Case (a pseudonym) v The King [2023] VSCA 12

The applicant seeks leave to appeal against sentence on the following single ground:

Case (a pseudonym) v The King [2023] VSCA 12 | Case summary | Zoe

[40]

The applicant's submission that it was not open to the jury to be so satisfied rested upon a number of interrelated arguments.
First, the applicant compared the circumstantial evidence relevant to each of the two videos. The Crown relied upon the pattern and timing of phone calls, SMS messages and data grabs depicted in the call charge records ('CCRs') of both Gillen's mobile phone service (Exhibit G) and the applicant's mobile phone service (Exhibit H) as supportive of Gillen's account of the applicant's participation in the first video and the transcript of and agreed facts concerning it. There was no similar, supportive correlation between the CCRs, the transcript of the video, the agreed facts about it and Gillen's evidence concerning the second video, in respect of which the applicant was acquitted.
Counsel for the applicant argued that this evidence of pattern and timing in relation to the first video was insufficient to extinguish reasonable doubt as to the applicant's guilt in respect of charges 10 to 13 and explain the different verdicts with respect to the two videos. Notwithstanding the transcript and agreed facts that show that Gillen made two calls during the first video, Gillen did not give any evidence about trying to call the applicant at that time.[8] Consequently, it was argued that the evidence of the CCRs was only possibly consistent with her evidence about that video. Further, Gillen gave evidence about calling the applicant during the second video, but no calls corresponding to the timing of that video were noted on the CCRs. In addition, evidence given by a forensic digital analyst about the device used to record the videos established that the time stamps on the videos would only be accurate if the time on that device had been correct when the recordings were made.
Second, even if the jury accepted that Gillen called the applicant twice during the first video, that alone could not satisfy them that the applicant was a substantial and significant cause of her sexual acts with IS or that she recorded them at his behest.
Third, the interpretation of the metadata of the CCRs depended entirely on Gillen's evidence of the purpose and content of the communications. Other than her evidence there was nothing about the content of the phone calls or messages. The other verdicts indicated that the jury had reservations as to her credibility and reliability. Against a background where the applicant and Gillen were domestic partners, shown by the CCRs to be in frequent contact throughout 1 April 2018, the CCRs of each of their phones provided 'false corroboration' of Gillen's evidence relevant to charges 10 to 13.
Fourth, it was a reasonable hypothesis consistent with innocence that Gillen was engaged in a frolic of her own, merely invoking the wrath of 'Daddy' to secure IS's participation. This was because of:

[42]

