats of recrimination for disclosure, were absent. The offending was confined to the single victim, and was not of the same level of seriousness at all times.

The guilty plea, it was submitted, was early, having been made on the first day of the committal hearing, before any evidence was heard. A committal hearing and trial were thus avoided, sparing the victim from giving evidence. The plea also evidenced genuine remorse.

With respect to his antecedents, the applicant has no criminal history, and had been an honest and hard-working member of the community. His upbringing was difficult and this was particularly significant to the plea. The applicant was traumatised at the age of 10 when he found his father dead in bed. He then lived with his aunt and uncle who threw him out of their house when he was aged 15.

As to his prospects of rehabilitation, a psychologist who examined the applicant took the view that with appropriate rehabilitation, the applicant’s risk of re-offending would be reduced from ‘moderate to high’ to ‘moderate to low’. Relevant to the applicant’s chances of rehabilitation, it was submitted, was the fact that he had been addicted to gambling in the past, and had successfully rehabilitated himself through Gamblers Anonymous. The applicant continued to have the emotional support of his wife and ex-wife, his two daughters, and his two older brothers. There were no Verdins[11] principles relevant to sentencing.
[11]R v Verdins (2007) 16 VR 269.

Counsel conceded that nothing short of a significant term of imprisonment would properly satisfy principles of general and specific deterrence, protection of the community, and denunciation and just punishment. The principle of totality should be applied, however, so that a crushing sentence is not imposed. In light of the applicant’s age and motivation to undergo rehabilitation programs, it is preferable that the applicant have a reasonable period of life expectancy on his release from prison. He is not a recidivist paedophile.

Although there are ten representative charges, each of those charges in fact refers to discrete occasions involving multiple penetrations in the course of one incident. They are not representative in the sense of conduct that occurred on more than one occasion. Further, the risk of pregnancy was low, since, although the sexual activity had been unprotected, the applicant had a vasectomy prior to the offending.

In response to the prosecution’s written submissions on sentence, the defence filed written submissions. Although the defence submitted no range, it was submitted that the prosecution’s ultimate range was much higher than the range in the relevant Sentencing Snapshot,[12] was incompatible with totality and would be crushing.
[12]Sentencing Advisory Council, Sentencing Snapshot No 134: Sentencing Trends Incest in the Higher Courts of Victoria (2012) (the ‘Sentencing Snapshot’).

The prosecution submissions on the plea hearing

The prosecutor submitted that there should be some measure of cumulation given the differing nature, time period and place of some of the charges, and the gross breach of trust involved. It was conceded, however, that the plea of guilty obviated the need for the victim to be cross-examined, and that the applicant had no criminal record or prior convictions.

General deterrence was important. It was submitted that the offending falls into the worst category of offending because of the gross breach of trust, the four-and-a-half year period over which the offending occurred, and the age of the victim. Psychological blackmail was employed. Further, the victim suffered real physical pain as a result of the incident which involved the applicant inserting his fist into her vagina. There are, it was submitted, risks to her reproductive capacity as a result of the offending. The penetrative offending involved unprotected sexual activity and this was an aggravating feature of the offending. As to the child pornography, the applicant involved third parties in the offending, by encouraging others to participate in and view the pornographic material. This is, it was submitted, an aggravating feature of this charge. The online names used by the applicant and the victim in the child pornography offence indicate the abusive and degrading nature of the conduct.

Since at that time there was no embargo on it doing so,[13] the prosecution was permitted to put a sentencing range. At the plea hearing on 30 September 2013, the prosecutor put a range of 12 to 14 years’ imprisonment as a total effective sentence, with a non-parole period of between nine and 12 years. When the judge inquired as to the reasoning that went into the overall figure, counsel for the prosecution informed the judge that he did not ‘have instructions as to the breakdown’. He later informed the judge that the Crown prosecutor from whom he had received his instructions on the range was on leave. Her Honour then invited written submissions on range.
[13]Barbaro v The Queen (2014) 305 ALR 323.

By 7 October 2013, when counsel for the prosecution delivered written submissions, Prosecution Submissions on Range and Construction of Sentence, the suggested range had expanded considerably, so that a period of between 16 to 18 years’ imprisonment as a total effective sentence was proposed, together with a non-parole period of between 12 and 14 years.

In the further written submissions, the prosecutor sought to divide the incest into three ‘categories’ or levels of seriousness. Fixed terms — curiously, and inaccurately, described in each case as a ‘range’ — were nominated for offences falling within the three categories identified. The three categories, and the suggested sentences, were as follows:

·the most serious offending, which included the bondage incident (charge 4), the baseball bat incident (charge 5) and the ‘fisting’ incident (charge 10), fell into the first category — ‘accompanied by an element of gratuitous degradation and humiliation of the complainant and involved sexual depravity of a high order’ — and these offences should attract a ‘range’ of 12 years’ imprisonment;
·the digital penetration (charge 1), the first incident of penile-vaginal intercourse (charge 2) and the anal sex (charge 8) fell into the next category of seriousness, the second category, and should attract a ‘range’ of seven years’ imprisonment; and
·the remainder of the offending fell into the third category, which should attract a ‘range’ of five years’ imprisonment.

With respect to the indecent act charge, charge 7, a range of 15 to 21 months’ imprisonment was proffered; and as to the production of child pornography, charge 3, a ‘range’ of five years’ imprisonment was suggested.

No issue was raised on this appeal concerning the prosecution giving, or the judge receiving, a sentencing range. I cannot leave the further prosecution submissions to the sentencing judge on range, however, without commenting on their unsatisfactory nature. At a time when a MacNeil-Brown[14] submission on range could still be delivered, they did not address that issue. Rather than provide a ‘range’, by and large the submissions nominated fixed terms for charges falling within the ‘categories’ that counsel had devised.[15] Her Honour was generally critical of the assistance she had in the past been given by the prosecution on range, and was specifically critical of the content of the further written submissions, observing that they served to make her task more difficult. The criticism specifically directed to the prosecution’s further written submissions was rightly made. At best the submissions were unhelpful, and at worst, mischievous. They should not have been provided expressed in the terms that they were.
[14]R v MacNeil-Brown (2008) 20 VR 677. Cf Barbaro v The Queen (2014) 305 ALR 323.
[15]See DPP v Fabriczy (2010) 30 VR 632.

Reasons for sentence

The judge expressed the view that the applicant’s offending, by its nature and duration, fell into the worst category. She noted, however, that the plea of guilty had significant utilitarian value, and relieved the victim of giving evidence.

Matters that bode well for the applicant’s prospects of rehabilitation included that he does not have any psychiatric or psychological impairments; he has in the past successfully addressed a gambling problem; and he has the support of his family, a good work history and lack of prior offences.

The applicant, the judge recited, suffers from reactive depression, and meets the DSM-V diagnostic criteria for both paedophilia and sexual sadism, but no Verdins principles apply. His risk of sexual reoffending is moderate to high. Without treatment, it will be high, but with appropriate rehabilitation, it will be reduced to low to moderate. As to this, the applicant has insight into his offending (albeit late) and is prepared to participate in a sex offender treatment program.

It was wrong in principle, the judge said, for the prosecution to have contended for particular sentences for individual offences. She expressed the view, however, that charges 5 and 10 called for higher sentences because of the nature of the penetration and the distress caused to the victim by these penetrations.

Charges 1 and 2, the judge thought, are next in the category of seriousness, aggravated by the applicant’s vehement denials of his wrongdoing when the victim made her initial disclosure. Charge 2 marked the start of penile-vaginal penetration and established the pattern of unprotected sex. The judge was of the view that charges 4, 8 and 9 should attract the same sentences as charges 1 and 2. Charge 4 is aggravated by the fact that the applicant photographed the act; charge 8 because it involved painful penile-vaginal penetration whilst a plug was inserted in the victim’s anus, followed by penetration of her mouth and vagina in turn; and charge 9 because it involved use of three separate sex aids which belonged to, and had been used by, the victim’s mother.

