CRIMINAL LAW - Appeal - Sentence - Sexual assault of child under 16 - Two charges - Four years' imprisonment on each charge - No cumulation - Non-parole period of 19 months - Rolled-up charges - Whether manifestly excessive - Standard sentence offence - Whether mechanistic approach adopted - Very serious offending - Position of trust as yoga teacher - Twofold breach of trust - Deliberate deception of complainant and her mother - Degrading conduct - Vulnerable victim - Serious victim impact - Importance of denunciation and general deterrence - Sentences within range - Leave to appeal refused - Lugo (a pseudonym) v The Queen [2020] VSCA 75 followed - Sentencing Act 1991 s 5A(1)(b).

CRIMINAL LAW - Appeal - Sentence - Practice and procedure - Appeal submissions departed from concessions made by defence counsel on plea - Undesirability of changes of position - Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486 referred to.

1 The applicant pleaded guilty to two rolled up charges of sexual assault of a child under 16. That offence carries a maximum penalty of 10 years' imprisonment. The applicant was sentenced to 4 years' imprisonment on each charge, with no cumulation. A non-parole period of 19 months was fixed.

2 The applicant now seeks leave to appeal against the sentence on a single ground, namely, that the total effective sentence of 4 years and the non-parole period of 19 months are manifestly excessive. In my opinion, that ground is not reasonably arguable and leave to appeal must be refused.

3 At the time of the offending, the applicant was operating a yoga studio. The victim was a 15-year-old girl ('S'), and the offences were committed during her second yoga class with the applicant. S's mother was in the same yoga studio throughout the class.

4 During the class, S told the applicant that she was struggling with her breathing and felt congested because she had a cold. The applicant told S's mother to do a range of poses while he assisted S with her breathing.

5 Over a period of approximately 30 minutes, the applicant placed his hands on S's breasts, inside her bra, on three separate occasions (rolled up charge 1) and touched around her vagina, inside her underwear, on two separate occasions (rolled up charge 2). Before the last two of these assaults, the applicant took up a position behind S, reiterating to her mother that he was helping S with her breathing. After the first touching of her vagina, the applicant licked his finger; after the second, he licked his hand.

6 As this brief summary demonstrates, this was very serious offending. The applicant cynically exploited the opportunity afforded to him by S having entrusted herself to his care, and having permitted him to be in close physical proximity to her. He pursued his own sexual gratification despite S's clear signals of discomfort, and deliberately deceived S and her mother about what he was doing.

7 The judge made the following, unchallenged findings:

This offence is particularly egregious as it was committed in a brazen manner in the presence of the child's mother under the pretence of a health practice in the manner which was facilitated by the trust reposed in you by both as a teacher and practitioner, which you breached, and this aggravates your offending.

In my view, your moral culpability is high and your conduct reprehensible as motivated by self-gratification extracted by barefaced manipulation.[2]

8 Sexual assault of a child under 16 is a 'standard sentence offence'. The standard sentence for the offence is 4 years' imprisonment. As will appear, the applicant contends that:

(a) the imposition of a sentence of 4 years on each charge revealed a 'mechanical' approach to the standard sentence; and

(b) the fact that charge 1 (involving the touchings of the breasts) received the same sentence as charge 2 (involving the touchings of the vagina) was an 'obvious error' by reason that - so it was said - touching the breast 'has always been considered as being of less objective seriousness' than touching the genitals.

9 For reasons which follow, those contentions must be rejected. Both points are squarely answered by the judgment of this Court in Lugo (a pseudonym) v The Queen,[3] a copy of which the prosecutor provided to the judge and defence counsel on the plea.

10 In Lugo, the Court held that it was reasonably open to impose a sentence of 4 years and 4 months' imprisonment (4 months more than the standard sentence) for the sexual assault of an 11-year-old girl by her father. The charge was based on a single act, the kissing of the girl on her breast. The Court said that any sexual touching of a child by a parent or guardian - a person in a position of trust - was to be viewed as very serious, irrespective of which part of the body was touched.[4]

11 On the plea in the present case, defence counsel conceded - properly, in my view - that the offending could be classified 'in the medium to high range of offending'. That concession followed counsel's acknowledgment that the breach of trust involved was a 'serious aggravating factor'.

