DPP v Allen [2020] VSCA 292

1 In late July 2019, the respondent was scheduled to stand trial in the County Court at Wodonga on a number of charges of sexual penetration with a child under 16 under care, supervision or authority. After negotiations, the matter resolved to a plea of guilty on a single representative charge. At that stage, the respondent had not been arraigned, and a jury not yet empanelled.

2 On 5 May 2020, a plea hearing was conducted in the County Court at Melbourne before her Honour Judge Cannon. On 25 May 2020, the respondent was sentenced as follows:

Sexual penetration of a child under 16 [ss 45(1) and (2)(b) - Crimes Act 1958]

4 years' imprisonment with a non-parole period of 2 years and 6 months

15 year reporting period pursuant to s 34(1)(b) of the Sex Offenders Registration Act 2004

3 By notice of appeal dated 22 June 2020, the Director of Public Prosecutions has challenged both that 3 year term, and the non-parole period, on the sole ground of manifest inadequacy.

4 For reasons that follow, we would allow the appeal. We would set aside the sentence imposed below. In lieu thereof, we would order that the respondent be resentenced to a term of 4 years' imprisonment, with a non-parole period of 2 years and 6 months.

Circumstances surrounding the commission of the offence

5 The offending took place in July and August 2015. The respondent was then aged 51 and lived in Wodonga. The complainant, who was born in November 1999, was aged 15, and lived in Western Australia. At various points throughout his life, he had been in State care. However, at the time of the offending, he was living at home with his mother.

6 The respondent and the complainant first made contact over Facebook, when he sent her a 'friend request'. He told her that he was 18, which she initially believed. On the plea, the prosecutor was unable to say, and the judge was unable to find, that the respondent was aware of the complainant's true age at the time she sent him a series of sexualised messages and videos. The judge said that she could not be satisfied, to the requisite standard, that this conduct on the respondent's part amounted to 'grooming'.[1]

7 Eventually, the complainant and the respondent began to communicate over the phone. During one call, she specifically asked him how old he was. He replied that he was 15. He also told her about his having been brought up in State care.

8 On 2 July 2015, for reasons that were never made entirely clear, the respondent flew to Perth in order to meet the complainant in person. They initially met at a café, in the town of Bunbury, about two hours' drive south of Perth. The complainant was, at that time, in the company of a young female friend.

9 Following this meeting, the complainant and the respondent spent five days together at her accommodation. There was no evidence to suggest that there had been any sexual activity between them at that time. The respondent told him that she wanted to look after him, and promised that she would assist him in getting his life 'back on track'.

10 On 7 July 2015, the respondent flew back to Victoria with the complainant. She paid for his airfare. Within a short time of their arrival in Wodonga, she filed paperwork with Centrelink in order to claim benefits for having the complainant in her care.

11 The complainant lived with the respondent at her home for about a month. They had separate bedrooms. Over that period, they had sexual intercourse about two or three times a week.

12 On or about 8 August 2015, the complainant and the respondent argued. As a result, he locked her out of the house. Police attended and, in due course, arranged for the complainant to be put into State care. At that stage, he did not say anything to police about the true nature of his relationship with the respondent. Eventually, he was returned to his mother's care, in Western Australia.

13 In January 2017, more than a year later, the complainant was taken into care in Western Australia. He was looked after by a foster mother, 'Evelyn Carr'. He told Ms Carr that he had previously lived with an older woman in Wodonga. He admitted that he had initially told the respondent that he was aged 18, but added that he had informed her of his true age before they left Western Australia. He also told Ms Carr that the two of them had been in a sexual relationship while in Wodonga.

14 On 17 February 2017, the complainant recorded a 'pretext call' with the respondent. Of course, such calls are by no means uncommon in cases involving sexual offending. They are usually, however, organised by police to provide corroboration for what might otherwise be a wholly unsupported allegation. That was not what occurred here. This particular pretext call was made by the complainant on his own initiative, and for his own purposes. In the course of that call, he demanded that the respondent pay him the sum of $10,000. He threatened that he would go to the police if she refused. He told the respondent that he would ensure that she was imprisoned if she did not pay.

