DPP v Clunie

1 On 16 September 2015, the respondent pleaded guilty to four charges of indecent act with a child under the age of 16 (charges 1, 2, 3 and 7), four charges of sexual penetration of a child under the age of 16 (charges 4, 5, 6, and 8) and one charge of knowingly possessing child pornography (charge 9).

2 Following pleas of guilty, he was convicted and sentenced in the County Court by his Honour Judge Dean as follows:

Indecent Act with a child under 16: s 47(1) Crimes Act 1958

Indecent Act with a child under 16: s 47(1) Crimes Act 1958

Indecent Act with a child under 16: s 47(1) Crimes Act 1958

Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958

Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958

Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958

Indecent Act with a child under 16: s 47(1) Crimes Act 1958

Sexual penetration of a child under 16: ss 45(1) and (2)(b) of the Crimes Act 1958

Knowingly possess child pornography: s 70(1) Crimes Act 1958

Sex Offenders Registration Act 2004

3 The offending was committed against two daughters of the respondent's wife's son. The victims AB and AC were born in 1996 and 1998 respectively.

4 At the time of the offending, the respondent was aged between 57 and 64 years of age. AB was aged between 8 to 13 years old and AC was aged between 7 and 12 years old.

5 The respondent was known to the victims as 'Poppy [Ethan]'[2]. Both victims spent a lot of time with the respondent at his farm. From time to time, the victims lived with the respondent and his wife, their grandmother.

6 The sentencing judge summarised the offending as follows:

In relation to [AB] the older of the two victims, in 2004 when she was 8 years old you took her to a paddock on a property leased by you. You removed her pants and rubbed your penis on the area of her vagina until you ejaculated. This act is relied upon by the prosecution in support of Charge 1 on the Indictment. Later that year you tongue-kissed her in a shearing shed on the property. This act is relied on by the prosecution in support of Charge 2 on the Indictment.

Between 2008 and 2010 when the victim was aged between 12 and 13 you fondled her breasts whilst she was driving a four wheel farm motorbike. This act is relied on by the prosecution in support of Charge 7 on the Indictment.

In relation to the other victim, your offending commenced when she was approximately 7 or 8 years old. Between July 2005 and July 2007 in bushland near [a rural town] you rubbed your penis on her body while her pants were down until you ejaculated. This act is relied on by the prosecution in support of Charge 3 on the Indictment. During the same period you penetrated her vagina and ejaculated on her in a caravan located on a property in [a rural district]. This act is relied on by the prosecution in support of Charge 4 on the Indictment.

Between July 2006 and July 2008 when the victim was 8 or 9 years old, you penetrated her vagina with your penis near a dam on the property in [the rural district]. This act is relied on by the prosecution in support of Charge 5 on the Indictment. During the same period you penetrated her vagina with your finger at the house in [the rural district] and this act is relied on by the prosecution in support of Charge 6 on the Indictment.

Between July 2008 and July 2010 when the victim was aged between 10 and 12 years and under your care, you played her a pornographic video and you made her suck your penis. This act is relied on by the prosecution in support of Charge 8 on the Indictment.

Your victims ultimately complained about your offending in November 2014 and on 7 January 2015 police executed a search warrant at your premises and there located the child pornography, the subject of Charge 9 on the Indictment. I have viewed a sample of this pornography and it depicts prepubescent girls in acts of sexual penetration. You made full admissions when questioned by investigating police and the case against you in respect of Charges 3 and 6 on the Indictment is based solely on admissions made by you.[3]

7 The offending involved gross breaches of trust towards young and vulnerable members of the respondent's family. The relevant acts involved in charges 1 and 3 were particularly gross examples of the offence of indecent act with a child. The sexual penetration offences constituted even graver offending. In each instance, the respondent took advantage of the isolation of the girls in his care. He abused his position of power over them. The interference involved in charges 1, 3 and 4 progressed until ejaculation was achieved. Charge 8 involved grooming and manipulation of the victim by way of the playing of a pornographic video in conjunction with a demand for oral sex. The child pornography seized under search warrant, although not of the worst category, included depictions of the exploitation and degradation of pre-pubescent girls in acts of sexual penetration.

8 The judge received victim impact statements from AB, AC and their mother. His Honour accepted that the offending had had a deeply traumatic effect upon them and their family.[4]

9 The victim impact statements make clear that the psychological effects of the offending have materially affected the capacity of the two girls to enjoy and grow through their adolescent years, and in particular, to relate to members of the opposite sex. The offending has also divided and destroyed relationships within the victims' wider family.