12 When account is also taken of the applicant's persistence in the face of S's obvious discomfort, the deliberate deception of both mother and daughter, and the fact that both charges were rolled up (involving multiple separate assaults), the sentences of 4 years' imprisonment are properly described - in the language of the respondent's written case - as unremarkable.

13 As will appear, the submissions advanced on behalf of the applicant in this Court departed in significant respects from concessions made and submissions advanced on the plea, where the applicant was represented by different counsel. The undesirability of such departures was explained by this Court in Romero v The Queen, as follows:

In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.[5]

14 S's mother first met the applicant when she enquired about attending yoga classes taught by him. On 9 July 2018, she attended her first class, which was held at the applicant's home where he lived with his wife and two children.

15 On 30 July 2018, S went with her mother to attend her first class with the applicant. He explained the benefits of yoga to S and her mother. S accepted what the applicant told her. At 5:00 am the following day, S and her mother attended a yoga class at the applicant's home. During the class, S and her mother were on separate mats, approximately 1 metre apart. The mats were parallel to each other.

16 During the class, S told the applicant that she was struggling with her breathing and felt congested because she had a cold. The applicant told S's mother to do a range of poses while he assisted S with her breathing. The applicant then positioned himself facing S. Both of them had their legs crossed. The applicant placed S's legs on top of his legs and his face close to hers, which made her feel uncomfortable.

17 The applicant lifted S's T-shirt up slightly and placed his hands around her stomach before moving them up and under her bra. He grabbed her breasts with both hands and touched her breasts for around one minute (charge 1 - rolled up charge).

18 The applicant then moved his hand inside S's underwear and touched the outside of her vagina. This touching also lasted for approximately one minute (charge 2 - rolled up charge). He then removed his hands from inside her underwear and licked his finger. He then placed his hands up inside S's T-shirt and inside her bra, and was feeling her breasts again (charge 1 - rolled up charge).

19 The applicant removed his hands from S's bra and attempted to kiss her, but she pulled away. He repositioned himself and grabbed her left wrist and moved it towards his penis. The applicant said to her, 'Come on, touch it.' S said 'No.' The applicant then asked 'You aren't comfortable?', to which S replied, 'No.'

20 The applicant then moved behind S. He told her mother that he was helping S with her breathing. Whilst sitting behind S, the applicant placed his left arm around her waist and his left hand on her stomach and waistband. He then pulled S's waistband from her waist and put his hand inside her underwear, touching around her vagina (charge 2 - rolled up charge).

21 The applicant removed his hand from inside S's underwear and licked his hand. For the third time he placed his hand up S's T-shirt, inside her bra, and rubbed her breasts and nipples (charge 1 - rolled up charge).

22 Before the class had finished, the applicant said to S, 'You are feeling a bit tense. We will continue this another time.' S and her mother then went home, where they prepared for school and work respectively. When she arrived at school, S made disclosures to two friends and to the school counsellor.

23 When interviewed by police, the applicant made no admissions. He has no prior convictions.

24 Defence counsel who appeared on the plea (but not on this application) had provided the sentencing judge with a helpful written outline of submissions. The relevant part of the outline stated as follows:

2.4 As [S's] yoga teacher, [the applicant] was in a position of trust, which is in itself a serious aggravating factor.

2.5 On an objective analysis of this offending it can be classified in the medium to high range of offending.

25 In the course of counsel's oral submissions on the plea, the following exchange took place:

COUNSEL: In the characterisation of the offending, your Honour, we have conceded as being in the medium range and that's because the prosecution opening [sic], this is a case where it is a touching. There is multiple touching. Whilst the extended period might be no more than half an hour, there is multiple touching during that period of time. It's under clothing and it is of course in more than one intimate place on behalf [sic] of the body and his action [is] more than just touching.

