DPP v Fidge & Anor [2026] VCC 300

1. Mr Fidge and Mr Smith you have both pleaded guilty to a charge of sexual penetration of a child under the age of 16, a crime you two men shamefully committed together. You, Mr Smith, have pleaded guilty to a second offence of sexual penetration of a child under the age of 16.[1]
2. As was referred to by your Counsel, our Court of Appeal has said that this crime can be committed in a wide variety of circumstances. While that is so, what is inherent in sex offending against children is what was conveyed, in a different context, in the opening words of the report of the Royal Commission into Institutional Responses to Child Sexual Abuse, which read in part:[2]

'The sexual abuse of a child is a terrible crime. It is the greatest of personal violations. It is one of the most traumatic and potentially damaging experiences and can have lifelong adverse consequences.'

3. I refer to this powerful description of what sexual offending against a child means to victims and to the wider community because it is important that we in the courts do not become immune to the dreadful conduct and enduring consequences of these crimes because, sadly, we deal with this appalling criminality day after day. In this court we too often, unlike in this case, see sexual abuse that is protracted and in breach of a relationship of trust. As I will set out those are not the circumstances here. Nonetheless, what you two men did to the young victim at what should have been an enjoyable and safe celebration, was serious criminality that has left considerable and enduring adverse impacts on the victim and her family. In those circumstances what is fundamental in this sentencing process is that this Court reaffirms decent values that seek to protect children.
4. The absolute prohibition on sexual activity with a child is to protect children from the harm of premature sexual activity and to deter perpetrators from taking advantage of the immaturity of children.[3]
5. It is necessary to outline and understand what you did or the circumstances of the offences to use the words of the High Court, in the important sentencing authority of Dalgleish,[4] itself a child sexual abuse case.

1. You two men met online as part of a group with interests in AFL football. You, Mr Fidge, lived and played football in rural Queensland. You, Mr Smith, lived and played football in southern NSW. Another member of the group was the victim's older cousin, a young man raised in the rural outskirts of Geelong.
2. On 3 February 2024, this cousin of the victim was celebrating his 21st birthday party at the family farm. You two men were invited and you, Mr Fidge, flew down, arriving on the morning of the party. You, Mr Smith, pick Mr Fidge up at the airport and drove to a hotel on the Surf Coast, where you met with other members of your online group. You both drank at the hotel before heading to the farm for the birthday party.
3. Also invited to the party were members of the extended family, including the 14-year-old victim and her father. The victim's father and the mother of the young man turning 21 were siblings. The victim's father left the party in the late afternoon, leaving the victim, who was to stay overnight with her cousins and Aunt.
4. During the evening, you, Mr Fidge, came across the victim and importantly you asked how old she was and how she knew the birthday host. The victim replied that she was 14 years old, and that she was the host's younger cousin.
5. There can be no doubt you men knew the victim's true age. In the context of being asked how old she was, the victim asked you, Mr Smith, how old you were. You told her that you were 17. This was clearly untrue. You were 24 years old, significantly older than the victim. You Mr Fidge were a little younger at 22 years old.
6. Later in the evening, you came across the victim again. You Mr Fidge lured the victim to the backyard, away from the shed where the party was being held and where the other guests were. You Mr Fidge began to kiss the victim, at which time you Mr Smith came up to her from behind, and pulled down her pants and underwear. In her confusion, she turned the light on her phone on, to which you men told her to "turn your light off, turn your light off". When the victim asked what was going on, you told her, bizarrely, "you need to pee, you need to pee", as if this was the excuse to be used if someone came across her with her pants down.
7. The victim was then turned around, and you, Mr Fidge, penetrated the victim's vagina with your penis. At the same time, you, Mr Smith, put your penis in the victim's mouth. With you men penetrating her at the same time, and in particular with you, Mr Smith, penetrating her mouth with your penis she could not speak or call out for help.
8. These penetrations were not done with either of you using protection. Once you were finished you told the victim again not to use the light on her phone to navigate back to the shed and the other guests, and neither of you returned with the victim to the shed.
9. When she arrived back at the shed, the victim's Aunt took her to the house and to bed.
10. Some time after this appalling behaviour you, Mr Fidge, boasted to other males at the party that you and Mr Smith had "put [the victim] on the spit". You made this same comment again at a later point. I have thought carefully about repeating the disgusting words you triumphantly used to describe what you had done. They are degrading to the victim, but I have decided to use the abhorrent words you used because they graphically give insight into your depraved thinking about the victim and indeed how you see and give little value to the dignity and autonomy of women. These were the words that describe the victim as an object with little other value than to be used for the joint depraved sexual gratification of you and your co-accused. I note and take into account that there is no evidence that you Mr Smith heard or joined in with Mr Fidge in making or endorsing his appalling comments, which were heard by a large number of those from your online friendship group at the party.
11. As I said, the victim was taken inside by her Aunt. Whilst she was inside, you, Mr Smith, and the victim communicated via Snapchat. You requested that she meet you outside, alone. The victim came out to meet you where you and Mr Fidge had been earlier. You again pulled down the victim's pants, pushed her down and penetrated her vagina with your penis, to the point of ejaculation. You, once again, did not use a condom.
12. Some hours later, the victim disclosed to her cousin what had occurred. The victim's cousin saved the Snapchat messages, before showing them to her mother, the victim's Aunt.
13. Both you men were then confronted by the victim's Aunt who demanded that you both leave the party immediately. You, Mr Smith, moved your car to the far end of the property, where you slept, before leaving early the next day. You, Mr Fidge, slept in the shed and also left early the next morning.
14. The victim's father was contacted by his sister and he came and picked up his distraught daughter. The police were contacted and the allegations outlined. The victim and her father then attended the Royal Children's Hospital for her to undergo medical examination.
15. You, Mr Fidge, were arrested and interviewed by police the next day on 4 February 2024. Although you admitted meeting the victim you then lied, falsely claiming that you had not been involved in any sexual activity with the victim.
16. You, Mr Smith, were interviewed some weeks later on 17 February 2024. You too lied, saying that you had not sexually penetrated the victim on either occasion.
17. The medical examination of the victim revealed the presence of spermatozoa and DNA which matched both your DNA.
18. Ultimately this overwhelming evidence resulted in you both finally admitting your crimes.

