DPP v Starkey

1. In summary, the offence you have been found guilty of arose from an incident involving your daughter, Cassie Starkey,[2] which took place at your family home in late July 2019.
2. At the time of the offending, you were 41 years of age and Cassie was 11 years of age. Cassie is the first of three children born from your relationship with Anna Purslow.[3]
3. Cassie gave evidence that on an evening in late July 2019, you entered her bedroom at your family home in Frankston. She said that you shut the door behind you and pushed her onto the bed. You then spread her legs, positioning yourself between her legs and on her stomach, and began kissing her without using your tongue. Cassie said that the kissing continued for one or two minutes, at which point Cassie's younger brother, Aidan,[4] unexpectedly opened the door and walked in. You stopped kissing when the door opened. The three of you then left the room to play 'hide and seek', with you and Cassie both acting as if nothing inappropriate had taken place.

1. Towards the end of that month, Cassie told some of her school friends that you 'did stuff' to her, including her friend Paula Cummins[5] - although she did not go into further detail with Paula as to what you had done. Understandably concerned, Paula then told her mother about what Cassie had said later that day. Ms Cummins then called the school's student welfare worker, Clare Wood,[6] on or about 31 July 2019 and reported what her daughter had told her. The next morning, Ms Wood spoke with Cassie, and child protection workers and police officers attended the school to further interview Cassie in relation to her disclosure. At this meeting, Cassie alleged that you had tried to rape her and have sex with her.
2. Later that same day, 1 August 2019, you were then informed by child protection workers that Cassie had made allegations, which you denied.
3. After Cassie's initial complaint, there was a three-year delay in police continuing their investigation of the matter. On 23 August 2022, the police conducted a video recorded interview with Cassie in relation to allegations she had made. In addition to the incident of which you were found guilty, Cassie also alleged another incident had taken place earlier in July 2019, comprising one charge of sexual penetration of a child or lineal descendent, and four charges of sexual assault of a child under the age of 16, one of which was charged as an alternative. Cassie also alleged that a third, separate offence had taken place later that month - constituting a further charge of sexual assault of a child under the age of 16.

1. You were arrested on 31 January 2023, with the police conducting a formal interview with you at Frankston police station in relation to Cassie's disclosures. You again denied the allegations made against you - a denial which you maintained through your plea of not guilty at trial.
2. Upon conclusion of the interview you were released by police pending summons, and have remained at large pending sentence in this matter. As a result you have no pre-sentence detention referable to this offending.

1. You were charged in this matter on 31 August 2023, and the matter quickly proceeded to this Court by way of straight hand-up brief, with a plea of not guilty, on 23 November 2023. Following a number of directions hearings and a s198A hearing, your trial was ultimately listed for October 2024.
2. An initial trial on an indictment of seven charges commenced before me on 24 October 2024. On that day, prior to empanelment, you made a plea offer which included the offence for which you were ultimately found guilty. That plea offer was rejected and a jury was empanelled. However, the jury was subsequently discharged the following day, after an issue arose with a juror.
3. A further trial of this matter then commenced on 28 October 2024. On 11 November 2024, after a majority verdict direction was given to jurors in relation to all of the charges, the jury returned unanimous verdicts of not guilty in relation to two charges of sexual assault of a child under the age of 16, one of which was an alleged offence relating to the first alleged incident and the other of which comprised the entirety of the third alleged incident. The jury remained hung on

the other charges and were discharged from reaching a verdict. 4. A re-trial of the five remaining charges commenced on 22 July 2025, however that jury was discharged the same day due to an issue taking place during the empanelment process. 5. A jury was then successfully empanelled the following day, and on 8 August 2025, that jury returned a unanimous verdict of not guilty on Charges 1, 2, 3 and 4 on the indictment but found you guilty of Charge 5. 6. As a result, you now fall to be sentenced for that offence just over two years after you were charged for it, and just over six years after it was committed.

