Criminal Procedure Act 2009, ss 287 and 289; Sentencing Act 1991, s 6E.

Boxer (a pseudonym) v The Queen [2021] VSCA 300; Bugmy v The Queen (2013) 249 CLR 571; Carter (a pseudonym) v The Queen [2018] VSCA 88; 272 A Crim R 170; DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; DPP v Goldsmid [2023] VSCA 124; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634; DPP v Polat [2020] VSCA 174, considered.

1. The respondent was convicted of twelve charges after contesting thirteen charges which involved sexual offending against children.
2. The respondent's sentence was passed down on 21 December 2023 in the County Court at Melbourne, as follows:

• Section 6AAA Statement:

1. Sentenced as a serious sexual offender in respect of Charges 4 to 13 pursuant to s 6F of the Sentencing Act 1991.
2. The length of the reporting period is life pursuant to s 34 of the Sex Offenders Registration Act 2004.

1. Pursuant to s 287 of the Criminal Procedure Act 2009, the Director of Public Prosecutions ('appellant') has appealed against the respondent's sentence on two grounds:
   • Ground 1 - The individual sentences on each of charges 1 to 2, and 4 to 13, the orders for cumulation and the total effective sentence and non-parole period are each manifestly inadequate.
   • Ground 2 - The learned sentencing judge (the 'judge') erred by failing to apply the terms of Part 2A of the Sentencing Act 1991 (Vic), and, in particular, section 6E.
2. For the reasons that follow the appeal should be dismissed.

1. There were two victims. The first victim was TW, the biological daughter of the respondent, who was aged between 8 and 16 years old at the time of the offending. The respondent offended against TW for a period of just under 10 years. The second victim was SS, the daughter of one of the respondent's friends. SS was 13 years old when the respondent offended against her.
2. The judge summarised the circumstances of the offending which is set out below.[2]

1. The respondent and TW's mother were separated and TW remained in the respondent's care.
2. The respondent first offended against TW in 2007 when she was in about grade 2 and around age eight.
3. The respondent entered TW's room after she went to bed. The respondent put his hand under the blanket and onto her thigh. TW told the respondent to stop because she felt uncomfortable, but the respondent kept going. The respondent then opened TW's legs. TW tried to close her legs but she was not able to do so. The respondent then touched TW on her underwear, then under her underwear. The respondent touched TW on the clitoris and penetrated her vagina with his finger. TW asked the respondent to stop but he continued to penetrate her until she managed to close her legs. The respondent then left the room.

1. The next morning, TW woke up and the respondent was sitting on her bed. TW realised that the respondent was penetrating her vagina with his fingers. The respondent stopped and went to work.[3]

1. In 2008, the respondent entered TW's room as she was going to sleep. The respondent told TW that he did something to her when she was a baby that would make her laugh. The respondent then blew on, licked, then penetrated TW's vagina with his tongue. TW told the respondent that she did not like it and asked him to stop, which he did.[4]

1. In 2010, when TW was in grade 5 at school, the respondent took TW and her two brothers on a camping trip. The respondent and one of his sons slept in swags and TW slept in a tent with his other son. When the respondent's son was asleep, the respondent went into the tent and penetrated TW's vagina with his fingers.

1. Between 17 June and 31 December 2010, when TW was around 12 years old, the respondent entered her room while naked when she was trying to sleep. The respondent put his penis in TW's face and told her to suck on it. TW said no numerous times. The respondent left angrily when TW refused to do as he said.

Charge 7 - Indecent act with a child under 16

1. Between 17 June and 31 December 2010, TW awoke to the respondent trying to force her mouth open with his hands and attempting to put his penis inside TW's mouth. TW told the respondent 'no' and the respondent left the room.[5]

Charge 8 - Indecent act with a child under 16

1. On another occasion between 17 June and 31 December 2010, the respondent entered TW's room around bedtime. TW was wearing full length pyjamas. The respondent was in boxer shorts and had been drinking. The respondent told TW to sit on him. TW sat on the respondent's stomach. The respondent moved TW toward his penis. TW sat on the respondent's penis which was erect at the time. The respondent forced TW to move on his penis then suggested they try it without clothes on. TW said she did not want to and the respondent left the room.

1. In 2014 or 2015, when TW was in grade 9, aged 16 or slightly older, the respondent entered her room and showed her a large pink dildo. The respondent told TW to take off her underwear and then touched her vagina. The respondent suggested that he do something different. The respondent then used the dildo to touch TW's clitoris and then inserted it into her vagina. The respondent told TW that if she ever felt lonely, the dildo was in the respondent's bedroom for her to use. TW said she did not want to. The respondent took the dildo out of TW's vagina and left the room.
2. The respondent said to TW that what he did to her was a 'tickle' and told her on several occasions that it was their shared secret and that it should stay between the two of them.

1. TW did not know that what the respondent was doing to her was wrong initially. She recalls that when she was 13 and in grade 6, a family friend, SS, then aged eight, came to the house for a sleep over. TW told SS that the respondent did this 'tickling' thing to her where the respondent put his fingers into her vagina.
2. In 2017, when SS was 13, SS made a recorded statement to police about the respondent. The family friend told police about the disclosure TW had made to her.
3. The respondent's sexual abuse of TW petered out in 2015 when she was in grade 10 and around 17. TW started having boyfriends stay over so that there would be less opportunity for the respondent to be alone with her.

1. In late 2016, SS's family stayed at the respondent's house while her family was moving between houses. One night when SS's mother was busy with the move, SS stayed over at the respondent's house by herself on a couch in the living room. SS was around 13 years of age.

Charges 10 and 11 - Sexual penetration of a child under the age of 16

1. SS woke up in the early morning to find the respondent had pulled her shorts and underwear to the side. The respondent inserted his fingers and then his tongue into SS's vagina. She froze.
2. When the respondent finished, the respondent left and went to the bathroom. SS closed her legs, hoping it was over.

