1 On 25 February 2011 the appellant, who is now aged 70, pleaded guilty in the County Court at Melbourne to various sexual offences against his granddaughters, JM and TM. Following a plea that was conducted on that same day, he was sentenced some two weeks later, on 11 March 2011, as follows:

Maintain sexual relationship with child under 16 [Crimes Act 1958 s 47A(1)][1]

Indecent assault [Crimes Act 1958 s 39]

Indecent act with child under 16 [Crimes Act 1958 s 47(1)]

14 years and 6 months' imprisonment, with non-parole period of 12 years and 6 months' imprisonment.

Report for 15 years pursuant to Sex Offenders Registration Act 2004 (Vic).

2 The appellant subsequently sought leave to appeal against sentence. He relied upon four grounds, but leave was granted in relation to one ground only:

The individual sentences, orders for cumulation, total effective sentence and non-parole period were manifestly excessive.

3 On 15 October 2013, the appeal was heard. It was allowed instanter. The appellant was re-sentenced in the terms set out at 81 below. The Court indicated that it would give reasons at a later date. These are those reasons.

4 The appellant is the grandfather of the two female complainants, JM and TM. The bulk of his offending occurred between 1996 and 2004, when JM was aged between 5 and 14, and TM was aged between 4 and 12. The appellant lived with his son, the girls' father. The appellant regularly looked after both girls when they visited their father, and he had to be away.

5 It should be noted that charges 1 and 2 concerned JM only, while charges 3 to 9 involved TM alone.

Charge 1: Maintain sexual relationship with child under 16

6 Within the ambit of this charge, it was alleged that between 1996 and 2004, the appellant, either at his home, or at the family beach house in Rye, performed a series of indecent acts with or in the presence of JM.

7 JM recalled that the appellant had first abused her some time in 1996. On that occasion, he had told her to undress, and then started to touch her breasts.

8 JM also referred to a series of incidents, which she could not be specific about in terms of when they occurred, when the appellant touched her breasts, groped her vagina, and masturbated in front of her. These incidents all occurred when JM visited the appellant at his home. She also gave evidence that, on several occasions, the appellant had told her to masturbate in front of him.

9 JM said that on one occasion, in about February 1998, the appellant undressed in front of her and put her on his lap. He fondled her breasts, touched her vagina and made her masturbate in front of him.

10 JM said that on another occasion, the appellant had invited her to swim naked in his pool. When she emerged, he asked her to sit on his lap and fondled her breasts.

11 JM gave evidence of one particular incident that took place at the family beach house. On that occasion, the appellant put a condom on a banana, and told JM to give him 'anal sex'. He instructed JM to insert the banana into his anus, and to push it back and forth.

12 In August 2008, when JM was aged 17, and was attending her grandmother's funeral, the appellant put his hand on her bottom, over her clothes, and squeezed her buttocks.

13 Charge 3 concerned an incident that occurred when TM was between 4 and 6 years old. On that occasion, the appellant exposed his penis to TM, and made her touch it.

14 A week or so after that incident, the appellant made TM urinate in a home made 'potty' (in effect a bucket which he had set up in the kitchen) so that he could watch her relieve herself.

15 On one occasion, when the appellant and TM were both at the beach house, he put Vaseline on a banana, and in TM's presence, inserted it into his anus. TM was below the age of 10 at the time.

16 In about 2001 or 2002, the appellant and TM were together in his backyard. He swam naked in her presence. He subsequently grabbed her by the waist, and attempted to remove her bathers.

17 On another occasion, when TM was about 9 years old, she and her sister were playing in a cubby house located at the rear of the appellant's home, when he touched her breasts.

18 On yet another occasion, when TM was also aged about 9, and was trying on clothing that a neighbour had given her, the appellant put his hand on her groin area, leaving it there for a short time.

19 Whilst attending the girls' grandmother's funeral, the appellant did to TM exactly what he had also done to her sister, namely touched her bottom over her clothing, and squeezed her buttocks.

20 Almost all of the appellant's offending took place in circumstances where he was responsible for the care of his granddaughters, and no one else was present. Both girls said that the appellant sometimes gave them beer to drink. TM said he regularly gave her liquorice so that the smell of the beer could not be detected.