The approach by a court of criminal appeal to a ground of appeal that a verdict is 'unsafe and unsatisfactory' was established by the High Court in M v The Queen.[9] Section 276(1)(a) of the Criminal Procedure Act 2009 now provides that the Court of Appeal must allow an appeal against conviction if the appellant satisfies the court that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. The approach to the statutory test remains the same as the approach to its common law predecessor.[10]
Where, as a matter of law, there is sufficient evidence to sustain a guilty verdict and an appellate court is asked to conclude that the verdict is unreasonable, the court must consider whether it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt. In answering that question the court must not disregard that the jury is entrusted with the primary responsibility of determining guilt and that it will have enjoyed the advantage of seeing and hearing the witnesses. In most cases a doubt experienced by an appellate court through its independent evaluation of the evidence will be a doubt which a jury ought to have experienced. It is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by that court that it may conclude that no miscarriage of justice occurred. If the evidence on the record is tainted, contains discrepancies, displays inadequacies or otherwise lacks probative force such as to lead the appellate court to conclude that there is a significant possibility that an innocent person has been convicted, even making full allowance for the advantages enjoyed by the jury, that court is bound to act and set aside the impugned verdict.[11]
The appellate court is to proceed upon the assumption that the jury assessed the complainant's evidence to be credible and reliable.[12] It must also examine the record to satisfy itself as to whether, notwithstanding that assessment, a reasonable jury ought to have entertained a reasonable doubt, either because of inconsistencies, discrepancies or other inadequacies in the evidence, or in light of other evidence.[13]
Accordingly, we assume that the jury considered Gillen to be a reliable and credible witness with respect to the first video. Having done so, we shall examine the record to determine whether any such defects in the evidence ought to have led the jury to have a reasonable doubt as to the applicant's guilt on charges 10 to 13.
In this regard, we note that during the trial Gillen's credit came under a sustained attack.
Gillen admitted she told and maintained a number of lies to police about the applicant's alleged offending with IS. When she first spoke with the Shepparton Police in October 2018, Gillen said that during the first incident where the applicant got her drunk, the applicant had put a knife to IS's throat and said he would slit IS's throat unless she let IS do sexual things to her. She also said that on the Easter weekend the applicant had physically been in the room, filming her and IS. When arrested by South Australian police the following day, Gillen maintained both those lies and further said that on another two occasions of offending the applicant had a knife sitting on the bedside table. Following her extradition to Victoria, Gillen maintained the falsehoods about the applicant being in the room on Easter Sunday and threatening her with a knife until the informant told her that the police knew he had been in Adelaide on that day.
At the committal Gillen gave evidence that the applicant had not used a knife during any of the offending involving IS. At trial she said that the applicant was holding a butcher's knife 'down beside his leg' during incident one.
Gillen also told a civilian witness that she was forced by the applicant to do sexual things to IS at knifepoint.
Gillen further told lies about the applicant unrelated to the offending, including that he had forced her to work as a prostitute at knifepoint.
Other aspects of Gillen's credibility ventilated before the jury included her willingness to remain with or return to the applicant notwithstanding his behaviour towards her and IS, even after obtaining an intervention order in April 2018, only leaving him when she met a new boyfriend in Adelaide in October 2018. Further, there was the benefit to her in terms of the number of charges faced - she was convicted and sentenced in relation to incident three only - and the lesser sentence received as a result of implicating the applicant as the instigator of the offending.
There was no evidence independent of Gillen that any of the charged sexual acts, apart from incident three, occurred at all. The two videos taken on 1 April 2018 proved the occurrence of those acts. That Gillen's evidence about incident three was somewhat inconsistent with the transcript of the videos and the agreed facts relating to them is, in that respect, of little moment. The attribution of some of the sexual activity from the first video to the second and the omission of oral penetration from the first is explicable by the fact that she gave evidence some three years after the event, the recordings were made about 50 minutes apart and it was unchallenged before the jury that she had not watched them.
The returned verdicts across the indictment are explicable on the basis that the jury was not prepared to convict the applicant on the basis of Gillen's testimony alone. But this does not compel the conclusion that the jury must necessarily have regarded her as an untruthful witness or that her credibility was undermined in respect of counts 10-13.[14] Rather, it 'may simply reflect a cautious approach to the discharge of a heavy responsibility.'[15]
The applicant does not argue to the contrary, but does submit that in light of the jury's demonstrated cautious approach to Gillen's evidence and given that there was no question that all of the recorded sexual acts of 1 April 2018 had taken place, there is insufficient other evidence to explain the different verdicts returned with respect to the first and second videos made that same day.
An analysis of the record reveals a proper basis for this discrimination.
First, the CCRs show a number of voice calls and SMS messages between the applicant and Gillen as well as data use by her throughout 1 April 2018. There is a strong correlation between the pattern of communications and data usage in the CCRs with the transcript of and agreed facts about the first video and Gillen's evidence as to her communication with the applicant during it.
The first video was timestamped as having commenced at 09:42:35. Gillen's evidence was that prior to recording the first video she had a telephone conversation with the applicant in which she received his instructions concerning both sexual activity with IS and the recording of it. The CCRs show a voice call of 3 minutes and 49 seconds duration between Gillen and the applicant, commencing at 09:37:29. That call would have ended at 09:41:18. If, contrary to its timestamp, the recording was started at exactly that time, then five minutes and six seconds later would be 09:46:24. That is when the first dial tone can be heard while Gillen is depicted holding a mobile phone as IS asks 'what are you doing?' and she replies 'calling dad'. The CCRs record that Gillen made an unanswered phone call to the applicant at 09:47:44, being six minutes and 26 seconds after the end of the first phone call at 09:41:18. Gillen's evidence is that the recording was not started immediately as she took IS for a shower before taking him to the bedroom. Whether or not a shower could be completed in about 90 seconds or whether Gillen's evidence about showering at that point was an inaccurate or transposed detail - recalling that at the end of Exhibit K she is recorded as telling IS that they will then have a shower - the timing strongly suggests that the recording started shortly after the end of that phone call.
Further, the transcript of the video shows that the first dial tone about five minutes into the recording can be heard after IS has repeatedly said that he 'can't do it' and 'I don't like this,' and Gillen has variously responded, 'Daddy wants to see us do it', 'I know you don't like it but you need to do it ... OK. Daddy just wants to see us do it so come on' and 'you told Daddy that you were gunna do it, come on, you can do it, mummy help you.'
And the transcript also shows that in response to continued resistance from IS, Gillen tells him 'Daddy's gunna call and go ballistic' and '...daddy hasn't even left Adelaide yet, we've still got nine hours' before saying 'I'm calling daddy.' To this, IS responds by saying '... I just said, what are you calling daddy for?' and 'Mum, don't ring daddy'. The agreed facts state that a second dial tone can be heard while Gillen is depicted holding a mobile phone at time stamp 07:13, that is some two minutes and six seconds after the first dial tone. The CCRs show a second unanswered call from Gillen to the applicant at 09:50:08, being two minutes and 24 seconds after the first dial tone.
The CCRs relating to Gillen's phone further show data grabs during the period of the first video consistent with her evidence of sending photographs to the applicant via Snapchat.
The correlation between the transcript of and agreed facts about the first video, the CCRs of both the applicant's and Gillen's phones and Gillen's evidence about the content of the communications between her and the applicant before and during the first video is noteworthy. It is also in contradistinction to the matrix of evidence relevant to the second video. During that video the transcript shows that Gillen made only a single reference to 'daddy' and the CCRs show no attempt by her to call the applicant before or during the recording nor any data grabs from her phone.
Second, there was evidence before the jury that the HP All-in-One computer located in the bedroom and capable of recording the videos had been connected to the internet and would therefore have maintained an accurate time. Slight differences in the timestamps and timings of the various pieces of evidence are not of great moment. What is striking about the matrix of evidence concerning the first video is the consistency of the periods between provable actions. Further, the fact that Gillen consistently told IS that she was going to call 'daddy' and that 'daddy' wanted them to 'do it' came not from her later evidence at trial, but from the undisputed transcript of the contemporaneous video.
Third, given the frequency of telephone contact between the applicant and Gillen revealed in the CCRs and the very few instances of either missing a call from the other, it is highly improbable that Gillen would have twice risked the applicant answering a call or returning a missed call while she was engaged in sexual activity with her son, if the applicant was not knowingly involved in that activity.
Fourth, in similar vein, the frequent invocation of the threat of 'daddy' would have been unbelievably reckless if the applicant was ignorant of the sexual activity. It risked a six year old child with developmental difficulties disclosing such behaviour to his step-father.
Fifth, the two people with whom the applicant had travelled to Adelaide over the 2018 Easter weekend both gave evidence as to their motel check out times and later travel with the applicant on Easter Sunday. That evidence made it impossible for either of them to have been with him during the making of the first video. That was not the case with respect to the second video.
There is a further and separate basis on which it was open to the jury to discriminate between the applicant's involvement in the first and second videos and which was presented to them as an argument by defence counsel. Some of Gillen's utterances during the second of the videos are suggestive of her deriving sexual pleasure from the sexual activity. There are no such utterances recorded during the first. There is nothing in the recorded utterances from IS throughout the whole of the transcript which would suggest any difference in his behaviour or level of resistance to explain any change or difference in Gillen's behaviour or response during the second video.
Considering the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 10 to 13 inclusive.
Reservations as to Gillen's credibility and reliability with respect to other counts on the indictment only indicate that the jury were not prepared to find those charges proven beyond reasonable doubt. She is not to be taken to be a discredited witness. She reported the existence of the videos to police. The jury heard her explanations for her admitted lies. And, as demonstrated above, there was evidence independent of Gillen's account that strongly supported her account of the applicant's involvement in the first video. There was no such supporting evidence with respect to the second video. It was therefore open to the jury to draw the ultimate inference that the applicant's guilt had been satisfied to the criminal standard with respect to counts 10 to 13.
Having reviewed the evidence, that conclusion was sound.
Grounds 1(a) and 1(b) are not made out.

[52]

These subsections therefore provide that the child may be 'present' while outside Victoria if the sexual activity takes place in Victoria, and that the sexual activity may occur outside Victoria provided that the child is in Victoria.
There are equivalent or similar provisions in other sections of sub-divs 8B and 8D.[16]
Sections 49K and 49L criminalise 'encouraging' a child to engage in or be involved in sexual activity. They provide that the 'encouraging' may be carried out by means of electronic communication. They further provide that it is immaterial that some or all of the conduct constituting the offence occurred outside Victoria as long as the child was in Victoria, and that it is immaterial that the child was outside Victoria if the person conducting the encouragement was in Victoria at the time that conduct occurred.
We pause to observe that, had the applicant spoken directly to IS by telephone from South Australia and encouraged IS to engage in sexual activity with Gillen, that conduct would have been captured by s 49K, providing that IS was in Victoria at the time he received the encouragement.[17]
Section 49M prohibits grooming for sexual conduct with a child and expressly provides that the grooming may take place by electronic communication and that it is immaterial that all parties are not in Victoria as long as either the communication was made or received in Victoria or the offender intended that the sexual offence would occur in Victoria.
Sections 49Q and 49R concern, respectively, causing or allowing and inviting or offering a sexual performance involving a child. The sexual performance may be a performance in person or by an electronic communication. In this case, there is no express statement that it is immaterial that the sexual performance takes place outside Victoria or that the causing, allowing or inviting the child to take part in a sexual performance takes place outside Victoria.
Section 49S prohibits conduct that aids, facilitates or contributes in any way to another person engaging in sexual conduct (whether or not in Victoria) in relation to a child. The sexual conduct undertaken by the other person may take place outside Victoria if, had the conduct occurred in Victoria, it would have constituted an offence under sub-div (8B), among other laws.
Sub-division 8D creates offences in relation to child abuse material. Section 51B provides:

[58]

In support of the proposition that ss 49A and 51B do not apply to conduct that takes place outside Victoria, the applicant relies on the legislative history of ss 49A and 51B and the context in which they appear in the Crimes Act. He submits that when s 49A was originally inserted into the Crimes Act in 1994, it provided that a person who in Victoria did or omitted to do an act which aided, facilitated or contributed to another person's commission of a sexual offence against a child was guilty of an indictable offence, even if that offending took place outside Victoria. However, that provision was replaced in 2016 when the Crimes Amendment (Sexual Offences) Act 2016 introduced into the Crimes Act a suite of new sexual offences against children in sub-divs 8B and 8D. This included the new s 49A and the new s 51B, neither of which is expressed to have extraterritorial operation.[18] In contrast, many of the provisions creating the new offences against children are expressed to operate extraterritorially.[19] The applicant submits that this is a clear indication that Parliament did not intend ss 49A and 51B to operate on conduct outside Victoria.
The respondent submits that ss 49A and 51B must be construed as having extraterritorial operation.[20] This is because Parliament plainly intended to broaden the scope of the sexual offending against children captured by legislation. In his Second Reading Speech to the Crimes Amendment (Sexual Offences) Bill 2016, the Attorney-General spoke of the failure of 'some sexual offences' to 'keep up to date with new ways of offending and changes in technology'.[21] In this context, so the respondent submits, nothing can be inferred from the absence of express provision for extraterritorial operation in ss 49A and 51B (in contrast to other sections in the same subdivision).
The respondent further submits there is ample nexus between the offending and Victoria. The victim was present in Victoria; in the case of charges 10, 11 and 12, the penetration occurred in Victoria and the penetration was effected by a person present in Victoria; in the case of charge 13, the child abuse material was produced in Victoria, by a person present in Victoria and who, in producing the material, operated a device located in Victoria. Although the offences were 'caused' by the applicant engaging in conduct while he was located interstate, they were not completed until his co-accused acted in Victoria on the applicant's directions.[22]

[59]

In issue is the territorial ambit of ss 49A and 51B of the Crimes Act.
The applicant's argument is based on the proposition that in order to offend against s 49A(1)(a)(iii)(B) of the Crimes Act, the conduct of 'causing' the sexual penetration of or by a child had to have taken place in Victoria. In substance, he contends that all of the conduct elements of the offending - the causative conduct and the acts of penetration involving a child - must occur in Victoria. This is said to be the case because s 49A contains no words expressly extending the territorial operation of the section.
The applicant makes the same argument in relation to s 51B: the conduct of 'involving' the child in the production of child abuse material and the production of the child abuse material must occur in Victoria.
For the reasons that follow, the proposition that all of the elements of the offending in ss 49A and 51B must occur in Victoria cannot be sustained.
There exists a presumption that penal provisions do not operate extra-territorially.[23] The presumption reflects 'the territorial focus of the common law of crime', being that 'all crime is local'.[24] The jurisdiction of a crime is to be determined by reference to the place in which the crime is committed.[25]
The justification for this presumption is the principle of 'international comity which requires the courts of each state to respect the sovereignty of others'.[26] The presumption can be rebutted by 'clear and specific words to the contrary'.[27]
However, the courts have long held that the criminal laws of a territory may operate on conduct that takes place outside the territory by ascribing jurisdiction to the courts of the State or Territory in which the consequence of the wrongful act is manifested.[28]
Thus, in McNeilly v The Queen,[29] the offender was convicted of attempted murder in New South Wales, having sent a parcel comprising a quantity of gelignite, a detonator and a battery from Queensland to New South Wales via postal delivery. He submitted that only the courts of Queensland had jurisdiction to try the offence because the acts of making up the parcel and arranging for it to be posted were committed wholly in Queensland. Street CJ rejected this submission, finding that the chain of events 'in fact ended within New South Wales when the parcel was delivered' to a recipient of that State.[30]
The so-called 'terminatory' theory applied in McNeilly is based on the proposition that 'the courts of the country where the last element is performed in the series of facts which go to constitute the crime have jurisdiction to try the crime'.[31]
In Thompson v The Queen,[32] a case involving the murder of two young women where there may have been uncertainty about where the crime was committed, Brennan J referred to 'result-crime[s]' that are punishable in the jurisdiction in which the harmful consequences of the offending occur and to which the principle of comity is inapplicable.[33] His Honour explained:

[65]

In other words, some offences, comprised of more than one act, may take place in more than one location.
In Lipohar v The Queen,[41] Gleeson CJ observed that an aspect of the territorial focus of the presumption against extra-territoriality was 'the idea that most crimes have but a single location'.[42] However, 'the assumption that the offence is committed in only one place ... is not a logical necessity'[43] and '[t]he general common law requirement of a single situs has never been absolute'.[44]
More generally, in Director of Public Prosecutions v Sutcliffe,[45] Gillard J remarked that 'crimes [had] ceased to be confined to single locations' and that offending was often done 'without thought to location'.[46] His Honour attributed this in part to the use of technology as a means of instant cross-border communication.[47]
It is plain that a penal provision need not include express words extending the territorial reach of the section. Determining the territorial reach of a penal provision is a question of statutory construction. Thus, whether ss 49A and 51B capture conduct by a person who was not in Victoria is to be answered by construing those provisions in the context of the statute as a whole and by reference to the purpose of their enactment. The presumption against extra-territoriality and the principle of comity do not require any different answer from that given by the statute itself.[48]
In this case, it is clear that the offence of causing sexual penetration of or by a child involves more than one act: the act of causing the penetration and the act of penetration itself. The causative conduct, the 'step by step' instructions to Gillen conveyed contemporaneously by electronic means from somewhere in South Australia to the scene of the penetrations in Victoria, resulted in a child being forced to sexually penetrate his mother in Victoria. To paraphrase Brennan J, the harmful consequences of the conduct occurred within Victoria, even though the acts leading to those consequences occurred outside Victoria. The harmful consequences are the acts of penetration involving the child. That is what s 49A is directed to suppressing. Based on the foregoing analysis, if the penetration takes place in Victoria, that is sufficient for the application of s 49A of the Crimes Act.
Likewise, s 51B creates an offence comprised of more than one act: the act of 'involving' (whether by encouragement, use or otherwise) a child in the production of child abuse material and the production of such material involving the child. The harmful consequence to which the section is directed is the production of child abuse material. If that conduct takes place in Victoria, as it did in this case, that is sufficient for the application of s 51B to the conduct of 'involving', whether it takes place inside or outside Victoria.
However, as a matter of statutory construction, the applicant relies on the fact that many, if not most, of the other provisions in sub-divs 8B and 8D are unequivocally expressed to operate on conduct outside Victoria. The absence of the same or similar words in ss 49A and 51B must mean, it is submitted, that those provisions were not intended to operate on conduct outside Victoria, even if the offending was 'completed' in Victoria and the harm caused by that conduct took place in Victoria. The applicant also relies on what he asserts was legislative change to remove the words 'in Victoria and elsewhere' to impute to the legislature the intention that s 49A apply only to conduct in Victoria.
It is certainly the case that most of the sections in sub-divs 8B and 8D contain express words extending the territorial ambit of the section. A variety of formulations is used to make it clear that conduct outside Victoria is captured, with the following formulation common to many of the sections:

[69]

