• Sexual assault of a child under the age of 16 contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016

• Sexual penetration of a child under 16 years contrary to s 49B(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016

• Sexual penetration of a child under 16 years contrary to s 49B(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016

• Pre-sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

• Section 6AAA Statement:

• 4 years and 8 months' imprisonment with a non-parole period of 3 years and 2 months

1. Serious sexual offender - charges 3, 4 and 5
2. Forfeiture and disposal orders
3. S 34 SORA reporting for life

1. The applicant seeks leave to appeal sentence on two grounds, namely:

(1) The learned sentencing judge erred by failing to take into account limb 2 of R v Verdins.

(2) The total effective sentence and non-parole period are manifestly excessive.

1. The offending was committed by the applicant between 23 July 2024 and 10 August 2024. At the time, the applicant, who was 30 years of age, was employed on a casual basis as a bistro and bar attendant.
2. At the time of the offending, the victim was 15 years of age. He resided with his parents in Wantirna, and was employed on a casual basis as a bistro attendant at the same premises as the applicant. The victim's role included general front-of-house duties, serving food and taking orders. He was not permitted to enter the gaming areas of the premises due to his age.
3. The offence, that was the subject of charge 1, was committed between 23 July 2024 and 10 August 2024. During that time, the applicant messaged the victim on Instagram on more than 500 occasions. The messages included text and voice messages that were sexual in nature, and included explicit images and videos of the applicant, that were sent to the victim with the intention that the communications would facilitate the victim engaging in sexual activity with her. The contents of a number of the messages were set out in the summary of prosecution opening. It is not necessary for the purposes of the current application to recite them. It is sufficient to note that a number of them were quite explicit and suggestive, and supported the element of the offence that was the subject of charge 1, namely, that the communications were intended to encourage the victim to engage in sexual activity with the applicant.
4. The offence, that was the subject of charge 2, was committed on 27 July 2024. On that occasion, the applicant drove the victim home from work after they had each completed an evening shift. The applicant had a bottle of vodka in her vehicle that she had purchased for the victim. The applicant drove to the vicinity of the victim's home, stopped the vehicle, and kissed the victim on the mouth before he went inside.
5. The applicant later that evening sent the victim text messages which included: 'I didn't want that kiss to end, I was thinking about doing that all night'; 'I haven't done that before especially the age gap, we just get along so well ... I just want to kiss you again'. On the following day, the applicant sent the victim a Snapchat message which said: 'Yeah well it was a good kiss I want another one'.
6. The offences, that were the subject of charges 3, 4 and 5, were committed by the applicant on 10 August 2024. On that date, the applicant and the victim worked an evening shift. Before the shift commenced, the applicant sent the victim a message stating:

I'm gonna sit on top of you while you take my bra off, kissing me and then I'll decide what I'm going to do with you ...

