Rose v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0011

ADAM ROSE (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and EMERTON JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2022
DATE OF JUDGMENT:	14 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 112
JUDGMENT APPEALED FROM:	[2021] VCC 1877 (Judge Georgiou)

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CRIMINAL LAW – Appeal – Sentence – Four charges of indecent act with child under 16 – Five charges of sexual penetration of child under 16 – Sentence of 2 years 5 months’ imprisonment – Whether sentence manifestly excessive – Where applicant and complainant formed relationship after meeting at school – Where applicant 18 and complainant 14 years old – Where applicant put pressure on complainant to engage in sexual conduct – Whether insufficient weight given to applicant’s youth and immaturity – Where term of imprisonment would jeopardise applicant’s prospects of rehabilitation – Where applicant has served approximately 7 months’ imprisonment – Leave to appeal granted – Appeal allowed – Resentenced to 1 year community correction order – Clarkson v The Queen (2011) 32 VR 361, considered.

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Counsel
Applicant:		Ms M Casey and Mr N Mutton
Respondent:		Ms S Clancy
Solicitors
Applicant:	Brown McComish Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
EMERTON JA:

The applicant pleaded guilty in the County Court of Victoria to four charges of committing an indecent act with a child under 16[1] and five charges of sexual penetration of a child under 16.[2] He was sentenced on 19 November 2021 as follows:
[1]Contrary to Crimes Act 1958 s 47.
[2]Contrary to Crimes Act s 45.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Indecent act with child under 16	10 years	1 month	-
2	Indecent act with child under 16	10 years	2 months	-
3	Indecent act with child under 16	10 years	4 months	-
4	Indecent act with child under 16	10 years	6 months	1 month
5	Sexual penetration of child under 16	10 years	14 months	3 months
6	Sexual penetration of child under 16	10 years	12 months	2 months
7	Sexual penetration of a child under 16	10 years	18 months	Base
8	Sexual penetration of a child under 16	10 years	14 months	3 months
9	Sexual penetration of a child under 16	10 years	12 months	3 months
Total Effective Sentence:		2 years, 5 months’ imprisonment
Non-Parole Period:		1 year, 3 months
Pre-sentence Detention Declared:		NA
Section 6AAA Statement:		Total Effective Sentence 3 years 6 months Non Parole-Period 2 years 2 months
Other Relevant Orders: 1. Applicant found to be a registrable offender under the Sex Offenders Registration Act 2004, with life reporting period.

The applicant has applied for leave to appeal against his sentence on the single ground that the individual sentences and total effective sentence are manifestly excessive.
For the reasons that follow, leave to appeal will be granted and the appeal allowed. The sentence of imprisonment will be set aside and the applicant will be re-resentenced. The applicant will be subject to a community correction order for a period of one year.