1. The Sentencing Act 1991 obliges me to assess the gravity of your offending and the level of your moral culpability. As part of my assessment, I need to understand the impact of what you did on the victim and her family and I turn to those matters first.
2. The victim wrote that she has "nightmares, waking up crying" because as she sleeps, she relives the night. She writes;

'I feel shame and guilt that lingers over me...I feel guilty for my family that had to hear the story and make statements, I feel dirty, insecure, ashamed and embarrassed of my self-worth, image and myself in general. I feel guilty for not just myself but everyone that has been impacted from what happened.'

3. The victim speaks of her mental health deteriorating. Tragically she has engaged in self-harm and has been left with what she calls "hideous scars" and that people not knowing of what she has endured point them out. Many things trigger her, such as males around your age and the smell of alcohol. She has had to have treatment from a psychologist and a psychiatrist and the sessions remind her of the night.
4. She writes;

'I continuously blame myself for what happened, and nothing seems to get better...Feeling as if I'm in danger wherever I go and if I'm near males that are older than me...Never being able to forget about it. My family having to tip toe around me so they don't trigger me or upset me.'

'Since the incident, my outlook on life has changed significantly. I spend much of my time riddled with guilt for failing to keep my daughter safe. This happened on my watch and now her life has changed forever. I try to tell myself that she should have been safe, that she should have been able to enjoy the celebrations with her cousins without being preyed upon or having her vulnerabilities exploited by two adult men.'

'When I picked [the victim] up that morning, she was in a catatonic state. At the time, I'd never seen her like that, and it was incredibly confronting for me. Sadly, since that day, I've seen her in that state many times....Taking my daughter to the Children's Hospital for a forensic examination early on the afternoon following the assault was the hardest thing I've ever had to do. I felt like I lost my girl that day. The trauma and grief I feel as a direct result of this assault shows up in many ways.'