1. At about 10:30 pm, the applicant and the victim completed their shift and left work in the applicant's motor vehicle. The applicant said to the victim that she could not believe that she was doing this, that she had to wait until the victim was 17 or 18 years old, but that 'she doesn't care'. The applicant drove past the turnoff to the victim's home, parked her vehicle on the side of the road, and then began kissing the victim on the mouth in the front seat of the vehicle (part of charge 3 - sexual assault of a child under the age of 16 years - rolled-up charge). While kissing the victim, the applicant put her hand into his trousers under his clothing and touched and rubbed his penis (charge 3).
2. The applicant and the victim then climbed across the centre console into the backseat of the vehicle. The victim sat on the back passenger seat where he removed his trousers and his underwear. The applicant then leant over and put the victim's penis into her mouth, and performed oral sex on the victim for approximately five minutes (part of charge 4 - sexual penetration of a child under 16 years - rolled-up charge).
3. The applicant stopped performing oral sex on the victim. There was a brief discussion about having sexual intercourse. The applicant then recommenced performing oral sex on the victim for a further one or two minutes (charge 4).
4. The applicant then removed her clothes and underwear. She placed one leg over the victim so that she was straddling the victim while facing him. She then introduced the victim's penis into her vagina and had sexual intercourse with the victim in that position for approximately five minutes (charge 5 - sexual penetration of a child under 16 years - rolled-up charge).
5. The applicant then laid on her back on the rear seats of the vehicle. The victim got on top of her, where she introduced his penis into her vagina, and had sexual intercourse with the victim for approximately 10 minutes (charge 5). The victim then stopped and got off the applicant. He sat on the seat. The applicant straddled the victim , introduced his penis into her vagina, and had sexual intercourse with the victim in that position for approximately 10 seconds (charge 5).
6. The applicant then again laid on her back on the rear seats of the vehicle. The victim got on top of the applicant, where she introduced his penis into her vagina, and she had sexual intercourse with the victim in that position until the victim ejaculated inside her vagina (charge 5).
7. The applicant and the victim then got dressed before returning to the front seats of the vehicle. The applicant drove the victim near his home address, and he arrived home at 11:14 pm. After the applicant arrived at her home at 11:20 pm, she sent the victim a message on Instagram stating: 'So much for waiting until you were 18 or even 16. Haha I had fun though. Dream come true for you'.
8. In the meantime, between 25 July 2024 and 10 August 2024, the victim had told his father that someone had been sending him sexual posts. He subsequently told two managers at his employment that the applicant had been sending explicit photographs to him and that he wanted it to stop because he felt uncomfortable. The victim also made disclosures to a neighbour and work colleague. On 17 August 2024, the victim reported the matter to police. On 19 August 2024, police executed a search warrant on the applicant's residence. Following further investigations, on 28 November 2024, the applicant attended Knox police station where she was arrested and charged. She was interviewed, and exercised her right to make no comment to the questions asked of her.

The plea - the applicant's background and circumstances

1. The applicant was born in December 1993. She was the second of three children of her family. The applicant was raised on a small farm in Gembrook. She attended Macclesfield Primary School, and for the first three years of her secondary education she attended Mater Christie College in Belgrave for years 7 to 9 inclusive. The applicant then attended Box Hill Secondary College where she completed years 10 to 12. After leaving school, the applicant enrolled for nursing studies in Warrnambool. She initially had difficulty with her studies, but ultimately completed her Bachelor of Nursing at Victoria University in 2017. She was first registered with the AHPRA as a nurse in 2018, and she worked as a nurse until March 2024, when she was suspended from practice in the context of allegations regarding her taking a Schedule 8 medication for personal use.
