DPP v D D J [2009] VSCA 115

Mr S Ward, Acting Solicitor for Public Prosecutions

1 On 26 February 2008, the respondent ('DDJ') pleaded guilty in the County Court to one count of maintaining a sexual relationship with a child under 16[1] and one count of producing child pornography. On 7 March 2008, he was sentenced to five years' imprisonment on the first count and two years' imprisonment on the second, with a direction that eight months of the sentence on count 2 be served cumulatively on the sentence on count 1. The total effective sentence was therefore five years and eight months. A non-parole period of three years was fixed.

2 The Director of Public Prosecutions has appealed pursuant to s 567A of the Crimes Act 1958 (Vic) on the ground that the individual sentences, the order for cumulation, the total effective sentence and the non-parole period are each manifestly inadequate. The maximum penalty for the offence of maintaining a sexual relationship with a child under 16 is 25 years' imprisonment. The maximum penalty for producing child pornography is 10 years' imprisonment.

3 For reasons which follow, we would allow the appeal and resentence DDJ as follows: on count 1, seven years' imprisonment; and on count 2, three years' imprisonment. In accordance with s 6E of the Sentencing Act 1991 (Vic),[2] we will direct that two years of the sentence imposed on count 2 be served concurrently with the sentence imposed on count 1. The total effective sentence is therefore eight years. We would fix a non-parole period of five and a half years. The sentence has been reduced to take account of DDJ's exposure to double jeopardy by reason of the Crown's appeal against his sentence.

4 During the months April - August 2002, DDJ had a sexual relationship with a 14 year old girl ('C'). As will appear, he engaged in almost continuous sexual abuse of her throughout that five month period. At one point, he made a pornographic video of her, containing a variety of degrading and humiliating images. DDJ was 32 years old at the time of the offending. He is now 39. The following description of the circumstances of the offending is taken from the prosecution opening on the plea.

5 C had a disrupted childhood. The relationship between her parents ended when she was one year old. When she was three, her mother commenced a relationship with another man. When she was eight, her mother was unable to cope and began abusing her. C moved in with her grandparents, but returned to live with her mother 10 months later.

6 When C was 12, she was riding on the back of a motor bike driven by her natural father when there was an accident. Her father died as a result of his injuries. C suffered only minor injuries. At 13, she ran away from home. She lived with a friend for a couple of months. Eventually, she was located by her mother, who asked DDJ's sister ('L') to look after C. C lived with L and her children for several weeks and then moved from place to place for the next year. At different times she lived with her grandparents and with friends.

7 At the time of the offending, DDJ had been in a relationship with a woman ('P') for about 14 years. They had had a child. DDJ already had five children from a previous relationship. At the age of 14, C moved in with DDJ and P at their home. As L and her partner were trying to come off drugs, L's children also moved in with DDJ and P, but only stayed for a couple of weeks.

8 DDJ and P asked C if she would like to stay on with them. She agreed, as her only other option was to move to Darwin to stay with an aunt. P became pregnant while C was staying with them.

9 DDJ commenced having sex with C within a month of her moving into his home. On the first occasion, C went outside with DDJ for a cigarette. DDJ took C to an area near the back shed. He told C to perform oral sex on him and ejaculated in her mouth. Thereafter, some form of sexual contact occurred nearly every day.

10 There was kissing, penile penetration, oral sex and masturbation. It occurred all over the house and in the shed. DDJ would lock the shed door. P saw that he was spending extended time with C. When P raised this with DDJ, he falsely stated that it was necessary in order to help C with her problems.

11 On occasions, DDJ would make excuses to go to the shop or to work and would take C with him. They would have sex in the car. They would go to motels in the area and, when they did, DDJ would give C alcohol.

12 DDJ took a pornographic video of C, filmed over three different days. As described in the Crown summary, the video depicted:

• C undressing from school dress;
• C masturbating in various positions at DDJ's instructions;
• penile and oral sex;
• C being penetrated in various positions by DDJ;
• close up shots of C's vagina with what appears to be semen around the opening of her vagina. DDJ then directs C to taste the semen;
• C lying naked on the bed with what appears to be semen on her stomach. DDJ instructs her to rub it into her skin;
• C naked on the bed drinking a bottle of vodka. DDJ then inserts an empty bottle of vodka into C's vagina;
• DDJ inserting the unlit end of a lit cigarette into C's vagina;
• C in the shower. DDJ directs her to urinate. She does so. C is then filmed showering;
• C in the bath shaving her legs. DDJ directs her to insert the shaver into her vagina.

In her subsequent statement to police, C said 'I didn't enjoy doing the things with [him] but in a sick way it made me feel wanted.' After a number of months, P became suspicious about what was occurring. P told DDJ that unless C left, she would leave herself. C then moved out and lived with a friend.

13 In late 2006, C saw DDJ by chance. She asked him for the video. DDJ told her that they ought to recommence what they had been doing previously. He said she was now old enough and they would not get into trouble. C tried for about three weeks to get the video from DDJ. On the last of these occasions, DDJ told her that P had found the video. DDJ then asked C if she could lie and say she was 18.

