1 On 17 September 2013 the respondent pleaded guilty, in the County Court at Melbourne, to a series of sexual offences, all of them involving boys. He was sentenced as follows:

Using a carriage service to transmit indecent communication to person under 16

3 months' imprisonment and 3 year Community Corrections Order (CCO)

Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]

10 years [Crimes Act 1958 (Vic)

s 45(2)]

Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]

10 years [Crimes Act 1958 (Vic)

s 45(2)]

Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]

10 years [Crimes Act 1958 (Vic)

s 45(2)]

Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]

10 years [Crimes Act 1958 (Vic)

s 45(2)]

Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]

10 years [Crimes Act 1958 (Vic)

s 45(2)]

Using a carriage service to procure a child under 16 [Criminal Code 1995 (Cth)

Possession of child pornography [Crimes Act 1958 (Vic) s 70]

[Crimes Act 1958 (Vic) s 70]

[Sex Offenders Registration Act 2004 (Vic) s 47]

240 penalty units or 2 years' imprisonment [Sex Offenders Registration Act 2004 (Vic) s 47]

Other relevant orders: Disposal Order; Forensic Sample Order; Sentenced as Serious Sexual Offender in relation to Charges 3, 4, 5, 6, and 8.

6AAA Declaration: The learned sentencing judge stated that the sentence she would have imposed if the applicant had been convicted of these offences after a trial would have been 4 years' imprisonment, with the applicant becoming eligible for parole after serving 2 years and 6 months of that sentence.

2 Both the Victorian Director of Public Prosecutions, and his Commonwealth counterpart have appealed against the sentences so imposed. Their joint grounds of appeal are in the following terms:

Ground 1

The learned sentencing judge erred in finding that the respondent had 'reasonable prospects for rehabilitation'.

Ground 2

The sentences imposed on charges 1 to 8, the order giving rise to concurrency, and the total effective sentence are manifestly inadequate. The learned sentencing judge's discretion miscarried in that she:

(a) failed to reflect the gravity of the offences;

(b) failed to give sufficient weight to the aggravating factor that these offences were committed whilst the respondent was in the community subject to a recognizance release order and a community based order for similar offending, and further that the offending represented an escalation of offending conduct;

(c) failed to give sufficient or any weight to the principles of protection of the community, general and specific deterrence, punishment and denunciation; and

(d) gave excessive weight to the rehabilitation of the respondent as a sentencing consideration, by (i) making an erroneous finding as to his prospects for rehabilitation per Ground 1, and (ii) by allowing this factor to overwhelm the other sentencing principles.

3 The respondent had previously been dealt with for sexual offending involving children. On 26 July 2011 he pleaded guilty, before her Honour Judge Wilmoth, to using a carriage service to groom a child aged under 16, using a carriage service to transmit child pornography and possession of child pornography. The first two were, of course, Commonwealth offences, and the third a State offence. He was sentenced on that occasion to a total of 14 months' imprisonment with an order that he be released after serving three months upon entering into a $2,000 bond to be of good behaviour. He was also placed on a Community Based Order (CBO), and required to perform 200 hours of unpaid community work and undergo assessment and treatment. His offending meant that he was placed on the Register of Sex Offenders (RSO), with lifetime reporting conditions.

4 The respondent, having served three months' imprisonment, was released on 25 October 2011. He subsequently resided at his parents' home.

5 Between 13 February 2012 and 1 November 2012 the respondent accessed various online chat-rooms featuring sexual activity with children, as well as Skype. On 21 occasions throughout that period he sent indecent communications to persons under the age of 16 who were predominantly male. In all of those communications he was well aware of the age of the child with whom he was communicating.

6 On each occasion the respondent did one or more of the following:

• asked the minor to remove clothing;
• asked whether the minor had younger siblings;
• asked for details of the minor's sexual experience;
• asked the size of the minor's penis;
• asked whether the minor could suck his own penis;
• asked the minor to send naked photos of himself;
• asked the minor to use a webcam with the respondent;
• asked the minor to use a webcam with the respondent and a third party;
• asked the minor to masturbate; and
• asked the minor to self-penetrate.

7 On a number of occasions the child with whom the respondent was communicating complied with his requests. Accordingly, the respondent received naked images of a number of boys, as well as images of them masturbating or self-penetrating. Some of the minors also communicated with the respondent about their sexual experiences. It should be noted that, on occasion, it was the minor, rather than the respondent, who initiated contact.

8 The respondent, if asked, told the child, truthfully, that he was aged 36. After he was arrested, he made full admissions to the police concerning his having accessed the internet chat-rooms and having communicated with the boys.

9 This conduct formed the basis of the first of the Commonwealth offences, charge 1 - using a carriage service to transmit indecent communication to person under 16.

10 The various State offences, most of which involved sexual penetration with boys, may be conveniently summarised as follows.

11 LT was aged 13 at the time of the offending (although he told the respondent that he was aged 14). They communicated online. They agreed to have sex. The respondent was to pay the complainant. They met on three occasions between 1 March and 30 April 2012 in a park behind LT's school. On two occasions LT sucked the respondent's penis. Each time he received $100. This conduct gave rise to charge 2 - sexual penetration of a child under 16, which was, of course, a representative charge.

12 On two further occasions the respondent sucked LT's penis. This conduct gave rise to charge 3 - sexual penetration of a child under 16, which was also a representative charge.