HIS HONOUR: I think that's a reasonable admission when you look at Lugo for example, the Court's pretty specific there when dealing with very similar offending.[6]

26 On this application, counsel for the applicant drew attention to counsel's use of the word 'medium' in this exchange, rather than 'medium to high'. The use of that word was said to have represented, and to have conveyed to the judge, a deliberate change of position. According to the submission, counsel was here withdrawing the concession made in writing - that the offending could be classified 'in the medium to high range' - and substituting a different concession - that it was 'in the medium range'.

27 In my view, that submission cannot be sustained, for several reasons. First, as is apparent from the exchange with the judge set out above, defence counsel gave no indication whatever of any such change of position. On the contrary, he used the past tense - 'we have conceded' - which was plainly a reference to the written plea submission, which he had tendered only moments earlier. Having made the tender, counsel informed the judge that he would 'speak to the submissions'.

28 Secondly, the written concession was of particular significance given that it was directed at the 'objective factors' aspect of the standard sentence scheme.[7] Importantly, the prosecutor had earlier made exactly the same submission, directed expressly at the standard sentence provisions. The prosecutor submitted that the applicant's offending fell in the middle to high range of seriousness 'because ... he was in a position of trust'. In those circumstances, it would have been incumbent on counsel - in the discharge of his duties to the Court and to his client - to draw the judge's attention in the clearest terms to any departure from the concession made in the written plea submission. As can be seen, nothing of that kind occurred.

29 Thirdly, his Honour's reasons confirm that he understood counsel to have proceeded on the basis of the written concession. His Honour said:

It was conceded by your counsel upon your plea that an objective analysis of the offending would enable without demur the offending to be classified in the medium to high range of offending. I agree with this proposition fairly made for the reasons outlined in my reasons above.[8]

30 As I pointed out during argument, had there in fact been a change of position by the defence, this passage from the reasons would have provided an obvious ground of appeal on this application. It would have meant, first, that his Honour had made a serious mistake in acting on the original, stronger concession, and, secondly, that there had arguably been a breach of natural justice, in that his Honour should have alerted defence counsel that he was not prepared to accept the (putative) change of position. No such ground was advanced.

31 In any event, as counsel for the respondent correctly pointed out, it was for the judge to reach his own independent view about the objective gravity of the offending. As is apparent from his reasons, his Honour was satisfied that the offending was properly to be viewed as being in the 'medium to high range'. It was well open to his Honour to reach that conclusion.

32 The appeal submissions also sought to depart from the concession made on the plea that the applicant's breach of trust was 'a serious aggravating factor'. The submission in this Court was that the breach of trust 'only marginally aggravated the offending'. This was said to be so because it was not a case of 'a person exploiting a long relationship of authority or power' and because 'the mother was in charge of the daughter and was right next to her'. Because S's mother was present, it was said, this was a case of a 'split breach of trust'.

33 In my view, the concession made by defence counsel on the plea was entirely appropriate. It reflected a proper understanding of the relationship of trust which had been created, and of how the breach of trust aggravated the seriousness of the offending. This was, as counsel for the respondent correctly submitted, a twofold breach of trust. The applicant breached the trust which S's mother had reposed in him, to care for her daughter, and he breached the trust which S herself had placed in him, by submitting herself to his direction and control and - for that purpose - putting herself in close physical proximity to him.

34 It is not to the point that the relationship of trust had only recently come into existence.[9] What mattered is that the trust placed in the applicant for the duration of the yoga class was absolute, as he well knew, and he abused it knowingly. Far from ameliorating the breach of trust, the fact that S's mother was present while he abused her simply reinforces how serious it was.

35 The submission about a difference between touching the breasts and touching the vagina was also a significant departure from the position adopted on the plea. Defence counsel on the plea did not seek to differentiate between charges 1 and 2 on that basis. On the contrary, as appears from the exchange set out earlier, counsel explained his concession as to the seriousness of the offending by reference to the fact that there were multiple touchings, under S's clothing, and that the applicant had touched her 'in more than one intimate place'.