21 Both girls said that the appellant would often walk around naked in front of them. They said that he frequently encouraged them to undress. JM said that he told her that if she told anyone about his behaviour, both she and her sister would get into trouble. He warned her that they would end up hurting their mother and their mother's parents. He also told them that if they revealed what he had been doing, they would go to gaol.

22 In March 2009, the girls finally told someone about what their grandfather had been doing, and the matter was reported to the police. Each girl participated in a VATE. However, it was not until several months later, on 23 June 2009, that the appellant was arrested. When interviewed by the police, he gave a series of 'no comment' answers.[2]

23 There was then a considerable delay. Initially, the appellant sought severance of the indictment brought against him. Had that application succeeded, there would have been two separate trials, one relating to each girl. However, severance was refused. It was only at that stage, and immediately before a jury was empanelled, that the appellant finally elected to plead guilty.[3]

24 The appellant submitted that both the total effective sentence of 13 years and 6 months' imprisonment, and the non-parole period of 11 years and 6 months, were manifestly excessive. He submitted that there had been excessive cumulation in relation to the various sentences imposed resulting in a total effective sentence that was both crushing, and wholly outside the range that was reasonably available. He argued, in addition, that the individual sentence of 9 years' imprisonment imposed on charge 1, the sentence of 15 months' imprisonment imposed on charge 4 and the sentence of 18 months' imprisonment imposed on charge 7 were all manifestly excessive.

25 In what was treated as a further particular of his ground of appeal, the appellant submitted that the sentencing judge had given insufficient weight to his plea of guilty. He noted, in that regard, that her Honour had indicated that but for that plea, he would have received a total effective sentence of 14 years and six months with a non-parole period of 12 years and six months.

26 The appellant indicated, at one point, that he intended to challenge the sentence imposed on charge 1 on the basis that the sentencing judge had erred in treating the maximum penalty for that offence as 25 years' imprisonment when, in truth, the correct maximum was only ten years' imprisonment. However, upon reflection, and after careful analysis, counsel who appeared on the appeal acknowledged that her Honour had correctly understood the maximum to be 25 years' imprisonment. Accordingly, that particular submission was not pressed.

27 The appellant relied, in support of his contention that both the total effective sentence and the non-parole period were manifestly excessive, upon a series of mitigating factors that, he submitted, could not have been given appropriate weight.

28 First was the fact that the appellant had pleaded guilty, albeit at a very late stage. Nonetheless, it was submitted, the plea would have had considerable utilitarian value and plainly merited some significant discount.

29 The appellant also relied upon his advanced age and ill health as factors that, taken together, were likely to make his time in prison more burdensome than would otherwise be the case for an offender in good health.

30 In that regard, counsel noted that the appellant was aged 67 years when he finally came to be sentenced. The material placed before the sentencing judge on the plea showed that in 2006 he had been treated for prostate cancer. In 2010, his health deteriorated greatly. He was diagnosed with stomach cancer and underwent chemotherapy. In addition, he suffered from heart palpitations, and other heart related ailments. He was on medication to treat his heart condition. To compound these difficulties, her Honour was told that the appellant suffered from severe incontinence.

31 In addition, there was evidence that the appellant had been the victim of a robbery when aged 48. It appears that he was severely traumatised by that event because he was unable to work thereafter. That led to him being placed on a disability pension, which later became a sickness benefit.

32 All in all, counsel submitted, it was perfectly clear, from the evidence led on the plea, that the appellant's health was extremely poor. It would have been perfectly obvious that his prognosis was somewhat doubtful.[4] Any term of imprisonment would unquestionably have been particularly burdensome so far as he was concerned.

33 Finally, counsel submitted that, apart from this offending, the appellant had led an apparently blameless life.

34 Counsel who appeared for the Crown did not concede that any individual sentence imposed in this case had been manifestly excessive. At the same time, he frankly acknowledged that everyone of those individual sentences had been 'at the absolute top of the range'. He also acknowledged that the same could be said of the orders for cumulation that were made. He accepted that the non-parole period was as long a term as could conceivably have been fixed.

