The applicant seeks leave to appeal on the following ground of appeal: the sentence on charge 2 is manifestly excessive.
[2]
It is convenient to reproduce the relevant paragraphs from the summary of prosecution opening for the plea hearing:
[3]
Circumstances of the offending
Circumstances leading up to the offending
On the 12th of August 2020, the Victim went to visit a friend's house in Traralgon. Some time after the Victim arrived at the house, the Offender also attended the property. The Victim and the Offender did not have much interaction while at the Traralgon house.
Later that evening, around 12.30am, the Victim and a friend were driven to the Offender's house in Morwell. The Victim went to the Offender's house as she didn't want to go home and didn't want her friend going to the Morwell house alone. The Victim and her friend stayed the night at the Offender's house and slept in the Offender's bed with him.
The following day, on the 13th of August 2020, the Victim, her friend went for a drive with the Offender and one of his housemates. The group decided that they wanted to drink alcohol and a large bottle of Smirnoff Vodka was bought for the Victim. A bottle of Jack Daniel's Whiskey (mixed with coke) was also bought for the group.
The group returned to the Offender's house and the Victim and the Offender began drinking the bottle of Jack Daniel's Whiskey together. After the Victim had drunk a glass of Jack Daniel's mixed with coke, the Offender and the Victim got into the Offender's bed together and watched a television show.
While in bed, the Victim rested her head on the Offender like he was a pillow, hugged and kissed the Offender. The Victim initiated the kissing. While they were kissing, the Offender put his hand on the Victim's inner thigh. At some point they removed their clothing and the Offender inserted his finger into the Victim's vagina while continuing to kiss her. The Offender then penetrated the Victim's vagina with his penis for a time before ejaculating onto the bed. The Offender was not using a condom and the Victim was not using any kind of contraception.
At some point the Offender asked the Victim "Are you comfortable with this?" to which she replied "Yes." Afterwards, they got dressed, changed the sheets on the bed and continued to watch television.
Throughout the day, the Victim and her friend continued to drink most of the alcohol they had bought and became extremely intoxicated. The Victim and her friend stayed at the Offender's house overnight and left the following day on the 14th of August 2020.
Offending
Prior to leaving the Offender's house on 14 August 2020, the Victim told the Offender she was 15 years old.
On around the 19th of August 2020, the Victim returned to the Offender's house and the Offender penetrated her vagina with his penis. (Charge 1: Sexual Penetration of a child under 16) The Victim stayed at the Offender's house for a number of days around this time and then returned to her home.
Sometime after this, around the 28th to the 29th of August 2020, the Victim returned to the Offender's house and stayed there for about a week. During this period, the Offender penetrated the Victim's vagina with his penis every second night and sometimes also in the mornings, this occurred in the Offender's bed. On each of these occasions the Offender also penetrated the Victim's vagina with his fingers. On nearly every occasion of sexual penetration, the Victim played with the Offender's penis by moving her hand in an up and down motion on his penis. (Uncharged Acts)
The first time the Offender penetrated the Victim's vagina with his penis during this stay, the Offender and the Victim were watching television and the Offender was leaning up against a wall. The Victim was sitting on the Offender's lap facing the television. On this occasion the Victim recalls the Offender ejaculating inside her vagina. (Charge 2: Sexual Penetration of a child under 16)
As a result of the Offender ejaculating inside the Victim's vagina on this occasion, the Victim became pregnant.
The following day, the Offender and the Victim were watching a movie on Netflix, while on the Offender's bed. The Victim was lying on her back and the Offender was lying on top of her, in between her legs. The Offender penetrated [the Victim's] vagina with his penis. The Offender flipped the Victim over, so that she was on her hands and knees and ejaculated on the bed, just under the Victim. (Charge 3, Incident 1: Sexual penetration of a child under 16)
Later that same night, the Offender [again] penetrated the Victim's vagina in the same manner. (Charge 3, Incident 2: Sexual penetration of a child under 16)
The following day, in the morning, the Offender penetrated the Victim's vagina with his penis in the same manner. The Victim and the Offender were in the Offender's bed, the Victim was lying on her back and the Offender was on top of her. Again the Offender flipped the Victim over onto her front and ejaculated on the bed. (Charge 4, Incident 1: Sexual penetration of a child under 16).
Later that night the Offender again penetrated the Victim's vagina with his penis in the same manner. (Charge 4, Incident 5: Sexual penetration of a child under 16).