1. On the plea, I received victim impact statements from both Cassie and her mother.
2. The severe impact which your offending has had on Cassie, Ms Purslow and your other two children was described eloquently in those statements. They are a reflection of the fact that sexual offending against a child does not just affect the child involved but can have much wider familial and social ramifications.
3. In her statement, Cassie described being happy before the incident, but then feeling like a balloon deflating when it happened. She described her mental health and her life as going downhill from there. Cassie said that her after-school routine changed because of her fear that she would see you if she went to the shops after school, and she started to feel unsafe around men. Further, Cassie described that she suffered flashbacks of what happened; started to self-harm; felt low, numb and drained; and had limited social interactions because she did not want to go outside and felt so alone. Cassie also recounted the distress she felt at losing most of her paternal family and having them not believe her allegation; as well as the loss of the previously safe father-daughter relationship she had had with you.
4. Ms Purslow echoed Cassie's description of the impact of the offending upon her, and described Cassie's childhood as having been interrupted in a way that cannot be repaired. Ms Purslow stated that Cassie has experienced confusion, heartbreak, anger, guilty, anxiety and a deep sadness in the aftermath of the offending.
5. Additionally, Ms Purslow described the impact upon herself and the wider family unit. She recounted the immediate shock, and the ongoing feelings of breach of trust and betrayal, she has experienced as a result of learning of your offending conduct against Cassie. Ms Purslow outlined the deterioration of her own mental health - and the distress she has felt in trying to deal with the aftermath of the offending for each of her three children. She described the loss that each of her children have felt from not having their father, or their entire paternal family, in their life. Ms Purslow also detailed the financial impact of your offending - which included having to leave her employment to care for the children full-time.
6. Ms Purslow concluded by stating:

this offence has caused immeasurable harm, emotionally, psychologically, financially, and developmentally. It has permanently altered our family, our relationships, and the course of our lives. The betrayal was not only of a child, but of a family, a mother, a partnership, and a home. The ripple effects continue every day as we navigate the ongoing trauma and rebuild as best we can.

7. There is no doubt that your offending has had, and continues to have, an acute impact on Cassie and the wider family unit. I take that impact into account in sentencing you.

1. As I noted when summarising the chronology of this matter, you did make a plea offer on the first day of the trial, prior to empanelment of the jury, which incorporated the charge of which you ultimately have been found guilty.
2. Ms Wendlandt submitted, on your behalf, that mitigatory weight should be accorded to that plea offer as there would have been utilitarian benefit in the trial not running twice.
3. Mr McKenry, on behalf of the prosecution, acknowledged that you did offer to plead guilty to this offence prior to trial, however ultimately you did not plead guilty and as a result this incident did proceed to trial on two occasions. He noted that whilst your sentence does not fall to be aggravated on the basis that this matter went to trial twice, you also cannot claim any mitigation of your sentence on the basis of remorse, or saving your daughter from having to give evidence against you.
4. It is well accepted that there will be circumstances where, upon sentence, an allowance is made for the utilitarian benefit of a rejected offer to plead made prior to trial.[7] However, as stated by the Court in Zarghami v The Queen [2020] VSCA 74:

[t]he weight to be given to the utilitarian value of an offer to plead guilty may vary greatly depending upon such factors as acknowledgement of guilt in circumstances where there is an arguable defence; the length and complexity of the trial sought to be avoided; the benefit of avoiding stress, anxiety and trauma to victims, witnesses and affected members of the community; and the freeing up of resources, for example the expertise of specialist forensic witnesses and other considerations. It follows that there can be no standard weight attributed to the utilitarian benefit of an offer to plead guilty but there must be some material weight in cases where a utilitarian benefit requires acknowledgement if only because of the underlying public interest considerations referred to above.[8]