The sentencing judge said that charges 6 and 13 were aggravated by the fact that they occurred at the family home, one in the applicant’s and his wife’s bed. Similarly, charge 14 occurred in the family shower, and charge 15 occurred in the family kitchen. Charges 11 and 12 occurred within the victim’s father’s home which ought to have been a safe location, and although none of these charges involved the same aggravating features of the other charges, they did involve elements of dominion and control.

The child pornography charge was particularly egregious because it involved multiple acts on multiple occasions; the victim’s face was visible in some photographs; many of the photographs showed conduct that was debasing and degrading; the photographs were on a website where others could view them, and the applicant used them as a means of boasting about his power over the victim and exposing her to others for their enjoyment.

Finally, the indecent act charge was a bad example of its type which was aggravated by the surrounding conduct.

Applicant’s submissions in this Court

Ground 2 (insufficient weight given to the plea of guilty) and ground 3 (the sentence is crushing) were argued as ‘particulars’ of the first ground, under the umbrella of which it was submitted that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive in all the circumstances, having particular regard to a number of factors.

First, the non-parole period, it was submitted, does not properly reflect the judge’s findings as to the applicant’s prospects of rehabilitation.

Next, it was put that the Sentencing Snapshot[16] demonstrates that between 2006 and 2011 in only three cases did individual charges of incest attract a penalty of more than nine years’ imprisonment, with only one case attracting a penalty in excess of 11 years. Penalties such as these are rare, and should be reserved for ‘worst category’ offending.
[16]See above n 12.

It was conceded that charges 4, 5, 8 and 10 are more serious and should attract a higher penalty. Although these charges are correctly categorised as more serious than the others, however, they again involved no overt violence or threats of intimidation. Further, so it was submitted, the age of the victim needed to be considered. Worst case examples of incest commonly feature violence, intimidation, multiple victims and intergenerational abuse, sometimes against very young children.[17] Accordingly, it was submitted that charges 4, 5, 8 and 10 fall significantly short of those offences categorised as in the worst case grouping. Indeed, at the time of the commission of charges 8, 9, 10 ,11, 12, 13, 14, and 15, the victim was aged 17 years.
[17]R v RSJ [2012] VSCA 148; R v RLP (2009) 213 A Crim R 461.

It was submitted that the individual sentences for the incest charges were all in excess of current sentencing practices, as were the total effective sentence and non-parole period. Between 2006 and 2011, the Sentencing Snapshot[18] demonstrated that in only four cases of incest did a total effective sentence exceed or match the present sentence. The non-parole period was matched or exceeded in only five cases. It was argued that this case falls short of the worst case category for which such lengthy sentences should be reserved.
[18]See above n 12.

Counsel submitted that charges 2, 4, 6, 8, 9 and 11 to 15, are representative in an unusual way, in that they particularise a discrete act of sexual penetration, against a background of other sexual acts occurring during the same episode. The judge said that, ‘although the statement of agreed facts does not refer to any other uncharged acts, Melissa’s victim impact statement and her depositional statement refer to conduct properly described as grooming, and I accept from those it is clear these were not the only occasions on which sexual activity occurred’. But the judge added that, apart from being satisfied that ‘the agreed conduct in the statement of facts that the charges are not isolated incidents’, she placed ‘no weight or reliance on any other sexual misconduct’. It was submitted that the applicant should only be sentenced on the basis of the offending as disclosed in the prosecution opening, but that the sentences imposed on the ‘representative’ charges are such as to suggest that the applicant was sentenced on the basis that the conduct in each charge had been repeated on other occasions.

With respect to charge 3, it was submitted that both the sentence imposed and the cumulation ordered resulted in a sentence that is manifestly excessive. The prosecution had submitted that appropriate cumulation for the sentence on this charge would be three months, yet the judge ordered that two years of the five years’ imprisonment imposed be cumulative on the base sentence. Part of the conduct in charge 3 was subsumed by charge 4, and hence, in effect, double punishment was imposed.

As to charge 7, it was submitted that the sentence of two and a half years’ imprisonment (half the available maximum) with eight months ordered to be served cumulatively, was in all the circumstances manifestly excessive. The judge described the indecent act as ‘a bad example of its type, made worse by the conduct which accompanied it and surrounded it’, but the conduct surrounding charge 7 is in fact the conduct constituting charge 8, for which the applicant had been separately punished. Accordingly it was submitted that the applicant has again been being doubly punished.

With respect to the plea of guilty, it was submitted that its benefits were not adequately reflected in the sentence imposed. During the sentencing hearing the judge stated that the applicant’s early guilty plea carried ‘considerable weight’, as did his previous good character and work history. It was submitted that the guilty plea prior to the commencement of the committal saved the complainant from the ordeal of cross-examination and the community the cost of a trial, but the sentence does not reflect its benefits to the victim and the community.

Finally, it was submitted that the orders for cumulation produced a sentence that is ‘crushing’.

Respondent’s submissions in this Court

It was submitted that the offences committed by the applicant were variously and appropriately described by the sentencing judge as ‘depraved and humiliating’, sexual abuse of the ‘utmost gravity’, and activity which escalated over time which can only be described as ‘depraved, debasing, degrading and dehumanising’.

There were, it was submitted, significant aggravating features regarding the overall offending:

·it occurred over a period of four and a half years when Melissa was between 13 and 17 years old;
·it involved a gross breach of trust;
·the applicant’s denials when the victim first disclosed the circumstances of charge 1 allowed for continued abuse of her without fear of exposure;
·the offending only ceased when it was discovered by another family member;
·the acts of sexual penetration took place without any protection; and
·each of the charges had their own elements of the exercise of dominion and control, and of the applicant demonstrating his determination to engage in whatever activities he wanted to whenever he wanted to.

Moreover, the applicant fell to be sentenced as a serious sexual offender on charges 3 to 15.

There was, it was submitted, very limited material in mitigation, although the sentencing judge recognised that there were factors that went in favour of rehabilitation. She accorded sufficient weight to the plea of guilty, and she took all relevant sentencing considerations into account. The sentencing judge referred to the pleas of guilty entered by the applicant and the significance of those pleas. A consideration of the individual sentences imposed by the sentencing judge does not, so it was submitted, suggest that inadequate weight was attached to the applicant’s pleas of guilty.

The sentence imposed was not manifestly excessive. In relation to the charges of incest, the sentences imposed ranged from twenty per cent to forty per cent of the maximum penalty, 25 years. With respect to the incest offences that were viewed as the most serious, charges 5 and 10, the sentencing judge indicated that the sentence was to be moderated in accordance with current sentencing practices. The judge provided detailed reasons for the need to avoid double punishment and set out factors warranting separate punishment when considering the appropriate amount of cumulation.

Further, it was submitted that the judge was conscious of the need to comply with the principle of totality. She indicated the sentence would comply with totality and reflect the enormity of the applicant’s overall abuse of the victim.

The respondent submitted that the sentencing judge referred to positive features that bore favourably on the applicant’s prospects for rehabilitation. Principles of specific deterrence, denunciation, general deterrence and imposition of a just punishment were clearly relevant sentencing factors, as was a recognition of the need to reflect the totality of the offending, without imposing a crushing sentence. These sentencing considerations allowed for, importantly, the prospect of release and supervision on parole. In all the circumstances, the head sentence could not be described as ‘crushing’.

Representative counts

Before turning to the main issues raised by this application, it is worthwhile making some observations concerning ‘representative’ counts, since the prosecution asserted that a number of charges on the indictment were ‘representative’.