Circumstances of the offending

The circumstances of the applicant’s offending are set out in the judge’s reasons for sentence[3] and the Prosecution Summary of Facts, tendered on the plea.
[3]DPP v Rose (a pseudonym) [2021] VCC 1877 (‘Reasons’).
The applicant and complainant met in February 2017 while they were both students at the same school. At the time, the applicant was 18 and the complainant was 14. They began communicating via social media. The complainant told the applicant her age and he said he thought she was older.
After talking online for a few days, the applicant suggested they meet up in person at school. When it came to time to return to their respective classes, the applicant hugged the complainant and held her waist and hands. Following that meeting, the applicant sent the complainant a message saying, ‘I can’t wait to teach you how to kiss’ and told her that her lips looked soft. Later, when he met the complainant outside of school hours, he kissed her on the lips.[4] He told her that their relationship was to be kept secret. When the complainant asked why, the applicant told her he was ‘scared of the label boyfriend and girlfriend’.
[4]Uncharged act.
The applicant and complainant would sometimes watch movies at her house, holding hands and kissing when they were alone. They would also kiss at school.[5]
[5]These incidents constituted uncharged acts, led as evidence to provide context for the applicant’s offending.
Once when the applicant and the complainant were sitting near a river, they began kissing. The applicant touched the complainant’s breast over her clothing. She pushed his hand away and he apologised. They continued kissing and the applicant again touched the complainant’s breast. The two occasions of touching the complainant’s breast form the basis of charge 1, which is a rolled-up charge.
On another occasion when the complainant was visiting the applicant’s house, he asked her to remove her top and bra. She said ‘no’. He grabbed her wrists and pinned her arms down. The complainant again said ‘no’, but the applicant pulled up her top and bra, exposing her breasts, and commented that ‘it looked good’. This conduct forms the basis for charge 2.
The applicant subsequently started sending the complainant nude images and videos of himself masturbating via Snapchat. These were deleted automatically after being viewed by the complainant. The applicant asked the complainant to send him nude images of herself. The complainant mostly refused these requests, but she did send some images. At one point, the applicant asked to take sexualised or nude photographs of the complainant, but she refused. The applicant was not charged in relation to this conduct.
The conduct giving rise to charge 3 occurred at the applicant’s house. The applicant and the complainant were on the applicant’s bed under the covers watching a movie. The applicant pulled down the complainant’s tracksuit pants and underwear, and exposed his penis. He asked the complainant to perform oral sex. She said that she was not sure and was not comfortable with it, but the applicant persisted. He asked her to kiss his penis, which she briefly did.
On another occasion, the applicant asked the complainant to lick his penis, which she did. This forms the basis for charge 4.
Charge 5 is a representative count encompassing two occasions on which the complainant performed oral sex on the applicant at his request, while in his bed.
The conduct giving rise to charge 6 occurred when the applicant digitally penetrated the complainant’s vagina ‘a bit more or harder than previously’, causing her to bleed.
As their relationship progressed, the applicant’s language and behaviour towards the complainant became more sexualised. The applicant asked the respondent if she ‘liked his cock’, and told her to speak dirty to him. He also asked the complainant to wear a skirt to his house ‘so it was easier to touch [her]’.
The conduct forming the basis of charge 7 (a rolled-up count) occurred when the applicant and the complainant were at the applicant’s house on his bed. The applicant started talking about condoms and told the complainant he wanted to have sex with her. The complainant was worried that the applicant wouldn’t like her if she said ‘no’, so she agreed. She lay on her back and the applicant got on top of her and partially inserted his penis into her vagina, causing her pain. She told the applicant to stop because it was hurting and he did, saying ‘you’re probably not ready yet’ and that they could ‘do other stuff’ until she was ready. They continued kissing in that position and the applicant again tried to insert his penis into the complainant’s vagina, causing her pain. The complainant moved away, telling him to stop because it hurt.
Approximately three weeks after the events giving rise to charge 7, the applicant again asked the complainant if he could have sex with her and she agreed. The applicant penetrated her vagina with his penis for approximately two minutes. He did not wear a condom, saying it would be okay. When he stopped, he smiled and told her that she was ‘officially not a virgin anymore’. This conduct is the basis of charge 8.
On another occasion, the applicant was at his house in bed with the complainant. He asked whether he could lick her vagina. She said she was unsure but eventually agreed. He then licked and penetrated her vagina with his tongue for between five and 10 minutes. This conduct is the basis of charge 9.
The applicant told the complainant three times that he was breaking off the relationship as he was scared the police would find out. He said they could resume a normal relationship when the complainant was older. They broke up in May 2017.
In total, the sexual conduct in question took place over a period of approximately four months.
In around November 2019, the applicant contacted the complainant and apologised for the way that he had treated her in 2017. They went on to engage in a number of casual sexual encounters.
In May 2020, the complainant informed her mother about the sexual nature of her relationship with the applicant in 2017. The complainant’s mother reported the matter to police.
The applicant was interviewed by police on 19 October 2020 and made extensive admissions. He said that his belief at the time was that if ‘it’ was okay with the parents, ‘it’ was something they could do. He added that he was not sure if that was the case or not. He said that he felt bad doing the ‘kind of stuff’ he was doing before the complainant had turned 16, and that is why he ended the relationship. He also said that he had looked online and he did not think the age gap made their conduct illegal, but he was grappling with the morality of what he had done.
The applicant was not charged until March 2021, some five years after the period of offending. He entered a plea of guilty at the committal mention stage.