5. I accept that in the present case, should your plea have been accepted, it would have still had utilitarian value despite the late point in time at which it was offered. This matter proceeded through two trials of some length before coming to a conclusion and you were acquitted of all other charges - meaning that the ultimate outcome reflects the plea offer which you made. Whilst it does not appear that you renewed your plea offer after the first trial, I accept that it would have been forensically difficult for you to have pleaded guilty to the current charge and still proceeded to contest the remaining charges on either the first or the second trial given that tendency reasoning was an available path of reasoning for the jury at trial.
6. Bearing these matters in mind, it is plain that an acceptance of your plea offer would have resulted in significant savings in cost and court time, and you should get the benefit of that in any sentence imposed upon you. However, you do not fall to receive the benefit on sentencing of saving your daughter from having to give evidence given the late stage at which you offered to plead guilty which post-dated the special hearing, nor do you get the benefit of having shown any level of acceptance of responsibility or remorse for your conduct. In the circumstances I have given moderate weight to your plea offer as a mitigatory factor in the sentencing synthesis, but have not accorded it the substantial weight which would have been available if it had been made at an earlier stage and/or in circumstances where it reflected an acceptance of responsibility and remorse.

1. As identified by the prosecution, you do have an aged but relevant prior criminal history.
2. On 30 October 1996, when you were 18 years of age, you were sentenced in this Court for two charges of sexual penetration of a child between the ages of 10 and 16. In respect of the first charge you were convicted and placed on an adjourned undertaking for a period of three years, and on the second charge you were convicted and placed on a community based order for a period of 12 months with a requirement that you perform 100 hours of unpaid community work. You subsequently breached the community based order by failing to complete the community work hours within the required time, and the order was varied with it being extended by six months, and with the community work condition deleted.
3. I was provided with the brief sentencing remarks in respect of both matters, and it is apparent that your offending on that occasion - whilst sexual and serious - was of a different nature to that currently before the court. Yourself and the victim in that matter (who was 13 years of age) were in a boyfriend/girlfriend relationship at the time and engaged in sexual intercourse on two occasions. On the first occasion you were 17 years of age and on the second you were 18 years of age. That can be contrasted with the current offence which you have committed as a mature adult, against your own daughter, in circumstances of a significant breach of trust.
4. Having said that, this prior matter is still relevant in two ways. First, this current matter is not the first occasion on which you are coming before the court to be sentenced for sexual behaviour with a child - making you well aware of the prohibition against sexual contact with children and the consequences which can flow. Second, the prior matter has relevance to the application of the provisions of the Sex Offenders Registration Act 2004 (Vic) which I will return to at the conclusion of these sentencing reasons.

1. As was rightly acknowledged by your counsel, the offence of which you have been found guilty is an inherently serious offence. That simple proposition is reflected in the maximum penalty and the standard sentence assigned for the offence of sexual assault of a child under 16 years of age. However, as with any type of offence, there can be varying degrees of gravity depending upon the particular circumstances of the offending itself.
2. In the case of your particular offending, Ms Wendlandt acknowledged on your behalf that sexual offending against children is undoubtedly serious and there is a presumption of harm to children who are victims of sexual offences. Ms Wendlandt conceded that your offending is aggravated by the fact that you are Cassie's father, the offending occurred whilst she was in your care in the family home, and your offending constituted a gross breach of trust. Further, there was a significant age gap between you and Cassie, with you being 41 years of age and Cassie being only 11 years of age at the time of the offending.
3. Ms Wendlandt contended that despite these aggravating features, your offending still falls at the lower end of seriousness for a charge of this type when compared to the wide variety of behaviour encompassed by this charge. Ms Wendlandt emphasised that this was a single incident, with a kiss on the lips only for a relatively brief duration. The offending was not accompanied by other offending and there was no physical injury caused, although Ms Wendlandt acknowledged that the incident had clearly had a lasting psychological impact on Cassie.
4. Mr McKenry, on behalf of the prosecution, predominantly agreed with Ms Wendlandt's characterisation of your offending. He conceded that your offending does not fall at the more serious end of offending for this type of charge, however he submitted that your offending is still objectively very serious. Mr McKenry submitted that Cassie was entitled to sexual safety in her own home. You offended against Cassie in circumstances where you are her biological father, she was very young at the time of the offending, you were lying on top of her when you were kissing her, the kissing lasted for one to two minutes, and only stopped because of interruption. Further Mr McKenry submitted that your offending constituted a grave betrayal of trust not only of Cassie, but also of Ms Purslow - your partner and Cassie's mother; and was a sexual act that caused real harm as reflected in the victim impact statements.
5. I agree with both counsel that your offending was serious and involved a gross breach of trust. Cassie is your daughter. She was thirty years younger than you and was vulnerable given her young age and her relationship with you. Whilst your offending against Cassie did not involve any threats or injury, it occurred in the family home which was a place she was entitled to feel safe. Moreover, your offending was not momentary - it lasted for one to two minutes, before ceasing due to an interruption by your son.
6. As is acknowledged by the courts in this State, sexual offending by a parent involves a breach of trust of the most fundamental kind, and the impact on the child is likely to be profound and lifelong. The sexual abuse deprives the child of the right to sexual autonomy and integrity, destroys the innocence of childhood and leaves the child with deep emotional and psychological injury. It also causes great distress to other members of the family.[9] This case is no different in that regard.
7. Having said that, I do accept that your offending, when considered in light of the range of cases which can constitute the offence of sexual assault of a child under 16 does not fall at the more serious end of this kind of offending. Rather it falls somewhere between the lower and middle of the range of offending given the conduct involved, the isolated nature of the incident, and the manner in which the offence was committed.