When confronted with repeated offending over an extended period, two devices are often resorted to in order to ensure that the indictment is not overloaded, and so as to simplify the sentencing task. Hence on some occasions — for example, large frauds involving a host of individual thefts — ‘rolled-up’ charges are found in an indictment. On other occasions, particularly where a specific kind of conduct has occurred repeatedly over a period of time, the use of representative counts is common. Sometimes one encounters both rolled-up counts and representative counts in a single indictment.[19] The essential difference between a representative charge and a rolled-up charge is that the representative count is a single instance of conduct which occurred in a wider context, but a rolled-up charge shelters more than one offence under the umbrella of a single charge. In truth, many of the charges on the present indictment, although described as ‘representative’, were not of a kind that usually fit that description.
[19]DPP v Jones (a pseudonym) [2013] VSCA 330 is an example of such a case.

Charles JA described the difference between sentencing for a representative count and for a rolled-up count in Jones:[20]

[Counsel for the applicant] submitted that where an offender is to be sentenced in respect of an offence which is representative of a number of offences, the sentencing judge is not entitled to impose a sentence in respect of other crimes, but may take such other crimes into account in determining whether or not the offence for which the offender is being sentenced is an isolated offence. He submitted that in sentencing on a rolled-up count the discretion is to be exercised in the same way as it is when a count is treated as a representative count.
…
I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative offence the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In [counsel for the respondent’s] written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel for the respondent] argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.

[20]R v Jones [2004] VSCA 68, [12]–[13] (citations omitted, emphasis added). See also R v Beary (2004) 11 VR 151, 156–7 [11]–[14] (Callaway JA).

As was made clear in DPP v CPD,[21] the fact that a charge is a representative count has a twofold relevance to sentencing. First, it represents the absence of a mitigating factor, since an accused cannot claim that the offence was an isolated event. Secondly, the sentencing court must look at the conduct represented by the count in order to judge the offending in its full context.[22]
[21]DPP v CPD (2009) 22 VR 533.
[22]Ibid 542 [38]. See also R v SBL [1999] 1 VR 706; R v GLH [2008] VSCA 88; R v RGG [2008] VSCA 94; DPP v CJK (2009) 22 VR 104; R v LJF [2009] VSCA 134.

Most of the charges that were said to be ‘representative’ were not of that nature. Charge 2, for example, was an incident of incest by penile-vaginal penetration. It was said to represent a single episode of sexual misconduct which had several disparate aspects. Those aspects included the victim touching the applicant’s penis; the applicant touching the victim’s breasts, bottom and vagina; the applicant inserting his finger into the victim’s vagina; and, finally, as the culmination of those preliminary acts, penile-vaginal sexual penetration. The incident of penile-vaginal penetration was charged as a single activity, against the backdrop of the other accompanying sexual activities, all taking place as part of a single event. Unlike the accepted norm of a representative count, however, charge 2 did not represent a single incident of incest by way of penile-vaginal penetration representative of more than one incident of the same kind of offending occurring over a period of days, weeks, months or years.

Another example will suffice to make the point. Charge 8, incest, charged as penile-anal penetration, was part of a single sexual transaction which involved insertion of the ‘butt plug’;[23] penile-vaginal sexual penetration whilst the butt plug was in place; penile-anal penetration after the butt plug had been removed; penile-oral penetration following the anal penetration; and, finally, a further instance of penile-vaginal penetration, culminating with the applicant ejaculating into the victim’s mouth. This single episode of offending took place in the victim’s sister’s bedroom on an occasion when her mother was at work, and within a few weeks of her visit to a sex shop with the applicant. Apart from the insertion of the butt plug, the only other activity that specifically was the subject of a charge arising out of the single episode of offending was the penile-anal penetration. Charge 8, the anal penetration, reflected a single incident of anal penetration which took place as part of a single event accompanied by other connected incidents of sexual penetration of a different kind occurring in the one place and in close temporal proximity. It was not a representative count in the accepted sense, however, in that it did not represent more than one incident of anal penetration over an extended period.
[23]The insertion of the butt plug was charged separately as an indecent act, charge 7.

I need not descend into any further analysis. Those examples that I have isolated are sufficient to show the imprecision in the respondent’s purported use of ‘representative’ charges. In the end, however, perhaps not much turns on this aspect, since, whether the ‘representative’ charges were (or were not) properly so characterised, I am of the view that the sentence imposed was manifestly excessive.

Resolution

The seriousness with which the crime of incest is regarded may be gauged by the maximum penalty of imprisonment for 25 years.[24] And it cannot be said that the offences under consideration were other than very serious examples of a serious offence. The applicant, for his own selfish sexual gratification, defiled the victim when she was a young adolescent, and continued over four and a half of her teenage years to violate her in a most despicable fashion. During that extended period the applicant used the victim as his sexual plaything, and subjected her to humiliating and degrading conduct demonstrating the utmost depravity. As the judge observed, the applicant ‘took away her childhood and warped and distorted her view of what was a normal parent-child or step-parent-child relationship, and a normal sexual relationship’. He did not desist voluntarily, but only when his depredations were by chance discovered. Once discovered, the applicant did not immediately admit his wrongdoing, but vehemently denied that he had offended against his step-daughter. The judge aptly described the complainant’s victim impact statement as ‘heartrending’.
[24]The maximum sentence was increased from 20 to 25 years’ imprisonment in 1997: Sentencing and Other Acts (Amendment) Act 1997 (Vic) s 2(2).

Apart from the other serious matters of aggravation, in this case two in particular stand out. First, when at the age of 13 years his step-daughter complained of his sexual interference, the applicant denied any misconduct. Police and other authorities, who should have held the victim’s interests as paramount, were deflected from their task of making the victim safe. It must have been obvious to her that any future complaint of hers would be treated with scepticism. Moreover, the applicant must have regarded himself as having carte blanche to continue his molestation.

Secondly, a particularly rebarbative incident of the applicant’s offending was his posting, for the voyeuristic pleasure of others, of lewd photographs of the victim on the Fantasti website which showed her face. There is thus a permanence in the dissemination of the degrading photographs which is difficult to erase.

Counsel for the applicant spent a deal of time endeavouring to demonstrate that a number of features often present in the most serious examples of this offence were absent in this case. There was, so it was submitted, no physical intimidation, overt violence or threats of recrimination for disclosure; multiple victims; or ‘intergenerational abuse’. Hence the offences were not at ‘the highest end of the scale’. It is thus necessary to say something of the nature of the crime of incest, and of those factors which may go in aggravation.

It is a curious fact that incest was not a crime at common law (although in theory it was punishable by the ecclesiastical courts), and for a long period it was widely seen as an essentially ‘victimless’ crime.[25] With greater enlightenment came the realisation that incest is often a crime where the vulnerable, who are worthy of protection, are exploited by those entrusted with their care. It is now seen to be a crime which — when perpetrated by an adult parent (or step-parent or grandparent) against a child — is erosive of human relations, the prominent features of which include ‘the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable and fundamental damage to the victim’.[26]
[25]See R v G (1998) 98 FLR 32, 36–7, in which Miles CJ discusses the crime’s history.
[26]R v Sposito (Unreported, Supreme Court of Victoria, Marks, Hampel and McDonald JJ, 8 June 1993).

In 1989, the Court of Appeal of England and Wales essayed guidelines for sentencing in cases of incest. In Attorney-General’s Reference (No 1 of 1989),[27] the Court identified the age of the victim as being of significance, the younger the victim the more serious the crime. Other aggravating features might be:[28]
[27][1989] 1 WLR 1117 (Lord Lane CJ, Rose J and Sir Bernard Caulfield). See also Attorney-General’s Reference (No 4 of 1989) [1990] 1 WLR 41.
[28]Attorney-General’s Reference (No 1 of 1989) [1989] 1 WLR 1117, 112–23.