13 On the third occasion that they met, LT penetrated the respondent's anus with his penis. The respondent paid LT $250. This conduct gave rise to charge 4 - sexual penetration of a child under 16.

14 DMK was aged either 14 or 15 at the time of the offending. The respondent began communicating with him online. DMK told the respondent that he was aged 14. They agreed to meet for sex. They met in a toilet block at a sports ground on a date sometime between 1 August and 30 September 2012. On that occasion DMK sucked the respondent's penis. This conduct gave rise to charge 5 - sexual penetration of a child under 16.

15 On the same occasion, the respondent sucked DMK's penis. This conduct gave rise to charge 6 - sexual penetration of a child under 16.

16 The respondent paid DMK $50 for having engaged in sexual acts with him. It should be noted that DMK refused to participate in an interview with police, and declined to cooperate generally with their investigation.

17 JL was aged 14 at the time of the offending. The respondent chatted online with him, initially on a gay teen website, and then by Skype, using webcams. The respondent was fully aware of JL's age. At times each of them would masturbate via webcam for the other to see. Between 29 October and 4 November 2012 they discussed sexual acts, preferences and experiences, and agreed to meet for actual sex. The respondent booked a hotel for 5 November 2012 using his own name and providing his own home phone number.

18 On 4 November 2012 the respondent contacted another Skype user (SR) who he understood to be a young adult male. He told SR that he had arranged to meet a 14 year old boy for sex. He invited SR to join them. They made arrangements for the respondent to pick SR up, and drive him to the hotel. The same day the respondent told JL that he knew of an 18 year old male who was also interested in participating in sexual activity with them. He suggested to JL that they engage in group sex.

19 However, unbeknown to the respondent, SR was not who he claimed to be. In fact, he was acting as a kind of vigilante, seeking to identify anyone who might be interested in preying upon young children, and reporting them to the police. SR did, in fact, contact the police with details of the respondent's telephone number and car registration number. As a result, the respondent was arrested at his home by police prior to meeting JL.

20 The respondent's conduct, as set out above, gave rise to the second of the Commonwealth offences, charge 7 - using a carriage service to procure a child under the age of 16.

21 When police arrested the respondent they executed a search warrant at his home. They seized his laptop computer and USB stick. The laptop was analysed and various grades of child pornography were found on it. There were a total of 191 images and 16 videos involving child pornography. Of that material, 106 images were in category 1 (children under 18 erotically posed or images taken covertly with no sexual activity), 17 images and two videos were in category 2 (children under 18 involved in non-penetrative sexual activity with other children), 43 images were in category 3 (children under 18 involved in non-penetrative sexual activity with adults), 19 images and 14 videos were in category 4 (children under 18 involved in penetrative sexual activity) and six images and one video were in category 5 (children under 18 involved in acts of sadism, bestiality or humiliation).

22 This conduct gave rise to charge 8 - a State charge of possession of child pornography.

23 The respondent was also charged with the summary offence of failing to disclose, as part of his RSO requirements, use of all email addresses, use of correct mobile numbers, two of his Skype usernames and various internet usernames. This conduct gave rise to the summary charge of furnishing false or misleading information under the Sex Offenders Registration Act 2004 (Vic).

24 None of the three boys involved chose to make a victim impact statement.

25 The respondent was also dealt with for having breached the recognizance release order made under s20(1)(b) of the Crimes Act 1914 (Cth) imposed by Judge Wilmoth on 26 July 2011 in relation to the earlier offending. The sentencing judge restored the 11 months owing on the suspended sentence previously imposed which she declared as time served, and took no further action on the breach of the CBO. The breach sentences are not the subject of this proceeding.

26 The sentencing judge noted that the respondent had been remanded in custody on 5 November 2012, and had remained in custody from that point onwards. He had indicated that he would plead guilty to the present charges at a committal case conference on 20 June 2013. Her Honour treated him as having manifested an intention to plead guilty at the earliest practicable opportunity, and that view of the facts is not challenged.

27 During the course of a lengthy plea, it was submitted on the respondent's behalf that he should be given considerable credit for his early plea of guilty which, it was said, was indicative of genuine remorse. It was noted that he had the support of his parents. It was submitted that he had been entirely candid with police when they interviewed him. He told police that he had significant issues with his sexual identity and was aware that he needed treatment to work through the issues relating to his offending.

28 The respondent's background was one of low self-esteem. He had been bullied as a boy at school, and he was lacking in confidence in dealing with people of his own age, at least in a sexual context.

29 It was submitted on behalf of the respondent that whilst on the CBO, he had received some supervision, but no treatment of any kind in relation to his sexual predilection. It was noted that he had commenced work after he had served his previous sentence, but his employment had been terminated when the work dried up. It was said that he found himself at home, isolated and reverting to similar behaviour to that which had led to him offending in the first place.