10 The sentencing judge characterised the gravity of the offending in forceful terms:

In my opinion your offending is plainly very serious and the sentence I impose must be calculated to deter you and others from offending in this manner. The depraved exploitation of children for sexual gratification by men like you is an all-too-prevalent occurrence in our society and it must be denounced by this court. You must also be punished for what you have done. You have breached the trust two little girls had placed in you and the trust placed in you by their parents and by your wife.[5]

11 We pause to note that the reference to 'depraved exploitation of children for sexual gratification' was apt to describe both the offending with respect to child abuse and the child pornography charge.

12 The judge summarised the relevant factors personal to the respondent as follows:

I now turn to your personal circumstances. You were born on 15 May 1946 and are now aged 69. You were aged between 58 and 63 when you committed these crimes. You were educated at [a regional technical school] until Year 10 level. You were first married at the age of 23 and have three adult children. You separated from your first wife in 1988 and, as I have said, you remarried in 1992. You have worked essentially in agriculture but more recently you have been employed as a stevedore in [a regional port]. You are in good physical health and I accept that you have contributed to your local community in a number of various ways. As a result of being prosecuted for these crimes, your previous good standing in the community has now been lost forever.

I have received in evidence a psychiatric report of Dr Lester Walton, a consulting forensic psychiatrist, in relation to your psychiatric profile. Dr Walton quotes as follows: 'When I questioned [Ethan Clunie] about his motivation towards the offending he simply stated "I don't know."' Dr Walton found that there are no issues of substance abuse or psychiatric history in relation to your background. He states that you are a man of normal intelligence and further, he states: 'Apart from experiencing a degree of sexual frustration during the period of the offending, [Ethan Clunie] can provide no explanation for his misconduct. It would appear that the offending occurred rather opportunistically and, in my experience, incestuous child sexual abuse seldom extends beyond family members.' He goes on to say that you are currently exhibiting a relative lack of remorse in relation to what you have done.

In my opinion, it is clear that you have no real insight into the seriousness of your offending behaviour and no explanation for it was offered by your counsel on your behalf. In my opinion it is therefore necessary to approach your prospects of rehabilitation with some caution. Furthermore, you were found in possession of extensive child pornography in January of this year.

By operation of Part 2A of the Sentencing Act 1991 you fall to be sentenced as a serious sexual offender in relation to Charges 3 to 9 on the Indictment. This means that the principal purpose for which the sentence is to be imposed is the protection of the community. The prosecution do not submit that I ought to impose a disproportionate sentence to achieve this purpose and I have not done so.[6]

13 The most significant of these matters supporting some mitigation of penalty were, in our view:

• the respondent's early pleas of guilty, which not only had utilitarian value but spared his victims the trauma of a trial;
• the extent of the respondent's admissions, which included admissions of offences (charges 3 and 6) which would not otherwise have been charged;
• the respondent's prior good character throughout his adult life, including his employment history and community engagement in a variety of roles;
• the respondent's loss of family relationships and the loss of his reputation within the rural community in which he had lived for many years;
• the respondent being 69 years of age at sentence, particularly as such age affected the probable burden of imprisonment upon him and reduced the practical need for specific deterrence; and
• Dr Walton's opinion that the respondent is unlikely to reoffend and the consequent reduction in the need to protect the community.

• the judge was not satisfied that the respondent had real insight into the gravity of his offending;
• it was necessary to approach the respondent's prospects of rehabilitation with some caution; and
• the principal purpose of sentencing with respect to charges 3 to 9 was protection of the community.

15 The Director now appeals against the individual sentences imposed, the total effective sentence and the non-parole period on the ground of manifest inadequacy. The Director submits that it may be inferred that the sentencing judge failed to properly evaluate a series of relevant factors which are particularised in the ground of appeal as follows:

Ground 1 - The individual sentences on charges 1 to 9, the total effective sentence and the non-parole period are manifestly inadequate in all the circumstances.

The learned sentencing Judge -

1. failed to give sufficient weight to the objective gravity of the offending in relation to the individual sentences and orders for cumulation;
2. failed to sufficiently punish the offender to an extent which is just in all the circumstances;

1. failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

1. failed to give sufficient weight to the principles of general deterrence and protection of the community;

e. failed to order sufficient cumulation on charges 1 - 7 and 9;

1. failed to order sufficient cumulation on those charges for which the Respondent fell to be sentenced as a 'serious sexual offender' (charges 3 - 9);
2. failed to have sufficient regard to the impact of the offending upon the victims; and

h. gave too much weight to factors in mitigation.

