C D v The Queen [2013] VSCA 95

2 The courts are required to deal with much sexual misconduct involving criminality. The common, if not invariable, motive of the offenders is self-centred gratification. Their criminality is, albeit in varying degrees, ugly and abhorrent. An element in the ugliness is that the offender's mind is closed to, or puts aside, or at least significantly discounts, the harm for which he or (unusually) she is responsible.

3 This case has that ugliness. And the offender's behaviour was unquestionably abhorrent. But, on the evidence available to this Court, there is also here a highly unusual degree of honesty in the acceptance by the offender of the nature and effect of his offending. That is at the heart of this appeal.

4 On 5 March 2012, the appellant, who was born in 1967, entered pleas of guilty to four charges of incest and four charges of committing an indecent act with or in the presence of a child under the age of 16. The two victims were the daughters of his then wife. Their father was their mother's former husband.

5 The offending occurred during a period defined only by the three years between 1 January 1999 and 31 December 2001. The complainants were then aged, respectively, between 10 and 13, and between 12 and 15. Each charge of incest involved digital, but never penile or other, penetration. In every - or almost every - case, the victim made plain her unwillingness to participate. For his part, the appellant was when offending affected by alcohol, sometimes consumed in the expectation, which was realised, that this would disinhibit him to the extent necessary to overcome his conscience.

6 The first occasion involving sexual misconduct was, it seems, that in which the appellant's criminality was most starkly displayed. He encouraged both complainants to drink with him - and succeeded to the extent that the elder of the two vomited because of it. She wanted, afterwards, to have a shower. The appellant followed her into the shower cubicle. She refused to get undressed in his presence, telling him that if he did not leave she would shower fully clothed. He left; but, despite her obvious unwillingness to participate, he was far from being dissuaded from what clearly he had in mind.

7 After the shower, the victim changed into pyjamas and got into the bed in the bedroom she shared with her younger sister and her half brothers. The appellant entered the bedroom and, holding the victim by the arm, physically guided her into his bedroom and his bed. He then digitally penetrated her while resisting her attempts to roll away from him. She managed to get out of the bed. He directed her to return, which she did. He thereafter continued to touch her sexually. In a statement made to the police, she described his behaviour in the bed and her reaction to it in the following words:

At first nothing happened, but after some time, I couldn't be sure how long it was, but [the appellant] started to try to put his hand down the front of my pants again. I don't remember how I was lying at the time. [The appellant] was rubbing my clitoris under the pyjamas ... . His fingers went within my vaginal lips but did not penetrate. I tried to roll over to move as far away from him as I could. At one stage I got out of the bed. David told me to get back in again. It happened a couple of times exactly like that. After this I tried to move away. He would pull me back towards him again. [The appellant] put me in a position where he was constantly touching me so I couldn't get away. It was never forceful, nor did he hold me down or hit me, but he did use some strength to keep me in bed with him. I remember I cried all night and was really distressed.

9 It is unnecessary to describe in detail the other three charges of incest. Each involved a gross breach of trust. Each also involved the exercise of power for purposes which were purely selfish and which entirely disregarded the interests of, and the adverse impact upon, the victims. They were the subjects of charges 2, 4 and 6. The last of these, however, requires particular mention because it was a representative charge including not only the incident the subject of the charge but two others as well. On each occasion the victim rolled over in an attempt to have the appellant desist.

10 Charges 3, 5, 7 and 8 arose from four incidents in which the appellant committed an indecent act with one or other of his two step-daughters, each being a child under the age of 16. The first two indecent acts (charges 3 and 5) occurred on the same evening. Each victim was in bed. The appellant successively touched the vagina of each child before (in one case at least) his victim, albeit only after some 30 seconds, managed to push his hand away.