15 During the course of the conversation, the respondent acknowledged that the complainant had been '15 when [he] came into [her] care'. She spoke of her guilt, saying, somewhat cryptically, that she had lived with it 'every day'. She said that the complainant would be 'responsible for putting [her] six foot under, because that is something that [would] kill [her]'.

16 During the course of the plea, the prosecutor accepted that it was unclear whether the respondent's statements, as to her guilt, had been made in response to the allegations of the sexual offending, or should instead be viewed more generally as a manifestation of her unhappiness at having failed to provide the complainant with the care which she had promised him. Defence counsel submitted that the latter view should be taken of the statements.

17 The respondent told the complainant, during the pretext call, that under no circumstances would she pay him the money demanded. Some three days later, he contacted the local police at Wodonga. He sought their advice as to how he should go about making a formal complaint against the respondent.

18 Several months later, on 18 May 2017, the complainant made a statement to police, which was taken in Western Australia.

19 On 6 November 2017, some six months or so after the complainant's statement was taken, the respondent was interviewed by police. She made a number of statements arguably against interest regarding her relationship with the complainant. However, she denied any sexual impropriety had taken place.

20 As indicated earlier, the respondent was initially charged on an indictment containing a large number of individual counts of sexual penetration with a child under 16. She was granted bail. The matter eventually proceeded to a contested committal, where the complainant was cross-examined as to credit.[2]

21 The trial was scheduled to commence in Wodonga on 29 July 2019. As previously stated, on the following day, before the respondent was arraigned, the matter was resolved. She pleaded guilty to a single representative charge, which was designated by the prosecution as being the 'first occasion' on which sexual intercourse had taken place.

22 The judge began by noting that the respondent was being dealt with on a single representative charge. In that regard, she said:

This means that I can only sentence you in respect of ... the first occasion of your offending and must not inflate my sentence to account for the other occasions that you [engaged in sexual penetration with] the complainant. However, I take into account the full impact on the victim in respect of the multiple occasions that you did so, and I must not sentence you on the basis that your offending was an isolated one, lest it be said otherwise.[3]

23 As will shortly be seen, her Honour's reference to not 'inflating' the sentence that she would impose, to account for the other acts of sexual penetration that took place, was perhaps misleading. Plainly, all other things being equal, a representative charge will be regarded as itself more serious than a single isolated offence. Accordingly, it will generally result in a longer sentence, although the offender is still being dealt with for the one offence. Any other view would mean that there would be little point in having a scheme which allows for representative charges to be brought.

24 After setting out the circumstances surrounding the offending, the judge turned to an assessment of its objective gravity. She characterised the respondent's conduct as reprehensible, and noted that it would require the imposition of a sentence that would meet the needs both of adequate punishment and denunciation.

25 Her Honour stated that because the respondent had pleaded guilty to an offence under s 45(2)(b) of the Crimes Act 1958 (that being sexual penetration of a child under the age of 16 who is under the care, supervision or authority of the accused) a central element of that offence itself involved breach of trust. Accordingly, that factor ought not be treated separately as an additional aggravating circumstance, beyond what was implicit in that element of the offence itself. To do otherwise, her Honour considered, might be to engage in a form of double punishment.

26 The judge expressed concern regarding what she considered to be the respondent's apparent lack of insight into the gravity of her offending. She also considered that the respondent lacked insight into the harm that she had done to the complainant.

27 With regard to remorse, her Honour was somewhat sceptical. There was, in the material, a suggestion that the respondent regarded the complainant as having been responsible for instigating the sexual relationship between them. Nonetheless, the judge was prepared to characterise the respondent's prospects of rehabilitation as 'very good'.[4] For that reason, she attributed 'fairly minimal' weight to the need for specific deterrence.[5]

28 The judge then turned to consider the complainant's victim impact statement in some detail. He spoke of the profound effect that the respondent's offending had had upon him. He had never previously engaged in sexual intercourse. He regarded himself as having been 'used' by someone that he had implicitly trusted. He said that by reason of what the respondent had done to him, he had attempted suicide. He claimed that he suffered from the ongoing effects of trauma. He said that he had trouble eating and sleeping. He described his relationship with his own family as having become problematic.