16 The Director submits that the sentence is manifestly inadequate bearing in mind the presumption of harm for sexual offences against children[7] and the key principles of deterrence and protection of the community when sentencing offenders in relation to offences against children.

17 For the reasons set out below, the Director's fundamental submission of the manifest inadequacy of the total effective sentence should be upheld.

18 Sections 287, 289 and 290 of the Criminal Procedure Act 2009 relevantly provide:

287 Right of appeal - inadequate sentence

The DPP may appeal to the Court of Appeal against a sentence imposed by an originating court if the DPP -

(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and

(b) is satisfied that an appeal should be brought in the public interest.

289 Determination of Crown appeal

(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that -

(a) there is an error in the sentence first imposed; and

(b) a different sentence should be imposed.

...

290 Orders etc. on successful appeal

(1) If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.

(2) If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.

(3) In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

(a) whether there has been an error in the sentence first imposed?

(b) if yes, whether a different sentence should be imposed? and

(c) if yes, what alternative sentence is appropriate?

20 The first issue logically requires an examination both of the reasoning towards sentence and the sentence actually imposed.

21 The second issue raises the possibility that the residual discretion of the Court of Appeal not to resentence should be exercised.[8]

22 The third issue gives rise to all the factors bearing on the discretionary exercise potentially involved in a sentencing decision, with the exception of double jeopardy.

23 Both the second and third factors need to be considered in the light of the circumstances existing at the date of the determination of the appeal.[9]

24 In Director of Public Prosecutions v O'Neill,[10] this Court made the following general observations about the framework within which appeals under these provisions must be considered.

25 First, the notion that Crown appeals should only be rare and exceptional as a consequence of the principle of double jeopardy no longer applies as a consideration to which this Court must have regard under the present statutory regime.[11]

26 Secondly, the Director may rely upon any of the types of error identified in House v The King.[12] It may be a specific error or it may be an error to be inferred from the fact that the sentence is outside the appropriate range.[13]

27 Thirdly, nevertheless the error must raise a question of principle that needs to be addressed for the governance and guidance of sentencing courts, or in order to establish or maintain proper sentencing standards. This limiting purpose provides a framework within which to assess the significance of factors relevant to the exercise of the residual discretion as to whether the Court of Appeal should refuse to intervene.[14]

28 Further, as Kiefel, Bell and Keane JJ observed in CMB v Attorney-General (NSW), the purpose of Crown appeals may explain why they have been characterised as 'exceptional'.[15]

29 In the present case, the ground of appeal goes essentially to the maintenance of proper sentencing standards.

30 The High Court has repeatedly emphasised that a conclusion by this Court that it would have imposed a somewhat different sentence than that imposed at first instance is not of itself sufficient to justify a conclusion of manifest inadequacy or excess.[16] In a case such as this, the sentence must be so plainly short of the mark as to bespeak error of principle and therefore necessitate appellate intervention.[17]

31 In Director of Public Prosecutions v Karazisis, Ashley, Redlich and Weinberg JJA said:[18]

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.[19] As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.[20] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

The court will be astute to enforce the stringency of this test. As the High Court has emphasised:[21]

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

32 The adequacy of the sentences imposed in the present case falls to be examined in circumstances where we accept that, as the respondent submits, the reasons of the sentencing judge demonstrate that he had regard to the relevant circumstances. The sentencing judge referred to and synthesised:[22]

• the circumstances and seriousness of the offences, including the serious breaches of trust which they disclosed;[23]
• the relevant statutory maximum penalties;[24]
• the Respondent's admissions and guilty plea at the earliest practicable opportunity and their importance in cases like the present where the victims are spared the trauma of reliving the crimes through cross-examination;[25]
• the fact that the Respondent had no criminal history and no matters pending;[26]
• the impact upon the two victims;[27]
• the need to denounce the offending, punish the Respondent, deter him and others from like offending and impose a sentence that protects the community;[28]
• the Respondent's lack of insight and the need, as a result, to approach his prospects for rehabilitation with 'some caution';[29]
• the Respondent's matters personal, good work history, contributions to his community and the loss of his family and reputation as a result of his offending;[30]
• the operation of Part 2A of the Sentencing Act 1991 to the sentences imposed on charges 3 to 9;[31]
• the need to ensure that the sentences imposed and the orders made did not offend the principle of totality;[32] and
• the important fact that for two of the nine charges - charges 3 and 6 - the evidence of the Respondent's offending was only his admissions to police.[33]

33 The ultimate issue in this appeal is simply whether the sentence at which the sentencing judge arrived following this synthesis demonstrates manifest error.