1. Turning to your personal circumstances, you are now 47 years of age. You were born in England and were the older of two children to your parents, who were barely adults themselves when you were born. Your father was a textile mechanic and your mother was initially a factory worker, and then worked in the real estate field as a property manager.
2. When you were 11 years of age, your father found a job in Melbourne and the family migrated to Australia. Your father gave you the option of remaining in the United Kingdom with an aunt, but you moved with your family. I am told that the potential of your parents moving to Australia without you gave rise to longstanding fears of abandonment for you.
3. Upon arriving in Australia, you continued your schooling in Croydon and ultimately completed Year 10 at school. Throughout your childhood you had had a complex relationship with your father - with both you and your mother describing your father as having been physically and emotionally abusive towards you.
4. Despite the issues in the relationship between you and your father, upon completing Year 10 at school, you commenced working with him and completed a textile mechanic apprenticeship. Ultimately, however, you left the workplace after four years as you could no longer tolerate his behaviour and the issues in your relationship with him. You then went on to complete an air-conditioning mechanic apprenticeship and worked in this field until 2007, whereupon you changed career paths and started to work in customer service roles.
5. In 1998, whilst you were still undertaking your second apprenticeship you married your first partner and had a daughter. That relationship ended in 2005, and shortly thereafter your relationship with Anna Purslow commenced. Cassie was then born in 2007, and your other two children in the years thereafter. You continued to work in customer service roles during this time.
6. Moving forward to 2018 and 2019, you had short contracts in customer service roles with Red Energy and the Australian Tax Office. Between roles there were some months where you were not working. The circumstances of the family dynamics in 2018 and 2019 were detailed during the trial, including a three-way relationship between Ms Purslow, yourself and Ms Purslow's friend, Melinda.[10] Your involvement in that three-way relationship ended in approximately April 2019, however Ms Purslow and Melinda continued to be romantically involved thereafter. The offence for which you fall to be sentenced occurred in July 2019, and on 1 August 2019 you were told to leave the family home - which you did. Aside from one contact with your children as a result of Family Court proceedings which you brought in 2022, you have not had any contact with your children since mid-2019. You accept that it is highly unlikely, as a result of this offence, that you will have any future contact with your children either.
7. Since your offending, you have again changed career paths and have been working in IT as a technical support consultant for the past five years. In April of this year, you commenced a new role at Outright Technologies, but you were still in your probation period at the time of the re-trial and your employment was terminated. As a result, you are currently in receipt of Job Seeker benefits. However, I am told that you are in the process of completing a Certificate III in cybersecurity through Holmesglen TAFE, which has an expected completion date of mid-2026 (subject to any interruption which may be caused by the sentence imposed in the current matter).
8. You are also in a long-term relationship with a woman named Gwen Lange.[11] The two of you met in September 2019, and commenced a relationship towards the end of 2019. The two of you are now engaged, and Ms Lange and her family have continued to support you throughout these proceedings, as have your mother, and your sister.
9. I received references on the plea from each of your mother, your sister, Ms Lange, and Ms Lange's father. Each of them spoke of you as being loving, caring, and as putting family first, and each expressed their commitment to continuing to support you into the future. I accept that, as a result, you will have a solid and stable support base into the future.