Charges 12 and 13 - Sexual penetration of a child under the age of 16

1. The respondent then returned from the bathroom and again sexually penetrated SS's vagina with his tongue and fingers.

1. When SS's mother returned to pick her up later that morning, she found her daughter outside the front of the respondent's house. When they left SS told her mother that the respondent touched her with his finger on her vagina. SS also disclosed the allegation to the respondent's son and to TW.
2. In the following days SS and her mother returned to the respondent's house to pick up some items they had left there. The respondent's wife was angry and confronted SS and her mother about the allegations, accusing SS of making them up. The respondent's wife told SS and her mother to never to come back to the respondent's house. SS was forced to 'apologise' to the respondent for making up the allegations.
3. SS reported the respondent's offending to police in early 2017.
4. The respondent denied all offending against both victims when interviewed in 2018.

1. The judge characterised the respondent's overall offending as 'protracted, vile offending of the most egregious kind ... inflicted on two innocent children'.[6]
2. In relation to TW, the judge considered that the objective seriousness of the offending was very high.[7] The judge found that the offending against SS was also serious offending,[8] observing that the respondent took advantage of an opportunity to abuse SS which also involved a breach of trust.[9]
3. The judge found that the respondent's moral culpability was very high, given the persistent and repeated breach of trust,[10] although recognising that the offending did not involve penile penetration (and therefore did not expose them to the consequential risk of pregnancy or sexually transmitted diseases).
4. As for the offending against TW - the respondent's biological daughter - the judge considered that it was of significance that the offending commenced when she was aged eight and continued for almost a decade whilst the respondent was her sole caregiver.[11]
5. The judge then summarised the victim impact statements, concluding that the offending had impacted every facet of TW's life,[12] who had been diagnosed with anxiety, depression and post-traumatic stress disorder.[13] She avoids going out, is not connected to her local community, and has a fractured relationship with some members of her family as a result of the offending.[14] SS spoke of how the respondent had stolen her youth and had changed her life forever. Amongst other things, SS talked about her profound social isolation, and a range of consequential mental health challenges.
6. The judge then detailed the respondent's personal circumstances, observing that the respondent was born in Warragul and identifies as a person with a connection to the Torres Strait Islands. At the time of offending, the respondent was aged between 38 and 49 years, and at sentence he was 56 years old. The respondent's father was a career Royal Australia Air Force member and moved homes frequently including to Malaysia and the Solomon Islands. The respondent eventually returned to Australia to live with relatives.
7. The judge accepted that the respondent had a good work ethic, noting that he had pursued a successful career as a concreter since leaving school.[15]
8. The respondent and his partner have been together for approximately 40 years - although at times living separately - and have five children together.[16] Three sons had submitted references stating that they looked up to their father and continued to do so because they viewed him as loving and supporting. Friends of the respondent also submitted references which stated that the respondent was an active member of their community.[17]
9. The judge turned to the respondent's criminal history, noting that while he had a criminal record dating back to 1991, it was principally drug related and he had no priors for sexual offending.[18]
10. Next, the judge dedicated some time to the report of a forensic psychologist, Mr Ian Mackinnon, tendered on the respondent's behalf. The main features of that report - which appeared to have been accepted by the judge - were as follows:

(a) The respondent reported to Mr Mackinnon that as a child he suffered from extreme violence and abuse at the hands of his mother which resulted in him being removed from her care on a number of occasions.[19]

(b) The respondent was subjected to sexual abuse as a six year old child at the hands of three male teachers.[20]

(c) In the light of his background experiences, the respondent suffers from chronic Complex Post Traumatic Stress Disorder.[21] The respondent attempted suicide on a number of occasions.[22] He is currently being prescribed an antidepressant and has had several sessions with a psychologist.[23]

(d) The respondent has a psychosexual pathology, as a likely product of childhood abuse that he suffered, and this includes 'incestuous, paedophilic and hebephiliac impulses'.[24] The respondent is a highly damaged and disturbed individual, with his offence having possibly been driven by his own 'unconscious psychological conflict'.[25]

(e) Insofar as how the respondent would cope with imprisonment, Mr Mackinnon's opinion was that he would cope 'well enough' with a significant term of imprisonment.[26]

(f) While the respondent continues to deny having engaged in sexual activity with minors, he poses a significant ongoing risk of committing further similar sexual offences.[27]

1. The judge emphasised that Mr Mackinnon's evidence as to the respondent's 'psychological presentation' was relevant for background only, observing that defence counsel had conceded that Verdins[28] or Bugmy[29] type considerations were not enlivened.[30] Indeed, the judge found that the respondent was an appropriate vehicle to sentence for general deterrence because he 'appeared to be in a relatively stable state of psychological health.'[31]
2. The judge emphasised that the respondent had expressed no remorse for his offending.[32]
3. The judge turned to assess the respondent's prospects for rehabilitation. Having regard to Mr Mackinnon's opinions, and the respondent's persistent denial of the offending, the judge concluded that the respondent's prospects for rehabilitation were currently 'poor'. The judge went onto clarify that were it not for his refusal to accept the allegations, his prospects of rehabilitation would be reasonable, in light of his work ethic, his contribution to his family and to the community, and the fact that his criminality is not entrenched.[33] Nonetheless, the judge considered that specific deterrence had particular significance in this case.[34]
4. The judge had regard to the serious sexual offender provisions (which she noted applied to charges 4 to 13 inclusive), and noted that protection of the community was the primary sentencing purpose.[35]
5. The judge concluded her reasons by referring to the principle that repeat offending over a period of time will become progressively more serious 'by virtue of the fact that he has had the opportunity, during the intervening period, to reflect on his conduct'.[36]

(a) The respondent exploited his parental relationship by offending against his biological daughter, TW.

(b) The respondent commenced offending against TW when she was approximately eight years old. The respondent continued the offences for nearly a decade until TW was aged 16 years.

(c) The respondent offended in the victim's bedroom where TW was entitled to safety and privacy.

(d) The respondent took advantage of TW's vulnerability in the family home, particularly around the time that TW's mother left and commenced living separately from TW.

(e) The respondent's offending involved digital and lingual penetration of the vagina, penetration of the vagina with a dildo, and the attempt to force TW to suck his penis.

(f) The respondent often offended against TW when she was trying to sleep (or around bedtime).

(g) The respondent continued offending against TW despite her objections and resistance.

(h) The respondent manipulated TW by describing the offending as a 'shared secret' or a 'tickle' which should stay between them.

(i) The respondent's offending had a devastating impact on TW's relationship with her family. TW is now isolated and has been subjected to harassment and abuse.

(j) The respondent offended against SS when she was 13 years old.