Applicant’s personal circumstances

The applicant’s personal circumstances are detailed in the judge’s reasons for sentence.[6]
[6]Reasons, [27]–[36].
The applicant was born in Portland in June 1998. He was raised in a stable household, his mother working as a nurse and his father for an engineering business. He has an older sister. He has a good relationship with his family.
The applicant suffered bullying in his early school years, which included name calling and physical attacks. He changed schools because of the bullying. He adjusted well to his new school and did not have any further issues throughout his schooling. He moved to a new secondary college after Year 11 and completed the Victorian Certificate of Applied Learning.
After leaving school, the applicant had several hospitality jobs, and worked at summer camps in the United States in 2018 and 2019. Before being charged, he was considering tertiary education and was interested in undertaking a degree in psychology.
At the time of being charged, the applicant was living independently in Geelong, but returned to live with his family near Portland for their support. At the time of sentencing, he was in a steady relationship, and hoped eventually to relocate to Adelaide.
The applicant has struggled with mental health issues over the past three years. He received psychological counselling from Headspace and was prescribed Zoloft by his general practitioner for a period of time.
As a result of being charged,[7] the applicant became more socially withdrawn and, out of concern for his wellbeing, his mother arranged for him to see a psychologist, Samantha Jolly. A report by Ms Jolly dated 12 October 2021 was tendered on the plea along with a further psychological report jointly prepared by Pamela Matthews, psychologist, and Daria Sizenko, provisional psychologist, dated 3 August 2021.
[7]And publicity out about the allegations, which gave rise to verbal abuse and property damage directed at the applicant.
Ms Matthews and Ms Sizenko assessed the applicant on 29 June 2021. In their opinion, at the time he offended, the applicant was likely to have been struggling with adolescence: adjusting to changes in his hormone levels and libido, engaging in risk taking, exploring and understanding his sexuality and experimenting with sex. They describe his offending behaviour as a developmental function of adolescence rather than deviancy, and opine that the applicant does not represent any generalised or specific sexual or other risk to any individual or the community. In their opinion, the risk of the applicant reoffending in a similar manner in the future is ‘minimal’. They consider that the applicant now possesses significant insight into his behaviour in previous relationships, including his relationship with the complainant.
However, at the time of his assessment, the complainant met the DSM-V criteria for Major Depressive Disorder based on his reported history and presentation at interview. He also demonstrated some symptoms of social and general anxiety disorders, although he did not meet the criteria for an anxiety disorder. Ms Matthews and Ms Sizenko recommended that the applicant continue to receive regular psychological support for his depressive and anxiety symptoms.