36 As indicated earlier, the position adopted on the plea was consistent with what was said in Lugo. In that case, a contrast was sought to be drawn between a sentence of 2 years' imprisonment imposed for a charge of sexual assault of a child involving touching on the vagina, and a sentence of 4 years and 4 months imposed for a charge of sexual assault involving kissing on the breast. The latter assault was a standard sentence offence, the former was not.

What, then, of the differential of 22 months between the sentence on charge 2 and the sentence on charge 3? For the purposes of the comparison, we would accept the Director's submission that it is neither necessary nor appropriate to 'grade' the conduct involved in the assaults according to which part of K's body the applicant touched. As counsel submitted, any sexual touching of a child by a parent or guardian is to be viewed as very serious. In the present case, in our view, what matters is not the particular part of the body but the intimacy of the conduct - accompanied as it was on each occasion by kissing on the lips - and the fact that it was being engaged in by the very person in whom K had placed her trust.

For those reasons, we would regard the two sexual assault charges as of comparable seriousness, as to both objective gravity and the applicant's culpability.[10]

38 A similar analysis applies in the present case, given the position of vulnerability and close physical proximity in which S had allowed herself to be placed, in the expectation that she would be assisted with her breathing difficulties. In that setting, the handling of her breasts, which in the first instance continued for a full minute, was just as serious an invasion of an intimate part of her body as the touching of her vagina.

39 A further submission advanced for the first time in this Court was that S was not 'a soft target'. This was said to be so because there had been no grooming of S. I reject that submission. In my view, S was a quintessential 'soft target'. As is apparent from the description of what occurred, she was peculiarly vulnerable in this setting. She was under the applicant's direction and physical control, which he maintained by his purposefully deceitful conduct of insisting that he was 'helping her with her breathing'. S was clearly uncomfortable when the applicant grabbed her wrist and directed it towards his penis but - as the respondent put it - she 'could not act to get help from her mother'.

40 One further aggravating feature needs to be mentioned. It is that, on two separate occasions, the applicant licked his finger/hand after touching S's vagina. I accept the submission of counsel for the respondent that this was 'degrading conduct', which showed 'a disturbing sense of entitlement'. By behaving in this highly offensive way, the applicant treated S as a mere object, demonstrating to her that he felt free to use her for his self-gratification in whatever way he chose.

41 The applicant's written case drew attention to other aggravating features which might have been present but were not. As the respondent's written case correctly pointed out, that circumstance cannot assist the applicant. Had there been additional aggravating factors, the offending would have been even more serious and would likely have warranted a heavier sentence. The task of the sentencing court - and of this Court on appeal - is to assess the gravity of what actually occurred. Except where distinctions are being drawn between particular cases, references to non-existent aggravating factors are of little assistance.[11]

42 As noted earlier, the submission was advanced orally - although not foreshadowed in the written case - that the judge had applied 'a mechanistic approach to the standard sentencing provisions'. This was said to have been demonstrated by the imposition of a sentence of 4 years on each of the two charges, that being the standard sentence for this offence. In response to questions from the Court, senior counsel for the applicant confirmed that what was meant by this submission was that the 'judge's exercise of discretion was mechanistic rather than a real exercise of discretion'. The judge's error, it was said, was to be inferred from the fact that the sentence imposed on each charge was the standard sentence.

43 This submission must be rejected. The judge's treatment of the standard sentence was entirely orthodox. His Honour said: 'I have considered the standard sentence. As with the maximum this is a guidepost in the context of the instinctive synthesis of a sentencing exercise'.[12]

44 His Honour's reference to the standard sentence being 'a guidepost in the context of the instinctive synthesis' accorded with what was said by this Court in Brown v The Queen,[13] to which the prosecutor had drawn his Honour's attention. At that point in the plea, his Honour said:

I think both Brown and Lugo are quite definitive in terms of what the sentencing process is to be. [A]t least it would appear that there's a fairly minimalist approach that's been taken in relation to how the court is to take that matter [the standard sentence] into account.

45 It is plain that the judge did not in any sense apply the standard sentence 'mechanically'. On the contrary, his Honour's clear and thorough reasons confirm that the standard sentence was but one of the relevant considerations taken into account.

