1 The appellant, CF, an Aboriginal man now aged 45, pleaded guilty to three counts of vaginal penetration of the child of his de facto spouse. The maximum penalty for the offence is 25 years' imprisonment.[1] The offences were committed in May and June 2008. The girl was aged 16 at the time. She became pregnant as a consequence of the offence which, although it was the offence first in time, was count 3 on the presentment. Her pregnancy was terminated. She suffered, understandably, severe psychological distress in consequence of those events.

2 On 3 February 2009 the appellant was sentenced in the County Court to eight years' imprisonment on count 1 (offence committed 5 June 2008), to six years' imprisonment on count 2 (offence committed between 6 May and 5 June 2008), and to eight years' imprisonment on count 3 (offence committed on or about 18 May 2008). Three years of the sentence imposed on count 1 and two years of the sentence imposed on count 2 were cumulated on each other and on the sentence imposed on count 3. The total effective sentence was thus 13 years' imprisonment. The judge fixed a non-parole period of nine years. She sentenced the appellant as a serious sexual offender on count 3. She made ancillary orders. She stated that if the appellant had not pleaded guilty, but had been convicted, she would have sentenced him to ten years' imprisonment on count 1, seven years' imprisonment on count 2 and ten years' imprisonment on count 3. With cumulation, the total effective sentence would have been 15 years' imprisonment. She would have fixed a non-parole period of 13 years.

3 Now the appellant appeals by leave. He relies upon the following grounds:

Ground 1

The sentences are manifestly excessive both as to each individual head sentence imposed and as to the orders for cumulation made and as to the minimum term required to be served before being eligible for parole.

Ground 2

The Learned Sentencing Judge erred in sentencing the Appellant in effect for 3 counts of rape as opposed to 3 counts of incest.

Ground 3

The Learned Sentencing Judge erred in taking into account the Complainant's contention that she did not consent to the sexual activity alleged.

Ground 4

The Learned Sentencing Judge erred in taking into account evidence of sexual abuse pre-dating the counts charged.

Ground 5

The Learned Sentencing Judge erred in taking into account allegations of sexual penetration alleged to have occurred in Victoria other than those contained on the presentment.

Ground 6

The Learned Sentencing Judge erred in discounting the weight to be given to the question of remorse because of the applicant's assertion in the record of interview that the Complainant was a 'willing participant' in the sexual activity.

Ground 7

The Learned Sentencing Judge erred in not taking into account in the Appellant's favour the social isolation the Appellant will endure due to his incarceration.

Ground 8

The Learned Sentencing Judge erred in her application of the principle of totality.

Ground 9

The Learned Sentencing Judge erred in that she effectively applied s.6D(b) of the Sentencing Act and imposed upon the appellant a sentence longer than that which is proportional to the gravity of the offence.

4 The Crown has conceded that grounds 6 and 7 are made out, and has submitted that the sentencing discretion is on that account re-opened. The Crown has further submitted that in all the circumstances 'significant individual sentences' are warranted; and that a necessary cumulation order 'is likely to also result in a very significant overall sentence'.

5 Pausing, counsel for the Crown initially submitted below that a head sentence of 'somewhere in the range of 12 years' would be appropriate, 'with a minimum of 10 years'. Later, however, counsel proffered a revised range, contending (on instructions from the Crown Prosecutors' Chambers in Melbourne) that a head sentence of between seven and nine years would be appropriate, with a non-parole period of five to seven years. The judge described the revised suggested ranges as 'completely inexplicable in terms of the agreed facts before the Court and the serious nature and circumstances of these offences'.

6 In order to consider whether a different sentence should be passed, and if so, to decide what that sentence should be, it is necessary to describe the circumstances of the offending. This is what the learned sentencing judge said in that connection -

1. The complainant was born on 30 April 1992 making her 16 years of age at the time of these offences. She attends Secondary School. The complainant's parents separated when she was 7 years old. Her mother left her father and moved in with you. You had both met whilst working together on a farm block in the Robinvale District and lived together up until your arrest by NSW Police at Wellington, NSW (near Dubbo) in relation to these charges on 22 July 2008.
2. On 6 May, 2008 the complainant left her home in Euston, NSW where she lived with her father and siblings. She travelled by bus to Swan Hill and moved into an old farm house at 363 Speewa Punt Road, Speewa to live with her mother, yourself and her eighteen year old brother. Desmond Devereux owned the property. The complainant says that you treated her like one of your own 'kids'. However, there is evidence that you sexually abused her at her home at Euston, NSW prior to her move to the farm house at Swan Hill.
3. Not long after the complainant moved into the old farm house with you and her mother you began to sexually abuse her. The complainant says the sexual contact was not consented to. It is alleged you had sexual intercourse with the complainant on a number of occasions both in the old farm house, a cabin nearby and a nearby Murray River location within Victoria. Her mother and her brother were not aware of the sexual offending by you.
4. On or about 18 May, 2008 the complainant became pregnant to you. The child was aborted on 11 July, 2008 at the Mildura Base Hospital.
5. On 5 June, 2008 the complainant's brother arrived at the old farm house unexpectedly. He had left work early to attend to a personal issue and as he arrived at the farm house he heard screaming. He armed himself with a shovel outside the home and quickly entered the lounge room. He saw you in the act of having sexual intercourse with the complainant on a bed and saw that her arms were pinned. Her brother went into a 'fit of rage' and dragged you off his sister. The brother threatened to hit you with the shovel but calmed down and did not strike you. The brother directed you to remain seated whilst his sister left the home.