Reasons for sentence

Having set out the circumstances of the applicant’s offending and his personal background, as well as the victim impact statement made by the complainant, the judge turned to deal with the relevant sentencing considerations.
At the outset, his Honour observed that the applicant was to be sentenced as a youthful offender.[8] Consistently with the principles set out in cases such as R v Mills[9] and Azzopardi v The Queen,[10] his Honour stated that the applicant’s youth heightened the importance of rehabilitation as a sentencing consideration and that it was relevant to the question of his moral culpability.
[8]Reasons, [37].
[9][1998] 4 VR 235.
[10](2011) 35 VR 43; [2011] VSCA 372.
Having regard to the psychological material tendered on the plea, the judge described the applicant to be a ‘relatively immature 18 year old’ at the time of the offending. He noted, in this regard, Ms Matthews’ and Ms Sizenko’s view that the applicant’s behaviour represented a ‘developmental function of adolescence rather than deviancy’. The judge also considered the fact that the applicant and the complainant were in a relationship to lessen the applicant’s moral culpability somewhat.[11]
[11]Reasons, [38].
While the judge recognised that the complainant may have given ostensible consent to the bulk of the applicant’s acts, he observed that she had shown reluctance before the act constituting charge 3, and had told the applicant to stop before he committed the second penetrative act the subject of charge 7.[12] Further, consistently with authority, the judge recognised that the applicant’s consent could not act as a mitigating factor, having regard to her age.[13]
[12]Ibid [40].
[13]Ibid [41]–[42].
The judge accepted that the age gap between the applicant and complainant was not significant in chronological terms, and that the applicant was not in a position of trust. However, his Honour found that there was a ‘not insignificant power imbalance’ between the two young people: the applicant gave the complainant gifts at school; he commented on her appearance, saying that she was ‘sexy’ and ‘hot’; he sent her explicit images and videos of himself; and his language towards her became more sexualised and included him wanting her to ‘talk dirty’ and to have sex with him.[14] The complainant was said to be at a point where, just before the first instance of penile-vaginal penetration, she felt the applicant would not like her if she said ‘no’. In this regard, the judge described the applicant’s behaviour towards the complainant as ‘manipulative’ and intended to place ‘pressure on her to engage in sexual activity’.[15]
[14]Ibid [43].
[15]Ibid [44].
In assessing the overall seriousness of the applicant’s offending, the judge had regard to the maximum penalties that could be imposed for each charge (10 years) and the fact that the applicant’s offending was not an isolated incident, but occurred over a four month period. In addition, charges 1 and 7 were rolled-up charges, charge 5 was a representative charge and charge 8 was aggravated by the fact the applicant did not wear a condom.[16]
[16]Ibid [45].
Accordingly, the judge rejected the applicant’s submission that his offending was at the ‘lower end of the scale of seriousness’. While his Honour considered that charges 1 and 2 fell at that end of the scale, the remaining charges were objectively more serious and ‘fell towards the mid-range level’.[17]
[17]Ibid [46].
The judge was clearly sceptical of the proposition that the applicant was not aware that his conduct was illegal. The applicant had kept his relationship secret, and had told the complainant he wanted to end their relationship as he was scared the police would find out. However, the judge accepted that it was unclear whether the applicant became concerned about police finding out before or after the sexual relationship with the complainant ended. As a result, the judge was not able to make a finding as to whether or not the applicant knew his conduct was illegal.[18]
[18]Ibid [39].
The judge gave weight to the fact the applicant had pleaded guilty at the earliest reasonable opportunity, and at a time when the court’s lists were adversely affected by the COVID-19 pandemic.[19] In light of the applicant’s guilty plea, the full admissions he made to police, and his apology to the complainant, the judge accepted that the applicant was genuinely remorseful for his behaviour.[20] His Honour also had regard to the fact that the applicant was of good character, and had not offended since 2017.[21] Moreover, the delay in his sentencing meant he had lost the ‘real possibility’ of being sentenced to a youth justice disposition.[22]
[19]Ibid [47].
[20]Ibid [48].
[21]Ibid [49].
[22]Ibid.
The judge assessed the applicant’s prospects of rehabilitation to be ‘very good’, noting his lack of prior and subsequent offending, his young age, the conclusions of Ms Matthews and Ms Sizenko that his risk of reoffending was minimal, and his strong family support.[23] His Honour also had regard to the character references tendered on the applicant’s behalf.[24]
[23]Ibid [50].
[24]Ibid [51]–[53]
However, notwithstanding the applicant’s youth and the importance of rehabilitation, the judge considered general deterrence, denunciation and just punishment to be important sentencing considerations in the circumstances of this form of offending. In his Honour’s view, others minded to engage in similar conduct had to understand that if they did, they risked stern punishment. Regard also had to be had to the harm caused to the complainant.[25]
[25]Ibid [54].
The judge stated that he had had regard to a number of sentencing decisions for similar offending.[26]
[26]Ibid [57].
His Honour concluded that, having regard to all of the circumstances of the case, a community correction order was outside the range of sentences that could be imposed.[27] He said the applicant’s offending was too serious for such a disposition.[28] He had reached that conclusion while mindful that imprisonment was a sentence of last resort and the applicant had not previously been in trouble with the law. He had also had regard to the fact that the applicant would serve his sentence at a time when the burden of imprisonment was more onerous because of COVID-19 restrictions and imprisonment would also be more onerous for the applicant because of his young age and major depressive disorder.[29]
[27]Ibid.
[28]Ibid [58].
[29]Ibid [60].

