1 The appellant, LJ, pleaded guilty in the County Court at Melbourne to two counts of incest. Each count concerned one of his step-daughters, whom we shall designate H and J respectively. Count 1 alleged that, on a date between 1 January 2000 and 31 December 2002, the appellant had taken part in an act of sexual penetration with H by introducing his penis into her mouth. Count 2 involved essentially the same conduct with J, though the dates in question in relation to her were between 1 January 2001 and 31 December 2005.

2 The background facts can be briefly stated. In October 1999, the appellant commenced a relationship with a woman who had four young children. They married in June 2000, and the appellant thereby became step-father to those children. The eldest two were girls, H and J, then aged six and seven respectively. Shortly thereafter, the appellant began to sexually abuse the two girls.

3 The abuse came to light in 2007, after the appellant moved out of the family home. The older girl, J, told her mother that the appellant had made her and her sister suck his penis. His wife confronted him, but he initially denied any wrongdoing. When questioned by the police, he admitted to some sexual activity with the girls, but maintained, as he still did at the time of the plea, that it was he who had in fact been the victim of sexual assault by the two children.

4 The two counts to which the appellant pleaded guilty were described as 'rolled-up' counts. As we have indicated, count 1 concerned the younger girl, H, who was aged somewhere between six or seven, and nine, at the time of the offending.

5 The sentencing judge sentenced the appellant upon the footing that count 1 encompassed five separate incidents of oral penetration. It is unnecessary, for present purposes, to set out the detailed allegations of what was said to have taken place. It is sufficient to note simply that three of the offences were said to have occurred in the presence of her elder sister, J.

6 Count 2, as we have said, concerned J. Her Honour sentenced the appellant on the basis that this count involved seven separate incidents, all of which took place at a time that J was between eight and 12 years of age. A number of these offences were said to have taken place in the presence of J's younger sister, H.

7 Each count of incest carried a maximum sentence of 25 years' imprisonment. Obviously, the offending took place over a period of some years. The fact that a number of the acts were committed in the presence of the other child involved additional degradation and constituted a circumstance of aggravation. The victim impact statements that were filed contained harrowing accounts of the suffering that the two young girls had endured.

8 The appellant was aged 60 at the time of sentencing. His counsel tendered on the plea two reports, one by Dr Lester Walton, a forensic psychiatrist, and the other by Mr Jeffrey Cummins, a forensic psychologist. Counsel also tendered a report by Mr Terry Charlton, who was the appellant's treating psychologist. There were also tendered reports from the appellant's general practitioner as to the appellant's overall health. It seems that, in 2006, the appellant was involved in a motor vehicle accident, and sustained significant closed head injuries which left him permanently debilitated. He suffered severe facial injuries, post-traumatic amnesia and ongoing memory problems.

9 Perhaps not surprisingly, the material indicated that the appellant had himself been a victim of sexual abuse as a child. This had had a considerable effect upon his sexual relationships throughout his entire adult life. He had had a good employment history until 1991, when he suffered a workplace injury and was incapacitated. Since then, he had been on a disability support pension. There was evidence that he had suffered from depression for many years.

10 The sentencing judge accepted that the appellant's combined physical and psychological difficulties meant, in accordance with R v Verdins,[1] that his imprisonment would prove to be significantly more arduous than that of someone who enjoyed good health.[2] She said that she would take this into account in fixing the appropriate sentence. She said, however, that none of his mental health problems were related causally in any way to his offending. Accordingly, her Honour held that it was only the last limb of Verdins[3], and not the first, that was engaged.

11 The sentencing judge next said that the appellant would receive a considerable reduction in sentence by reason of his plea of guilty. Her Honour observed that an accused who pleaded guilty was always entitled to some benefit on the basis of the utilitarian value of the plea. However, she added that in the appellant's case, additional weight would be given to the plea because he had, to some degree, acknowledged his wrongdoing. She noted that, in cases of child sexual abuse, a plea of guilty often carried greater weight because it spared the victims from the ordeal of giving evidence.