11 Not only is charge 6 a representative charge, but the act of digital penetration upon which it is based was accompanied by two separate acts of indecency. They form the basis for charges 7 and 8. The appellant also, on the occasion which gave rise to charge 6, rubbed the victim's breasts under her pyjamas (charge 7). She rolled over in an attempt to force him to stop. He, however, compounded his degrading assault on the physical and psychological integrity of his step-daughter by taking advantage of her changed position on the bed. He placed his hand down her pyjama trousers and, for three to five minutes, rubbed the area between her buttocks (charge 8).

12 Neither child reported these incidents immediately. Although there is no evidence of any misconduct after 2001, it was not until the following year that the elder of the two girls told her mother about her experiences with the appellant. A confrontation followed, during which (as his counsel informed the sentencing judge during the course of the plea hearing) the appellant admitted his offences against the elder step-daughter, but said nothing about his conduct towards her sister. It was in these circumstances resolved that he should remain in the home. The appellant told Dr Forrester that he repeatedly offered to go to the police. That story, however, does not sit comfortably with his failure to reveal his sexual predations upon the younger girl.

13 The attempts to keep the family together, and to repair the damage which the appellant had done to his marriage, were in the end unsuccessful. According to the appellant's counsel, as recounted to the sentencing judge, the catalyst was the disclosure by the second step-daughter in 2004 'that she had also been touched inappropriately by [the appellant] some years earlier'.

14 The appellant, at the request of his wife, left the family home that year. He remarried in August 2010, having in 2008, at the beginning of his relationship with his new wife, told her that he had sexually interfered with his two step-daughters. This is significant, because by this stage no complaint had been made to the police; but, as the appellant's counsel told the sentencing judge, the appellant wanted to put his new partner in a position from which she could make an informed decision about whether or not to continue in that partnership. She decided to stay, and was in court when this history was put before the sentencing judge. She remains supportive.

15 A woman who became acquainted with the appellant in about 2008 when she moved into a unit close to his home gave evidence on his plea. She told the sentencing judge that some four to six months after she moved in the appellant and his present wife invited her to dinner. He then told her about his offending because:

he wanted to be honest and make sure I was aware of it so I - whether I'm comfortable with still being friends with him or not. ...

But since knowing [him] we've had many discussions about it ... and ... he continually says that he regrets everything that he did.

16 The witness was then asked by the appellant's counsel whether he had spoken to her about the possibility of his incarceration. When she replied that he had, she was asked how he felt about that. She answered: 'He honestly said that he's happy to do the time because that's what he deserves.'

17 It is also significant that, some months after last sexually assaulting his step-daughters, the appellant wrote a letter to them, apologising for what he had done. This was years before they reported his misconduct to the police. The elder of the two girls referred to it in her police statement, and the subject was taken up by the police interviewers when the appellant subsequently spoke to them. He was asked whether he recalled 'leaving a letter for [the two complainants]?' The appellant having replied that he did, he was then asked whether he remembered its contents. He answered:

I don't remember exactly, but it was something along the lines of 'I apologise for ... screwing up' [for] ... molesting the girls.

18 By July 2011, the complainants had changed their minds about reporting to the police. The younger step-daughter moved first, on 14 July. Her sister followed a week later.

19 The appellant attended at a police station, by arrangement, nine days later: on 23 July 2011. He was interviewed, cautioned and arrested. He not only accepted without question the version of events as recounted to the police by the complainants, but also volunteered information which his step-daughters had not mentioned - and about which the police would otherwise have been ignorant. This information resulted in the addition of the third, fourth and fifth charges to the slate brought into existence by the accounts of the two victims. In turn, the appellant exposed himself to the additional punishment which the sentencing judge in fact imposed. As I will later discuss in more detail, on charge 4, the appellant was sentenced to four years' imprisonment; and on each of charges 3 and 5, he was sentenced to two years' imprisonment. With orders for concurrency and cumulation, these three charges added, in all, nine months' imprisonment to the total effective sentence of eight years' imprisonment.