Submissions

The applicant submits that while the offences of which he was convicted are inherently serious, the individual sentences and the total effective sentence imposed are manifestly excessive having regard to all the circumstances.
According to the applicant, the gravity of his offending must be assessed in the context of what was otherwise a normal high school relationship involving willing participants and an age difference that was not significant. The applicant submits that his relationship with the complainant involved mutual affection, was not predatory, did not involve a breach of trust and was not pursued by the applicant solely for sexual gratification.
In this context, the applicant relies on the description of the ‘exceptional case’ in Clarkson v The Queen.[30] In Clarkson, this Court held that ‘ostensible consent’ will not be a mitigating factor where an offender is sentenced for charges of sexual penetration of a child under 16 or committing an indecent act with a child under 16. Consent will be a product of a significant age difference and/or power imbalance between the offender and the victim and the circumstances will reveal an abuse of position of trust or authority that increases the gravity and culpability. However, the Court went on to say:
At the other end of the scale, there are exceptional cases — for example, in a relationship between a 15-year-old girl and an 18-year-old boy — where consent is, relatively speaking, freely given and genuine and a reflection of a genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced.[31]
[30](2011) 32 VR 361; [2011] VSCA 157 (‘Clarkson’).
[31]Ibid 364 [6] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
The applicant submits that his case plainly does not fall into the category involving a significant age difference or power imbalance, or an abuse of trust, and that it is similar in key respects to the exceptional case.
The applicant points to the psychological evidence of Ms Matthews and Ms Sizenko that he was still in adolescence, defined clinically as continuing up to the approximate age of 26 years.[32] Central to adolescence is the task of forming an adult identity, taking time to adjust to the new roles and responsibilities. This may result in experimentation that includes conduct that seems extreme to adults.
[32]Rather than by reference to the legal definition of adulthood, which is 18 years.
The applicant submits that the uncharged acts were not grooming, but were indicative of a normal teenage relationship. There was no evidence that the applicant’s offending behaviour was outside the norms of teenage sexual exploration and experimentation; nor was there any evidence that the applicant was attempting to coerce the complainant to engage in sexual activity or penetration or that he was aware of any discomfort or reluctance of the complainant, as she kept her feelings to herself. The applicant describes the conduct as simply ‘sexual exploration within a relationship between two adolescents’. He submits that he himself had been exposed to sexual activity at a young age with an older person and this normalised such behaviour for him. It was only later in life that he realised the effect it had had on him. That realisation led in part to his apology to the complainant. He pleaded guilty at the earliest reasonable opportunity and demonstrated genuine remorse.
The applicant also submits that imprisonment is especially burdensome for him because of his psychological condition. In addition to meeting the criteria for Major Depressive Disorder and showing symptoms of social and general anxiety disorders, he has reported self-harming and having suicidal thoughts (although he said he would not act on them). The applicant submits that at least in relation to his Major Depressive Disorder, imprisonment weighs more heavily on him in the sense identified in R v Verdins.[33] It is also more burdensome for him given his young age and the restrictions that continue in Victorian prisons due to COVID-19.
[33](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 62 (‘Verdins’).
Furthermore, so the applicant submits, there was significant delay in dealing with this matter. Almost three and a half years passed from the time of the offending until the applicant was interviewed by police in October 2020. It took a further 13 months before he was sentenced (at the age of 23). This was in part because charges were not filed until March 2021. The delay meant that he lost the opportunity to be sentenced to detention in a youth justice centre.
Finally, the applicant relies on a series of comparable cases which he says were not brought to the sentencing judge’s attention and in which community correction orders were made for conduct like his.[34]
[34]See DPP v Brode (a pseudonym) [2020] VCC 498; DPP v Smith(a pseudonym) [2021] VCC 982; DPP v Calladine [2020] VCC 2014; DPP v Yuen [2020] VCC 1527; DPP v Dole [2016] VCC 913.
According to the respondent, the applicant has mischaracterised the nature of his offending and has misunderstood the importance of general deterrence in sentencing for criminal conduct of this kind. Because the protection of children is so important, the factors of youth and prospects of rehabilitation have a lesser role to play in the exercise of the sentencing discretion.
The respondent submits that the relationship which existed between the applicant and the complainant is not of the kind contemplated as exceptional in Clarkson. Such a characterisation is incongruous with the agreed facts and circumstances of the offending outlined and misunderstands the gravity of the offending. The objective seriousness of the offences for which the applicant was sentenced is reflected in the maximum penalties of 10 years’ imprisonment. The judge was required to impose a sentence that reflected the offence gravity and paid heed to the maximum penalties.
According to the respondent, the following specific matters go to the gravity of the offending and the culpability of the applicant:
(a)the offending was committed over a four month period;
(b)charges 1 and 7 are rolled-up charges, and charge 5 is a representative charge;
(c)charge 8 was aggravated by the applicant not using a condom;
(d)the applicant and the complainant were of different maturity levels and the applicant had engaged in sexual relationships before;
(e)charges 1 and 2 involved an absence of consent and clear resistance from the complainant;
(f)the complainant was reluctant to engage in the sexual activity comprising charges 3, 7 and 9; and
(g)the applicant and the complainant were not friends prior to commencing their relationship. The applicant pursued the complainant and his communications with the complainant became increasingly sexualised.
The respondent submits that there is no challenge to the judge’s findings as to the relational power imbalance, and the manipulation of and pressure placed on the complainant to engage in sexual activity. It was well open to the judge, on the evidence before him, to consider that the offending in charges 3 to 9 fell towards the mid-range of seriousness. He was required to impose a sentence that properly reflected the offence gravity, and the fact that he ordered the individual sentence for charges 1, 2 and 3 to be wholly concurrent and ordered very modest cumulation for charges 5, 6 and 8, demonstrates that the judge carefully balanced the sentencing principles.
The respondent submits that the judge gave full weight to all the matters in mitigation. He read and considered the psychological report, and accepted that the applicant’s risk of reoffending was minimal. He also gave due weight to the applicant’s good to very good prospects of rehabilitation and to his youth.
As to comparable cases, the respondent says that the applicant’s counsel conceded at the plea hearing that there were no cases that were properly comparable and did not provide any comparable cases to the sentencing judge. The Court should not lightly entertain arguments that were not advanced on the plea, but even were the Court to entertain the applicant’s submissions as to comparable cases, the fact that other County Court judges have imposed non-custodial dispositions for the same or similar offences does not assist the applicant’s contention that the sentence imposed here was wholly outside the range. Sentences imposed in previous cases do not define the limits of the sentencing discretion.
In any event, it is submitted, the other sentences relied upon by the applicant are distinguishable. In oral submissions, counsel for the respondent explained how the comparable cases were to be distinguished. In particular, in a number of cases relied on by the applicant, the offender benefited from a ‘Doran Discount’.[35]
[35]See R v Doran [2005] VSCA 271; Latina v The Queen [2015] VSCA 102, [12] (Redlich and Kyrou JJA).
As to the new reliance on limbs 5 and 6 of Verdins, while the judge considered imprisonment to be more onerous for the applicant due in part to his Major Depressive Disorder, the applicant’s solicitor on the plea eschewed any reliance on Verdins. According to the respondent, this disavowal militates against the applicant’s submission on appeal that seeks to enliven limb 5 of Verdins in connection with the Major Depressive Disorder. In any event, the psychological evidence does not support the enlivening of Verdins.

