DPP v Conos [2021] VSCA 367

1 As is now widely recognised, the perceived anonymity of the internet has greatly facilitated the exploitation of children for sexual purposes. In some cases, both the grooming and the sexual activity take place online, the offender deriving sexual satisfaction from observing the victim performing sexual acts to the offender's instructions.[1]

2 In other cases - of which the present is an example - the online grooming and indecent communication lead to 'contact offending', that is, physical sexual abuse of the child by the offender. In this case, the respondent ('TC') groomed three 15-year-old girls, through increasingly explicit online communications, and then committed multiple offences of sexual penetration against each of them.[2] His fourth 'victim' was an undercover operative, the offending in that instance being confined to online grooming and indecent communication.

3 The offending spanned a period of almost two years, when TC was aged between 25 and 27. In relation to each of the first two victims, he pleaded guilty to sexual penetration of a child under 16. In each case, he offended on two different occasions. In relation to the third victim, TC pleaded guilty to two rolled-up charges of sexual penetration of a child under 16, involving four occasions and five occasions respectively, as well as to charges of grooming, transmitting indecent communications and supplying a drug of dependence. In relation to the undercover operative, he pleaded guilty to the Commonwealth offences of using the internet to groom a person under 16 and to transmit indecent communications.

4 The total effective sentence imposed for all of this offending was 6 years and 6 months' imprisonment. The judge fixed a non-parole period of 4 years and 6 months.

5 Two appeals have been brought. The first appeal is by the Victorian Director of Public Prosecutions, and concerns the sentences imposed for the State offences (including sexual penetration and grooming for sexual conduct). The other by the Commonwealth Director of Public Prosecutions, concerns the sentences imposed for the Commonwealth offences (of transmitting indecent communications and using a carriage service for grooming). In each appeal, it is contended that the relevant individual sentences and orders for cumulation are manifestly inadequate, such that the total effective sentence and non-parole period are also manifestly inadequate.

6 For reasons which follow, we would uphold both appeals. This was particularly serious offending, involving the knowing exploitation of vulnerable girls, whom TC pressured and manipulated into having sex with him. And he persisted in his relentless pursuit of his own sexual gratification despite being fully aware - as he acknowledged to one of his victims - that what he was doing was both illegal and morally wrong.

7 It is of the first importance that offending of this kind be met with severe punishment. This is necessary in order to mark the community's abhorrence of the sexual exploitation of children, to deter those who might be inclined to take advantage of the internet to pursue their own sexual gratification, and to protect children under 16, whom the law deems to be unable to give meaningful consent to sexual activity.[3]

8 We would resentence TC to a total effective sentence of 10 years' imprisonment and would set a non-parole period of 7 years. The individual sentences and orders for cumulation are set out in the table at the conclusion of these reasons.

9 Counsel for TC submitted that, if we were of the view that the sentence was manifestly inadequate, we should nevertheless dismiss the appeals in the exercise of the residual discretion. The foundation of this submission was what were said to be serious flaws in the presentation of the Crown case on the plea.

10 It is, of course, the obligation of prosecutors to provide all necessary assistance to sentencing judges in the discharge of their difficult task. This is particularly so in a case like the present, involving State and Commonwealth offences, multiple victims and - in the case of sexual penetration of a child under 16 - a 'standard sentence offence'.

11 We accept, however, the submission made on behalf of the respective Directors that, although there were some shortcomings in the presentation of the prosecution case, they did not cause the sentencing error. As Maxwell P and Redlich JA said in Director of Public Prosecutions (Cth) v Masange:

[I]t is a serious thing to decline to correct an inadequate sentence solely because of an omission on the part of the prosecutor on the plea. In our view, that course would not be warranted unless the prosecutor's omission were shown to have caused the error subsequently complained of by the Crown on the appeal.[4]

12 As noted earlier, TC's offending relates to online communications and sexual activity with three girls aged 15 years. The fourth 'victim' was 'Sienna', an identity created by Victoria Police and controlled by an online covert police operative. Her putative age was 14 to 15 years. At the time TC committed the offences, he lived at home with his parents. He was a student, although also undertaking a number of teaching placements as a music instructor at various schools and as a private tutor.

13 In December 2017, TC and Paula were members of a group chat site through the social media application KIK, and he provided Paula with his Snapchat details. After communicating for a few weeks, he and Paula met up, both being aware of their respective ages, 25 and 15. During the school holidays they arranged to meet up and Paula rode her bike to a laneway in Fitzroy, where TC soon arrived in his car. They were both in the back seat with blankets on the windows. Although Paula initially hesitated, TC eventually convinced her to have sex with him. He used a condom and the act of penetration lasted a short time. He tried to make conversation with Paula but soon after she left on her bike and he drove home. He did not contact her again for a month or two.

14 In early 2018, Paula saw photos of TC on Instagram and he continued communications. They met up again some time between January and April 2018 and again had sex in his car. At that time Paula was still 15. Those two instances relate to charge 1, a rolled-up charge of sexual penetration of a child under 16.

15 Subsequently, TC sent images and videos to Paula which included images of his naked body, videos of him masturbating and participating in sex with an unknown female who he said was aged 15. He also requested that Paula send naked images of herself, which she did, exposing her breast area. Paula trusted TC, thought he legitimately cared for her and revealed personal issues to him. He met up with Paula and had sex with her on two more occasions during 2018, by which time she was 16. These encounters were relied on as part of the narrative and context.