(k) The respondent offended against SS when she was asleep when SS was left in the respondent's care at the respondent's house.

(l) The respondent denied offending against SS and SS was forced to apologise to the respondent for raising the allegations at the time.

(m) The respondent's offences of violence were committed against children, who were physically vulnerable.

(n) The respondent perpetrated the 'depraved acts for [his] own sexual gratification'.

1. The appellant submitted that the indecent act offences (charges 6 to 8) were serious examples of this crime, involving, as they did, highly intrusive and degrading conduct in the face of objection and resistance.
2. The respondent continues to deny the offending and has not shown remorse. Rather, the respondent blames his victims.
3. The appellant submitted that the respondent is a suitable vehicle for general deterrence where the respondent's counsel conceded that the respondent's psychological presentation was relevant for background purposes only and, moreover, conceded that no so-called Verdins or Bugmy type considerations were enlivened.
4. The appellant relied on the psychological report of Mr Mackinnon to submit that the respondent poses a 'significant ongoing risk' of committing further similar sexual offences. The appellant relied upon the judge's finding that the respondent's prospects of rehabilitation are poor and that the respondent poses a significant danger to the community.
5. The appellant submits that the cumulation on charges 2, 4, 5 and 9 failed to adequately reflect the seriousness of the incest offending, the separate criminality of each offence, or the high moral culpability involved. In this respect, the appellant made two related submissions. One was that the moral culpability of the offending increased on each successive occasion of offending, citing DPP v Polat.[37] The other is that the orders for cumulation failed to reflect the legislative policy under s 6E of the Sentencing Act 1991; this required substantially greater orders for cumulation.
6. Ultimately, the appellant submits that the sentences imposed were wholly outside the range of sentences available to the judge in the reasonable exercise of the sentencing discretion.
7. In the alternative to ground 1, the appellant relied upon ground 2. If the Court finds that the individual sentences imposed are not manifestly inadequate (or, it was 'only just' adequate), the orders concerning concurrency and cumulation still produced a total effective sentence that was manifestly inadequate and revealed an error by way of failure to apply s 6E of the Sentencing Act 1991.[38]

1. The respondent submits that there are factors in mitigation which account for the sentence imposed:

(a) The respondent is 56 years of age.

(b) He had a dreadful upbringing which resulted in a diagnosis of complex post-traumatic stress disorder resulting from his childhood experiences.

(c) He had no relevant prior criminal background.

(d) He had indicated his preparedness to take part in inmate programs including therapy, rehabilitation and in working as a metal fabricator.

(e) It was his first time in custody.

(f) He had a good relationship with his partner and sons who provided testimonial references for him attesting to his good moral character.

(g) He made contributions as a volunteer and has a strong work ethic.

(h) He had a good intellect and is not mentally unwell but was diagnosed with a paedophilic disorder and a substance abuse disorder.

(i) Through the strength of his character, he had risen above features of disadvantage in his life.

1. The respondent submitted that whilst Mr Mackinnon opined that he was a high risk of reoffending - given his failure to embrace the allegations that are now proven allegations - there were a number of matters which ameliorated this consideration:

(a) From December 2018 (when he was interviewed) until 25 October 2023 (when he was remanded), there was no further offending despite spending a period of five years in the community.

(b) Upon release, he will be restrained on parole and will have all the constraints of registration as a serious sex offender (and possibly under the Serious Offender Act 2018 provisions).

1. Although senior counsel for the respondent did not call it a Bugmy submission as such, he placed considerable reliance upon the report of Mr Mackinnon concerning the respondent's disadvantaged background and the connection between the respondent's own sexual abuse as a child and the instant offending. While acknowledging that there was a degree of uncertainty about whether there was 'direct causal connection', he submitted it was at least 'probable'.
2. As for the orders for cumulation, the respondent underscored that judges are given great latitude when it comes to structuring sentences for multiple offences and making orders for cumulation. In this case, he said, the principle of totality had been applied properly. The orders for cumulation were moderate and appropriate, producing a total effective sentence within the range. The crux of the respondent's submission is that the total effective sentence of 14 years and 2 months' imprisonment was a significant period of imprisonment for someone of his age with no prior convictions. He underlined that it must be assumed that the respondent may be called upon to serve every day of this sentence.
3. While accepting that this offending involved repeat offending, this case was not, the respondent said, persistent in the way in which the facts of Polat were persistent; there are no uncharged acts or representative charges in this respondent's case. In any event, there is no principle that mere recurrence or persistence must necessarily result in higher individual sentences. This can be adequately expressed through the orders for cumulation. The respondent said this is what occurred here; progressively higher orders for cumulation were made on the charges of incest (charges 2, 4, 5 and 9) being 8 months, 14 months, 14 months and 17 months respectively. The total cumulation for the incest offending - 53 months' imprisonment - to be accumulated on the base sentence of 6 years was significant.
4. Finally, the total cumulation ordered for the four sexual penetration offences against SS was 24 months. These offences, the respondent emphasised, were committed on a single day, which must have had a moderating influence on the degree of cumulation ordered.
5. The respondent accepted that the Court needs to be astute not to undermine the legislative policy inherent in s 6E by applying the totality principle as if that provision did not exist.[39] He said, however, that the judge's approach does not bespeak error in this respect. In this regard, the respondent emphasised the structure of the orders for cumulation - in particular, the fact that they increased resulted in a significant head term relating to the incest offences.
6. While the focus of the respondent's case was upon the total effective sentence (and the orders for cumulation), he maintained that the individual sentences were within the range. To support this argument, the respondent cited the historical sentencing patterns for the offence of incest and for indecent act with a child under 16 as revealed by the Sentencing Advisory Council Snapshots.
7. The respondent also referred to some comparable sentences. In short, senior counsel for the respondent submitted that, while this case involved some aggravating features, the conduct lacked the additional aggravating features which have resulted in some of the longer sentences for incest.[40] We will return to these arguments in more detail in our analysis below.
8. The respondent submitted that the appeal ought to be dismissed. He emphasised that ultimately, 'the real question for this Court is: should the total effective sentence be increased?'.