35 Each of the various mitigating factors relied upon by counsel in this Court had been specifically raised, and addressed in the sentencing remarks below. However, her Honour determined that they would be afforded little weight in light of what she correctly described as the appellant's 'cruel, predatory and self-centred behaviour'.

36 There is one matter which caused us particular concern during the hearing of this appeal. For reasons that we cannot begin to comprehend, counsel who appeared on behalf of the appellant on the plea, having commenced what he had to say by intimating that he would be brief, proceeded to tell her Honour that he conceded that 'there [was] no remorse'. Presumably, that was not what he intended to convey. The appellant had, after all, pleaded guilty. Nothing more needed to be said, since the plea itself would ordinarily have been treated as some evidence of remorse. It would also have indicated a willingness on the appellant's part to facilitate the course of justice.[5] Nonetheless, counsel said what he did, and nothing further was said about remorse.

37 In considering the ground of manifest excess, it is important to have regard to the assistance, or lack thereof, provided to her Honour by the Crown. The prosecutor's submissions on the plea were extremely brief. He commented upon the gravity of the offending in only the most general of terms. He indicated, before anything had been said by counsel who appeared for the appellant on the plea, that he was prepared to offer a MacNeil-Brown[6] range. Her Honour correctly told him that it was inappropriate to provide such a range until after defence counsel had put forward whatever matters in mitigation were considered relevant.

38 The transcript then records the prosecutor, after having heard defence counsel make his submissions, say the following:

PROSECUTOR: Your Honour, it's trite to say the Crown submission is this is very serious offending, and the sort of bullet point matters that we submit are appropriate for Your Honour to weigh heavily in Your Honour's consideration are the gross and extended abuse of trust, the taking advantage of the family pressures, for instance, mum out at work and the babysitting and access situation, the son away with a new partner... The tender ages of the victims, the grooming aspect involved with the teaching of masturbation techniques, and so on, to [JM]. The surrounding environment he put them in with the provision of alcohol, and particularly the persistent nudity. The prurient dimension associated with the bucket incident, let alone the banana episode. The threats not to talk of feeling of being blamed and inculpated themselves, and the consequent knock-on effect to hurt the family. We say that's a significant matter in this, Your Honour, and it's spoken to very movingly by [JM] in her victim impact statement, and the brazenness of re-offending, indeed years after the general offending had finished.

HER HONOUR: That's at the funeral.

PROSECUTOR: Yes. That particular offence of itself isn't the worst, but it's the brazenness of it, not letting the complainants off the hook, as it were, they're not leaving it, it's not something that is behind them, in the past, even as recently as, I think it was 2008, but that reappears sort of out of all circumstances at the most inappropriate of venues where - - -

HER HONOUR: It's almost like a reassertion of ownership, or something - - -

PROSECUTOR: That's what we're putting, Your Honour, that there's a 'This isn't finished, and I'm here, and this can continue at my will,' as it were. There's a brazenness and a sort of contemptuousness to that behaviour. So that's what we put, Your Honour, as a background or bullet points to. As I've told Your Honour, I've got sentencing instructions in terms of range.

HER HONOUR: Yes.

PROSECUTOR: Your Honour, we concede this is a comment on how severe or how serious the Crown sees this, 11 to 13 and a half years on the top, nine to 11 and a half on the bottom.[7]

39 The range of 11 to 13 and a half years on the top, with nine to 11 and a half on the bottom was never, at any stage, explained, or justified. It appears to have been arrived at before the plea was conducted, without any consideration being given to what might be said by way of mitigation. It was, in any event, an entirely ill-judged, and ill-considered offering. As will be seen, the figures selected for that range were significantly out of kilter with current sentencing practice for offences of this kind.

40 As counsel who appeared for the appellant before this Court observed, a sentence of the order here imposed is ordinarily reserved for sexual offending of a graver nature than this. In particular, sentences of nine years or more for a single charge of maintaining a sexual relationship with a child under 16, which do not involve penetrative sex, are virtually unheard of. Sentences of that kind usually involve multiple acts of sexual penetration, sometimes many victims, and occasionally committed over a more protracted period.

