1 The applicant pleaded guilty before the County Court at Melbourne to two counts of indecent act with or in the presence of a male child of or over the age of 16 years. The maximum penalty for each offence was five years' imprisonment. Following a plea in mitigation of penalty, the judge sentenced the applicant on the first count (Count 2) to two months' imprisonment and on the second (Count 10) to 20 months' imprisonment and ordered that one month of the sentence imposed on Count 2 be served cumulatively on the sentence imposed on Count 10. The total effective sentence, therefore, was 21 months' imprisonment, of which the judge ordered that 12 months be suspended for a period of two years.

2 The applicant now seeks leave to appeal against sentence on grounds that the judge erred in sentencing him on Count 10 as a serious sexual offender and that the individual sentences, total effective sentence and non-parole period are manifestly excessive.

3 The Crown rightly concedes that the judge did err in sentencing the applicant on Count 10 as a serious sexual offender. A 'serious sexual offender' is one who has been convicted of two or more 'sexual offences' for each of which he has been sentenced to a term of imprisonment or detention in a youth justice centre.[1] It follows that an offender can only be sentenced as a serious sexual offender in respect of a third or further 'sexual offence'. Count 10 was the second 'sexual offence' of which the applicant was convicted and sentenced to imprisonment. Consequently, he did not become a serious sexual offender until he was convicted and sentenced for that count. It follows that he could not lawfully be sentenced as a serious sexual offender on that count.[2]

4 Other things being equal, that error would be sufficient to re-open the sentencing discretion in respect of Count 10. In this case, however, I am not persuaded it is. Having regard to the nature and gravity of the offending, and its effect on the complainant, I am not satisfied that a different sentence should be imposed.

5 The facts of the matter are essayed in detail in the judge's sentencing remarks. I do not propose to repeat more than the salient aspects.

6 The applicant was born in the United States and, at the time of the offending in June 2007, he was 45 years of age. He is and was then a homosexual and for some 20 years leading up to the offending he had lived in a monogamous homosexual relationship with his co-offender, Stephen James. James was born in Australia and met the applicant here when the applicant first visited this country more than 20 years ago as a missionary for the Mormon Church. James was 49 years of age at the time of the offending.

7 James had a lot to do with a local theatre company in the town in which he and the applicant lived together. The complainant was also involved with the theatre company. He was 16 years' old and aspired to become an actor. James took advantage of the complainant's enthusiasm for acting to create an opportunity to commit sexual offences with and in the presence of the complainant. Under the ruse of teaching the complainant to act, James many times persuaded the complainant to remove his clothes and, progressively over a period of time, James engaged in sexual acts of increasing seriousness with and in the presence of the complainant, sometimes involving the applicant. Eventually, the complainant reported the matter to his mother.

8 Counts 2 and 10 related to two such incidents of offending. The judge described them thus:

On one such occasion, the complainant recalled that he had repeatedly resisted James' instructions to take his clothes off. By this time he had started to realise that being naked was not part of acting lessons. After approximately two hours you, Witbeck, said to the complainant that [if] he was not going to get naked you, Witbeck, would. You then proceeded to take off your clothes. That is the basis of Count 2, indecent act with or in the presence of a 16 year old child under the care, supervision or authority and relates to both of you.

...

On another occasion, some time in June 2007 during the course of acting class you, James, requested the complainant to undress. On this occasion both you, James, and Witbeck were present and naked. You, James, said to the complainant, 'I'm going to put on this video to try to get you hard'. You then played a homosexual pornographic video for the complainant and both of you watched...

Later, whilst the complainant was sitting on a long couch, you, James, started to massage his lower back and ribs and eventually the complainant got an erection. Again, the complainant was naked. You, James, then lay down on the couch, put your head in the complainant's lap and started to suck his penis. After approximately 20 seconds the complainant lost his erection, however, you James, continued to suck the complainant's penis until he yelled, 'That's enough!'...

Whilst James was so involved you, Witbeck, began masturbating James' penis while sitting on the couch naked. Indeed, at this time all three of you were naked. These are the circumstances of Count 10, indecent act with or in the presence of a 16 year old child under care, supervision or authority and relate to both of you.

9 I accept that Count 10 may not be the most serious example of the offence of sexual act in the presence of a 16 year old child. But by the same token, it is by no means the most venial. I agree, with respect, with the judge that, although the offending in respect of Count 2 was relatively benign, the offending which comprised Count 10 was 'degrading and disgusting' and such as to necessitate an immediate custodial sentence. Given that the maximum penalty for the offence was five years imprisonment, a sentence of only 20 months seems to me to have been no more than was appropriate.

10 Much was made on the plea of the serious terminal illnesses from which James suffered and of the stress and suffering which that imposed on the applicant in his role as James' principal carer. Emphasis was also laid on the applicant's otherwise good character and lack of prior convictions and his devotion to good works in and through the Uniting Church. Evidently, the judge took all that into account. His Honour accepted that it was most unlikely that the applicant would re-offend. But, as the judge said, the circumstances on which Count 10 was based exemplified depraved and degrading conduct, of which the effect on the complainant was, according to the evidence, very severe indeed. The paramount sentencing considerations, therefore, were general deterrence, denunciation and just punishment.

11 Counsel for the applicant contended that, in view of the Crown's concession on the plea that a wholly suspended sentence would not be beyond the range, the judge was in error in imposing an only partially suspended sentence. Reference was made to observations of Kirby J in Chow v R[3] as to it not being the function of a judge to require a prosecutor to proceed on a 'higher charge' than the prosecutor is disposed to pursue.

12 That submission is misplaced. Chow had nothing to do with sentencing. With sentencing, it is for the judge to determine the sentence to be imposed. The Crown may, and indeed may now be obliged, to suggest an acceptable range of sentences. Equally, as Redlich JA explained in R v Ioannou,[4] it is incumbent on a sentencing judge to take the Crown's suggestions into account. But if, after considering a Crown submission that a wholly suspended sentence is not inappropriate, a judge comes properly to the view that an immediate term of imprisonment is warranted, then that is the sentence which the judge should impose, notwithstanding the Crown's concession.

13 It follows that I would refuse the application for leave to appeal.

15 The declaration made by Judge Wood below that the appellant be sentenced as a serious sexual offender in respect of Count 10 is revoked, and the records of the court shall be amended accordingly.

16 The application for leave to appeal is otherwise dismissed.

[1] Sentencing Act 1991, s 6B(2).

[2] R v Cowburn (1994) 74 A Crim R 385, 393.

[3] (1992) 63 A Crim R 316, 325.

[4] (2007) 17 VR 277, 569