14 On 26 June 1989 in the County Court, DDJ had been sentenced to two years' imprisonment on a charge of indecent assault with aggravating circumstances. The sentence of imprisonment on the present count 1 had the effect that, for the purposes of sentencing on count 2, DDJ was to be treated as a serious sexual offender.[3] Accordingly, the sentence imposed on count 2 had to be served cumulatively on the sentence imposed on count 1, unless otherwise directed by the court.[4]

15 In her victim impact statement, C described the effect on her of the offending:

Having the police turn up at my door and the fact of the disgusting secret I had kept secret until that day, has changed my life forever. Every day since [DDJ] did what he did to me, I have felt dirty, worthless, ashamed, violated and scared which had led me to become drug addicted in the attempt to somehow erase what [DDJ] has taken away from me. He has taken my childhood, my ability to trust people, men especially, my self worth, my confidence and my ability to have a loving or trusting relationship with anyone, especially men. I do not have the confidence to get a job and to this day I cannot be in a room alone with older men especially, without fear of what they want from me. If I find myself in this situation, I get extremely nervous, I cannot even look at them, my voice starts to falter and I start to sweat profusely. ... I fell pregnant at 15 years old and thought the only way a guy would like me and the only way to make them happy was to have sex with them, as that is what I had been shown.

It is only now as I am older and that I have children myself that the full impact of how I was used and violated has sunken in. I trusted this man as he was my father's ... mate since school. ... [H]e knew me as a little girl. ... He chose to betray that by feeding me ... alcohol for his own sick needs and I have to live with that every day for the rest of my life.

16 The sentencing judge viewed the offending very seriously. She said she had formed the impression that DDJ

treated the complainant as a sexual plaything, readily available to [him] to perform as instructed, depraved and degrading sexual acts, a view reinforced by the circumstances associated with the second count on the presentment, producing child pornography.

...

The video record provides a graphic record of the extent to which [DDJ] debauched and degraded a young girl who, because of her particularly troubled background, was vulnerable, and instead of being protected and cared for an adult many years her senior, she was grossly exploited by [him] ...[5]

17 Her Honour identified the following as aggravating features of the offending:

(a) the gross breach of trust after DDJ took the half-sister of one of his nieces into his home;

(b) the period of five months over which the offending occurred;

(d) C's vulnerability because of her unstable background and housing;

(e) the evidence of DDJ's planning and manipulation of both C and P to ensure uninterrupted sexual access to C;

(f) the repeated exploitation of C in the making of the pornographic video, and the corruption and depravity involved in his having instructed her to use as sex aids items such as a bottle, a lit cigarette and a shaver;

(g) the use of alcohol to disinhibit C.[6]

18 The Director's submission also drew attention to the following matters:

• the opportunistic attempt by DDJ in late 2006, after C asked him for the video, to resume the sexual relationship with C on the basis that he could no longer get into trouble because she was 18;
• DDJ's attempt to manipulate C once again on that occasion, by asking her to lie and say that she was 18. (The judge assumed, as would we, that this lie was intended to refer to the age of C at the time when the video was made); and
• DDJ's relevant prior conviction, in 1989, for indecent assault with aggravating circumstances, for which he received a sentence of two years' imprisonment.

19 Referring to the victim impact statement, her Honour said:

It has long been recognised by courts that child victims of sexual abuse, particularly where they know and trust the abuser, may not expose the offending for a long time because of factors such as unjustified feelings of guilt and shame induced by the abuser's behaviour.

By reason of your cynical sexual exploitation of the complainant, who was already damaged by an unsettled and difficult childhood, it is hardly surprising that she reports feelings of betrayal, self-disgust and worthlessness, and an on-going inability to establish loving or trusting relationships with, particularly, men. Now hopefully the complainant will receive appropriate treatment and support to assist her in establishing trust in her relationships, and a better life for herself and her children in the future.[7]

Individually, the counts constitute serious offending. Indeed, the higher maximum penalty for the maintaining a sexual relationship offence serves to reinforce the value the community places on the protection of children from the sexual predations of adults, particularly those in whose care children are placed.

As I have already noted, during the producing of the pornographic video over a period of time, you violated and corrupted a child. In these circumstances both sentences must emphasise denunciation of your conduct and act to deter like-minded individuals from sexual exploitation and violation of children. It is also important that the sentence on Count 2 deter the production and keeping of pornographic images of a child.[8]

21 On the plea, defence counsel said that DDJ accepted 'total responsibility' for the offending. 'It was completely and totally unacceptable and he accepts that'.

22 Counsel relied on reports from two psychologists. The first, Dr Sasha Gardiner-Crossley, had begun treating DDJ in October 2007, on referral from his general practitioner. Dr Gardiner-Crossley described DDJ's conscientious attendance and growing preparedness to take responsibility for his actions. According to her report, DDJ had come

to understand that he had a responsibility to protect [C], being the adult in their relationship. He has consistently claimed to believe that [C] was "about 16" when they were having a sexual relationship, describing a friendship with her that lasted approximately five years after their sexual relationship ended. Initially shocked to hear that he had harmed [C], he now acknowledges the likely harm to [C].

With his own daughter now 15 years old, he is saddened to think he could have made such an error in judgment. He has had to process angry feelings towards himself having caused [C] and his family such prolonged and extensive suffering ...

[DDJ] has repeatedly demonstrated ... a commitment to overcome his impulse control problems. Over the course of four months, the tone and content of [DDJ's] verbal output has been decreasingly angry and self-focused, increasingly sad, reflective, and other-focused.

