SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2022 0167	

Director of Public Prosecutions	Appellant	
		
v		
		
NATHAN SUTCLIFFE (A PSEUDONYM)	Respondent	

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JUDGES:	BOYCE, WHELAN and T FORREST JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	29 February 2024	
DATE OF JUDGMENT:	12 April 2024	
MEDIUM NEUTRAL CITATION:	[2024] VSCA 63	
JUDGMENT APPEALED FROM:	DPP v [Sutcliffe] (County Court of Victoria, Judge Marich, 26 October 2022)	

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CRIMINAL LAW – Crown appeal – Sentence – Two charges of indecent act with child under 16 – Three charges of sexual assault of child under 16 – Sexual penetration of child under 12 – Total effective sentence 7 years, non-parole period 4 years 9 months – Whether manifestly inadequate – ‘Rolled-up’ charges – Victims aged four to eight – Repeatedly kissed on lips – Repeatedly made to touch respondent’s penis – Digital penetration of vagina – Breach of sex offender reporting obligations – Breach of community correction order – Prior convictions for sexual offending against children – Appeal allowed – Re-sentenced to total effective sentence 10 years, non-parole period 6 years 6 months.

Criminal Procedure Act 2009 s 287; Sentencing Act 1991 ss 6D, 6E, 6F; Sex Offenders Registration Act 2004 s 34.

DPP v Karazisis (2010) 31 VR 634; Lugo (a pseudonym) v The Queen [2020] VSCA 75; McPherson v The Queen [2021] VSCA 53; Narang (a pseudonym) v The Queen [2022] VSCA 103; Tobin (a pseudonym) v The Queen [2021] VSCA 180.
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Counsel	
Appellant:		Mr B F Kissane KC with Ms A J Roodenburg	
Respondent:		Mr D A Dann KC with Mr C Pearson	
	
Solicitors	
Appellant:		Ms A Hogan, Solicitor for Public Prosecutions	
Respondent:		Mr G Vassis, Vassis & Co	

BOYCE JA
WHELAN JA
T FORREST JA:
1	This is an appeal by the Director of Public Prosecutions brought pursuant to s 287 of the Criminal Procedure Act 2009 against sentences imposed in the County Court on 26 October 2022. The respondent was sentenced after he pleaded guilty to a number of sexual offences committed upon three young children. The respondent pleaded guilty, also, to offences of having failed to comply with reporting obligations imposed by the Sex Offenders Registration Act 2004. After a plea hearing, the respondent was sentenced as follows.
	Charge		Offence		Maximum		Sentence		Cumulation	
	1		Indecent act with a child under 16 years		10 years’ imprisonment		18 months’ imprisonment		3 months	
	2		Indecent act with a child under 16 years		10 years’ imprisonment		2 years and 3 months’ imprisonment		6 months	
	3		Sexual assault of a child under the age of 16		10 years’ imprisonment		2 years’ imprisonment		6 months	
	4		Sexual assault of a child under the age of 16		10 years’ imprisonment		2 years and 9 months’ imprisonment		9 months	
	5		Sexual penetration of a child under 12 years		25 years’ imprisonment		4 years and 6 months’ imprisonment		Base	
	6		Sexual assault of a child under the age of 16		10 years’ imprisonment		15 months’ imprisonment		6 months	
	7		Failing to comply with reporting obligations		5 years’ imprisonment		18 months’ imprisonment (aggregate with charge 8)		N/A	
	8		Failing to comply with reporting obligations		5 years’ imprisonment		18 months’ imprisonment (aggregate with charge 7)		N/A	
	Total Effective Sentence:		7 years’ imprisonment	
	Non-Parole Period:		4 years and 9 months	
	Pre-sentence Detention Declared:		382 days	
	Section 6AAA Statement:		9 years’ imprisonment, with a non-parole period of 6 years and 6 months	
	Other Relevant Orders: 
Sentenced as a serious sexual offender in respect of charges 3, 4, 5 and 6 pursuant to s 6F of the Sentencing Act 1991. Pursuant to s 34 of the SOR Act, the length of the reporting period is life.	