1. As previously identified, it has now been over two years since you were charged with this offence; almost three years since you were interviewed by police; and over six years since you committed the offence, were spoken to by child protection, and told to leave the family home.
2. Ms Wendlandt submitted on your behalf that delay, and the ultimately punitive nature of the trial proceedings in this case, are mitigating factors which I should take into account in your favour. Ms Wendlandt submitted that the intense stress caused by the protracted trial process is a matter which can be taken into account in mitigation. Further, she noted that the trial process had the additional effect of causing you to lose your employment which added to the punitive nature of the proceedings.
3. In terms of rehabilitation, Ms Wendlandt submitted that you do have good prospects for rehabilitation. She acknowledged your prior matter for sexual offending, but submitted that it was 29 years ago and of a different nature to the matter currently before the court. Ms Wendlandt submitted that despite not admitting your offending, there has not been any subsequent offending, you have returned to work and education, you have established a new relationship, and have the ongoing love and support of your family, your partner, and your partner's family. Ms Wendlandt submitted that each of these factors are protective factors and productive of good prospects for rehabilitation. Ms Wendlandt submitted that taking into account these circumstances, lesser weight could be given to the sentencing purpose of specific deterrence, whilst the sentencing purposes of rehabilitation and community protection could be best met through the imposition of a community correction order requiring you to undergo treatment.
4. In contrast to Ms Wendlandt, Mr McKenry submitted that in addition to general deterrence and denunciation, specific deterrence and community protection both still carry significant weight in the sentencing synthesis in your case. Mr McKenry submitted that there is no material before the court which would allow me to properly assess your prospects for rehabilitation in that no psychological material or risk assessments have been put before the court. Mr McKenry submitted that in the absence of material, your prospects of rehabilitation could be said to be guarded at best.
5. It is well established that significant delay can be a powerful mitigating factor where that delay occurs through no fault of the accused. I note that the fact that an offender exercises their right to contest criminal charges will not be considered the fault of the offender for the purposes of considering the effect of the delay on them, and the extent to which the delay is mitigatory.[12]
6. There are two limbs to delay as a mitigatory factor. The first limb concerns unfairness to the offender in the sense that the relevant charge has been hanging over the offender's head and causing him or her anxiety. The second limb concerns whether, during the period of delay, the offender has made progress towards rehabilitation and whether there are good prospects of rehabilitation. This second limb has two aspects - first, whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse; and second, whether the offender has taken steps to reform, including by seeking counselling or other professional assistance, refraining from committing further offences and being a valuable member of the community. Both aspects of rehabilitation must be demonstrated in order for the court to give full weight to that second limb.[13]
7. I accept that there has been significant delay in this matter. I also accept that the trial process has been protracted, somewhat punitive in nature, and that these proceedings have been a source of stress and anxiety for you over an extended period of time. I further accept that in the six years since this offence was committed, you have remained offence free, returned to work and study, and commenced and created a loving and stable relationship with Ms Lange. These factors are all factors conducive to rehabilitation. Accordingly, I am of the view that both limbs of delay as a mitigating factor are enlivened in this case, and I do take delay into account as a mitigating factor in your favour.
8. However, I cannot give full weight to delay as a matter in mitigation in circumstances where you have neither accepted responsibility, nor shown remorse, for your offending. Despite offering to plead guilty to this charge on the first day of the first trial, in the aftermath of being found guilty of it you have continued to deny that the offence occurred. Whilst, as I have already explained, your plea offer has mitigatory value, you cannot and do not get the benefit of having shown any level of responsibility or remorse for your conduct. Nor do you receive the benefit of having undertaken any treatment to address that conduct. For those reasons, the weight to be given to the second limb of delay as a mitigatory factor is substantially moderated.
9. Additionally, I agree with Mr McKenry that it is difficult to properly assess your prospects of rehabilitation in circumstances where you have not accepted responsibility for the offending, and I have no material before me as to the reasons for that offending, or an assessment as to your level of risk of future sexual offending. Having said that, I accept that you do have positive factors in your favour including the fact that there has been no further offending in the past six years, your strong history of employment and education, and the ongoing support which you have from your family, your partner, and your partner's family.
10. Taking into account all of these matters, including your ongoing denial of the offending, I am of the view that specific deterrence does still carry significant weight as a sentencing purpose in your case - as does general deterrence and denunciation. However, I agree with Ms Wendlandt that rehabilitation does also still have a role to play in sentencing you - and there is a need for you to engage in assessment and treatment for your offending in order to address both your rehabilitation and long-term community protection.