23 Dr Gardiner-Crossley quoted the following passage from an open letter written by DDJ to his victim in February 2008, which was also relied on by his counsel on the plea:

To [C], I'm sorry for any embarrassment or pain that our relationship has caused you. I realize now that the love you were looking for was not of a sexual nature and that you were reaching out for someone to love you in a different way. You were looking for someone to give you guidance and stability and I am sorry that I wasn't mature enough to realise that and give you those things at a time when you needed it.

[S]ix years on, [DDJ] has developed a mature attitude toward women and his role as a parent. He has positive relationships with all his children and maintains regular contact with them alongside his family life with wife [T] and her son.

In my opinion, it is vastly unlikely that [DDJ] will repeat a similar offence. I do not believe him to be a threat to any of his children, nor children in general. He has a satisfying and monogamous relationship with wife [T], with whom he plans to continue a successful plastering business ...

[DDJ] fully understands that he must recompense for his actions towards [C]. His acceptance of this together with his devotion toward his children suggests a degree of rehabilitation even prior to incarceration, a maturity [DDJ] himself says he lacked six years ago.

24 The second report was prepared by Ms Pamela Mathews, a forensic psychologist. On the basis of a personality assessment and DDJ's clinical history, Ms Mathews expressed the view that he suffered from features of borderline personality disorder. In her view, the use of the bottle, razor and cigarette, and the filming of the sexual activity, suggested 'moderate levels of non-paraphiliac sexual deviation'. In her view, his attitudes to women were improving and he was developing 'remorse, empathy and responsibility'. According to Ms Mathews, his risk of re-offending

on overall risk factors is low and less than chance over a seven year period. However this represents his second sex offence, and he evidences boundary issues in relation to sex and sexuality.

25 In relation to the letter of apology, the sentencing judge said it demonstrated that DDJ had 'probably ... developed some level of insight into [his] offending'. At the same time, her Honour said, she was

not confident that your level of victim empathy and insight into your offending goes beyond your concern about what has happened in your own life, and the lives of those associated with you.[9]

Her Honour also took into account DDJ's early plea of guilty, which she regarded as

a further indicator of a level of remorse, despite the concern I have already expressed about the extent to which you currently understand the predicament in which you placed the complainant.[10]

26 In our view, her Honour's assessment was correct. Although DDJ had shown a 'level of remorse,' her Honour was rightly cautious about whether he had really appreciated the significance of the damage he had caused to C. That there was some continuing cognitive distortion on his part was, we think, illustrated by the February 2008 letter of apology, written more than five years after the offending stopped. DDJ wrote to C that he had only now come to the realisation that 'the love you were looking for was not of a sexual nature'. He evidently viewed the months of sexual abuse as a sincere attempt - albeit misguided - to give C 'the love you were looking for'. In the same vein, he persisted in referring to 'our relationship'. DDJ appears not to have recognised that he was abusing C for his own gratification, and for no other reason.

27 In relation to rehabilitation, the judge accepted that DDJ had

taken significant steps towards rehabilitation by demonstrating to others improved attitudes toward women, by your expressions of remorse and empathy and by accepting responsibility for your offending. This, and the fact that you have maintained a treatment regime with Dr Gardiner-Crossley, are positive signs, although until you have participated, as you say you will, in a sex offender treatment program, I think it too early to say with any confidence that the risk of sexual re-offending has been fully contained.[11]

28 Her Honour noted that, upon being sentenced to a term of imprisonment on the first of the two sexual offence counts, DDJ was thereafter - because of his prior conviction - to be sentenced as a serious sexual offender, in accordance with Part 2A of the Sentencing Act 1991 (Vic). By reason of s 6D(a), her Honour was required to regard the protection of the community from DDJ as the principal purpose for which she imposed sentence. Her Honour then said:

[B]ased on particularly the assessment of the forensic psychologist, I am satisfied that the danger to children from you in the future is probably low.

29 The submissions on behalf of the Director contended that, in making this finding, the sentencing judge

failed to give proper regard to the protection of the community as the principal purpose of sentencing a serious sexual offender.

This criticism is misconceived. What sentence will be required in order to protect the community against a serious sexual offender will always depend upon the court's assessment of the risk which the offender presents. Her Honour did exactly what was required in assessing whether and to what extent DDJ was a continuing risk. The correctness of her assessment was not challenged on the appeal.

30 The Director's submissions focused on the sentence imposed on the count of maintaining a sexual relationship. In essence, the submission was that the sentence of five years imposed by the judge on that count did not reflect what her Honour had said about the seriousness of the offending and its aggravating features.[12] Senior counsel for the Director contrasted the sentence of five years with the maximum penalty of 25 years. He described the sentence as 'way out of step'.

31 Senior counsel for the Director argued that the degree of culpability for this offence was a function both of the length of time for which the sexual relationship persisted, and of the nature of the relationship created. The culpability of DDJ was high, it was argued, because DDJ had sexual relations with C on an almost daily basis over a five-month period. This was, as a result, a 'very serious example' of the offence. As will appear, we agree with this characterisation.

32 As Neave JA pointed out in the hearing, it is the persistence of the sexual relationship over time which is at the heart of the offence. The repetition of the sexual abuse is likely to heighten the victim's fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened. On the other hand, it would be quite wrong to conclude that the offender's culpability varies in direct proportion to the length of the relationship. Other factors may be of greater significance, such as the nature of the pre-existing relationship between offender and victim, and the nature and intensity of the sexual abuse which takes place.