2	The appellant has one ground of appeal. It is in the following terms:
	The individual sentences on each of charges 1– 6, the orders for cumulation and the total effective sentence and non-parole period are all manifestly inadequate.
3	For the reasons that follow, we would allow the appeal and re-sentence the respondent.
The respondent’s offending, its disclosure and the respondent’s arrest
4	As noted above, the victims of the respondent’s offending were three children: AB, CD and EF. AB was the respondent’s niece through marriage; she was aged between four and eight when the respondent offended against her. The offending against AB took place between 2008 and 2012. CD was the daughter of a friend of the respondent. She was aged between six and seven when the respondent offended against her. The offending against CD took place in late September 2021. EF was the niece of CD’s father (the respondent’s friend). EF was aged seven when she was offended against. The respondent’s offending against EF spanned the period from early January 2021 to late September 2021.
5	The judge’s Reasons for Sentence are a model of completeness and clarity.
6	The Reasons summarise the offending that involved AB. This offending was repetitive. It spanned approximately four years. The offending against AB took place against a context of other uncharged sexual acts committed upon her by the respondent. Nevertheless, there was a uniformity in the respondent’s charged conduct. This uniformity permitted the respondent’s offending against AB to be grouped together into two ‘rolled-up’ charges: first, a charge of indecent act with a child under 16 years where the particular alleged was that the respondent kissed AB on the mouth (charge 1); and secondly, a charge of the same nature particularised as the respondent compelling AB to touch the respondent’s penis (charge 2). This offending occurred when AB and her family would visit the respondent and his family and sometimes stay overnight.
7	The judge described the respondent’s offending committed upon AB:
The first time something sexual occurred was when she was about four to five years old and visited your home in [a suburb of Melbourne]. Her mother and your wife were home.
You accompanied her to the bathroom for her to brush her teeth. You had her stand on a step so that she could reach the basin and, as she did so, you commenced kissing her on the mouth. This is part of the offending referable to your Charge 1, indecent act with a child under 16, the rolled up charge representing the numerous occasions where you committed an indecent act with her by kissing her on the mouth.
	After you stopped kissing her, you took her hand and placed it inside your underwear. She felt your penis, and you instructed her to rub it. She did so. This is part of the offending referable to your Charge [2, indecent] act with a child under 16, the rolled-up charge representing the numerous occasions where you committed that indecent act with her by requiring her to touch your penis.
In December 2009, you and your family moved to an address in [name of street and suburb]. Your victim, [AB], and her sister would stay overnight at this address. She would usually sleep on a mattress on the floor in your son’s bedroom, and she recalls that when you were home, you would come into the bedroom, make her sit up and kiss you, and then you would leave. You would try to teach her to French kiss, using your tongue. This is not a particular of either of the charges but is relied on by the prosecution as context.
On an occasion when she was aged five or six, she was visiting your home and wanted to play hide and seek with your son. She asked to hide, but you told her to stay with you and help you find your son. After your son left the room, you picked her up and positioned her so that she was facing you, on the couch, straddling you on your lap. She tried to get off but you held her by the waist and commenced kissing her on the mouth. This is part of the offending referable to your Charge 1.
On another occasion, when she was aged between five and eight, you collected her from her home in [name of town], but instead of driving directly to your home, you drove her to the [name of location] in [name of town] and told her not to tell her cousins as they would be jealous. You parked the vehicle and instructed her to climb over from the back seat onto the driver’s seat. You instructed her to sit on your lap, and she straddled you, facing you. You commenced kissing her, and she recalled that your breath smelled of onions. This is part of the offending referable to your Charge 1.
You stopped kissing her and you both exited the vehicle. You led her to the [name of location] and you both began to walk up the spiral staircase. As she stood on a step above you, you turned her and began kissing her on the mouth, and continued kissing her until an elderly couple began ascending the staircase. This is part of the offending referable to your Charge 1, the rolled up charge representing the numerous occasions where you committed an indecent act with her by kissing her on the mouth.
On one occasion, when she was aged between six and eight years, you collected her from her home in [name of town], but instead of driving directly home to your house for a sleepover, you stopped at the IGA Supermarket in [name of town]. You instructed her to move from the backseat to the driver’s seat and sit on your lap. You had her straddle you, facing you, and you commenced kissing her on the mouth while people were walking past. This is part of the offending referable to your Charge 1, the rolled up charge representing the numerous occasions where you committed the indecent act with her by kissing her on the mouth.
In about June 2010, you and your family moved to an address in [name of street] in [name of town], and the victim would often stay overnight with you. When she was aged about six, she was visiting you and you were both sitting on a couch in the lounge room watching a movie, with your son sitting on a second couch. You laid down on the couch and instructed her to lay down on her side in front of you. She later moved her hand down by her side and felt your naked penis on her body near her hip. This is part of the offending referable to your Charge 2.
This made the victim feel sick and she got up and went to the toilet. When she exited the toilet, you stepped in front of her and would not let her pass.
	On Christmas Day in either 2010 or 2011, when she was aged six or seven years, she and her family were celebrating at her grandparents’ home in [name of town], and you and your family were also in attendance.
At a time when all of the others were either in the kitchen or lounge room, your victim walked past the spare room and she heard you call out to her from inside the darkened room. She entered the room and saw you, and you had her stand on a bunkbed and you commenced kissing her on the mouth. This is part of the offending referable to your Charge 1.
On an occasion between 14 and 16 January 2011, when the victim was aged around six years, she and her sister were staying the night at your house. She was sleeping overnight on a mattress on the floor of your son’s bedroom. You entered the bedroom and woke her up and commenced kissing her on the mouth for what felt like 10 minutes. This is part of the offending referable to your Charge 1.
In 2010, your former wife purchased a house at an address in [name of street] in [name of town]. You lived at the house even though you had by that stage separated from her.
On an occasion when the victim was aged around six or seven years, you collected your victim from her grandparents’ home, but instead of driving directly to her house, you drove her to your house. You instructed her to follow you inside and took her into your bedroom, laid down on the bed and instructed her to lay down on top of you. You commenced kissing her on the mouth. This is part of the offending referable to your Charge 1.
When the victim was aged around eight years in 2012, her family ceased contact with you and there was no further offending against her.
8	Putting this all together, it can be seen that there were essentially eight occasions when the respondent kissed AB. For this offending the respondent received a term of imprisonment of 18 months. On two occasions the respondent caused AB to touch his penis. For this, the respondent received a sentence of 2 years and 3 months’ imprisonment.
9	The judge dealt next with the offending committed upon EF. There was, as has been noted, a gap of approximately nine to 10 years separating the end of the respondent’s offending against AB and the commencement of his offending against EF. EF lived partly with her mother and partly with her paternal grandmother. She would visit her uncle; he was the father of CD and the respondent’s friend. These visits usually occurred when CD was present so that the two children could see each other.
10	As in the instance of AB, the respondent faced two ‘rolled-up’ charges concerning EF: one charge of sexual assault of a child under the age of 16 particularised as the respondent kissing EF on the mouth (charge 3), and one charge of the same nature particularised as the respondent compelling EF to touch the respondent’s penis (charge 4). There was, however, a further charge concerning EF. It was a charge of sexual penetration of a child under 12 years. This charge was particularised as the respondent introducing his finger into EF’s vagina (charge 5). The judge summarised the respondent’s offending committed against EF:
	On an occasion in 2021, when she was about six or seven years old, both she and you were visiting her uncle [CD’s father] at his home. You were standing with her in the entrance area near the lounge room of the home. You lifted her up and said to give you a kiss on the lips. You then kissed her on the mouth, which she described as “like we got married”. This is part of the offending referable to your Charge 3, the rolled up charge representing the numerous occasions where you committed a sexual assault of a child under 16 years. You told her not to tell anybody. You kissed her “a lot” during visits to her uncle’s home.