29 The judge noted that the respondent's personal background had been troubled. She had previously been married, but the relationship had been violent and abusive. She and her husband had separated in 2012. There were three children of the marriage. The youngest child suffered from an intellectual disability. In addition, at the time the respondent came to be sentenced, she had, for some time, been caring for her mother, who was then aged 80, and in poor health.

30 The judge noted that the respondent had no prior convictions. Her Honour observed that, apart from the present offending, the respondent had led a 'blameless' life.[6]

31 The judge then turned briefly to a report prepared by Mr Simon Candlish, a consultant psychologist, on 16 October 2019. Mr Candlish noted that the respondent had had a terrible marriage in which, for the last few years that it had subsisted, there had been no sexual relations at all.

32 According to the report, the respondent underwent a radical transformation after she and her husband separated. She set up an online dating profile, where she would engage in 'sexually explicit' communications with unknown men. She became highly promiscuous.

33 Mr Candlish concluded that the respondent's psychosexual history and psychometric test results suggested that she suffered from significant tension, unhappiness, and pessimism. He said that she lacked self-esteem and viewed herself as powerless. He also reported that the respondent's symptoms were consistent with 'a significant depressive experience'. He concluded, however, that the respondent did not appear to meet the diagnostic criteria for a Major Depressive Disorder.

34 Mr Candlish's report was relied upon on the plea only in a 'general sense'. It was not said to provide any basis for the application of any of the Verdins[7] principles. Nonetheless, the judge was satisfied that imprisonment would be particularly burdensome for the respondent. That was, in part, because this would be her first time in custody. However, it would also be because the respondent would be anxious about her mother's care, which had been her primary responsibility.

35 In addition, the judge recognised that the respondent would, naturally, be deeply concerned about the effects of the COVID-19 pandemic upon her within the prison system.

36 As regards the plea of guilty, the judge said that she would take this into account, by way of a 'moderate discount', noting however that it had been entered at a very late stage.[8]

37 Her Honour then turned to evaluate the competing submissions on the plea. The prosecutor had submitted that nothing short of an immediate term of imprisonment, coupled with a non-parole period, would be warranted in this case. Defence counsel, on the other hand, had submitted that a non-custodial community correction order ('CCO'), with conditions, would be within range. Alternatively, she submitted that a combination sentence, involving a term of imprisonment of 12 months or less, combined with a CCO, would be an appropriate disposition.

38 In response to those submissions, her Honour said:

After giving this matter a good deal of consideration, I am of the view that I cannot do justice to all sentencing principles in your case by imposing a combination sentence, but I have done what I can to ensure that you become eligible for parole at the earliest possible time in recognition of the mitigating matters in your case.[9]

39 The judge then sentenced the respondent as indicated above.

40 In the Director's written case, the overall submission was that both the sentence of 3 years and, in particular, the non-parole period of 12 months sat 'egregiously below' the range of sentences reasonably open to the sentencing judge.

41 In support of that submission, senior counsel relied in general upon the objective gravity of the offending, its profound impact upon the complainant, the maximum penalty of 15 years' imprisonment, and what was described as a lack of any powerful mitigating factors.

42 With regard to the objective gravity of the offending, focus was put upon the complainant's particular vulnerability. He had obviously had a troubled upbringing, and was physically isolated from his usual support network when brought to Wodonga.

43 It was noted that there was a very great difference in age between the complainant and the respondent, some 36 years. Further, it was submitted that the context in which the offending occurred rendered 'it a most serious example of the relevant offence.' By that submission, senior counsel meant that the breach of trust in this case was far greater than that which would ordinarily give rise to 'care, supervision or authority' under the statute. She pointed to other instances of offending involving babysitters, or sporting coaches, as being inherently far less serious than taking on a parental role of the kind that the respondent had assumed.

44 Senior counsel acknowledged that in her sentencing remarks, the judge had referred to, and discussed, the very profound impact that the offending had had upon the complainant. It was submitted, however, that the sentence ultimately imposed failed adequately to reflect the actual extent of the harm done.

45 Further, it was noted that the head sentence of 3 years' imprisonment was only 20 per cent of the maximum penalty of 15 years for this offence. That, of itself, suggested that the judge had failed adequately to take into account the objective gravity of the respondent's conduct.