33 So far as the child pornography count was concerned, the Director submitted that the description of its content[13] 'speaks for itself'. On any view, that description bears eloquent testimony to the degradation to which DDJ subjected C in the course of filming over three days. Senior counsel for DDJ conceded that - other things being equal - the more degrading the images created, the more serious the offence. Once again, we agree with the Director's description of this as 'a very bad example' of the offence. The Director's complaint was that the sentence of two years 'failed adequately to reflect the degradation and humiliation of [C] which was involved in the production of the child pornography.'

34 The submission for DDJ was that the sentences imposed were all within the sentencing range reasonably open to the sentencing judge. Particular emphasis was placed on the early plea of guilty, which 'spared C the anxiety and upset of giving evidence'. DDJ was therefore entitled to a substantial discount in sentence, which must be 'real and not illusory'. Senior counsel also relied on DDJ's remorse. He had 'expressed his sorrow for his selfishness and the pain and harm that he had caused' to C. There was also a 'sound evidentiary foundation' for the proposition that, in the years since the offending, DDJ had married and settled down and formed a committed relationship with his wife. The reports from the psychologists, together with the character references submitted on his behalf, demonstrated that he had developed a maturity which he had lacked at the time of the offending.

35 According to the written submission for DDJ, the sentence should not be interfered with because the sentencing judge had

imposed a sentence which was not only sensitive to the particular needs of [DDJ], but which also gave proper weight to the relevant sentencing principles. In this regard, it was open to the learned sentencing judge to give reduced weight to the sentencing principle or objective of specific deterrence.

36 As this Court has stated repeatedly, sexual offending against children is a matter of the utmost seriousness.[14] The maximum penalty of 25 years for the offence of maintaining a sexual relationship with a child under the age of 16 reflects the gravity with which the community views sexual crimes against children.[15]

37 In 1992, Crockett J said in relation to sentencing for sexual abuse of a child:

The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes had been committed and be seen to be anything but infrequent occurrences. The courts, and particularly this court, I consider bound to respond to the legitimate community concerns with the response placing emphasis on the need, in particular, to have sentences that give effect to specific and general deterrence.[16]

38 In 1993, Marks J in R v Sposito[17] said:

A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care is degenerate. The offence of incest is particularly erosive of human relations and casts doubts upon the assumption that parents are the natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.

39 Subsequently, in R v Wakime,[18] Winneke P referred to 'the tide of community anger and resentment towards crimes which involve the despoliation of children.'[19] Then in R v WEF[20] his Honour said:

This Court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.

In DPP v VH,[21] Callaway JA (with whom Buchanan and Eames JJA agreed) said that 'the sexual abuse of children by persons in a position of trust is intolerable.'

40 In this appeal, the Director relied on what Vincent JA said in DPP v Toomey ('Toomey').[22] The case concerned sexual offences against a number of young boys. After referring to the remarks of Marks J in Sposito (set out above), his Honour said:

In the present context, there should be no doubt in the mind of any reasonable person that conduct of the kind with which we are here concerned will be regarded as extremely serious, not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally. I need only refer to the changes which have been made to the law and the structures that have been put in place to reduce the risks to children to make this point. The exposure over recent years of the extent of the incidence of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them.

The second comment that I wish to make addresses a different aspect. On occasions, when imposing sentence I have made mention of the notion of social rehabilitation. In DPP v DJK,[23] for example, I remarked:

"This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation."

It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[24]

41 What was said in Toomey applies with equal force to the present case. The victim impact statement clearly sets out the long-lasting effect which the abuse has had upon C.

42 As was pointed out in R v MacNeil-Brown,[25] the submission on a Director's appeal that a sentence is 'manifestly inadequate' is a submission that the sentence imposed falls outside the range reasonably open to the sentencing judge in the exercise of the sentencing discretion. At the request of the Court, counsel for the Director provided a written submission identifying the sentencing range which - according to the Director - was available to the sentencing judge in sentencing DDJ for these offences. We have found it of considerable assistance to have had this clear identification by the Director of the applicable sentencing range, accompanied as it was by the detailed sentencing information (statistics and authorities) on which the range was based.

43 The sentencing range identified by the Director is set out in the table below. As the submission made clear, these figures have not been adjusted to allow for the reduction which would be applied on account of double jeopardy were this Court to allow the appeal and resentence DDJ.

CROWN SUBMISSION RE APPLICABLE SENTENCING RANGE

Count 1 - Maintaining a sexual relationship with a child under 16

44 As noted in the Director's submission on range, the Sentencing Advisory Council's Sentencing Snapshot No 25 describes sentencing outcomes over the five year period 2001-2 to 2005-6 for the offence of maintaining a sexual relationship with a child under 16.[26] Over that period, 83 per cent of those sentenced for this offence were given terms of imprisonment, which ranged from two years to nine years. The median term of imprisonment was five years, and the most common was four years.

45 In order to illustrate current sentencing practices for this offence,[27] the Director's submission helpfully included summaries of 18 sentencing decisions for this offence, all but one from the County Court. There were seven from 2007 and 11 from 2008. In 2007, the lowest sentence imposed was a community-based order; the highest was 10 years' imprisonment, imposed in two of the seven cases. The median sentence in 2007 was 7.5 years; the mean was seven years. In all but one case, the sentence for the sexual relationship count was greater than five years' imprisonment.