During this period, the Offender and the Victim discussed the age difference between them numerous times.
a) The Offender told the Victim he was 24 and asked the Victim if she wanted to 'continue on with this'.
b) The Offender usually raised this topic of conversation.
On one occasion the Offender asked the Victim 'What happens if, like, people start finding out all this shit.' The Offender told the Victim that he was worried about people finding out and 'going to the cops' because she was not 16 years old yet and there was a 9 year age difference between them.
d) The Offender said that he was scared that he would get charged.
It was understood between the Offender and the Victim that they would not tell anyone about their sexual relationship.
[4]
On 28 September 2020, the complainant told her mother about her concern that she may be pregnant. On 5 October 2020, a pregnancy test confirmed the pregnancy. The complainant told the applicant that she was probably going ahead with the pregnancy. The applicant replied 'OK'. Later, he stated that he wished her to have an abortion because he was concerned he would be in trouble, however he agreed to support her. Later, the applicant ended his relationship with the complainant.
On 17 December 2020, the applicant participated in a police record of interview. During the course of the interview, the applicant:
[5]
(a) made full admissions to the various sexual penetrations as described by the complainant;
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> (b) stated that the complainant told him she was 15 after the first time they had sex, and that prior to that time he thought she was 17 years old;
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> (c) when asked about his sexual relationship with the complainant, repeatedly told police that the complainant was the person who initiated sex;
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> (d) said he ended the relationship as he decided 'it's not worth the trouble that it can cause', meaning that because of the age difference between them, 'if the wrong person had've found out ... then I'd be in the situation I am now';
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> (e) when asked by police why the fact the complainant is 15 years old is not a good thing, told police 'Because 16's the legal age of consent'; and
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> (f) stated that he discussed with the complainant her getting an abortion and that he thought they had agreed on that course, however the complainant couldn't go through with it.
[6]
The applicant has no prior convictions.
On his plea, the applicant emphasised the following:
His prospects for rehabilitation are 'optimistic'. He was 24 at the time of offending and has no prior criminal history.
The applicant, at the time of sentencing, suffered from various untreated mental conditions including Borderline Personality Disorder, Major Depressive Disorder and Generalised Anxiety Disorder.
The offending was initiated by the complainant. Various often commonly observed aggravating factors were absent - he was not in a position of authority or trust, there was no grooming or pressure and the age gap was not as large as many.
He relied on each of Verdins[2] limbs 1, 2, 3, 4, 5, and 6. His psychopathology undermined his ability to think clearly and make calm and rational decisions.
Insofar as the standard sentence is concerned, each of the charges should be regarded as substantially below the hypothetical 'mid-range offence'.
[7]
The judge noted that the facts set out in the prosecution summary of opening for plea were agreed facts for the purpose of sentencing. He adverted to the maximum penalty for each offence,[3] the standard sentence fixed by parliament, the fact that the applicant was to be considered a serious sexual offender in relation to charges 3 and 4, and that there was no suggestion by the prosecution that a disproportionate sentence was appropriate.
The judge then recited the facts of the case which we shall not repeat. The judge noted:
Each act of intercourse was carried out without a condom.
Charge 2 is aggravated by the complainant's pregnancy.
Charges 3 and 4 are rolled-up counts each relating to two separate acts of intercourse.
The age difference between the applicant and the complainant, although larger age differences are seen in other cases of this type.
There was no violence. The participants in the sexual intercourse were 'willing'.
The legislation is designed to protect young children.
The relationship took place over a relatively short 11 days.
Upon police interview, the applicant made full admissions. He has no prior convictions and 'comes before the court as a person of good character'.
The victim impact statement reveals that the offending had a significant impact on the complainant's life.
This was a crime of stupidity resulting in the applicant's police prosecution and the complainant having a child to care for.
The plea has a considerable utilitarian value, and was made during the pandemic thus enhancing this value.
The applicant has a good chance of rehabilitation.
There was no grooming and no coercion. No trust was abused.
Psychological evidence in reports by Ms Cokorilo reveals the applicant suffered, at the time of offending from depression in the context of long-term drug addiction. Verdins limbs 1-4 are not established. Verdins limbs 5 and 6 have been established.
The judge then passed sentence.
[8]
It will be recalled that charge 1 involved one act of unprotected penile/vaginal sex for which the applicant was sentenced to two years' imprisonment. Further, charges 3 and 4 each involved two acts of unprotected penile/vaginal sex (as rolled-up charges), and on both charges the applicant was sentenced as a serious sexual offender. On each of these charges, the applicant was sentenced to 3 years' imprisonment.