34 In balancing the gravity of offending, the relevant purposes of sentencing and the matters which might be regarded as going to mitigation of sentence, the judge was required to have regard to the principle of totality. That principle requires a judge not simply to consider the penalty which is appropriate for individual offences but also to review the aggregate sentence and consider whether the aggregate is 'just and appropriate' and 'not excessive'.[34]

35 Whilst s 6E of the Sentencing Act 1991 must be regarded as moderating the effect of the principle of totality as it applies to serious sexual offenders,[35] nevertheless that principle remains relevant.

36 The application of the principle of totality in cases of multiple offences ordinarily falls to be made in accordance with the principles stated by Ormiston JA in Director of Public Prosecutions v Grabovac:

In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a 'crushing' sentence.[36]

The totality principle requires the judge who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate' and 'not excessive'. It is the total effect of the aggregate sentence imposed (that is the total length of the consecutive sentences) that may enliven the totality principle so that the court will intervene on the ground of mercy and reduce that total effective sentence. But the proper process for applying the totality principle is for the sentencing judge to first conclude what is an appropriate and proportionate sentence for each individual offence when viewed in isolation. It is only after this step that it is appropriate for the judge to look at what the total effect of the sentences would be and to adjust that total effect to what is considered to be 'just and appropriate' in all the circumstances. Once a sentencing judge has come to the conclusion that the total effect of the sentences passed offends the totality principle, there are two methods of adjusting the total sentence. The primary and preferable mechanism is to make appropriate orders for some of the sentences to be wholly or partially concurrent. Where this is not practicable, an appropriate total effective sentence may be achieved by 'lowering the individual sentences below what would otherwise be appropriate' in order to reduce the total effective sentence.[37]

38 In Director of Public Prosecutions (Cth) v KMD,[38] this Court confirmed that Ormiston JA's 'preferable' approach (which the Court in Hudson[39] described as the 'proper process'), was also the 'orthodox ... practice', as understood in Johnson v The Queen,[40] and should be departed from only when some special feature of the case requires such a departure.[41] There is no such feature in the present case.

39 Somewhat surprisingly, given the clear direction given in Victorian authority, the judge approached the question of totality in the present case as follows:

I have paid due regard to the principle of totality in sentencing and I have moderated the individual sentences to be imposed in relation to the individual counts on this Indictment and I have made orders for partial cumulation in order to ensure that the sentence that I impose is proportionate to your overall criminality.[42]

40 It follows that the individual sentences imposed must be regarded as having been reduced to some extent in order to reflect the need to moderate the overall sentence for the purposes of the principle of totality.

41 In Nguyen v The Queen, Gageler, Nettle and Gordon JJ said:

Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence[43] while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences.[44] That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case.[45] Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong.[46] Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.[47]

42 In the present case, while a reduction in individual sentences might theoretically have been offset by greater cumulation in a way which arrived at an appropriate total effective sentence, the approach adopted has resulted in two fundamental problems:

(a) concealment of what the judge in fact regarded as the appropriate and proportionate sentence for each charge viewed in isolation, resulting in an opaque sentencing process and individual sentences which do not themselves adequately reflect the gravity of the offending, the need for denunciation, and the need to give adequate effect to general and specific deterrence; and

(b) a need for greater accumulation in order to arrive at an appropriate total effective sentence.

43 When the sentence is viewed overall it is, in our view, manifestly inadequate. Because of the approach adopted by the sentencing judge the inadequacy is most clearly demonstrated by reference to the manner in which the sentencing judge cumulated the individual sentences.

44 As the Director submits, it is instructive first to examine the cumulation imposed with respect to the offences involving AB:

• the total accumulation for charges 1, 2 and 7 is only five months;
• the first offence against AB involved indecent assault of the most serious kind. The respondent rubbed his penis against the area of a seven to eight year old girl's vagina until ejaculation. Yet only three months' cumulation was imposed;
• the cumulation imposed with respect to charge 1 was only half that imposed with respect to the similar offending involved in charge 3, despite the same sentence being imposed in respect of the same type of offending in each instance.