46 In 2008, the lowest sentence was a wholly-suspended sentence; the highest was 12 years' imprisonment. The median sentence was five years; the mean 4.8 years. In contrast to 2007, however, in only three of the 11 cases did the sentence imposed for this offence exceed five years. For ease of reference, the key elements of the Director's case summaries are set out in Table 1 (at the conclusion of these reasons).

47 Particular attention was paid in argument to three decisions. The first was the decision of this Court in R v GMT ('GMT).'[28] The appellant in that case had pleaded guilty to one count of maintaining a sexual relationship with a child under 16. The victim was his natural daughter. She was only three years old when the relationship began and it lasted until she was 10 or 11. The sexual abuse was more frequent when the girl was younger. It involved various sexual acts, including lingual penetration and fellatio. The abuse occurred sometimes several times per week and at other times just once a month.

48 The appellant was sentenced to nine years' imprisonment, with a non-parole period of six years. Dismissing an argument that the sentence was manifestly excessive, this Court (Charles JA, with whom Vincent JA and Mandie AJA agreed) concluded that the sentence imposed was 'well within the appropriate range'. The Court accepted the Crown's submission that the appellant's acts were

persistent, repulsive and unnatural; that he exploited the victim, who was his natural daughter; that he subordinated her, both physically and psychologically, to his demands and acts; and that she suffered, and continued to suffer, from the consequences of his offending. By his actions the appellant breached the trust placed in him as the father of a young girl, and his offending was very serious and merited condign punishment.[29]

49 It was submitted by senior counsel for DDJ that the sentence upheld in GMT was 'not inconsistent' with the sentence imposed on DDJ. We disagree. Such differences as existed between that case and this could not, in our view, reasonably justify the imposition on DDJ of little more than half (55 per cent) of the sentence imposed on GMT on the sexual relationship count.

50 We do not overlook the fact that GMT's victim was much younger than C, nor that the relationship in that case lasted for years rather than months. As counsel for the Director pointed out, however, DDJ engaged, on virtually a daily basis, in acts of sexual penetration of a girl 18 years his junior, who was in his care and for whom he was responsible. As the sentencing judge correctly said, DDJ treated C as 'a sexual plaything' and 'grossly exploited her'. The video record has important evidentiary force, as it graphically reveals the abusive character of the relationship.

51 DDJ was fully aware of C's troubled background and her consequent vulnerability. But, instead of helping her to stabilise her life, he exploited her emotional needs for his own gratification. Moreover, whereas GMT was a person of otherwise good character, DDJ had a serious prior conviction. He was convicted in 1989 of one count of indecent assault, for which he was sentenced to two years' imprisonment. Finally, we would point out that the conclusion of the Court in GMT that the sentence of nine years was 'well within range' means that the upper limit of the available range in that case was a good deal higher than nine years.

52 The second case - another decision of this Court - was DPP v WJW ('WJW').[30] The facts were summarised by Brooking JA in these terms:

For something like a year and a half a man of about 57 - a "family friend" of the victim - maintained a sexual relationship with a girl, aged 12 and then 13, and with a mental age of 9 or 10. She often stayed overnight at his home, mainly at weekends, where he had a computer which she used for her school work. How many time he had sexual intercourse with her - in the ordinary sense of those words - will never be known. He admitted to about a dozen occasions, but later in his recorded interview said that there had been sexual encounters more than 20 times, about three-quarters of them ending in intercourse.

...

[The offender] impregnated the girl; indeed, this is what led to the discovery of the relationship. In my experience pregnancy in cases of serious sexual abuse of children who have reached puberty, while by no means unknown, is not as common as one might expect. The victim here had an operation to terminate the pregnancy, which was later found to have been unsuccessful ... [T]he girl gave birth to the offender's child: the birth occurred after the passing of sentence and the sentencing judge was not aware that the victim was, despite the operation, still pregnant.[31]

53 The offender pleaded guilty to a count of maintaining a sexual relationship with a child under 16. He was sentenced to three years' imprisonment, two years of which were suspended for three years. This Court allowed an appeal by the Director on the ground that the sentence was manifestly inadequate. Brooking JA said:

A sentence of three years is far too lenient to reflect the nature and gravity of this offence and the maximum penalty prescribed, and the same must be said of the suspension, which had the result that the respondent would automatically be released after only one year. The maximum penalty was imprisonment for 25 years. The case was a very bad one. The child was only 12 or 13 - he was 56 or 57; she was the intellectual equivalent of a nine or 10 year old; she was entrusted to him by her parents to help her overcome her mental disability; both she and they trusted him and that trust was grievously abused over a long period; he made her pregnant and she had an operation to terminate the pregnancy. He could not claim the benefit of the slightest remorse: if he was to be believed, he seemed to regard the whole disgraceful affair as natural and proper. This bore on the danger of his re-offending. His former good character and early plea of guilty told in his favour. But the sentence passed was altogether inadequate to punish, to deter and to denounce.[32]

In resentencing, the Court concluded that it was not at liberty to take into account the birth of the child. On that assumption, and making the conventional reduction for double jeopardy, the offender was sentenced to six years' imprisonment with a non-parole period of four years.

