Calazzo (a Pseudonym) v The Queen [2017] VSCA 242

1 We have had the benefit of reading, in draft form, the reasons of Croucher AJA. We agree, for the reasons his Honour gives, that the applicant should have leave to add Ground 2 as an additional ground of appeal, that leave to appeal should be granted and the appeal should be dismissed.

2 On 2 September 2016, the applicant pleaded guilty in the County Court to two charges of committing an indecent act with a child under 16[2] (Charges 1 and 2) and one charge of incest[3] (Charge 3).

3 On 9 September 2016, the applicant was sentenced to five years' imprisonment on Charge 3 and to two years' imprisonment on each of Charges 1 and 2. The judge directed that one year of each of the sentences on Charges 1 and 2 be served cumulatively upon the sentence on Charge 3, making a total effective sentence of seven years' imprisonment. His Honour fixed a non-parole period of four-and-a-half years.[4]

4 The applicant seeks leave to appeal against his sentence.[5] He relies on three grounds:

a) imposing on Charge 2 an identical sentence to that imposed on Charge 1; and

b) failing altogether to address how the uncharged acts that accompanied Charge 2 informed the sentencing discretion.

Ground 1: The individual sentences imposed on Charges 2 and 3, the degree of cumulation, total effective sentence and non-parole period are manifestly excessive.

Ground 2: The sentencing judge erred by holding that the fact that Charges 1 and 3 are representative charges 'for both periods of offending' is an 'aggravating feature of [the applicant's] overall offending'.

5 For reasons that follow, I would grant leave to appeal but would reject all grounds and dismiss the appeal.

6 I turn first to a summary of the circumstances of the offending.

7 The applicant, who is now aged 39, was married in March 2004 and has two daughters. He has worked in the area of information technology.

8 The complainant, who is the elder of the applicant's children, was born in May 2005. The applicant's younger daughter, who has autism, was born in May 2009.

9 In about 2008 to 2009, on an occasion when the complainant was aged only three, the applicant undressed himself and had the complainant undress herself too. He put her up on the nappy table in her bedroom, opened her legs and began licking her vagina, which he did repeatedly for about five to ten minutes. This is the indecent act constituting Charge 1, which was representative of two such occasions.

10 On the second occasion, while in her parents' bedroom, the complainant, at the suggestion of the applicant, laid on her back on the bed. The applicant laid down on his stomach, told the complainant to open her legs and then licked her vagina.

11 While still only three, the complainant told her mother what had occurred. When confronted by his wife with these allegations, the applicant said that the complainant was lying.

12 In February 2011, on the complainant's first day of school, the applicant admitted to his wife that he had touched their daughter in the manner she had described some two years earlier. Despite this admission, the applicant remained living at the family home. No complaint was made to the police at that time.

13 In late-December 2015, the applicant and the complainant went to see the new Star Wars movie at the cinema. The complainant was aged ten. Over the next few weeks, the two of them began watching the older Star Wars movies in the computer room in their home. While watching the movies, the applicant began to rub his daughter's stomach both over and under her T-shirt. After a few days, he began to rub her vagina over her pants. She let him do this for one or two minutes and then told him to stop. He did stop, but not immediately, and then resumed rubbing her stomach under her shirt. He repeated this behaviour when watching a movie a few days later. These are uncharged acts preceding the events giving rise to Charge 2, to which I now turn.

14 A few weeks later, the complainant slept in her parents' bedroom one night after a bad dream. The next morning, her mother left for work and her sister was at her therapist's house. The applicant was alone in the house with the complainant. He had a shower in the en-suite bathroom while the complainant was still in bed. He came out of the bathroom wearing a towel, which he removed. He laid on the bed and asked his daughter, 'Could you please touch me?' She said, 'No.' He grabbed her hand, put it on his penis and made her rub it up and down. He then let go of the child but told her to keep going, which she did. After a few minutes, he ejaculated and then asked her to stop. He used a towel to clean up his ejaculate and later put the towel in the washing machine. He also sprayed deodorant around the room to hide the smell. This is the indecent act alleged in Charge 2.

15 On the same occasion, the applicant then said to his daughter, 'It's your turn.' He made her pull down her underpants and told her to hold the lips of her vagina open. He put his finger in his mouth and then touched her inside her vagina, rubbing his finger up and down all around her vagina. She asked him to stop. He continued for a little longer but then did stop because he believed that she was not going to have an orgasm, which, as he later said, is what he was trying to achieve. This is the act of incest constituting Charge 3, which was representative of two such occasions.