Consideration

As has been repeatedly stated by this Court, the ground of manifest excess is a stringent one, difficult to satisfy.[36]
[36]See, eg, Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
The judge’s reasons for sentence are careful and comprehensive. While the applicant submitted that the judge did not receive adequate assistance from his counsel on the risk assessment that was carried out by the psychologists and no proper attention was paid in submissions to the comparable cases, there is no suggestion that his Honour failed to take any relevant matter into account or that he took into account an irrelevant matter. In particular, he carefully considered the matters in mitigation and the nature of the relationship between the applicant and the complainant.
The gravamen of the complaint about the sentence is that the sentence of imprisonment (2 years and 5 months) was outside of the available range, having regard to the particular circumstances of the offending and the fact that the applicant was an immature 18 year old at the time who was finding his feet on the path to adulthood.
We agree that the sentence imposed was manifestly excessive in the circumstances. In so concluding, we recognise the important purpose of ss 45 and 47 of the Crimes Act 1958 to protect children from sexual exploitation, and we do not discount the significance of the presumption of harm and the actual harm suffered by the complainant, or the power differential in the relationship between the applicant and the complainant, which carried with it the absence of genuine consent. Moreover, having regard to the purpose of the relevant legislative provisions, the sentencing judge was correct to identify general deterrence as an important sentencing consideration.
However, we consider that this is a case where the factors of youth and immaturity have a very significant role to play in the exercise of the sentencing discretion, along with the applicant’s very good prospects of rehabilitation, which will only be jeopardised by a period of imprisonment. Imprisonment hardens people; it does not foster maturity and sensitivity to others.
The applicant relies heavily on the following undisputed assessment of his psychological state both at the time of the offending and at the time of sentencing that was made by Ms Matthews and Ms Sizenko:
It is the writers’ view that [the applicant’s] behaviour before the Court has been a developmental function of adolescence rather than deviancy. Clinically, a five- year age gap between sexually active adolescents is not of concern. As such, in the writers’ view, [the applicant] does not represent any other generalised or specific sexual or other risks to an individual or the community. Based on the assessment and actuarial and structured clinical judgement, [the applicant’s] risk of reoffending similarly is considered to be minimal with the primary contributing factor being his young age.
[The applicant] possesses significant insight into his behaviour in previous relationships, including that with [the complainant], with his admitting faults and unhealthy patterns. He has since attempted to better himself through therapy, noting that he feels happier and more at peace with his sexuality and who he is as a person. It would be recommended that [the applicant] continues with the regular psychological support for his depressive and anxiety symptoms. It would further be recommended that additional aspects relating to relationship, consent, and physical and emotional intimacy are discussed in a therapeutic setting to further minimise the risk of reoffending.
It is apparent that the applicant took advantage of his position as the older and more experienced person in the relationship to put pressure on the complainant to engage in sexual acts with him, and that he dictated their form and frequency. As a result, we do not accept that his relationship with the complainant fits tidily into the ‘exceptional case’ category described in Clarkson. However, we do not consider the gravity of the offending and the applicant’s moral culpability to be such as to warrant a term of imprisonment, let alone a term of over two years. There is substance to the applicant’s contention that his conduct fell within the bounds of teenage sexual exploration and experimentation, albeit that he exploited the power imbalance between them and failed to grasp that the complainant felt pressure to oblige him and was not an enthusiastic participant in the activities that he initiated.
The relationship between the applicant and the complainant was a relationship between two adolescents who were pupils at the same school. The relationship lasted for some four months and was not without mutual affection and care. While there was an imbalance of maturity and power, it was far from the worst kind of conduct involving an indecent act with a child under 16 or sexual penetration of a child under 16. Those offences can and often do involve a much larger age difference, and the exploitation of young children by much older, predatory men who are sometimes in a position of trust. This is not such a case.
It is clear that the applicant is no longer a threat to the community, if he ever was. He is not a sexual predator. He has taken steps to recognise and deal with the unhealthy aspects of his adolescent relationships and has good insight into why his conduct involved the mistreatment of the complainant. He is capable of leading a productive and purposeful life, and of sustaining meaningful and supportive relationships. It is in the interests of the community that this potential be fostered, not compromised by the brutality of a prison environment.
Aside from his young age and very good prospects of rehabilitation, the applicant pleaded guilty, made significant admissions and has demonstrated genuine remorse for his actions. In our view, a community correction order was well within the range of sentencing options available to the judge. Having regard to the availability of such a sentencing option, the sentence imposed of 2 years, 5 months’ imprisonment with a non-parole period of 1 year, 3 months must be seen to be not only very stern, but also as being outside the range.
In the circumstances, the sentence will be set aside and the applicant will be resentenced.

Resentencing

The applicant has filed updated reports from Ms Matthews and Ms Sizenko for the purpose of resentencing. He also relies on the affidavit of his solicitor, who describes the real difficulties he is experiencing in prison. That affidavit paints him as a model prisoner, but he is evidently very distressed by the lack of agency and support he is experiencing as a result of being incarcerated.
According to the psychological evidence, the applicant continues to meet the DSM-V criteria for Major Depressive Disorder with anxious distress. He presents with a depressed mood most of the day nearly every day; markedly diminished interest in activities most of the day nearly every day; significant weight loss; sleep disturbance; ongoing fatigue; feelings of worthlessness; diminished ability to think and concentrate; and recurrent thoughts of death. Although the applicant does not currently present with suicidal ideations, his prior self-injury and suicidal thoughts and current regular thoughts surrounding death are said to indicate an elevated risk for suicide.
The applicant reports he has received limited support in the last six months, and his mental state has significantly deteriorated. In the opinion of Ms Matthews and Ms Sizenko, the applicant’s custodial experience is and will continue to be onerous.
According to Ms Matthews and Ms Sizenko, the applicant will require mental health treatment for quite some time to recover from his current condition and circumstances. He will need to engage in regular and ongoing psychotherapeutic counselling to assist him to manage ongoing distress. His insight and recognition of the need for support suggests that he will comply with treatment requirements, and the continued support of his family and partner, his engagement with work and further education, and compliance with treatment, are favourable factors for his rehabilitation.
The applicant has been assessed as suitable for a community correction order. In ordinary circumstances, in order to ensure that such a disposition represents a punishment as well as a vehicle for rehabilitation, we would have ordered hours of community work as well as compliance with therapeutic requirements. In our view, however, the applicant, having been imprisoned for seven months, has been punished for his conduct and punishment should no longer be one of the primary reasons for the imposition of the order.
In these circumstances, we consider that a correction order for a period of twelve months is sufficient and that no work requirement should be imposed. In determining this latter aspect of the community correction order, we have taken into account that the applicant has already served approximately seven months of imprisonment. The applicant will be required to attend services for mental health assessment and treatment.
More generally, in determining the appropriate disposition in this unfortunate case, we have taken into account the powerful victim impact statement prepared by the complainant and the harm that she has suffered as a result of the applicant’s conduct.
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[2022] VSCA 112

14 June 2022