20 The appellant attended voluntarily upon the police for a second time on 28 August 2011. He was again interviewed. Some of the things he said in the course of the exchanges which took place with the police are, very unusually, both frank and indicative of remorse:

Q: ... You've told us a lot ... . Like, you've told us so much, why are you telling us this stuff?

A: ... Well ... this is almost a relief. I have over the last, whatever, seven years ... since the story first came out ... waited for the axe to fall. ... I've had that roller-coaster for years ... and it's almost a relief that the axe has fallen so, in retrospect, I should have just come to you guys the day the whole story broke and said: Look, this is what I have done. This has been almost therapeutic.

Q: Okay. So how are you feeling now?

A: ... Still very anxious ... . Are the girls going to have to go through a full court case with cross-examination and all that sort of stuff 'cos I said to [the mother of the complainants] ... if it does come out, I'm going to plead guilty, I don't want the girls to see the inside of a courtroom if they don't have to. And I don't know how the story works, but ... if you read their statement and I say, look, that's fine, near enough, I agree with that and I'll go in and plead guilty so they don't have to deal with that. ... The only reason I hung around in the first place was to try to make it right. I know what I did was completely wrong. ... There's reasons what's pushed me for it ... but what I did was wrong. There is no excuse for it. There could be reasons behind it, but there's no excuse. I just want to make it better. ... But ... if this makes it right, or helps make it right, for them, great. Do I feel better about spilling my guts? Yes, I do. ... what's going to happen next ... it's a worry, of course.

Q: OK

A: Yes, but ... I'm in a good headspace at the moment compared to how I have been.

21 It is often said during plea hearings that the offender has indicated an intention to plead at an early stage - perhaps after a contested committal. But if that is an example of an early plea, it can be said of the appellant that, even before he was asked, he announced that he took responsibility for what he did. It is true that, if his sole consideration was his desire to ease his conscience, he might have come forward even before July 2011; but it seems that the complainants were not willing to press charges until then, and it may be that they joined their mother in preferring at that time that the family should continue to live together. When it came about two years later, the separation was not caused by further offending.

22 On the evidence available to this Court, everything that the appellant has said and done since July 2011 has been consistent with the attitude he displayed when first speaking to the police following his step-daughters' complainant. He forthwith sought help from his general practitioner with what he appreciated was a sexual problem he needed to solve. He was from there referred to Dr Forrester. He first attended her for treatment on 15 August 2011, a fortnight before his second police interview. He accepted an offer of fortnightly consultations with her, at his own expense, and punctually kept each appointment save those which fell on occasions when attendance was genuinely difficult; and when that happened, as Dr Forrester notes in her report of 27 February 2012, he 'called to reschedule for the next available appointment.' Dr Forrester's report continues:

I also note that [the appellant] presented as being well engaged in treatment. He participated openly in discussions regarding his thoughts and behaviours, and completed homework assignments as requested. He also reported doing his own self-initiated reading into relevant topics, and has demonstrated increasing insight as treatment has progressed.

23 Dr Forrester was of the opinion that, as at the date of her report (27 February 2012), the risk that the appellant will re-offend was low. The Crown, during the course of plea hearing, accepted that opinion. The psychologist also noted, however, that potential problems continue to exist, and need be addressed. At the time the appellant was offending, he experienced sexually deviant desires; he has depended on sexual practices (masturbation among them) as a means of coping with the stresses of life; and he was at the time of his offending attracted to under-age female children (as well as adults). According to Dr Forrester, he then fulfilled the diagnostic criteria for 'paedophilia - non exclusive type'. That is, his attraction extended beyond age-appropriate sexual partners to female children.

24 Dr Forrester was also of the opinion that the appellant would benefit from continuing treatment. His 'level of insight into his use of both physical and psychological coercion [of his victims] has been somewhat limited and requires further discussion and exploration.' He remains susceptible to 'minimization of sexual violence; problems with self-awareness; and problems with stress or coping.' In addition, 'social adjustment and manageability' whilst not current risk factors, represent 'a significant risk management goal.' Were his depressive symptoms to move from mild to severe, and especially were that to occur in conjunction with a return to over-indulgence in alcohol (a risk factor in itself) the appellant's level of risk would no longer be low.