16 The second occasion occurred a few weeks later. The complainant was on the couch in the lounge watching television. Her mother was out walking the dogs. The applicant came into the lounge, pulled down his daughter's pants and underwear, and again touched the inside of her vagina in the same way he had done previously. As he was doing so, he said, 'If you feel something coming, just let it - just let it go,' again hoping that she would have an orgasm. At one point, the complainant said, 'Dad, could you please stop? I don't like this.' But he kept doing it. The incident lasted for five or ten minutes.

17 On each of these occasions, the applicant told his daughter not to tell her mother. On the first occasion, when his daughter asked why, the applicant told her that it was child abuse and that he should not be doing it. He knew not to do it, but, because it felt so good for him, he felt that he needed to do it to her to show his love for her. He also told her that his mother had done it to him and that it felt really good.

18 On one occasion, the complainant asked the applicant why he had licked her vagina when she was little. Again, he referred to what had happened with his own mother. He then kissed his daughter on the lips, using his tongue. This was another uncharged act.

19 On the evening of Friday 18 March 2016, after speaking with his wife and a friend, the applicant said he would go to the police and hand himself in for offending against his daughter. When the applicant arrived at the police station, he told the officer at the desk that he wanted to confess to molesting his child. He was arrested and interviewed. The formal interview was deferred temporarily and then commenced in the early hours of the next morning, Saturday 19 March 2016. Among other things, the applicant said the following to police:

a) He came to police seeking help and he knew he had a problem.

b) He had performed oral sex on his daughter twice when she was aged three, by putting his mouth on her vagina and kissing or licking it, but did not penetrate her vagina when doing so.

c) He touched her vagina over her clothes while watching a Star Wars movie.

d) He told her that they should keep what was happening to themselves, as he was afraid of the consequences.

e) On the occasions when he touched her vagina on her skin, he tried not to put his finger inside because he did not want to do that.

f) During the incident following the shower, he encouraged his daughter to touch his penis and she played with it until he ejaculated. He claimed he did not tell her what to do, but commented that it felt good.

g) He said that there was never an occasion when she said no to him or when he tried to convince her otherwise.

20 When the applicant left the house for the police station, his wife spoke to the complainant, who disclosed the incidents that occurred when watching the Star Wars movies. She also disclosed the incidents that took place after the applicant got out of the shower. Later that day, the complainant was interviewed by police in a 'VARE'.

21 Ultimately, the applicant was charged with various sexual offences and required to appear in the Magistrates' Court at a filing hearing on 15 April 2016.

22 The matter resolved to pleas of guilty at an early stage - namely, at the second committal mention hearing on 27 July 2016. The same day, the applicant accepted committal to the County Court via a straight hand-up brief. When an indictment was filed, the applicant honoured those pleas of guilty in the County Court.

23 The judge received victim impact statements from the complainant and her mother.

24 The complainant was shocked, frightened and disgusted by the applicant's behaviour. She was also sad and heartbroken that her father had done these things to her. Her schooling has suffered and she now has counselling.

25 The applicant's wife said that she is stressed and angry at the suffering the applicant has caused their daughter. She explained that the dynamics of the family have been complicated as a consequence of the offending. She has also had trouble sleeping and eating.

26 The judge accepted that the impact of the applicant's offending on his family will be ongoing and long-lasting.

27 The judge accepted the following things about the applicant's personal circumstances and experiences. First, the applicant had taken 'sensible steps to address [his] financial responsibilities to [his] wife and children' while imprisoned.

28 Second, for many years, he had supported his younger brother, who is afflicted with schizophrenia. Prison will be difficult for the applicant, because he will not be able to assist his brother, who had come to rely on him for day-to-day support. But, the judge found, this dependency did not amount to exceptional circumstances justifying mercy.

29 Third, the applicant had a strong work history in the area of information technology. He informed his employer of the charges and resigned from his job because of the inevitability of a prison sentence.

30 Fourth, the applicant is a person of previously good character and had no prior or subsequent criminal convictions or outstanding charges.

31 Fifth, between the ages of 13 and 21, the applicant had sexual experiences with his mother. These included his mother masturbating him and, on one occasion, the applicant licking his mother's vagina. The judge considered this relevant to sentencing. In particular, his Honour found that this experience 'goes to [the applicant's] moral culpability and the prospects of rehabilitation' and 'might provide an explanation ... [but] does not excuse [his] offending'.

32 Sixth, the applicant reported his offending to police, and made full admissions, prior to any complaint to police by his daughter or anyone else.

33 Seventh, four days after his police interview, the applicant made contact with a psychologist, Mark Kulkens, in order to get help to control his behaviour. Subsequently, he had 17 sessions with Mr Kulkens, during which he admitted that he found stories and material highlighting incest sexually arousing and exciting. The applicant said his sexual experiences with his mother provided nothing but pleasant memories.