46 It was accepted that there were some mitigating factors present, but it was submitted that these were not matters of great weight. It was noted, in particular, that none of the Verdins principles had been enlivened. Moreover, the respondent's guilty plea had been entered only at a very late stage. By then, the complainant had been cross-examined extensively as to credit at committal.

47 With regard to the non-parole period, it was submitted that the judge had wholly failed to explain why she had fixed that as a mere 12 months, or one third of the head sentence. It was submitted that a non-parole period of that kind could only reasonably have been the product of 'special factors' such as serious psychiatric illness or youth. No such factors were present in this case.

48 In the respondent's written case, senior counsel submitted that it was of some moment to note that the Director had failed to refer to a single relevant authority, or comparable case, to support her contention that this sentence was manifestly inadequate. It was submitted that the judge's sentencing remarks had been 'careful, considered and balanced, revealing a proper exercise of the instinctive synthesis.' The sentence and non-parole period were both said to be within range.

49 More particularly, it was submitted that the Director's complaint regarding the 3 year head sentence being only 20 per cent of the maximum penalty available should be given short shrift, as lacking any substance. The statutory maximum was only ever to be regarded as a 'navigational aid'. It was not an 'arithmetical' figure that should assume any greater importance than that in the overall sentencing task.

50 In addition, it was submitted that the judge had adequately explained why she had chosen to impose a lower than usual non-parole period.[10] Her Honour had found the respondent's prospects of rehabilitation to be 'very good'.[11] That conclusion was supported by Mr Candlish's report, and by the well-recognised and acknowledged fact that those few women who offend in this way do not generally pose the kind of risk of reoffending that men usually do. The judge had correctly concluded that the circumstances of this offending were of such an unusual nature as to allow factors such as specific deterrence, and community protection, to be given far less weight than they would normally be afforded.

51 It was submitted that the Director had entirely failed to overcome the very high hurdle that she had to meet in order to demonstrate that both the sentence and non-parole period were so far outside the range reasonably available as to make it clear that the sentencing discretion must, in some way, have miscarried. Accordingly, it was submitted, the appeal should be dismissed.

52 The charge to which the respondent pleaded guilty was a representative charge. It was therefore representative of a larger and more systematic pattern of criminality. Such a charge requires agreement by both parties to have the matter dealt with on the basis of a single charge that specifies a particular incident of offending, but also presents a contextual picture of the offending as a whole.[12]

53 The reason why such a charge is brought is sometimes that the other acts cannot be sufficiently particularised to legitimately frame individual charges. There may be other reasons as well, particularly as part of a negotiated settlement.

54 As Ashley JA said in Director of Public Prosecutions v McMaster,[13] a representative charge

may reflect upon sentence in two ways: first, as precluding the assertion, in mitigation, that the offence was an isolated one. Second, as affirmatively enabling the offence to be seen in its full context - which is likely to bear upon matters such as extent of culpability, need for specific deterrence and prospects of rehabilitation.[14]

55 Notwithstanding the judge's statement, in her sentencing remarks, that she had to ensure that the sentence imposed on this sole representative charge was not in any way 'inflated' by reason of the fact that the respondent had engaged in a large number of additional acts of sexual penetration with the complainant over the relevant offending period, a representative charge will generally result in a heavier sentence than would a charge involving a single and isolated episode of offending.

56 In Director of Public Prosecutions v EB,[15] Nettle JA made that clear when he said:

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]

57 This does not mean that the offender is to be sentenced for what are, in substance, a series of uncharged acts. Rather, it means that those uncharged acts are directly and highly relevant to the objective gravity of the particular offence for which the offender is being specifically punished. That objective gravity is heightened by reason of the fact that the conduct in question is not isolated, but part of a pattern.[17] It is also heightened because the impact upon the victim is likely to be so much the greater.

58 In this case, as the Director submitted, the respondent's breach of trust must be characterised as gross. Although the judge was not able to find, to the requisite standard, that the respondent planned all along to engage in sexual activity with the complainant before the offending occurred, there could be no doubt about the high level of trust that the complainant reposed in her. She became, for all practical purposes, a surrogate parent, albeit only for a limited time.

59 A vulnerable boy, brought to a strange place, with no resources of his own, and no realistic capacity to look after himself, was abused by a much older woman, purely for her own sexual gratification.