·if there is evidence that the victim has suffered physically or psychologically from the incest;
·if the incest has continued at frequent intervals over a long period of time;
·if the victim has been threatened or treated violently by or was terrified of the perpetrator;
·if the incest has been accompanied by perversions abhorrent to the victim;
·if a female victim has become pregnant; and
·if the defendant has committed similar offences against more than one victim.

Further features of aggravation were identified by Canadian courts with respect to cases ‘of major sexual assault of a child by a parent or by a person who because of his relationship with the child is in a position of control and trust vis-à-vis the child’. Having reviewed authority from the Supreme Court of Canada and other Canadian intermediate appellate courts, in R v S(WB)[29] the Alberta Court of Appeal identified a number of aggravating features of the particular species of offence:

There may be aggravating factors, such as the repetition of sexual assaults, protracted confinement or kidnapping, gratuitous violence and injuries, threats to kill or hurt the child if he or she tells anyone what has happened, extreme youthfulness of the child, parental use of the child for the carnal pleasure of a friend of the parent, physical violence with or without a weapon, exposure of the child to printed or visual materials depicting pornography, transmission of venereal or other sexually transmitted disease to the child, or pregnancy of the child resulting from the sexual assault. …

[29](1992) 73 CCC (3d) 530, 551–2 (Major JA, McDonald and Quigley JJ).

In this State, from about the mid-1980s, there started a dawning realisation that the ‘tariff’ for incest was inadequate.[30] That realisation was consistent with a change in attitude to the offence of incest elsewhere in Australia[31] and overseas. Thus, in R v Accused,[32] Cooke P, delivering the judgment of the New Zealand Court of Appeal (Cooke P, Casey, Hardie Boys, McKay and Thomas JJ), when referring to R v B (an accused)[33] — decided a decade earlier — observed that it ‘marked the beginning in New Zealand of the very disturbing increase in the revealed incidence of familial child abuse which appears to be virtually a worldwide phenomenon’. And in Canada, on two Crown appeals against sentence, in R v S(WB) the Alberta Court of Appeal (Major JA, McDonald and Quigley JJ) said of offences involving sexual abuse of children by those in loco parentis:[34]

The essential point is that the sentences for this offence should be more severe than might have been thought appropriate a decade or two ago when society and the courts were not as aware as they are now of the fact that these offences are a plague, and when judges were not as conscious as we now are of the need to impose sentences to denounce these crimes and to deter others from committing such abhorrent offences.

[30]R v Kaye (1986) 22 A Crim R 366, 367 (Young CJ); R v Bahen (Unreported, Supreme Court of Victoria, Marks, Hampel and McDonald JJ, 28 June 1993); R v Sposito (Unreported, Supreme Court of Victoria, Marks, Hampel and McDonald JJ, 8 June 1993).

[31]R v J (1982) 45 ALR 331, 335–6 (Toohey J); R v G (1998) 98 FLR 32.

[32][1994] 3 NZLR 157, 161.

[33][1984] 1 NZLR 261.

[34](1992) 73 CCC (3d) 530, 551.

Up until 1985, the highest total effective sentence and non-parole period imposed in this State for the crime of incest was in R v C,[35] where a head sentence of 12 years’ imprisonment with a minimum term of 10 years was imposed. A sentence of that order would no longer seem remarkable.Changes in attitudes have seen a gradual increase in sentences, to the extent that sentences of imprisonment in ‘double figures’ for incest and related offences are not uncommon.[36]
[35]R v C (1983) 10 A Crim R 352.
[36]DPP v GJL (2004) 7 VR 366 (10y/7y); DPP v DCR [2004] VSCA 103 (11½y/9y3m); R v Elliott [2005] VSCA 37 (12y/9y); DPP v OJA (2007) 172 A Crim R 181 (15y/11y; 13y/9y; 8y/4y); DPP v EB (2008) 186 A Crim R 314 (11y/7y); R v Bellerby [2009] VSCA 59 (15y/9y); R v AP [2009] VSCA 249 (12y/6½y); R v RLP (2009) 213 A Crim R 461 (15y7m/10½y); GJW v The Queen [2010] VSCA 193 (10y/8y); DP v The Queen [2011] VSCA 1 (12y/10y); FD v The Queen [2011] VSCA 8 (12y/9y); MP v The Queen [2011] VSCA 78 (12y/9½y); LDF v The Queen [2011] VSCA 237 (12y/9y); IRJ v The Queen [2011] VSCA 376 (11y/9y); PDI v The Queen (2011) 216 A Crim R 577 (15y/10½y); CF v R [2012] VSCA 22 (12y/8y); WC v The Queen [2012] VSCA 30 (12y/8½y); HRA v The Queen [2012] VSCA 88 (12y/9y); DPP v Jones [2013] VSCA 339.

The cases demonstrate that sentences at the top of the range are usually imposed in relation to multiple offences that have taken place over a long period.[37] Sentences of a high order are also imposed where the activity is multifaceted or of a perverted or depraved nature, where sex ‘toys’ or objects are used, or where photographs or video is taken of the victim involved in sexual activity.[38] Physical assaults and threats are aggravating.[39] Moreover, the younger the victim, and thus the greater the abuse of trust, the more serious is the offence regarded.[40] Group sexual activity involving children is also a factor affecting the seriousness with which the offence is to be regarded.[41] Unprotected sexual activity, exposing the victim to the risk of pregnancy or sexually transmitted disease, may also bear on the seriousness with which the offending is to be seen.[42] Further, heavier sentences will be meted out where there is evidence of serious disturbance in the victim.[43] Sentences at the lower end of the range are reserved for offences which are isolated or transitory,[44] or where the offender is of low intelligence[45] or seriously mentally impaired.[46]
[37]R v Gramson (Unreported, Supreme Court of Victoria, Crockett, Southwell and Hampel JJ, 30 May 1994); R v McNeill (Unreported, Supreme Court of Victoria, Brooking and Callaway JJA and Southwell AJA, October 1996); DPP v OJA (2007) 172 A Crim R 181; WC v The Queen [2012] VSCA 30; RSJ v The Queen [2012] VSCA 148; DPP v Jones (a pseudonym) [2013] VSCA 330.
[38]R v Gramson (Unreported, Supreme Court of Victoria, Crockett, Southwell and Hampel JJ, 30 May 1994); R v Wayland (Unreported, Supreme Court of Victoria, Crockett, Southwell and Hampel JJ, 14 September 1992); R v Bahen (Unreported, Supreme Court of Victoria, Marks McDonald and Smith JJ, 28 June 1993); R v Sposito (Unreported, Supreme Court of Victoria, Marks, Hampel and McDonald JJ, 8 June 1993); PDI v The Queen (2011) 216 A Crim R 577.
[39]DPP v DJ (2011) 211 A Crim R 367.
[40]R v Barker (Unreported, Supreme Court of Victoria, McGarvie, O’Bryan and Tadgell JJ, 1 March 1988); DPP v GJL (2004) 7 VR 366; DPP v OJA (2007) 172 A Crim R 181.
[41]DPP v OJA (2007) 172 A Crim R 181; R v Bellerby [2009] VSCA 59.
[42]BM v The Queen [2013] VSCA 3.
[43]R v Ware [1997] 1 VR 647; DPP v D (1993) 65 A Crim R 79; FD v The Queen [2011] VSCA 8.
[44]R v Lawrence (Unreported, Supreme Court of Victoria, Crockett, O’Bryan and Gray JJ, 8 March 1985); MG v R (2010) 29 VR 305.
[45]R v Kaye (1986) 22 A Crim R 366; R v Clay (Unreported, Supreme Court of Victoria, Brooking and Callaway JJA and Southwell AJA, 7 October 1996).
[46]R v Barnes (Unreported, Supreme Court of Victoria, Phillips CJ, Hampel and Hansen JJ, 12 December 1994).

