Gillespie (a Pseudonym) v The Queen [2018] VSCA 151

1 On 27 July 2015, the applicant was sentenced to a term of six years' imprisonment with a non-parole period of three years and six months for one offence of persistent sexual abuse of a child under the age of 16: at the relevant time the offence was provided for in s 47A(1) of the Crimes Act 1958. The maximum sentence for that offence is 25 years' imprisonment.

2 The applicant seeks leave to appeal against her sentence on two proposed grounds. The first is that the sentencing judge erred in sentencing her as a 'serious sexual offender' within the meaning of pt 2A of the Sentencing Act 1991. The second proposed ground is that the sentence imposed was manifestly excessive.

3 The applicant needs an extension of time within which to seek leave to appeal. She seeks it on the basis that she had initially been advised by a solicitor that there was no basis for an appeal, but that on 21 November 2017 she was contacted by her present solicitor who had read the sentencing remarks in her matter in connection with another plea hearing and had identified the error which is the subject of the first proposed ground of appeal.

4 As explained below, the error which is the basis of the first proposed ground of appeal was made. In those circumstances, an extension of time will be granted. For the same reason, leave to appeal will be granted.[2] We will now refer to the applicant as the appellant.

Summary of the circumstances of the offending

5 The charged offending took place between 1 April 2012 and 6 May 2014 when the complainant was aged between 12 and 14. The appellant is 24 years older than the complainant and at the time of the offending was married with three children.

6 The appellant came to know the complainant after the complainant began a friendship with the appellant's 11 year old daughter. The appellant's husband alerted her to behaviour by the complainant which concerned him and the appellant then assisted the complainant to find counselling for personal difficulties he was suffering at the time. She began to take the complainant to school because the complainant's mother had to start work early. The complainant was often at the appellant's house and they became very close. The appellant and the complainant's mother became friends.

7 In 2011 the appellant commenced a sexual relationship with the complainant. They had sexual intercourse with each other once a week, more than 20 times, and never used a condom. The complainant had not previously had sexual intercourse. The indictment specified three acts of intercourse. The first was in the appellant's bedroom when the complainant was 12 years old. The second was in the appellant's car during the school holidays when the complainant was in Year 8. The third occasion resulted in the conception of a child. DNA evidence provided strong support for the complainant being the father of that child.

8 The appellant's husband began working in Canberra in 2011, returning home on the weekends. In late 2012 the appellant's husband expressed concerns to the appellant about the nature of her relationship with the complainant. The complainant's offending continued. The appellant and her husband separated in early 2013.

9 On 6 May 2014 the appellant gave birth to the complainant's child. Unaware that the complainant was the father of the child, the complainant's mother attended the hospital to support the appellant.

10 In June or July 2014 Child Protection Services advised the complainant's mother that there had been a notification in respect of the appellant and the complainant. The complainant's mother asked the appellant if the baby was that of the complainant and the appellant denied that this was the case.

11 A police investigation commenced shortly afterwards. Initially, the complainant did not disclose the offending. The appellant denied that the complainant was the baby's father, but she consented to DNA samples being taken from herself and the baby. After speaking with the appellant, the complainant then told his mother that there was a chance that he was the father of the baby.

12 On 15 August 2014 the partner of the complainant's mother went to the appellant's house and she agreed to attend the police station with him. The appellant told police that it was possible that the complainant was the father of her baby. She was arrested. She made a 'no comment' record of interview.

13 The appellant was charged on 19 December 2014. The committal proceeded by way of hand up brief on 26 March 2015. The appellant pleaded guilty to the charge of persistent sexual abuse of a child under the age of 16 on 1 April 2015.

14 At the plea hearing defence counsel first addressed the appellant's background. She had suffered an incident of sexual abuse by an uncle when she was 14 or 15 years old. She graduated from Year 12 in 1992 and commenced a visual arts course. She had attended cadets throughout high school where she met her former husband. They married in 1996. She had undertaken psychological counselling in 2000. The appellant experienced emotional difficulties in 2011 after her husband began working in Canberra and she felt that he had become increasingly controlling. They separated in 2013 and later divorced.

15 Apart from the baby she bore as a result of the offending, the appellant had three other children. Her 18 year old son lived independently, and her 16 and seven year old daughters have lived with their father since the appellant surrendered care of them after her offending came to light. She had had minimal contact with her daughters since May 2015. The appellant's youngest daughter lived with her, but there was a flexible contact arrangement with the complainant and his mother.