60 There may be cases where the impact upon a boy of 15, in circumstances not dissimilar from these, may not be as profound as it happened to be for this particular complainant. In the present case, however, the evidence of the harm done to the complainant by reason of the respondent's conduct was clear and, importantly, accepted by the judge.[18]

61 Neither party, in their written submissions, chose to refer to comparable cases as a guide to current sentencing practice for offending of this kind. During oral argument, the Court invited them, if they wished to do so, to file brief submissions on this subject. Both parties did so.

62 By way of introduction, the Director reminded this Court of what had been said in Director of Public Prosecutions v Zhuang,[19] regarding the relevant but limited role that comparable cases can play in the determination of an appeal against sentence. Sentences imposed in previous cases are not precedents. Nor is there any such thing as a 'correct' sentence. However, where previous cases can properly be described as 'comparable' to the instant case, they can assist in establishing a sentencing practice that informs the Court, though it does not determine whether a particular sentence is within range.[20]

63 It is perhaps not surprising that there are relatively few examples of cases involving older women who have engaged in acts of sexual penetration with young boys, particularly those who are in their care. Such conduct is, it would seem, aberrational, and quite rare. Nonetheless, there are a small number of instances which have been recorded in the decided cases over the past two decades or so.

64 One such case, which provoked the request for additional written submissions by this Court, was Gillespie (a pseudonym) v The Queen.[21] There, the appellant pleaded guilty to a single charge of persistent sexual abuse of a child under 16, an offence which carried a maximum penalty of 25 years' imprisonment.

65 At the time of the offending, the appellant was aged 36. The complainant was a friend of the appellant's daughter. He was aged only 12 when the offending commenced. Gillespie involved a significant number of acts of sexual intercourse extending over a period of two years. The final nominated incident resulted in the appellant falling pregnant with the complainant's child.

66 The appellant was sentenced to term of 6 years' imprisonment with a non‑parole period of 3 years and 6 months. An appeal to this Court on the grounds of specific error and manifest excess was dismissed. It was held that a specific error in the sentence imposed had not been material and that, in any event, no different and lesser sentence should be passed. Importantly, in its reasons, the Court observed that the risk of re-offending for female sexual offenders, who act alone in such circumstances, is 'generally very low',[22] meaning that general deterrence may play a somewhat lesser role, in such cases, given the absence of prevalence as an aggravating factor.

67 It is of interest to note the comparison drawn by the Director between the risk of reoffending in Gillespie and the present case. In the Director's written note, she said:

Simon Candlish, Consultant Psychologist, appears to have had reference to similar research referred [to] by Professor Ogloff in Gillespie at [31]-[33]. Both Professor Ogloff and Mr Candlish recommended caution be applied when undertaking assessment of risk for female sexual offenders. Significantly in Gillespie, Professor Ogloff was able to categorise the offender in that case. That categorisation placed the offender in a category that had a lower level of risk for sexual offending than other female offenders. The appellant was not assessed as falling within that category but rather as requiring low case prioritisation and low-level interventions to assist her to maintain and further reduce her assessed risk level.

68 Among the cases referred to in Gillespie as relevant comparators was R v Jobling-Mann.[23] There, the applicant pleaded guilty to two representative counts of sexual penetration with a child over the age of 10, but under the age of 16. Each representative charge related to offending with one of two different boys. At the time of the offending, the applicant was aged 34, and both complainants were aged 14.

69 The applicant and the first complainant's mother were friends. When the applicant was evicted from her home, she went to stay with the complainant and his mother. She entered into a sexual relationship with the complainant, which lasted for about four months.

70 The complainant in relation to charge 2 was a friend of the first complainant. He engaged in sexual activity with the applicant at the home on two occasions.

71 The applicant was sentenced to a total effective term of 18 months' imprisonment, with a non-parole period of 6 months. That sentence comprised a term of 12 months' imprisonment on charge 1, and 6 months' imprisonment on charge 2. That sentence was not disturbed on appeal to this Court.