A review of sentences for incest dealt with by this Court over the last decade indicates that sentences vary widely, depending upon the presence (or absence) of the accepted features of aggravation. Two unrelated cases illustrate the width of the sentencing range. Thus in MG v The Queen,[47] a total effective sentence of three years and six months’ imprisonment, with a non-parole period of 18 months, was left undisturbed; while at the other extreme of the spectrum, in RSJ v The Queen,[48] this Court refused to disturb a total effective sentence of 22 years and five months’ imprisonment, with a non-parole period of 18 years (that being the highest sentence of which I am aware for incest and associated offences).
[47](2010) 29 VR 305.
[48][2012] VSCA 148.

In MG v The Queen, the applicant had pleaded not guilty to two charges of incest, but was found guilty of one charge. He also pleaded guilty to one charge of committing an indecent act with a child under 16. The applicant was the biological father of the victim. He digitally penetrated her vagina, and masturbated in her presence. By way of contrast, in RSJ the appellant pleaded guilty to 10 counts of incest (many of them representative), two counts of indecent assault of a child under 16 and one count of assault. The facts of the offending were said to be ‘despicable and deplorable’, so that ‘the case falls in the worst category of such cases’.[49] The appellant committed the offences against his eldest daughter over a period of 28 years, the offending having commenced in 1977 when the victim was aged 13 and the appellant was 34, and having ended in 2005 when his daughter was aged 40 and the appellant was 62. Over those many years, the offending was ‘sustained, repeated, accompanied by violence and threats, and occurred despite the complainant’s ongoing disclosures and pleas to social workers and others’. The victim bore the appellant four children (in 1990, 1998, 2000 and 2001), the youngest child having died in infancy, the eldest two suffering from intellectual disabilities and the third child receiving ongoing speech therapy and having difficulty with social interaction.
[49]Ibid [8] (Hansen JA).

The applicant in this case relied on sentencing statistics in an endeavour to show that the sentence under review is inconsistent with current sentencing practises. There are multiple difficulties associated with resort to statistics. Among those difficulties are, first, they provide no information as to which cases involved contested trials, and which involved pleas of guilty. Secondly, resort to representative counts is common in cases such as the present, but statistics provide no information as to those cases that involved representative counts, and those involving every sexual act as a discrete offence. Thirdly, raw statistics reveal nothing about any features of aggravation or mitigation involved in any of the cases making up the sample.

There are also difficulties associated with looking at schedules and tables showing the bare results of sentencing cases in appellate courts without having recourse to the unique and individual features of each case. Thus, where an appeal against sentence by a convicted person is refused, all one can glean from the bare result is that the court did not consider that the sentence was manifestly excessive (or otherwise vitiated by error which re-opened the sentencing discretion). Similarly, when a Crown appeal is refused, all that can be concluded from the bare result is that the sentence was not considered to be manifestly inadequate (or otherwise attended by vitiating error). Moreover, considerable care must be exercised in taking into account the results in those Crown appeals where a different sentence is passed, since, depending on when the appeal was dealt with, double jeopardy may have influenced the re-sentencing and dictated that a lower sentence than otherwise might have been appropriate.

Our attention was also drawn by counsel to what were said to be comparable cases. As to that, a cautionary note was sounded concerning ‘like’ cases — so called — in Hudson v The Queen.[50] The Court (Ashley, Redlich and Harper JJA) said:
[50]Hudson v The Queen (2010) 30 VR 610.

Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here.
…
A detailed examination of ‘like’ cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not to be regarded as some sort of ‘benchmark’ which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matters personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.
To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a ‘like’ case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of ‘like’ cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.
It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in ‘micro-detail’, as such an approach will ordinarily be indicative of an intent to use the case as providing something more than a guide to a range.
Other jurisdictions have also deprecated the practice of inviting comparisons between the challenged sentence and sentences in other cases. Such comparisons have been viewed as providing no meaningful assistance other than as a general indicator of whether the impugned sentence is outside the range.[51]

[51]Ibid 617–8 [28]–[34] (footnotes omitted). See Hili v The Queen (2010) 242 CLR 520, 536–7 [53]–[54]; Hasan v The Queen (2010) 31 VR 28; FD v The Queen [2011] VSCA 8.

Having regard to the proper limitations of the use of ‘like’ or ‘comparable’ sentencing cases as informing the ‘instinctive reaction’ to the sentence presently under consideration, the sentences imposed in several cases fortify my strongly-held impression that the total effective sentence and non-parole period passed in this case are manifestly excessive.[52]
[52]See also DPP v DJ (2011) 211 A Crim R 267, 376–90, which contains a comparative table of sentences for incest by length of sentence.

DPP v GJL[53] was a Crown appeal where the respondent had, following a plea of guilty, been sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years on 21 counts, which included four of indecent act in the presence of a child; seven of indecent act with a child; six of incest; one of attempted incest; and one each of producing, transmitting and possessing child pornography. The respondent was the victim’s grandfather. At the time of the offending the respondent was aged 49 years, and his granddaughter, the victim, was three years of age. The facts revealed ‘sexual depravity of the highest order, corruption of an infant child and breach of trust by the child’s grandfather’, which involved not only the respondent using the very young child for his personal sexual gratification, but he also did so ‘for those who derive sexual gratification from child pornography’.[54] Many of the 18 non-pornography counts were representative counts, the six counts of incest involving the respondent using his penis, tongue and finger to substantially penetrate the victim’s vagina, sometimes causing her to cry out in pain. Aggravating features included the respondent’s use of a video camera to film five sessions of offending over a six month period, and his ‘transmitting pornographic images to deviant persons who derive sexual satisfaction from child pornography’.[55] The Court allowed the appeal and made orders resulting in a total effective sentence of 10 years’ imprisonment, upon which a non-parole period of seven years was fixed.[56]
[53]DPP v GJL (2004) 7 VR 366 (Charles JA, Bongiorno and O’Bryan AJJA).
[54]Ibid 368 [10].
[55]Ibid 369 [14].
[56]No mention is made in the judgement of the principle of double jeopardy and whether it was taken into account as ameliorating sentence. Despite the failure specifically to mention it, however, it seems to me to be likely that the court would have paid it regard.

DPP v OJA[57] was a case of very serious offending by three individuals — OJA, WBA and EBD — involving sexual predation on children of tender years, acts of sexual depravity of an almost unimaginable kind (which included the use of sex aids) and the filming of some of the abuse. It was a Crown appeal. At the time of offending, OJA was between 43 and 49 years of age. He pleaded guilty to 43 separate charges, being nine counts of incest; 17 counts of indecent act with a child under 16 years of age; 15 counts of taking part in an act of sexual penetration with a child under 16 years of age; one count of producing child pornography; and one count of possessing child pornography. He was sentenced to a total effective sentence of 15 years’ imprisonment, with a non-parole period of 11 years. WBA was between 34 and 37 years of age at the time of offending. He pleaded guilty to 33 charges, being nine counts of indecent act with or in the presence of a child under 16 years’ of age; 20 counts of incest; one count of attempted incest; one count of producing child pornography; and one count of possessing child pornography. His total effective sentence was 11 years’ imprisonment, upon which a non-parole period of seven years was fixed. EBD, a female, was, at the time of offending, between 32 and 35 years of age. She pleaded guilty to 34 charges, being five counts of indecent act with or in the presence of a child under 16 years’ of age; 16 counts of incest; one count of attempted incest; one count of producing child pornography; and one count of possessing child pornography. The appeals with respect to the sentences imposed on OJA and EBD were dismissed. With respect to WBA the appeal was allowed, and he was resentenced to a total effective sentence of 13 years, upon which a non-parole period of nine years was fixed (although the sentence passed was moderated to give effect to the principle of double jeopardy).[58]
[57]DPP v OJA (2007) 172 A Crim R 181.
[58]Ibid 203 [58].