16 The appellant was in a relationship with a new partner who was present in court to support her along with a number of family friends.

17 Defence counsel conceded that the offending involved a great age disparity and a substantial breach of trust. However, she drew attention to the fact that there was a single victim, an absence of coercion, and no use of threats, violence or weapons. The appellant had pleaded guilty at the earliest opportunity and had attended the police station once she had spoken to the complainant about the need for what had happened to be revealed. The appellant had attended counselling with a psychologist and had been on medication for depression since 2000.

18 Defence counsel tendered a psychological report dated 23 June 2015 by Professor James Ogloff. The report stated that the appellant had demonstrated insight, sexual naivety, understanding of the impact of her offending, and remorse. The offending had taken place against the backdrop of a failing marriage and the appellant experiencing an ongoing depressive mood and general lack of self-esteem. The appellant did not have anti-social peers and was not a substance abuser. She had a good education and was employable, with no criminal history and no anti-social attitudes or orientation.

19 Professor Ogloff believed that the appellant became drawn to the complainant as a young male to whom she had grown close, rather than because he was a child. The appellant denied ever having had any sexual attraction towards any other children.

20 Professor Ogloff was of the opinion that the appellant met the criteria for a depressive disorder characterised by chronic low grade depressive symptoms. He believed that she could benefit from continued psychological treatment to cope with depression, anxiety and stress.

21 Defence counsel relied upon Professor Ogloff's assessment of the appellant's risk of re-offending, to which we will refer in detail below.

22 Defence counsel noted that the appellant's incarceration would be marked by isolation in protection. Professor Ogloff had assessed her as psychologically vulnerable in a custody setting.

23 Defence counsel submitted that, because the appellant did not suffer from a paedophilic disorder and was unlikely to offend again, there was no need for specific deterrence to play a part in the sentencing process.

24 Counsel submitted that a community correction order would satisfy all sentencing considerations, perhaps with a term of imprisonment.

25 The prosecutor noted that Professor Ogloff had not explained the offending except as a result of the appellant's marital problems and depression. This left open the prospect that the appellant might find herself in a similar situation in the future. It was submitted that the offending was a very serious example of the offence due to the period of the offending, the age of the complainant, the disparity of age between the complainant and the appellant, the vulnerability of the complainant, the concerns expressed by the appellant's husband, the fact that no condom was used, and the fact that a child had been borne as a result of the offending. It was submitted that there was an extreme abuse of trust in the friendship between the appellant and the mother of the complainant.

26 The prosecutor conceded that specific deterrence did not have a large role to play but argued that there was a very strong case for general deterrence and that the appellant had a high degree of moral culpability.

27 In the Summary of Prosecution Opening, the prosecutor submitted that an offence under s 47A of the Crimes Act 1958 (the provision then applicable) sufficed to deem a person a serious sexual offender under pt 2 of the Sentencing Act 1991. Therefore, the judge was told, if there was a conviction and a sentence for a term of imprisonment, the offender would be classified as a serious offender. This submission was incorrect. It led the judge into error.[3]

28 A victim impact statement by the complainant's mother was tendered on the plea.

29 Before turning to the sentencing remarks, it is necessary to address in more detail what Professor Ogloff's report said about the appellant's risk of re-offending.

Professor Ogloff and the risk of re-offending

30 Professor Ogloff is a leading forensic psychologist. He was the Foundation Professor of Clinical Forensic Psychology at Monash University, and is currently the Foundation Professor of Forensic Behavioural Science at Swinburne University of Technology. He has been employed by Forensicare for almost twenty years. He has worked with both male and female sexual offenders for over thirty years.

31 In his report Professor Ogloff addressed at some length the studies which have been conducted in relation to female sexual offenders. He observed that the very low numbers of female sexual offenders means that the studies are based upon very small clinical samples and observations. The sorts of tests and other measures that might be used to reliably assess an offender's risk for sexual re-offending, which exist in relation to males, do not exist in relation to females. Notwithstanding these shortcomings, Professor Ogloff did indicate that some categorisations of female sexual offenders had been made. He placed the appellant in a group described as 'heterosexual nurturers'.

32 Given the absence of reliable data in relation to sexual re-offending by female sexual offenders, Professor Ogloff assessed the appellant's risk of general re-offending. The results of his assessment placed her in the 'very low risk category'. Professor Ogloff said only two per cent of female offenders with the same score as the appellant re-offend.