34 Eighth, Mr Kulkens and another psychologist, Patrick Newton, both assessed the applicant as having a paedophilic disorder of a non-exclusive type, with sexual attraction to females and confined to incest. Both experts recommended psychological treatment. Mr Newton assessed the applicant as falling into the moderate risk range for reoffending.

35 Ninth, the applicant pleaded guilty at an early stage. Those pleas, the judge accepted, showed an acknowledgment of responsibility, a willingness to facilitate the course of justice and a preparedness to spare his family from the ordeal of giving evidence. The pleas also provided some closure for his daughter.

36 Tenth, the judge accepted that the applicant was remorseful for, and showed some insight into, his offending.

37 Eleventh, his Honour assessed the applicant's prospects of rehabilitation as 'fair'. His rehabilitation prospects would be enhanced by the provision of specialist treatment for his condition.

38 The judge made several remarks about the gravity of the offending, including the following. First, his Honour accepted that the applicant's offending struck at the very heart of the most important building block in a civilised society - that of the family. He considered that incest 'erodes the decency of family life, and the trust and confidence of its young victims'. Such crimes, his Honour said, 'call for punishment to reinforce the principles of general deterrence, denunciation and the protection of young people'.

39 Second, the judge considered that the aggravating features of the offending included that the applicant offended against his daughter at two separate stages of her life. After the first period of offending, the applicant's denials left his daughter in the position of being called a liar and without parental support at a very young age. In his Honour's view, the gravity of offending during the second period was greater, for at least three reasons. First, it involved the applicant engaging in digital-vaginal penetration in a deliberate attempt to sexualise his daughter for his own gratification. Second, the offending involved a return to sexual abuse after the commission of and admissions to the earlier offending. Finally, the applicant told his daughter not to tell anyone about the offending.

40 Third, both periods of offending involved a serious breach of the trust reposed in him, and the protection he owed his daughter, as a father.

41 Fourth, another aggravating feature was the tender age of his daughter at the time of each offence - she was aged only three and ten years respectively.

42 Fifth, the judge found that the fact that Charges 1 and 3 were representative counts for both periods of offending was an 'aggravating feature' of the applicant's overall offending. I shall return to this finding when dealing with Ground 2.

43 Sixth, his Honour assessed the offending to be 'in the lower end of the mid-range of incest-related offending'. He identified four factors as leading to that assessment: (a) the offending was not continuous over the period spanned by the offending acts; (b) the offending was in two distinct periods, but for short periods of time; (c) the sexual penetration in Charge 3 was digital-vaginal, not penile-vaginal; and (d) the offending all concerned a very young child.

44 The foregoing assessment was also relevant to the judge's approach to current sentencing practices. For his Honour quoted extensively from this Court's judgment in DPP v Dalgliesh,[6] including the injunction that '[s]entences for incest offences of mid-range seriousness must be adjusted upwards'.[7] He also had regard to sentencing snapshots for, and other sentencing decisions concerning, the category of the offences charged,[8] as well as current sentencing practices at the time of the offending.

45 The judge had regard to at least six particular factors when considering totality and cumulation. First, there was the operation of s 6D of the Sentencing Act to consider in respect of the offence in Charge 3, although the Director did not urge a disproportionate sentence. Second, there was also s 6E, which reversed the usual presumption of concurrency in respect of Charge 3 (although this was ultimately immaterial because Charge 3 became the base sentence). Third, there were two separate periods of offending against the complainant, seven years apart. Fourth, the offences in Charges 1 and 3 were charged as representative counts. Fifth, the offences in Charges 2 and 3 occurred initially on the one occasion, albeit Charge 3 was also representative of a second occasion. Sixth, totality was relevant in considering the individual sentences and the level of cumulation.

Ground 2: Whether error in approach to representative charges

47 It is convenient to address Ground 2 first. The applicant applied for leave to rely upon this additional ground of appeal during the hearing. The parties were given leave to file written submissions on the proposed ground following the hearing.

48 In the course of his reasons for sentence, the judge said this:

In this case, Charges 1 and 3 are representative counts; that is, the offending is representative of two or more acts of the same character. This fact has two-fold relevance in sentencing. First, it is to be understood as the absence of a mitigating factor as an isolated event, as was the case here; and secondly, it provides a wider context for the extent of your offending. The fact that these two charges are representative counts for both periods of offending is an aggravating feature of your overall offending.[9]

49 In his written submission filed after the oral hearing, Mr Kassimatis QC, who appeared with Ms Burchill for the applicant in this Court (but not at the plea), accepted that the remarks made in the extract preceding the final sentence accord with settled authority.[10] He accepted that those remarks correctly represent a re-statement of the principle that the fact that a count is representative enables the offence to be seen in its full circumstantial context and precludes its being said in mitigation that it was an isolated offence.[11]

50 Mr Kassimatis further submitted, however, that the last sentence of this extract betrays error and is 'plainly wrong'. He noted that, at the oral hearing, Mr Kissane QC, who appeared for the Director, submitted that the last sentence was no more than an unfortunate way of expressing the reality - recognised by the authorities - that representative charges may attract heavier sentences than would have been imposed for a single charge.[12] He also noted that it might have been contended that the judge's reference to an 'aggravating feature' ought to be understood in context as conveying no more than the absence of one, or more than one, mitigating feature and not understood in the technical sense or as a term of art.