Sentencing Submissions, Standard Sentence Provisions and Current Sentencing Practice

1. Turning now to the sentencing submissions made by each counsel. Mr McKenry submitted that your offending was objectively serious and that the sentencing purposes of denunciation, specific deterrence, general deterrence and community protection can only be met by the imposition of a term of imprisonment. However, Mr McKenry noted that the prosecution makes no submission as to the necessity for a head sentence and non-parole period.
2. By contrast Ms Wendlandt submitted that whilst general deterrence plays a significant role in the sentencing process, there are factors in your case including the level of gravity of the offending, the impact of the delay in finalisation of the matter, the punitive nature of the trial process, your lack of subsequent criminal history, and your strong history of employment and family support, that suggest a non-custodial outcome is both available and a more appropriate disposition. Ms Wendlandt submitted that a community correction order of appropriate length and with treatment conditions would be capable of meeting all of the relevant sentencing purposes.

Standard Sentence Provisions and Current Sentencing Practice

1. As already noted, the Sentencing Act requires me to take into account the standard sentence of four years' imprisonment in respect of the charge as one of the factors relevant to sentencing. Pursuant to s 5A(1)(b) of the Sentencing Act, 'the period specified as the standard sentence for the offence 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'.
2. Section 5A(3) states that objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to a particular offender or class of offenders; and wholly by reference to the nature of the offending. The nomination by the legislature of a standard sentence does not make that sentence a starting point from which to add or subtract time. As explained by the Court of Appeal in Brown v R [2019] VSCA 286, this requirement is to be treated as a 'legislative guidepost', having the same function as the maximum penalty; does not affect the established 'instinctive synthesis' approach to sentencing; does not require or permit 'two-stage sentencing'; and does not otherwise affect the matters which the court may, or must, take into account in sentencing.[14]
3. The requirement to take into account current sentencing practice as one of the factors in the instinctive synthesis, still remains even when sentencing under the standard sentence regime. However, pursuant to s5B(2) of the Sentencing Act, when considering current sentencing practice for a standard sentence offence, the Court must only have regard to sentences previously imposed for the offence as a standard sentence offence. It follows that non-standard sentence cases are only relevant insofar as they relate to sentencing principles, they cannot be relied upon in respect of the actual sentences imposed.
4. To that end, Mr McKenry provided three cases determined since the introduction of the standard sentencing scheme where accused persons had pleaded guilty to a charge of sexual assault of a child under 16 where the sexual assault was occasioned by kissing.[15] Mr McKenry conceded that none of the authorities were on all fours with your case - both in terms of the factual circumstances of the offending or the circumstances of the offender. However, he submitted that the cases he provided do establish that imprisonment is imposed for this kind of offending, even on pleas of guilty, when dealt with in the higher courts.
5. Ms Wendlandt did not seek to provide any comparable cases - noting that she had not been able to identify any cases which were equivalent to the factual scenario of your offending. Ms Wendlandt submitted that the circumstances of the cases presented by the prosecution amount to more serious examples of the charge of sexual assault of a child under 16. She further noted that an offence of a similar nature to yours - if charged alone - would ordinarily be heard in the Magistrates' Court, which would contribute to the lack of sentences for similar cases in the higher courts. Ultimately Ms Wendlandt maintained her submission that yours is a case where a community correction order could be imposed rather than a term of imprisonment.
6. I have read the cases provided by Mr McKenry. Whilst each case does involve the kissing of a child under the age of 16 in circumstances where there has been a gross breach of trust, the circumstances in each case are very different to those in your case, not least because none of the accused were being sentenced in respect of a single isolated offence - which is the basis on which I am sentencing you. Having said that, the cases are instructive as examples of the application of the relevant sentencing principles applicable in the area, and provide an illustration of the possible range of sentences available, without defining that range. Ultimately, in sentencing you, whilst I have had regard to current sentencing practice, I have sentenced you on the basis of the application of the principles to the specific facts of you and your case.