25 Complacency is therefore not an option. The protection of the community remains in this case a sentencing consideration of importance. On the other hand, the appellant cannot be kept in indefinite detention; and his release will, if he continues to be appropriately motivated, enlarge his opportunities for treatment. It is relevant to note in this context that, at least on the evidence available to this Court - evidence which there is no reason to doubt - the appellant ceased offending in (at the latest) December 2001.

26 The sentencing judge recorded in her reasons for sentence that the appellant had:

... pleaded guilty at the committal hearing in December [2011], which proceeded by way of a straight hand-up brief, and that early plea will be taken into account by way of a considerable discount on your sentence. You are entitled to that discount because you have expedited the progress of the case and thereby assisted the criminal justice system. Importantly, you have saved the complainants and their mother from having to give evidence in court.

The fact that a decade has passed without any further offending by you, and that you have no prior convictions, are matters that go to your credit. You have expressed your remorse and following your voluntary participation in psychological counselling, you appear to have developed insight into the reasons for your offending and its effects upon the complainants.

27 Her Honour then turned to Dr Forrester's report and to the psychologist's estimate of the likelihood that the appellant will re-offend. The judge also referred to the appellant's breach of trust and the importance of general deterrence as a factor in the protection of children. Specific deterrence was, the judge said, perhaps of lesser importance because of the long period during which no offending has occurred, the absence in the appellant's history of other forms of anti-social behaviour, and his ability to control his consumption of alcohol. All these matters were taken into account 'in applying some leniency.'[1] Her Honour continued:

According to Dr Forrester, you have been anxious to understand why you offended and you were very open to psychological assistance and the development of insight. You are keen to undertake sex offender education when in custody. Your neighbour ... gave evidence that you regret what you did and are sorry that the girls suffered and that your sons are suffering now with the knowledge of it. These attitudes of yours and your empathy and regret are all matters that augur well for your rehabilitation and that is an important matter that I take into account again, in exercising some leniency.[2]

28 There followed a passage to which the appellant has taken particular exception:

The long delay which has occurred was brought about by your own decision to comply with family wishes that the matter not be reported to the police, when the children disclosed the offending to their mother in 2002. When it was reported last year, the matter progressed very quickly. So although the delay was through your own actions, you have nonetheless had the matter on your conscience over those years and I place some slight weight on that.[3]

29 Her Honour sentenced the appellant to six years' imprisonment on charge 6, which was a representative charge of incest and which the judge designated as the base sentence. Charge 1, because it involved offending of an especially serious kind, also deserved being singled out for a sentence which recognised its particular circumstances. First, the appellant plied his step-daughters with alcohol beforehand, and got them drunk. Secondly, he persisted with his sexual assaults by forceful invocation of his authority as a parent although his victim (the elder child) had made absolutely plain her dislike (almost certainly this amounted to abhorrence - but it is very difficult for children to express abhorrence to an adult in a position of responsibility and trust) of his sexual predations. The sentence imposed on that charge was imprisonment for four years. The remaining two charges of incest, charges 2 and 4, also resulted in each case in imprisonment for four years. On all four charges of committing an indecent act with a child under the age of 16, the appellant was sentenced to two years' imprisonment.

30 As her Honour rightly emphasised, each offence involved a heinous breach of trust.

31 The orders for cumulation are, of course, important. Her Honour ordered that six months of the sentence for charge 1, five months of the sentences for charges 2 and 4, and two months of the sentences for each of charges 3, 5, 7 and 8 were to be served cumulatively upon the base sentence and each other. The result was a total effective sentence of eight years' imprisonment. The non-parole period was fixed at five years. Pursuant to s 6AAA of the Sentencing Act 1991, the judge stated that, but for the appellant's plea of guilty, she would have imposed a total effective sentence of ten years' imprisonment, with a non-parole period of seven years.

