1. It is convenient to start with ground 4.
2. On the plea, the prosecution submitted that pt 2A of the Act applied to charges 2 to 7 on the indictment and that, in sentencing for those offences, the applicant fell to be sentenced as a 'serious sexual offender'. The Act prescribes certain consequences that follow when a person is to be sentenced as a 'serious offender', which the Act provides includes a 'serious sexual offender'. Section 6D deals with factors relevant to the length of the prison sentence to be imposed. In determining the length of the sentence to be imposed on a serious offender, the judge must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed, and may for that purpose impose a sentence longer than that which is proportionate to the gravity of the relevant offence for which the person falls to be sentenced. Section 6E of the Act provides that every sentence imposed on a serious offender for a relevant offence must be served cumulatively on any uncompleted sentence, unless the judge otherwise orders. Section 6F provides that where a court sentences a serious offender for a relevant offence it must, at the time of doing so, cause to be entered in the records of the court the fact that the offender was sentenced as a serious offender.
3. As already observed, the judge accepted the prosecution submission that the applicant was to be sentenced as a serious sexual offender in respect of charges 2 to 7. As the respondent accepts, that was an error. Charges 2 to 7 are Commonwealth offences and pt 2A does not apply to them.[19]
4. Although the judge did not impose a disproportionate sentence, and may well have imposed the same sentence without reliance on the serious offender provisions, it is not possible to say that the judge's recourse to pt 2A 'could not have materially affected' the sentence.[20] For that reason ground 4 must be upheld.
5. We shall defer consideration of the consequence of upholding this ground until we have considered the balance of the grounds.

1. In support of ground 1, the applicant submits that it was an error for the judge to find that his prospects of rehabilitation were 'guarded at best'. In oral submissions, counsel for the applicant called this finding a major factor in the 12-year non-parole period imposed.
2. The applicant submits this finding was against the weight of the evidence, including Mr Hanley describing the applicant's participation in treatment as 'positive', with the applicant engaging appropriately and expressing a desire to understand his problems and to make changes to his behaviour; and Mr Candlish's opinions that the applicant presented with a moderate-low risk of reoffending and appeared to show good prospects for rehabilitation based on his presentation and history.
3. Counsel for the applicant also noted in oral submissions that the applicant had no prior convictions of this nature. Counsel submitted that there is a danger the truly shocking nature of the offending has swamped the assessment of prospects of rehabilitation.
4. The applicant submits the judge made this finding without affording him procedural fairness, citing Lennon v The Queen.[21] The applicant also submits that the judge failed to consider that, as part of serving a sentence of imprisonment, the community has the reasonable expectation that he will be provided with rehabilitative treatment as soon as possible,[22] particularly in light of him having demonstrated his willingness to engage with such treatment.
5. The respondent submits that this finding was not erroneous in light of the protracted nature of the offending, the problems identified by both psychologists in their reports and the pervasive nature of the interventions identified in order to manage risk. The respondent says that, in order to succeed, the applicant must demonstrate that the judge was reasonably bound to find that the prospects of rehabilitation were 'good'. The respondent submits this is a hurdle too high to reach in all the circumstances.
6. In oral submissions counsel for the respondent submitted that a significant factor the judge considered in her assessment is the applicant's lack of insight into his offending, in circumstances where there is no suggestion he was suffering from an illness that impacts judgment or rationality.
7. In relation to the applicant's submission that he was not afforded procedural fairness regarding this finding, the respondent notes that during the plea hearing defence counsel referred to the findings of both psychologists in relation to the applicant's willingness to engage in treatment and his prospects of rehabilitation and made submissions on the issue. The respondent submits that the judge was not bound to, and did not, indicate a concluded view on this topic, and a fair hearing was conducted with defence counsel given every opportunity to make submissions on the issue.
8. This ground must be rejected.
9. First, there was no denial of procedural fairness. The prospects of rehabilitation was an issue that was plainly raised on the plea by both parties and was a topic that was inevitably going to be considered by the judge. Both parties were afforded the opportunity, by submission and evidence, to address the topic.
10. It is true that during the plea the judge did not tell the applicant that she would not accept the evidence of Mr Candlish, and at one point the judge complimented the submission made on behalf of the applicant as being 'fair and reasonable'. However, the judge was not bound to accept the opinion of Mr Candlish. Nor, in the circumstances, was the judge required to warn the applicant that she might not accept that evidence in its entirety. It was not submitted that the judge had induced the applicant into believing that the evidence of Mr Candlish would be accepted but even if that had occurred the applicant was not denied a fair opportunity from making submissions and adducing evidence. There was no practical injustice. The fact that the prosecution did not cross-examine Mr Candlish did not mean that the judge was required to accept everything that he had said in his reports.
11. Second, the judge's conclusion that the applicant's future prospects were 'guarded at best' was plainly open to her. Importantly, the judge was not prepared to accept that the applicant appreciated the harm that he had caused and she gave cogent reasons for qualifying her finding in relation to remorse. Those reasons included false denials by the applicant, a professed but implausible lack of memory and blame shifting. The applicant's offending occurred in the context of a long history of drug use, which is notorious for being difficult to overcome, and involved ongoing offending of a most grave kind.
12. When these matters are brought together, the judge's circumspect finding as to future prospects was well open.