30 Of particular significance on the plea was the evidence given by Dr Matthew Barth, a forensic psychologist with considerable experience in dealing with sexual offenders. Dr Barth gave evidence in relation to the psychological report he had prepared at the request of the defence. In essence, his evidence can be summarised (as it was in the Registrar's neutral summary) as follows:

• the respondent's insight into his offending was at a fairly formative level. The respondent had some awareness of targeting that particular age group because there was a lesser chance of rejection or humiliation and they were less likely to judge him;
• the respondent seemed able to reflect that he misled and exploited the complainants in some way. The respondent seemed to underestimate the seriousness of what he was doing and did not understand the effect of his behaviour on the complainants;
• the respondent had more hebephilic tendencies than paedophilic ones, in that his focus was on the pubescent age groups rather than the pre-pubescent ones;
• the respondent fell into the high risk category for re-offending and the most important component in reducing that risk would be treatment;
• the respondent had difficulty talking about his offending but said he was willing to address his issues and engage in treatment;
• the respondent's prior criminal history was of professional concern as it increased the risk to the community and made rehabilitation more difficult. It also made the need for treatment more urgent;
• the respondent was both sexually interested in children and also targeted that age group as a means of avoiding rejection. The respondent was in denial about having any sexual interest in children;
• the respondent was likely to respond well to structured treatment in a supportive non-judgmental environment but his avoidant personality and intimacy deficits would require more long term treatment and his denial of sexual interest could create a hurdle. When given structure, the respondent was a fairly compliant person;
• it was likely that the respondent was interested in males as a sexual orientation and he had great difficulty coming to terms with that;
• it was Dr Barth's experience that, while offenders may possess child pornography of younger children, they were able to compartmentalise viewing that on the internet as opposed to in real life. With adolescent boys, the offender could fool themselves into thinking the complainant was enjoying the contact and consenting to it;
• Dr Barth did not agree with the previous assessment conducted by Dr Pamela Matthews (a clinical psychologist who assessed the respondent in relation to his 2011 offending) in which she concluded that the respondent had a development disorder and was operating at the age of 14. Dr Barth thought that the respondent was sexually immature and displayed intimacy avoidant behaviours;
• Dr Barth queried the respondent as to why he would not approach girls the same age as the complainants as opposed to boys but the respondent was not able to shed any light on that;
• the contact with SR was a superficial, self-gratifying encounter which did not show a genuine intimate connection. This did not change Dr Barth's opinion that the respondent had trouble maintaining genuine intimate friendships with adults;
• in relation to Dr Matthews' report stating that the respondent had victim empathy, Dr Barth said that the longer the offending continues, the more the offender can justify his behaviour in his mind. Dr Barth suggested that may be why Dr Matthews saw the respondent as being empathetic and Dr Barth thought the respondent underestimated the seriousness of his actions;
• as to remorse, it was difficult to distinguish between being sorry for being in court and being sorry for the offending. Dr Barth thought the respondent was sorry for being in court but his remorse for the offending was still at a superficial level;
• in re-examination, Dr Barth said that all his findings remained predicated on the respondent having not received treatment and that the respondent's understanding of his own sexuality may improve with appropriately tailored treatment;
• trying to involve a third party in the offending was a fairly rapid escalation in the respondent's offending;
• the respondent's potential willingness to engage in treatment was a positive in terms of his prospects of rehabilitation. However, the challenges were significant and he would require therapeutic follow up. A real part of any rehabilitation would have to be carried out in the community;
• Dr Barth interpreted the respondent's frankness with police as being real rather than manipulative; and
• Dr Barth agreed with the judge's assessment that the respondent's ability to empathise or understand that he was dealing with children was very stunted.

31 It was noted, on behalf of the respondent, that in the case of DMK he had, by making full and frank admissions, facilitated the course of justice. That was because DMK had declined to make a statement to the police, or to pursue any complaint against the respondent. Nonetheless, the respondent had chosen to plead guilty. In relation to LT, the VATE was taken after the respondent had willingly participated in the record of interview and made full admissions. By pleading guilty, he ensured that none of the complainants were required to give evidence.

32 It was further submitted that the respondent had no drug or alcohol issues, and was not merely willing to receive treatment, but eager to do so. His Department of Corrections file indicated that he had the capacity to engage with others, and was capable of complying with directions, getting to appointments, and doing community work. Indeed, his work record had been satisfactory over a number of years and all of this, taken together, suggested that he had reasonable prospects of rehabilitation. Finally, it was submitted that the child pornography material was mainly at the lower rather than the higher end of the scale.

33 Turning to the submissions advanced by the prosecution on the plea, it was firstly acknowledged that although the majority of the images found on the computer were at the lower end of the scale in terms of seriousness, this had to be seen in the context of the respondent's other offending.

34 It was noted that Serious Sexual Offender provisions applied, at least in relation to some of the State offences. Whilst the prosecution was not seeking a disproportionate sentence, protection of the community was said to be a paramount consideration. In that regard, it was submitted that nothing short of a substantial term of imprisonment would suffice.

35 It was submitted that the failure of the child victims to provide victim impact statements should not be taken as a factor in any way beneficial to the respondent. It was said that there were many reasons why the boys in this case would decline to provide such statements.

36 The judge was reminded that both general and specific deterrence, and denunciation, were relevant sentencing factors. In particular, the escalation of offending that had been demonstrated was of great concern. That escalation had occurred at two levels. First, there was escalation between the previous offending and the current offending. Secondly, there was escalation within this offending itself.

37 The prosecution noted the difference in ages between the complainants and the respondent. It also drew attention to the period of offending, from February to November 2012, and, importantly, the fact that it commenced a mere three to four months after the respondent had been released from custody and while he was still on a CBO.

38 Finally, it was submitted that, in some respects, the respondent had been less than wholly forthright. He had, for example, attempted to shift responsibility for the offending from himself to the boys. It was noted that the offending had only stopped when SR went to the police. Otherwise, it might have continued. So far as remorse was concerned, even Dr Barth characterised it as superficial.