54 Again, the submission for DDJ was that the sentence imposed by this Court in WJW was 'not inconsistent' with the sentence imposed on him. Once again, we disagree. As already noted, the sentence which this Court imposed had been reduced to take account of double jeopardy. It necessarily follows that the sentence which should have been imposed at first instance was materially higher than six years. For comparative purposes, we will proceed on the assumption that the correct sentence (in the Court's view) would have been seven or eight years. In view of the aggravating features of DDJ's offending, we see no reasonable justification for his sentence having been two or three years lower, notwithstanding the aggravating circumstance in WJW of the victim's pregnancy.

55 The third decision was a 2008 County Court sentence, which was included in the Director's summary. The offender was the stepfather of the complainant. He had been married to the complainant's mother for a number of years. The sexual abuse occurred over a period of almost 10 years. It involved a variety of sexual acts, including lingual and digital penetration. The offender pleaded guilty to one count of maintaining a sexual relationship with a child under 16. He was sentenced to seven years' imprisonment, with a non-parole period of five years. (There has been no appeal against sentence).

56 The submission for DDJ was that his moral culpability was lower than that of the stepfather in that case, which was said to be equivalent to the culpability of the father in GMT. This submission too must be rejected. While the persistent sexual abuse of a child by the natural father or stepfather is reprehensible in the extreme, we do not think that the degree of moral culpability is any the less when the offender is - as DDJ was - acting in loco parentis for the victim. DDJ had assumed responsibility for C's care and, knowing that she had nowhere else to live, had encouraged her to stay on in his household. His breach of trust was just as blameworthy, in our view, as if he had been her father or stepfather.

57 The Director relied on other decisions to which reference should be made. In The Queen v Macfie,[33] the appellant had been convicted after a trial of maintaining over a period of one month a sexual relationship with a person under his care or supervision.[34] He was 57 and she was 13 and a ward of the State when he first met her. In the view of Winneke P and Chernov JA, the offender 'had no hesitation in cynically exploiting the vulnerability of the young complainant in the way he did in order to satisfy his sexual appetite.'[35] The complainant estimated that there were approximately 100 separate acts of penile penetration during the period.

58 The sentencing judge, acting in the mistaken belief that the maximum penalty was 15 years rather than 25 years' imprisonment, sentenced Macfie to a term of seven years' imprisonment on the count of maintaining a sexual relationship. This Court rejected a submission on his behalf that the sentence was manifestly excessive. Winneke P and Chernov JA referred to the high maximum prescribed by Parliament, and to Macfie's lack of remorse. Their Honours said that

in the circumstances of this case, the principles of general and specific deterrence were important sentencing considerations as were denunciation, punishment and the protection of the community.[36]

59 In view of the judge's very significant error concerning the maximum penalty, it must be assumed that a substantially heavier term would have been imposed but for the misdirection. The obvious parallel between that case and this lies in the cynical exploitation of a vulnerable victim for the offender's sexual gratification. Macfie of course contested the charges, whereas DDJ pleaded guilty. But in the present case the sexual abuse continued at a high level of intensity for five times as long.

60 Finally, we refer to The Director of Public Prosecutions v Shields.[37] In that case, a man in his mid-60s pleaded guilty to having maintained, over a period of three years, a sexual relationship with his step-granddaughter. She was aged between 10 and 13 when the sexual abuse occurred. He was sentenced to three years' imprisonment on that count.[38] Vincent JA (with whom Nettle JA and Osborn AJA agreed) concluded that the sentence was manifestly inadequate. His Honour said that Shields had

engaged in the systematic abuse of a child in relation to whom he possessed, not only what might be regarded as the normal level of responsibility of an adult person but who, by reason of her own family difficulties, was in a position of very special vulnerability. His level of culpability considered against that background can only be regarded as extremely high.[39]

61 His Honour said that he would have 'substantially' increased the sentence but for the stance adopted by the prosecution on the plea. What had occurred was as follows. In response to a question from the sentencing judge, the prosecution had not contended that it would be outside the available sentencing range for the judge to impose a suspended sentence. That implied, of course, that a sentence of imprisonment of not more than three years was within range. In the circumstances, this Court regarded itself as constrained to reimpose the same sentence.[40]

62 As noted earlier, the Director submitted that the sentencing range in this case for the count of maintaining a sexual relationship was 9-12 years' imprisonment. Senior counsel for the Director confirmed, in answer to a question from the Court, that the range thus formulated was based upon current sentencing practices as illustrated by the material supplied. Senior counsel also confirmed that the Director was not asking the Court to review the adequacy of current practices. This is a subject to which we will return.

63 In our view, the range put forward by the Director could not be justified on the basis of current sentencing practices. The Director's case summaries and the decisions discussed above show that, while there is significant variation in sentences for this offence, a sentence of above 10 years is quite exceptional. Of the 17 cases listed in Table 1, there were only two sentences of 10 years and only one sentence of more than 10 years. Although the median sentence in 2007 was 7.5 years, in 2008 it was five years, that also having been the median over the five years 2001-06. Whereas in 2007 six out of seven sentences exceeded five years, in 2008 only three sentences out of 11 exceeded five years.