OJA’s offences included penetrating his daughter’s mouth; digital penetration of his daughter’s vagina; having his daughter penetrate his anus with a vibrator and her fingers; penile-vaginal penetration of his daughter; penile-anal penetration of his daughter; penetration of his daughter’s anus with different objects, including a vibrator; and a host of other sexual offending. Oral and digital-vaginal penetration occurred when his daughter was as young as four years (and over a number of years thereafter), and penile-vaginal and penile-vaginal penetration when she was a mere six years of age (and for years following). Some of the sexual activity was videotaped. Moreover, OJA offended against other children. WBA — whose sentence was increased on appeal — offended against his biological son and step-children. Part of his offending involved performing various sexual acts in the presence of, and in concert with, EBD. There were acts of oral sex performed on male and female children; anal penetration of children with his penis; lingual penetration of the anus of children and penetration his own anus by children; penile-vaginal penetration; and a host of other repulsive sexual misconduct, some of which was filmed.

In Bellerby,[59] having pleaded guilty to 15 charges involving two victims, the appellant was sentenced to a total effective sentence of 15 years’ imprisonment, with a non-parole period of 11 years. He was unsuccessful in attracting appellate intervention. There were seven counts of incest (five of them representative), and six others of sexual offending, involving his natural daughter who was aged nine years. The appellant organised group sex sessions which involved the child, her mother, the appellant and two of his adult nephews. The offences involved penile-oral penetration of the victim’s mouth by the appellant and the other men; lingual-vaginal penetration of the victim by the appellant, her mother and others; and various other sexual acts. Some of the molestation of the child was photographed. The offences were ‘grave and repulsive’; and the child was ‘degraded and abused’ by the appellant and by others invited by him to join in the humiliation of the child for no better reason than his personal sexual gratification. His introduction of others into the sexual abuse, and the photographing of his sexual penetration of the victim, coupled with the planning and pre-meditation of the abuse, were ‘aggravating factors of a high order’. The regime of sexual abuse to which the appellant’s daughter was subjected was ‘demanding as it was unrelenting’, was carried out ‘in a callous and calculating manner’ and ‘plumbed the depths of depravity’.[60]
[59]R v Bellerby [2009] VSCA 59 (Kellam JA, Dodds-Streeton JA and Vickery AJA agreeing).
[60]Ibid [39].

DP vThe Queen[61] involved a victim who was much younger than the victim in the present case when the abuse started, in circumstances where the abuse continued for a period twice as long. The appellant pleaded guilty to three counts of indecent act with a child under 16 and seven counts of incest. All but two counts — one each of indecent act with a child under 16 and incest — were said to be representative counts. He was sentenced to a total effective term of imprisonment of 12 years with a non-parole period of ten years. The appellant was the natural father of the female victim. He began sexually abusing her when she was aged only eight, and continued for almost ten years. The abuse started with him touching her vagina. He then instructed his daughter as to how she should masturbate him (this occurring frequently). The abuse escalated to the point that the appellant was having the victim perform oral sex upon him. After his daughter had turned nine years of age, the appellant began to have vaginal intercourse with her on a regular basis. The appeal was dismissed.
[61]DP v The Queen [2011] VSCA 1 (Weinberg JA and King AJA).

FD v The Queen[62] was a case with a number of extremely serious features, including the restraint of very young children by handcuffs during sexual intercourse. The appellant pleaded guilty to eight counts of incest, one count of attempted incest and two counts of false imprisonment. Each of the victims of his offending were his two young biological daughters, the first of whom was aged between seven and nine when the offending occurred, and the second between six and seven years. Each child was sexually abused in a variety of ways. The appellant performed cunnilingus on them, digitally penetrated them and had sexual intercourse with them. Significantly, the offending occurred in the presence of both children; and, on one occasion, the appellant used handcuffs to secure the children’s wrists to the bed in which they were to sleep and then proceeded to have sexual intercourse with them in this position. The impact on the victims was ‘profound’ and ‘potentially immeasurable’. Ultimately, the Court of Appeal quashed a total effective sentence of 16 years’ imprisonment with a non-parole period of 13 years, and made orders which resulted in a total effective sentence of 12 years’ imprisonment, upon which a non-parole period of nine years was fixed.
[62]FD v The Queen [2011] VSCA 8 (Redlich and Weinberg JJA).

In a joint judgment, Weinberg and Redlich JJA discussed the relevant sentencing statistics (and their limitations),[63] surveyed a number of other cases of incest and associated offences,[64] and made some observations about recourse to ‘comparable’ or ‘like’ sentencing cases (and the limitations inherent in that exercise).[65] Their Honours — making remarks that might readily be adapted to the present case – said:[66]

Accepting the limits to which comparison of other sentences can legitimately be put, even a cursory comparison of the individual sentences imposed in this case, and those imposed in other cases of multiple acts of incest, reveals a major statistical discrepancy. For example, the sentence of 12 years imposed on count 8 for a single act of incest is vastly greater than any individual sentence imposed for that offence that we have been able to find. The total effective sentence of 16 years is likewise significantly out of kilter with sentences imposed in relation to offending of comparable gravity. The sentencing snapshot and the examples set out above assist the intuitive synthesis to which we would, in any event, have arrived, namely that the sentence which his Honour imposed in this case was outside the range of a sound sentencing discretion.

[63]Ibid [13]–[16].

[64]CVP v R [2002] VSCA 193 (10y/7½y); NJD v R [2010] VSCA 84 (7y1m/4y3m); OAA v R [2010] VSCA 155 (9y/6½y); GEM v R [2010] VSCA 168 (9y3m/6½y); GJW v R [2010] VSCA 193 (10y/8y); CF v R [2010] VSCA 275 (8y/6y); DP v R [2011] VSCA 1 (12y/10y).

[65]Ibid [30]–[33].

[66]Ibid [34].

PDI v The Queen[67] involved conviction after a trial of 37 counts of incest, one of attempted incest and one of committing an indecent act with a child under 16. The charged sexual offending was perpetrated against the applicant’s daughter when at relevant times she was aged between 11 and 17 years (although the sexual interference started when she was aged eight or nine). This Court of Appeal described the case as falling ‘within the worst category of offending for the offence of incest’. The sexual offending included oral sex, digital manipulation and penetration, masturbation, vaginal intercourse, and anal penetration and was ‘persistent and sustained’. The victim was made to perform ‘depraved and sexually degrading acts’, and some of the charges involved the use of a dildo and pornography. Her ‘protestations and tears’ were disregarded, and the victim was subjected to psychological abuse. The applicant used the victim as a ‘sex plaything’.[68] Notwithstanding that it was regarded as falling within the worst category, the Court set aside the total effective sentence of 18 years and six months’ imprisonment, and non-parole period of 15 years, imposed by the trial judge. Orders were made so as to substitute a total effective sentence of 15 years, upon which a non-parole period of 10 years was fixed.
[67]PDI v The Queen (2011) 216 A Crim R 577 (Redlich, Harper JJA, and Robson AJA).
[68]Ibid 594 [84].

LDFv The Queen[69] was a case where there were three victims, two of whom were the applicant’s natural daughters. There were eight counts, involving five of incest (two being representative). The applicant engaged in multiple sexual acts with his two daughters and his daughters’ friend over a period of 18 years, including digital, oral and penile penetration. There was a late guilty plea, all complainants having undergone cross-examination at committal. The offending had a devastating impact on the victims. A total effective sentence of 16 years’ imprisonment with a non-parole period of 12 years were set aside. The Court of Appeal resentenced the applicant so as to achieve a total effective sentence of 12 years’ imprisonment, upon which a non-parole period of nine years was fixed.
[69]LDF v R [2011] VSCA 237 (Maxwell P, Weinberg and Harper JJA agreeing).