16 For a period of time afterwards, TC did not communicate with Paula and did not reply to her messages. In about August 2018, Paula contacted him through social media and falsely told him she was pregnant. He eventually responded, saying that she needed to see a doctor but asking her to leave his name out of it, as he did not want to get in trouble. About a week later, TC met up with Paula and gave her $500 for an abortion. He had no further contact with Paula.

17 On 19 January 2019, Paula noticed that TC was using his Instagram account to 'follow' other young females. Consequently, Paula told some others about him, which led to two of TC's friends (Emily and Isla) contacting TC and talking to him a number of times. TC was clearly concerned that his previous sexual relationship with Paula would be revealed. He messaged Emily and transferred $300 to her. Emily replied, 'I will meet with her tomorrow and give her the money'. TC used Emily to give the money to Paula in the hope that she would not report the matter to police and would cease discussing his sexual relationship with other people.

18 On 30 January 2019, TC sent a document to Emily and Isla containing some admissions to, and a purported explanation for, his offending. He said that he had 'made real life changes', had 'stopped contacting the women I have harmed' and was 'serious about ... building towards full accountability for my sexual abuse and harm that I have caused'. It should be noted that, when this document was created, the offending against the third victim had not yet commenced.

19 In around November 2018, TC created a profile indicating he was 18 years old. He exchanged messages with Mary who he knew at the time to be 15. At all times she thought he was 18.

20 TC frequently used Snapchat to ask Mary to send him naked images of herself. When she refused he persisted, telling her, 'You're making me sad' and 'It's not fair'. This upset Mary and she felt compelled to comply. In December 2018 (about a month after he commenced chatting), he continually suggested to Mary that they should meet, and she eventually agreed.

21 On 13 December 2018, TC arranged to meet Mary at a park near her house. When he began touching her sexually, she tried to stop him, saying, 'Stop, we're in a playground'. He then implored her to go with him to his car, telling her that he wanted to have sex with her and saying, 'I want to use you'. She said that she did not want to go to his car and wanted to leave. Eventually, he persuaded her to go to his car with him. He drove to a quiet area and put blankets on the windows. TC penetrated her vagina with his penis, using a condom. Afterwards, he dropped Mary in the street near her home, suggesting they should 'do this again' (charge 2, sexual penetration of a child under 16).

22 TC continued communicating with Mary, telling her he wanted to meet again but also requesting she send nude photos of herself. She did ultimately send him some in her underwear though she had also blocked her face. He reciprocated and sent about 50 naked photos of himself and videos of him masturbating.

23 TC and Mary met again on 23 December 2018 and spent time together. On 16 January 2019 they met up and had a picnic. After a short time, they walked together to a secluded area in the bush. There TC pushed Mary down onto her knees, grabbed her head and forced his penis into her mouth. When she attempted to push him away, he held the back of her head and forced her mouth onto his penis. He ejaculated in her mouth. She tried to push away from him and wanted to spit his ejaculate out, but he continued to hold her head on his penis until she swallowed it. When she eventually swallowed his ejaculate he released her head. Although he then tried to be affectionate to her, and offered to buy her an ice-cream, Mary said she wanted to go home and he drove her to the park near her home (charge 3, sexual penetration of a child under 16).

24 On 19 January 2019, Mary received a message on her Instagram account warning her about TC. She ceased contact with him and blocked him from contacting her. Despite that, he attempted to contact Mary over the following weeks using Instagram accounts that did not identify him as the sender. He also contacted her around the time of her 16th birthday and continued to try to contact her until October 2019.

25 'Sienna Rose' ('Sienna') was a profile of a 14 to 15-year-old girl created by Victoria Police Joint Anti-Child Exploitation Team. The profile was created for the purpose of covert online engagement with users of social media. On 10 January 2019, TC contacted Sienna through WhatsApp, and thereafter engaged with Sienna in text and social media communications.

26 Amongst the messages, TC asked Sienna to go swimming on a date. She told him she was 14 and had never been on a date. He responded saying that he felt so lucky she was texting him and asking whether she was really interested in him. He continued expressing an interest in her and wanted to meet up.

27 Between 15 January and April 2019, TC ceased all contact with Sienna. According to the prosecution opening, this was

because of the Instagram disclosures made by Paula and the intervention of the family and friends of the [respondent] to try to assist him to stop his behaviour and interest in young girls.

28 In the event, however, TC resumed communications with Sienna on 3 April 2019 and continued until 20 September on different media applications. These exchanges included: acknowledgment of their respective ages, 14 and 26; repeated references by him to the size of his penis; and explicit descriptions of the sexual activities he wanted to engage in with Sienna. He sent photos of his erect penis and also requested that she send him photos of herself. Towards the end of the exchanges he expressed a desire to meet up with her. (Charges 9 and 10, use of a carriage service to groom and to transmit indecent communications to a person under 16.)