Parsimony and the Availability of a Community Correction Order as an Available Sentencing Disposition

1. Given the submissions made on your behalf on the plea I had you assessed for your suitability for a community correction order whilst advising you that you should not consider that assessment to be any indication of the sentence which may be imposed upon you.
2. As I have already noted, when you were assessed you denied the offence occurred. However, you did agree that you would engage in everything that would be required of you if you were to be placed on a community correction order. You were assessed as a medium risk of general re-offending, but were not able to be assessed as to your risk of sexual re-offending - such an assessment needing to be undertaken by the specialised Forensic Intervention Service rather than by Corrections. You were ultimately assessed as suitable for an order, with recommendations that you be subject to supervision, and a condition that you be assessed for and undertake offence specific programs including a sex offender program. The assessor identified that to facilitate this, a community correction order of at least 18 months is recommended.
3. In sentencing you, it is imperative that the gravity of your offending is reflected in any sentence that I impose and that due weight is given to the sentencing purposes of general deterrence, specific deterrence, and denunciation. The sentence which I impose in this case must act as a deterrent to both you, and others who are minded to commit such offences against their own children, and must reflect the community's and the court's denunciation of your conduct whilst still being a just and appropriate punishment in all of the circumstances. However, as I have also noted, rehabilitation and community protection do have a role to play in sentencing you.
4. In determining the appropriate sentence in this case I must take into account the principle of parsimony - which in this case requires me to consider whether all of the relevant sentencing purposes can be met by the imposition of a community correction order alone or in combination with a term of imprisonment, or whether all of the sentencing purposes can only be met by the imposition of a term of imprisonment.
5. As identified by the Court of Appeal in its guideline judgment of Boulton v R [2014] VSCA 342; (2014) 46 VR 308:

...a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and of the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[16]

1. Having carefully considered all of the various sentencing considerations raised by this case, I have ultimately come to the view that given the gravity of your offending, the sentencing purposes of deterrence and denunciation cannot be adequately met by the imposition of a community correction order on its own. A community correction order can be punitive - especially if lengthy and occasioned by multiple conditions. However, the gravity of your offending in this case, and your accompanying lack of acceptance of responsibility for it, necessitates a sentence that makes it clear to you that your behaviour is unacceptable; makes it clear to others in the community that a severe breach of trust of this kind against a vulnerable child will not be tolerated; and communicates society's condemnation of this kind of conduct. I am not satisfied that a community correction order on its own can achieve those purposes in this case. However, given the mitigating factors in this case including, but not limited to, your offer to plead guilty, I am of the view that all of the sentencing purposes in this case - including deterrence, denunciation and rehabilitation - can be met by way of the imposition of a term of imprisonment combined with a community correction order and I intend to sentence in that manner.

1. Finally, I acknowledge that the sentence I am about to impose on Charge 5 is lower than the standard sentence for this offence. I have considered the standard sentence as one of the factors in my instinctive synthesis of the relevant facts and principles. However, having regard to all of the matters I am required to take into account in sentencing you, including the gravity of the offence and those features that weigh in aggravation and mitigation of penalty as outlined in my reasons for sentence, I am of the view that a sentence lower than the standard sentence is appropriate.