IRJv The Queen[70] involved the appellant having pleaded guilty to seven charges of committing an indecent act with or in the presence of a child under 16; four charges of incest; one charge of possession of child pornography; one charge of procuring a child for pornography; and one charge of production of child pornography. The victim was eight years of age and the appellant’s step-daughter. It seems that the offending was detected when the victim’s mother discovered photographs of the appellant and victim engaged in sexual acts on the appellant’s mobile telephone. The appellant photographed and video recorded the victim when she was engaged in various sexual acts, and he also took photographs of her naked that were of a sexual nature. Cunnilingus, fellatio, and penile-vaginal penetration were included in the sexual acts. The Court of Appeal dismissed the offender’s appeal against a total effective sentence of 11 years, with a non-parole period of nine years.
[70]IRJ v The Queen [2011] VSCA 376 (Bongiorno JA and Ross AJA).

DPP v Jones[71] was a Crown appeal where, by a majority,[72] the appeal was allowed and a total effective sentence of 16 years’ imprisonment, with a non-parole period of 12 years, was substituted for a sentence of 13 years with a non-parole period of 10 years. There were three victims, being the respondent’s de-facto and her daughter and son. With respect to the daughter, there were two representative charges of incest; one of producing child pornography; two representative charges of indecent act with a 16 or 17 year old child under care, supervision or authority; two charges of procuring an act of sexual penetration with a 16 or 17 year old child under care, supervision or authority; and one charge of intentionally causing serious injury. As to the son, there were was one charge of procuring a child under 16 to take part in an indecent act; one rolled-up charge of intentionally causing injury; one charge of intentionally causing serious injury; and one charge of false imprisonment. The children’s mother was the victim with respect to two charges of rape; one charge of intentionally causing injury; and one rolled-up charge of intentionally causing serious injury. The offending was ‘extremely grave’ and ‘involved depravity of an almost unimaginable magnitude’.[73] The offending took place in an environment of, and some of the offences directly involved, extreme cruelty and violence. As to the incest offences in involving the respondent’s step-daughter, the first offence occurred when she was either 16 or had just turned 17. Two charges were representative counts of incest. The first incident occurred when the respondent took the victim to the lounge room and penetrated her vagina with his penis. She was a virgin and the penetration caused vaginal bleeding and pain. Over the next year, the respondent had sexual intercourse with the victim almost every day, sometimes making her mother watch as he had sex with her in the marital bed. On other occasions, the respondent had sexual intercourse with her in a car when he was supposed to be giving her driving lessons. Over a couple of months, the respondent put his penis in his step-daughter’s mouth while in the back seat of the car during the driving lessons or when he was driving her home from school. Once he had her put his penis in her mouth when her mother was present in the marital bed.
[71]DPP v Jones (a pseudonym) [2013] VSCA 330 (Redlich and Priest JJA, and Robson AJA).
[72]Redlich and Priest JJA, Robson AJA dissenting.
[73]DPP v Jones (a pseudonym) [2013] VSCA 330, [27].

Bearing in mind that a sentence will not become unreasonable or unjust simply because a lesser sentence has been passed in a ‘like case’, or the same sentence has been passed for a case said to have worse features,[74] the limited review I have undertaken of some of the recent cases in this Court involving incest and associated offences fortifies my view that the total effective sentence and non-parole period in this case are outside the range of those properly open in the sound exercise of the sentencing discretion.
[74]Hudson v The Queen (2010) 30 VR 610, 619 [38] (Ashley, Redlich and Harper JJA).

The present is a very bad case. But, sadly, it is far from being the worst case that the courts have encountered, where, for example, much younger children have been involved; the abuse has continued for a longer period; there have been multiple victims; overt violence has been used to force submission; even more degrading and depraved acts than those in this case have been perpetrated; pregnancy (with or without abortion) has occurred; or the child has been exposed to group sexual activity. I should not be misunderstood. This case represents a very serious example of a serious crime. The experience of the Court is, however, that there have been even more serious examples of this very serious crime. Not much light is cast on the sentencing task by trying to determine whether the offending is in the ‘worst category’. To focus on such categorisation is something of a distraction. Rather, the focus must be on the individual features of the case, and the aggravating and mitigating factors which are unique to it, in order to determine where it fits in the undoubtedly wide spectrum of seriousness.

There are some extremely unpleasant aspects of the offending in this case. The circumstances of charge 5, which involved the victim being made to penetrate herself with the baseball bat, and those of charge 10, the ‘fist’ incident, are of the utmost gravity. Moreover, to my mind two features stand out as aggravating the course of the offending. First, it seems plain that the applicant exploited the failure of the victim’s fist complaint to result in effective intervention so as to continue to offend against her sexually. Secondly, to have orchestrated and encouraged the taking of degrading and humiliating pictures of the victim involved in penetrative activities with a range of objects, for their dissemination over the internet, in circumstances where the victim’s face is shown, is a particularly distasteful aspect of the applicant’s overall conduct. In the digital age, complete expunction of such material from cyberspace is unlikely.

I need not again set out in detail the other circumstances of the offending. It was protracted. The sex was unprotected.[75] Penile-oral, penile-vaginal and penile-anal penetration occurred, as did vaginal and anal penetration with objects. Some of the offending involved the use of the victim’s mother’s sex toys, or occurred in the mother’s bed. Much of it had additional elements of depravity, humiliation and degradation, beyond what might be expected of any unnatural sexual connection between a step-father and his step-daughter. The applicant treated the victim as his personal sexual concubine, to do with as he would. His treatment of her involved a very great breach of trust.
[75]The applicant had had a vasectomy prior to the commencement of the offending, so that there was negligible risk of pregnancy. And although in discussion the sentencing judge raised ‘the risk of STD’, no exploration was made on the plea hearing as to the breadth of the applicant’s sexual contact with others, so that the risk of sexually transmitted infections was not addressed in any detail.

Notwithstanding the seriousness of the offending, however, I have concluded that the sentence imposed is manifestly excessive. Having reached that conclusion, it is unnecessary to endeavour to isolate the source of error; but were it necessary to do so, I think it likely that the judge gave insufficient weight to the applicant’s pleas of guilty.

In my opinion, there is a powerful public interest in giving recognition to a plea of guilty even in the face of a very strong prosecution case. Charged individuals faced with the choice of either pleading guilty or electing to contest a trial need to know that a plea of guilty will find real, discernible and palpable recognition in the sentence passed. Whether it is described as a ‘discount’ or by some other epithet, an offender who pleads guilty almost without exception should be given credit for doing so, that being reflected in a significant amelioration of the sentence.

It is worth repeating the propositions that Redlich JA and Curtain AJA set out in Phillips:[76]
[76]Phillips v The Queen (2012) 222 A Crim R 149, 158–9 [36].

For the reasons which hereafter appear, the following are the relevant matters which should inform a determination of the extent of the discount to be given for a plea of guilty:
1. A discount for the utilitarian benefit of the plea must always be allowed on the sentence to be imposed, save for the exceptional category of case.
2. The exceptional case arises where the gravity of the offending conduct is of such an order that no discount from the maximum sentence is appropriate.
3. The strength of the Crown case is irrelevant to the discount to be allowed for the utilitarian benefit of the plea as it does not bear upon the objective benefits of the plea.
4. A greater discount for the utilitarian benefit may be justified where the plea involves very considerable savings of costs to the community or where some other very significant benefit can be seen to flow from the plea.
5. It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty.
6. Where there is evidence or a submission accepted by the sentencing judge as to the unqualified existence of these subjective criteria, they should be fully reflected in the discount.
7. The utilitarian benefits which flow from the plea may also inform the extent of the discount to be allowed for the offender’s willingness to facilitate the course of justice.
8. The weakness of the Crown case, if apparent, may also inform the extent of the offender’s willingness to facilitate the course of justice.
9. The sentencing judge will not need to separately deal with the objective criteria of the utilitarian benefit of the plea and the subjective criteria, unless there is reason to conclude that less than the full discount should be allowed for the subjective criteria.
10. The strength of the Crown case can only support an inference that these subjective criteria played little or no, role in the decision to plead guilty where the state of the contextual evidence on the plea permits such a conclusion.