45 Next, the cumulation imposed with respect to the offending against AC is also inadequate. We accept that it was open to regard the offending comprising the basis of charge 8 as the most serious of the sexual penetration offences having regard to all the circumstances. Nevertheless, despite the 25 year maximum applicable to charges 4, 5 and 6, only six months cumulation was imposed in respect of the penile penetration of an eight to nine year old girl in relation to each of charges 4 and 6 and a like cumulation was imposed in relation to the digital penetration forming the basis of charge 5. The respondent fell to be sentenced as a serious sexual offender with respect to each of these charges and, in our view, when regard is had to the policy underlying s 6E of the Sentencing Act, the cumulation was plainly inadequate.

46 Likewise, the imposition of only one month cumulation in respect of the child pornography charge was no more than a token sentence. As such, it failed to give any real effect to considerations of general and specific deterrence.

47 As the judge recorded, the child pornography included depictions of sexual penetration of children by adults. Whilst falling short of the depiction of acts of sadism and bestiality in degree of seriousness, it was nevertheless pornography involving the gross degradation and exploitation of children.

48 It follows from the above conclusions that, viewed as a whole, the sentence was manifestly inadequate.

49 It was submitted on behalf of the respondent that the Court should not concern itself with the structure of the sentence. In the present case, however, the individual components of the sentence, taken alone and together, demonstrate its overall inadequacy.

50 It was also submitted on behalf of the respondent that the components of the sentence did not fall outside the range reflected by current sentencing practice. The proper approach to this issue was summarised in Director of Public Prosecutions v Zhuang,[48] with some key propositions from that case being:

• Sentences passed are not precedents, but a general overview of sentences passed may inform the instinctive synthesis of the sentencing judge as it may provide a general guide to current sentencing practice.
• The imposition of sentences is an exercise of the discretion reposed in a judge for the proper administration of the criminal justice system. The discretion is informed by all the circumstances of the offence and the offender.
• Although such sentences may provide an indication of the range possible, they are not the outer limits of the range available and can, at best, be considered a guide or impression as to current sentencing practice or whether a sentence passed was within the proper exercise of the sentencing discretion.
• Comparable cases can be referred to in order to identify unifying principles.
• As a general principle, like cases should be treated in a like manner.
• Cases are alike when both the cases fall broadly within the same category of seriousness and the circumstances of the offender are not dissimilar. If this is not the case, dissimilar cases can sometime assist in identifying the outer limits. Statistics in themselves are unlikely to be helpful.
• Past sentencing decisions do not define the limits of the sentencing discretion, every case must turn on its own facts.
• The intuitive synthesis performed by different judges may necessarily produce different outcomes, neither of which can be said to be wrong.

51 In the present case, reliance was first sought to be placed upon the Sentencing Snapshots released by the Sentencing Advisory Council in respect of the offence of sexual penetration of a child aged under 12 (June 2015), and in respect of incest (August 2014).

52 The Sentencing Snapshot in respect of sexual penetration of a child under 12 indicates that a total of 54 people received a principal sentence of imprisonment for sexual penetration of a child aged under 12 between 2009-10 and 2013-14. Terms of imprisonment ranged from three months to six years, while the median length of imprisonment was four years. The most common range of imprisonment length imposed was four to less than five years (21 people). The average length of imprisonment term imposed on people sentenced for sexual penetration of a child under 12 ranged from three years and four months in 2011-12 to four years and seven months in 2013-14.

53 There were 54 people given a total effective sentence of imprisonment. The length of total effective sentences ranged from three months to 15 years and eight months, while the median total effective length of imprisonment was six years and five months. The most common range of total effective imprisonment length was six to less than seven years (12 people).

54 The very significant limitations upon the usefulness of general statistical information of this kind mean that it cannot be said that the statistics demonstrate that the sentence the subject of this appeal was relevantly within the range appropriate for the particular offending here in issue.[49]

55 Although the respondent's offences were not ones of incest, they were characterised by the breach of trust and abuse of power within a family relationship which are hallmarks of such offending.[50]

56 The Sentencing Snapshot in respect of incest as at August 2014 shows a total of 137 people received a principal sentence of imprisonment for incest between 2008-09 and 2012-13. Imprisonment terms ranged from three months to 12 years (eight years when appeals are considered), while the median length of imprisonment was four years and nine months. The most common range of imprisonment length imposed was five to less than six years (36 people). The average (mean) length of imprisonment term imposed on people sentenced for incest ranged from four years and one month in 2008-09 to five years and five months in 2009-10.

57 There were 137 people given total effective sentences of imprisonment. The length of total effective sentences ranged from three months to 22 years and five months, while the median total effective length of imprisonment was seven years and six months. The most common ranges of total effective imprisonment length were five to less than six years and seven to less than eight years (20 people each).

58 Once again, the limitation upon the usefulness of statistics of this kind does not permit a meaningful conclusion to be drawn from these figures. Consistency in sentencing is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.[51]

59 The respondent also submitted that the sentences imposed in two particular cases demonstrated that the sentences imposed in the present case accorded with current sentencing practice. In Director of Public Prosecutions v BGJ,[52] Eames JA described the facts as 'quite remarkable'.[53] The respondent, BGJ, pleaded guilty to one charge of incest committed against his daughter (S) which resulted in S giving birth to a child (N) who suffers from intellectual disability and chronic illness, and one charge of indecent assault committed against N. The incest charge was committed whilst BGJ was on parole for 27 counts of incest committed against S and two of his other daughters. Both of the offences against S and N were said to have been in the 'worst category'. For BGJ's earlier offending against his daughters, he had received a total effective sentence of six years' imprisonment with a non-parole period of three years. For the offences committed against N, BGJ was resentenced by the Court of Appeal to a total effective sentence of seven years' imprisonment with a five year non-parole period.

60 The full circumstances in which the earlier sentences for incest committed against his three daughters were imposed upon BGJ in 1982 are not clear but, in any event, we would not regard the sentencing practice of 34 years ago as being of any real assistance.

61 The sentence imposed by the Court of Appeal in BGJ had regard in part to the principle of double jeopardy.[54] It was 'significantly less than would otherwise have been appropriate'.[55] It does not assist the respondent.

62 Reliance was also placed upon the decision in Cummins (a pseudonym) v The Queen.[56] The applicant in that case pleaded guilty to nine charges of sexual offending against his two granddaughters, spanning eight years, when the girls were between four and 14. He was sentenced to a total effective sentence of 13 years and six months with a non-parole period of 11 years and six months. The Court of Appeal reduced the total effective sentence to eight years with a non-parole period of five years. The base sentence related to the offence of maintaining a sexual relationship with a child. The offending did not involve penetrative sex and neither of the offences of indecent assault nor indecent act involved penile contact.

63 The facts in that case differ materially from the present and no direct comparison can be made with it.

64 In our view, the cases to which the Court was otherwise referred by the parties on the oral hearing of the appeal do not provide sufficiently direct comparators with the present case to be useful.[57]

65 Nevertheless, subsequent to the oral hearing of the appeal, this Court handed down its judgment in Director of Public Prosecutions v Dalgliesh.[58] The respondent further relies upon the decision in that case in particular and upon the overall survey of current sentencing practice which the court undertook in reaching its decision. In that case, the respondent (CD) pleaded guilty to charges of incest, sexual assault and sexual penetration of a child under 16 and was sentenced to 5 years and 6 months' imprisonment with a non-parole period 3 years. The charges involved offending against two daughters of CD's partner. The offending involved in charge 1 (incest) caused the victim to fall pregnant. She was 13 years old. Three further charges involved incest (charge 2), indecent assault comprising the placing of the respondent's penis in the area of the victim's vagina (charge 3), and sexual penetration of a child under 16 involving penile penetration of the victim's mouth (charge 4).

66 After a comprehensive survey of current sentencing practice, the Court held that the penalty of 3 years and 6 months' imprisonment imposed on charge 1 for incest, although extremely lenient, was not manifestly inadequate having regard to current sentencing practice.[59] The Court reached this conclusion after a careful survey of comparable cases.[60] In so concluding, the Court stated:

But for the constraints of current sentencing practice, the objective seriousness of the conduct constituting charge 1 demanded a considerably longer sentence than three years and six months, even allowing for the factors in mitigation. CD's conduct was opportunistic and abhorrent. His morally repugnant conduct has had lasting consequences for the victim and her family.[61]

67 In Dalgliesh, the Director did not challenge the individual sentences on charges 2, 3 or 4, but submitted that the orders for cumulation on those charges had resulted in a total effective sentence which was manifestly inadequate. For similar reasons to those given with respect to the challenge to the individual sentence imposed on charge 1, current sentencing practice led the Court to conclude that the orders for cumulation, while very lenient, were not wholly outside the permissible range and did not produce an manifestly inadequate total effective sentence.[62]

68 The Court went on to conclude that current sentencing practice in respect of the offence of incest was inadequate. After reviewing relevant sentencing decisions, relating in particular to worst category of such offending, the Court concluded:

Our review of sentencing for incest enables us to make a number of general observations about the current state of sentencing. Most sentences for incest with a dependent child under the age of 18 are around three years and six months or four years' imprisonment. Slightly higher sentences are imposed if the charge is a representative one involving high levels of repetition or victim impact, or if it involves other circumstances of aggravation, such as ejaculation, pregnancy, threats or overt violence. The highest recorded sentence in such circumstances is six years on a guilty plea and seven years following a trial. There is little evidence of any real differential where the victim is very young.

In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be - and should be - self-correcting.[63]

69 In our view, the sentencing decisions referred to and considered in Dalgliesh, together with the decision in that case itself, materially supplement the authorities to which reference was made before the sentencing judge in this case and, in turn, before this Court in oral argument.

70 Taken together, they support the view that the individual sentences imposed in the present case were not manifestly inadequate having regard to current sentencing practice, particularly if, as the judge stated, those sentences are to be understood to have been discounted for reasons of totality.

71 Although the decision in Dalgliesh was substantially concerned with the offence of incest and not sexual penetration of a child under 16, the maximum penalty for both offences is 25 years' imprisonment and both offences commonly bear the hallmarks of abuse of power, breach of trust and lasting impact upon the victims. The present case is concerned with a breach of trust and abuse of power within a family relationship resulting in lasting consequences, albeit that it was not a case of incest.

72 On the other hand, we are not persuaded that the sentencing decisions referred to in Dalgliesh (including the sentences imposed in that case itself) demonstrate that cumulation in the present case was anything other than manifestly inadequate for the reasons we have already elaborated.

73 In may be noted that the offending in Dalgliesh encompassed fewer charges than the present case, and that the serious sexual offender provisions apply to charges 3-9 on the present indictment, significantly more in relative terms than in Dalgliesh. Three of these charges carried a maximum penalty of 25 years. Cumulation in relation to AB in the present case is also significantly below the cumulation which was ordered in Dalgliesh in relation to the second victim.

74 Neither reference to the decision in Dalgliesh itself or to the authorities which it surveys persuades us that current sentencing practice establishes that the cumulation imposed in the present case was within the range reasonably open to the sentencing judge.

75 In the course of the plea hearing, submission was made on behalf of the respondent as to the relative gravity of the offending:

HIS HONOUR: So the only explanation in that context is that he seeks sexual gratification by the sexual abuse of [children].

[COUNSEL]: It must be in this case that there was sexual gratification.

HIS HONOUR: That's the explanation for what he did.

[COUNSEL]: Yes. And in doing so, with respect, whether there was slight or other penetration doesn't matter for the facts of this case it doesn't matter.

HIS HONOUR: No. Well, it matters in the sense that this offending is not at the higher end of offending of this nature.

[COUNSEL]: But in terms of the motivation, Your Honour, it's there.

HIS HONOUR: But it's still very serious.

[COUNSEL]: The only things he can fairly say, Your Honour, are that the offending in terms of that aspect falls some way down the scale. Secondly, that for a person of his years about to serve a first sentence, it will hit him with particular harshness.

HIS HONOUR: Yes.

76 It is submitted by the respondent that, because the prosecutor did not directly join issue with the proposition that the case was not at the higher end of offending of this nature, the judge's sentence should not now be interfered with. We do not see that the judge's further characterisation of the offending as 'very serious' can sustain this submission. Moreover, we note that, in reply, the transcript of the plea records that the prosecutor directly addressed aggravating aspects of the offending:

There are occasions where the victims were taken away to another place in then a sense (sic) to commit the offence. There's ejaculation involved in some of the offending. The offending spans a number of years. There's the showing of a pornographic movie to a child. In relation to the lack of expressed remorse issue, Your Honour, in my submission, the record of interview reveals positively a lack of insight as to the seriousness of the offending behaviour. Comments such as, 'God, you wouldn't penetrate a child at that age,' but you'd do something approaching it, if you like, finger in the vagina, more or less.

HIS HONOUR: Also suggests he's turned his mind to that question, which is appalling.

MR BOURKE: Well, it is.

HIS HONOUR: Very twisted.