1. Mr Starkey, if you could please now stand up.
2. On Charge 5, sexual assault of a child under 16, you are convicted and sentenced to a term of imprisonment of six months. Additionally, you are placed on a community correction order which will commence upon your release from custody and run for a period of one year and nine months.
3. In addition to the mandatory conditions of the order you will be subject to the following special conditions:

(a) you must report to Ringwood Community Correctional Services within two clear working days of the commencement of this order;

(b) you will be under the supervision of a Corrections officer; and

(c) you must participate in programs and/or courses (including any recommended sex offender programs) that address factors relating to your offending as directed.

1. Do you understand these conditions?
2. I must tell you that if you do not comply with the requirements of the community correction order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and that could mean in the circumstances of this particular case, that you could face a further term of imprisonment. Do you understand that?
3. Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community correction order?
4. All right, thank you. You can take a seat while I go through the rest of the matters.

1. Mr Starkey, as a result of your conviction and sentence for sexual assault of a child under 16 you are a registerable offender under the Sex Offender Registration Act 2004 (Vic) and you are required to comply with the provisions of that Act.
2. Sexual assault of a child under the age of 16 is a Class 2 offence under the Sex Offenders Registration Act 2004 (Vic).[17] You also have a prior conviction for sexual penetration with a child between 10 and 16, which is a Class 1 offence.[18] Now just to explain that to you a little bit more. Although the Sex Offender Register doesn't apply - if you had been sentenced in relation - if the Sex Offender's Register had been in place at the time that you committed both of those offences, you wouldn't have been placed on it because you were under a particular age when the offences were committed. One of your offences does not count for the purposes of the Sex Offender's Register because it was committed before you were 18, but the other one does. So that means that I have to take the prior into account, even though you committed the prior when you were young, okay. So does that make sense to you?
3. So that then elevates what then happens under the Sex Offender's Register, rather than it just being a simple single offence that I have got to then use, I have to take into account that previous matter. So that changes the period of time you are on the Sex Offender Register for. It is a bit complicated, but do you understand? Yes, okay.
4. So, because of that prior conviction for sexual penetration with a child between 10 and 16, which is a Class 1 offence, the mandatory period of registration for a person who has previously been found guilty of a Class 1 offence, and then is found guilty of a Class 2 offence, is life.[19] So you will have to comply with the provisions of the Act for the remainder of your life.
5. The delegate of the Secretary of the Department of Justice, in these circumstances my associate, will be giving you a notice of your obligations under the Act and we will get you to sign to say that you have got that notification. It is really important that you read that material and if you do not understand it, speak to your lawyers about it, because there are some penalties, significant penalties that apply if you do not comply with those reporting obligations.

1. Now as a matter of completeness I note that there were no other ancillary orders sought by the Prosecution.
2. MR McKENRY: That's correct, Your Honour.

[7] See, e.g., Zarghami v The Queen [2020] VSCA 74, [21].

[9] See, e.g., DPP v Walsh (a pseudonym) [2018] VSCA 172, [1]; Fichtner v The Queen [2019] VSCA 297, [66]; and Lugo (a pseudonym) v The Queen [2020] VSCA 75, [6].

[12] See, e.g., R v Merrett, Piggott and Ferrari [2007] VSCA 1, [35]; and Arthars v The Queen [2013] VSCA 258, [27].

[13] See, eg, Tones v R [2017] VSCA 118, [42].

[15] Lugo v The Queen [2020] VSCA 75; Director of Public Prosecutions v Sutcliffe (a pseudonym) [2024] VSCA 63; and Director of Public Prosecutions v Dissanayake [2024] VSCA 320.

[17] Sex Offenders Registration Act 2004 (Vic) sch 2, cl 5A

[18] This prior offence of sexual penetration with a child between 10 and 16 took place before 1 October 2004 and was an offence of the kind listed in Schedule 1 of the Sex Offenders Registration Act 2004 (Vic). Pursuant to sch 1, cl 13(ii) of the Act, it is deemed a Class 1 offence.

[19] Sex Offenders Registration Act 2004 (Vic) s 34(1)(c)(ii)