Crimes Act 1958, s 49B(1).

Bugmy v The Queen (2013) 249 CLR 571; Bouris v The Queen [2021] VSCA 245; DPP v Nwigwe [2022] VSCA 14; DPP v Spottiswood [2021] VSCA 146; Roberts v The King [2023] VSCA 92, considered.

1. On 20 June 2024 in the County Court at Ballarat the appellant pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.[2] On 24 June 2024, he was sentenced to 4 years' imprisonment. A non‑parole period of 2 years and 3 months was set. The maximum prescribed penalty for the offence is 15 years' imprisonment. It is a standard sentence offence, with the standard sentence being a term of imprisonment of 6 years.
2. Pursuant to a grant of leave to appeal, the appellant advances a single ground of appeal, expressed as follows:

The sentence imposed on charge 1 and the non‑parole period are manifestly excessive in all the circumstances, and particularly in light of the application of the principles in Bugmy v The Queen (2013) 249 CLR 571.

1. The circumstances of the offending were set out by the judge in his sentencing remarks.[3] In his reasons for granting the application for leave to appeal against sentence, T Forrest JA reproduced those remarks in full.[4] A very brief precis follows.
2. At the time of the offence, the appellant was nearly 28 and a half years old; the complainant was 13 years of age and was in residential care. The appellant had recently moved out of the marital home and contacted the complainant online. After they arranged to meet, the appellant took the complainant to the house where he was living and engaged in sexual activity with her, including some uncharged acts, before penetrating her vagina with his penis until he ejaculated. He did not wear a condom. She complained to friends and then the police. The appellant was interviewed and made full admissions. He told police:

I neglected to not only look out for myself, to look out for this young lady as well, because clearly she is a vulnerable young person, especially being in the care of child protection in a resi [sic] unit, so I should have done more.

1. The reasons for sentence were also set out in full in T Forrest JA's reasons for the grant of leave to appeal. They contain those features of the plea that were relevant to sentence and the sentencing judge's synthesis of them.[5]
2. The appellant's personal circumstances were addressed at some length and were drawn in large part from a report of a psychologist, Ms Fakhri. As accepted by the sentencing judge, the appellant, an Aboriginal man, had a very difficult and deprived upbringing. Directing himself to the appellant, the judge said:

You were taken out of your parents' care at age three months and were in and out of your mother's care until age six, when your grandparents obtained sole custody of you. From an early age Child Protection have been involved and you have been the subject of physical and sexual abuse and neglect by both your mother and your stepfather. You have not had contact with your father for eight years, nor your mother for 13 years. Your maternal grandparents have been most involved in your upbringing. You have no biological siblings and a number of half siblings and step siblings, with whom you have no contact.[6]

1. The starkness of the appellant's childhood was revealed by a letter to the sentencing court from his grandmother, who had cared for him from a very young age. She wrote:

[The appellant] experienced horrific abuse and neglect while he was in the care of [his parents]. [The appellant's] upbringing was turbulent with the back and forth from my care and his biological parents' care and Child Protection involvement. [The appellant] received counselling as a child, however, the counsellor advised me that [the appellant] did not have the capacity to deal with the abuse he had faced at the time.[7]

1. The appellant has a criminal history described by the judge as being 'relatively limited'.[8] It included a sentence of 38 days' imprisonment and a 12‑month community correction order for stalking, unlawfully being on property (two charges), contravening a conduct condition of bail, contravening a family violence intervention order, unlawful assault and using a carriage service to harass.[9]
2. The judge took into account the very early plea of guilty, the appellant's remorse, and his meaningful engagement with a psychologist. His Honour also had regard to the appellant's psychological diagnoses including, at the time of the offending, his Complex Post‑Traumatic Stress Disorder (C‑PTSD) and adjustment disorder with mixed anxiety and depressed mood. There were also 'traits of borderline personality disorder'.[10]
3. The judge referred to, and accepted the opinion of the psychologist, Ms Fakhri, that by reason of his upbringing and diagnoses:

At the time of the offending, [the appellant's] capacity to engage in rational decision‑making and appreciate the wrongfulness and consequences of his conduct was severely impaired. The potential for his mental health to continue to deteriorate in a custodial environment remains a concern, as he has had limited treatment or interaction with mental health professionals in the community. [She then notes that his] risk of general recidivism [is] low to moderate, with his risk increased by psychosocial factors and largely untreated mental health. [She says that the appellant] require[s] a low to moderate level of intervention to reduce [his] risk of reoffending.[11]