41 We note that the declaration made by the sentencing judge pursuant to s 6AAA of the Sentencing Act 1991 indicates that her Honour discounted the appellant's total effective sentence by a mere nine percent. That, of itself, calls into question whether this sentence was manifestly excessive.

42 In sentencing an offender, a court must have regard to whether the offender pleaded guilty to the offence, and the stage of the proceeding at which he or she did so.[8] The purpose of s 6AAA was not to alter that principle, but simply to make the reasoning behind a sentence more transparent.[9] A complaint about the adequacy of the discount for a guilty plea, as reflected in a 6AAA declaration, is not examinable for specific error. However, it can serve as a particular of a ground of manifest excess.[10]

43 In Saab v The Queen,[11] the appellant was sentenced to a total effective term of 14 years' imprisonment with a non-parole period of 10 years. The sentencing judge found that, but for the appellant's plea of guilty, she would have imposed a sentence of 15 years' imprisonment with a non-parole period of 11 years.

44 The Court in that case noted that the principal obstacle to a determination that the notional sentence stated pursuant to s 6AAA can reveal specific error lies in the fact that sentences are the product of a process of instinctive synthesis. The Court also observed that:

The notion that error may lie in placing too great or too little weight on a particular sentencing factor invites an analysis which we consider is irrelevant.[12]

...profitless to criticise a sentencing judge's guess as to the precise part played by one element if the result of the synthesis is a sentence which is within a range of appropriate sentences.[13]

That is not to say that a s 6AAA statement can never reveal error. In a particular case, where an offender's conduct in pleading guilty, the contrition the plea exhibits, and the utilitarian value of the plea all call for a substantial discount, the s 6AAA statement may reveal that the plea was effectively ignored, so that it may be concluded that the sentencing judge failed to have any regard to a relevant factor in exercising his discretion. The statement may amount to an expression in numerical terms of a view that, if put into words, would betoken specific error. Such a case will be rare.[14]

47 As Saab notes,[15] judges fix sentences by a process of 'instinctive synthesis'. They do not do so by adding to, or subtracting from, a 'starting point', itself based on some notional tariff. Under a ground of appeal that a sentence is manifestly excessive, where complaint is made about whether too little or too much weight was given to a particular sentencing factor, the appellant cannot point with any mathematical precision to the extent to which that factor affected the ultimate synthesis.

48 As a consequence of s 6AAA, the instinctive synthesis operates differently in respect of a guilty plea. The sentencing judge must indicate the precise deduction that was made to the offender's sentence on the basis of his or her plea of guilty. That discount must, at the very least, be sufficient to reflect the utilitarian benefit of a guilty plea.

In light of section 6AAA of the Sentencing Act 1991 and the social utility of encouraging offenders to enter an early plea of guilty, the discount allowed for an early and unconditional plea of guilty should ordinarily be substantial.[17]

50 In this present case, the appellant chose to plead guilty only after his application for severance of the charges brought against him had been rejected. Given the lateness of the plea, and the lack of evidence of any actual remorse, he could not have expected to receive a substantial discount. Nonetheless, a guilty plea is always of some utilitarian benefit and will usually indicate a willingness on the part of the offender to facilitate the course of justice. As we have concluded that the sentence was, in any event, manifestly excessive, it is unnecessary to say anything further regarding the issue of the weight accorded to the plea.

51 It is, however, necessary to say something further about the sentencing range put forward on behalf of the Crown in this case. Submissions of that kind are intended to promote consistency of sentencing and to reduce the risk of appealable error.[18] As has been said repeatedly, sentencing judges are not bound by any submission as to range, and must decide for themselves what is the appropriate sentence in the circumstances.[19] A submission by the Crown as to range is nothing more than an expression of the prosecutor's view, based upon an analysis of the facts of the case and the applicable law,[20] as to the appropriate disposition.