7. He writes that he has lost his passion for physical activity, particularly surfing, and experiences heightened levels of anxiety, and moments of overwhelming sadness and shame.
8. He writes;

'I expect that some of these impacts will continue well into the future. You just can't move on from something like this. I anticipate ongoing counselling and support for the foreseeable future. This experience has changed how I view the world and the people in it. I grapple with strong emotions ranging from intense anger to periods of deep depression. I worry about my daughter and how she sees the world. I see her confidence and self-worth evaporate and it kills me.'

9. The victim's mother wrote that she is tired of the anger, frustration, paranoia, bitterness and sadness and the many questions she has had over the past 2 years.
10. She writes;

'I have isolated from my own friends and family because it's not a topic that you can just talk to people about over a coffee. I feel so tired and drained from just putting one foot in front of the other with daily tasks that I am completely disinterested in engaging in any social life. The incident and the court process is constantly at the forefront of my mind. The joy has been completely drained from my life.'

11. She writes that the events have impacted on her relationship with her daughter, as well as caused significant financial impacts. She has to take time off work to attend appointments with her daughter, often travelling long distances. She writes, "living on a low single income has been challenging and thoughts of selling my house are a reality".
12. She says that she experiences "guilt and shame...for not being able to protect" her daughter from what happened.
13. The Victorian Court of Appeal has reaffirmed the important role restorative justice plays in the criminal justice system. In Talbot (a pseudonym) v The Queen[5] the Court approved the statement of Vincent JA in DPP v Toomey[6] concerning the notions of social rehabilitation and restorative justice, where his Honour said:

'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.'

14. I have taken into account the considerable and on-going impact on the victim and her family. One aspect, all too common in these sexual offence cases, is that the victim and the family somehow feel a sense of guilt or blame. Of course, no one is to blame but you two men. The victims should not be made to feel any guilt. You and you alone were responsible for the crimes that have gravely affected their lives.
15. I was told that you have both read the victim impact statements and acknowledge your responsibility in causing the pain you have. You both said as much in your letters of apology tendered on the plea. You Mr Fidge speak of educating yourself on the deep and long lasting the adverse impacts of sexual crime on victims and those close to them.

1. The Sentencing Act 1991 obliges me to assess the gravity of your offending and the level of your moral culpability.
2. As was observed in DPP v Bright:

'The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it is unlikely that the sentence will be commensurate with the seriousness of the crime.'[7]

3. As to the gravity of what you did, the following are factors that in combination make this a serious example of these sexual offences against a child.
4. Firstly, the age difference is significant. She was 14. You men were 24 and 22. This is not a case where teenagers engaged in sex within a relationship, where one was under 16. So, as I have said, while there was no relationship of trust, this was an example of an uneven dynamic where a young teenager at her cousin's 21st birthday, was taken advantage of by much older more worldly men.
5. Secondly, and self-evidently, the fact that you both sexually penetrated the victim at the same time, significantly elevates the seriousness of this offending. Plainly you had, even if just a little earlier, planned or decided you would both violate her concurrently; that was your aim. While as I noted earlier, this crime can be committed in a variety of ways and in a variety of circumstances, it is rare that a child is violated simultaneously by two men.
6. Thirdly, that you treated her as a mere object so you could penetrate her while she was, in reality, surrounded on both sides by you older, larger men, also elevates the seriousness of what you both did.
7. Fourthly, as another guest and as you knew, a 14-year-old family member of the hosts, she was entitled to be treated with respect and not in effect be set upon and, while alone and separated from others, and sexually assaulted by 2 older men acting together, for charge 1.
8. Fifthly, you used no protection creating a risk of pregnancy and/or disease.
9. Separately for charge 3 you then, Mr Smith, sexually penetrated the victim later after communications between her and you. You told her to come outside from where she was in bed. Once she came outside you quickly moved to having sex with her again to the point of ejaculation. Again, there was no protection for her from the risk of pregnancy and/or disease.
10. As to your moral culpability, you Mr Smith had time to consider what you had done to the victim earlier with Mr Fidge and show restraint and not engage in sexual penetration again with the underage victim as you did on the second occasion.
11. Broadening out from that aspect that elevates your moral culpability, Mr Smith, it seems to me that for both you men your moral culpability is high. You knew the victim's age, but you went ahead anyway. As I have said, the first joint penetration had an element of an abhorrent male bravado where you gave preference to having a joint sexual conquest over the dignity of the victim. This shameful aspect significantly elevates your moral culpability.
12. There is nothing in your personal circumstances that operates to lower your moral culpability for either of you, in fact on the contrary.
13. Drinking alcohol or in your case Mr Smith, smoking cannabis, is certainly no excuse and it does not lower your moral culpability as was conceded by both your counsel.