39 The prosecution provided the judge with various materials relating to the sentences that might be appropriate for offending of this kind. More specifically, it proffered a sentencing range for sexual penetration of a child under 16 as being between eight months and 15 years, with the median for such offending being 3 years and six months for a single charge.

40 The prosecution sought to put forward a MacNeil-Brown[1] range, but her Honour declined to receive it.

41 The judge delivered lengthy and carefully structured reasons for sentence. She devoted a considerable amount of attention, in her sentencing remarks, to the respondent's personal and sexual history. She noted his lack of ongoing relationships, his curiosity in meeting men on the internet for sexual encounters, his difficulties in trusting people and his fear of being rejected. She observed that he had told Dr Barth that he had sought out underage victims because he had deep feelings of inadequacy. He believed that underage males looked up to him and he did not have to prove himself to them.

42 Dr Barth expressed the view that the respondent was socially withdrawn and excessively introverted. He diagnosed 'avoidant personality disorder'. It was Dr Barth's opinion that the respondent had an unspecified paraphilic disorder. He believed him to be at a high risk of re-offending, taking into account his difficulties with establishing intimate relationships with adults, his low self-esteem, and his poor social skills and deviant fantasies. However, he noted that the risk of recidivism would be reduced by reason of the respondent being a registered sex offender, and opined that the risk would be still further reduced if the respondent participated in a specialist sex offender treatment program.

43 The judge noted that such treatment had been ordered as part of the sentence imposed by Judge Wilmoth. However, because of the waiting list, the respondent was released from prison before he became eligible for a place in that program. Dr Barth considered the sex offender program to be vital, and explained the respondent's re-offending as having been brought about, in part, because of the failure of the authorities to make that program available to him.

44 The judge accepted that the offending before the court was extremely serious, as it plainly was. She also accepted that it represented a significant escalation from the offending that had previously led to his having been imprisoned. He had gone from non-contact offending to sexual penetration of a most serious kind. His re-offending could be seen as a blatant, and almost contemptuous, disregard of the lenient treatment that had previously been accorded to him.

45 Nonetheless, her Honour concluded, on balance, that there were reasonable prospects of rehabilitation in this case, qualified by her recognition that these would be conditioned upon the respondent receiving treatment under the sex offender treatment program, as well as undergoing broader psychological therapy. She commented that it was difficult to see how the ultimate aim of protection of the community could be achieved when the sex offender program had been rendered so completely inaccessible to the respondent. In her view, he also required intense psychological treatment of a kind not generally available in a custodial setting.

46 The judge was not satisfied that a lengthy period of imprisonment, as urged by the prosecution, would in any way assist either the respondent or the community. Accordingly, she had the respondent assessed for a CCO so that he could receive the treatment he so desperately needed.

47 It should be noted that the assessment report provided in relation to the CCO, although generally supportive, was itself qualified in several key respects. For example, it was recognised that the respondent had been dishonest in his dealings with Corrections staff when he had previously been under their supervision as part of the CBO.

48 Despite these reservations, as expressed in the assessment report, the judge was persuaded that a CCO was the only appropriate mechanism by which the respondent would receive the treatment he required, without imprisoning him for a lengthy period. Given that her Honour was told that it would take about 12 months in custody before the respondent could expect to undergo such treatment, it may be inferred that she considered a sentence of that length to be excessive. She gave no reasons as to why that should be so.

49 The judge recommended that the respondent receive the sex offender treatment program, under the CCO that she imposed, as soon as possible. She urged that he be moved as close to the top of any waiting list as soon as could reasonably be arranged. At the same time she recognised that there was no guarantee that this would take place. She then sentenced the respondent as previously outlined.

50 The Victorian Director of Public Prosecutions, Mr Champion SC, submitted on behalf of both himself and the Commonwealth Director, that the judge had erred in finding that the respondent had 'reasonable prospects of rehabilitation'. It was said that this finding was not open on the evidence. Dr Barth's testimony, as accepted by the sentencing judge, was that the respondent had an unspecified paraphilia disorder, which was probably hebephilia, with a focus on boys aged 13 to 14 years. He considered that there was a high risk that the respondent would re-offend, but that this risk could be significantly reduced through his being registered as a sex offender for the rest of his life, and his participation in a sex offender's treatment program.

51 Mr Champion contended that in the face of that evidence, there was no justification for her Honour's finding that the respondent's prospects of rehabilitation were reasonable. This was demonstrated by the respondent's recidivism, he having re-offended some three and a half months or so after his release from custody (after serving three months of a 14 month term of imprisonment). To make matters worse, this re-offending occurred whilst the respondent was on a CBO imposed by Judge Wilmoth in relation to non-contact child sex offending.

52 The current offending, according to Mr Champion, was protracted, involved several victims and represented a major escalation of the respondent's criminal behaviour towards children. It clearly showed that the respondent was undeterred by the sentences previously imposed. Similarly, contrary to the opinion expressed by Dr Barth, placing the respondent on the RSO would not limit his access to potential victims, as could be seen from what had already eventuated. Indeed, the respondent, whilst on the Register, was able to maintain a number of different relationships with young boys using various internet chat-rooms and other online facilities.

53 Further, according to Mr Champion, while Dr Barth considered that there were good prospects of reducing the respondent's risk of re-offending, with appropriate treatment, he was guarded in his assessment, noting there were significant challenges. Most importantly, however, it was Dr Barth's evidence on the plea that the respondent represented, at that stage, a high risk of re-offending.