The applicant submits that no good reason exists in this case for rejecting the significance of the express extraterritorial operation in other provisions in sub-divs 8B and 8D on the ground that they were inserted merely out of greater caution or are redundant.
We observe, as a preliminary matter, that the decision in Green was based on the holding that the object of the relevant provisions was to stop the 'taking' in Victorian waters of fish, in the closed season or under-size, as the case may be. Herring CJ held that this object would not be advanced by making it an offence to have in one's possession or under one's control fish taken in other waters. Support for this view was to be found in the provisions expressed to operate whether the fish were 'taken in Victoria or elsewhere', such as s 42(3), which had 'all the semblance of an extension of that operation beyond what might be regarded as its natural operation'.[53]
The applicant effectively seeks to invoke the canon of statutory interpretation known as expressio unius est exclusio alterius: the expression of one is the exclusion of the other. However, as the High Court stated in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW),[54] '[t]hat maxim must always be applied with care, for it is not of universal application and applies when the intention it expresses is discoverable upon the face of the instrument.[55] It is a "valuable servant, but a dangerous master".'[56] There may be an explanation for the differences in the provisions other than a deliberate legislative intention to make different provision,[57] such as 'inadvertence or accident'.[58]
The sexual penetration and sexual assault provisions (ss 49A-49E) which, as discussed, make no express provision for any of the persons involved (offender, victim or third party/co-offender) to be outside Victoria or for any of the acts or conduct to take place outside Victoria, are built around what we will call the 'base' position, which is physical contact between the offender, person A, and person B, the child. In offending of this kind (involving the offender and the child, and penetration or sexual assault), the offender and the child are necessarily co-located. If those sections went no further than to criminalise such physical contact, any extension of their territorial ambit would be superfluous. However, those provisions are now also expressed to capture conduct between the child and a third person, person C, where that conduct is 'caused' by person A, the offender. In such a case, the offender need not be in the same location as the child and the third person. The offending by person A, which is causative of sexual penetration or sexual touching involving a child, can take place from a distance. Person A need not be located in the same place as the child when offending against the child.
That is the circumstance here. The applicant did not need to be in the same place as IS in order to offend against IS in the manner contemplated in s 49A(1)(a)(iii)(B). Had it been established that the applicant made the phone call to Gillen from Nhill rather than from somewhere west of the South Australian border, there would be no issue about the application of s 49A to his conduct.
In the second reading speech for the Crimes Amendment (Sexual Offences) Bill, the Attorney-General observed that some sexual offences had failed to keep up to date with 'new ways of offending' and changes in technology, and the amendments sought to remedy this deficiency. Accordingly, the Parliament specifically turned its mind to the possibility of remote offending and the use of telecommunications in relation to sexual activity in the 'presence' of a child, in relation to communications constituting 'grooming' and in relation to conduct 'facilitating a sexual offence against a child'. These are offences that readily bring to mind the possibility that telecommunications will be used to carry out the offending. Likewise, the conduct of 'encouraging' a child to engage or be involved in sexual activity is conduct that the legislature would readily anticipate could occur remotely.
In contrast, despite extending the way in which the sexual penetration and sexual assault offences may be committed by introducing the agency of a third person, the legislature has not made express the extra-territorial application of the provisions.
We consider that this is most likely a product of oversight, possibly due to the fact that the 'base position' did not draw attention to the question of extra-territorial application, and not a deliberate choice to restrict the territorial ambit of the sexual penetration and sexual assault provisions in the Crimes Act. There is no logical or rational basis for any such restriction in the light of the extra-territorial operation given to other sections.
Having regard to the structure of the provision and the harm that it is intended to suppress, the 'natural' operation of s 49A of the Crimes Act is not limited to conduct which takes place wholly in Victoria. To the contrary. The sexual penetration offence has been extended to encompass conduct, quintessentially involving the use of words, that causes a third person to engage in acts of penetration with a child. In our view, despite the absence of words expressly extending the territorial ambit of s 49A, its extended structure and its clear object of suppressing harm to children in Victoria give rise to the inference that it is intended to capture conduct outside Victoria where the harm to the child occurs in Victoria. Indeed, the suggestion that Parliament intended to criminalise conduct in Nhill that causes another person to engage in acts of sexual penetration with a child in Kialla, but not the same conduct if it takes place 83 kms to the west of Nhill in Bordertown, South Australia, is absurd.
As to what the amendment of the Crimes Act in 2016 tells us about legislative intention, its immediate predecessor (s 45 of the Crimes Act in operation as at April 2017) relevantly provided:
- (1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
Like the current provision (s 49A), the immediately preceding provision was silent on the question of its extra-territorial application.[59] Accordingly, it is not the case that in enacting the provision that is currently in force, Parliament took away the extra-territorial application of the offence of sexual penetration of a child.
In our view, for the reasons set out above, the legislature must be taken to have intended that s 49A capture conduct causing sexual penetration by or of a child to take place within Victoria, whether that conduct took place within or outside Victoria.
We have reached the same conclusion in relation to s 51B. The applicant caused a child located in Victoria to be involved in the production of child abuse material by giving instructions to his mother. Once again, the offence is capable of being understood as an offence that may take place in more than one location and therefore to have extra-territorial operation, providing there is the relevant connection to Victoria. The absence of words expressly extending the territorial ambit of s 51B (as in other provisions in sub-div 8D) may again be explained by a simple failure to identify the need in an existing provision. In any event, there is no reason why the offence of involving a child in the production of child abuse material should be limited to conduct exclusively in Victoria, given that the harm that s 51B seeks to suppress may well be initiated outside the territory. It remains harm that the legislature is concerned to address.
As a result, there was no error in the trial judge failing to direct the jury that for charges 10, 11, 12 and 13, they could only be satisfied of the applicant's guilt based on evidence of conduct he engaged in within Victoria.[60]
Grounds 1(c) and 2 are not made out.