51 But, in Mr Kassimatis's submission, neither explanation withstands scrutiny. He submitted that the latter explanation ignores that the judge in fact did refer to 'the absence of a mitigating feature' earlier in the paragraph. Counsel submitted that it is unlikely in the extreme that his Honour would choose, in the same paragraph, the phrase 'aggravating feature' to convey that which he earlier conveyed correctly by a different phrase. Similarly, so the argument went, the former explanation demands that the judge be taken to have meant something other than what he said.

52 In both oral argument and in his subsequent written submission, Mr Kissane relied on the following passage from the judgment of Warren CJ in CJK:

In my view, it is appropriate to be cautious about the use of terms such as aggravating in sentencing. I do not consider that representative counts should be seen as aggravating per se; nor should the representative nature lead to an inappropriate sentence. However, a sentencing judge is permitted to look to the whole picture, including the conduct which is represented in the count. In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances. If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representative nature, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only 'colloquially'. However, it would be desirable to avoid the expression in the context of sentencing on a representative count.[13]

53 In Mr Kassimatis's submission, however, that passage is erroneous and should be rejected. He put three arguments in support of that submission. First, in order to arrive at the explanation contained in the reproduced passage, counsel submitted, the Chief Justice engaged in the very process which this Court has deprecated (repeatedly) - namely, subjecting a judge's sentencing remarks, and the use of the phrase 'aggravating feature', to a level of scrutiny akin to that involved in the construction of a statute, a will or a deed.[14]

54 Secondly, the submission continued, phrases such as 'mitigating facts' and 'aggravating features' are terms of art well understood by sentencing judges and those who read their sentencing remarks. Their invocation in terms that convey a settled, consistent meaning is intended to promote and ensure transparency. The judge in the present case should be taken to have meant what he said.

55 Thirdly, the judge referred to an 'aggravating feature of [the applicant's] overall offending'. Read in context, counsel submitted, the phrase bespeaks an inversion of the totality principle. In particular, it was submitted that, after imposing individual sentences on Charges 1 and 3 (having regard properly to their representative nature), the phrase lends itself to the implication that the judge stepped back and, rather than moderating those sentences or the orders for cumulation to accommodate totality, he treated the representative nature of Charges 1 and 3 as aggravating, and thereby enlarging, the overall offending.

56 Thus, submitted counsel, it follows that the impugned reference bespeaks error, that the error is material and that the sentencing discretion has miscarried as a result.

57 In his written submission filed after the hearing, Mr Kissane submitted that the judge could not have intended, by the impugned passage, to convey that the representative nature of the charges was an aggravating factor per se, in the way that, for example, a breach of trust may be an aggravating feature of sexual offending.

58 Mr Kissane also repeated the submission made at the oral hearing to the effect that, in all probability, the judge was using the word 'aggravating' in the sense explained by Warren CJ in CJK. While her Honour, with whom Vincent and Neave JJA agreed, thought it would be desirable to be cautious about the use of, or even to avoid using, the expression 'aggravating' when sentencing on a representative count, she acknowledged it is not necessarily unreasonable or erroneous to do so. It is convenient to repeat what the Chief Justice said:

[A] sentencing judge is permitted to look to the whole picture, including the conduct which is represented in the count. In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances. If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representative nature, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only 'colloquially'. ...[15]

59 In Mr Kissane's submission, the judge in the present case was doing no more than taking into account 'the whole picture, including the conduct ... represented in the count[s]', consistently with the approach of the Chief Justice in CJK. The representative nature of two of the offences rendered those offences more serious and led to higher sentences than would otherwise have been imposed in the absence of that fact. To reason in that fashion, in Mr Kissane's submission, was an approach open to the judge. While his Honour might have avoided the use of the word 'aggravating', as the Chief Justice suggested, nevertheless, he was not in error in doing so.

60 Mr Kissane also submitted that the judge's reference to the 'fact that these two charges are representative counts for both periods of offending is an aggravating feature of [the] overall offending' does not mean that he inverted the totality principle. Rather, in his submission, '[d]etermining the seriousness of the offending is a necessary step in the process of instinctive synthesis'. Importantly, he further submitted that 'there is no real suggestion here that [the judge] imposed individual sentences in relation to Charges 1 and 3 and then aggravated them in some way because the overall offending was aggravated'.

61 In the alternative, Mr Kissane submitted that, if there were error in the judge's reasoning, the gravity of the offending was such that no different sentence should be passed.

62 While I accept that, generally speaking, judges should be taken to use phrases such as 'mitigating factors' and 'aggravating features' as terms of art and in a settled, consistent manner, and also that a judge's sentencing remarks are not to be analysed as if construing a statute, a will or a deed, when an issue of the type raised in Ground 2 is pressed, this Court is driven to a close analysis of the judge's remarks in light of all the surrounding circumstances.

63 Having considered those matters, and the submissions of counsel, I have reached the following conclusions. While the judge might have expressed himself differently in the passage under attack, he did not err in the manner suggested in Ground 2. Instead, I accept the submission that his Honour reasoned in a manner similar to the approach explained by the Chief Justice in CJK. While he had used the term 'aggravating feature' in the more conventional fashion elsewhere in his reasons - including when he described, as an aggravating feature, the fact that the applicant had offended against his daughter in two separate stages of her life - I am satisfied that, in the impugned passage, he used the expression 'aggravating feature' in a more colloquial sense rather than as a term of art.

64 If the judge imposed heavier individual sentences on the representative charges (by properly taking into account their representative nature), and then arrived at orders for cumulation in the usual way, which in turn resulted in a given total effective sentence, then, of course, there would be no error. Nor would there be error if, after standing back to review the proposed sentence, the judge decreased, or increased, the total effective sentence on account of the view that the existing total effective sentence overstated, or understated, the overall gravity of the offending or otherwise failed adequately to reflect factors both mitigating and aggravating or relevant sentencing purposes. If, however, the judge then went further and considered it to be an aggravating feature (employing the term of art) that there was a representative offence in each of the two periods of offending and increased the total effective sentence as a result - which, as I understand it, is the effect of Mr Kassimatis's submission - that would be an error.

65 But that is not what his Honour did. In particular, I am satisfied that, when read with the sentencing remarks as a whole, it is apparent that the judge, in the impugned passage, intended to convey no more than the following. First, the representative nature of the offences charged in Charges 1 and 3, and the 'wider context for the extent of [the] offending' revealed thereby, rendered those offences more serious and led to higher sentences than would otherwise have been imposed had they not been representative charges. That is permissible reasoning, as is apparent from the judgment of Nettle JA in DPP v EB, where he said:

[A]s the judge said, counts 1 to 5 were representative counts which made it appropriate to impose a higher sentence in relation to those counts than would be the case in relation to an isolated count. Admittedly, that notion is not without its conceptual difficulties because of the principle that a prisoner is not to be punished for uncharged acts. But as Batt JA explained in R v SBL, the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context. Thus, a representative offence is likely to attract a greater sentence than an isolated offence.[16]

66 Nettle JA in turn relied upon the reasoning of Batt JA in R v SBL where his Honour said:

Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may in the present case be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone.[17]

67 Secondly, the reference to an 'aggravating feature of [the] overall offending' simply recorded the fact that, because the two representative charges led to higher individual sentences, and because of the need for some cumulation in light of the commission of the offences over two separate periods, these two factors would combine to result in a longer total effective sentence than would otherwise have been the case had the charges not been representative. Again, that is permissible.

68 While Mr Kassimatis submitted that it is extremely unlikely that the judge would use the term 'aggravating feature' in different senses in the same reasons - which, if I might say so, is a reasonable observation - I do not think it so unlikely here. Instead, I find it far more unlikely that a judge experienced in criminal law, as his Honour is, who has correctly stated the principles concerning representative charges, cumulation and totality, would then turn around and seek to apply an additional form of aggravation not known to the law. As I say, I think he has used the words 'aggravating feature' in the impugned passage in the more colloquial way explained by the Chief Justice in CJK.

69 Thus, while I consider this ground to be reasonably arguable, and would grant leave to appeal in consequence, I am not satisfied that it is made good.

Ground 1A: Identical sentences for offences in Charges 1 and 2

71 Under this ground, Mr Kassimatis submitted that the judge erred by imposing the same sentence upon the offence of committing an indecent act with a child in Charge 2 as was imposed for the same type of offence in Charge 1 - namely, two years' imprisonment (with 12 months' cumulation). He submitted that, given (what he argued was) the objectively less serious nature of the offending in Charge 2 (a single instance of masturbation of the applicant's penis until ejaculation committed when the child was ten) as compared with that in Charge 1 (an offence representative of two instances of lingual-vaginal contact committed when the child was only three), and given the absence of any submissions at the plea or an explanation by the judge in his reasons as to how the uncharged acts accompanying the viewing of the Star Wars movies were to be treated, this Court should be left with the 'irresistible impression' that the judge 'aggravated' the applicant's offending on Charge 2 by having regard improperly to those uncharged acts.