54 Mr Champion next submitted, in support of his second ground of appeal, that both the individual sentences of three months imposed on each of the sexual penetration counts and the total effective sentence of three months fixed as the first step towards a combined term of imprisonment and a CCO, was manifestly inadequate.

55 First, it was argued that these sentences failed to reflect the gravity of the offences. Mr Champion highlighted the protracted nature of the communications between the respondent and the boys, the sexually penetrative offending involved, the length of the period of grooming (which included mutual masturbation over the internet) and the possession of child pornography some of which fell into categories 4 and 5. Further, he submitted, the orders for concurrency made by the judge failed to reflect the additional criminality of the offending against a number of victims, over a protracted period of time.

56 Secondly, according to Mr Champion, the sentences imposed failed to give sufficient weight to the aggravating factor that these offences were committed whilst the respondent was in the community, subject to a recognizance release order and a CBO for similar offending. Moreover, those sentences failed to reflect the fact that this offending represented a significant escalation in the gravity of the offending conduct.

57 Thirdly, Mr Champion argued that her Honour had failed to give any or sufficient weight to the need to impose sentences that would protect the community through general and specific deterrence and adequately punish the respondent for his behaviour. In addition, the sentences imposed did not, in any appropriate way, give effect to the need to denounce his conduct. The offences in question were of a serious kind carrying significant maximum penalties, an essential purpose of which had to be to protect children and younger persons from sexual exploitation. The low sentences imposed and the orders giving rise to complete concurrency, failed to meet this objective.

58 Finally, Mr Champion contended that her Honour gave too much weight to the respondent's rehabilitation as a sentencing consideration, in part by making an erroneous finding as to his prospects for rehabilitation. It was submitted that the judge had allowed rehabilitation to overwhelm all other relevant sentencing principles.

59 Mr Kassimatis, who appeared on behalf of the respondent on the appeal, challenged the prosecution's contention that the sentencing judge had erred in finding that the respondent had reasonable prospects of rehabilitation.

60 He noted that immediately after coming to that conclusion, her Honour had expressed a qualifying note. She made it perfectly clear that the respondent's prospects of rehabilitation were entirely dependent on him successfully completing the sex offender's treatment program, and receiving ongoing psychological therapy. That finding was unexceptionable.

61 Mr Kassimatis submitted that the judge's finding regarding prospects of rehabilitation was also informed by his candour in dealing with the authorities, the fact that his admissions provided the prosecution with evidence necessary to convict him of two of the charges to which he pleaded guilty, his strong willingness to uncover and address the underlying cause of his offending and his continued support from his family. The judge therefore took into account a number of factors in making the finding that she did about the respondent's rehabilitative prospects and did not act upon Dr Barth's evidence alone.

62 In response to the second ground of appeal, manifest inadequacy, Mr Kassimatis submitted that although the sentences imposed on the individual counts, and the total effective sentence were obviously lenient, they could not be described as manifestly inadequate. The judge had clearly imposed a sentence which, to her mind, served to ensure the protection of the community, and had been entitled to do so. Further, the sentence of three months' imprisonment had to be viewed in light of the fact that the respondent had already served the best part of a year in custody for his breach of Judge Wilmoth's orders, and would have to comply with the onerous conditions of a CCO which was itself a punitive sanction.

63 The judge, who is, of course, very experienced in this area, was faced with a particularly difficult sentencing task. Plainly, she was unimpressed with the fact that the respondent, when he served his earlier sentence, had been denied the opportunity to undergo treatment for his paraphilia despite that having been an important consideration in Judge Wilmoth's original decision to afford him leniency. In her Honour's view, the evidence suggested that it was imperative, in the interests of protecting the community, that he be given such treatment, and that it be provided as soon as possible.

64 At the same time the sentencing task had to be carried out according to law. With regard to the State offences (charges 2 to 6 and 8), that meant that the respondent was to be sentenced in accordance with the requirements of s 5 of the Sentencing Act 1991.

65 Pursuant to s 5(2), the judge was required to have regard to the maximum penalty prescribed for each of the State offences, current sentencing practices, the nature and gravity of each offence, and the offender's culpability and degree or responsibility for the offence. Her Honour was also obliged to consider the impact of the offence on any victim, as well as the offender's previous character and the presence of any aggravating or mitigating factors.

66 In accordance with s 5(1), the judge had to consider the need to punish the respondent to an extent, and in a manner which was just in all the circumstances.[2] There was also a need to deter the respondent, and others, from committing offences of the same or a similar character,[3] and to manifest the denunciation by the court of the type of conduct in which he had engaged.[4]

67 It is true that the judge was also entitled to consider the conditions under which the respondent could best be rehabilitated,[5] and to have regard to the need to protect the community from him.[6] However, the fact that these were also matters to be taken into account could not justify permitting them to 'swamp' all other relevant sentencing factors.