46 The written case filed on behalf of the applicant contained the following puzzling submission: 'When regard is had to appropriate comparable cases - of which there appear to be none - it is submitted that the sentence imposed is manifestly excessive.' One comparable case which might have been addressed was Lugo, which the sentencing judge identified on the plea as a case dealing with 'very similar offending'.

47 As noted earlier, Lugo was a standard sentence case so far as charge 3 was concerned. Further, the features going to objective seriousness were relevantly comparable to the present case. The conclusion in Lugo - that a sentence of 4 years and 4 months was reasonably open in the circumstances of that case - creates obvious difficulties for the applicant's contention that the individual sentences of 4 years in the present case are outside the range.

48 As noted earlier, the relevant sexual assault charge in Lugo concerned a single act. Here, the judge was dealing with rolled-up charges. And, although the present case did not involve pre-planning, as Lugo did, it has the additional features of deception, degrading conduct and persistence in the face of clear signals of discomfort.

49 As is well established, a rolled up charge can only be laid with the consent of the defence. It operates to the benefit of the defence, enabling what would otherwise be separate charges to be dealt with as a single charge.[14] Importantly, however, the sentence for a rolled up charge must reflect the total criminality of the individual offences included in the single charge.

50 Other things being equal, therefore, a rolled up charge of sexual assault is more serious than a single offence charge of sexual assault.[15] Senior counsel for the applicant properly conceded that that was so. In the present case, the fact that these were rolled-up charges (involving three and two assaults respectively) is a significant matter going to the question of whether the sentences were reasonably open to the judge.

51 Victim impact was also an important consideration. As is well understood, sexual offences against children are extremely harmful.[16] In this case, the judge recorded how seriously both S and her mother had been affected:

A victim impact statement was prepared by [S's] mother. She wrote of her stress in supporting her daughter's plight of anxiety which incurred also financial stress as a consequence as well as interfering with [S's]. She writes that her daughter has not been the same since these events. She has not been able to focus on her studies, has lost trust and self-confidence. The process has been highly deleterious and painful for both. [S] is said to be fearful in building relationships and she has had to seek psychological assistance. She has experienced a traumatic period of stress in which she is reminded of the incidents and has lost sleep and serenity.

I take her statement into account and I take the impact upon both the mother and the daughter into account. This is an important consideration in the synthesis of matters which are of fundamental importance in dealing with crimes and its consequences, particularly those of this nature.[17]

52 His Honour then dealt with denunciation and general deterrence, in these terms:

The reaction and long-term effect of your offending should not be under estimated because your abuse was of a single incident of repeated abuse of relative short duration. The violation of a child's physical integrity by an adult is not just shameful and abhorrent to the community and offensive to its values but leaves long lasting damage and trauma which persists, and which blights lives for years and touches every aspect from health to education to relationships and loss of trust. These impacts are seen every day in these types of offences by the court and the community rightly looks to the court to punish justly and denounce loudly such vile conduct and deter those who are like minded to offend against children in this way.[18]

53 I respectfully agree with his Honour's statements, which were not challenged on this application. General deterrence and denunciation were, of course, of central relevance to the sentencing task.

54 As to the applicant's plea of guilty, the submissions on the appeal involved another departure from a concession made on the plea. Defence counsel's written plea submission accepted that the plea of guilty had not been entered at the earliest opportunity. The appeal submission contended that it 'ought to be regarded as having been made at the earliest possible opportunity'.

55 The respondent cited Romero (referred to earlier) in submitting that the applicant should not be permitted to depart from the plea concession. I agree. The system of appeals will become unworkable if considered concessions made on the plea can simply be discarded.

56 In any event, the basis of the purported change of position is unsound. Initially, the applicant had offered to plead to conduct comprising the touching of S's breasts and her stomach. That offer was rejected. It was not until a year later that he made the offer which was accepted, namely, to plead to conduct comprising three occasions of touching S's breasts and two occasions of touching her vagina. By that time, as counsel on the plea properly acknowledged, S had been cross-examined at the special hearing. In effect, therefore, she had been exposed to the full rigours of the trial process, even though no trial ultimately took place.