1. The principles applicable to an appeal on the ground of manifest inadequacy are well accepted. In order to succeed the appellant must persuade this Court that the sentences under consideration are wholly outside the range of sentences reasonably open to the judge in the circumstances of the particular case. By its nature the test is difficult to make out. It must be demonstrated that the sentences were not open to the judge in the sound exercise of his or her sentencing discretion.[41]
2. This Court may only allow a Director's appeal against sentence if the appellant satisfies the Court that 'there is an error in the sentence first imposed'[42] and, that 'a different sentence should be imposed'.[43] In determining whether 'a different sentence should be imposed', this Court has a residual discretion to dismiss this appeal notwithstanding its conclusion that there is an error in the sentence first imposed.[44]

1. Before applying those principles to the facts in this case, we need to make some preliminary observations.
2. First, as is apparent from the summary of the arguments, the manifest inadequacy ground (ground 1) incorporates the arguments by the appellant that the judge failed to give effect to Part 2A of the Sentencing Act 1991, and in particular to s 6E (ground 2). It is convenient to deal with both of these grounds together, which mirrors how the appeal hearing was conducted.
3. Second, the appeal attacks the adequacy of all of the individual sentences (and the orders for cumulation attaching to them). Nevertheless, the real focus of the appellant's oral submissions was upon the sentences imposed on the incest offences - being charges 1, 2, 4, 5 and 9 - and the orders for cumulation of those sentences. The incest sentences also provide the framework for the overall sentencing structure and outcome in this case. In the circumstances, our reasons are similarly focused upon these sentences.
4. Third, the judge sentenced the respondent upon the basis of a number of uncharged acts namely:

(a) After the incidents covered by charge 2, the respondent digitally penetrated TW's vagina on a weekly basis when her mother was not at the house.

(b) After charge 4, the respondent penetrated TW's vagina with his tongue on three other occasions.

(c) In addition to the penetration covered by charge 7, the respondent attempted to penetrate TW's mouth with his penis on a number of occasions.

1. At the hearing of this appeal, the joint position of the parties was that the respondent should not have been sentenced upon the basis of any uncharged conduct. The respondent had thus been sentenced upon an erroneous basis. Any consideration of this appeal must take this into account. Further, when this appeal was initially instituted, the appellant asserted that charges 2, 4 and 7 were representative charges. After having received the respondent's written case, the appellant withdrew this assertion. In short, there are no uncharged acts or representative charges.

Assessing the respondent's factors in mitigation

1. It is convenient to start by considering the respondent's material in mitigation before moving to the offending in question.
2. The import of the appellant's submission is that there was little that the respondent could call in aid in mitigation given that he was convicted after trial.
3. It is certainly true that the respondent was not entitled to any discount for pleading guilty, he was not entitled to any reduction due to remorse or contrition and his prospects of rehabilitation were 'poor'. It is also true that at the plea defence counsel positively eschewed any reliance upon Verdins.
4. It seems to us though that he was entitled to the mitigatory benefit of Bugmy. Defence counsel at the plea said this case is 'not a precise fit with the principles in Bugmy because this accused has risen above his disadvantaged upbringing.' Of course, that he had risen above his disadvantage did not preclude the application of Bugmy.[45] At all events, despite the judge's statement that Bugmy was not enlivened,[46] the judge did in fact seem to apply the principles of Bugmy. As senior counsel for the respondent in oral argument before us pointed out, the judge effectively accepted Mr Mackinnon's evidence concerning the respondent's significantly disadvantaged background, and the apparent link of his childhood sexual abuse to this offending. Although this was based upon self-report, it was not challenged by the prosecution.
5. The relevance of childhood deprivation to sentencing does not depend upon proof of a causal connection between the offending and the disadvantaged background or childhood abuse.[47] If it were required, Mr Mackinnon's evidence - that the respondent's psychosexual pathology was a likely product of his own childhood abuse, and that his offending in this case was possibly driven by his own 'unconscious psychological conflict' - provides some support for the existence of nexus.[48]
6. On any view, the Bugmy considerations were of some moment, and operated to reduce the degree of the respondent's moral blameworthiness. That is so even if the evidence also had a bearing upon other sentencing considerations - such as his risk of reoffending and community protection - which are likely to have moderated Bugmy's ameliorating influence.
7. It may be accepted that the respondent was unable to muster a considerable body of material in mitigation. That said, we think the tenor of the appellant's submission - that there was little that the respondent could call in aid - understates the situation somewhat.
8. We turn now to the offending.

Sentences for incest offences against TW (charges 1, 2, 4, 5, 9)

1. Incest is viewed by the courts and the community as a grave crime. This Court has said

[i]ncest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents. ...Incest involving a child is, moreover, a crime of violence.[49]

1. In assessing the gravity of incest, a judge must consider the nature and extent of the specific offending, its frequency and duration, and the circumstances in which it occurred.[50] All incest offending is abhorrent. Without in any way diminishing this observation, the law requires that some assessment be made as to where the particular conduct sits along the spectrum of seriousness relative to other incest cases.[51] Incest sentences which sit towards the higher end of seriousness, and which have to date attracted sentences of high order - that is to say, into the double figures - tend to be accompanied by a number aggravating features.[52] These include a level of violence over and above that which is inherent in incest, penile-vaginal and penile-anal penetrations and ejaculation (which may have exposed the victim to the consequential risk of pregnancy or sexually transmitted diseases), pregnancies, the presence of a further layer of degradation and indignity (such as filming), additional perverted or depraved behaviour (such as the use of sex toys), the young age of the victims, recurrent and persistent offending (including where there are multiple uncharged acts, course of conduct or representative charges), offending over many years, persistent offending in the face of distress, and profound victim impact.[53]
2. Some of these features are undoubtedly present in this case. They include TW's young age; each offence was committed within the context of repetitive offending over a protracted period of eight years, the offending continued in the face of TW's protests and - in the case of charge 9 - there was the perverted use of a sex toy. These factors increased the gravity of this offending individually (and collectively). The incest offences in the respondent's case are serious examples of what is an inherently serious offence.
3. Nonetheless, as repugnant as this offending is, it is not attended to the same degree by the aggravating features (by number or magnitude) usually present in cases which attract sentences of high order. For example, while this incest offending against TW was recurrent, it was not so persistent - for example on a daily or weekly basis - that it attracted representative or course of conduct charges.
4. Both parties sought support from current sentencing practices in making their respective submissions.
5. In relation to the incest sentences, the respondent focussed on a number of post-Dalgliesh[54] cases where the individual sentences cluster around 6 years' imprisonment.[55] Senior counsel for the respondent relied upon them to contend that the sentences in the respondent's case - which are of that order - were within the available range.
6. In our view, the difficulty with the respondent's reliance upon those previous cases is that they involve pleas of guilty. Such sentences will have attracted significant discounts associated with the entry of a plea. In incest cases, the utilitarian benefit of a plea is considerable given that this avoids the victim, and other affected persons, from having to undergo the ordeal of a trial.[56] A plea of guilty will also often attract a further reduction associated with remorse. For sentences involving pleas of guilty during the pandemic, account must also be taken of the fact that they will have attracted the Worboyes discount. In short, we accept the tenor of the appellant's submission that had the offenders in the cases relied upon by the respondent pleaded not guilty, one would have expected their sentences to be markedly higher than 6 years.
7. A few years ago this Court made the observations that 'post-Dalgliesh examples of sentences imposed for serious offending of this type after a trial are relatively rare'[57] or 'non-existent'.[58] They remain relatively uncommon. It may still be doubted that there is a discernible sentencing practice for such cases. But there are some examples. The respondent placed emphasis upon Carter (a pseudonym) v The Queen[59] (where individual terms of 6 years were imposed). Carter is not as serious as this case. Carter involved digital penetrations on two occasions, a year apart. Carter did not involve the same degree of repetitive offending. The offender in Carter was the step-father, not the biological father of the victim. While the victim was young (11 years), she was not as young as TW when the offending began (8 years). Carter was not sentenced as a serious sexual offender. Carter was also decided very soon after Dalgliesh. For sentences imposed some years ago, allowance must be made for the fact that incest sentences have been on the rise since Dalgliesh.[60]
8. Generally, we have found that current sentencing practices in this case are of fairly limited assistance. To the extent that the current sentencing practices can be discerned and are of utility, in our view, they support the appellant's contention that the individual incest sentences are manifestly inadequate.
9. The offending was reprehensible, and deserving of utter condemnation. We have been persuaded that terms of 6 years' imprisonment (charges 1, 2, 4 and 5) and 7 years' imprisonment (charge 9) cannot be reconciled with the gravity of this offending, for a person who was convicted after a trial and who was unable to marshal a body of compelling material in mitigation. In reaching that conclusion we are mindful of the Bugmy considerations but, as we have said, this material engaged some countervailing sentencing considerations. The sentences simply do not reflect the objective gravity of this offending. Accepting that sentencing is not mathematical, it is noteworthy that the 6 year terms of imprisonment do not even reach 25% of the maximum penalty of 25 years' imprisonment.[61] In our opinion, the sentencing considerations of denunciation, community protection, and general deterrence have not adequately found expression in these sentences.
10. While the offences may not be of a kind which would attract individual sentences of high order (i.e., into the double figures) they had to be substantially higher in the single figure range.[62]
11. Having concluded that the individual sentences for incest are manifestly inadequate, it would usually not be necessary to go on to consider the adequacy of the cumulation orders attaching to these sentences. Nonetheless, a consideration of those orders throws some light upon an assessment of the total effective sentence.
12. The discretion to make orders for cumulation is

a very broad one and should not be unduly circumscribed by appellate intervention. The authorities recognise that judges should be allowed great latitude in tailoring an appropriate total effective sentence.[63]

1. The orders for cumulation assigned to those incest charges where the respondent fell to be sentenced as a serious sexual offender[64] were demonstrably higher than that assigned to charge 2 where those provisions did not apply.[65] This increase can be explained by the additional harm caused by the recurrent offending (as explained in Polat) as well as by the judge's regard to the application of s 6E. In this case, while the cumulation orders for the incest offences might be described as relatively modest, they were consequential, totalling 53 months imprisonment.
2. Although the judge does not mention totality, we infer that totality operated to constrain the cumulation orders which she made. That principle required the judge to 'stand back' and consider what was an appropriate total effective sentence in light of the totality principle. Of course, this exercise was qualified by the application of the serious sexual offender provisions.[66] Yet, while totality had to give way to some degree to s 6E and its underlying policy, there remained a place for the operation of the totality principle.[67]

Sentences for indecent act offences against TW (charges 6, 7 and 8)

1. These indecent acts were truly dreadful behaviour. In particular, putting his penis in the face of his biological daughter and asking her to suck it is repugnant. We have not been convinced, however, that either the individual sentences (3 years) or the levels of cumulative attached to them (7 months) are wholly outside the permissible ranges.
2. The offence of committing an indecent act with a child under 16 can cover a wide variety of conduct in nature and gravity which makes it difficult to discern comparable sentencing practices. In his written case, the respondent relied upon the median or mean sentences taken from a Sentencing Advisory Council Sentencing Snapshot.[68] As this Court has said many times now, while such material can provide some guidance at the most general level, bare statistics must be treated with caution. They do not differentiate between the specific features of either the offending or the offenders or indicate whether the sentence followed a trial or plea of guilty. With these qualifications in mind, they offer some support for the respondent's contention that these sentences do not fall wholly outside the sound exercise of the sentencing discretion:

(a) This Snapshot shows that over the period from 2015 to 2020 the average length of imprisonment for indecent act with a child under 16 was 1 year and 10 months while the median principal imprisonment length was 1 year and 8 months.[69]

(b) It also shows - consistent with those figures - that sentences of 3 years or more are not common, with sentences of 4 years becoming even less frequent.

(c) While these patterns have their limitations, they suggest that the sentences of 3 years' imprisonment fall somewhere in the mid to higher range by reference to these historical patterns.

1. The respondent fell to be sentenced as a serious sexual offender for these offences. Self-evidentially there was no apparent increase in the individual sentences (3 years), or the orders for cumulation (7 months each). On one view, this might suggest that these sentences did not reflect the application of s 6D or s 6E or address the added gravity associated with the persistent nature of the offending (as described in Polat). We do not think that this is in fact the case. In our view, the approach taken by the judge falls within the tolerance of flexibility which must be afforded to a sentencing judge in structuring sentences particularly given that this sentencing exercise - insofar as it related to TW - was principally framed by the incest charges. Also, as a proportion of the individual sentences, the cumulation of 7 months on 3 year's imprisonment for the indecent act charges was significantly higher than the cumulation ordered on charge 2 where the serious sexual offender provisions did not apply (8 months cumulation on a 6 year term). This difference is likely explained by the application of s 6E in addition to a recognition of the progressive harm caused to TW.
2. These sentences and orders for cumulation do not bespeak error.