On another occasion, you visited her family home at [name of street] in [name of town] when she was aged seven years old. You were standing in the entrance hall area with her, and kissed her on the mouth again, “like a married kiss”. This is part of the offending referable to your Charge 3, the rolled up charge representing a sexual assault of a child under 16 years.
On another occasion, she was staying over at her uncle’s house for a few days between 24 and 29 September 2021. You came over on each of those days. On an occasion, she recalls that both of you were sitting on a corner couch (indistinct words) . The other occupants of the house were in the kitchen and watching television. You placed a blanket over your lower half and over her, and pulled your pants down and removed your penis. You took her hand and made her touch your penis. This is part of the offending referable to your Charge 4, the rolled up charge of sexual assault of a child under 16 years, by requiring her to touch your penis.
You then moved your hand into her underwear and inserted a finger into her vagina, and you whispered, “Does it feel nice?”. She did not say anything in response as it felt, she said, “disgusting”. This is the offending referable to your Charge 5 of sexual penetration of a child under 12 years.
You then whispered to her to come into the toilet. You went to the bathroom and she followed a short time later. When she entered the bathroom, she saw that you had pulled your pants down and were naked. You bent down and kissed her on the mouth while your penis was exposed. This is part of the offending referable to your Charge 3.
You took her hand and placed it onto your penis and had her masturbate your penis. She felt that she had no choice but to do it and describes that it made her feel “yuck”. Some of the other children knocked on the door and you stopped. This is part of the offending referable to your Charge 4.
11	Looked at in summary, the offending against EF comprised three acts of kissing, for which the respondent was sentenced to 2 years’ imprisonment; two occasions when the respondent caused EF to touch his penis, for which the respondent was sentenced to 2 years and 9 months’ imprisonment; and one act of digital penetration of EF’s vagina, for which the respondent was sentenced to 4 years and 6 months’ imprisonment.
12	Insofar as CD was concerned, the respondent faced one charge of sexual assault of a child under the age of 16 (charge 6). CD lived with her mother. From mid-2019 she would visit fortnightly her father (the respondent’s friend), her step-mother and half-siblings for weekend access visits. The respondent would visit his friend three to four times a week. The respondent was observed to act as a ‘fun uncle’ to his friend’s children and CD. The respondent was often present during CD’s access visits with her father, and sometimes the respondent would even accompany his friend when the friend drove CD home to her mother’s place. The judge summarised the respondent’s offending committed upon CD:
You would hug and kiss her on both her cheeks and lips, which you first did when she was aged five or six. You would sometimes use your tongue to kiss when you were in a secret spot, such as the spare room. You told her that it was “a good secret” and she has said that you did not kiss her in the lounge room of the house as it would “let the secret out”.
On an occasion when she was visiting her father, you took her into the spare room and closed the door behind you. Your victim was on the bed in the spare room and you hugged and kissed her on the lips. This is part of the offending referable to your Charge 6, sexual assault of a child under 16 years.
13	For this offending upon CD (kissing and hugging), the respondent was sentenced to imprisonment for 15 months.
14	That left the offending under the SOR Act. As will be described in greater detail below, the respondent was, on 11 September 2013, convicted of registrable offences, namely, four charges of indecent act with a child under 16. This meant that the respondent was placed on the Sex Offender Register for life. As part of his reporting obligations, the respondent was required to notify the Chief Commissioner of Police within 24 hours of any contact that he had with children under the age of 18. The respondent failed to report his contact with CD between June 2020 and September 2021 (charge 7), and failed to report his contact with EF between January and September 2021 (charge 8).