1. Count 1 relates to 5 June 2008 which was the last occasion when you committed penile sexual penetration upon the complainant. You were alone with her in the house. She was cleaning her mother's room walking backwards and forwards between that room and the lounge room and kitchen. When she came back into the lounge room she noticed that you had taken off your jocks and your penis was exposed. You then pushed her back onto a bed in the lounge room where the complainant's brother had been sleeping. You forced yourself onto the complainant and sexually penetrated her with your penis. She said it hurt. While this was happening the brother arrived home unexpectedly, grabbed you and threw you on the ground. The complainant's mother later yelled at her daughter and blamed her for what had happened.
2. Count 2 relates to the period between 6 May 2008 and 5 June 2008 and relates to an incident along the Murray River in Swan Hill. In her statement the complainant describes that you drove her to a fishing spot on the Murray River, got her to lie down on her back on the ground, took off her pants and then inserted your penis in her vagina without her consent. You continued to have sex with her while she tried to push you away to get you off her. You only stopped when you apparently ejaculated.
3. Count 3 relates to on or about 18 May 2008 in your bedroom of the old farm house where the family were living. The complainant's mother and brother were at work and you had sexual intercourse with the complainant which resulted in her pregnancy.

7 Some of the observations at paragraph 7 related to uncharged acts. Contrary to an argument advanced for the appellant in this Court, the observations at paragraph 8 were apparently - I will return to this matter later -a general description of the counts on the presentment. The description at paragraph 9 was a description of count 3 on the presentment.

8 I should now refer to other aspects of the judge's sentencing remarks.

9 With respect to the appellant's behaviour subsequent to the offending, her Honour stated that:

(1) The appellant and the victim's mother fled to NSW;

(2) The appellant was arrested at Wellington in NSW on 21 July 2008. He was interviewed and made admissions, in which he said that the sexual conduct was consented to and that the complainant had instigated the sexual contact.

10 As to the appellant's prior criminal history, the judge noted that he had prior convictions, but that none were immediately relevant.

11 Concerning the appellant's personal history, the judge noted that -

(2) He had been a slow learner at school and was of borderline intelligence.

(3) His working life had been as a labourer. He had been in many employments, and at times had been unemployed - at one stage for nine years.

12 In mitigation, according to the judge, the following matters were relied upon:

(1) The plea of guilty, which her Honour accepted was a significant mitigating factor.

(2) The offences being committed opportunistically. The judge rejected this contention.

(3) The appellant's relatively deprived background, limited education and borderline intelligence. The judge concluded that none of this provided any explanation for, or insight into, the offending - although that was not the point of the reliance.

(4) The appellant's reasonable prospects of rehabilitation. The judge concluded that the appellant's lack of empathy and of insight into the nature of his offending meant that his prospects of rehabilitation were 'uncertain at this stage'.

(5) The appellant's expression of regret, and his difficulties - particularly isolation - in custody. The judge found no mitigation in those circumstances.

13 The judge described the offences as falling 'into the most serious categories of offending against children and young adolescents'.

14 She referred to the consequences for the complainant - pregnancy and termination, the latter 'effectively without parental support'.

15 She identified general and specific deterrence, protection of the community, denunciation and just punishment as important sentencing considerations.

16 Concerning the serious sexual offender provisions of the Sentencing Act 1991 (Vic), the judge made observations which in part are not easy to fathom in view of the fact that those provisions only applied in respect of count 3, and yet the sentence on that count became the base sentence. It was submitted for the appellant that this was not the only anomaly in her Honour's treatment of ss 6D and 6E of the Act; but it is unnecessary to address that submission.

17 I turn to the grounds of appeal, other than the conceded grounds 6 and 7. They are relevant to the question whether a different sentence should be passed; and, if so, the appropriate sentence.

18 The judge certainly sentenced the appellant on the basis that the complainant did not consent to the intercourse. The prosecutor had opened the case that way. According to the submissions for the Crown in this Court, that was done as part of a 'settlement' arrived at before the plea.

19 I should pause and say something about the settlement. It is not in dispute that there was a settlement. The gist of it was that the appellant was to be sentenced on the basis of an agreed opening statement by the prosecutor. The prosecutor was to say that the complainant did not in fact consent to the incidents of intercourse, but that the appellant believed that the appellant was consenting. The prosecutor was to further say that the complainant had been subjected to unspecified sexual abuse by the appellant whilst in New South Wales, and to unspecified abuse in Victoria in addition to the incidents the subject of the counts.

20 This agreement was, it appears, favourable to the appellant. For the complainant had given an account of sexual interference inflicted upon her by the appellant, both in New South Wales and Victoria, which made detailed allegations of conduct of various very objectionable kinds.