1. The crime of sexual penetration of a child is a standard sentencing offence. The standard sentence is 6 years imprisonment, and the maximum term is 15 years' imprisonment.
2. The Sentencing Act 1991 makes clear that the period specified as the standard sentence is:

'the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.[8]

3. Beyond the words of the Sentencing Act 1991, I am guided and I have applied, the principles articulated by our Court of Appeal in Brown v The Queen[9] as to how to navigate the standard sentencing, regime. Thus, the maximum term and the standard sentencing term are statutory guideposts, no more and no less. Also, the well-known sentencing methodology of instinctive synthesis remains the methodology for sentencing for offences that are standard sentencing offences. I will say more about my reasoning in coming to a sentence relative to the standard sentence shortly. I am required to undertake such a task by the Sentencing Act 1991.[10]
4. Additionally, with respect to the fixing of a non-parole period, Parliament has said, relevantly for this case, that if any offence on an indictment is a standard sentence offence, then the non-parole period must be 60% if the head sentence is less than 20 years. Parliament has allowed for a lower non-parole period to be fixed if it is in the interest of justice to set a lower non-parole period.[11]
5. As to the task of considering the relative seriousness of the offending, I have factored in all the matters I spoke about with respect to the objective gravity of charge 1 and 2 such as the joint criminality, the decision to penetrate the victim simultaneously, the age gap, the absence of protection and the absence of any sense of the welfare of the victim which was simply drowned out by your perverted sexual gratification. I have also factored in the more mitigatory matters of the lack of a trust relationship, the brevity of the criminality. All this leads me to the conclusion that by reference to the objective factors alone of this joint offending is an example of the offence at or around the middle of the range of seriousness.
6. As to your second offence, Mr Smith, there are aspects that lead me to the view it is below the middle of the range.
7. I make clear these findings do not automatically translate into a particular sentence, but it is an important factor in the overall instinctive synthesis.

1. The task of sentencing involves the synthesis of more than the gravity of your offending, its impact on the victim and the maximum and standard sentence terms. I must also understand and add to the calculus, the circumstances of each of you as the offender. This synthesis of all circumstances of the offences and the offender is at the core of individualised sentencing, the methodology authorised by our High Court in the important sentencing case of I have mentioned already of Dalgleish.[12]
2. I turn now to your personal circumstances commencing with you, Mr Fidge.