68 In respect of the two Commonwealth offences (charges 1 and 7), the sentencing judge was obliged to have regard to the various matters set out in s 16A of the Crimes Act 1914 (Cth), and in particular the need to impose a sentence that was of a severity appropriate in all the circumstances of those offences.[7]

69 The judge was obliged to take into account the nature and circumstances of the two Commonwealth offences,[8] and the fact that they formed part of a course of conduct consisting of a series of criminal acts of the same or similar character.[9] She was also obliged to have regard to the deterrent effect that any sentence that she passed might have on the respondent,[10] the need to ensure that he was adequately punished for these offences,[11] and, importantly, to have regard also to his antecedents.[12]

70 Somewhat paradoxically, the respondent appears to have been treated with extraordinary leniency largely because, in her Honour's view, the Corrections authorities had let him down when they failed to provide him with suitable treatment during or following his previous term of imprisonment. Normally anyone who has re-offended, as the respondent did, shortly after his release from prison, whilst still undergoing both a suspended sentence and a CBO, would expect to receive heavier punishment, rather than greater leniency. In this case, the respondent's previous criminal history appears to have operated as a mitigating factor in his favour.

71 When one adds to the overall picture the fact that the respondent was described as having a 'high risk' of re-offending (with only a cautious hope that this would not eventuate if he were to receive appropriate treatment) it is difficult to see how sentences as low as three months for any of these offences can be justified. The same can be said, with arguably greater force, in relation to her Honour's decision to make all of the individual sentences wholly concurrent, resulting in a total effective sentence of three months. A sentence of that order, for offending of this gravity, is almost inexplicable.

72 We can sympathise with her Honour's evident frustration at the failure of the Corrections authorities to have provided this respondent with appropriate therapy during the course of his earlier term of imprisonment or whilst subject to the CBO. In a perfect world, that would not happen. At the same time, however, there is obviously pressure upon scarce resources. This may mean that the respondent does not warrant the special treatment, ahead of other prisoners in need, that her Honour regarded as appropriate in his case.

73 In any event, dissatisfaction with the past failure of the Corrections authorities to provide suitable treatment cannot come close to justifying the imposition of sentences that are themselves manifestly inadequate.

74 Within a few months of his release from prison, the respondent, a man with previous convictions for offending with children, committed a series of penetrative sexual acts upon young boys. In the case of charge 7, his offending was aggravated by the fact that he had in mind, and proposed, to involve another young man in group-sex with one of these young boys.

75 The fact that the boys who were the subject of the penetration charges may themselves have been sexually experienced,[13] and that they received payment for what they did, does not, in any way, mitigate the gravity of the respondent's offending. These boys were children. They had a right to be protected, even from themselves.

76 The fact that the boys did not submit victim impact statements seems to us to carry little weight. As the prosecution rightly contended, not very much can be drawn from their decision not to do so. Perhaps all that can be said is that no additionally aggravating material emerged, as might have been the case, had such statements been supplied.

77 We turn then to ground 1. That ground alleges only that the sentencing judge erred in finding that the respondent had 'reasonable prospects for rehabilitation'. Had ground 1 stood alone, we would have dismissed this appeal.

78 First, we are by no means persuaded that the judge erred in her assessment of the respondent's prospects. Her finding regarding this matter was heavily qualified, and premised upon the respondent receiving appropriate treatment of the kind identified by Dr Barth. There was nothing untoward, or inappropriate about her Honour expressing herself in this way.

79 Secondly, even assuming that her Honour's finding was not supported by the evidence, there would be a real question as to whether an error of that kind, taken alone, could warrant allowing a Crown appeal against sentence. That would be so even if the error were to be regarded as material.

80 We accept, of course, that s 287 of the Criminal Procedure Act 2009, which confers a right of appeal against sentence upon the Victorian Director of Public Prosecutions (and derivatively, through the provisions of the Judiciary Act 1903 (Cth) upon the Commonwealth Director as well), is couched in the language of there being 'an error in the sentence imposed' and it being shown that a 'different sentence should be imposed'.

81 However, the section also requires that the Director be satisfied that an appeal should be brought 'in the public interest'. It is difficult to see how a specific error, which does not of itself constitute an error of principle, can ever, in the absence of manifest inadequacy, warrant setting aside the sentence originally imposed. There is no warrant, in the legislation, for this Court to 'tinker' with a sentence imposed below merely because the judge acted upon some erroneous view of the evidence. A good deal more must be shown before a Crown appeal can succeed.

82 In context, the 'different sentence' to which s 289 refers should, in our view, be understood as one which reflects the fact that the original sentence was manifestly, clearly, or plainly inadequate.

83 Crown appeals against sentence are only brought where there is a compelling case to do so.

The principles governing appeals by the Director of Public Prosecutions are well known. They are conveniently set out in DPP v Bright. An appeal should not be brought unless the inadequacy in the sentence is clear and egregious, to the extent that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring criminal activity.[15] [citation omitted]

85 Subsequently, in DPP v Fucile and Tran[16] this Court, following some observations made in various South Australian cases, indicated that the use of the expression 'shock the public conscience' might not be terribly illuminating, and should perhaps be avoided. Nonetheless, the basic principles underlying Crown appeals remain as stated in Brown. They include the continued existence of an overarching discretion on the part of this Court not to interfere.[17]

86 Before the oral hearing of this appeal, we had provisionally concluded that ground 1, even if it were to be made good, would not justify interfering with these sentences. We do not see the Director's right to appeal against sentence as being the mirror image, or 'other side of the coin', of an offender's right to challenge his sentence as manifestly excessive. There are a number of factors at play in a Director's appeal which differentiate it from an appeal brought by an aggrieved offender.

87 This very issue was considered by this Court in Hudson v R.[18] That case turned upon the interpretation of s 567A of the Crimes Act 1958, which was then the relevant provision governing Crown appeals against sentence. Of course, at that time, Crown appeals had to overcome the hurdle of double jeopardy, a task that now no longer need be pursued.

88 In Hudson, the Crown submitted that once specific error of any kind had been demonstrated (and it could be seen that the error was material) the sentencing discretion was automatically re-opened. That would mean that this Court would simply re-sentence afresh.[19] It might lead to only a small adjustment of the original sentence. There would be no need to demonstrate that the sentence imposed was 'manifestly inadequate'.

89 That submission was squarely rejected.[20] The Court observed that even if the error complained of by the Crown was one of manifest inadequacy (or, in the case of specific error, an 'error of principle') the appeal could not succeed unless it possessed those qualities that warranted intervention on a Crown appeal.[21] Self-evidently, a lesser error taken alone, could not justify any such intervention.

90 Of course, the relevant legislation has been amended since Hudson. It may be that not all aspects of this issue were fully considered in that case. However, it is important to bear in mind that the Court did say that the sentences imposed were 'egregiously disproportionate' to the offender's degree of criminality and displayed such 'manifest inadequacy' as to warrant intervention.[22]

91 Hudson did not finally resolve the question whether it was always necessary to establish manifest inadequacy on a Crown appeal. It was unnecessary for the Court in that case to have done so. It was sufficient that the Court was satisfied that the sentences imposed on at least two of the counts were well below the appropriate range. In other words, in Hudson there was both specific error (amounting to error of principle) and also manifest inadequacy.[23]

92 The question whether, absent manifest inadequacy, specific error, on its own, can be sufficient to allow a Director's appeal, was considered by this Court in Director of Public Prosecutions v Bulfin.[24] This was a major corporate fraud case where the Court considered the contention that in white collar crimes there should be a greater disparity than normal between the head sentence and the non-parole period. In rejecting this alleged sentencing principle, the Court commented on whether, on a Crown appeal, a court ought not to increase a prisoner's sentence unless it took the view that the sentence originally imposed was manifestly inadequate.

93 Charles JA, in obiter, while not finally drawing any conclusion on the matter, commented that the reasoning of Callaway JA in R v Bolton and Barker,[25] with which his Honour agreed, would tend strongly to that conclusion. In that case, Callaway JA, in considering the policy considerations that apply to re-sentencing on appeal, said the following:

It is nevertheless the duty of a court engaged in re-sentencing to form its own view and, if it takes the view that a heavier sentence is called for than that passed below, not to be deterred from imposing it if the earlier sentence was, in the words of the learned Chief Justice, 'altogether inadequate or inappropriate'.[26]

94 In Bulfin, Callaway JA referred to the operation of ss 567A and 568 of the Crimes Act 1958 and found there to be 'no tension between the words "whether more or less severe" [in those sections] and the proposition that a sentence should not be increased, even in the face of sentencing error, unless it was manifestly inadequate.

95 Referring to his earlier comments in Bolton and Barker, his Honour added:

As that case shows, the inhibition against increasing a sentence that is not manifestly inadequate ordinarily applies to each of several sentences, in line with the propositions that an appeal may not be brought against a total effective sentence but only against the individual sentences and the directions for cumulation or concurrency...and that at least ideally, an appropriate sentence should be imposed on each count before the judge decided on the directions for cumulation or concurrency.[27]

96 Returning to the matter at hand, we doubt that one could properly characterise her Honour's finding that the respondent had reasonable prospects of rehabilitation (even assuming that finding to have been without foundation) as amounting to 'an error of principle'.

97 In any event, for present purposes, none of this matters. Mr Champion, when pressed on this point, specifically conceded that he could not succeed in this appeal merely on the basis of specific error. He acknowledged that unless he could demonstrate that either the individual sentences imposed, or the total effective sentence was manifestly inadequate, this appeal should be dismissed. In the end, he relied on ground 1 as nothing more than a particular of manifest inadequacy.

98 Turning then to ground 2, we are of the view that this ground is clearly made out. The individual sentences imposed on each of these charges fell far short of what the law required. The sentences of three months on each charge of sexual penetration did not reflect 'current sentencing practices' regarding offending of that kind. Moreover, it was contrary to sound principle to order that all of the sentences be served concurrently. Certainly an order of that kind was not required in order to give effect to the principle of totality.

99 In short, both the individual sentences imposed, and the total effective sentence were 'unreasonable or plainly unjust'.[28] It has been shown that it was not reasonably open to her Honour to come to the sentencing conclusion which she did if proper weight had been given to all the relevant circumstances of the offending.[29] The appeal by each Director should be allowed. The sentences imposed below should be set aside and the respondent re-sentenced.

100 Sections 38(2) and 44(3) of the Sentencing Act 1991 (Vic), in combination, provide that a CCO cannot be combined with a term of imprisonment unless that term is three months or less. Because we consider that this case warrants a substantial term of imprisonment, and one greatly in excess of three months, there is no point in considering a combination of a CCO with whatever sentence we impose.[30]

101 Before indicating the precise sentences that we would substitute for those imposed below, it is necessary to say something about the requirements of sentencing for Commonwealth and State offences.