15	AB disclosed aspects of the respondent’s offending to a friend in about 2018. At around Christmas 2019, she made further disclosures to her father and even went to the police. She did not wish, however, to make a statement at that time. EF disclosed the offending committed upon her to police on 29 September 2021 and made a video/audio-recorded evidentiary statement on 1 October 2021. Two days later police went to the respondent’s friend’s house. CD then disclosed what the respondent had done to her. CD made her own evidentiary statement. On 24 October 2021, AB made a video/audio-recorded evidentiary statement.
16	The respondent was arrested on 8 October 2021. He denied having offended against EF and CD. He did admit not reporting his contact with those two children in accordance with his obligations under the SOR Act. When interviewed about AB’s allegations, the respondent gave a ‘no comment’ record of interview.
17	As indicated above, and with orders for cumulation etc, the total effective sentence imposed on the respondent was 7 years’ imprisonment. A non-parole period of 4 years and 9 months was ordered.
The respondent’s history
18	As described above, there was a nine to 10-year gap between the respondent’s offending against AB and the offending committed upon EF and CD. Nevertheless, virtually coinciding with the cessation of the respondent’s offending upon AB, the respondent commenced offending against another two females aged 10 and 11. This occurred at the respondent’s daughter’s 11th birthday party. The respondent kissed one of the girls on both sides of her neck and on the lips. He kissed the other girl on the lips. The second child reported a further, earlier, act of kissing. This offending led, in September 2013, to the respondent pleading guilty to four charges of indecent act with a child under 16. The respondent was sentenced to an 18-month community correction order with supervisory and work conditions. This community correction order also contained conditions pertaining to treatment, rehabilitation as well as assessment for the Sex Offenders program.
19	The respondent was then convicted three times, in 2014 and 2015, with having contravened a personal safety intervention order. He was convicted in March 2019 for common assault. In March 2021, the respondent was convicted of two charges of failure to comply with reporting obligations under the SOR Act as well as charges of unlawful assault and, again, contravention of a personal safety order. The respondent was sentenced to a further community correction order of 18 months’ duration. The respondent’s offending, on this occasion, involved him having failed to report his contact with a 16-year-old female who worked at a local supermarket. The assault related to the respondent grabbing this female on the outer side of her pants.
20	Part of the respondent’s present charge 3 offending and all of his offending on charges 4, 5 and 6 occurred in breach of this later community correction order.
The respondent
21	The respondent was in his late 30s or early 40s when he offended against AB. He was 50 by the time he offended against EF and CD. He was 52 by the time of sentence. The respondent had no prior convictions when he committed charges 1 and 2.
22	The respondent had a history of steady employment. He had been married twice and has grown-up children. He had suffered from diabetes.
23	The respondent relied upon expert psychological evidence. Two expert reports were tendered on the plea: one authored by Ms Sandra Cokorilo, the other, Dr Melissa Wood.
24	Although the respondent reported ‘depressed mood reactive to life events’, there were no serious current psychological or psychiatric issues reported.
25	The respondent denied the offending to Ms Cokorilo. Tests administered by Ms Cokorilo allowed her to conclude that without formal intervention the respondent presented with ‘a moderate risk of reoffending’.
26	The respondent admitted his later offending to Dr Wood. Indeed, the respondent admitted to Dr Wood that what he did was ‘wrong’. Dr Wood noted guilt, empathy and regret. Yet, Dr Wood still considered that the respondent was engaging in minimisation and denial. So much was reflective of limited insight on the respondent’s part, Dr Wood thought. Dr Wood placed the respondent in the ‘high risk category relative to other male sexual offenders’. This was due, in part, to the recent escalation in the respondent’s offence severity. According to Dr Wood, the respondent met the DSM-5 criteria for paedophilic disorder albeit the applicant’s paedophilic interest fell towards the situational end of the spectrum rather than the preferential or predatory.