32 There were originally three proposed grounds of appeal. A single judge of this Court gave leave to appeal on the first and third of these, but refused leave to appeal on the second. The appellant has not sought to review that decision. The first of the two remaining grounds is that the sentence is manifestly excessive. The effect of the second is that her Honour erred in holding, first, that the delay between the offending and its being reported to the police 'was brought about by [the appellant's] own decision' and was therefore his responsibility (as her Honour put it, it was 'through [his] own actions') and, secondly, that in those circumstances she placed 'some slight weight on it' only because the appellant 'had the matter on [his] conscience over those years'.[4]

33 In the usual course, a failure by a sentencing judge to give due weight to a mitigating factor such as delay is, at best for the offender, no more than an element in what might for that reason (perhaps among others) be a manifestly excessive sentence. In this instance, however, the issue of delay is inextricably bound together with that of the appellant's remorse, each of which in my opinion require a somewhat different approach than that which her Honour took.

34 It is important to stress that her Honour, whose reasons for sentence were delivered on 8 March 2012, did not then have available to her the judgment of this Court in Phillips v The Queen.[5] In that case, one of the issues was whether, given a plea of guilty, the strength of the Crown case alone can warrant a reduction in the discount to be allowed for remorse, willingness to facilitate the course of justice and acceptance of responsibility (the 'subjective criteria') or whether there must be other contextual material that reveals the extent to which these subjective factors are present. In addressing this issue, Redlich JA and Curtain AJA said: [6]

While it is always a question for the sentencing judge whether the subjective criteria of remorse, acceptance of responsibility and a willingness to facilitate the course of justice should be inferred from a plea of guilty_,_ courts should not be reluctant to identify criteria of contrition as inhering in the proffering of a plea of guilty.[7] The plea is usually seen as providing some indication of the presence of these subjective criteria_,_[8] frequently because it complements other indicia of remorse.[9] The conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists.[10] Where a judge concludes that these subjective criteria do not exist, either having rejected the evidence or submissions which suggest such criteria are present or because of an absence of such evidence, no allowance will be required within the discount for these subjective criteria.[11] Where there is a finding that the subjective criteria are only present to a limited extent, the supposed discount that would otherwise have been allowed for these subjective criteria may be reduced.[12] Where the judge, without qualification, is prepared to act upon evidence or a submission that the plea reflects the presence of these subjective criteria, the discount should fully reflect the subjective criteria.[13]

35 In the present case, the appellant's plea of guilty can be seen as complementing other powerful indicia of remorse. In addition to his confession of three incidents of misconduct not otherwise brought to the notice of the police, I include in this category five other pieces of evidence. The first is the letter to the step-daughters, written before any disclosure to the police. Secondly, there are the confessions to his prospective wife and, separately, to his new neighbour, again before any disclosure to the police, and for the admirable reason that the appellant did not wish either woman to make an ill-informed decision about whether she wished to continue an association with the appellant. Thirdly in this category is the statement to the neighbour that he was 'happy to do the time because that's what [I] deserve.' Fourthly, there are three relevant statements to the police: (i) his acknowledgement to the police that what he did was wrong, and that there was no excuse for it; (ii) his like acknowledgement that he had been waiting for the axe to fall, that he had been on 'that roller-coaster for years', and that it was 'almost a relief that the axe has fallen'; and (iii) his admission that the consequences for him (and he must at this point have been contemplating imprisonment) were 'a worry'. Finally, there is his counsel's concession at the beginning of his submissions at the plea hearing (something to which I have not yet adverted) that 'these are very, very serious offences ... [and] the only appropriate sentence will be one of immediate imprisonment and a sentence of some magnitude.'