1. In relation to ground 2, the applicant refers to the requirement under s 5B(5) of the Act that '[a]s part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence'. The applicant submits that the judge did not explain the reasons for why the sentence imposed on charge 5 was longer than the standard sentence, only stating that 'a sentence above the standard sentence is warranted'.[23]
2. The applicant accepts that a standard sentence is only a legislative guidepost and does not affect the intuitive synthesis approach to sentencing. The applicant also accepts that the provisions in the Act dealing with the content of sentencing reasons must be viewed as subordinate to those prescribing the approach to sentencing and do not require an assessment of offence seriousness relative to the hypothesised mid-range offence.[24]
3. However, the applicant submits that when one considers the subjective factors and matters in mitigation in this case, it cannot be correct for the sentence on charge 5 to be longer than the standard sentence, given the standard sentence has regard only to the objective factors affecting the relative seriousness of the offence. The applicant submits that the judge's approach, and failure to provide adequate reasons, reflects an error of principle.
4. The respondent submits that the sentence for charge 5 was generally within the permissible range in light of the age of the victim and there being two occasions of conduct, both of which were recorded by the applicant (the respondent addresses this under the rubric of ground 3 ― manifest excess).
5. In response to the applicant's submission that the judge failed to give adequate reasons, the respondent submits that the sentencing reasons were comprehensive in nature and expose the necessary reasoning as to why the sentence was appropriate. The respondent notes that a failure to provide 'sufficient reasons' is not an error that vitiates the sentencing decision.[25]
6. As the applicant acknowledges and as mentioned at paragraph [37] above, the judge referred to the decision of this Court in Brown and, in a footnote, the judge said that she must take into account the standard sentence and standard non-parole period in the same way as the maximum penalty and other relevant sentencing factors to arrive at an appropriate sentence by instinctiv[26]synthesis.26
7. Under this ground which relates to the sentence on charge 5, the applicant notes that the charge relates to two incidents which were 13 minutes apart and submits that the judge erred in imposing a sentence that was greater than the standard sentence. In relation to his complaint about the adequacy of reasons, he fastens on a single sentence in which the judge said that 'In instinctively synthesising all relevant matters, in my view a sentence above the standard sentence is warranted in each case'.[27]
8. The judge gave very detailed reasons which traversed the objective features of the offending and which highlighted why the judge regarded a number of the charges, including charge 5, as being serious examples of a serious offence. There can be no doubt that the judge was correct in that assessment.
9. Having regard to the many aggravating features of the offending, including that it occurred in the context of a parental relationship, the age of the victim, it involved a gross breach of trust and was undertaken for base sexual gratification, it was well open to the judge to impose a sentence on charge 5 that was higher than the standard sentence.
10. When read as a whole, the reasons for sentence provide ample explanation as to why the judge imposed the sentence that she did, including on charge 5. Necessarily, those reasons explain why she imposed a sentence on charge 5 that was greater than the standard sentence.
11. We reject ground 2.

1. The applicant submits that in light of the severity of a term of imprisonment increasing exponentially as it increases in length,[28] and the utilitarian discount for pleading guilty being significant for sexual offences involving children,[29] the sentences on charges 1, 2, 3, 5 and 6 and the orders for cumulation in relation to charges 2, 3, 4 and 7 were manifestly excessive.
2. In relation to the presumption of cumulation for State charges and Commonwealth charges, counsel for the applicant noted in oral submissions that there was substantial concurrency in the actions giving rise to those respective charges and submitted that due consideration must be given to the principle of totality.
3. The respondent submits that in light of the circumstances of the offences and the sentencing considerations taken into account by the judge, the individual sentences of charges 1, 2, 3, 5 and 6 fell within the permissible range.
4. The respondent also submits that the cumulation orders for charges 2, 3, 4 and 7 were not manifestly excessive, the offending the subject of those charges added significantly to the overall criminality (including victim impact) and the overall cumulation of five years' imprisonment reflected appropriate moderation of individual sentences in order to accommodate the principle of totality. In oral submissions the respondent submitted that the sentences under charges 2, 3, 4 and 7 were artificially low, which counters any complaints of cumulation.
5. In oral submissions the respondent's position was that in the objectively horrific circumstances, the total effective sentence was within a permissible range. If any of the individual sentences are adjudged to be manifestly excessive, the respondent submits that a 'no different sentence' result is appropriate.
6. Given that we have upheld ground 4, it is not necessary for us to determine this ground. However, as will shortly appear, it is without merit.