72 In written submissions filed ahead of the hearing on behalf of the Director, it was submitted that 'it is plain why the judge might have sought to find that the Charge 2 offending was aggravated so as to justify the penalty that was imposed'. The submissions continued:

In general, it is recognised that repetition of offending in cases like these is likely to make the later offending worse: see, for instance, DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444 at 452[32]. But in the particular circumstances of this case, the judge found as follows:

The return to offending after admitting and accepting your offending when [the child] was five ... makes your offending against her when she was ten ... more egregious. You were trusting in her loyalty and love for you to satisfy your sexual gratification. In the second period of offending, you forced your daughter to masturbate you until you ejaculated. That is Charge 2. You told [her] not to tell anyone about your sexual activity with her. ...

In other words, what aggravated Charge 2 was that the victim was older (she was three when Charge 1 occurred) and thus more susceptible to harm, and, more particularly, deleterious consequences flowing from the abuse of the victim's trust, loyalty and love. Also, the fact that the applicant returned to offending even after he had been - in essence - given a chance by the victim's mother made this later offending particularly galling in terms of the applicant's moral culpability. As the judge found, during the return to offending, the applicant was 'trusting in [the victim's] loyalty and love [in order] to satisfy [his] sexual gratification'. Again, this reflected upon the applicant's moral culpability. These features of Charge 2 either were not present, or were not present to the same degree, with Charge 1. They assist in explaining the length of the term imposed on Charge 2.

[Further], as the Charge 2 offence represented a second 'period ... in the life of the victim' during which she was offended against, this fact had to be reflected in the orders for cumulation.

73 As I understood it, Mr Kissane essentially adopted those submissions at the hearing.

74 In my opinion, the factors relied on by Mr Kissane amount to a sufficient justification for both the length of the sentence for the offence in Charge 2 (as well as the order for cumulation) and the fact that it is identical to the sentence on Charge 1.

75 The offence in Charge 2 was more serious than it may have appeared in isolation. The applicant had returned to offending against his daughter having admitted his earlier offending and having been given a chance to stay in the family home. He told his daughter not to tell anyone about the offending. The child was older and potentially more susceptible to the corrupting influence of the applicant's behaviour and to the harm that would result from his gross breach of trust. In my view, these factors increased the applicant's moral culpability and risked even greater harm to his daughter.

76 Thus, despite some of the more objectively serious features of the offence in Charge 1, I think it was well open to treat the offence in Charge 2 as justifying the same sentence.

77 While it is true that there was no submission made on the plea, nor any explanation given in the sentencing remarks, as to how the uncharged acts committed around the time of the offending in Charge 2 were to be regarded in sentencing, Mr Kassimatis accepted that it would be proper to reason that the fact that the uncharged acts were committed meant that it could not be said in mitigation that the offence in Charge 2 was an isolated event. There is nothing in the judge's remarks, or in any aspect of the sentences imposed, to suggest that he reasoned in any contrary manner or that he reasoned in any other impermissible way with respect to Charge 2 or either of the other offences.

78 Thus, again, while I consider Ground 1A to be reasonably arguable, and would grant leave to appeal in consequence, I would not uphold this ground.

80 Under this ground, Mr Kassimatis challenged the judge's characterisation of the offence of incest in Charge 3 as being 'in the lower end of the mid-range of incest-related offending'. He submitted that, while it was representative of two similar instances of digital-vaginal penetration, the offence did not have sufficient aggravating features to place it within the mid-range of gravity.

81 Mr Kassimatis referred to Dalgliesh and Talbot v The Queen[18] as examples of recent cases involving (undoubtedly) more serious examples of incest that attracted lesser sentences (namely, three and three-and-a-half years' imprisonment for unprotected penile-vaginal intercourse which, in the latter instance,[19] resulted in pregnancy) than the sentence imposed on the applicant (five years' imprisonment for digital-vaginal penetration, albeit representative). That said, Mr Kassimatis conceded that this Court in Dalgliesh concluded that judges must, by increments, increase the sentences for mid-range incest offences, and that that injunction applied to the applicant's case (if indeed it is a 'mid-range' offence). In his submission, however, even if it were correct to characterise the applicant's offence of incest as falling within the mid-range of gravity, the judge had gone too far in uplifting the sentence in this case.

82 As to the sentence on Charge 2, counsel relied on his submissions under cover of Ground 1A, which I shall not repeat.

83 Mr Kassimatis also submitted that the level of cumulation directed should have been modest, and much less than imposed in respect of Charge 2 in particular, for the following reasons. First, unlike the other offences, the offence in Charge 2 was not representative in nature. Second, the offence occurred as part of the episode of offending that included Charge 3, the representative count of incest.