33 Addressing the risk of sexual re-offending Professor Ogloff's opinion was as follows:

As noted previously, [the appellant] appears to fall into the Heterosexual Nurturer category of female sexual offenders. That group had a lower level of risk for sexual offending than the average female offenders, which, again is between 1% and 3% of convicted female sexual offenders across research samples. Thus, given her very low level of risk of general offending, coupled with the likelihood that she fits into the Heterosexual Nurturer category of female sexual offenders, it is most unlikely that [the appellant] would reoffend sexually.

34 The sentencing judge set out the circumstances of the offending and its discovery. She noted that the complainant had not made a victim impact statement but that his mother had done so. In that statement, the complainant's mother described his childhood as having been taken away from him and referred to the difficulties he had had in adjusting to fatherhood and to what had happened. She described 'very distressing incidents' that had occurred since the police became involved. The judge noted that, despite her difficulties and feelings of betrayal, the complainant's mother was 'doing her best to support her son and granddaughter'.

35 The judge concluded that, because the complainant had suffered from some personal difficulties prior to the commencement of the offending, his current condition was not entirely a result of the appellant's conduct. The judge concluded, however, that it was clear that the complainant was a vulnerable child and that the offending had made his situation considerably more complicated, difficult and distressing. The offending had caused anger and confusion for the complainant and a deterioration in his relationship with his mother. A psychological report annexed to the mother's victim impact statement described the potential harm that may arise in the future for the complainant as a result of the offending but stated that his situation had improved with counselling.

36 The judge described the offending as 'abhorrent and shocking'. She said that such behaviour must be 'strongly denounced'. She considered that the appellant's moral culpability was very high. She noted the age difference and the fact that the appellant had been in a position of trust and friendship in relation to the complainant and his family. He had also been a friend of the appellant's daughter. The judge said that the appellant had no psychiatric, psychological, drug or alcohol or other issues which provided any basis for concluding that she was unable to exercise proper judgment in the situation in which she had found herself. Despite this, she had allowed her own emotional and physical urges to overcome what ought to have been her proper adult response in respecting the appropriate boundaries. The judge added: 'Indeed, you were supposed to be taking care of this boy'.

37 The judge noted that the appellant had exposed the complainant to extremely serious consequences which a child of his age should not have had to bear. She observed that the complainant would continue to have to deal with the consequences of the offending, and be reminded of it and of the appellant for the rest of his life in a very immediate and practical way.

38 In relation to the risk of re-offending, and related issues, the judge's conclusion was as follows:

You have no prior criminal history and have previously been a person of good character. I accept that you are genuinely remorseful and that the risk of you re-offending is extremely low. You have engaged in counselling. In [view] of those matters and the matter set out in Professor Ogloff's report, I do not consider that specific deterrence need be given weight in sentencing you. I consider that your prospects of rehabilitation are very good. Those conclusions are supported by the many positive comments that are made about your character in the references that were tendered on your behalf.

39 The judge also took into account the appellant's plea of guilty and the fact that she was likely to be separated from her daughter and from her other children while in prison. She accepted the opinion of Professor Ogloff that incarceration was likely to impact negatively on the appellant's mental health but considered that there ought only be very slight moderation of the sentence on that ground. This conclusion was reached in the light of the parts of Professor Ogloff's report which addressed the treatment that would be available to the appellant and the relatively low levels of depression, anxiety and stress from which she suffered. The judge also took into account that the appellant was in protection at the time of sentencing and that the prospect of continued imprisonment in protection would make prison more difficult for her.

40 The judge said that the matters she had taken into account in mitigation and the appellant's prospects of rehabilitation led her to set a lower non-parole period than she otherwise would have.

By virtue of Part 2A of the Sentencing Act 1991 on being sentenced to a term of imprisonment you will be sentenced as a serious sexual offender. Section [6D] of the Act requires community protection to be the principal purpose of the sentence imposed. The prosecution does not seek a disproportionate sentence for that purpose. In view of your prospects for rehabilitation I do not consider a disproportionate sentence is required for the purpose of community protection.[4]

42 The judge then convicted the appellant and sentenced her to a term of imprisonment of six years, then stating: 'You are sentenced as a serious sexual offender in respect of that offence'. She set a non-parole period of three years and six months.

Part 2A of the Sentencing Act

43 Section 6D(a) in pt 2A of the Sentencing Act 1991 provides that, where a sentence of imprisonment is to be imposed on a serious offender, in determining the length of that sentence, the court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. Section 6D(b) provides that the court may impose a disproportionate sentence to achieve that purpose. Section 6F provides that where a court sentences a serious offender for a relevant offence it must record that fact 'at the time of doing so'.