36 'Remorse' is a word frequently employed during plea hearings. Yet it is not putting it too starkly to say that there is very often no substantive justification for its use. Although they too often masquerade as remorse, self pity or regret at being caught do not, or at least should not, qualify. Nor is a plea of guilty, without more, necessarily evidence of remorse. But when convincing evidence of genuine contrition is placed before a sentencing court it should in my opinion be given great weight. I respectfully agree with that passage, quoted above from Phillips, in which Redlich JA and Curtain AJA said (in effect) that, where the evidence justifies it, the sentencing discount should fully reflect what their Honours referred to as 'these subjective criteria'. I attempted to make much the same points in my own words in my judgment in that case:[14]

As the majority stated in R v Storey,[15] 'the sentencing decision is commonly no less important to the offender than the decision about guilt or innocence'. To this I add that individual sentencing decisions are often of great interest to the general public and therefore to the media, which also places considerable significance on patterns of sentencing generally. Indeed, nothing the courts do has greater impact upon the respect, or lack of it, in which the criminal justice system is held by the public. It is very much in the interest of that system that both aggravating and mitigating circumstances are demonstrably given appropriate significance in the exercise of the sentencing discretion.

The sentencing process must therefore be informed by the intellectual rigour to which Redlich JA and Curtain AJA refer ... .[16] This is certainly no less true where remorse is raised as a circumstance of mitigation. Where remorse is relied upon by an offender, and its existence or extent is challenged by the prosecution, the burden of proving its existence or extent falls upon that offender.

It is true, as Redlich JA and Curtain AJA state,[17] that '[t]he common law has long recognised the sentencing principle that a plea of guilty is an expression of real contrition'. That principle was established, however, at a time when the offender would almost certainly not know, when the decision to plead was made, whether it would result in a discernible discount from the sentence which would otherwise be imposed. Now, given the role of s 6AAA of the Sentencing Act 1991, that discount will always be known; and, because it is known that it will be known, there is an incentive in the guilty to plead guilty - if only to attract the discount which, as the judgments in this case make clear, must be allowed for its utilitarian benefit.

It follows that such a plea may have little if any component of remorse. Yet remorse is frequently put forward as a mitigating circumstance in the expectation that the sentencing judge will simply accept that, because a plea of guilty has been entered, remorse must be present. That expectation ought not to be encouraged.

If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy - in the form of a very substantial reduction in what would otherwise be an appropriate sentence - is very likely due.

37 In my opinion, there is compelling evidence of genuine remorse in this case. That being so, the appellant deserves a very substantial reduction in what would otherwise be an appropriate sentence.

38 In his submissions to this Court, the appellant focussed upon the issue of delay. As I have observed, this issue is inextricably bound together with that of the appellant's remorse. It seems clear on the evidence presently available that, had either of the step-daughters complained to the police before they did, the appellant would for his part have confessed to the police shortly afterwards. If this is so, it was, I think, an error of the sentencing judge to attribute to the appellant the delay of some 11 years between the last offence and the resort of his step-daughters to the law. It is also clear, on the basis of the relief which the appellant expressed when interviewed by the police, that his conscience had troubled him over the period since his offending ceased. I am therefore of the opinion that more than some slight weight should have been attributed to it in the process of instinctive synthesis which is at the centre of the sentencing exercise.

39 There is also, I think, error in her Honour imposing the same sentence on charge 4, a charge which arose out of an admission of misconduct about which the police would otherwise have remained ignorant, and charge 2, where the misconduct was reported by the elder sister. Likewise, her Honour imposed the same sentence on all the charges involving the commission of an indecent act, although the offending behind charges 3 and 5 (unlike that behind charges 7 and 8) would not have been known to the authorities had the appellant not confessed to it. I recognise, however, that in each case (other than charges 1 and 2) the appellant was sentenced pursuant to s 6B of the Sentencing Act, as a serious sexual offender - that is, an offender (other than a young offender) who has been convicted of two or more sexual offences for each of which he or she has been sentenced to a term of imprisonment. Accordingly, it could be argued that her Honour would have been justified in taking the view that the sentences on charges 2 and 4 were appropriately the same because, while knowledge of the offending which formed the basis for charge 4 was attributable only to the confession of the appellant, he was in respect of that charge sentenced as a serious sexual offender; and the two circumstances, one mitigating and the other aggravating, cancelled each other out. But if that were her Honour's reasoning, she did not say so.