64 We are satisfied, nevertheless, that judged by current sentencing standards the sentence imposed on DDJ was manifestly inadequate. The aggravating features of the conduct made this, in our view, a very serious instance of this serious offence.

65 As discussed in the next section, the sentencing information provided by the Director indicates that current sentencing practices for this offence are inadequate. The range of sentences being imposed appears not to reflect the very high maximum which Parliament has fixed. But, however that may be, we are not at liberty in resentencing DDJ to disregard current practices. The simple reason is that his plea of guilty was entered on the reasonable assumption that he would be sentenced according to current practices. It would be unfair, therefore, to resentence him on a basis which he could not reasonably have anticipated when deciding whether to plead guilty or contest the charges.

66 On this count, DDJ will be resentenced to seven years' imprisonment. The sentence has been reduced to take account of his exposure to double jeopardy because of the Crown's appeal against his sentence.

67 As the foregoing examination has revealed, sentences for this offence are - generally speaking - clustered around a mid-point of five years' imprisonment. That was the median sentence for this offence in the period 2001-06 and again in 2008. Five years is only 20 per cent of the maximum penalty. There are, as we have seen, instances where the sentence is considerably higher, extending to 10 years on two occasions and to 12 years on another. But - with the exception of the 12 year sentence in 2007 - no sentence imposed between 2001 and 2008, and none considered in the appeal decisions we have reviewed, exceeded 40 per cent of the maximum penalty of 25 years. That seems a surprising result, given that these cases include some of the very worst examples of the offence.

68 Sentencing judges are required by s 5(2)(b) of the Sentencing Act 1991 (Vic) to have regard to current sentencing practices. But they are also required - by s 5(2)(a) - to have regard to the maximum penalty for the offence. The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty. As this Court said in R v AB (No 2),[41] the setting of the statutory maximum fixes the parameters within which the sentencing discretion is to be exercised. The analysis set out above indicates that the statutory maximum for this offence is not being given appropriate weight.

69 Sentencing judges are not to be criticised for paying careful attention to current sentencing practices. Not only are they bound by statute to do so but they are naturally concerned to ensure consistency of sentencing from one case to another. After all, the first of the stated purposes of the Sentencing Act 1991 (Vic) is 'to promote consistency of approach in the sentencing of offenders.'[42] Consistency in sentencing is a hallmark of the rule of law.[43]

70 But the significance of this Court's decision in R v AB (No 2)[44] is that a judge who concludes - as the trial judge did in that case[45] - that current sentencing practices are not consistent with the statutory maximum for the offence in question is not constrained by those practices. Rather, the judge, while paying due regard to current practices, is obliged to sentence consistently with the maximum (subject to considerations of fairness which may arise, as discussed above).

71 As noted earlier, senior counsel for the Director did not invite the Court on this appeal to express a view about the adequacy of current sentencing practices for this offence. We do not doubt that it would be competent for this Court to do so. Like the sentencing court, this Court must have regard both to the applicable maximum penalty and to current sentencing practices for the offence. Those considerations are relevant both in deciding whether (in the case of a Crown appeal) the sentence is manifestly inadequate and, if the discretion is reopened, in resentencing. Moreover, one of the functions of this Court on a Crown appeal is

to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons [and] to enable the courts to establish and maintain adequate standards of punishment for crime...[46]

72 No submissions having been advanced on the question, it would not be appropriate for us to express a concluded view. Enough has been said already, however, to demonstrate that a real question arises as to the adequacy of current sentencing for this offence. That is a matter of the first importance to the administration of criminal justice in this State. The issue should be addressed in an appropriate case where the Director's view is clearly articulated in advance, and substantiated, and the point is fully argued.

73 Since we have concluded that the sentence on the first count was affected by error, the sentencing discretion is also reopened in relation to the child pornography count. Arguments on the appeal about the sentencing range for this offence are still relevant, but to resentencing rather than to the establishment of manifest inadequacy.

74 As noted earlier, the Director submitted that the range appropriate for the sentencing of DDJ on the count of producing child pornography was four to five years' imprisonment. The Director's submission summarised eight sentencing decisions in the County Court in 2008 for this offence. The lowest sentence imposed was two months' imprisonment; the highest was three years' imprisonment. The median was 18 months' imprisonment, and the mean was 17 months. Apart from the one sentence of three years' imprisonment, the term of imprisonment in each case was two years or less. For ease of reference, the key elements of these summaries are set out in Table 2.

75 The submission for DDJ was that the sentencing information relied on simply did not support the range contended for. There is, we think, some force in this submission. Counsel for DDJ illustrated the point by drawing attention to the decision of this Court in Director of Public Prosecutions (Vic) v OJA.[47] That case concerned appeals by the Director against sentences of imprisonment imposed on three offenders for a range of inter-related sexual offences, in each case including numerous counts of incest and of indecent acts with children under 16.

76 Each of the offenders had pleaded guilty to a count of producing child pornography. One was a representative count, another was a rolled-up count. In each case the charge covered a number of incidents, over a considerable period, where child victims were photographed or videotaped in indecent or pornographic poses. The sentence imposed was two years' imprisonment in each case. These sentences were not interfered with on the Director's appeal. It must be said, however, that argument in the appeal was directed at the sentences imposed on the large number of much more serious offences. The sentences on this particular count were not separately scrutinised.

77 On the other hand, in Director of Public Prosecutions v DJS,[48] the offender had been sentenced to four years' imprisonment on a representative count of producing child pornography. The conduct had occurred over a five year period. The Director successfully appealed against the sentences imposed for other, more serious, offences including incest and sexual penetration of a child under 10. In resentencing, this Court reimposed the sentence of four years' imprisonment on the child pornography count.

78 Senior counsel for DDJ cautioned that there should be no double punishment for the making of the pornographic video. It was inevitable, he said, that the making of the video would be counted as part of the sexual relationship under count 1, and so would be a factor influencing the sentence on that count. In our view, the risk of double punishment is more apparent than real. We have already referred, in our discussion of the sexual relationship count, to what the video revealed about the nature of DDJ's sexual abuse of C. But in resentencing him for the maintenance of the sexual relationship, we have not treated the making of the video as an aspect of the relationship. It was a separate crime, committed in the course of an otherwise unlawful relationship, and it is to be separately punished.

79 This was, in our view, a very serious instance of the offence. We have already referred to the degradation to which DDJ subjected C, in the various acts and poses which he required of her over the three days of filming. The worst aspect of this conduct is the way in which DDJ dehumanised C, treating her as a mere object, to be subjugated to his sexual appetite in whatever ways he chose.

80 On this count, DDJ will be sentenced to three years' imprisonment. As in relation to the first count, the sentence has been reduced to take account of double jeopardy. Although s 6E of the Sentencing Act 1991 (Vic) creates a presumption of cumulation,[49] we are mindful of the principle of totality and will therefore direct that two of the three years be served concurrently with the sentence on count 1.

81 For the reasons we have given, the Director's appeal must be allowed and DDJ resentenced, as follows:

• Count 1 - seven years' imprisonment;
• Count 2 - three years' imprisonment.

We direct that two years of the sentence imposed on count 2 be served concurrently with the sentence imposed on count 1, making a total effective sentence of eight years. We fix a non-parole period of five and a half years.

TABLE 1: Sentences imposed for maintaining sexual relationship with a child under 16

No conviction; community based order (250 hours unpaid community work).

Victim became pregnant and bore a child. Relationship ongoing.

Victim became pregnant at age 15. Offender had brain damage.

This is the only case summarised in this table involving a male victim and female offender.

TABLE 2: Sentences imposed for producing child pornography.

[1] The offence has since been renamed 'Persistent sexual abuse of a child under 16': Crimes Act 1958 (Vic) s 47A.

[2] See [14], [28] below.

[3] Sentencing Act 1991 (Vic) Part 2A.

[4] Sentencing Act 1991 (Vic) s 6E.

[5] The Queen v DDJ (Unreported, County Court of Victoria, 7 March 2008) [12], [14].

[12] See [13] and [14] above.

[13] See [12] above.

[14] See, for example, DPP v Shields [2005] VSCA 150 [19]-[20] (Vincent JA).

[15] The Queen v Macfie [2000] VSCA 173 [49] (Winneke P and Chernov JA).

[16] R v Wayland (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Southwell and Hampell JJ, 14 September 1992) 4.

[17] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel, McDonald JJ, 8 June 1993). See R v Ware [1997] 1 VR 647, 653 (Hedigan AJA).

[18] [1997] 1 VR 242, 244.

[19] See also The Queen v RTG [2004] VSCA 89 [20] (Chernov JA).

[20] [1998] 2 VR 385, 387.

[21] [2004] VSCA 180; (2004) 10 VR 234, 237-8. See also DPP v DAK [2004] VSCA 175 [33]-[35] (Vincent JA).

[22] [2006] VSCA 90.

[23] [2003] VSCA 109, [18].

[25] [2008] VSCA 190 [9] (Maxwell P, Vincent and Redlich JJA); see also Carroll v R [2009] HCA 13; (2009) 254 ALR 379, 381.

[26] Sentencing Advisory Council, Sentencing Trends for maintaining a sexual relationship with a child under 16 in the higher courts of Victoria, 2001-02 to 2005-06, Sentencing Snapshot No 25, June 2007.

[27] Sentencing Act 1991 (Vic) s 5 (2)(b)

[28] [2006] VSCA 13.

[30] [2000] VSCA 170; (2000) 2 VR 497.

[33] [2000] VSCA 173.

[34] The conduct occurred between 15 October and 14 November 1997, at which time it was an element of the offence under s 47A of the Crimes Act 1958 (Vic) that the child be under the care, supervision or authority of the offender.

[35] The Queen v Macfie [2000] VSCA 173, [49].

[37] [2005] VSCA 150.

[38] He was sentenced at the same time for other sexual offences against other children.

[39] DPP v Shields [2005] VSCA 150 [31].

[41] [2008] VSCA 39; (2008) 18 VR 391.

[42] Section 1(a) of the Sentencing Act 1991 (Vic).

[43] MacNeil-Brown [2008] VSCA 190.

[44] [2008] VSCA 39; (2008) 18 VR 391.

[45] Nettle JA, sitting as a trial judge, imposed the sentence which was upheld on appeal: The Queen v AB [2006] VSC 96.

[46] R v Clarke [1996] VICSC 30; [1996] 2 VR 520,522 (citations omitted).

[47] [2007] VSCA 129; (2007) 172 A Crim R 181.

[48] [2003] VSCA 9.

[49] See [14] above.