84 Finally, Mr Kassimatis submitted that the total effective sentence and the non-parole period overstated the total criminality and failed adequately to account for the matters in mitigation. He emphasised all mitigating factors, including the applicant's disclosures to police before any complaint was made, his early pleas of guilty, his voluntary attendance upon a psychologist, his remorse and insight, his prior good character, his employment history, his steps to provide for his family while incarcerated, his abuse at the hands of his mother, the hardship for him in being unable to care for his brother or his mother, and his prospects of rehabilitation. Thus, in his submission, the base sentence on Charge 3, the sentence on Charge 2, the level of cumulation and the non-parole period failed adequately to reflect these matters.

85 While Mr Kissane conceded that, historically, the sentence on Charge 3 was 'firm', he submitted that it was not manifestly excessive. In the written submissions filed on behalf of the Director ahead of the application, the following was said:

It is submitted that, having regard to the fact of the uplift [signalled in Dalgliesh], but bearing in mind that any increase in current sentencing practices must be incremental, a sentence of [five] years in the circumstance of the present case is within range. The incest charge was a representative charge. It was a charge in respect of which the applicant was deemed a 'serious offender'. The offence was committed in gross breach of a (reimposed) relationship of trust. Offending of this nature would have continued but for the imposition of the applicant's friend.[20] The offending had had a serious impact on the complainant: it had caused her schooling to suffer and required her to seek assistance from counsellors. The applicant represented a moderate risk of re-offending.

86 Mr Kissane also pointed out that, in Dalgliesh, while the Director's appeal was dismissed, this Court had suggested that, following the uplift, a sentence in the order of seven years' imprisonment would have been appropriate for one of the offences of incest in that case. That offence involved an instance of penile-vaginal penetration of a 15-year-old girl with a mild intellectual disability and in respect of whom the offender was in loco parentis because of his de facto relationship with the child's mother. The other offence of incest, which was committed against the first girl's 13-year-old sister, and resulted in a pregnancy that was terminated, would have led to a 'significantly higher sentence again'.[21] In Mr Kissane's submission, in those circumstances, a sentence of five years' imprisonment for the applicant's offence of incest, while firm, could not be said to be manifestly excessive. He also reiterated that the maximum penalty for the offence is 25 years' imprisonment.

87 As for the sentence on Charge 2, Mr Kissane dealt with that under cover of Ground 1A.

88 Finally, Mr Kissane submitted that the level of cumulation, the resulting total effective sentence and the non-parole period neither overstated the total criminality nor failed adequately to account for the matters in mitigation. He emphasised the fact that a goodly amount of cumulation would be expected in respect of Charge 1, as that offence, which was representative in nature, was committed seven years earlier than the other offences. Similarly, the offence in Charge 2, while committed immediately before the offence in Charge 3, nevertheless involved discrete serious criminality in respect of which 12 months' worth of cumulation was open.

89 While the sentences on Charges 2 and 3, the level of cumulation, the resulting total effective sentence and the non-parole period are all heavy - perhaps both historically and even in light of the uplift spoken of in Dalgliesh - and, for those reasons alone, invite close scrutiny, I am not persuaded that they are manifestly excessive or that they otherwise offend totality.

90 As has been submitted on behalf of the Director, the offence in Charge 3 had some serious attendant features. Like Charge 1, it was representative of two instances of similar offending. Like Charge 2, it involved a resumption of sexual offending by the applicant against his daughter after he had confessed five years earlier to the behaviour giving rise to Charge 1, and after he had been admitted back into the fold. Charge 3 also involved the applicant telling his daughter not to tell anyone about the offending, which was committed against a child who was now older and potentially more susceptible to the corrupting influence of the applicant's behaviour and to the harm that would result from his gross breach of trust. In those circumstances, and having regard to other aspects of the offence referred to by the judge in his reasons, while I accept his Honour's characterisation of the offence as falling in the lower end of the mid-range of incest offences, I might have placed it a little further up the scale of seriousness, but still within the mid-range.

91 I doubt that, prior to the uplift in sentencing signalled in Dalgliesh, a sentence of five years' imprisonment for this offence would have been held to be within range. I also accept that, even in view of the uplift, it is a heavy sentence, particularly given the various mitigating factors on which the applicant was able to rely. But things have changed. Since Dalgliesh, those who commit incest of the gravity committed by the applicant can expect far heavier sentences than in the past.

92 The judge, rightly in my view, emphasised the importance of general deterrence, denunciation and the protection of young people as sentencing purposes for incest. The offence carries a maximum penalty of 25 years' imprisonment. And this was a serious instance of the offence. But for the factors in mitigation, a substantially heavier sentence might have been imposed.