52 As this Court said in Va v The Queen:[21]

[T]he Crown's obligation to assist a sentencing judge with a submission on range is not discharged merely by nominating the top and bottom of the range. Like any other submission directed at the making of a discretionary judgment, the Crown's submission on range must identify how the relevant features of the case, and the relevant sentencing principles, bear upon the exercise of the discretion. As the majority in R v MacNeil-Brown (Maxwell P, Vincent and Redlich JJA) said:

The range thus nominated must be based on a clearly-articulated view of the gravity of the offence, the relevant sentencing principles and practices, and relevant aggravating or mitigating factors. All of these matters should be referred to in the course of the submission, so that the court understands how the Crown contends that the relevant matters should be brought to bear.

Lest it be thought that this is an unduly burdensome requirement, we would point out that the discipline of articulating the basis of the range submission, by reference to the aggravating and mitigating circumstances of the case and to current sentencing practices so far as applicable, is likely to ensure that the submission is appropriate to the case and - hence - of maximum assistance to the judge. The function of Crown submissions on sentencing range is to promote consistency of sentencing and reduce the risk of appealable error. An ill-judged Crown submission on range can have exactly the opposite effect, and may lead to sentencing error where otherwise there would have been none.[22]

53 Aside from the somewhat unhelpful submission that the offending in this case was particularly grave, cited earlier in these reasons for judgment, the prosecutor failed to discharge his responsibility to draw to the sentencing judge's attention a body of authority that would have assisted in ascertaining current sentencing practice, particularly with respect to offences under s 47A.

54 Given the failure of either party to provide her Honour with any useful guidance as to current sentencing practice for offences of this kind, it is perhaps understandable why she did not appreciate, at once, that the range put forward by the Crown was far too high. Moreover, the Crown's submission as to range not only paid no regard to current sentencing practice, but also failed to pay any regard to the principle of totality.

55 As Redlich JA said in Azzopardi v The Queen,[23] a Crown submission as to range must involve a consideration of whether the total effective sentence proposed is necessary to satisfy all relevant sentencing objectives. His Honour said:

If a total effective sentence is unduly punitive by going beyond what is necessary to achieve sentencing objectives, the assumption is that it will be positively harmful to the proper aims of the criminal law. It does not promote consistency of sentencing. The sentence is unjust. It will not make due allowance for the progress of the offender's rehabilitation during the term of his sentence. Its unfairness gives rise to the risk that the prisoner will become 'hopeless, aggressive or otherwise intractable...making it more rather than less likely that he will eventually offend again.'

It was not reasonably open to the sentencing judge, in my respectful view, to impose the aggregate sentences or non-parole periods that he did. I would uphold the contention in the case of all applicants that the principle of totality has been infringed as the total effective sentences imposed on each applicant exceeded that which was necessary to achieve all sentencing purposes. Their total effective sentences were disproportionate to their overall criminality.[24]

56 Any proper analysis of current sentencing practice requires a consideration of sentences imposed for comparable cases. As Redlich JA said in Ashdown v The Queen:[25]

Current sentencing practice is referred to in s 5(2) of the Sentencing Act 1991 (Vic) as one of the matters to which a sentencing court must have regard. The term is to be understood as a particular, though not exclusive reference, to the kinds of sentences that are imposed for that offence in comparable cases. The Sentencing Advisory Council has defined it 'as those sentences imposed over a recent period of time on 'like' cases.' Comparable cases which contribute to CSP will provide an important indicator of the parameters within which the discretion may be exercised. Subject to relevant discretionary considerations, they will inform the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the 'instinctive reaction' when a court is asked to consider whether a sentence is manifestly inadequate or excessive. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law and the search for unifying principles. Cases are likely to be comparable where the objective seriousness of the offender's conduct is similar to that of the subject offence. Decisions which involve conduct which fall outside the relevant category of seriousness for the subject offence may occasionally provide assistance in identifying indicative outer limits of the appropriate sentencing range. However it is CSP, as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge. Hence appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence. Hayne J described this range as the 'permissible range of disposition' in AB v The Queen. There may also be a further narrowing of the range by asking whether the offence falls towards the lowest end, the middle or the upper end of that applicable range. Such focus upon the relevant range of sentences, or in times gone by, to the 'tariff' or 'going rate', provides guidance as to an indicative range for the category of seriousness of the subject offence and implies that the range is not unlimited.[26]

57 Even a cursory examination of cases involving offences under s 47A will reveal that the sentence of nine years' imprisonment imposed for that offence in this case was very much out of line with current sentencing practice.

58 In DPP v DDJ,[27] this Court gave careful consideration to current sentencing practice for this offence. The Court examined, in detail, a series of cases, all of which concerned the maintaining of sexual relationships with children under 16. The Court observed that a sentence for that offence of 10 years was 'quite exceptional'.[28] While expressing concern about the adequacy of current sentences for that offence, it accepted that the respondent had pleaded guilty and was, of course, entitled to be sentenced by reference to established sentencing practice.

59 In July 2013, the Sentencing Advisory Council issued a new 'Sentencing Snapshot' in which the Council assessed sentencing practices for offenders convicted between 2007-8 and 2011-12 of offences under s 47A. Throughout that period, a total of 42 offenders were sentenced for persistent sexual abuse. Of these, 39 received a sentence of immediate imprisonment. Of those who were imprisoned, the lowest sentence imposed was 18 months' imprisonment. The highest sentence given was 12 years' imprisonment. The median length of imprisonment was six years. Only eight offenders, out of the entire 42 considered, received a sentence of nine years or more.

60 In R v WWS,[29] the applicant pleaded guilty to nine charges of sexual offences committed against seven children. These included two charges under s 47A, one of which featured repeated acts of lingual and digital (though not penile) penetration. The applicant was sentenced on those two charges to six and seven years' imprisonment, respectively. He received a total effective sentence of 11 years and six months' imprisonment, with a non-parole period of nine years and six months. This Court found that the sentence in that case was not manifestly excessive.

61 In ED v The Queen,[30] the appellant pleaded guilty to one charge of maintaining a sexual relationship with a child under the age of 16 (his step-daughter), and one charge of possessing child pornography. He was sentenced to nine years' imprisonment for the charge under s 47A, and given a total effective sentence of nine years and six months in respect of both offences. A non-parole period of seven years and six months was fixed.

62 The offending in ED took place over a period of about three years. Importantly, it involved regular and numerous acts of penile penetration. The Crown provided the Court with details of a number of sentences imposed for offending of that character.[31] Having reviewed these cases, including the decision of this Court in DDJ,[32] Robson AJA (with whom Redlich and Harper JJA agreed) concluded that the sentence was not manifestly excessive.

63 In DPP v DZ,[33] the respondent pleaded guilty to three counts of maintaining a sexual relationship with a child under 16. The three victims were the daughters of his de facto wife. The offences involved digital, vaginal and anal penetration. This Court (Neave and Bongiorno JJA and Byrne AJA) allowed the Director's appeal and re-sentenced the respondent to a total effective sentence of 14 years, with a non-parole period of 11 years. The individual sentences for the three counts of maintaining a sexual relationship with a child under 16 were eight years, six years and six years and six months respectively.

64 In BM v The Queen,[34] the applicant pleaded guilty to one charge under s 47A. He was sentenced to 12 years' imprisonment with a non-parole period of nine years. Maxwell P (with whom Whelan JA agreed) granted leave to appeal, but ordered that the appeal itself be dismissed. The Court characterised the sentence in that case as 'unexceptional'.[35]

65 It is perhaps noteworthy that Whelan JA, though he agreed with the President, observed that in terms of current sentencing practice, the sentence was 'at the top of the permissible range'.[36]

66 It must be said that the offending in BM seems to have been significantly worse than that of the appellant in the present case. In BM, the offences occurred every second weekend (during the applicant's access visits with the victim, his daughter) over a period of close to 10 years, while she was aged between 4 and 13. The applicant engaged in repeated acts of both digital and penile penetration. Importantly, he continued to offend even after coming before the court, and after being sentenced for possessing child pornography.

67 This review of current sentencing statistics, and arguably comparable cases concerning offences such as those committed here, reveals that any sentence of nine years or more for a single charge of maintaining a sexual relationship is typically reserved for cases which involve multiple acts of sexual penetration over a period of many years. Any total effective sentence that exceeds nine years, and perhaps approaches the period of imprisonment that was imposed in this case, is likely to have involved multiple victims, perhaps a contested trial, and possibly prior convictions. It is most unlikely to involve an offender who suffers from the various illnesses that afflict this appellant.

68 Any offence that involves actual penetration (whether by inserting a body part or an object into a victim's orifice) will usually be regarded as significantly more serious that an offence lacking that particular characteristic. Of course, all non-consensual sexual offending involves violation of the victim's sexual autonomy, and is itself, almost certain to result in significant harm. Nonetheless, it is plainly true that penetrative offending is generally regarded as worse than non-penetrative offending.[37] The very fact that rape carries a maximum penalty of 25 years' imprisonment, whereas the maximum penalty for indecent assault is only 10 years' imprisonment, reflects this view of the respective gravity of this offending.

69 The appellant's conduct in relation to charge 1 was appalling. He behaved in an unspeakable manner. JM had been entrusted to his care, and he repeatedly violated that trust. He subjected her to the grossest forms of sexual abuse, short of actual penetration. JM's victim impact statement, which was read to the sentencing judge, reflects the harm that the appellant's conduct has caused her.

70 The appellant's offending, in relation to JM was undeniably grave, and deserving of strong condemnation. He was entitled, nonetheless, to be dealt with in accordance with current sentencing practice, and no differently to others who had committed like offences.

71 In light of the appellant's age, ill-health, and other mitigating factors, and taking into account current sentencing practice, it soon became apparent to this Court that the sentence of nine years imposed on charge 1 was excessive. That was sufficient to establish sentencing error of a kind that vitiated the exercise of the entire sentencing discretion.

72 That discretion having been reopened, we were also of the view that several of the individual sentences imposed for a number of the remaining charges were excessive. For example, charge 2, which as we have said, involved the appellant having squeezed JM's buttocks from outside her clothing, when she was aged 17, did not, in our view, warrant a sentence of nine months' imprisonment. We would also question the sentence of 15 months imposed on charge 4, and the sentence of 18 months imposed on charge 7.

73 It is worthy of note that the sentencing judge made substantial orders for cumulation on each and every charge. The orders for cumulation made in respect of charges 3 to 5 were particularly striking. On charge 3, eight months of the 12 month sentence was cumulated on the base sentence of nine years. On charge 4, 12 months of the 15 month sentence was further cumulated, and on charge 5, 15 months of the two year sentence was added to the period to be served.

74 When the base sentence of nine years is taken into account, only 20 per cent of the appellant's sentence was to be served concurrently. Such stern orders for cumulation, in light of the fact that the head sentence had not itself been sufficiently moderated, failed to do justice to the requirements of totality.

75 It was for these reasons that we concluded that the sentencing discretion had miscarried.

76 For the sake of completeness, it should be noted that the appellant also submitted that the non-parole period of 11 years and six months was manifestly excessive, and that it was disproportionately high relative to the head sentence. The non-parole period comprised 85 per cent of the head sentence.

77 The principles governing the fixing of a non-parole period were set out by Redlich and Osborn JJA (Nettle JA agreeing) in Kumova v The Queen:[38]

Like the head sentence, determination of the non-parole period involves the application of well settled principles and practices to the circumstances of the case. All factors are taken into account, first in determining the head sentence and then in fixing the non-parole period. The factors may be differently weighted at each stage of the exercise because there are different purposes behind each function. In fixing the proportion of the head sentence to be given to the minimum sentence there are sentencing principles in operation which, together with the individual circumstances of the case will determine the proportion which the non-parole period must bear to the head sentence. First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. Secondly, punishment is mitigated in favour of the prisoner's rehabilitation. The benefit of the minimum term is for the purpose of the offender's rehabilitation. Thirdly, in fixing the minimum term, the interests of the community, which imprisonment is designed to serve, must be taken into account.[39]

78 As was explained in Romero v The Queen:[40]

For offences that do not attract the sort of sentences reserved for murder and other very serious crimes, non-parole periods between 60 and 66 % and up to 75 % of the head sentence are not regarded as uncommon. Where the ratio of the non-parole period to the head sentence exceeds these figures, the absence of an explanation may invite appellate scrutiny.[41]

79 The sentencing judge gave no reason for fixing a non-parole period of this length. However, it did not go unnoticed by this Court that both the total effective sentence of 13 years and six months, and the non-parole period of 11 years and six months, accorded precisely with the very top of the MacNeil-Brown range put forward on the plea by the prosecutor.

80 Although a ratio of more than 75 per cent between the head sentence and the non-parole period will not necessarily connote error, the justification for such a ratio should normally be provided. As the head sentence itself was shown to be manifestly excessive in this case, and the sentencing discretion was accordingly re-opened, a new non-parole period had to be fixed. Accordingly, it is unnecessary for us to comment further upon whether, viewed in isolation, the fixing of a non-parole period at such a high ratio to the head sentence necessarily revealed discrete error.

81 For these reasons we determined that the appellant should be re-sentenced as follows:

Maintain sexual relationship with child under 16 [Crimes Act 1958 s 47A(1)]

Indecent assault [Crimes Act 1958 s 39]

Indecent act with child under 16 [Crimes Act 1958 s 47(1)]

10 years' imprisonment, with non-parole period of 7 years' imprisonment.

Report for 15 years pursuant to Sex Offenders Registration Act 2004 (Vic).

[1] That offence is now called 'persistent sexual abuse of a child under 16'. It still carries a maximum penalty of 25 years' imprisonment.

[2] Plea transcript DPP v [Cummins] (County Court of Victoria, Judge Gaynor, 25 February 2011) 11-12 ('Plea transcript').

[4] There was evidence before the sentencing judge that notwithstanding chemotherapy there was a significant chance of cancer recurrence, 'probably at least 40 to 50 per cent'. The treating oncologist commented that if the cancer were to recur, the prognosis would be 'very poor'. Statistics show that only about one in four men diagnosed with stomach cancer survive for a period of five years or more.

[5] Phillips v The Queen (2012) 222 A Crim R 149.

[6] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677 ('MacNeil-Brown').

[8] Sentencing Act 1991 s 5(2)(e).

[9] Second Reading Speech, Attorney-General, Legislative Assembly, 22 November 2007, 4099-4100.

[10] Scerri v The Queen (2010) 206 A Crim R 1.

[11] [2012] VSCA 165 (Buchanan, Weinberg and Mandie JJA).

[15] Citing the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584; Markarian v the Queen [2005] HCA 25; (2005) 228 CLR 357; Hili v the Queen [2010] HCA 45; (2010) 242 CLR 520.

[16] [2009] VSCA 281.

[19] WCB v The Queen (2010) 29 VR 483, 488.

[20] MacNeil-Brown, 691 [42]-[43].

[21] [2011] VSCA 426 (Maxwell P, Redlich and Weinberg JJA).

[22] Ibid [44]-[45] (citations omitted).

[23] (2011) 35 VR 43.

[24] Ibid 64-65 [75]-[76] (citations omitted).

[25] (2011) 219 A Crim R 454.

[26] Ibid 517-18 [174] (citations omitted).

[27] [2009] VSCA 115; (2009) 22 VR 444 (Maxwell P, Vincent and Neave JJA) ('DDJ').

[29] [2009] VSCA 125; (2009) 22 VR 559.

[30] [2011] VSCA 397 ('ED').

[32] DDJ [2009] VSCA 115; (2009) 22 VR 444.

[33] [2009] VSCA 301.

[34] [2013] VSCA 3 ('BM').

[37] There are various ways to illustrate this proposition. For example, one has only to have regard to materials such as the Crown Prosecution Service Guidelines, published in England, which make it clear that the prosecuting authorities view penetrative offending as far more serious, objectively speaking, than non-penetrative offending.

[38] [2012] VSCA 212.

[40] (2011) 32 VR 486.

[41] Ibid 493 [25] (Buchanan and Mandie JJA agreeing). See also R v Bolton & Barker [1998] 1 VR 692; R v Detenamo (2007) VSCA 160; R v Krasnov and Shlakht (1995) 82 A Crim R 92, cited in Ashe v The Queen (2010) VSCA 119, [33] (Neave and Redlich JJA, Coghlan AJA).