102 Where sentences are to be imposed for multiple Commonwealth offences, the commencement date for each must be specified. Any Commonwealth offence which does not exceed three years in aggregate, but does exceed six months, ordinarily

requires the fixing of a recognizance release order.[31] In the present case, the Commonwealth offences do not require the fixing of a non-parole period because the aggregate Commonwealth sentences will not exceed three years.[32]

103 If the Commonwealth sentences are to be cumulative to any extent upon the State sentences, there would have to be either, a direction under s 16(4) of the Sentencing Act 1991 delaying the commencement of the State sentences, or a direction under s 19(3) of the Crimes Act 1914 (Cth) delaying the commencement of the Commonwealth sentences. Plainly, this is extraordinarily unwieldy. Courts have been complaining for years about the technical difficulties associated with sentencing for Commonwealth and State offences, but these complaints seem to fall upon deaf ears. It is surely time that something sensible is done to alleviate at least some of these difficulties.

104 A court cannot fix a single non-parole period for federal and state offences.[33]

105 There are various ways in which any new sentence could be structured. One solution, which we consider to be appropriate, would be to deal with the Commonwealth and State offences separately.

106 Approaching the matter in that way, we would impose a sentence of 12 months' imprisonment on charge 1, commencing this day, and a sentence of six months' imprisonment on charge 7. The sentence of six months on charge 7 will commence at the expiration of nine months of the sentence on charge 1. That makes a total effective sentence of 15 months' imprisonment for the two Commonwealth offences.

107 We will fix a recognizance release order which, notionally, in this case, would enable the respondent to be released after serving eight months in relation to these Commonwealth offences, subject to being of good behaviour for a period of 12 months thereafter. This is, of course, entirely artificial as he will not be released until he has served at least the minimum non-parole period for the State offences.

108 Turning to those State offences, we would impose a sentence of 18 months on charge 2 (which is a representative charge), 18 months on charge 3 (also a representative charge) and 18 months on charge 4 (that being a charge of anal penetration). We would impose a sentence of 12 months on charge 5, 12 months on charge 6 and six months on charge 8.

109 Treating the sentence of 18 months on charge 4 as the base sentence, we would cumulate nine months of the sentence on charge 2, six months of the sentence on each of charges 3, 5 and 6 and three months of the sentence on charge 8 upon that base sentence and upon each other.

110 We would re-affirm the sentence of one months' imprisonment on the summary charge. That sentence of one month will be wholly concurrent with all other sentences.

111 This will result in a total effective sentence of four years' imprisonment in respect of the State charges. We would fix a non-parole period of two years and six months in relation to those State sentences.

112 The Commonwealth sentences will be served wholly concurrently with the State sentences. That has the advantage of obviating the need to engage in the extraordinary complexities associated with achieving cumulation between Commonwealth and State sentences.

113 We should indicate, for the sake of completeness, that the individual sentences that we have now imposed upon the respondent have been adjusted downwards somewhat in order to avoid the risk of double punishment. That reflects the fact that the respondent was required to serve the balance of Judge Wilmoth's sentence solely because he committed the offences presently before this Court.

114 The fact that he was serving a sentence for other offending prevents him from being credited with PSD in respect of that period in custody. However, that fact can be taken into account, at least in a general way, in order to ensure that, so far as practicable, he is not punished twice for exactly the same conduct.

115 We would declare, pursuant to s 6AAA of the Sentencing Act 1991 that the total effective sentence on all charges that would have been imposed but for the respondent's guilty plea would have been five years and six months with a non-parole period of three years and six months.

116 It is declared that the period of 122 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that declaration was made and its details.

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

[2] Sentencing Act 1991 (Vic) s 5(1)(a).

[3] Sentencing Act 1991 (Vic) s 5(1)(b).

[4] Sentencing Act 1991 (Vic) s 5(1)(d).

[5] Sentencing Act 1991 (Vic) s 5(1)(c).

[6] Sentencing Act 1991 (Vic) s 5(1)(e).

[7] Crimes Act 1914 (Cth) s 16A(1).

[8] Crimes Act 1914 (Cth) s 16A(2)(a).

[9] Crimes Act 1914 (Cth) s 16A(2)(c).

[10] Crimes Act 1914 (Cth) s 16A(2)(j).

[11] Crimes Act 1914 (Cth) s 16A(2)(k).

[12] Crimes Act 1914 (Cth) s 16A(2)(m).

[13] At one point during the course of the plea, they were referred to as 'rent boys', a term redolent of the era of Oscar Wilde. It goes without saying that such a term is unhelpful, and fails to recognise that boys of this age are entitled to the full protection of the law.

[14] [2009] VSCA 314.

[15] Ibid [23] (Maxwell P, Harper JA and Williams AJA).

[16] [2013] VSCA 312 (Maxwell P and Weinberg JA).

[17] See DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634.

[18] [2010] VSCA 332 ('Hudson').

[24] [1998] 4 VR 114 ('Bulfin').

[25] [1998] 1 VR 692, 697-8 ('Bolton and Barker').

[27] Bulfin [1998] 4 VR 114, 142.

[28] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[29] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, [127] (Ashley, Redlich and Weinberg JJA).

[30] Obviously, where a sentencing judge considers that a term of imprisonment should be imposed, in conjunction with a CCO, there is a danger that the term will be artificially and inappropriately shortened in order to enable that course to be followed. Sentencing judges must be astute to avoid approaching the structure of any sentence in that way. Even viewed holistically, any term of imprisonment that is imposed must be adequate, and conform to the requirements of relevant sentencing law.

[31] Crimes Act 1914 (Cth) s 19AC(1). The Court may decline to make such an order under s 19AC(4), giving reasons as required by s 19AC(5).

[32] Crimes Act 1914 (Cth) s 19AB(1)(c).

[33] Crimes Act 1914 (Cth) s 19AJ.