12 Her Honour's willingness to find a measure of remorse on the part of the appellant was perhaps somewhat charitable. She noted that such remorse was qualified because the appellant was still in denial regarding the appropriateness of his behaviour. In the account given to his various treating doctors, he suggested that part of the blame for what had taken place rested with the young girls. Dr Walton remarked upon this by describing the history which the appellant gave as 'nothing short of preposterous'. He added, however, that it was by no means uncommon for paedophiles to engage in both denial and justification regarding their actions. It should be noted that Dr Walton indicated that the appellant's account of what had occurred was one of the more extreme cases of denial that he had encountered.

13 The appellant had no previous convictions. The sentencing judge considered that to be a matter of some significance, having regard to his age.

14 The sentencing judge identified the primary sentencing principles relevant in this case, and no criticism can be made of her observations in that regard. She spoke of the need for any sentence imposed to reflect considerations of deterrence, denunciation, and just punishment. She very properly characterised the appellant's conduct as involving a profound breach of trust. Her Honour referred to the principle of totality, and by implication, therefore, to the need to avoid a sentence that was crushing. She said, in relation to the rolled-up nature of each of the counts, that she was required to have regard to the number of single instances embodied within each. She took into account the delay which had taken place in this case, particularly the delay between the time the appellant was charged and the time he came to be sentenced.

15 The Crown, when asked in accordance with R v MacNeil-Brown[4] to submit an appropriate range so far as the total effective sentence was concerned, responded by saying that a period of between six and a half years, and eight and a half years, would be adequate. The Crown further submitted that the non-parole period should be somewhere between about four years and six and a half years.

16 The sentencing judge considered that submission, but decided that she should not give effect to it. Her reason for doing so was that she considered the submission to be based upon a misconception as to the number of incidents of incest embodied within each count. When the plea was first listed for hearing, the prosecutor who opened the matter provided an oral summary of the case which he said represented the agreed facts. On that occasion, he made it clear that count 1 involved five separate acts of incest, while count 2 embodied seven such acts.

17 By the time the plea came on for final hearing, some months later, a different prosecutor appeared. By that stage, a document had been prepared which was said to represent an agreed summary of the facts. Regrettably, the document seems not to have been as well-expressed as it could have been. In her Honour's view, the document seemed to suggest that count 1 embodied only three separate acts of incest and count 2, only five such acts. In other words, the document suggested fewer acts of incest than had originally been opened.

18 The sentencing judge inferred that the Crown's submission as to range must have been based upon that lesser number of offences, rather than the greater number originally opened. So far as we can tell, there was no basis for that inference. The prosecutor said nothing to suggest that the range put forward was in any way based upon figures of three acts of incest on count 1 and five acts of incest on count 2. That was simply her Honour's interpretation of the somewhat loosely-worded document.

19 It was because the written summary of agreed facts filed by the second prosecutor did not seem to accord with the earlier oral summary of agreed facts that the sentencing judge took the view that the range put forward by the second prosecutor should be regarded as inadequate.

20 It was in these circumstances that her Honour sentenced the appellant to five years' imprisonment on count 1, and seven years' imprisonment on count 2. She treated the sentence on count 2 as the base sentence, and cumulated two years of the sentence on count 1 on that base sentence. That made a total effective sentence of nine years' imprisonment. A non-parole period of six years was fixed.

21 The sentencing judge declared, pursuant to s 6AAA of the Sentencing Act 1991, that, but for the plea of guilty, she would have sentenced the appellant on count 1 to seven years and six months' imprisonment, and, on count 2, to ten years and six months' imprisonment. She said that she would have ordered cumulation to produce a total effective sentence of 13 years and six months, and that she would have fixed a non-parole period of 12 years.[5]

22 On 13 August 2010, Redlich JA granted the appellant leave to appeal against sentence. His Honour did so on all grounds, but focussed upon what the sentencing judge had said regarding the Crown's submission on sentencing range. He noted that her Honour had concluded that the range proposed by the prosecutor at the end of the plea did not take into account the full number of acts contained in the rolled-up counts, and was therefore 'on the low side'.