72 In discussing whether a different and more lenient approach should be taken to sentencing the applicant solely by virtue of her gender, Winneke P said:

I designedly use the words 'taken advantage of' notwithstanding that the boys were consensual participants and were no doubt acting out of a sense of bravado and immature adventure. As his Honour pointed out during the course of his sentencing remarks, the applicant acted in breach of the trust reposed in her by the community and by her long-time friend in using the children as a vehicle for her sexual gratification. In the eyes of the law her conduct is, in my view, no more acceptable than would be the conduct of a 34‑year‑old male who, in similar circumstances, took advantage of two 14-year-old infatuated girls. When her activities were ultimately revealed, the applicant readily denounced her conduct as immoral and unworthy. I should say that, in suggesting as he did, that the applicant had breached the trust reposed in her by her friend, I do not understand his Honour to have been saying any more than that the applicant had, by her conduct, betrayed her friend's confidence. He was not intending to suggest, in my view, that the applicant had committed the more aggravated offence of engaging in sexual penetration of a child under her care, supervision or authority.[24]

73 In Director of Public Prosecutions v Ellis,[25] the respondent pleaded guilty to six charges of sexual penetration with a child aged below 16 under her care, supervision or authority. At the time of the offending, she was a teacher, aged 36. The complainant was a student at the school where she taught, and was aged 15. The offending giving rise to these charges involved five occasions of penile-vaginal penetration, and one occasion of penile-oral penetration.

74 The respondent was sentenced to a total effective term of 22 months' imprisonment. This was wholly suspended for an operational period of three years. The Director appealed against that sentence on the ground of manifest inadequacy. It was held by Callaway JA that such a sentence unintentionally violated the rule of equality before the law, particularly equality of concern for male and female victims, and equality in sentencing male and female offenders.

The need to treat male and female offenders equally is not limited to sexual offences. In R v Harkness two young women, Densley and Rye, assisted their male co-offenders to traffic in heroin. They were given very lenient sentences. The principle of parity almost required appellate intervention in favour of the co-offenders. I said, with the concurrence of Winneke ACJ:

The approach of the courts to sentencing female offenders has changed over the years in reflection of the community's views. The principle at stake is equality. The law cannot, and should not, be blind to human nature or to the vulnerability of persons in the position of Densley and Rye and there are other differences between male and female offenders that can legitimately affect the sentencing discretion, but it is no longer acceptable that an offender be given a different sentence solely because of his or her sex ...

As that passage shows, differences between offenders that are not solely because of their sex may, and where they are relevant should, be taken into account. The law does not require an artificial transposition, treating men as if they were women or women as if they were men. It is not fallacious to detect error in the present sentence because it is completely different from the sentence that would have been imposed on a male offender. It would be an error simply to substitute, after allowance for double jeopardy, the sentence that would have been imposed on a male schoolteacher who had taken part in six acts of sexual penetration with a female student. We must not replace one set of unjust stereotypes by another that is no less unjust.[26]

76 The Court in Ellis allowed the Director's appeal and resentenced the respondent to a total effective term of 2 years and 8 months' imprisonment. It ordered that she serve 6 months of that sentence, with the remainder of that term to be suspended for an operational period of 3 years.

77 In R v Howell,[27] the appellant was aged 36 at the time of the offending. She pleaded guilty to one charge of maintaining a sexual relationship with a child under the age of 16, which carried a maximum penalty of 25 years' imprisonment. The appellant was an integration aide-teacher at the victim's school, and she had direct supervision over him, as he was a slow reader and she was tasked with assisting him. The offending spanned over several months.

78 The appellant made full admissions to her offending and pleaded guilty at the first opportunity. She also demonstrated a high degree of shame, contrition and genuine remorse. She had had a troubled background, which included her having been raped at the age of 14.

79 The appellant was originally sentenced to a term of 5 years' imprisonment with a non-parole period of 3 years and 6 months. The appeal succeeded and she was sentenced by this Court to 3 years' imprisonment with a non-parole period of 1 year and 8 months. It was held that her moral culpability was 'significantly reduc[ed]' by her clinically depressed medical condition, and her borderline personality disorder.[28] It was also held that her physical and mental conditions called for a reduction in the need for general deterrence and denunciation.

80 In Dennis v The Queen,[29] the appellant pleaded guilty to two charges of sexual penetration with a 16 or 17 year old child under her care, supervision or authority, and one charge of sexual penetration with a child under 16. The appellant had been a teacher at the time of the offending and was then aged 31. The complainant with regard to the first two charges was aged 17, but the complainant with regard to the third charge was aged only 14. Both complainants were students at the school where the appellant worked.

81 The appellant was sentenced to a total effective term of 4 years and 3 months' imprisonment with a non-parole period of 2 years and 10 months. On appeal, this Court found that the judge's orders for cumulation offended against the principle of totality. New orders for cumulation were made that resulted in a total effective term of 3 years' imprisonment with a non-parole period of 18 months. The individual sentences, however, remained undisturbed.

82 Recently, in Woods v The Queen,[30] the applicant was convicted, following a trial, of one charge of indecent assault on a child under 16, and one charge of gross indecency with a child under 16. The maximum penalties for those offences were 5 years, and 3 years, respectively. The applicant had been a babysitter to the complainant, who was aged 14 at the time. She was aged 25.

83 Over Christmas, the complainant's parents went on holiday for a month while he remained in Australia. The applicant moved into the house to look after him. It was during this time that the offending giving rise to both charges took place. That offending involved the applicant and the complainant having engaged in mutual masturbation in the hallway of the house.

84 In his sentencing remarks, the judge was satisfied that the complainant's act of masturbating the applicant involved penetration of her vagina with his finger. That was considered to be an aggravating feature. His Honour also considered the applicant's youth at the time of the offending, and her prior, and subsequent, good character, as matters in mitigation. He imposed a 2 year CCO with work, treatment, and supervision conditions.

85 On an application to this Court for leave to appeal against sentence on the basis of manifest excess, that sentence was not disturbed.[31]

86 It can be seen from the relative paucity of cases described as possible comparators that conduct of the kind perpetrated by the present respondent in this matter is, as has been noted earlier, quite rare.

87 The cases drawn to the Court's attention by the respondent in the note provided by senior counsel turned out to be of little assistance on the whole, since they almost all concerned male offenders, of whom, sadly, there is no shortage of examples. A number of them were simply instances of particular sentences imposed by various County Court judges, without those sentences having been considered by this Court.

88 Nonetheless, we are grateful to counsel for the respondent for the amount of work which they obviously put into preparing their note. The document itself (which refers in some detail to 29 separate cases, all of them, however, involving mature male offenders and young children) at least establishes that sentencing for acts of sexual penetration of that kind (particularly by those in a position of trust) these days almost invariably results in substantial terms of imprisonment, as indeed it should.

89 In the end, the 'comparable' cases to which we have been referred seem to us to be too few in number, and to be spread out over too long a period, to provide any great assistance in ascertaining current sentencing practice for offending of this type. None of them are genuinely comparable, at least in any direct sense. Gillespie, for example, was a more serious case than the present. The complainant there was aged between 12 and 14. Importantly, the offending resulted in the conception of a child. In addition, it must be remembered that the maximum penalty for that offence was 25 years' imprisonment, and not, as in the present case, 15 years.

90 Nevertheless, we note that in Gillespie, a sentence of 6 years' imprisonment with a non-parole period of 3 years and 6 months was held to be within range. That is a very far cry indeed from the sentence imposed upon the respondent in this matter.

91 In much the same vein, we note that the sentence imposed in Woods, a 2 year CCO, involved different charges, which carried maximum penalties of 5 years and 3 years, respectively. It thereby provides little guidance to this Court in terms of any appropriate sentencing range for the present offence.

92 In one sense, because the paucity of comparable cases indicates that this kind of offending, by female offenders, is not nearly as prevalent as is the case with male offenders, the aggravating factor of prevalence is absent, and general deterrence may therefore weigh less heavily in the instinctive synthesis.[32] Of course, each case turns on its own unique facts, and the present case has its own particular aggravating features.

93 In our view, this was serious offending, made all the more so by the fact that the respondent chose to assume a 'quasi-parental' role in relation to the complainant. A significantly higher head sentence, and non-parole period, were called for.

94 The respondent's conduct was abhorrent, and deserved powerful denunciation. It resulted in significant and ongoing harm to the victim, who was, as she knew, particularly vulnerable at the time. Her plea of guilty came very late. Such remorse as she displayed was qualified at best.