29 On 20 September, TC blocked Sienna and deleted his chat log. He had no further contact with her.

30 TC's offending in relation to Tamsin occurred between February and October 2019. After initially seeing her standing at a bus stop, he frequented the area over the next few weeks until he was able to approach her. He then used Instagram, Snapchat and text messages to groom her. His communications with Tamsin included him sending and soliciting indecent images (charge 4, grooming for sexual conduct with a child under 16). He told her he was 26 and she said that she was 15. Eventually they arranged to meet up.

31 They met up on 29 March 2019 in a park. TC attempted to kiss Tamsin but she moved away. He apologised and soon afterwards she went home. After she left, the communications between them continued, including arranging to meet again. On 30 March they met up for a second time. TC picked Tamsin up from the bus stop and took her to his house. After they kissed, he asked Tamsin to have sex. She refused, but she 'felt under pressure to do something' with him, so she performed oral sex on him (part of charge 6, sexual penetration of a child under 16).

32 After Tamsin left, TC created a new Instagram account and told Tamsin it was so that they could communicate privately. On 31 March he and his family went overseas. Between 30 March and 17 April 2019, TC sent numerous messages to Tamsin using that Instagram account. Many of the messages he sent her were of a sexual nature and some contained sexually explicit images of himself. He also asked Tamsin to send him sexually explicit images of herself.

33 There was a large volume of messages, containing explicit references to the sexual acts he wanted to perform with Tamsin. He emphasised her age, referring to her as 'my sweet little child' and 'my sweet young daughter' and to himself as 'daddy'. He said to her, 'I know it's illegal if we have sex so it scares me sometimes'. He also revealed to Tamsin that he had previously been involved with a 15-year-old, presumably Paula, who he said had turned against him and told his friends and family, who 'basically ruined my life'.

34 TC revealed that he had been seeing a psychologist but said, 'I've been seeing you so it goes against everything'. He also contacted one of Tamsin's friends. When she asked him about that, he suggested a threesome. These kind of messages continued after 28 September 2019, though he was no longer seeing Tamsin, particularly at a time close to her 16th birthday. (All these messages constitute charge 8, transmit indecent communications to a child under 16.)

35 Soon after TC returned from overseas in May 2019, he arranged to meet Tamsin. Between 2 June and 30 September 2019, they met up on a number of occasions, both during the night when her parents were asleep and at other times during the day. Her parents were unaware of any of these meetings. Usually, TC took Tamsin to a local park, beach or other secluded spot in his car. It was on these occasions that he engaged in either oral or penile-vaginal sex.

36 On some of these occasions, he gave Tamsin marijuana or magic mushrooms. On one occasion, he showed her how to find magic mushrooms, picked them and gave her some to consume. At other times, he gave Tamsin marijuana before engaging in sexual activity with her. (Those four occasions constitute charge 5, supplying a child with a drug of dependence.)

37 On the night of 2 June 2019, TC picked Tamsin up on a street near her house and drove to a nearby park. She refused his request to have sex, saying, 'I don't want to have sex in your car'. She then performed oral sex on him. This occurred again on 5 and 13 June in similar circumstances. (Those three occasions make up the remainder of charge 6, sexual penetration of a child under 16.)

38 On 16 June 2019, TC told Tamsin to go to his house as he was there alone. He played the guitar for her when she was in his bedroom. Later TC and Tamsin were both naked on the bed and he penetrated her vagina with his penis for the first time. TC and Tamsin engaged in the same sexual activity at various locations, including the beach and in his car, on a total of five occasions. (Those occasions constitute charge 7, sexual penetration of a child under 16.)

39 Each time TC engaged in penile-vaginal sex he used a condom. Often after the event he would tell Tamsin that he felt guilty and would ask her if it was all right. On 3 September 2019, he deleted his Snapchat account and ended the sexual relationship with Tamsin. Around this time he spoke to her about consulting a psychologist regarding his attraction to young girls.

40 On 18 October 2019, police executed a search warrant and seized TC's mobile phone. They also located some marijuana. (Charge 11 - possession of drug of dependence.) He was arrested and questioned regarding Sienna. On 31 October 2019 he was arrested in relation to allegations of grooming and sexual offending concerning Mary. He was remanded in custody and he has remained there since.

41 Some time in August 2020, Tamsin asked her mother to take her to TC's house. Tamsin delivered an envelope, addressed to TC's father, which contained a letter and a USB with screenshots of messages and naked images that TC had sent her. In the letter, Tamsin disclosed what TC had done to her and asked TC's father for money so she could seek counselling to deal with what had happened. Ultimately, police became involved and their analysis of TC's and Tamsin's phones enabled them to identify dates, times and locations where TC and Tamsin had met up.