57 Contrary to the applicant's contention in this Court, the first and second plea offers were materially different. As the respondent correctly submitted, there is the clearest difference in criminality between touching a girl's stomach and touching an inherently sexual area of her body, such as the vagina or breasts. Given the timing of the second offer, the concession made by defence counsel on the plea was correctly made and his Honour was fully entitled not to regard it as an early plea.

58 His Honour went on, however, to recognise the significance of the plea, and of the delay between interview and charge:

Nevertheless, you will be given credit for your plea and it will reduce your sentence. The plea is also valuable as it is made in a time of pandemic in which over 18 months or so, it has rendered the delivery of outcomes by the criminal justice system very difficult. It is a plea which, in view of the seriousness of the offences would inevitably have exposed you to incarceration at a time also when the prospects of reclusion are made worse and more burdensome than usual by the pandemic. It has and will impact by way of lockdowns, much time in closed confinement, restricted services, unavailable work and programs and generally harsher conditions with a threat of a contagion also present.

I take these significant matters into account. I also add to this the delay that occurred at the start of the process, as I say, in relation to the charging.

There were delays in the service of evidentiary material and those delays have contributed to this matter hanging over your head. I note in passing also over the victim and her mother. In your case, it has contributed to situational anxiety and depression. I take these delays particularly in setting the non-parole period.[19]

59 Another matter taken into account in mitigation was the added burden of imprisonment for the applicant in circumstances in which his 9-year-old son had been diagnosed with Autism Spectrum Disorder. His Honour said:

I have little doubt your absence in his life will be a significant matter which will increase your burden given that despite the assessment relating to four years ago, he continues to need your support.[20]

60 His Honour noted that he had received further material on the morning of the plea indicating that both of the applicant's children were receiving psychological assistance and were struggling to adjust to his absence. The applicant's wife had informed the court that she was having difficulties managing the children, particularly in relation to the behaviour of their son. His Honour said, 'I have taken [these] serious considerations into account again particularly in setting a non-parole period [shorter] than I would otherwise'.

61 His Honour also took into account the applicant's prior good character. The reasons for judgment acknowledged the applicant's community contributions, as set out in the plea submission. These included assisting several Indian community organisations to raise funds for various charities. As his Honour noted, these efforts extended back over a decade.

62 As noted, the non-parole period was 19 months, which is well under half the total effective sentence. That unusually short non-parole period reveals that his Honour gave very considerable weight to the personal matters referred to.

63 For the reasons I have given, the sentences imposed were well open to the sentencing judge in the circumstances of the case, having regard to the objective seriousness of the offending and the applicant's high culpability.

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant's name.

[2] DPP v Narang [2021] VCC 1188, [22]-[23] ('Reasons').

[3] [2020] VSCA 75 ('Lugo').

[5] [2011] VSCA 45; (2011) 32 VR 486, 489 [11] (Redlich JA); [2011] VSCA 45 ('Romero').

[7] Sentencing Act 1991 s 5A(1)(b) provides as follows: 'The period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.

[9] Cf Fichtner v The Queen [2019] VSCA 297, [71] (Maxwell P and Kaye JA).

[10] Lugo [2020] VSCA 75, [34]-[35] (Maxwell P, Kaye, T Forrest and Emerton JJA).

[11] Brown v The Queen [2021] VSCA 204, [28] (Maxwell P and Sifris JA) and the decisions there cited.

[13] Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 479 [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286.

[14] R v Jones [2004] VSCA 68, [13] (Charles JA, Phillips JA and Bongiorno AJA agreeing).

[15] R v Samia [2009] VSCA 5, [12] (Nettle JA, Dodds-Streeton JA agreeing); DPP v Conos [2021] VSCA 367, [75] (Maxwell P, Kaye and Sifris JJA).

[16] Fichtner v The Queen [2019] VSCA 297, [66] (Maxwell P and Kaye JA).