1. Jaiden Fidge, you are 24 years old, having committed this offending when you were 22.
2. You are the middle child in your sibship of 3, raised in Warwick in rural Queensland. Your father is a schoolteacher, and your mother works in administration in a law firm. You and your family continue to reside in Queensland. You do not have any connections in Victoria.
3. You completed school successfully in Toowoomba and went on to gain multiple tertiary qualifications by 2023, being a Bachelor of Arts, majoring in Journalism, and a Bachelor of Science, majoring in Environment and Sustainability.
4. You have always been employed throughout your teenage years and young adulthood.
5. This is your first time before the Courts.
6. I have read carefully the letters from your mother and who I presume is your partner. They know you well and portray you as a young man with considerable potential.
7. Your mother seeks to ensure that your better qualities are not overlooked by reason of the gravity of what you did. She wrote of your wide and considerable sporting successes, which have seen you learn and show leadership among your peers. She wrote of your work ethic and how you were on the cusp of commencing a career after successfully completing tertiary studies. All that has been put on hold and your future which once appeared bright now remains uncertain.
8. All your family remain supportive and will do whatever they can to ensure that ultimately you can in effect make amends for your wrongdoing by being a responsible and contributing member of your community.
9. She wrote of your intense and informed remorse. In her eyes you know how much pain and anguish you have caused to the victim and her family. You are ashamed and committed to behaving more in accordance with what she knows you as; an intelligent, responsible young man.
10. Your partner wrote of your growing insight into the wide array of challenges and fears women have as they navigate life. She also spoke of your deep remorse and concern for the victim. She has seen your emotional turmoil at the gravity of your situation but also how you have accepted full responsibility, changed your attitudes and behaviour, particularly with respect to drug use and alcohol.
11. On the basis of this material and your own apology letter, your Counsel submitted that it was very hard to reconcile your behaviour on the night of 3 February 2024 with the way you had been raised and had otherwise behaved in your community before and after. He made the obvious but important point that you had much potential, much to lose and all of that has been put at risk.
12. It does seem that in ordinary family and community life to everyone you are or appear as a decent young man. However on the basis of your conduct on this night you, when in the company of other young males and affected by alcohol, appalling attitudes and behaviours came to the surface.
13. I interpose that this later concern arises with respect to you as well Mr Smith.
14. Mr Fidge, I do not give your better qualities and your now more mature attitudes, mere lip service[13] in terms of mitigation because of the gravity and impact of your offending. However as noted I cannot allow those considerable mitigatory matters to assume too great a prominence such that the gravity of the crime is undervalued.

1. I turn now to you, Riley Smith.
2. You are 26 years old, having committed this offending when you were 24.
3. You were raised in the North Albury area as one of 4 boys. Your parents separated when you were between 10 and 11 years old, and you moved between parental homes. These moves were frequent, and you reported to the medico legal psychologist, Ms Carla Lechner, engaged by your lawyers, that you lived in "13 houses", until your mother moved to Western Australia when you were 18.
4. Your academic abilities were reported as "average". You attended school in North Albury until the end of year 10, when you were encouraged to leave. You attempted to continue your education at another high school but were again advised to discontinue due to lack of attendance.
5. Your Counsel submitted that through these years, you and your brother were effectively on your own, getting yourself to school, looking after the house and your own meals as your father was always working and unable to provide many of what others took for granted in a family home.
6. Following your departure from school you continued to work at KFC, moving on to boat-building until you were made redundant during the COVID-19 pandemic. You then commenced, and have since completed, a carpentry apprenticeship which took 5 years. Your work history and perseverance are to your credit.
7. In terms of your future aspirations, you intend to move to Western Australia and pursue work in the mines. Your mother and an older sibling are in Western Australia.
8. You enjoyed your sporting endeavours as you grew up, in particular, AFL football. As it turned out I learnt from the parties that you have in fact a criminal matter which unusually arose from violence you displayed on the football field. You were charged with assault occasioning actual bodily harm.
9. This subsequent matter was heard approximately three months after the offending before this Court and resulted in a conditional release order without conviction of three months, concluding on 28 February 2025.
10. I have been told that you have a matter currently pending before the NSW Courts, relating to driving whilst under the influence of illicit substances, which occurred on 7 February 2026.
11. It seems from all the material including the evidence of Mr Alexander, who knew you from dealings at the football club and through his son, that you have problems when socialising with alcohol and drugs. Your Counsel emphasised that you were significantly affected by drink and cannabis on the night of the offending. It was not put that this was in any way an excuse, but rather the explanatory context for what you now acknowledge was dreadful criminal behaviour.
12. Mr Alexander spoke of your expressions of shame and regret as to where you are now and what the future now holds. You too spoke in these terms in your letter of apology.
13. I do not overlook all that you have done from an early age to establish yourself as a hard-working young man with what was a bright future. You too have capacity to make a contribution into the future after the inevitable gaol term.

1. I have spoken of the remorse each of you have expressed. You both pleaded guilty after the matter came to this Court. Your pleas of guilty have been acknowledged here by the setting of sentences that are lower than would have been the case had you pleaded not guilty and been found guilty by a jury. Your pleas of guilty relieved the victim from the ordeal of giving evidence and that is no small matter. Another benefit that flows from your pleas of guilty is to the criminal justice system as precious resources were not needed to run a trial.
2. Another factor more unique to you men is that your punishment has the added burden of you being imprisoned a distance away from family and friends and in your case, Mr Fidge, a very significant distance away. Isolation in prison is an aspect of punishment. However, not being able to easily have in person visits is an added hardship that I have taken into account. Although not the same, the use of video facetime type facilities in Victorian prisons, necessarily developed in COVID-19 times, is some consolation.