42 When interviewed by police on different occasions in respect of his activities with these girls TC made no comment.

43 The offences to which TC pleaded guilty, and the sentences respectively imposed, are set out in the following table:

Sexual penetration of a child under 16[6] [victim Paula - rolled-up charge - 2 occasions]

Sexual penetration of a child under 16[7] [victim Mary - single occasion]

Sexual penetration of a child under 16[8] [victim Mary-single occasion]

Grooming for sexual conduct with a child[9]

Supply drug of dependence to a child[10] [victim Tamsin - rolled-up charge - four occasions]

Sexual penetration of a child under 16[11] [victim Tamsin - rolled up charge - four occasions]

Sexual penetration of a child under 16[12] [victim Tamsin - rolled-up charge - five occasions]

Transmit indecent communication to person under 16 years of age using carriage service[13]

Groom a person under 16 years of age for sexual using a carriage service[14]

Transmit indecent communication to person under 16 years of age using carriage service[15] [rolled-up charge 6 occasions]

Possession of a drug of dependence (cannabis)[16]

Total Effective Sentence 9 years, Non-Parole Period 6 years 6 months

1. Sentenced as a serious sexual offender on charges 3, 4, 5, 6 and 7.

2. Declared as registrable for life pursuant to the Sex Offenders Registration Act 2004.

Preliminary point: the appeal by the Commonwealth Director

44 The written case filed on behalf of TC raised a question about whether the Victorian Director

may properly prosecute an appeal against the sentences on the Commonwealth charges ... in circumstances where the Commonwealth Director of Public Prosecutions has filed a Notice of Appeal but not a Written Case, thereby failing to comply with r 2.15(1)(c) of the Supreme Court (Criminal Procedure) Rules 2017 (Vic).

45 In our view, this point is without substance. As counsel for TC conceded, the Commonwealth Director's appeal was validly initiated by the filing of a notice of appeal. Even if - as is contended - the Commonwealth Director had failed to file a written case, that would have amounted to no more than an irregularity, not affecting the validity of the appeal.

46 The written case filed by the Victorian Director addressed the sentences on both the State and the Commonwealth offences. At the time of filing, we were told, the Victorian Director informed the Court of Appeal Registry that the written case was filed in support of both appeals and that they would both be conducted by counsel for the Victorian Director. Plainly enough, that course of events was conducive to efficiency in the hearing, and to the minimisation of public expense. It also served the interests of TC, by ensuring that he had only one set of submissions (written and oral) to respond to.

47 In the event a revised written case was filed, with supplementary submissions addressing the issue raised by TC. On this occasion, the written case was signed by senior and junior counsel, stating that they were counsel for both Directors. This was done in accordance with s 15(1)(da) of the Director of Public Prosecutions Act 1983 (Cth), which provides for the Commonwealth Director to be represented by a member of staff of the Victorian public prosecutions service, as defined by s 3 of the Public Prosecutions Act 1994 (Vic).

Assessing offence gravity and moral culpability

48 The sentencing judge identified a number of the relevant features of the offending which went to its objective gravity and TC's moral culpability, as follows:

Your use of social media allowed you to befriend and exploit young girls and encourage sexual activity with you. These girls were vulnerable and these offences, occurring via carriage services, were designed to protect them against exposure to sexual conduct beyond their maturity and years.

Your offending has had a significant impact on each of your victims. You have affected their ability to trust others and exposed their vulnerability to exploitation by the use of social media.

You were clearly aware of their respective ages - the gap between you was 10 years;

Your offending occurred over a period between December 2017 - September 2019 - over a year and nine months.

You continued with your offending against [Mary] and [Tamsin] after your activities with [Paula] had been revealed.

In respect of [Mary]: in the course of oral penetration you compelled her to swallow your ejaculate though she had made it clear that she did not want to. She was not aware of your real age.

In respect of [Tamsin]: the sexual penetration of a young girl by an older predator who has 'groomed' her leading up to that act is an offence of utmost seriousness. That is so even where that predator can be said to have lacked maturity, (see Swingler 2017 VSCA 305 [54]). Additionally, you supplied [Tamsin] with drugs leading up to sexual activity between you.

You had received or were in the course of psychological counselling given the issues with [Paula] and you expressed to [Tamsin] your recognition of the wrongfulness of your conduct.

You were persistent and consistent in your offending with [Tamsin] especially after the period when you returned from overseas.[17]

49 Drawing on this section of her Honour's reasons, the written case filed on behalf of the Directors emphasised the seriousness of the offending by drawing attention to its multiple aggravating features, as follows:

(a) age disparity (approximately 10-12 years);

(b) repetition of offending over a protracted period of time (1 year and 9 months) both within offences pertaining to the one victim and between the multiple victims;

(c) premeditation and planning to commit the contact offences;

(d) the opportunity for, and indeed recognition by, TC to consider the wrongfulness of his conduct and then persist in offending;

(e) the attempts made by TC to induce compliance and manipulate the victims into the contact sexual offending;

(f) the motivation of the offending, being TC's own sexual gratification;

(g) TC's efforts to conceal the offending, including paying one victim to ensure she did not complain to police;

(h) with respect to the grooming and transmit indecent communication charges, the volume of messages sent and the graphic content of those messages, including videos of the respondent engaging in sexual acts and naked images of TC.

50 TC did not dispute any aspect of this summary. The only point made in the written case was that some other features often seen in sexual offending against children were absent: specifically, it was said, there was no abuse of an established relationship of power, or use of force or threat, or pregnancy. As this Court has often said, however, it is of little assistance in the assessment of the gravity of offending before the court to refer to other features which might have been, but were not in fact, present.[18]

51 On any view, this was very serious offending. It had all of the features which make online sexual predation so egregious: cynical online grooming of children through social media applications, followed by increasingly sexualised communications and pressure to engage in actual sexual activity. In this case, of course, TC used his manipulative techniques persistently, and repeatedly, over a considerable period of time, and persuaded three separate victims to have sex with him on multiple occasions.