95 We are cognisant of the weight to be given to the judge's findings that the respondent had 'very good prospects' of rehabilitation, and that she posed little risk of reoffending. We are also conscious of the weight to be given to her unfortunate background and history. We do not ignore the aberrational nature of her sexual behaviour after she separated from her husband, and the sadness of that situation.

96 However, we have concluded that the sentence imposed below, and particularly the non-parole period, failed adequately to give proper effect to the need for general deterrence, denunciation, and adequate punishment for what was, on any view, egregious conduct on the respondent's part.

97 The key to this case lies in the respondent's gross breach of trust, and the harm that she inflicted upon her victim. When one adds to these factors that this was a representative charge, involving anything up to a dozen separate acts of sexual penetration, extending over a number of weeks, a heavier sentence and non-parole period than those imposed were called for.

98 We would allow the Director's appeal and set aside the sentence imposed below. In lieu thereof, we would impose a term of 4 years' imprisonment with a non-parole period of 2 years and 6 months.

99 Pursuant to s 6AAA of the Sentencing Act 1991, we declare that but for the respondent's plea of guilty, we would have imposed a sentence of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 9 months.

[1] See further, DPP v Greer (a pseudonym) [2020] VCC 682, [9], [11] and [40] ('Reasons').

[2] The topics that were the subject of cross-examination included the complainant's mental health, his past dishonesty, the manner and timing of his complaint to police, and his criminal record.

[7] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[10] In that regard, counsel referred to Reasons, [58], set out above at [38], and the mitigating factors that the judge had discussed in some detail.

[12] Arie Freiberg, Fox and Freiberg's Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 153-9.

[13] (2008) 19 VR 191; [2008] VSCA 102.

[14] Ibid 202 [49] (Neave JA agreeing at 212 [90], Lasry AJA agreeing at 213 [91]).

[15] (2008) 186 A Crim R 314; [2008] VSCA 127.

[16] Ibid 318 [15] (Buchanan JA agreeing at 321 [22], Redlich JA agreeing at 321 [23]) (citation omitted). Cited with approval in DPP v HPW [2011] VSCA 88, [24] (Tate JA, Neave JA agreeing at [1], Mandie JA agreeing at [2]).

[17] See generally, R v CJK [2009] VSCA 58; (2009) 22 VR 104, 113-14 [58]; [2009] VSCA 58 (Warren CJ, Vincent JA agreeing at 115 [69], Neave JA agreeing at 115 [70]).

[18] The complainant's attempt to extort money from the respondent does not, in any way, diminish her culpability, nor lead to the conclusion that he did not suffer the harm that the evidence plainly disclosed.

[19] (2015) 250 A Crim R 282; [2015] VSCA 96. See generally, DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41.

[20] See also, DPP v Clunie (a pseudonym) [2016] VSCA 216, [50]; DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546, 607-8 [176]; [2016] VSCA 237; DPP (Cth) v Brown (2017) 268 A Crim R 309; [2017] VSCA 162; Semaan v The Queen [2017] VSCA 261, [70]; and Walsh v The Queen [2018] VSCA 334, [31].

[21] [2018] VSCA 151 ('Gillespie').

[22] Ibid [55]. See however, Mirko Bagaric and Theo Alexander 'The Fallacy of Punishing Offenders for the Deeds of Others: An Argument for Abolishing Offence Prevalence as a Sentencing Aggravating Consideration' (2016) 88(1) Sydney Law Review 23.

[23] [2000] VSCA 3.

[24] Ibid [5] (Batt JA agreeing at [13], Hampel AJA agreeing at [14]) (emphasis added).

[25] (2005) 11 VR 287; [2005] VSCA 105 ('Ellis').

[26] Ibid 292 [10]-[11] (Batt JA agreeing at 297 [29], Buchanan JA agreeing at 297 [31]) (citations omitted) (emphasis added).

[27] (2007) 16 VR 349; [2007] VSCA 119.

[28] Ibid 356 [20] (Nettle JA, Ashley JA agreeing at 359 [31], Redlich JA agreeing at 359 [32]).

[29] [2011] VSCA 65.

[30] [2019] VSCA 259 ('Woods').

[31] The applicant also brought an application for leave to appeal against conviction, which was also refused.

[32] R v Downie [1998] 2 VR 517, 519-22 (Callaway JA, Phillips CJ agreeing at 517, Batt JA agreeing at 524).