It is not entirely clear that such a conclusion is warranted. At the time that the second prosecutor (Mr Goetz) sought instructions as to the range, he was well aware that the matter had been previously opened by Mr D'Arcy. If there be error, it was not in any event one which involved a denial of procedural fairness, but would amount to her Honour having reached the wrong conclusion as to the basis upon which the Crown range had been advanced. Plainly, her Honour was not bound to give effect to the Crown's submission as to range, but it was a relevant matter that her Honour should take into account.

24 There was an additional ground argued in camera to which Redlich JA alluded briefly. His Honour noted that this ground, if it were to be pursued, would require the appellant to place additional material before the Court to explain the course which his counsel had felt obliged to take during the plea. As it happened, that course was indeed followed.

25 The appellant now relies upon the following three grounds in support of his appeal (ground 1 having been abandoned):

1. The learned sentencing judge erred in her consideration of the Crown submission as to the sentencing range.
2. The sentence imposed is manifestly excessive.
3. The sentencing discretion should be reopened in order to take into account the evidence relating to the appellant's past co-operation with the authorities.

26 In our view, this appeal should be allowed. There are a number of reasons why we have come to that conclusion.

27 In the first place, there seems to have been a specific sentencing error in relation to the manner in which her Honour dealt with the Crown's submission as to the appropriate range. As we have indicated, her Honour discounted that submission because she concluded that it was based upon a mistaken belief by the second prosecutor that the appellant was to be sentenced for fewer acts of incest than had actually been acknowledged. We are not persuaded that there was any such mistake made by the second prosecutor.

28 Her Honour's inference that the range chosen was based upon her particular reading of the written summary of agreed facts was not justified. She made no inquiry of prosecuting counsel as to whether her interpretation of the written document accorded with his. Nor did she invite counsel who appeared for the appellant below to address her on the subject. It would be quite unsafe, in these circumstances, to draw any conclusions as to how the Crown came to its figure that a range of between six and a half years and eight and a half years was warranted.

29 Of course, the sentencing judge was not bound by any range put forward by the Crown. However, it is at least unusual, in our experience, for a sentencing judge to impose a sentence greater than the figure at the top of the range provided by the Crown pursuant to a MacNeil-Brown request[6]. When a judge does so as a result of that judge's own factual error, and the error is significant, it is difficult to see how the exercise of the sentencing discretion can be permitted to stand.

30 The figure of 13 and a half years put forward by her Honour as the sentence that would have been warranted but for the plea of guilty, pursuant to s 6AAA of the Sentencing Act, is also a matter of some concern. The Crown very properly conceded that a sentence of that order would certainly have been manifestly excessive had it been imposed after a trial, and this suggests that her Honour may have begun her

consideration of the appropriate disposition of this matter from too high a starting point.

31 In addition, the sentencing judge appears to have given insufficient weight to the operation of the Verdins principle regarding the particularly burdensome nature of imprisonment so far as the appellant was concerned. That is so even if one puts to one side the matters upon which the appellant relied in support of ground 4.

32 When one adds to these factors the issues addressed in ground 4 regarding the appellant's past cooperation with the authorities (which were dealt with in camera and on a confidential basis), but which were conceded to be relevant to the exercise of the sentencing discretion if re-sentencing were to occur, it seems to us that there is a compelling case for this sentence to be reduced.

33 We would therefore allow this appeal. We would set aside the sentence on each of counts 1 and 2 and the non-parole period. In lieu thereof, we would sentence the appellant on count 1 to four years' imprisonment and on count 2, to six years' imprisonment. One year of the sentence on count 1 should be cumulated upon the sentence on count 2. That makes a total effective sentence of seven years. We would fix a non-parole period of four years and six months.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] This finding brought the appellant within the sixth of the Tsiaras principles as reformulated in Verdins at 276.

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

[4] [2008] VSCA 190; (2008) 20 VR 677.

[5] We might note, in passing, that a non-parole period of 12 years would seem to be extraordinarily high in relation to a head sentence of 13 years and six months.

[6] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677.