52 As TC well knew, on each of those occasions he was breaching the absolute prohibition on having sex with a child under 16. As this Court said in Clarkson:

The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[19]

53 In the present case, as the judge noted, both Paula and Mary filed victim impact statements. In relation to Paula, the judge said, almost all social, educational, financial and emotional aspects of her life have been affected:

[S]he has been diagnosed with escalating anxiety and depression, PTSD and suffers from regular panic attacks. She has difficulty sleeping but also feels very isolated and unable to trust others. She is particularly vulnerable with her peers and feels betrayed given you were aware of some of her personal issues and that you took advantage of her vulnerabilities.[20]

Similarly, Mary revealed that her emotional well-being and enjoyment of life have been curtailed. She finds it difficult to get close to people and establish trust in relationships. Though no victim impact statement was provided by Tamsin, clearly your offending is likely to have impacted on her social development and capacity to trust others.[21]

55 As we have noted, TC's submissions did not seek to moderate the seriousness of the offending or the impact on the victims. Instead, the focus of the submissions was on TC's moral culpability.

56 What was said to distinguish the present case from other similar cases was TC's expression, during the period of offending, of a wish or hope to desist from what he knew to be wrongful behaviour. Reliance was placed on the fact that he had attended six sessions with a psychologist in the period February to October 2019, and on the statements he made to Tamsin about wanting to change. In light of these matters, it was said, TC should be viewed as 'not entirely uncaring' and as 'not lacking in compunction'. Specifically, he should be regarded as less morally culpable than another offender who engaged in the same conduct with 'callous indifference'.

57 We reject those submissions. First, as senior counsel for the Directors pointed out, the engagement with the psychologist was in no sense a genuine attempt to desist. As was noted in the report of the forensic psychiatrist, Dr Danny Sullivan, TC elected not to disclose to the psychologist any details of his offending conduct, reporting only 'significant sexual preoccupation ... seeking internet pornography for masturbatory stimulation ... frequently engaging in impersonal sexual encounters'.

58 Secondly, as has been seen, TC spoke of wanting to change even as he was communicating with his victims about wanting to have sex with them. Thirdly, his declaration to his friends about being 'serious about change' was made only shortly before he embarked on the most sustained and serious set of offences - against Tamsin.

59 In our view, callous indifference is an apt characterisation of TC's conduct. As he himself acknowledged in notes which he made in April and May 2019, he

did target girls with low self-esteem or who [were] vulnerable ... I gained their trust by giving them affection, using my professional position as power over them, and by sending pictures ... By doing these things I was able to use my power over the child to make them do what I wanted.

And he subsequently told his treating psychologist, Ms Pamela Matthews, that it was 'a power differential I liked' and, in relation to Paula, 'I knew I was taking advantage of her'.

60 Also relevant to TC's moral culpability was his emotional manipulation and pressuring of his victims. As noted earlier, when Mary refused to provide naked images of herself as TC had requested, he manipulated and pressured her by saying things like, 'You're making me sad', and, 'It's not fair'. Again, after he insisted repeatedly that they should meet, Mary 'felt pressured and eventually agreed to meet him'. The starkest example of pressure, of course, is the conduct the subject of charge 3 where - in the face of Mary's obvious reluctance - he forced her to perform oral sex on him.

61 Again, TC's culpability was heightened by his repetition of offending against each of the girls. This was particularly so in the case of Tamsin. The acts of oral penetration which were 'rolled up' in charge 6 began on 30 March 2019 and then continued on 2, 5 and 13 June 2019. The acts of vaginal penetration which were 'rolled-up' in charge 7 began on 16 June 2019, continuing on 23 and 28 June and 10 July, and concluding on one further occasion between June and September 2019. We will return to the need for the sentences imposed for these rolled-up charges to reflect the criminality involved in the multiple separate occasions.

62 In relation to the repeated offending, the submission for the Directors relied on what was said by this Court in Director of Public Prosecutions v Polat (a pseudonym),[22] as follows:

In our view, there is much force in the Director's submission that when there is repeated offending against the same victim over a lengthy period of time - whether this is characterised as persistent or recurrent offending - the later offences can be viewed as becoming progressively more serious. We are not here relying on the DDJ analysis but on a more general - and uncontroversial - proposition, namely, that an offender who reoffends after an interval of time is more culpable on that occasion by virtue of the fact that he has had the opportunity, during the intervening period, to reflect on his conduct. To decide, as [the offender] did, to resume the sexual abuse of a child, which he knew to be wrong, was conduct calling for stronger denunciation and heavier punishment on each successive occasion.[23]

63 For all these reasons, in our view, TC's moral culpability for this offending had to be viewed as very high indeed. As his counsel properly conceded, TC is a person of high intelligence, who has had the benefit of exceptional educational opportunity and is to be viewed as somebody who had the ability to exercise control over his own actions and impulses. He is therefore to be held fully accountable for the decisions which he made - to continue offending, both against individual victims and against subsequent victims, and to refrain from taking steps which he knew were readily available to him to enable him to desist.