21 The prosecutor opened the case, and it is accepted that he did so consonantly with the agreement - although part of the opening was not successfully recorded, and that part apparently dealt with the issue of the appellant's state of mind. No objection to the opening was taken by appellant's then counsel. No point was taken - if it could have been taken - that unspecified and unparticularised sexual abuse inflicted upon the complainant in New South Wales and Victoria was not relevant.

22 I return to grounds 2 and 3. The judge repeatedly said that the complainant had not consented to the appellant's conduct. In my view, lack of consent was capable of aggravating the offences. It is no answer to say that absence of consent was not an element of the offence. That is how I take the judge to have treated it.

23 In my opinion, then, grounds 2 and 3 are not, in terms, made out. But I do consider that the judge erred because she did not bring to account, as a mitigating circumstance, the agreed position that the appellant believed that the complainant was consenting.

24 The prosecutor referred in his opening to the uncharged incidents of sexual abuse to which I have already referred. The judge also referred to them. As the matter was conducted, I do not see why the judge was not entitled to bring them to account, at least to set the offending in context - that is, that the charged offences were not isolated events.

25 On the other hand, the judge said in her sentencing remarks that -

the circumstances of these offences are detailed in the depositional material and in particular the statements to the police of the complainant; statements of investigating police officers and your record of interview. I also draw upon the Crown summary of the circumstances of these offences.

26 It is clear that material to which the judge had regard went beyond the Crown summary. The judge should have been told that the summary represented the basis upon which she was to sentence the appellant. That did not happen, and it is altogether possible that, with respect to earlier sexual abuse, the appellant was sentenced on a basis which was much less favourable to him than the agreement required. The magnitude of the sentence, indeed, supports such an inference.

27 The ground assumes that the judge's sentencing remarks treated the appellant as having had intercourse with the complainant, in Victoria, on occasions other than the incidents the subject of the three counts. Counsel for the appellant submitted that material to which the judge had reference supported such a reading of her remarks. I consider, however, that the impugned part of the sentencing remarks did no more than replicate a reference by the prosecutor in opening which was directed only to those incidents, albeit that the location of one of them was misdescribed.

28 These grounds ultimately turn upon the magnitude of the sentence imposed - upon the individual counts (having regard, inter alia, to ss 6D and 6E of the Sentencing Act), with respect to cumulation, and as to the non-parole period.

29 In my view, one cannot cavil with the proposition that this was very serious offending. Not only were the circumstances of the offending disgraceful, the consequences for the complainant were very serious. On the other hand, I agree with the submission for the appellant that worse circumstances do arise. Indeed, too often this Court is confronted by instances of repeated incest and other sexual abuse inflicted over protracted periods of time upon very young children. Cases cited in argument support what I have just said.

30 There were some circumstances of mitigation: The appellant was not a young man, and he had not offended in this way before. His criminal history was limited. He did plead guilty, and despite his initial protestations that he had been led on by the complainant, the Crown accepted that 'there were positive signs of remorse at the time of sentence'. That acceptance was appropriate. The appellant's borderline intelligence was said by the examining psychiatrist, Dr Jager, in effect to inhibit the appellant's ability to so understand his actions so as to be fully contrite. Again, the appellant's circumstances - his parents are both ill, and he does not have prison visitors - are such that his sentence will be served in social isolation, this bearing upon the burden of imprisonment.

31 Counsel for the appellant pointed to a Sentencing Snapshot to show that the sentence imposed upon his client was statistically deviant. Counsel for the Crown referred to the circumstances of a number of cases dealt with by this Court in recent years in respect of multiple sexual offences including the offence of incest. To the extent that this material assists the intuitive synthesis, it confirms, to my way of thinking, a conclusion which I would otherwise reach - that the sentence which the judge imposed was outside the range of a sound sentencing discretion. Thus is confirmed the need to allow the appeal and re-sentence the appellant.

32 I propose that the appellant be sentenced on each of counts 1 and 2 to five years' imprisonment, and on count 3 to 6 years' imprisonment. I further propose that 12 months of each of the sentences on counts 1 and 2 be cumulated on each other and on the sentence on count 3. The total effective sentence would be eight years' imprisonment. I would fix a non-parole period of 6 years imprisonment.

33 In making those proposals, I have taken into account the fact that the appellant must be sentenced on count 3 as a serious sexual offender, in which circumstances ss 6D and 6E of the Sentencing Act 1991 (Vic) are applicable. I have concluded that it is not necessary to impose a disproportionate sentence on count 3 in order to achieve a proper disposition. The sentence on count 3 being the base sentence, the appellant will serve the entirety of that sentence. I have proposed that the sentence on that count be greater than the sentences on counts 1 and 2 in order to reflect the aggravating factor that the complainant became pregnant in consequence of the commission of the offence.

34 Had the appellant not pleaded guilty, and had he been convicted, I would have sentenced him to six years imprisonment on each of counts 1 and 2, and to seven years imprisonment on count 3. With cumulation, the total effective sentence would be ten years' imprisonment, and I would fix a non-parole period of seven years and six months' imprisonment.

[1] Crimes Act 1958 (Vic), s 44.