2. The applicant has had a difficult background in terms of her personal relationships. She has alleged that she was sexually abused by her father when she was aged seven years. She commenced her first serious relationship in about 2011 when she was about 18 years of age. The relationship lasted for about 10 years. The relationship was initially harmonious, but it became unstable and difficult as a result of the abuse of substances by both the applicant and her partner. The relationship came to an end in 2021. At that time, the applicant was admitted to residential drug detoxification at Malvern Hospital. Following her discharge from the hospital, she had a series of relapses, and in total she had six admissions to the drug treatment program at the hospital between 2021 and 2023.
3. During that period, the applicant met Jack, her second serious romantic partner, in the Malvern Hospital. However, Jack struggled with psychiatric issues and substance dependence and he was particularly violent in the relationship. In November 2023, Jack was charged with criminal offences arising from serious family violence perpetrated on the applicant, and the Court made an intervention order to protect the applicant.
4. Following her arrest on the present charges, the applicant, in November 2024, entered the SHARC (Self Help Addiction Resource Centre) rehabilitation program for women. In a report tendered on the plea dated 11 July 2025, Ms Heather Pickard, the manager of residential programs of SHARC, noted that the applicant had been an 'exceptional resident', working hard towards her recovery. She had consistently completed negative drug screens every week. Ms Pickard considered that the applicant's prognosis was 'very positive'.
5. A report by Malvern Private Hospital was also tendered on the plea. The report confirmed the six periods in which the applicant had been admitted to Malvern Private Hospital as an inpatient between 15 April 2021 and 18 November 2024. The most recent period of treatment at the facility was between 4 October 2024 and 18 November 2024.
6. Ms Pickard also provided a personal character reference for the applicant which was tendered on the plea. In that reference, Ms Pickard noted that the applicant had remained substance free, and that she was committed to improving her life through rigorous self‑reflection, positive action and hard work. The applicant had expressed deep remorse and 'crippling shame' for the circumstances that were the subject of the charges. Ms Pickard considered that the applicant's prognosis was very positive, and Ms Pickard believed that the applicant would continue to work hard on her own recovery.
7. The applicant was examined by Mr Patrick Newton, a clinical and forensic psychologist, on 7 July 2025. In his report, Mr Newton concluded that the applicant meets the diagnostic criteria for Borderline Personality Disorder, Polysubstance Dependence (in early remission), and Adjustment Disorder with mixed disturbance of emotions and conduct. Mr Newton noted that the Adjustment Disorder was initially precipitated by the applicant's arrest and prosecution on the charges, and that it remained active at the time of examination.
8. Mr Newton noted that the applicant reported she was experiencing a state of heightened emotional distress at the time of the offending. However, Mr Newton was not supplied with any contemporaneous clinical records to establish the severity of the symptoms, and he considered that the applicant's reports suggested that she was experiencing mild to moderate psychological problems at the time. Mr Newton noted that the distress had not been sufficient to prevent the applicant from working effectively in the bistro or carrying out other daily activities, and accordingly, they were assessed as having been of relatively mild (and no more than moderate) intensity. He considered that the depressive component of the applicant's distress would have contributed to some increase in her subjective sense of interpersonal 'neediness' and would have increased her desire for support and validation. He also considered that the applicant's decision to engage in the offending reflected the outworking of cognitive distortions regarding the victim's precocious sexuality and her own sexual neediness.
9. Mr Newton considered that the most effective treatment for the applicant's Borderline Personality Disorder is participation in Dialectical Behaviour Therapy (DBT). Mr Newton observed that no DBT programs are currently available in prison settings.
10. Mr Newton concluded that the applicant's personality disorder and the complex effects on her mental health would probably render her a vulnerable prisoner, and she was likely to suffer a significant deterioration in a custodial environment. He assessed the applicant to be a low risk of reoffending provided she received the appropriate intervention.