64 Charges 9 and 10 involved the undercover operative 'Sienna'. No question of victim impact arises, of course, but the offending conduct - grooming a person under 16 years of age for sexual activity using a carriage service and transmission of indecent communications to a person under 16 years - had also to be viewed very seriously. The absence of an actual victim did not affect either the objective gravity of the conduct or TC's moral culpability. As this Court said in Meadows v The Queen,[24] the repeated sexualised messages which TC sent to the undercover operative exemplify the very kind of predatory conduct which these provisions were enacted to prevent. The Court said:

[T]he explicitness of the language he used in his communications did make the grooming offence more serious. It may be accepted that the building of trust is very often a necessary part of the grooming process. Equally often, however, the objective of procuring the victim's participation in sexual activity is advanced by the use of explicit images and/or language. This is evidently done in order to introduce the victim to what the offender has in mind and to test whether the images or description provoke any adverse reaction.[25]

65 The submissions on behalf of TC drew attention to the fact that, following arrest and charge, TC did not apply for bail but 'instead applied himself to productive, pro-social activities while on remand, including teaching other prisoners music, leading the choir and even tutoring one prisoner who was undertaking online tertiary studies'. Particular emphasis was placed on the fact that, in the period July 2020 to January 2021, he had had 17 sessions with his treating psychologist, Ms Matthews, for assessment and treatment.

[TC] has been very frank about his offending and has not sought to minimise or deny, although minimisation and denial were fundamental to his index offences. [TC] admits his attitudes towards the [complainants] and some other women have been unacceptable and harmful and that these attitudes enabled his offending. He currently evidences responsibility-taking for those attitudes and has worked on those attitudes in treatment. [TC] lacked self-awareness during his offending; he has worked hard during treatment on being more self-aware. [TC] presents not so much with difficulties coping with stress, but rather managing the transition to adulthood, including defining his identity, defining his sexuality, developing financial independence and separation from the parental home, and facing a disparity between his career dreams and the actualities of his career then. He has, however, made the transition to custody with good spirits and acceptance. In some respect, the custodial environment has given him the independence and differentiation he sought.

67 Ms Matthews dealt specifically with the risk of re-offending, as follows:

Given [TC] continued his offending despite being exposed in early 2019 and supports being provided, it is the writer's view his risk of re-offending at the time of his arrest was high. The overall base rate for this form of offending (child sex offending) is reported at 12.7 per cent over 5.8 years. Overall the literature suggests that treatment reduces recidivism, the reduction varying between programs. Treatment effects of up to 37 per cent reduction of recidivism are quoted for cognitive behavioural treatment programs. Hence [TC's] recent engagement in offence specific treatment and his future engagement in offence specific treatment are likely to reduce his re-offending risk. Despite a poor start to treatment with [the previous psychologist] in 2019, [TC] has engaged well in therapy with the writer. The writer has encouraged [TC] to re-engage in offence specific treatment programs before his eventual release from custody.

68 The defence also relied on the report of Dr Sullivan, who assessed TC in May 2020. Dr Sullivan's assessment was in these terms:

[TC] has problematic sexual interests. These appear to have arisen in recent years and were not clearly present in his teens, although he notes a significant preoccupation with pornography. Over recent years his level of sexual preoccupation has increased and with it, increasing focus on teenaged girls as a target of sexual desire. This has been accompanied by fantasies associated with incest and by efforts to obtain and view images and to engage in sexual activity with teenaged girls below the age of consent. His pursuit of sex with underage girls appears to have been associated with impaired empathy for the victims, rather than a focus on building emotional relationships.

69 Dr Sullivan also expressed a positive view about the likely benefits of treatment:

Treatment of his problematic sexual interests will involve a group sexual offender program. His early efforts at engagement prior to being charged were likely hampered by ambivalence and the threat of discovery. The described offences suggest that [TC's] emotional engagement with the girls was superficial and instrumentally intended to obtain sex rather than to develop an intimate emotional relationship. However [TC] is psychologically-minded and capable of critical introspection. I am optimistic that he will benefit from a treatment program.

As to your rehabilitation prospects, I regard them as good as long as you continue to progress in therapy with Ms Matthews and also engage successfully in sexual offender treatment program. There are other features that augur well for your rehabilitation including your positive engagement in the prison community and continued family support.[26]

71 This was said by counsel for TC to be 'a significant and positive finding about his future'. Counsel pointed out, correctly, that TC's good prospects of rehabilitation - subject to his continuing with treatment - meant that less weight needed to be attached in the sentencing synthesis to protection of the community.

72 With great respect to the sentencing judge, we have concluded that the individual sentences which are challenged, and the orders for cumulation, are manifestly inadequate. As the Directors submitted, the sentences were wholly inadequate to reflect either the objective gravity of the offending or TC's very high moral culpability.

73 We deal first with the offending against Paula and against Tamsin. In both cases, the penetrative offences to which TC pleaded guilty were rolled-up charges. In the case of Paula, charge 1 comprised two quite separate occasions of penile-vaginal penetration, one in December 2017, the other between January and April 2018. In the case of Tamsin, as mentioned earlier, charge 6 involved four separate instances of oral penetration over a period of three months, and charge 7 involved five separate occasions of penile-vaginal penetration over a period of two or three months.