Sentences for sexual penetration offences against SS (charges 10-13)

1. The respondent's conduct constituted by charges 10 to 13 was exploitative, opportunistic, and reprehensible. They were serious examples of this offence. The offending occurred during a small window of opportunity when SS was placed in the respondent's care and was aggravated by the fact that the respondent denied offending against SS, who was forced to 'apologise' to the respondent for the raising the allegations.
2. In our view, the individual sentences of sexual penetration (3 years' imprisonment for digital penetration and 3 years' 6 months imprisonment for lingual penetration) concerning SS are very lenient indeed, for a person who was convicted after trial.
3. We are mindful though that some significant legislative signposts have changed since the respondent's offending. These offences were committed in late 2016 when the applicable maximum penalty was 10 years' imprisonment. It has since been increased to 15 years' imprisonment. Further, for offences committed after February 2018, a standard sentence of 6 years' imprisonment applies; this did not apply to this offending.
4. The instances of sexual penetration against SS all occurred on the one day, and while there was a separation between the two events, they were perpetrated in relatively quick succession. On any view, there was a considerable degree of overlap. Totality assumed some significance here.[70]
5. When regard is had to the orders for cumulation, the respondent received 5 years and 6 months' imprisonment overall for the totality of his penetrative conduct against SS that morning. A total of 24 months for this offending was accumulated upon the base sentence.
6. This close and temporal connection - and the application of totality - explains why the same level of cumulation (6 months) was assigned to each sentence. In our view, the uniformity of the orders does not evidence a failure to have regard to s 6E. Indeed, given that the offences were similar and so closely connected, the assigning of orders for cumulation for each of the offences is itself likely explained by the application of s 6E.
7. While the individual sentences are perilously close to being manifestly inadequate, we have not ultimately been persuaded that they necessarily fall outside the permissible range. If this conduct were committed today, we would be taking a different view. We are also unpersuaded that the cumulation ordered failed to carry adequate weight in the overall sentencing outcome, or that it failed to adequately recognise the seriousness of the offending against a separate victim.[71]

1. We turn now to consider the complaint against the total effective sentence of 14 years and 2 months' imprisonment.
2. It is difficult to compare sentencing cases involving multiple sexual offences by reference to total effective sentences (as distinct from individual sentences). This is because the total effective sentence is informed by so many variables, including the number of victims, the number and mix of the offences, and the duration and frequency of the offending.
3. That having been said, and while the respondent's appalling conduct fully merited this punishment, there is some force to the submission made by senior counsel for the respondent that a total effective sentence of 14 years and 2 months is a substantial head sentence for incest and other sexual offending involving two child victims, even after a trial.
4. Indeed, we detect some recognition by the appellant that their complaint against the total effective sentence has less force than it does against the other components of this sentence. For example, in the written case, the appellant contended the orders for cumulation were not reasonably open to the sentencing judge 'notwithstanding the total effective sentence imposed of 14 years and 2 months' imprisonment'.
5. Be that as it may, the appellant maintains its case that this head sentence falls wholly below the available range. The import of the appellant's case must be that 14 years and 2 months' imprisonment sits several years below the permissible range, moving into the upper half of the teens. The fact is, total sentences of that very high order are invariably imposed for activity associated with many of the aggravating features we have discussed above.[72] As we have said, while some of these features are present in this case, they are not present to the same degree as can be seen in those types of higher end multiple offence cases involving incest.
6. In our view, it was nonetheless still open to the judge to arrive at a total effective sentence of 14 years and 2 months' imprisonment by a combination of permissible individual sentences and orders for cumulation. That is so even when allowance is made for the requirement to impose higher sentences for the incest offences in this case, which as, we have said, are manifestly inadequate.
7. It may been open to impose a heavier total effective sentence. But this is beside the point. As this Court has repeatedly emphasised

It is not enough that an appellate court might conclude that it would have imposed a different order for cumulation, or a different total effective sentence, from the judge: reasonable minds frequently differ as to appropriate sentences. Rather, the order or sentence must be so far outside the range of a reasonable discretionary judgment as to itself reveal error.[73]

1. We are not convinced the total effective sentence here clearly fails to be a 'just and appropriate measure of the total criminality involved' in this case.[74] The sentence of 14 years and 2 months' imprisonment has not been demonstrated to fall wholly outside the available range in the sound exercise of the sentencing discretion.

1. The appellant carries the burden to show that the residual discretion should not be exercised.[75] The respondent submits that we should invoke the residual discretion.
2. It has been said previously that the residual discretion is 'perhaps of uncertain width' and that '[i]t is impossible to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case'.[76] The authorities have identified a non-exhaustive list of factors which inform the exercise of the residual discretion.[77] The Court in DPP v Karazisis stated that:
   • Among the factors that might be relevant to the exercise of the Court's discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.[78]
3. The appellant submitted that the residual discretion should not be exercised because of the importance of correcting the sentence, particularly given the objective gravity of this offending, the potential restraining influence of this sentence on standards for incest and related child sex offending charges, and the need to inoculate against inadequate sentences.
4. The respondent advanced the following reasons why the Court should exercise its residual discretion to dismiss this Appeal:
   • In part, this appeal relied upon an erroneous view of the facts of this case, that is, that charges 2, 4 and 7 were representative charges and therefore as a matter of law, had to call for higher sentences than those passed by the court below.
   • At the plea hearing, the prosecutor did not take the judge to any comparative cases.
   • The respondent, participated in a police record of interview in 2018, was charged in October 2020, was remanded in custody in October 2023, and was sentenced in December 2023. In the period of five years between the respondent being interviewed and then remanded on the charges, the respondent continued to live and work in the community without any further offending. The respondent extended this point observing that there was a significant delay - some 7 years - between the respondent being interviewed regarding this offending and the lodging and determination of this appeal.
   • Even if there may be some error in the mechanics of the construction of the sentences, the total effective sentence of 14 years and 2 months could not reasonably be said to be manifestly inadequate. Nor is there any point of principle which arises warranting upholding an appeal by the Crown in this case.
5. We have concluded that the appellant has not discharged the burden that the residual discretion should not be exercised.[79] We have reached conclusion for two reasons.
6. First, notwithstanding that we have found that the sentences imposed for the incest charges in this case are manifestly inadequate, we are of the view that the total effective sentence was within the permissible range.
7. Second, if the total effective sentence was manifestly inadequate, it did not fall below the permissible range by a sizable margin. That conclusion is partly based upon the fact that there are several matters which have assumed greater significance before this Court than at the plea hearing. In any resentence the respondent would be the beneficiary of these matters. These matters are:

(a) Delay, unfairness and rehabilitation. There was a significant delay between the respondent being interviewed by police regarding this offending and sentence (five years). The respondent was entitled to a sentencing benefit under both limbs associated with delay - the unfairness limb and the rehabilitation limb.[80] We are told that during that five year period, the respondent engaged in no further offending. This would have some bearing upon his prospects of rehabilitation. The judge assessed the respondent's prospects to be 'poor' but his offence-free time in the community does not appear to have been taken into account. This Court would be required to give the respondent the benefit of these matters. In addition, there has been a further delay of two years between sentence and the disposition of the appeal. While that delay of itself would not justify the exercise of the discretion in the circumstances of this case,[81] some account should be made for this additional period, given the context of the respondent's overall delay.[82] Altogether, it is now some seven years since his police interview.

(b) Bugmy considerations. As we have said, the respondent's five-year offence-free period within the community is likely to throw further light upon the respondent's prospects for rehabilitation. A more favourable assessment of the respondent's reform prospects will likely moderate the need for community protection. This would all have a bearing upon the weight to be given to the Bugmy considerations in any resentencing calculus. The Bugmy considerations were taken into account by the judge. But we think that on any resentence there would be a higher degree of moderation to the respondent's moral culpability and to general deterrence, than that given by the judge in the sentence at first instance.[83]

(c) Level of persistence. We have already mentioned that the judge sentenced the respondent upon an incorrect factual basis (uncharged acts). The appellant was not responsible for this mistake at the plea hearing. The appellant's original written case was, however, afflicted by a similar error although the error manifested itself as an assertion that there were representative charges. In an amended written case, the appellant withdrew this. Importantly, this is not a case where the appellant has changed their case from the hearing below. Certainly, we are not persuaded that the appellant has conducted itself in such a manner as to attract the exercise of the discretion. Nonetheless, the judge proceeded upon the footing that this offending was more persistent than it actually was. Were the respondent to be resentenced, this would need to proceed upon the basis that there was no repetitive offending beyond that covered by the discrete charges.

1. In the event that the respondent were to be resentenced, these matters - at least collectively - would have a material bearing. They would move the incest sentences imposed at first instance closer to a sentence that properly reflects the criminality of the respondent and would thus limit the uplift of the individual incest sentences (and associated orders for cumulation). This in turn would limit the uplift in the total effective sentence. These matters - which are quite specific to the facts of this case - would favour the exercise of the residual discretion in this case.[84]

1. The sentences imposed by the judge with respect to the incest offences were manifestly inadequate. In the circumstances of this case, however, the appellant has not established that the residual discretion to dismiss the appeal should not be exercised. In the circumstances, the appeal must be dismissed.

[1] To avoid the risk of identifying the alleged victim of a sexual offence, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the respondent.

[2] DPP v Wilkerson (a pseudonym) [2023] VCC 2427, [3]-[29] ('Reasons').

[3] The judge erroneously sentenced the respondent upon the basis that there were uncharged acts associated with charge 2. This is addressed below.

[4] The judge erroneously sentenced the respondent upon the basis that there were uncharged acts following charge 4. This is addressed below.

[5] The judge erroneously sentenced the respondent upon the basis that there were uncharged acts following charge 7. This is addressed below.

[28] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[29] Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ('Bugmy').

[36] Referring to DPP v Bowd [2019] VSCA 246, [28]-[29] (Maxwell P, T Forrest and Weinberg JJA).

[37] DPP v Polat [2020] VSCA 174 ('Polat').

[38] In support of this submission the appellant cited DPP v Hum (a pseudonym) [2022] VSCA 57, [125]-[126] (Kyrou, Niall and Whelan JJA); DPP v Polat (a pseudonym) [2020] VSCA 174, [42] (Maxwell P and Beach JA).

[39] The respondent cited R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 477 [76] (where Gleeson CJ, Gaudron and Callinan JJ discussed the similarly worded predecessor of s 6E of the Sentencing Act 1991).

[40] The respondent cited the following examples: DPP v Tullipan (a pseudonym) [2021] VSCA 191 (Maxwell P, Priest and T Forrest JJA). That case involved a course of conduct charge, persistent unprotected penile-vaginal penetration which caused two occasions of impregnation and a forced abortion. On appeal, an individual sentence of 15 years' imprisonment was imposed resulting in a total effective sentence of 16 years' with a non-parole period of 11 years 6 months.

[41] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634 (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.

[42] Criminal Procedure Act 2009, s 289(1)(a).

[43] Criminal Procedure Act 2009, s 289(1)(b).

[44] DPP v Oksuz [2015] VSCA 316; (2015) 47 VR 731, 160 (Kyrou JA); [2015] VSCA 316.

[45] Donovan v The Queen [2021] NSWCCA 323 (Simpson AJA, Rothman and Ierace JJ); Williamson v The Queen [2019] VSCA 138, [106] (Kaye JA).

[47] DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110, 121 [46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); [2021] VSCA 160.

[48] See the passages reproduced above at [38].

[49] DPP v Tullipan (a pseudonym) [2021] VSCA 191, [32] (Maxwell P, Priest and T Forrest JJA). See also DPP v Talbot (a pseudonym) [2024] VSCA 321, [51] (Emerton P, Taylor JA and Kidd AJA); Gibson (a pseudonym) v the King [2024] VSCA 33, [75] (Niall, Macaulay and T Forrest JJA).

[50] DPP v Talbot (a pseudonym) [2024] VSCA 321, [59] (Emerton P, Taylor JA and Kidd AJA).