44 It was submitted on behalf of the appellant that the Court should proceed on the basis that the error whereby the judge sentenced the appellant as a serious sexual offender had 'prima facie' affected the sentence. Counsel for the appellant accepted that there might be cases where it could be shown that such an error could not have affected the sentence, but it was submitted that the sentence in this case did not fall into that category as it could not be described as lenient. Reference was made to the decisions of this Court in R v Beary,[5] R v LD,[6] Ly v The Queen[7] and Cardona v The Queen.[8]

45 The appellant submitted that a different sentence should now be imposed. It was submitted that the judge's conclusion that the appellant's moral culpability was very high was unwarranted, and was not consistent with Professor Ogloff's report. It was accepted that the birth of the complainant's child was a circumstance of aggravation, but it was submitted that that circumstance was less serious when it was the offender who actually bore the child. Reference was made to the burden of imprisonment on the appellant, particularly the separation from all of her children and the fact that she remains in protection in prison with limited visitation rights for her children because of the nature of her offence.

46 On behalf of the respondent it was submitted that the error made concerning the appellant being a serious sexual offender was immaterial and could not have materially affected the sentence. Reliance was placed on the decision in Beary. It was accepted that the respondent had, in practice, to satisfy the appellate court that the error made could not have affected the sentence. It was submitted that cases where the prosecution had conceded that an error could have affected the sentence, such as Ly and Cardona, were of little assistance. It was submitted that LD was an example, in a relevant context, of a circumstance where a mistake of this kind did not constitute a material error. The respondent submitted that the sentencing judge had accepted that the risk of re-offending was 'extremely low'. Accordingly, it could be concluded that the need for community protection from the offender had not played a role in the sentence. In the particular circumstances of this case the need for community protection from the offender was not a consideration which had had any weight.

47 In relation to whether a different sentence should be passed, the respondent emphasised the vulnerability of the complainant, the age difference, and the fact that the complainant had been in the appellant's care. It was submitted that the judge had been right to describe the appellant's moral culpability as very high, particularly given the fact that she had been challenged about the nature of her relationship with the complainant by her husband but had persisted in her offending, and the fact that a child had been conceived with lifelong consequences for the complainant.

Effect of the error - applicable principles

48 In Beary this Court considered, amongst other things, an appeal in relation to a sentence where the sentencing judge had made an error as to the maximum penalty. In relation to that aspect of the matter Callaway JA, with whom Buchanan JA agreed on this point (Ormiston JA not addressing it), summarised the position as follows:

First, the law is settled in this State that not every mistake as to the maximum penalty vitiates the sentencing discretion. It depends on the circumstances. Secondly, the only possible justification for that view, in the face of s 5(2)(a) of the Sentencing Act, is that, in Mason J's words, a factor may be so insignificant in a particular case that the failure to take it into account could not have materially affected the decision. Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such an mistake does not re-open the discretion we have to be satisfied that it could not have materially affected the sentence. Of course, even where the discretion is reopened, the court may be of opinion that no different sentence should be passed.[9]

49 The reference to Mason J's words was a reference to observations by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[10] in the context of judicial review, to the effect that a relevant consideration might be so insignificant in a particular case that the failure to take it into account could not have materially affected the decision.

50 LD was a case where this Court found that a relevant mistake could not have affected the decision. The mistake was the same as the mistake made here, in that an offender was sentenced as a serious sexual offender in circumstances where the relevant provisions did not apply. The Court (Maxwell P, Redlich JA and Vickery AJA) referred to the requirement, mistakenly imposed in that case, to regard the protection of the community from the offender as the principal purpose for which sentence is imposed, and then continued:

The corollary, of course, is that nothing in s 6D(a) justifies the imposition of a sentence longer than is necessary to protect the community against the risk which the offender actually presents. Thus, if the risk of re-offending is assessed as low - as it was in the present case - the protection of the community will weigh less heavily as a consideration than if the risk had been assessed as high.