74 As this Court said in R v Jones,[27] a rolled-up count 'is entirely different from a representative count'. A rolled-up count is a collection of counts bundled together into a single count. It is a procedure which is to the advantage of the defence, as there would otherwise be separate charges, but it can only occur by agreement with the defence and only for the purpose of a plea of guilty.[28] Whereas in a representative charge, the court sentences only for a single offence, the sentence on a rolled-up charge must take into account all of the individual offences it comprises.

75 It is clear from this Court's authorities that a significantly higher sentence is justified on a rolled-up charge than would be the case for a single offence. Thus, in R v Samia,[29] Nettle JA (with whom Dodds-Streeton JA agreed) said:

Of course the sentence to be imposed on a rolled-up count is not invariably the sum of the individual sentences which would have been imposed if the rolled-up offences had been presented as individual counts. But whereas here there are only two offences rolled-up and the rolled-up count stands to be considered among a number of other individual counts relating to similar offences, a penalty of twice as much for the rolled-up count is not necessarily incorrect.[30]

76 The maximum penalty for sexual penetration of a child under 16 is 15 years' imprisonment. It can readily be seen, therefore, that the sentences imposed on the rolled-up sexual penetration charges were manifestly inadequate. That is, it was not reasonably open to the judge to conclude that TC would be adequately punished:

• by a sentence of 4 years' imprisonment for five separate occasions of penile-vaginal penetration (charge 7);
• by a sentence of 3 years' imprisonment for four separate occasions of oral penetration (charge 6); or
• by a sentence of 3 years' imprisonment for two separate occasions of penile-vaginal penetration (charge 1).

Nor, with respect, was the absence of cumulation of the sentences on the other charges involving Tamsin (charges 4, 5, 6 and 8) reasonably open in the circumstances. Each of those offences involved separate criminality.

77 In relation to Mary, TC pleaded guilty to two individual charges of sexual penetration, each involving a single occasion. The first occasion involved TC pressuring the victim into having sex, persisting in spite of her clear indication that she wanted to go home. The second occasion was the forced oral penetration and forced swallowing. In our view, the sentences of 2 years and 3 years' imprisonment respectively were insufficient to adequately reflect the gravity of the offending or TC's culpability.

78 Finally, as to the grooming offences, the sentences of 4 months' imprisonment (in relation to Tamsin) and 6 months' imprisonment (in relation to the undercover operative) were also manifestly inadequate. The same is true of the offences of transmitting indecent communications: the sentences of 2 months' imprisonment (on a maximum of 7 years) fell well below what was required, having regard to both the nature and the number of the indecent communications.

79 As noted at the outset, it was submitted for TC that, if the Court concluded that sentences were manifestly inadequate, the appeal should nevertheless be dismissed in the exercise of the residual discretion. Reliance was placed on what were said to be 'serious breaches of prosecutorial obligations'. There were several strands to this submission, and we deal with them in turn.

80 First, it was said, there were multiple errors in the 'Amended Summary of Prosecution Opening'. As the submission for the Directors acknowledged, the opening did contain a number of errors, involving the misnumbering of some of the charges and - in two instances - the erroneous inclusion as part of a rolled-up charge of sexual acts which did not form part of the negotiated settlement for that charge. But this point is without substance, in our view. Of course, every effort should be made to ensure that a prosecution opening is accurate in every respect. Given, however, the number, variety and duration of the offending acts, and the number of different victims involved, it is not surprising that the opening had some deficiencies.

81 The real answer to this complaint, of course, is that the opening was an agreed document. The written submission filed on behalf of TC, signed by both senior and junior counsel, contained the following statement, 'The comprehensive prosecution plea summary is agreed'. As this Court has often said, the prosecution plea summary is invariably treated as an agreed statement of facts.[31] The sentencing court proceeds on the understanding - often implicit, sometimes explicit - that the summary is only placed before the court following agreement by the defence.

82 The responsibility for ensuring the accuracy of a prosecution summary is therefore a joint one. In this case, as counsel for the Directors pointed out, the opening was read out in full in court. Had TC's counsel had concerns about any inaccuracies, then they would obviously have drawn those to the attention of the sentencing judge. No such objection was made.

83 The second point relied on was the prosecutor's misstatement of the maximum penalty for the Commonwealth charges (charges 8, 9 and 10). The maximum penalty for grooming a person under 16 using a carriage service was said to be 15 years' imprisonment, when it was in fact 12 years. The maximum for transmitting an indecent communication to a person under 16 was said to be 10 years' imprisonment, when it was in fact 7 years.

84 It is a core obligation of a prosecutor to ensure that the sentencing judge is advised of the correct maximum penalties. Equally, defence counsel should always be astute to ensure that the information is correct. In the present case, the error was immaterial, as the overstatement of the maximum penalty applicable to those charges could hardly have led to the imposition of manifestly inadequate sentences.

85 Thirdly, the prosecutor failed to inform the sentencing judge that the sexual penetration offences the subject of charges 2, 3, 6 and 7 were 'standard sentence offences'.[32] As a result, her Honour was not informed that there was a 'standard sentence' of 6 years' imprisonment applicable to each of those offences.

86 This was, in our view, a serious omission. The complexity of the sentencing task makes it imperative that prosecutors are fully informed, and fully inform the sentencing judge, of any statutory provision which applies to the offence(s) before the court. The standard sentence scheme has been in force now for some years and it should be routine for a prosecutor to check whether the case at hand involves any 'standard sentence offences'.

