1 The appellant, now aged 59, pleaded guilty to six counts of committing an indecent act with a child under 16.[1] The offending involved a number of different victims, each of whom were step-grandchildren of the appellant, and took place over a period of several years when the appellant was between the ages of 50 and 55. The appellant was sentenced on 26 April 2013, as follows:

Indecent act with a child under 16 (rolled-up charge)

Indecent act with a child under 16 (rolled-up charge)

5 years 6 months, with a non-parole period of 3 years

2 The appellant was granted leave to appeal against these sentences on the following two grounds.

(1) The learned sentencing judge erred by sentencing the appellant on an incorrect factual basis, in relation to charge 2.

(2) The total effective sentence and the non-parole period are manifestly excessive.

3 The appellant's wife had two adult daughters from an earlier relationship, 'DL' and 'KK'. DL has three children, two of whom were victims of the appellant's offending: 'DS' (born 28 June 1996) and 'DM' (born December 2001). KK has four children three of whom were victims of the appellant's offending: 'KT' (born 6 June 1997), 'KH' (born 3 November 2000) and 'KD' (born 21 April 2002).

4 While at the appellant and his wife's house, the appellant showed DS photos of naked males and females on his computer in the bedroom. She said, 'stop it' and walked out. DS was aged 10 or 11 years at the time. (Charge 1.)

5 KT was staying the night at the appellant's house. He played games on the laptop with the appellant. After finishing the games, the appellant showed KT some 25 to 30 pictures, some showing the appellant wearing clothes and rubbing his penis over his clothing, and others of the appellant naked and masturbating. He told KT not to tell anyone. On a later occasion, he again showed KT the pictures. On another occasion when KT visited, the appellant's wife went out. The appellant showed KT a pornographic DVD. KT was aged between 8 and 9 years on these occasions. (Charge 2 - a rolled-up charge.)

6 KT walked into the appellant's room while staying at his house. The appellant was lying on the bed under the blanket. He pulled back the blanket and exposed his penis and masturbated himself for about five minutes, until he ejaculated. KT was aged between 8 to 9 years. (Charge 3.)

7 While staying at the appellant's house, KD was standing next to the appellant's bed while he showed her pictures of his 'doodle' on the laptop. He told KD not to tell her grandmother. She was aged 5 or 6 years. (Charge 4.)

8 DM was staying at the appellant's house in 2008 for a sleepover and was playing computer games with the appellant. The appellant showed DM a slide show on the laptop of naked men and women, and cartoon characters without clothes on. There were about 10 real life pictures and 13 cartoons. DM said they were disgusting. The appellant pressured him to keep viewing them, but DM left to look for the cats. He was aged 6 years at the time. (Charge 5.)

9 On one occasion, KH was playing games on the appellant's computer. The appellant paused the game and showed a series of pictures to KH, including of the appellant's penis and women in bikinis. The appellant told KH the pictures were of him (the appellant) and that 'he was going to do it again in front of [him]'. He then took photographs of his penis with his mobile phone and told KH not to tell anyone. A few weeks later, the appellant and KH were playing games on the computer. The appellant then showed KH 40 - 50 pictures of his penis, and 15 - 20 photographs of 'bikini girls'. He then uploaded the photos of his penis from his mobile phone onto the computer. KH was aged about 8 years. (Charge 6 - a rolled-up charge.)

10 On or about 12 January 2012 the appellant's wife spoke to him about allegations reported by her daughters concerning the grandchildren. The appellant subsequently wrote a letter to his daughters suggesting that the children had seen pornography on his computer by accident when he was searching the computer for something else. A few days later, the appellant left his home in Victoria and travelled to Northern Queensland. He was arrested there on 3 September 2012 and extradited to Melbourne. The committal proceeded by way of a straight hand-up brief and the pleas were entered at that time. It was not disputed that the plea was made at the earliest possible opportunity.

11 In sentencing the appellant the learned sentencing judge said:

Charge 2, as it is in relation to three occasions, has been called a rolled up charge, and that is in relation to [KT], a step grandson who was aged between 8 and 9 years. You were naked and masturbating on two of those occasions. The third occasion was showing him photographs of people engaging in sexual activity.[2]

12 As the appellant on the first two occasions in the rolled up charge had not masturbated in the complainant's presence but had shown KT photographic images of himself masturbating, the appellant submits that the sentencing judge had sentenced him on a materially incorrect and more serious factual basis involving a higher degree of culpability. The Crown challenges that contention, saying that her Honour well understood from the Crown opening and the discussion on the plea that the conduct the subject of the first two occasions on charge 2 involved showing KT photos of himself masturbating and that the appellant was sentenced on that basis. The Crown also points to the fact that charge 3, an occasion which the sentencing judge correctly described as the appellant masturbating in the presence of KT, occurred between the first and second occasions in charge 2. This shows that her Honour understood that the appellant showed the victim photos on the two occasions in charge 2. The Crown thus submits that the language employed in the sentencing remarks was infelicitous or a slip. In response the appellant points to the sentences imposed on the other counts where the appellant masturbated in the victim's presence (charge 3) or exposed himself in the victim's presence and took photographs of his penis (charge 6). Those sentences tend to confirm that her Honour sentenced the appellant on charge 2 on the more serious basis that he had masturbated in the victim's presence. The Crown disputes that the sentences imposed on the other charges advance the question whether her Honour sentenced on an incorrect basis.