1. I turn to a matter that has arisen since the plea and that is there has been media reporting of your crime widely, including in the local media in your respective hometowns. That is to be expected and reporting of what happens in our Courts is encouraged and facilitated by the Court. Thus, the formal charges you pleaded guilty to as set out in the indictment were made available to the media by Court Order in response to a media request at the time of the plea. The court facilitated attendance of the media by the usual links so that all that was said in Court could be heard. As I have said many times, the Court in Geelong has the added benefit of having a local journalist whose attention to detail and accuracy in his reports is of the highest standard that I have experienced in decades of working in the Courts and interacting with media reports. Many of my colleagues in the County Court share this view.
2. Unfortunately, for reasons that have not been explained even after inquiry, the media reports and headlines have described you two offenders as having committed the crime of rape and that you two are rapists. Of course, the prosecution charged you with sexual penetration of a child under 16 and you have pleaded guilty to that serious offence. You have never been charged on indictment by the Director of Public Prosecutions with the crime of rape which is different in many important respects to the crime of sexual penetration of a child under 16. My sentence will be for that crime; no more and no less.
3. Two matters arise as a consequence of the inaccurate media reports. Firstly, the odium of being described as committing the crime of rape has an added extra-curial impact in particular with the enduring nature of online reports.
4. Secondly, reporting of what is going on in our Courts is a vital aspect of our system of justice and a pathway for members of the community to have confidence or legitimate criticism of the courts in the vexed area of sentencing in particular for child sexual offences. The sentence I will announce and all my reasoning relates to the crime you in fact committed being sexual penetration of a child under 16 with its lower maximum term and standard sentence, alongside sentencing practices which are much different than for the crime of rape.
5. If there is, as I hope, confidence in the community that the sentences I pass are just and appropriate in all the circumstances, then that confidence would be based on an informed understanding of the basic fact of what crime was committed. If there is criticism or debate it will in this case be unfortunate that even those endeavouring to be informed through the media may have a view that my sentence is one imposed on you two men for the crime of rape.
6. Accuracy, in all the fine details, is always a hard task for the media, but inaccuracy in such a fundamental matter has the tendency to perpetuate views that are not therefore fully informed, and this can undermine community confidence in the Courts.