[51] Boxer (a pseudonym) v The Queen [2021] VSCA 300, [47] (Niall and Walker JJA); Reid v The Queen [2014] VSCA 145; (2014) 42 VR 295, 312 [88] (Priest JA); [2014] VSCA 145.

[52] See, eg, DPP v Tullipan (a pseudonym) [2021] VSCA 191, [32] (Maxwell P, Priest and T Forrest JJA); DPP v Talbot (a pseudonym) [2024] VSCA 321, [52]-[58] (Emerton P, Taylor JA and Kidd AJA); Weir (a pseudonym) v The King [2023] VSCA 113 (Beach And T Forrest JJA).

[53] Boxer (a pseudonym) v The Queen [2021] VSCA 300, [47] (Niall and Walker JJA); Reid v The Queen [2014] VSCA 145; (2014) 42 VR 295, 312 [88] (Priest JA); [2014] VSCA 145.

[54] Referring to DPP v Dalgliesh (a pseudonym) (2017) 271 A Crim R 1; [2017] VSCA 360 ('Dalgliesh').

[55] Grantley (a pseudonym) v The Queen [2018] VSCA 112; (2018) 272 A Crim R 340 (Maxwell P and Kyrou JA); [2018] VSCA 112; DPP v Tewksbury (a pseudonym) [2018] VSCA 38; (2018) 271 A Crim R 205 (Tate and Kyrou JJA and Kidd AJA); [2018] VSCA 38; DPP v Walsh (a pseudonym) [2018] VSCA 172 (Maxwell P, McLeish and Ashley JJA); DPP v Shearer (a pseudonym) (2019) VSCA 47.

[56] Carter (a pseudonym) v The Queen [2018] VSCA 88; 272 A Crim R 170, [75] (Weinberg, Beach and Hargrave JJA); [2018] VSCA 88.

[57] Boxer (a pseudonym) v The Queen [2021] VSCA 300, [48] (Niall and Walker JJA).

[58] Director of Public Prosecutions v Howard (a pseudonym) [2021] VSCA 298, [56] (Maxwell P, T Forrest and Walker JJA).

[59] Carter (a pseudonym) v The Queen (2018) 272 A Crim R 170; [2018] VSCA 88 ('Carter').

[60] DPP v Talbot (a pseudonym) [2024] VSCA 321, [52]-[58] (Emerton P, Taylor JA and Kidd AJA); Grantley (a pseudonym) v The Queen [2018] VSCA 112; (2018) 272 A Crim R 340, [19] (Maxwell P and Kyrou JA); [2018] VSCA 112; Crawford (a pseudonym) v The Queen [2018] VSCA 113, [57] (Maxwell P and Kyrou JA).

[61] Note that for offences committed from February 2018 incest is a standard sentence offence (10 years) if the victim was under 18 years old. The relevant legislation was not in effect at the time of this offending.

[62] We note again that this was not a standard sentence offence (now 10 years) because the offending was committed in 2016.

[63] Nguyen v The Queen [2019] VSCA 184, [40] (Priest JA and Kidd AJA) (citations omitted).

[64] Charge 4 (14 months cumulation), charge 5 (14 months cumulation), and charge 9 (17 months cumulation) respectively.

[66] By virtue of s 6D of the Sentencing Act 1991, the judge was required to regard the protection of the community as the primary purpose of the sentences for the offences in charges 4 to 13, and, by virtue of s 6E, sentencing on those offences attracted a presumption of cumulation.

[67] Zhao v The Queen [2018] VSCA 267, [94] (McLeish, Niall and Weinberg JJA) (emphasis added), referring at [93] to Gordon (a pseudonym) v The Queen [2013] VSCA 343, [74] (Redlich JA) and DPP v Hopson (a pseudonym) [2016] VSCA 303, [50] (Redlich and Whelan JJA and Beale AJA).

[68] Sentencing Advisory Council of Victoria, Sentencing trends in the higher courts of Victoria 2015-16 to 2019-20, Sentencing Snapshot No 258 Indecent Act with a child under 16.

[69] Sentencing Advisory Council of Victoria, Sentencing trends in the higher courts of Victoria 2015-16 to 2019-20, Sentencing Snapshot No 258 Indecent Act with a child under 16.

[70] Flynn (a pseudonym) v The Queen [2020] VSCA 173, [130] (Niall, T Forrest and Weinberg JJA).

[71] See, eg, Jenkins v The Queen [2021] VSCA 65, [32]-[33] (Priest and Niall JJA).

[72] See [78] above.

[73] Landale (a pseudonym) v The Queen [2022] VSCA 121, [77] (Kyrou, T Forrest and Walker JJA) citing, inter alia, Clarkson [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

[74] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307-8 (McHugh J); Cotton v The Queen [2015] VSCA 103, [70] (Weinberg and Kyrou JJA).

[75] DPP v Browne [2023] VSCA 13; (2023) 103 MVR 226, 241 [66] (Kyrou, T Forrest and Kennedy JJA); [2023] VSCA 13.

[76] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 657 [100] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350; DPP v Goldsmid [2023] VSCA 124, [93] (Beach, Kyrou and T Forrest JJA).

[77] DPP v Ristic [2024] VSCA 251, [71] (Beach, Kennedy and Boyce JJA) (citations omitted).

[78] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658 [104] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.

[79] DPP v Browne [2023] VSCA 13; (2023) 103 MVR 226, 241, [66] (Kyrou, T Forrest and Kennedy JJA); [2023] VSCA 13.

[80] See, eg, Mackie v The Queen [2022] VSCA 28, [33]-[34] (T Forrest and Walker JJA).

[81] By contrast, this is not a case where, by reason of the delay, the offender can show that they have been serving a non-custodial sentence within the community and complied with its terms for a significant period.

[82] Noting that considerations of double jeopardy must be excluded from consideration. See Criminal Procedure Act 2009, s 289(2).

[83] In that regard we note that - despite the Bugmy considerations - the judge still found the respondent's moral culpability to be very high, and did not appear to moderate general deterrence: See Reasons, [33], [66].

[84] DPP v Goldsmid [2023] VSCA 124, [98(d)] (Beach, Kyrou and T Forrest JJA); DPP v Moreau [2023] VSCA 124, [98(d)] (Beach , Kyrou and T Forrest JA). See also DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 648 [50]; (Ashley, Redlich and Weinberg JJA) [2010] VSCA 350.