1. Section 280 of the Criminal Procedure Act 2009 provides that this Court may refuse leave to appeal under s 278 in relation to any ground of appeal if:

(a) there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed; or

(b) there is no reasonable prospect that this Court would reduce the total effective sentence despite there being an error in the sentence first imposed.

1. The sentencing exercise was a difficult one, made more difficult by the requirement to address both Commonwealth and Victorian sentencing regimes.
2. The offending covered two overlapping but distinct realms. The first related to the physical offending against the applicant's children. Charge 1 was plainly the most serious. It involved prolonged offending over 17 days in which the applicant engaged in the most base sexual offending against his vulnerable children.
3. When compared with the applicant's conduct that comprised charge 1, charges 5 and 6 were obviously less serious. They occurred on a single occasion. However they were serious in their own right. They involved separate and distinct criminality that was deserving of significant punishment and denunciation.
4. The second related to the Commonwealth offending which was distinct but also very grave. The applicant's exploitation and abuse of his own children and the dissemination of images to various persons including for the purposes of obtaining other child abuse images in return was reprehensible. The applicant participated in a vile and pernicious practice that crosses international borders and which can only encourage and foster an environment for the ongoing serious sexual exploitation of children. That he did so, spruiking images of his own children adds to the gravity.
5. The applicant's plea of guilty deserved very significant weight for its utilitarian value, especially in the context of the pandemic. However, there were few other powerful matters in mitigation. As already observed the judge's assessment of the degree of remorse and prospects of rehabilitation was qualified and we agree with that assessment.
6. The applicant can gain no comfort from the fact that he was consuming drugs at the time and may have been intoxicated by them at the time of some of the offending. Despite having the reminder of his grave offending on his mobile phones the applicant persisted in his offending after a period of time that should have caused him to reflect on his conduct and desist. His attempt to minimise his responsibility by pointing to his intoxication and drug addiction was rightly a matter of concern for the judge.
7. In the circumstances, the judge was correct to ascribe a high degree of moral culpability on the part of the applicant.
8. The sentence on charge 1 was appropriate and were it necessary to resentence the applicant we would not reduce it. Likewise, the orders for cumulation made in respect of the other State offences and the Commonwealth offences were in the circumstances of this case lenient. That is particularly so in relation to the Commonwealth offending.
9. In the result we are satisfied that there is no reasonable prospect of this Court reducing the total effective sentence on any appeal. For that reason, leave to appeal must be refused.

[1] To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Crimes Act 1958, s 49J amended by the Crimes Amendment (Sexual Offences) Act 2016.

[3] Criminal Code Act 1995 (Cth) s 474.23(1).

[6] Crimes Act 1958, s 49D(1).

[7] Ibid s 50C(1).

[8] Criminal Code Act 1995 (Cth) s 474.22A(1).

[9] Hugo, Matthew and Emily are pseudonyms.

[10] DPP v Murphy (A Pseudonym) [2021] VCC 1525, [47] ('Reasons').

[15] (2019) 59 VR 462; [2019] VSCA 286 ('Brown').

[19] McKenzie v The Queen [2018] VSCA 34; Lyons v The Queen [2019] VSCA 242 ('Lyons').

[20] Lyons [2019] VSCA 242; Dimovski v The Queen [2022] VSCA 6.

[21] [2017] VSCA 85, [23]-[24] (Weinberg and Santamaria JJA, and Kidd AJA).

[22] DPP v Herrmann [2021] VSCA 160, [19] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).

[24] Brown [2019] VSCA 286; (2019) 59 VR 462, 474 [41] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286.

[25] DPP v Drake [2019] VSCA 293, [14]-[17] (Maxwell P , Priest , Kaye , T Forrest and Emerton JJA).

[28] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 61 [62] (Redlich JA, with whom Coghlan JA and Macaulay AJA agreed); [2011] VSCA 372.

[29] Davy v The Queen [2011] VSCA 98, [34] (Bongiorno JA, with whom Harper and Hanson JJA agreed).