40 In these circumstances, it is open to this Court to re-sentence the appellant, unless it is of the opinion that no different sentence should be imposed.[18] In my opinion, the power to re-sentence is to be exercised here. In coming to this conclusion, I emphasise that, while her Honour (in my respectful opinion) failed, in the punishment she imposed, to reflect the discount which Phillips indicates was appropriate, that judgment was not then available to her.

41 The Crown, in its oral submission on this appeal, suggested that the case most closely aligned to this was Director of Public Prosecutions (Vic) v EB,[19] in which an offender who pleaded guilty to eight counts of incest committed over a period of two years was initially sentenced to nine years and six months' imprisonment with a non-parole period of seven years. The Crown appeal was upheld, and the offender re-sentenced to a total effective sentence of imprisonment for 11 years, with a non-parole period of seven years.

42 I do not think that the two cases are analogous. The victim in EB was aged between five and seven when the offending took place. The offender suffered from intellectual and psychological disabilities. He penetrated the victim on multiple occasions over a period of two years. The penetration was penile, involved both the vagina and the anus, and he frequently ejaculated inside her. On the last occasion before she reported his conduct to her mother, the victim said that it hurt, that she screamed, and that he punched her in the stomach. He also made her fellate him. The fact that her genitals were grossly distorted, and that the effects of his assaults on her were otherwise terrible, added to the gravity of his offending.

43 The gravity of the present appellant's offending does not match that of EB, and although both pleaded guilty, the present appellant - unlike EB - is in the highly unusual position of having demonstrated genuine remorse. His prospects of rehabilitation are therefore much better, and the need for specific deterrence is certainly no greater, and possibly much less, than was the case with EB.

44 In my opinion, the appellant should be resentenced as follows: on charge 1 (incest), which I would make the base sentence, to three years and six months' imprisonment; on charge 2 (incest), to one year and three months' imprisonment; on charge 3 (indecent act) to nine months' imprisonment; on charge 4 (incest), to one year's imprisonment; on charge 5 (indecent act), to nine months' imprisonment; on charge 6 (incest) to three years' imprisonment; and on each of charges 7 and 8 (indecent act) to one year's imprisonment. I would cumulate on the base sentence of three years and six months' imprisonment, eight months of the sentence on charge 2, one month of the sentences on each of charges 3 and 5, four months of the sentence on charge 4, 12 months of the sentence on charge 6 and two months of the sentences on each of charges 7 and 8. The total cumulation is thus two years and six months; and the total effective sentence is therefore six years' imprisonment. I would order that the appellant serve three years and six months of that sentence before being eligible for parole.

45 I declare pursuant to s 6AAA of the Sentencing Act that, had the appellant pleaded not guilty to all charges, I would have imposed a total effective sentence of imprisonment for ten years, with a non-parole period of eight years.

[5] Phillips v The Queen [2012] VSCA 140 (29 June 2012)('Phillips').

[7] R v Holder & Johnston [1983] 3 NSWLR 245, 258-9 (Street CJ).

[8] Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, 663-664 [22].

[9] R v Pajic [2009] VSCA 53; (2009) 23 VR 527, 533 [22].

[10] R v Thomson, R v Houlton (2000) 49 NSWLR 383, 412 [118].

[11] Wangsaimas, Vanit & Tansakun v The Queen (1996) 87 A Crim R 149, 171.

[12] R v Fisher [2009] VSCA 100; (2009) 22 VR 343, 360 [81].

[13] See, for example, R v Donnelly [1998] 1 VR 645, 649.

[15] R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking JA, Hayne JA and Southwell AJA)

[18] Sentencing Act 1991, s 281.

[19] [2008] VSCA 127; (2008) 186 A Crim R 314.