Since protection of the community is always a relevant consideration in sentencing, the directive in s 6D(a) will ordinarily have little impact on the determination of the appropriate sentence. Its main purpose, we would think, is to make sure that sentencing judges give proper consideration to the question of community protection, and undertake the requisite risk assessment. Seemingly, the only circumstance in which compliance with the directive might directly affect sentence would be where protection of the community required a longer sentence but where mitigating factors called for a shorter sentence. In that circumstance, it would seem, s 6D(a) contemplates that the dictates of protection should take precedence.[11]

51 In LD the application for leave to appeal was refused because the Court concluded that the sentencing judge had 'adequately addressed' the risk of re-offending, and because there was nothing in the sentence itself or in the reasons to suggest that 'excessive weight' had been given to the need to protect the community.[12]

52 The respondent's submission in relation to Ly and Cardona, being that those decisions are of limited assistance given concessions made by the Crown, is a valid one. Having said that, it is noteworthy that in Cardona, Redlich JA, with whom Nettle JA and Kyrou AJA agreed, observed that it 'must be assumed' that the sentencing judge gave effect to the directive about the protection of the community provided for in the legislation, and that accordingly the error 'may have been material to the sentence imposed'.[13]

53 Making allowance for the terms of s 281 of the Criminal Procedure Act 2009, enacted in the interim, it seems to us that the relevant principles are those summarised by Callaway JA in Beary. A mistake of the kind made by the sentencing judge here will not be an 'error in the sentence' so as to vitiate the sentencing discretion in every case. If it can be seen that the mistake was so insignificant that it 'could not have materially affected the decision' then it will not be an error 'in the sentence'. The court must be satisfied that the mistake could not have materially affected the decision before concluding that there is no error in the sentence. If there is such error, the court must then consider whether it is satisfied that a different sentence should be imposed.[14]

54 It is a fair summary of Professor Ogloff's opinion that the appellant's risk of re-offending was extremely low, and the judge proceeded on that basis. That might suggest that the 'principal purpose' of 'protection of the community from the offender' must have had little role to play in sentencing. On the other hand, the judge did expressly refer to the statutory requirement, which she had been led mistakenly to believe applied in this case, and she said that it required her to treat community protection as the principal purpose for the sentence to be imposed. She stated that she was sentencing the appellant as a serious sexual offender immediately after imposing the six year term.

55 The sentence of six years' imprisonment was high when compared to sentences imposed on other similar female offenders (whose risk of re-offending is generally very low). The sentences to which we have had regard in this respect in Victoria are R v Jobling-Mann,[15] DPP v Ellis,[16] R v Howell,[17] Dennis v The Queen,[18] Greensill v The Queen[19] and DPP v Evans (a pseudonym).[20] We have also had regard to the following sentences in other jurisdictions: CJ v State of Western Australia,[21] R v Tulloch[22] and R v Sullivan.[23]

56 In the circumstances we are not satisfied that the error made by the sentencing judge in this case 'could not have materially affected' the sentence.

57 The matter was not addressed in detail before us, but we are unpersuaded that protection of the community from the offender ceases to be a relevant consideration whenever the risk of re-offending is low or very low.

58 The appellant has established, within the meaning of s 281(1)(a) of the Criminal Procedure Act 2009, that there was an error in the sentence first imposed. Pursuant to s 281(1)(b), it is necessary to consider whether a different sentence should be imposed. Given this conclusion, it is unnecessary to address the proposed manifest excess ground.

59 We have already set out a summary to the circumstances of the offending but it is necessary now to refer in more detail to some aspects of it.

60 The appellant and the complainant came to know each other because the complainant was a friend of the appellant's daughter. Their relationship initially became closer after the appellant's husband identified behavioural issues in the complainant that led him to encourage his wife, the appellant, to try to help him. The appellant effectively took on a role as one of the complainant's carers. Because the complainant's mother was working full time the appellant began taking the complainant to school (a different school to the one attended by the daughter) and the complainant began regularly visiting the appellant's home.

61 In 2011 the appellant's husband was posted to Canberra and he began commuting, returning home on the weekends. He became concerned at the nature of the relationship between the appellant and the complainant, a concern which was fully warranted, as events transpired. He spoke to his wife about his concerns at the end of 2012, several months before the appellant became pregnant to the complainant, and almost two years before the sexual nature of their relationship was eventually exposed. Notwithstanding her husband's expressed concerns, the appellant continued her offending.

62 Both the appellant and the complainant denied the nature of their relationship until the prospect of DNA testing of their child rendered continued denial untenable.