1. The judge said he had taken the appellant's background into account in making his assessment of the moral culpability of the appellant for the offending. The judge addressed the topic of moral culpability at a number of points in his reasons for sentence. He said that given the appellant's age at the time, he 'must bear high moral culpability for this offending'.[12] After referring to the evidence concerning the appellant's upbringing he said that 'there should be a reduction in your moral culpability' and that he was 'prepared to give significant allowance for your difficult upbringing in sentencing'.[13] He said this called for less consideration of general deterrence. On that point, the judge said:

I will allow a moderation in consideration of general deterrence and your moral culpability, having regard to your blighted upbringing and psychosocial condition. The sentence of the court, however, must still send a signal that children under the age of 16 are not to be the subject of sexual activity with adults and that those found guilty of such conduct can expect heavy penalties regardless of their personal circumstances.[14]

1. Relying on the principles in Bugmy v The Queen,[15] the appellant submits that, notwithstanding that the sentencing judge accepted the appellant's disadvantaged upbringing as a relevant mitigating factor, the sentence ultimately imposed on charge 1 and the non‑parole period do not adequately reflect this and are manifestly excessive.
2. The appellant emphasised the severity of disadvantage that characterised his upbringing and which included violence, neglect and sexual abuse. It was submitted that evidence before the sentencing judge established that these circumstances had a clear adverse effect on the appellant's education, employment and psychological makeup.
3. Additionally, the appellant contends that significant matters in mitigation arose in this case, including his early guilty plea; genuine remorse; co‑operation with the police and the admissions he made to them; Verdins[16] limbs 1, 4, 5 and 6; and the appellant's good prospects of rehabilitation. It was further submitted that the offending lacked many of the aggravating features which may accompany this offence, such as physical violence, breach of trust, rolled‑up charges, or offending over an extended period of time.
4. The appellant submits that the manifest excess of the sentence is clear when considered in light of current sentencing practices. This, he submits, establishes that equivalent sentences of around 4 years' imprisonment have been commonly imposed in cases where the offending was objectively graver than the appellant's offending, or in circumstances where the offender had fewer matters which could be relied upon in mitigation. Among other cases the appellant cited in support of this proposition were Director of Public Prosecutions v Nwigwe ('Nwigwe')[17] and Bouris v The Queen ('Bouris'):[18]

(a) In Nwigwe, a sentence of 3 years and 9 months' imprisonment was imposed on an offender sentenced as a serious sexual offender. The offending involved a 30 year age gap between the offender and the complainant, a significant breach of trust and moral culpability, and the application only of limb 5 of Verdins.

(b) In Bouris, a sentence of 3 years and 6 months' imprisonment was imposed on a rolled‑up charge. The offender was found to have high moral culpability and was aware of the complainant's vulnerability and immaturity. Neither _Bugmy n_or Verdins applied.

1. Counsel for the respondent submits that, contrary to the appellant's submissions, the sentencing judge gave proper and due consideration to the appellant's disadvantaged upbringing, and gave a 'significant allowance' in light of these circumstances.[19]
2. The respondent's counsel further submitted that there can be no attack against these matters in mitigation as to 'weight' because it is clear that the matters relied on in mitigation were appropriately reflected in the ratio being 56% between the head sentence and the non‑parole period.
3. In respect of the appellant's submissions on current sentencing practices, the respondent characterises this as an attempt to engage in a comparative analysis of other cases as a means to demonstrate, as a conclusion, that the appellant's sentence was outside the range of sentences available to the judge. Whether the sentencing discretion has miscarried by reason of manifest excess is adjudged first through an assessment of the gravity of the offending, and the offender's moral culpability for the offence. As such, current sentencing practices are not controlling and do not create precedents to be applied in future cases.
4. The respondent submits that the appellant's reliance on comparable cases also fails to account for the compressing effect on sentences arising from the COVID‑19 pandemic and the impact of Worboyes v The Queen ('Worboyes')[20] which had resulted in a perceptible amelioration of the sentence imposed in those cases.
5. Counsel further noted generally that the cases relied on by the appellant are of limited comparative value and distinguishable as they yielded total effective sentences on multiple charges and were therefore subject to the operation of the principle of totality.
6. At oral hearing the respondent conceded that the sentence imposed on the appellant may be characterised as 'stern'. However, it was submitted that this does not establish a miscarriage of the sentencing discretion. The respondent emphasised that the test for manifest inadequacy, as articulated by the court in DPP v Spottiswood ('Spottiswood'),[21] applies equally to that for manifest excess in requiring stringency of approach. Counsel noted that even if a slightly shorter sentence may have been warranted, the inquiry is not one of specific error, but of manifest excess - an inquiry that the appellant fails to satisfy.