1. On the plea, counsel for the applicant submitted that the sentencing judge should impose a community correction order, subject to strict conditions, which could be tailored to promote her rehabilitation by requiring her to engage in mental health treatment and offender behaviour courses as recommended by Mr Newton.
2. In response, counsel for the prosecution submitted that the only appropriate sentence was a term of imprisonment with a non-parole period.

1. The standard sentencing regime applied to the offences that were the subject of charges 2 to 5 inclusive. Under the Sentencing Act 1991, charges 2 and 3 have a standard sentence of 4 years' imprisonment, and charges 4 and 5 have a standard sentence of 6 years' imprisonment.
2. The serious sexual offender provisions of the Sentencing Act apply to each of the offences. All of the charges are 'sexual offences' under the Serious Sexual Offender regime.[2] Accordingly, on being sentenced to imprisonment on two of the charges, the applicant was to be sentenced as a Serious Sexual Offender on the remaining three charges. In doing so, the Court was required to regard protection of the community as the principal sentencing purpose. Further, s 6E of the Sentencing Act required that each term of imprisonment imposed by the Court on a serious offender for the relevant offending must, unless the Court otherwise directs, be served cumulatively.

1. In her reasons for sentence,[3] the judge commenced by noting that any sexual offence perpetrated against a child is serious, as reflected by the maximum penalty and standard sentence prescribed by Parliament. The judge noted that the offences, that were subject to charges 3, 4 and 5, were all part of the one episode, but nevertheless, the applicant's offending was serious.[4] Her Honour noted that the applicant knew that what she was doing was wrong and illegal. The offending involved a significant amount of Instagram and Snapchat contact that was persistent and clearly intended to facilitate sexual conduct.[5]
2. The judge accepted that the applicant's pleas of guilty were at an early stage and there was significant utility in them. The applicant had saved the community the time and expense of a trial, and had spared witnesses, and in particular the victim, the ordeal of giving evidence. As such, the applicant had facilitated the administration of justice, and had accepted responsibility for her offending. The judge also accepted that the pleas were further evidence of some level of remorse, although the psychological assessment by Mr Newton suggested that the applicant considered that her victim was the instigator of the escalation in her conduct.[6] The judge set out, in some detail, the applicant's background circumstances and summarised the conclusions of Mr Newton. Having done so, her Honour concluded that the applicant's offending was serious, that she had groomed her victim from shortly after the time that they had met, and that the applicant's behaviour had quickly escalated to penetrative sex.[7]
3. The judge considered that general deterrence was of paramount importance, and that specific deterrence also had 'some role to play'. Her Honour considered that the applicant's prospects of rehabilitation are reasonable, contingent on her engaging with mental health support and drug and alcohol rehabilitation and abstaining from illicit drug abuse. The judge accepted Mr Newton's opinion that the applicant presented with a low risk of recidivism.[8]
4. The judge accepted that the applicant was a person of good character. She had not exploited her previous good character to facilitate the offending, so that the judge was entitled to take her good character into consideration as a mitigating factor. The judge accepted that the principles in Bugmy v The Queen[9] applied, albeit that the applicant did not have the kind of depravation contemplated by the High Court in Bugmy.
5. The judge then turned to the submission made on behalf of the applicant that each of the six limbs outlined in R v Verdins[10] applied. I shall return to this aspect of the judge's reasons when considering ground 1. For the reasons I shall explain, I am not persuaded that there is any arguable error by the judge in respect of ground 1. In particular, it is quite evident that, when read in context, the judge, in her reasons, did take into account each of the six limbs of Verdins.
6. The judge then considered the submission by the applicant that her Honour should impose a community correction order on the applicant. The judge noted that while she did not agree that such an order alone would meet all the sentencing considerations, she, nevertheless, had the applicant assessed for such an order with a potential combination sentence in mind. The judge noted that the assessor did find that the applicant was suitable for a community correction order and that a Mental Health Advice and Response Service report found the applicant to be suffering moderate mental health issues.
7. However, having considered the matter further, the judge concluded that such a sentence was not open due to the gravity of the offending, and accordingly, her Honour imposed a head sentence with a non-parole period.[11]

1. Ground 1 is directed to the following passage in the sentencing reasons in which the judge discussed the application of the principles stated in Verdins in the following terms:

Overall I consider the Verdins principles to be engaged by your borderline personality disorder and adjustment disorder. Given the competing influences of your mental health and your drug use, I moderate your moral culpability and general and specific deterrence to a modest extent.

The applicability of Verdins limbs 5 and 6 was conceded by the prosecution. Given your mental health difficulties, I do consider that imprisonment will be harder for you than for an offender without such conditions. I also accept that imprisonment is likely to see a deterioration in your mental health in relation to reduced supports and increased stressors. I moderate the sentence accordingly.[12]

1. Counsel for the applicant submitted that, in that passage, the judge concluded that limbs 1, 3 and 4 of the Verdins principles were enlivened 'to a modest extent', and her Honour noted that the applicability of Verdins limbs 5 and 6 was conceded by the prosecution. In that respect, counsel noted that the judge accepted that the applicant's prospects of rehabilitation were reasonable, and her Honour accepted the opinion expressed by Mr Newton that the applicant presented a low risk of recidivism.[13] It was submitted that, in that context, 'starkly absent' from the judge's considerations was the second limb of Verdins: that the applicant's impaired mental functioning may have a bearing on the kind of sentence imposed and the conditions in which it should be served.
2. In response, counsel for the respondent submitted that, on a fair construction of the judge's reasons, the judge did accept the application of each of the 'limbs' in the Verdins principles, including limb 2. In particular, the judge decided to have the applicant assessed for a community correction order, which reflected the evidence on the hearing of the plea that the applicant would be a vulnerable prisoner for whom the burden of incarceration would be more considerable.