As Redlich JA and Curtain AJA make clear, a discount for the utilitarian benefit of the plea must always be allowed, save for the exceptional case where the gravity of the offending is such that there should be no discount from the maximum. That, of course, is not this case.

The respondent drew attention to the fact that the applicant did not plead guilty until the morning of what was to be a contested committal. Thus, as I understood the submission, the victim had necessarily gone through the process of preparing herself for the rigours of giving evidence. The fact remains, however, that the case ultimately ‘settled’, with the applicant accepting his guilt in relation to very serious offending at a relatively early stage. His acceptance of responsibility relieved the victim of the trauma of being cross-examined at committal and on a trial, and the community was saved the expense of a contested committal and trial. I cannot, however, see that those considerations are adequately reflected in the sentence passed, despite her Honour’s statement that the plea ‘is entitled to considerable weight, not only for its utilitarian value and for the early stage at which it was entered, but because it represents a vindication of the truthfulness of Melissa’.

Conclusion

For the foregoing reasons the application for leave to appeal against sentence should be granted and the appeal allowed. The sentences of imprisonment imposed by the County Court should be set aside. It is necessary that the applicant be sentenced afresh.

Where there are multiple charges on an indictment, generally a sentencing court must pass appropriate and proportionate sentences on each individual charge.[77] Once sentences for each individual charge have been arrived at, the totality principle requires the sentencing court to have regard to the aggregate sentence that should be imposed so as to reflect the totality of the criminal conduct.[78] Having imposed proper individual sentences on each count, and having arrived at orders to effect cumulation or concurrency as between the individual sentences, a sentencing court must then stand back and examine the total effective sentence to ensure that it reflects the overall criminality of the conduct for which the offender is being sentenced and so as to ensure that it is not crushing. If necessary, these purposes may be achieved by adjusting the orders for total or partial cumulation or concurrency, or by lowering the individual sentences.[79] In the orders that I propose for the re-sentencing of the applicant, I have endeavoured to adhere to these principles.
[77]It was not submitted that disproportionate sentences were required on charges 3 to 15: Sentencing Act 1991 (Vic) s 6D(b).
[78]Mill v The Queen (1988) 166 CLR 59, 62–3.
[79]I acknowledge that there are differing views as to whether there is any single correct approach. In my view the correct approach is for the sentencing judge to pass appropriate individual sentences, and — depending on the sentencing regime being applied—– order total or partial cumulation or concurrency. A court should, in my opinion, avoid imposing artificially inadequate sentences in order to accommodate totality: see R v Lomax [1998] 1 VR 551; DPP v Grabovac [1998] 1 VR 664.

There are two non-incest charges, charge 3 (a representative charge of making child pornography) and charge 7 (which is the ‘butt plug’ incident), both of which are serious examples of the particular offence.

The 13 charges of incest may be roughly grouped into one charge of digital-vaginal penetration (charge 1); six charges of penile-vaginal penetration (charges 2, 4, 6, 12, 13 and 14); two charges of penile-oral penetration (charges 11 and 15); one charge penile-anal penetration (charge 8); the ‘baseball bat’ charge (charge 5); the ‘fist’ charge (charge 10); and the ‘sex toys’ charge (charge 9). Ten of the charges of incest are, as earlier discussed, said to be ‘representative’ in the manner previously discussed, they being charges 2, 4, 5, 8, 9, 11, 12, 13, 14 and 15.

With respect to the first two charges, there is a legislative direction that any sentence passed on them is to be concurrent with other sentences unless otherwise directed.[80] Given that the applicant is to be sentenced as a serious sexual offender from charge 3 onwards, however, there is a legislative direction that sentences passed on charges 3 to 15 are to be served cumulatively unless otherwise directed.[81] Strict compliance with the legislative regime concerning concurrency and cumulation is thus made somewhat cumbersome.
[80]Sentencing Act 1991 (Vic) s 16(1).
[81]Sentencing Act 1991 (Vic) s 6E.

In the result, I would order that the applicant be sentenced to be imprisoned for six years on charges 5 and 10; for five years on each of charges 2, 4, 6, 8, 9, 11, 12, 13, 14 and 15; for four years on charge 1; and for three years on charge 3. I would select the sentence on charge 5 as the base sentence, and would order that six months of the sentences on charges 1 and 2 be served cumulatively with each other and with the sentence on charge 5. Further, I would order that two years of the sentence on charge 3; five years of the sentence on charge 10; and four years and six months of the sentences on charges 4, 6, 8, 9, 11, 12, 13, 14, and 15; be served concurrently with each other and with the sentence on charge 5. The total effective sentence is thus 14 years’ imprisonment, upon which I would fix a period of 10 years before which the applicant is not to be considered eligible for release on parole. My overall intention is set out in the table below.

I would cause to be entered in the records of the Court that the applicant is sentenced as a serious sexual offender on charges 3 to 15 inclusive.

I would declare the period of 278 days (not including today) be reckoned as the period already served under this sentence.

I would affirm all other ancillary orders made by the County Court.

Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that, but for the plea of guilty, I would have imposed a total effective sentence of 18 years’ imprisonment, upon which I would have fixed a non-parole period of 14 years.

Charge Offence Sentence Cumulation

1 Incest 4 years 6 months

2 Incest 5 years 6 months

3 Produce child pornography 3 years 1 year

4 Incest 5 years 6 months

5 Incest 6 years Base sentence

6 Incest (representative) 5 years 6 months

7 Indecent act with child under 16 or 17 under care, supervision or authority 2 years 6 months

8 Incest 5 years 6 months

9 Incest 5 years 6 months

10 Incest 6 years 1 year

11 Incest 5 years 6 months

12 Incest 5 years 6 months

13 Incest 5 years 6 months

14 Incest 5 years 6 months

15 Incest 5 years 6 months

Total Effective Sentence: 14 years’ imprisonment

Non-Parole Period: 10 years’ imprisonment

Pre-sentence Detention Declared: 278 days

6AAA Statement: Total effective sentence of 18 years’ imprisonment with a non-parole period of 14 years’ imprisonment

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Charge	Offence	Maximum	Sentence	Cumulation
1	Incest[7]	25 years	7 years	8 months
2	Incest (representative)	25 years	7 years	8 months
3	Produce child pornography[8] (representative)	10 years	5 years	2 years
4	Incest (representative)	25 years	7 years	4 months
5	Incest (representative)	25 years	10 years	Base sentence
6	Incest (representative)	25 years	5 years	4 months
7	Indecent act with child under 16 or 17 under care, supervision or authority[9]	5 years	2 years 6 months	8 months
8	Incest (representative)	25 years	7 years	8 months
9	Incest (representative)	25 years	7 years	8 months
10	Incest	25 years	10 years	12 months
11	Incest (representative)	25 years	5 years	4 months
12	Incest (representative)	25 years	5 years	4 months
13	Incest (representative)	25 years	5 years	4 months
14	Incest (representative)	25 years	5 years	4 months
15	Incest (representative)	25 years	5 years	4 months
Total Effective Sentence:		18 years and 8 months’ imprisonment
Non-Parole Period:		14 years and 8 months
Pre-sentence Detention Declared:		19 days
6AAA Statement:		25 years’ imprisonment with a non-parole period of 21 years
Other orders: Forensic sample order Disposal order Sentenced as serious sex offender (charges 3-15) – life reporting obligation

[2014] VSCA 145

1 July 2014