63 We have referred to Professor Ogloff's report, and in particular to the aspects of it dealing with the appellant's very low risk of re-offending. It is necessary to observe, however, that the appellant emerges from Professor Ogloff's report as a person without significant mitigating features in terms of her background and psychological makeup. She reported having been sexually abused by an uncle, with her sister, on one occasion, when she was 14 or 15 years old. But she otherwise appears to have had a normal upbringing and to have been successful in most aspects of her life. She was experiencing marital problems at the time of her offending, but those problems do not appear to have been any more difficult than problems experienced by many people in their relationships. Whilst she was remorseful and ashamed of her conduct, there was little in the report which explained her offending. Professor Ogloff suggested the explanation was to be found in a 'confluence of factors and events'. He referred to the separation from her husband, her failing marriage, the fact that she was 'emotionally needy', and to a chronic low grade depression and lack of self-esteem from which she suffered. The complainant himself was experiencing psychological and emotional problems at the time and his mother's victim impact statement, and the attached psychological report, indicate that those problems are likely to have been exacerbated by the appellant's conduct. Professor Ogloff's report does record the appellant's shame and remorse, and her insight into the effect of her offending on both the complainant and her own family.

64 The appellant has no prior convictions of any kind. She pleaded guilty early. These are significant matters.

65 Apart from the error she made concerning the appellant being a serious sexual offender, we agree with the sentencing judge's analysis and conclusions. In particular, we agree with her conclusion that the appellant's moral culpability is very high. There was a very substantial age difference. The complainant was very young, and the appellant knew he was vulnerable. She was one of the complainant's carers. She was challenged about the nature of her relationship with the complainant but continued her offending. She then fell pregnant, with lifelong consequences for all concerned. Apart from her guilty plea, her absence of prior convictions, and her low risk of re-offending, there are no mitigating factors of real significance.

66 The maximum sentence for persistent sexual abuse of a child under the age of 16 is 25 years' imprisonment. Taking all the above matters into account, we are not persuaded that a sentence should be imposed different to that imposed by the sentencing judge. The judge could have been affected by the mistake made, but this is a case where general deterrence and denunciation of the offending conduct are very important. The sentence is high when compared to other sentences for offending of this kind, but the moral culpability here is itself very high. We do not consider that a lower sentence should be imposed.

67 There should be an extension of time in which to seek leave to appeal. Leave should be granted on proposed ground one, but the appeal must be dismissed.[24] Leave to appeal on proposed ground two should be refused.

[1] To ensure that there is no identification of the victim, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant.

[2] This is not a case where it can be said that there is no reasonable prospect that the Court would impose a less severe sentence than the one first imposed: Criminal Procedure Act 2009 s 280(1)(a).

[3] Section 6B(2)(ab) of the Sentencing Act 1991 defines a 'serious sexual offender' to include a person who 'has been convicted' of persistent sexual abuse of a child under the age of 16 for which he or she 'has been sentenced to a term of imprisonment.' Both the appellant and the respondent submitted that the single offence with which the appellant was charged could not be a 'qualifying offence', as it is not an offence for which she 'has been convicted' and 'has been sentenced'.

In R v Arnautovic [2001] VSCA 34; (2001) 121 A Crim R 412, 415 [7] Brooking JA said: 'the character or category of "serious offender" cannot be established in relation to a person by having regard to the sentence about to be passed'.

[4] Section 6D of the Sentencing Act 1991 states: 'If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence - (a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and (b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances'.

[5] [2004] VSCA 229; (2004) 11 VR 151 ('Beary').

[6] [2009] VSCA 311 ('LD').

[7] [2012] VSCA 24 ('Ly').

[8] [2011] VSCA 58 ('Cardona').

[9] Beary [2004] VSCA 229; (2004) 11 VR 151, 159 [21] (citations omitted).

[10] [1986] HCA 40; (1986) 162 CLR 24.

[11] LD [2009] VSCA 311, [26]-[27] (citations omitted).

[13] Cardona [2011] VSCA 58 [9].

[14] Criminal Procedure Act 2009 s 281(1)(b).

[15] [2000] VSCA 3.

[16] [2005] VSCA 105; (2005) 11 VR 287.

[17] [2007] VSCA 119; (2007) 16 VR 349.

[18] [2011] VSCA 65.

[19] [2012] VSCA 306; (2012) 37 VR 257 (the conviction appeal succeeded in that case but we have had regard to the sentence that was imposed below).

[20] (Unreported, County Court of Victoria, Judge Dean, 15 November 2017).

[21] [2009] WASCA 42.

[22] [2013] NTCCA 6; (2013) 277 FLR 313.

[23] (Unreported, Supreme Court of Tasmania, Blow CJ, 12 May 2016).

[24] Criminal Procedure Act 2009 s 281(2).