1. I move now to more general and very important matters. As I move to announcing your sentences having synthesized all factors, I need to make clear to you that our community, our parliament and the courts all hold the same firm view that sexual offending against children of this kind is criminality requiring that very significant weight be given to the punitive sentencing purposes.
2. Firstly, denunciation of what you did and the harm you caused must be more than the words expressed here in these sentencing remarks. There must also be the practical articulation of denunciation by the imposition of years of imprisonment. So too must there be significant weight given to deterrence to others. It must be made clear by the imposition of years of imprisonment that, if you are in the least tempted to commit a sexual offence against a child then sentences of many years of imprisonment await. I will endeavour to establish conditions to facilitate your rehabilitation via the only tool available to me, which is the setting of a non-parole period. I have not overlooked the need for rehabilitation and it is factored in, but those considerations must yield to the other punitive sentencing purposes. In this sense I have taken into account the principles regarding sentencing youthful offenders as set out by the Court of Appeal in Azzopardi[14]. I note that you, Mr Smith, in particular, are at the outer limit of the cohort of what are youthful offenders. You are younger, Mr Fidge, but still towards the older end of youthful offenders. What I do not lose sight of is that you will spend many of what are seen as the best years in prison.
3. Prison will be hard for that reason and because it will be a wholly unfamiliar environment. I have already referred to the particular hardship of being imprisoned far from your home community.
4. I have considered whether it is in the interest of justice to fix a minimum non-parole period less than that set out by Parliament in the standard sentencing provisions. I have determined that the non-parole period I have fixed is what justice requires you to serve in prison. It is, in the end, just above the ratio set out in the Sentencing Act 1991. There is no reason, in my view, to fix a lower non-parole period. I point out that whether and when you are released on parole is for others, not the court.
5. I have considered the question of parity between you two men. I can see no reason for any difference in the sentences imposed for what I refer to as 'the joint crime', although the indictment has separate charges for each of you. The differences in your total sentences are a product of the second charge you face, Mr Smith.
6. As to that, there must be a measure of cumulation for the second offence so as to comply with the principles of totality, which can be expressed as requiring that, firstly, in general, cumulation orders must reflect differences in the seriousness of each offence and the different episodes of offending.
7. Secondly, whether or not cumulation is ordered in relation to such offences will depend on whether each additional incident may be seen as having added to the total criminality of the offender's conduct. A failure to order cumulation can undervalue the gravity of the offender's conduct and the impact of that cumulative conduct upon the victim. I interpose that the second offence to which you have pleaded guilty does add to the total criminality of your conduct.
8. Thirdly, orders for cumulation ensure that each charge carries weight in the overall sentencing outcome. They ensure that offenders do not and are seen not to receive a discount by reason of being sentenced for multiple charges in the one incident.
9. After fixing your sentences including what I consider is the need for some cumulation, Mr Smith, I have then stepped back and adjusted so as to ensure the total sentence meets the totality of your crimes.
10. Doing the best I can, and commencing with you, Mr Fidge, I impose the following sentence.
11. For the charge of sexual penetration of a child under the age of 16, you are sentenced to 4 years and 9 months imprisonment. I fix a non-parole period of 3 years. You have served 16 days in custody thus far, this figure having been reckoned as the sentence I impose, I will ensure that this declaration is entered into the records of the Court so that prison authorities know that you have already served 16 days of the sentence I have just imposed. Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of 6 years and 6 months with a non-parole period of 4 years and 9 months. You are required by the legislation, that is the Sex Offenders Registration Act 2004, to be placed upon the Sex Offenders Register and remain upon that Register for 15 years. There are documents that will be signed setting out your responsibilities and the consequences if you do not meet those responsibilities.
12. I turn now to you, Mr Smith. For charge 2, sexual penetration of a child under the age of 16, you too are sentenced to 4 years and 9 months. Charge 3, sexual penetration of a child under the age of 16, you are sentenced to 3 years imprisonment. 14 months of that sentence is cumulative upon the base sentence of 4 years and 9 months. That gives a total effective sentence of 5 years and 11 months, and I fix a minimum non-parole period of 3 years and 10 months. You have served 16 days in custody, this figure having been reckoned I now declare it as part of the sentence I have just imposed and will ensure that the declaration is entered into the records of the Court so that prison authorities are left with no doubt that you have served 16 days of the sentence just imposed. Had you pleaded not guilty to these offences and been found guilt of them I would have imposed a sentence of 7 years and 6 months with a non-parole period of 5 years and 6 months. You, too, are required to register under the Sex Offenders Registration Act 2004, a mandatory consequence of the offences you have committed. The mandatory time on that Register is 15 years and there are documents that set out your responsibilities and the consequences if you do not comply.

[1] Crimes Act 1958 (Vic), s 49B(1).

[2] Final Report: Preface and Executive Summary, Royal Commission into Institutional Responses to Child Sexual Abuse, 5.

[3] Clarkson v The Queen; EJA v The Queen [2011] VSCA 157, [26].

[4] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148.

[5] Talbot (a Pseudonym) v The Queen [2016] VSCA 218.

[6] DPP v Toomey [2006] VSCA 90, [22].

[7] DPP v Bright [2006] VSCA 147, [11].

[8] Sentencing Act 1991 (Vic), s 5A(1)(b).

[9] Brown v The Queen [2020] VSCA 212; (2020) 62 VR 491.

[10] Sentencing Act 1991 (Vic), s 5A.

[11] Ibid, s 17; s 11A(4).

[12] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148.

[13] The Queen v RGG [2008] VSCA 94, [3].

[14] Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372; (2011) 35 VR 43.