1. In Roberts v The King ('Roberts'),[22] this Court observed:

The offence of sexual penetration of a child under the age of 16 years covers a truly vast range of sexual activity. The common characteristic is that in every case the victim is a child whose welfare is sought to be protected by this and similar age‑related offences. Every example of this offending is serious. Some, however, are more serious than others ...[23]

1. There are a number of features of the offending which make its objective gravity serious. The complainant was young and vulnerable. Although there is no evidence that the appellant knew that she was in care - and the plea proceeded on the basis that he did not know - by reason of her young age, the age disparity between them (of which the appellant was aware), and the fact that, at least to some extent, the appellant sent her messages that were consistent with a level of grooming, there was an element of exploitation. Indeed, the appellant acknowledged as much to police.
2. The harm of premature sexual activity, especially where there is a large age differential between offender and complainant, is well understood and may be presumed to have been a feature of this offending. The need to denounce such harmful and predatory conduct, and to recognise that it represents serious criminal conduct, means that a term of imprisonment will most likely be inevitable. Both the maximum term and the standard sentence point to how seriously the Parliament, the community, and this Court must view sexually exploitative conduct of this kind.
3. The need to place the instant offence within the spectrum of offences of this kind can be invidious. Without understating the seriousness of the conduct and the harm that it causes, it is pertinent to observe that the offending involved a single incident. It was not associated with any physical overpowering. Although, as the judge observed, there was an element of grooming, it did not extend much beyond fairly basic communication and did not entail any obvious manipulation.
4. A survey of other cases demonstrates that a term of imprisonment is generally imposed. For example, the sentencing judge referred to two cases as being of assistance to him: Roberts, and Spottiswood. In Roberts, the offender was resentenced for 4 charges of the offence. In respect of one of those charges, the sentencing judge imposed a term of 2 years' imprisonment and, in another, a sentence of 5 years' imprisonment was imposed. The latter charge had the very aggravating aspect that the penetration resulted in pregnancy. On appeal, the offender was resentenced on the latter charge to 3 years and 3 months' imprisonment.[24] In Spottiswood, the offender pleaded guilty to a number of counts of sexual penetration. A base sentence of 2 years' imprisonment was imposed which, after orders for cumulation, resulted in a total effective sentence of 4 years' imprisonment.[25]
5. Regarding the comparative cases referred to by the appellant, we did not find them of great assistance, noting that there are distinct differences from the present case, including the influence of Worboyes factors in those cases, but also the fact that they did not involve Bugmy considerations.
6. As a matter of principle, the sentence that may be imposed does not turn solely on the objective gravity of the offence. The personal features of the offender will also be relevant. On occasion, some of those features, such as relevant prior offending, an absence of remorse, or a risk of future offending, may result in a higher sentence than otherwise because they represent an absence of mitigation or poor prospects for rehabilitation. Similarly, whether the offender is sentenced after a plea of guilty or following a finding of guilt at trial will usually be a highly significant integer in the sentencing process.
7. Often, the assessment of the offender will be explained in terms of a finding of moral culpability. That is a concept that is informed by the offender's understanding, and capacity to understand, the wrongfulness of his or her conduct. It is distinct from ideas of intention, which found criminal liability, but relates to broader notions concerning the offender's ability to appreciate the nature of the conduct and to desist from it. Where an offender lacks insight or awareness of the wrongfulness of the conduct at the time of its commission or afterwards may be relevant to moral culpability. Conversely, it may also heighten the risk that the person poses to the community if it involves an incapacity to control criminal behaviour, with the consequence that greater emphasis on community protection may be required by the sentencing court.
8. Because the issue concerns moral culpability or blameworthiness, the reason why the person lacks a proper capacity to understand and regulate their behaviour will be relevant. Where the problem lies in some mental or physical impairment, the principles explained in Verdins will need to be considered. Similarly, a blighted or disadvantaged background may reduce moral culpability because the responsibility for the person's shortcomings may, at least in part, be found elsewhere: in delinquent parenting or a lack of community or social care.
9. In Bugmy, the High Court explained:

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

...