13 I granted the appellant leave to appeal on this ground, the respondent having accepted that it was at least arguable that her Honour did proceed upon a misapprehension of the facts. The sentencing judge has not provided a report. It might thus be inferred that her Honour, quite understandably, is now unable to say with any certainty upon what factual basis she sentenced the appellant on this charge.

14 I accept that part of the appellant's primary submission that there is a real and sufficient risk that the appellant was sentenced on an erroneous basis. The question remains whether this was a material error, as not every error appearing in a judge's sentencing reasons will vitiate the exercise of a sentencing discretion. Materiality is to be assessed by asking whether it was reasonably open that the judge might have passed a different sentence had her Honour not made the error as to whether the appellant masturbated in the victim's presence. Had her Honour recognised the true situation, is it reasonable to suppose that a lower sentence would or might have been imposed?[3]

15 The appellant contends that a grandparent showing a child images of himself masturbating is objectively less grave than masturbating in the presence of the child. I do not accept the premise upon which the appellant's submission rests, that is, that the conduct of an offender who shows a child photographic images of himself masturbating is necessarily less serious conduct than if he had masturbated in the child's presence. Each case must depend upon its own peculiar circumstances. The age of the victim, the clarity and number of the photos, the conduct of the offender at the time the images are shown to the child, the effects upon the victim and the purpose of the offender in recording the images are but some of the relevant considerations which may affect the objective gravity of the conduct and which may make such conduct no less grave than if the act of masturbation had taken place before the child.

16 The Crown's focus here was upon whether there had been an error. It did not contend that any such error would not have been material to the way her Honour viewed the objective seriousness of the appellant's conduct. It is reasonable to suppose that her Honour might have passed a different sentence had the appellant not been sentenced on the basis that he had masturbated in the victim's presence. That is evident enough from the different sentences that her Honour otherwise imposed on charges which both covered conduct of the appellant showing a grandchild photos of himself masturbating, and an act of masturbation in the presence of a grandchild.

17 It is convenient to consider ground 2 before addressing the question whether the sentencing discretion should be re-opened and a different sentence imposed on charge 2.

18 The Crown submitted on the plea and her Honour rightly found that the appellant was acting in loco grandparentis at the time of the offending and that the offending was therefore of a serious order. The disparity between the appellant's and the complainants' ages, as well as the extended period of the breach of trust occasioned by the offending, were rightly regarded by her Honour as aggravating circumstances.[4] Accordingly she gave considerable weight to punishment, denunciation and general deterrence.[5]

19 In sentencing the appellant it is apparent that her Honour accepted that the appellant felt genuine remorse for the offending[6] and that his early guilty plea was of considerable utilitarian benefit. The appellant suffered from a range of psychological and physical health issues.[7] The fifth and sixth Verdins principles applied because he had been diagnosed with depression. He had also been diagnosed with haemochromatosis (a blood disorder) which required a heavily regulated low-iron diet and full blood transfusions fortnightly. The appellant also has mobility issues due to a permanent knee injury. Her Honour accepted that the appellant, by the time of sentence, had some insight as to his offending and posed a

low to moderate risk of re-offending. Specific deterrence was given less weight because the appellant had no prior convictions, nor any pending matters or further allegations made against him.[8]

20 We were referred to sentences imposed in cases in relation to masturbation in the presence of a child victim[9] and the showing of indecent photographic images to children[10] in order to demonstrate that the individual sentences and orders for cumulation produced a manifestly excessive total sentence. Save for the sentence imposed on charge 2, I do not accept that any of the individual sentences or orders for cumulation were beyond the range of a reasonable exercise of the sentencing discretion.

21 I return then to the sentence on charge 2. It was the base sentence. For the conduct for which the appellant should have been sentenced, the sentence must at least be viewed as unduly stern, and as warranting a lesser sentence. I would therefore allow the appeal and re-sentence the appellant on charge 2 to a sentence of 1 year and 9 months' imprisonment. I would otherwise confirm the individual sentences and would also confirm the orders for cumulation on the other charges making a total effective sentence of three years and three months. I would order the appellant to serve a minimum of 20 months before he is eligible for parole.

22 I agree with the orders proposed by Redlich JA, for the reasons that his Honour gives.

[1] Crimes Act 1958 (Vic) s 47(1).

[2] DPP v Warren (Unreported, County Court of Victoria, Judge Douglas, 26 April 2013) ('Reasons'), [3].

[3] R v Morton [1986] VicRp 82; (1986) VR 863, 865; R v RJE [1999] VSCA 79, [12]-[13]; Kovacevic v Mills (2000) 76 SASR 404, 407; R v Sivov [2000] VSCA 7, [14]; R v Issa Hamid [2002] VSCA 9, [7]; R v Fox [2003] VSCA 138 [4] (Charles JA), [18] (Chernov JA).

[9] R v DP [2007] VSCA 219; DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181.

[10] SLJ v The Queen [2013] VSCA 193.