In short compass, the applicant's case on this appeal is this: The sentence of 5 years' imprisonment on charge 2 is, in all the circumstances, wholly outside the range of sentences available to the judge in the reasonable exercise of his sentencing discretion. That manifest excess is best demonstrated by reference to the other sentences imposed. The only significant difference between the acts that constituted charge 1 and charge 2 is that the risk of pregnancy, an aggravating feature of charge 1, became a reality as an aggravating feature of charge 2. The heightened aggravation of reality over risk cannot explain the vast difference in sentence between charge 2 and charge 1. Similarly, the sentences on charge 3 and 4, both rolled-up charges with the applicant being sentenced as a serious offender, stand in stark contrast to the sentence on charge 2.
The applicant clarified in argument that this was not some kind of internal parity argument. The sentences imposed on charges 1, 3 and 4 were well within the judge's reasonable sentencing discretion, are inconsistent with the penalty imposed on charge 2, and thus fortify the argument that the sentence on charge 2 was well beyond that range.
The respondent in written submissions conceded that the sentence on charge 2 was 'stern', that the application was reasonably arguable, and that leave to appeal should be granted. That is where the concession rested, however, and the respondent's final position was that the sentence on charge 2 whilst stern, ultimately was within range and the appeal ought be dismissed.
[9]
For the reasons that follow, we will grant leave to appeal and allow the appeal.
The applicant is a first offender, and at the age of 24 at the time of offending was still quite youthful. The age discrepancy of 9 years was significant although not as great as is often seen in this type of offence.
At 15 years and 7 months, the complainant was towards the top of the age range to which this offence applies. This offence captures ages from 12 years to 15.99 years. Axiomatically, all other things being equal, the younger the victim, the greater the objective gravity of the offending.
There was no suggestion that the applicant groomed or coerced the complainant in any way.
There was no position of trust that was abused, such as might arise with an older family member or a person in some form of authority.
Imprisonment, as the judge found, will be more onerous as a result of the applicant's accepted Borderline Personality Disorder, Major Depressive Disorder and Generalised Anxiety Disorder. There is also 'a risk that incarceration would place him at an increased risk of emotional deterioration in view of his low coping resources'. The judge stated that 'the principles in Verdins 5 and 6 are applicable'.
The offence of sexual penetration of a child under the age of 16 years covers a truly vast range of sexual activity. The common characteristic is that in every case the victim is a child whose welfare is sought to be protected by this and similar age-related offences. Every example of this offending is serious. Some, however, are more serious than others - the 50 or 60 year old predator engaging with a 12 or 13 year old, having groomed and coerced the victim, is at one end of the spectrum. Two teenagers straddling the age limit and sexually experimenting is at the other. Were it not for the heightened aggravation of the pregnancy, we would regard this offending as very similar to charge 1 and calling for a slightly higher sentence given its place in the sequence of offending. The pregnancy has changed the complainant's life forever and has compromised the balance of her childhood. It is a seriously aggravating factor. While caution must be exercised when engaging in arithmetical comparisons in a ground of this nature, such comparisons are inevitable when considering arguments based, in part, on internal inconsistency. After exercising all due caution, in light of all circumstances, both mitigating and aggravating, we consider that the sentence on charge 2, after a plea of guilty - that is 33 per cent of the maximum penalty, 83 per cent of the standard sentence, 250 per cent of the sentence imposed on the very similar charge 1, and 166 per cent of the rolled-up serious offender charges 3 and 4 - is wholly beyond the range of sentences open to the judge in the reasonable exercise of his sentencing discretion.
We will grant leave to appeal and allow the appeal. We will re-sentence the applicant on charge 2 to 3 years and 3 months' imprisonment. We shall declare charge 2 to be the base sentence and will order 3 months' cumulation on charges 1, 3 and 4, both upon each other and upon the base sentence. The total effective sentence is 4 years' imprisonment. The non-parole period is 2 years and 4 months. Pre-sentence detention is declared at 297 days.
Pursuant to s 6AAA of the Sentencing Act 1991, it is declared that but for the applicant's plea of guilty, the total effective sentence would have been 4 years and 10 months' imprisonment with a non-parole period of 3 years and 3 months.
We have prepared a table setting out the detail of this re-sentencing exercise: