IN THE COUNTY COURT OF VICTORIA
AT Warrnambool
CRIMINAL DIVISION	Revised
Not Restricted
 Suitable for Publication	

DIRECTOR OF PUBLIC PROSECUTIONS		
		
V
		
IVAN STROUD (A PSEUDONYM)		

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JUDGE:	HER HONOUR JUDGE CHAMBERS	
WHERE HELD:	Warrnambool	
DATE OF HEARING:	28 March and 24 May 2023	
DATE OF SENTENCE:	9 June 2023	
CASE MAY BE CITED AS:	DPP v Stroud (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1104		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW – Sentence	
Catchwords: 	Plea of guilty – rolled-up charges of trafficking in a drug of dependence to a child and sexual penetration of a child under 16 – three charges of possession of a drug of dependence – accused initially trafficked in MDMA, and took advantage of the fact the young victim wanted more drugs, to encourage her to engage in sexual activity – high level of moral culpability, not described as momentary or entirely spontaneous offending – strong work history – accused’s formative years made more difficult by early exposure to violence and physical abuse experienced by his siblings – diagnosed Social Anxiety Disorder - general proposition in Bugmy of application – sentence imposed has regard to accused’s childhood disadvantage, anxiety disorder, absence of any criminal history and positive prospects of rehabilitation whilst also addressing sentencing considerations of general deterrence and denunciation 
Legislation Cited:	Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991
Cases Cited:	Bugmy v. The Queen [2013] HCA 37; DPP v. Herrmann [2021] VSCA 160; Newton (a pseudonym) v. The King [2023] VSCA 22; DPP v. O’Neill [2015] VSCA 325; R v. Verdins (2007) 16 VR 269; DPP v. Treloar (a pseudonym) [2021] VCC 211; Sims v. The Queen [2022] VSCA 114
Sentence:	Total effective sentence of four years and four months’ imprisonment with a non-parole period of two years and six months fixed

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr B.D. Nibbs	Office of Public Prosecutions	
		Victoria
	
For the Accused	Mr J. Lavery	Barrow Legal	

HER HONOUR:

1	Ivan Stroud, you have pleaded guilty on Indictment L10600764A.1 to the following charges:
(a)	a rolled-up charge of trafficking in a drug of dependence to a child contrary to s 71AB(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is 20 years' imprisonment; and
(b)	a rolled-up charge of sexual penetration of a child under 16 years contrary to s 49B(1) of the Crimes Act 1958, the maximum penalty for which is 15 years' imprisonment. 
2	You have also pleaded guilty on Indictment L10600764B to three charges of possession of a drug of dependence contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is one year or five years' imprisonment, depending on whether the drug was possessed for a purpose related to trafficking in that drug of dependence.
3	At the time of this offending, you were 25 years old and had no prior criminal history.
Circumstances of offending
4	The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 20 March 2023 and is the agreed basis upon which you are to be sentenced.
5	The victim is a girl of 15.  She was born in January 2005.
6	On 26 January 2020, the victim visited a friend's house in Warrnambool.  She planned to stay overnight there with two of her female friends, who were also 15 years old.  The victim and her two friends drank alcohol and spoke about taking drugs.  The victim said she wanted to try MDMA. 
7	The victim then contacted you by sending a message via Snapchat.  She knew you because you had previously been in a relationship with her older sister.  The victim asked you if you had any MDMA capsules and enquired about the price.  You were at a party in Warrnambool at this time, and told the victim you had some MDMA capsules which were $20 each.
8	You arranged to meet the victim on Lava Street, Warrnambool.  The victim went to the ATM with her friends, and having withdrawn money, purchased three MDMA capsules from you while her friends waited nearby.  This conduct gives rise to charge 1 - trafficking in a drug of dependence to a child.
9	The victim returned to her friend's house where the three girls consumed the drugs.  They then discussed purchasing more.
10	The victim contacted you again to purchase more MDMA.  You told her that you would give her six MDMA capsules if she agreed to engage in sexual activity with you.  You complimented her about her appearance, telling her she was 'pretty'.  The victim told you she was 14 years old, when in fact she had recently turned 15.  The victim did not respond immediately to your proposition, but discussed it with her friends.
11	You sent another message to the victim urging her to hurry up and offered to give her eight MDMA capsules.  She then agreed to meet you.
12	In the early hours of 27 January 2020, the victim and her two friends walked to a park on Raglan Parade, Warrnambool to meet you.  You gave an MDMA capsule to each of the victim's friends for them 'to go away'.  This conduct also forms part of charge 1 - trafficking in a drug of dependence to a child.
13	You did not think the park was dark enough to engage in sexual intercourse with the victim and suggested moving to another area.  You and the victim then climbed a fence to enter the Warrnambool East Kindergarten playground.  You then began to kiss and touch the victim over her clothing.
14	You led the victim to a cubby house in the playground.  There, you asked the victim to perform oral sex, which she did.  The act of penile-oral penetration is the subject of charge 2 - sexual penetration of a child under 16.
15	You and the victim moved to another area in the playground, where you told the victim to lie down.  You removed her clothes and inserted your finger into her vagina.  This act of digital-vaginal penetration is also the subject of Charge 2.
16	After this, you inserted your tongue into victim's vagina before inserting your penis into her vagina.  These two further acts of sexual penetration also form part of charge 2.
17	You told the victim that you could not sustain an erection due to the amount of drugs you had consumed.  Instead, you asked the victim to perform oral sex on a number of occasions, which she did.  You are not charged with this conduct, but it is provided as further context to your offending.  All sexual activity ceased when you were unable to ejaculate.
18	You then gave the victim four MDMA tablets, which is also the subject of charge 1 - trafficking in a drug of dependence to a child.
19	The victim's friends had remained nearby during these events.  They saw you leave the area, and went to look for their friend.  They found some of her clothing on the playground before they found her in the yard of the kindergarten, where she was crying.
20	The victim returned to her friend's house where she consumed the drugs.  She then blocked all contact with you on Snapchat.
21	Later that day, 27 January 2020, the victim returned to her home, and asked her sister to take her to the police station.  She provided a detailed account of the events to police in Warrnambool.
22	On 2 February 2020, the victim provided a statement that was recorded.  Her two friends did likewise in the following weeks.
23	You were arrested on 5 March 2020 and the police executed a search warrant at your home in Colac. 
24	At your premises, the police seized an MDMA capsule and other small quantities of drugs of dependence in bags.  You admitted that the substances comprising a cap and approximately 7 grams found in a bag were MDMA, cocaine (0.5 grams) and ketamine (1 gram).  You told police you purchased the drugs for personal use.  Your possession of these three drugs gives rise to the three drug possession charges on the separate indictment.
25	When you were interviewed by police, you admitted purchasing the drugs of dependence, but denied any interaction with the victim after your relationship with her sister ended.  You denied having any Snapchat conversation with her.  When you were asked about the victim's age, you said you thought she was 17, but said you had never had a conversation with her about her age.
History of proceedings
26	The history of these proceedings is as follows.
27	On 22 April 2022 you pleaded guilty to the indictment containing the three charges of possession of a drug of dependence.  This was an early plea to those charges.
28	A trial commenced on the remaining charges in April 2022 and the trial ran for five days between 22 & 26-29 April 2022, before the jury was discharged for reasons that are not relevant to my sentence.  The victim had given evidence at a special hearing and had been cross-examined.  Other witnesses were cross-examined at the trial prior to the jury being discharged.
29	You subsequently pleaded guilty to the charges of trafficking in a drug of dependence to a child and sexual penetration of a child under 16 on 
30 January 2023.  Although this was not an early plea and followed an inconclusive trial, you are still entitled to some benefit for your ultimate plea.  I return to the relevance of your guilty plea later in my reasons.
30	The plea hearing was adjourned to 28 March 2023, for plea material to be obtained on your behalf.  On that date, your plea was further adjourned for a psychological report to be obtained from Forensicare and a further plea hearing was held on 24 May 2023.
Offence gravity and victim impact
31	I turn now to the objective gravity of your offending.
32	The seriousness of the offence of trafficking in a drug of dependence to a child, and sexual penetration of a child under 16 is reflected in the maximum penalties of 20 and 15 years' imprisonment, respectively, fixed by Parliament. 
33	Sexual offending against children will always be regarded as serious offending.  The law places an absolute prohibition on sexual activity with a child, which is founded on a presumption of harm.  Although no victim impact statement has been provided in this case, it is recognised that sexual activity involving children can have a profound and often enduring impact on their emotional and psychological wellbeing.  As to the immediate impact of your offending, I note that the victim was found by her friends, alone and crying, after you left the area.
34	The seriousness with which Parliament, on behalf of the community, views the offence of trafficking in a drug of dependence to a child, is also a recognition of the harm inherent in illicit drug use, and the need to protect children from such harm.  
35	In this case, the victim, who had only just turned 15, was ten years younger than you.  You were aware just how young she was, in fact she had told you she was only 14 years old.
36	Your offending by trafficking in MDMA to the victim and her two friends occurs in particularly aggravating circumstances.
37	First, after selling MDMA to the victim for $20 you then offered to give her six capsules of MDMA if she agreed to engage in sexual activity with you.  After you had engaged in various acts of sexual penetration with the victim, you then gave her four MDMA capsules.  You took advantage of the fact the young victim wanted more drugs to encourage her to engage in the sexual activity with you.
38	Secondly, you gave the victim's two friends a capsule of MDMA each, for them 'to go away’, so you could engage in unlawful sexual activity with the victim.  In doing so, you were prepared to use your supply of illicit drugs to encourage the victim's friends to leave, so you would then be alone with the victim in the park.
39	Whilst you are not to be doubly punished for the separate offences, the fact you trafficked in MDMA to entice the victim to engage in sexual activity with you, away from her friends, is a significant aggravating feature of that offending.
40	You were intoxicated at the time of the offending, having abused both alcohol and illicit substances, including MDMA, on the night of the offending.  Whilst this may explain your conduct, it does not excuse your offending.
41	The offence of sexual penetration of a child under 16 years is a rolled up charge reflecting four separate acts of sexual penetration with the victim.  Although the one maximum penalty applies to the charge, in sentencing you for this offence it is relevant that it encompasses offending whereby you asked the victim to perform oral sex on you, inserted your finger and then your tongue into her vagina, before sexually penetrating her vagina with your penis.  Whilst this was all part of one course of conduct, the sentence I impose must reflect the total criminality of your offending involving four separate acts of sexual penetration of a child under 16.
42	By your sexual conduct, you took advantage of the inherent vulnerability of the victim.  It was not only her age that made her vulnerable.  You arranged to meet her at a park, late at night, where it was dark and she was alone with you, a much older male with a promise of drugs in exchange for sexual activity.  The sexual offending occurs after you provided MDMA tablets to each of her friends to leave.  The offending ended when you were unable to ejaculate, at which point you left the area, leaving the young victim on her own at night.
43	I accept that the offending occurred over the course of the one evening only.  However, it could not be described as momentary or entirely spontaneous offending.  Fortunately, beyond the violence inherent in the sexual acts, you did not use threats or violence towards the victim and there is no evidence she suffered any physical injuries arising from your conduct.  The presence of such features would further aggravate the offending.
44	Nonetheless, the absence of these features is not the sole measure of the gravity of your offending.  The circumstances in which you exploited the vulnerability of the victim, for your own sexual gratification, marks the seriousness of your conduct, for which you bear a high level of moral culpability.  However, the extent of your moral culpability is also informed by your personal circumstances, to which I now turn.
Personal background
45	Your personal background is detailed in the psychological report of Mr David Sullivan dated 10 March 2023, and the further court-ordered psychological report of Dr Ahona Guha, Senior Clinical and Forensic Psychologist from Forensicare dated 17 May 2023.
46	You were born in Colac in August 1994, and are the youngest of four siblings, with a sister and two half-sisters.  Your parents separated when you were four.  You have had limited contact with your father for most of your life.  You told Dr Guha that you have little memory of your childhood, but said you believed it was safe and secure.  Mr Sullivan states that given your age at which your parents separated, you would have no direct memory of your father before he left.
47	Dr Guha, having spoken with your mother, reports that your father was physically violent towards all of the children, and sexually abused your two older sisters.
48	You attended St Mary's Catholic Primary School until grade 2, than finished primary school at Colac South West Primary School.  You completed Year 12 VCAL at a local secondary school.  You report that your attendance at school deteriorated in Years 11 and 12, missing classes, and that you began using illicit drugs around this time.  You commenced an apprenticeship in carpentry and agriculture, and commenced work as a saw technician at a timber mill in Colac in January 2013.  You have enjoyed a stable employment history with the one employer since this time.  You resigned from this position just prior to your plea hear.
49	You report feeling anxious from a young age.  Your mother told Dr Guha that you experienced selective mutism from around the age of two and a half years, particularly at school, and she suspected you may be autistic.  Mr Sullivan's report refers to the observations of Psychiatrist, Dr O'Brien in a letter to your general practitioner dated 18 December 2009, in which he outlined his assessment of you at that time, stating:
'After some time I have managed to complete my assessment of this teenager.  As you know [Ivan] presents with a long history of difficulties including elective mutism, oppositional and controlling behaviour, a liking for routine and some obsessive behaviours.'
'…it is also evident that particularly in recent years, he has experienced high levels of anxiety with symptoms including incessant and unnecessary over worrying, poor sleep with marked initial insomnia and somatic symptoms including a troublesome tremor when particularly stressed.'
It is possible however, that there may be an additional Autism Spectrum Disorder contributing to his presentation although he does appear to have reasonable peer relationships.'
50	You moved out of home at the age of 18, living with friends.  You began to use MDMA at this time, most weekends.  You also used cocaine and ketamine recreationally, mainly at parties.
51	After returning home for a period, you saved to purchase a block of land where you built your own home.  You have lived on that property, independently, since 2019.
52	Your first and only serious intimate relationship was with the older sister of the victim.  The relationship, which commenced when you were 21, lasted for three years.  Both you and your mother told Dr Guha that the relationship was emotionally abusive and that your partner was violent towards you at times.  You report you tried to leave the relationship, which resulted in your partner threatening suicide so you would reconcile with her.  During that relationship you report meeting the victim once or twice, but said you had no specific recollection of her before the night of the offence.
53	After the relationship ended, you told Dr Guha that you 'went stupid' and were abusing stimulants, predominantly MDMA, cocaine and ketamine, most weekends.  You said you did not use drugs during the working week.  You report enjoying the 'extra confidence' the use of these drugs gave you.
54	You ceased all illicit drug use after being charged with these offences and in the three years since this offending you have not come to the attention of police, and have no subsequent or pending matters.
Matters in mitigation of sentence
55	Having discussed the objective gravity of your offending, I turn to the matters raised on your behalf in mitigation of your sentence.
56	As I stated earlier, you are entitled to the benefit of your early plea in relation to the three charges of possession of a drug of dependence.
57	You entered a late plea to the rolled-up charges of sexual penetration of a child under 16 and trafficking in a drug of dependence to a child under 16.  There is still utility in that plea, by which you acknowledge responsibility for your offending.  Given these charges were the subject of an inconclusive trial at which witnesses were questioned, including a special hearing during which the victim was cross-examined, your late plea does not attract the significant discount that applies where a plea saves witnesses from such an ordeal.
58	However, in pleading guilty you still saved the court and the community the time and resources associated with another jury trial.  The utility of your plea, particularly at a time where the delays occasioned by COVID-19 are still impacting on the criminal justice system, entitles you a sentencing discount.
59	Secondly, up to the age of 25, you had no prior criminal history and are otherwise a person of good character with a strong work history, having been employed at the same timber mill for ten years since 2013, despite difficulties associated with your anxiety and selective mutism.  A letter from Ms Trudi Perkins, the Site Manger with WDEA Works dated 22 May 2023 confirms that you received employment support from 2012, for a period of six months due to this disability, stating:
'[Ivan] presented as a quiet and reserved young man who had selective mutism. [Ivan] engaged with WDEA through the… School leavers disability program.'
'[Ivan] would not speak in certain situations especially in a group environment and did not verbally communicate well with his employment consultant.'
...'During these 6 months [Ivan's] selective mutism was the same and communication was very limited with [Ivan] due to this.'
60	I accept that your formative years were made more difficult by your early exposure to violence at the hands of your father.  Your experience of early physical abuse, and that experienced by your siblings, is confirmed by your mother.  However, following the divorce of your parents, from the age of four you report a fairly stable childhood although one made more difficult by your anxiety and selective mutism.  You were prescribed medication for anxiety as a child, but ceased taking it after a few weeks.  You received therapy for anxiety and mutism in your early years, but have had no therapeutic supports or treatment as an adult.
61	On your behalf it was argued that your early childhood was adversely affected due to your experiences of early childhood abuse.  Mr Lavery made this submission based on the report of Mr Sullivan.  In that report, Mr Sullivan refers to your mother's account of your father being physically abusive to all four children prior to their divorce.  Mr Sullivan expresses the opinion that your high level of '…general anxiety, emotional fragility, insecurity, a poorly developed sense of identity…’ are attributable to your early childhood experiences, including the possibility of sexual abuse, stating:
'I consider, unless a consequence of significant intellectual disability or acquired brain injury, poor memory for detail of childhood events is almost always associated with early childhood physical and/or sexual abuse.'
'I consider, whilst not diminishing any enduring emotional or psychological impact of any abuse to which he might have been subjected during his very early childhood, because of his age at the time of his parents’ separation, Mr [Stroud] would have no capacity to recall events of any abuse perpetrated upon him...'
62	Mr Sullivan diagnosed you with a chronic Social Anxiety Disorder, a diagnosis that is confirmed in the assessment of Dr Guha.  In her report, Dr Guha discusses the impact of your early childhood experiences, stating:
'There are a range of factors which influenced Mr [Stroud’s] early life adversely.  His mother said that his father was violent towards him and his siblings, and sexually abused his sisters, and I have accepted her account of that.  While Mr [Stroud] has no recollection of this abuse as it occurred at a very young age, it may have contributed to  development of a sense that the world was unsafe, and that people would hurt him.  He experienced severe social anxiety from a young age, which may at least partially be a result of the physical abuse he experienced, and the turmoil in the family home.  He appears to have struggled to relate to people and commenced withdrawing and avoiding interaction…as a means of managing his anxiety.  This tendency has continued into adulthood.'
63	In the case of the case of Bugmy v The Queen, the High Court articulated two different ways that childhood disadvantage may be relevant in assessing an offender's moral culpability.  The first more general proposition is in the following terms: 
'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.'
64	The case of Bugmy related to an offender's culpability for alcohol-fuelled violent offending.  However, the broad proposition is not to be limited to those circumstances.  Here, during your very early childhood years, I accept the account given by your mother to both psychologists that you and your siblings were physically abused by your father, even though you have no direct recollection of the abuse.  There is no basis for me to conclude you were sexually abused.
65	In light of the expert evidence, I consider the general proposition in Bugmy has application to your case.  Your moral culpability cannot be equated with an offender whose earliest formative years were not shaped by exposure to physical abuse leading, at least in part, to a significant anxiety disorder from a young age.  Although your childhood experiences do not excuse your offending behaviour, 
I give them some limited weight in mitigating your moral culpability.
66	I do not consider the second more specific proposition in Bugmy applies to the circumstances of your case.  Dr Guha assesses that your early childhood disadvantage may have contributed in part, to the severe anxiety you have experienced since early childhood.  However, there is no basis to conclude that your offending behaviour was specifically, or causally connected to your childhood dysfunction, other than in the broad sense.  I do not consider the more specific proposition in Bugmy applies in mitigation of your sentence.
67	On your behalf it was also submitted that your social anxiety disorder enlivens the principles in the case of Verdins in reducing your moral culpability for your offending.  In certain circumstances, the law recognises that impaired mental functioning may operate to reduce an offender's moral culpability for the offending, and correspondingly reduce, or even eliminate, the need for the sentence to operate as a general deterrent to others.  The application of these principles usually depends on the court's assessment as to the nature and severity of the mental health condition and importantly, any connection between the condition and the offending behaviour. 
68	If the mental impairment existed at the time of the offending, it must have some 'realistic connection' with the offending; or have 'caused or contributed' to the offending.  It must be established that the mental impairment affected the offender's ability 'to appreciate the wrongfulness of the conduct'; or to make calm and rational choices or to think clearly at the time of the offence.
69	During your assessment with Dr Guha, you told her you were heavily intoxicated from both alcohol and drugs at the time of the offending, and said you have no recollection of meeting the victim or of your subsequent actions.  Nonetheless, you accepted the sexual assault occurred as the victim alleged.  Dr Guha concludes:
'Substance use does not appear to have been problematic until the index offending, and he was able to remain abstinent over the week and manage employment.  However, his reliance on substances as a social facilitator may have disincentivised him to seek more traditional therapeutic supports for his anxiety.  His substance use substantially influenced the index offending, insofar as it reduced his inhibition and impaired his capacities to make reasoned judgements and employ consequential thinking.'
70	Having regard to the expert evidence, I am not satisfied that your diagnosed social anxiety disorder caused or contributed to your offending such as to enliven limbs 1-4 of Verdins.  Although I accept you have had a long-standing anxiety disorder, your level of intoxication on the night of the offending means I am unable to conclude that it was your anxiety disorder, rather than your level of intoxication, that impaired your ability to make rational choices or to appreciate the wrongfulness of your conduct.  I accept however, that your diagnosed anxiety and drug use appear somewhat interrelated, insofar as you have used illicit drugs as a means of managing your social anxiety, and have taken this into account in a broad sense.
71	I also accept that limb 5 of Verdins has some application in moderation of your sentence and that your anxiety disorder will make your experience of custody more difficult, particularly having regard to Dr Guha's assessment that your anxiety was,
‘somewhat heightened by [your] incarceration and the adjustments required…’
72	However, Dr Guha assesses that your mood now appears stable and accordingly, any moderation can only be modest.
73	During her assessment, Dr Guha found no evidence of any cognitive disability or impairment.  As to the suspected Autism Spectrum Disorder, Dr Guha noted you have some traits indicative of such a disorder and recommends a comprehensive assessment.  Dr Guha concludes that overall you remain highly functional, with only mild impairments in your social functioning.  Nonetheless, I accept these mild impairments may also make your experience of custody, particularly as a first time offender, more onerous.
74	I turn now to your prospects of rehabilitation.  As stated, you have no prior or subsequent criminal convictions, despite your difficult early childhood.  You have demonstrated a strong work history over the past ten years, and have acted with maturity in saving to build your own home to live independently.  You retain the support of your mother and sisters.
75	Dr Guha, in her report, states you do not demonstrate any specific offence-supportive or antisocial attitudes or beliefs.  Having conducted a risk assessment, Dr Guha concludes you pose a low risk of future violent offending.  Dr Guha recommends that you engage in a short episode of substance use treatment, to prevent relapse into drug use.
76	You have utilised the opportunities available to you since being remanded to undertake a number of courses and programs in custody.  That is to your credit.
77	Overall, I assess you have good prospects of rehabilitation, subject to your commitment to remain abstinent from illicit drugs into the future.  Given my positive assessment of your prospects of rehabilitation, the need for the sentence to specifically deter you from future offending is less significant than the need for the sentence to operate as a general deterrent to others.  Notwithstanding the serious nature of your offending, I accept the expert opinion evidence that you pose a low risk of future offending.  Accordingly, the weight that would generally attach to community protection is lessened in this case.
Other sentencing considerations
78	I turn now to other sentencing considerations.
79	I accept the prosecution submissions that the paramount sentencing considerations in this case are those of general deterrence, just punishment and denunciation.  In sentencing you, I must deter others from committing sexual offences and from trafficking in drugs to children, given the harm inherent in any premature sexual activity and illicit drug use.
80	The law is clear.  A child's consent to sexual activity, howsoever obtained, can never, of itself, be a mitigating factor.  The offences for which you are to be sentenced are aimed at protecting children from such premature activity and in committing these offences, your conduct must be clearly denounced.
81	The offence of sexual penetration of a child under 16 contrary to s49B(1) of the Crimes Act 1958 falls under the standard sentencing scheme that applies to offences committed after 1 February 2018.  The standard sentence for this offence is six years' imprisonment.
82	The standard sentence is a 'legislated guidepost', no more.  The standard sentence for the offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.  It does not take into account the other matters that remain highly relevant to the sentencing discretion, including the mitigating effect of your plea of guilty, and other matters relied upon.
83	When considering current sentencing practices for similar offences, the court may only consider sentences imposed since the imposition of the standard sentencing scheme for a standard sentence offence.  Whilst considering current sentencing practice, I must be careful to assess these having regard to the maximum penalty that applies.
84	On your behalf, counsel referred me to a decision of this court, as a guide to sentencing practices.  In DPP v Treloar (a pseudonym) [2021] VCC 211, the accused was sentenced to two years' imprisonment for one act of sexual penetration with a child under 16 and nine months' imprisonment for the offence of grooming a child under 16 for sexual conduct.  The total effective sentence was two years, three months with a non-parole period of one year, six months.  The offending in that case involved one act of penile-vaginal penetration of a 14 year old child by a 25 year-old offender, following acts of grooming over nine days.  The offence of grooming carries a maximum penalty of 10 years' imprisonment whereas here, the offence of trafficking in a drug of dependence carries a much higher maximum penalty of 20 years' imprisonment.
85	In that case, there was no suggestion the offending occurred in the context of drug use.  There, as here, the offender had no prior criminal history.  Significantly however, in that case, the offender made extensive admissions to the offending and entered a guilty plea at the earliest opportunity, saving the young victim and her family the trauma of giving evidence.  He was found to have expressed genuine remorse for his conduct.  Additionally, the offender in that case was assessed as having a very low intellect with a pervasive developmental disorder that impacted on his impulsive tendencies and decision-making.
86	I have also had regard to the decision of Sims v The Queen, where the Court of Appeal upheld a total effective sentence of five years, six months' imprisonment with a non-parole period of three years, six months for offending that included a charge of sexual penetration of a child under 16 and supplying a drug of dependence to a child.
87	The base sentence in that case was a sentence of five years' imprisonment imposed on the rolled up charge of sexual penetration of a child under 16, involving four separate acts of sexual penetration where the victim was aged 15.  The sexual offending occurred in the context of the offender using methylamphetamine with the victim.  An early plea was entered to the charges and the judge found the offender, who had no prior criminal history, had made substantial efforts towards his rehabilitation.
88	In the case of Sims, there were features of the offending that were particularly aggravating.  The offender was 47, making the disparity in ages far more significant than in your case.  The offender was aware the victim was living in residential care, making her particularly vulnerable.  Significantly, the offending occurred at the offender's home over the course of two days, where the offending was more prolonged and represented a deliberate decision by the offender to persist after the first occasion.
89	I have also had regard to the cases of Bouris and Spottiswood, both of which are referred to in the Court of Appeal's decision in Sims.