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and learn from experience. It is a feature of the person's make‑up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.[26]

1. In this case there is no doubt that the appellant had a severely deprived childhood. The letter from his grandmother set out the level of deprivation in stark terms. There was also no doubt that this disadvantage was relevant to the offending, as accepted by the sentencing judge.
2. The issue presented for this Court is not whether the judge failed to apply the principles explained in Bugmy in a way that constituted specific error in the sentencing process. Given the judge's express reference to the evidence and his observation that it reduced moral culpability, it could not be said that the judge failed to take it into account.
3. Rather, this Court must approach the matter on the basis of whether, having regard to all of the factors, including the profound childhood deprivation of the appellant, the sentence was wholly outside the permissible range. Our own assessment of the evidence of childhood hardship is such that it demanded a high degree of moderation in sentence. That is because it ameliorates any finding that the behaviour was deliberately and wantonly exploitative. It also calls for moderation in the role that general deterrence plays.
4. Putting these matters together, we are driven to the conclusion that the sentence imposed does not appropriately take into account the severe and debilitating effects of childhood deprivation. Importantly, the appellant showed a degree of insight into the offending that ameliorates, to some extent, the countervailing risks that profound childhood deprivation can produce. As explained in Bugmy, such deprivation may reduce an offender's moral culpability, for example where a disposition for violence or alcohol abuse is a product of such exposure in childhood. For some offenders, the resulting disposition towards offending increases the importance of community protection. That consideration was not said to arise in the present case, in circumstances where the appellant's rehabilitative prospects were accepted to be good.
5. Our own view of the matter accords with the tentative assessment of T Forrest JA who, in granting leave to appeal, said:

[T]he head sentence of 4 years fails to strike an appropriate balance of these considerations and that the sentence is beyond range as a consequence. In particular, I am unable to discern from the sentence imposed much evidence of the diminution in moral culpability and moderation of the need for general deterrence adverted to by the judge in his reasons for sentence.

1. In our opinion the ground of appeal is made out. The sentence should be set aside and it is necessary for this Court to resentence the appellant.

1. As already adverted to, this was serious offending that demanded a term of imprisonment with a non‑parole period. We would sentence the appellant to 3 years with a non‑parole period of 18 months. We recognise that the non‑parole period we propose is less than 60 per cent of the sentence.[27] We consider that it is in the interests of justice to impose a longer than usual parole period to foster the appellant's rehabilitation and to give him an adequate period of supervision in the community, should he be released on parole.
2. Pursuant to s 6AAA of the Sentencing Act 1991, had the appellant not pleaded guilty, we would have imposed a total effective sentence of 4 years' imprisonment, with a non‑parole period of 2 years and 4 months.

[1] To ensure that there is no possibility of identification, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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

[3] DPP v Fisher (a pseudonym) [2024] VCC 957, [4]-[13] (Judge Murphy) ('Reasons').

[4] Fisher (a pseudonym) v The King [2025] VSCA 25, [3] (T Forrest JA).

[10] The psychologist, Ms Fakhri, further opined in her report: 'Specifically in relation to sexual offenders, poor parental attachment resulting in an insecure attachment style has been observed in more than 90% of those convicted of a sexual offence'. The transcript of the plea hearing before the learned sentencing judge indicates that his Honour had regard to this matter, although it was not traversed in the final reasons for sentence.

[15] (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); [2013] HCA 37 ('Bugmy').

[16] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 ('Verdins').

[17] [2022] VSCA 14 (T Forrest, Emerton and Walker JJA).

[18] [2021] VSCA 245 (Kyrou and Kennedy JJA).

[20] [2021] VSCA 169; (2021) 96 MVR 344 (Priest, Kaye and T Forrest JJA); [2021] VSCA 169.

[21] [2021] VSCA 146 (Priest, Beach and T Forrest JJA).

[22] [2023] VSCA 92 (Emerton P and T Forrest JA).

[24] [2023] VSCA 92 (Emerton P and T Forrest JA).

[25] [2021] VSCA 146 (Priest, Beach and T Forrest JJA).

[26] Bugmy (2013) 249 CLR 571, 594-5 [40], [43]-[44], (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.

[27] Sentencing Act, s 11A(4)(c).