1. On a proper analysis of the judge's sentencing reasons, it could not be concluded that ground 1 is reasonably arguable.
2. In the opening sentence of the passage in the judge's reasons, to which I have referred, her Honour expressly stated that she considered that the Verdins principles were 'engaged' by the applicant's Borderline Personality Disorder and Adjustment Disorder. Quite clearly, given the seriousness of the offending in the case, it was that consideration that had persuaded the judge to have the applicant assessed for a community correction order, and her Honour noted that the assessor found that the applicant was suitable for such an order and that a Mental Health Advice and Response Service report had found her to be suffering moderate mental health issues.[14] However, the fact that limb 2 of Verdins might be 'engaged' - that is, that there was a basis for giving it proper consideration - did not have the consequence that it was thus necessary for the judge to impose a sentence other than one of imprisonment.[15]
3. In the circumstances, it is clear the judge did regard the applicant's impaired mental functioning as relevant to determining the kind of sentence that was to be imposed on the applicant, albeit that her Honour ultimately expressly concluded that, 'due to the gravity of the offending', the only appropriate disposition was to impose a head sentence and a non-parole period.[16]
4. For those reasons, I do not consider that ground 1 of the proposed application for leave to appeal to be sufficiently arguable. Accordingly, leave to appeal on ground 1 is refused.

1. In support of ground 2, counsel for the applicant submitted that the offending by the applicant came within the 'lower end of the scale' of such offending. In particular, the offending that was the subject of charge 1 (grooming) covered a 'relatively brief period' of two and one-half weeks. Charge 2 (sexual assault of a child under 16 years) was constituted by kissing the victim on the mouth. The offences, that were the subject of charges 3, 4 and 5, all occurred as part of the same occasion. It was submitted that the sexual encounter between the applicant and the victim was comparatively brief and was not accompanied by threats, force, inducements or any other features of aggravation.
2. On the other hand, it was submitted that the applicant was able to rely on a number of factors in mitigation which include the following:

(a) the applicant's diagnoses of Borderline Personality Disorder and Adjustment Disorder;

(b) that the applicant's risk of recidivism was low;

(c) the applicant had no previous convictions, her previous good character did not assist her in the commission of the offences, and she had maintained a respectable work history, notwithstanding issues that she had suffered with her mental health problems;

(d) the applicant had engaged in significant rehabilitation following the offending, which included residential rehabilitation, ongoing participation in drug and alcohol recovery and individual therapy.

1. In support of the submission that the sentences imposed on the applicant were manifestly excessive, the applicant also relied on sentences imposed in other 'comparable' cases, including DPP v Allen[17], DPP v Ooms,[18] DPP v Woods[19] and DPP v Beavis (a pseudonym).[20]
2. In response, counsel for the respondent submitted that there were a number of serious factors attaching to the applicant's offending. The offending encompassed multiple instances of sexual touching, culminating in six instances of sexual penetration in total. There was a considerable age difference between the applicant and the victim. The victim himself was, as a matter of law, a child, and he was vulnerable and plainly inexperienced. The applicant did not use a condom during the acts of sexual penetration. The grooming, which preceded the contact offending, was conducted over a period of two and one-half weeks, in which the applicant repeatedly acknowledged the victim's young age and the illegality of what she was doing. During that period, the applicant manipulated the victim, telling him how 'lucky' he was to be receiving sexually explicit material from her, and she purchased alcohol for him. Her messages to the victim encouraged him to view sexual activity with an older woman as a 'dream' for a boy of his young age.
3. Counsel for the respondent also noted that the applicant was to be sentenced as a serious sexual offender on charges 3, 4 and 5, with the consequence that community protection was to be accorded primacy in the sentencing considerations on those charges. In addition, the judge was also obliged to apply the standard sentencing regime to charges 2 to 5 (inclusive); charges 2 and 3 having a standard sentence of 4 years' imprisonment, and charges 4 and 5 having a standard sentence of 6 years' imprisonment.
4. Counsel submitted that the judge gave the applicant the benefit of a number of the mitigating circumstances on which she relied. However, counsel noted that the sentences imposed on the applicant for the two charges of sexual penetration of a child under 16 years represented a small proportion of the prescribed maximum sentence of those sentences and were each well below the prescribed standard sentence. It was submitted that the individual sentences imposed on the applicant could only be regarded as very lenient, and that the orders for cumulation were modest.
5. Counsel for the respondent referred to and relied on the following cases as demonstrating that the sentences imposed on the applicant were lenient in all the circumstances: Fisher (a pseudonym) v The King [2025] VSCA 131; Simms v The Queen [2022] VSCA 114; Bouris v The Queen [2021] VSCA 245; and DPP v Spottiswood [2021] VSCA 146.