90	As these cases illustrate, each case must turn on its own facts.  Current sentencing practices neither govern nor dictate the sentence to be imposed.
91	The standard sentencing scheme also prescribes the non-parole period to be imposed in relation to a standard sentence, or as here, in respect of the total effective sentence which incorporates a standard sentence offence.  Pursuant to s11A(4) of the Sentencing Act 1991, the relevant non-parole period is at least 60 per cent of the relevant term of imprisonment, unless it is in the interests of justice not to do so.
92	In this case, I have determined to impose a sentence that falls below the standard sentence, having regard to the mitigating effect of your childhood disadvantage, anxiety disorder, absence of any prior or subsequent criminal history and my positive assessment of your prospects of rehabilitation.
Sentence
93	Balancing the various factors to which I have referred, whilst having regard to the maximum penalty for the offences, and guided by the standard sentence for the offence of sexual penetration of a child under 16, I sentence you as follows:
Indictment L10600764A.1
94	On charge 1, trafficking in a drug of dependence to a child under the age of 16, you are convicted and sentenced to two years, three months' imprisonment;
95	On charge 2, sexual penetration of a child under 16, you are convicted and sentenced to three years, ten months' imprisonment.  This is the base sentence.
96	The principle of totality applies and I have been conscious to ensure you are not doubly punished.  I have endeavoured to impose a sentence that is proportionate to your overall criminal conduct.
97	The separate criminality of your offending in respect of the two charges warrants a degree of cumulation.  In relation to charge 1, it is relevant that this is also a rolled up charge comprising trafficking in a drug of dependence to three separate children under the age of 16.
98	I order that six months of the sentence imposed on charge 1 be served cumulatively upon the sentence imposed on charge 2 on the indictment.
Indictment L10600764B
99	On charges 1 and 3, possession of a drug of dependence, namely cocaine and ketamine, you are convicted and fined an aggregate of $600.  In respect of these two charges, I am satisfied, on the balance of probabilities, the cocaine and ketamine were in your possession for personal use, particularly having regard to the low amounts found.
100	However, in relation to charge 2, the police located a cap and 7 grams of MDMA in a bag following the search of your house on 5 March 2020.  Having regard to the circumstances of your offending in January 2020, and the quantum of MDMA found in your possession, I am satisfied the MDMA was possessed by you for a purpose which included selling or providing that drug to friends or acquaintances.  I accept however, there is no evidence that you were engaged in the 'business of trafficking' more broadly.  On the balance of probabilities I am satisfied you possessed the MDMA for a trafficking purpose, and that the higher maximum penalty of five years applies.
101	On charge 2, possession of a drug of dependence, namely MDMA, you are convicted and sentenced to two months' imprisonment.  I order that this sentence of imprisonment be served concurrently with the sentence imposed on the other indictment.
102	This gives a total effective sentence of four years, four months' imprisonment.  I fix a period of two years, six months' imprisonment before you are eligible for parole.
103	Pursuant to s 18 of the Sentencing Act 1991 I declare 73 days as already served under the sentence I have imposed.
104	Pursuant to s 6AAA of the Sentencing Act 1991, I am required to indicate the sentence that would have been imposed had you not pleaded guilty to the charges.  There is an artificiality in doing so, as you are entitled to a greater benefit for your early plea to the drug possession charges than the weight to be attached to your late plea on the remaining charges.  As best I can, I indicate that had you not pleaded guilty to the charges, the sentence I would otherwise have imposed is a sentence of five years, four months' imprisonment with a non-parole period of three years, two months' imprisonment.
105	I make the forfeiture and disposal orders sought by the prosecution, noting they are not opposed.
106	Finally, the offence of sexual penetration of a child under 16 is a registrable offence under the provisions of the Sex Offender Registration Act 2004 and you are required to comply with the reporting obligations under that Act for a period of 15 years.  You will receive a document at the conclusion of this hearing which details your obligations under the Act and which you will be required to sign.
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