87 This is not, however, a matter which enlivens the residual discretion. It is simply not possible to say that the absence of reference to the standard sentence led the judge to impose inadequate sentences. In the first place, reference to the standard sentence would have been of no assistance to the judge in dealing with the rolled-up charges 6 and 7. Secondly, as this Court recently held in McPherson v The Queen,[33] the standard sentence is an 'intangible concept and judges ought be wary of affording it too much weight in the sentencing exercise'.[34] Moreover, as the Court there noted, the offence of sexual penetration covers a wide range of sexual misconduct, which makes the notional 'mid-range' case very difficult to identify.[35]

88 For these reasons, the appeals by the respective Directors will be allowed, the sentences imposed on the relevant charges set aside, and TC resentenced.

89 In resentencing TC, we take into account that, since his arrest and incarceration, he has taken commendable and constructive steps to reform and to address the factors which motivated his serious offending. The reform and rehabilitation of TC are important in order to ensure, so far as possible, that he not reoffend when he is ultimately released. It is important that the sentence imposed on TC be somewhat moderated in order not to crush his motivation in that regard. If not for that consideration, the sentences which we would impose, on resentencing TC, would be more substantial.

Sexual penetration of a child under 16[36] [victim Paula - rolled-up charge - 2 occasions]

Sexual penetration of a child under 16[37] [victim Mary - single occasion]

Sexual penetration of a child under 16[38] [victim Mary - single occasion]

Grooming for sexual conduct with a child under the age of 16[39]

Supply drug of dependence to child[40] [victim Tamsin - rolled-up charge - four occasions]

Sexual penetration of a child under 16[41] [victim Tamsin - rolled-up charge - four occasions]

Sexual penetration of a child under 16[42] [victim Tamsin - rolled-up charge - five occasions]

Transmit indecent communication to person under 16 years of age using carriage service[43]

Groom a person under 16 years of age for sexual using a carriage service[44]

Transmit indecent communication to person under 16 years of age using carriage service[45] [rolled-up charge 6 occasions]

Possession of a drug of dependence (cannabis)[46]

Total Effective Sentence 13 years, Non-Parole Period 10 years

All other ancillary orders made by the County Court confirmed.

[1] See, eg, DPP v Meharry [2017] VSCA 387.

[2] The use of initials for the respondent is for ease of reference only.

[3] Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157 ('Clarkson').

[4] [2017] VSCA 204, [5] (citations omitted); cf DPP v Holder (a pseudonym) [2014] VSCA 61; (2014) 41 VR 467, 469 [7] (Maxwell P, Neave and Redlich JJA); [2014] VSCA 61.

[5] All names used in these reasons, apart from the name of the respondent, are pseudonyms in order to avoid identification of the victims.

[6] Contrary to s 49B(1) Crimes Act 1958 ('Crimes Act') as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[7] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[8] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[9] Contrary to s 49M(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[10] Contrary to s 71B(1)(b) Drugs, Poisons and Controlled Substances Act 1981.

[11] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[12] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[13] Contrary to s 474.27A(1) Criminal Code Act 1995 (Cth) ('Criminal Code (Cth)').

[14] Contrary to s 474.27(1) Criminal Code (Cth_)_.

[15] Contrary to s 474.27A(1) Criminal Code (Cth).

[16] Contrary to s 73(1) Drugs, Poisons and Controlled Substances Act 1981.

[17] DPP v Conos [2021] VCC 156, [49]-[57] ('Reasons').

[18] See, eg, Brown v The Queen [2021] VSCA 204, [28] (Maxwell P and Sifris JA).

[19] [2011] VSCA 157; (2011) 32 VR 361, 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

[22] [2020] VSCA 174.

[23] Ibid [24] (citations omitted). The reference to DDJ is to DPP v DDJ (2009) 22 VR 444; [2009] VSCA 115.

[24] [2017] VSCA 290.

[25] Ibid [42]-[45] (Ferguson CJ and Maxwell P).

[27] [2004] VSCA 68, [13] (Charles JA, with Phillips JA and Bongiorno AJA agreeing).

[29] [2009] VSCA 5.

[31] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 543 [41] (Maxwell P, Redlich JA and Robson AJA); [2009] VSCA 114; R v LFJ [2009] VSCA 134, [3] (Maxwell P and Kellam JA); DPP v Walsh (a pseudonym) [2018] VSCA 172, [71]-[72] (Maxwell P and McLeish JA).

[32] Sentencing Act 1991 ss 5A, 5B.

[33] [2021] VSCA 53.

[34] Ibid [31] (Priest and T Forrest JJA).

[36] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[37] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[38] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[39] Contrary to s 49M(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[40] Contrary to s 71B(1)(b) Drugs, Poisons and Controlled Substances Act 1981.

[41] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[42] Contrary to s 49B(1) Crimes Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[43] Contrary to s 474.27A(1) Criminal Code (Cth).

[44] Contrary to s 474.27(1) Criminal Code (Cth).

[45] Contrary to s 474.27A(1) Criminal Code (Cth).

[46] Contrary to s 73(1) Drugs, Poisons and Controlled Substances Act 1981.