[72]

The respondent submitted that when the total effective sentences of the applicant and Gillen were compared, the disparity under consideration was two and a half years with respect to the head sentence and one and a half years with respect to the non-parole period. That disparity is justified by the factors personal to Gillen.
As to relative gravity of offending between the applicant and Gillen, the respondent submitted that while it was correct that Gillen's offending was more grave than that of the applicant, that assessment required nuance. It was submitted that while Gillen engaged in incest and was sentenced with respect to both videos, the applicant's conduct with respect to the video product of Gillen's physical acts was more widespread than hers. Further, the applicant's conduct, as the step-father of IS, also involved a breach of trust. And, as the sentencing judge found, the applicant exercised some level of control over Gillen.
The respondent also submitted that the matters Gillen could call on in mitigation were entirely unavailable to the applicant. She had informed police of the existence of the videos. She had pleaded guilty. She gave an undertaking to give evidence against the applicant and then did. She was a critical witness.
Further, Gillen was 25 years of age at the time of her offending and had no prior convictions. The applicant was aged 35 years at the time of his offending and has a criminal history dating from 2001. He has served multiple gaol sentences since 2012. He has relevant convictions for sexual offending, namely indecent assault against a domestic partner, sexual intercourse with a person under 14 years and both production and possession of child pornography. The person under 14 years was a 13 year old girl who became pregnant as a result of a nine month sexual relationship with the applicant. The applicant made five videos depicting sexual intercourse between her and himself. He also had possession of still images of her and 13 other pornographic images of girls ranging in age from seven to eleven years, a boy of about eight years of age and a seven year old child whose gender could not be determined. While both Gillen and the applicant were sentenced as serious sexual offenders, Gillen was found to be unlikely to reoffend whereas the applicant was assessed as a high risk of sexual re-offending.

[74]

Consistency in the application of the law is a fundamental aspect of the rule of law. In a very different context, but in terms that are relevant to discretions generally, Brennan J said that: '[i]nconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.' The High Court has observed that:

Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'.

Appealable error may be inferred from disparity that is not explained in the reasons for sentence, and the disparity itself may provide a basis for appellate intervention. However, any assessment of an argument based on parity requires this Court to have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders and to recognise that:

Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.

The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the 'qualitative and discretionary judgements required' to arrive at the sentence imposed. It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA, with whom Brooking and Phillips JJA agreed, said in R v Djukic:

Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[62]

[75]

In applying these principles to the present case, we are not persuaded that the sentences imposed upon the applicant and Gillen were so disparate as not to have been reasonably open to the sentencing judge.
Gillen's offending was most grave. A young child with developmental difficulties was emotionally pressured and bribed to participate in multiple sexual acts with his mother, and to be filmed whilst doing so. The applicant was found to have caused the first sequence of that offending. The learned sentencing judge was correct to describe the gravity of his offending as 'high.'[63]
The judge was also correct to describe the issue of parity as 'exquisite.'[64] His Honour was cognizant of the differences in the circumstances of the applicant's and Gillen's respective offending and their respective personal circumstances. In our view, the differences are sufficient to explain the sentences imposed notwithstanding the differences in offending conduct.
Gillen received a substantial sentencing discount for her undertaking to give evidence. She was critical to the case against the applicant. That is a compelling circumstance of mitigation.[65] She was found to have some remorse and fair prospects for rehabilitation. Her status as a serious sexual offender arose from the offending then under consideration. Issues of specific deterrence and protection of the community were of lesser moment in her sentence.
The applicant was sentenced as a serious sexual offender, not as a result of the instant offending, but in light of his prior convictions. He had no remorse. His prospects for rehabilitation are poor. He poses a high risk of future sexual offending. The sentence imposed upon him reflects the need for general and specific deterrence, denunciation and punishment as well as protection of the community.
We see no error in the sentencing judge's approach to the parity question nor in the sentence imposed on the applicant.
It follows that leave to appeal against sentence should be refused.

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Case (a pseudonym) v The King [2023] VSCA 12 (10 February 2023)