1. In order to succeed on the ground of manifest excess, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge. Such a test is, of its nature, a stringent requirement. It is not sufficient for the applicant to establish that the individual sentences, the orders for cumulation or the total effective sentence were longer than the appellate court might have imposed in the circumstances of the case. Rather, the applicant must demonstrate that the sentences were so excessive as to bespeak error by the judge in the exercise of the sentencing discretion.[21]
2. In determining ground 2, the starting point is that the offending by the applicant was, objectively, quite serious. There was a considerable age difference between the applicant and the victim. The applicant's age was twice that of the victim. The applicant had previously been involved in two serious sexual relationships, which placed her at a considerable advantage in terms of her ability to influence and affect the victim. The offending included a period of grooming. During the offending, the applicant herself was clearly conscious that her conduct was wrong.
3. The applicant did have available, and relied on, a number of mitigating factors. They included those referred to by counsel for the applicant, namely, the lack of previous convictions, her good character, the effect of the applicant's psychological conditions, the assessment that she was a low risk of reoffending, her work history, and her engagement in a significant course of rehabilitation. With the exception of the last consideration - the applicant's steps towards rehabilitation - the combined effect of the other mitigating factors, while impressive, would not be sufficient to warrant a conclusion that the sentences imposed on the applicant were arguably manifestly excessive.
4. The evidence, relating to the steps taken by the applicant towards her rehabilitation, was quite impressive. As noted, they included extended periods of residential treatment to address her drug addiction, both at Malvern Private Hospital and in the SHARC drug and alcohol rehabilitation program. In particular, the applicant had been engaged in residential treatment with the SHARC program for a period of almost nine months up to the date of the plea. As Ms Pickard noted in her character reference, during that period, the applicant had expressed 'deep remorse and ... crippling shame' over her offending conduct. The judge accepted that the applicant had reasonable prospects of rehabilitation, and that she presented a 'low risk of recidivism'.[22] In that context, it is relevant that Mr Newton expressed the opinion that the most effective treatment for the applicant's Borderline Personality Disorder consists of participation in Dialectical Behaviour Therapy, which is not currently available in prison.
5. It was no doubt based on that evidence that the sentencing judge gave consideration to a disposition involving the imposition of a custodial sentence and a community correction order. In the circumstances of this case, and notwithstanding the seriousness of the offending, it may be concluded that such a sentencing option was available to the judge. A more difficult question is whether the judge erred in not determining that that sentencing disposition was the appropriate outcome in the present case.
6. Taking into account the significant and constructive steps taken by the applicant to rehabilitate, in combination with the other mitigating factors to which I have referred, I conclude, albeit with some hesitation, that it is reasonably arguable that the sentences imposed on the applicant, and in particular the total effective sentence, were manifestly excessive. The question, whether such a ground should succeed, is one which is more appropriate ultimately to be determined on appeal.
7. For those reasons, I grant the applicant leave to appeal on ground 2.

1. For the foregoing reasons, I refuse the applicant leave to appeal against sentence on ground 1, but grant leave to appeal on ground 2.

[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 applicant's name.

[2] Sentencing Act 1991, s 6B and sch 1.

[3] DPP v Veronica Bridge (a pseudonym) [2025] VCC 1243 ('Reasons').

[9] (2013) 249 CLR 571; [2013] HCA 37.

[10] (2006) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 ('Verdins').

[15] Northe v The King [2024] VSCA145, [36]-[39] (Priest and McLeish JJA).

[17] [2020] VSCA 292.

[18] [2023] VSCA 207.

[19] [2020] VCC 1133.

[20] [2023] VCC 399.

[21] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).