77 Each of these matters illuminated aspects of the sense in which the offending was, in fact, very serious.

78 There is no basis to be found in the conduct of the prosecutor on the plea for the exercise of the residual discretion not to resentence in this matter.

79 In our view, the appeal should be allowed and the respondent should be resentenced as follows:

Indecent Act with a child under 16: s 47(1) Crimes Act 1958

Indecent Act with a child under 16: s 47(1) Crimes Act 1958

Indecent Act with a child under 16: s 47(1) Crimes Act 1958

Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958

Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958

Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958

Indecent Act with a child under 16: s 47(1) Crimes Act 1958

Sexual penetration of a child under 16: ss 45(1) and (2)(b) of the Crimes Act 1958

Knowingly possessing child pornography: section 70(1) Crimes Act 1958

80 The other orders of the sentencing judge should be affirmed.

81 It should be directed that it be noted in the records of the Court that the respondent was sentenced as Serious Sexual Offender on charges 3 to 9.

[1] To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

[3] DPP v [Clunie] (Unreported, County Court of Victoria, Judge Dean, 16 September 2015) [6]-[11] ('Reasons').

[7] Clarkson v The Queen (2011) 32 VR 361, 371 [33].

[8] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 657-60 [99]-[115].

[9] R v Allpass (1993) 72 A Crim R 561, 562; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 661-2 [121]-[122]; Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 618 [43].

[10] [2015] VSCA 325 ('O'Neill').

[12] [1936] HCA 40; (1936) 55 CLR 499.

[13] O'Neill [2015] VSCA 325 [104].

[15] [2015] HCA 9; (2015) 89 ALJR 407, 421 [65].

[16] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt, McTiernan JJ); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, 588 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[17] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605-6 [58] (Gaudron, Gummow and Hayne JJ); Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 538-9 [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Nguyen v The Queen [2016] HCA 17; (2016) 90 ALJR 595, 608 [66] (Gageler, Nettle and Gordon JJ).

[18] [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]-[128] (citations in original).

[19] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, 680 [9].

[20] R v Boaza [1999] VSCA 126 [42] (Winneke P).

[21] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

[22] Response to Director's Written Case dated 23 November 2015, [4.27] (citations in original).

[33] Ibid [11]. Doran v The Queen [2005] VSCA 271 [14]-[15]; cf Ryan v The Queen (2001) 206 CLR 267, 295 (Kirby J).

[34] Hudson v The Queen (2010) 30 VR 610, 625 [59] ('Hudson').

[35] R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 476-7 [76].

[36] [1998] 1 VR 664, 680. See also, R v Lomax [1998] 1 VR 551, 563-4.

[37] Hudson (2010) 30 VR 610, 625 [59] (citations omitted).

[38] [2015] VSCA 255 (Maxwell P, Weinberg and Beach JJA).

[39] (2010) 30 VR 610.

[40] [2004] HCA 15; (2004) 78 ALJR 616, 624 [26].

[41] DPP (Cth) v KMD [2015] VSCA 255 [96].

[43] Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A(a); R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566, 572 [15] (Spigelman CJ).

[44] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62-3; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623-4 [43]-[45] (McHugh, Hayne and Callinan JJ).

[45] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62-3; DPP v Grabovac [1998] 1 VR 664, 680 (Ormiston JA), 665 (Winneke P agreeing), 690 (Hedigan AJA agreeing).

[46] R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66, 67 [7] (Simpson J).

[47] Nguyen v The Queen [2016] HCA 17; (2016) 90 ALJR 595, 607-8 [64] (Gageler, Nettle and Gordon JJ) (citations in original).

[48] [2015] VSCA 96 [30]-[36].

[49] Pham v The Queen [2015] HCA 39; (2015) 90 ALJR 13, 19 [28]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605-6 [57]-[59], 608 [65]-[66]; Zhuang v The Queen [2015] VSCA 96 [29]-[37].

[50] Sutton (a pseudonym) v The Queen [2015] VSCA 251.

[51] Pham v The Queen [2015] HCA 39; (2015) 90 ALJR 13, 19 [28] and the cases there cited_._

[52] [2007] VSCA 64; (2007) 171 A Crim R 74 ('BGJ').

[56] (2013) 40 VR 319.

[57] DPP v GJL [2004] VSCA 35; (2004) 7 VR 366; R v HRA [2008] VSCA 56; (2008) 183 A Crim R 91; R v AMP [2010] VSCA 48.

[58] [2016] VSCA 148 ('Dalgliesh').

[60] Ibid [27]-[42], [101]-[116].