93 For reasons given under cover of Ground 1A, I do not accept that the sentence, or the level of cumulation ordered, in respect of offence in Charge 2 is manifestly excessive.

94 While I accept that the sentence on the offence in Charge 3 and the two orders for partial cumulation of the other sentences have resulted in a heavy total effective sentence, particularly when regard is had to the mitigating factors, again, I am not satisfied that a sentence of seven years' imprisonment is manifestly excessive or is otherwise in breach of totality. There were three separate offences over two periods of offending seven years apart. The offending involved two representative offences, one of which involved a serious example of incest subject to the uplift in sentencing following Dalgliesh. Overall, the total effective sentence adequately reflects those matters, as well the matters in mitigation.

95 The non-parole period, at four-and-a-half years, represents about 64 per cent of the total effective sentence. That is a rather conventional ratio. Again, while the mitigating factors might have justified a shorter non-parole period, I am not satisfied that the period imposed is manifestly excessive.

96 In my view, all aspects of the sentence imposed were open. That another judge might have synthesised and weighed all relevant considerations differently and imposed a lesser sentence does not mean that this judge imposed a sentence that was outside the range open to him in the sound exercise of a discretionary judgment. In my view, it was open to his Honour to weigh all relevant matters as he did and to sentence as he did.

97 In the result, while I would grant leave to appeal on Ground 1 as well, I would not uphold this ground.

98 It follows that I would grant leave to appeal but dismiss the appeal.

[1] To ensure that there is no possibility of identification of certain persons, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant. The same pseudonym was adopted in the County Court.

[2] Contrary to s 47(1) of the Crimes Act 1958 ('the Crimes Act') (the offence carries a maximum penalty of ten years' imprisonment).

[3] Contrary to s 44(1) of the Crimes Act (the offence carries a maximum penalty of 25 years' imprisonment).

[4] The judge also declared, pursuant to s 6AAA of the Sentencing Act 1991 ('the Sentencing Act'), that, but for the applicant's pleas of guilty, he would have imposed a total effective sentence of nine years' imprisonment with a non-parole period of seven years.

[5] Pursuant to s 278 of the Criminal Procedure Act 2009 ('the CPA').

[6] [2016] VSCA 148 ('Dalgliesh').

[8] The judge referred in particular to BM v The Queen [2013] VSCA 3; Cummins v The Queen (2013) 40 VR 319; and DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444.

[10] Counsel referred to DPP v EB [2008] VSCA 127; (2008) 186 A Crim R 314, 318 [15] (Nettle JA); Reid (a Pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295, 308 [75] (Priest JA); DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 542 [38]; R v CJK [2009] VSCA 58; (2009) 22 VR 104 ('CJK'), 110-14 [42]‐[58] (Warren CJ); R v SBL [1998] VSCA 144; [1999] 1 VR 706, 726 [70] (Batt JA).

[11] Counsel again cited DPP v EB [2008] VSCA 127; (2008) 186 A Crim R 314, 318 [15] (Nettle JA).

[12] Mr Kissane referred to CJK [2009] VSCA 58; (2009) 22 VR 104, 111 [46], 113 [55] & 113-14 [58] (Warren CJ).

[13] CJK [2009] VSCA 58; (2009) 22 VR 104, 113-14 [58].

[14] Counsel cited DPP v Majok [2017] VSCA 135, [15]; and Zogheib v The Queen [2015] VSCA 334, [35].

[15] CJK [2009] VSCA 58; (2009) 22 VR 104, 113-14 [58].

[16] [2008] VSCA 127; (2008) 186 A Crim R 314, 318 [15] (emphasis added, citations omitted).

[17] [1998] VSCA 144; [1999] 1 VR 706, 726 [70].

[18] [2016] VSCA 218 ('Talbot').

[19] One of the complainants in Dalgliesh fell pregnant as result of an offence of incest. In Talbot, one of the complainants also fell pregnant, but as a result of an offence of persistent sexual abuse rather than the offence of incest.

[20] There was evidence, in the report of Mr Kulkens, that, in March 2016, after speaking with his wife and his friend, the applicant said that he would hand himself in to police. The friend already knew about the applicant's offending when the child was only three, but not about the more recent offending. That friend was prepared to go to the police about what he knew. Subsequently, the applicant spoke to the complainant and recognised that his offending was 'causing her more harm than good'. The applicant then decided to make a full admission to police, which he did. Importantly, however, the applicant conceded that his offending would likely have continued but for his friend's intervention. See also the Director's Revised Response to Applicant's Written Case, [3.2]-[3.3] & [3.15].

[21] Dalgliesh [2016] VSCA 148, [132].