The reasons for sentence
27	The judge accepted that the respondent had offered early pleas of guilty, and that his pleas had saved court time, the expense of a trial, as well as inconvenience and trauma to victims and potential witnesses. The judge thought it of ‘considerable significance’ that the plea was entered when ‘the effects of the COVID-19 pandemic continue to linger upon the listing of trials’. The judge also factored into account COVID-19’s impact upon the respondent’s time in custody. Moreover, the judge accepted that the pleas were accompanied by ‘some remorse’.
28	The judge characterised the respondent’s offending as ‘grim and creepy, the stuff of nightmares’. The judge described that the respondent had ‘attempted to silence each of [his] victims by encouraging them to keep [his] frightening and deviant behaviour a secret’. The judge observed that the respondent had ‘an embedded need to give [himself] gratification via the opportunity that [his] contact with young girls provides [him]’. The judge concluded that the respondent ‘represent[ed] a real risk of future offending’ and that she was ‘cautious about [the respondent’s] prospects of rehabilitation’. Nevertheless, the judge saw some scope for improvement in the respondent’s prospects of rehabilitation and noted that the offending was not accompanied by actual violence or threats and the like.
29	The judge considered that general deterrence was a principal purpose of sentencing and that the offending must be denounced. The respondent required punishment as well as specific deterrence. The community required protection.
30	The judge had regard to the ‘standard sentence’ applicable in the instance of charge 5 (10 years’ imprisonment) and charges 3, 4 and 6 (4 years’ imprisonment). Her Honour noted that the respondent fell to be sentenced on charges 3 to 6 as a ‘serious sexual offender’.
31	The judge paid particular regard to the effect that the respondent’s offending had had upon his victims. Indeed, the judge quoted at some length from AB’s victim impact statement.
Submissions
32	The appellant, in this Court, emphasised that charges 3 to 6 were committed when the respondent had relevant prior convictions, was on a community correction order and was a registered sex offender. It was submitted that there was nothing in the respondent’s personal circumstances to reduce his moral culpability. Indeed, the respondent’s moral culpability was ‘very high’.
33	As to the objective gravity of the offending, the appellant relied on the young ages of the victims; the age disparity between the victims and the respondent; the repetition in the offending both within and between the multiple victims; the breach of trust in the instance of charges 1 and 2; the respondent’s exploitation of a friendship to gain access to the victims of charges 3 to 6; that the offending occurred when the victims were isolated; the respondent’s attempts to conceal his offending by telling the victims that it was a secret; the later escalation in offending; and the fact that the offending was motivated by the respondent’s need for sexual gratification.
34	Reliance was placed on the presumption of harm to the immediate victims, as well as the harm caused to the guardians entrusted with the immediate victims’ care.
35	The appellant relied on the fact that much of the offending was ‘rolled-up’ under specific charges. It was submitted that the lengths of individual sentences paid insufficient regard to this fact.
36	The appellant submitted that the judge had had insufficient regard to the standard sentence ‘legislative guidepost’. For instance, the charge 5 sentence — ‘the most serious charge for which the respondent was sentenced’ — represented only 18 per cent of the applicable maximum. It was submitted that in respect of this sentence, in particular,‘[t]he sentence imposed did not reflect the seriousness of the offending and demonstrates that the judge had insufficient regard to the standard sentence legislative guidepost’. The victim of this offending was only seven and the offending occurred in the context of the commission of charges 3 and 4. The applicable ‘standard sentence’ also betrayed that the sentences on charges 3, 4 and 6 were deficient.
37	It was submitted that the individual sentences paid insufficient regard to the applicable maximum penalties.
38	As to the total effective sentence, it was submitted that when one had regard to the four-year period over which the charge 1 and 2 offending ranged, the further nine-month period applicable to charges 3 to 6, and the fact that the respondent was a ‘serious sexual offender’ on charges 3 to 6 (where the usual presumption of concurrency was replaced by a presumption of cumulation, and protection of the community became the primary purpose in sentencing), the 7-year term failed properly to register the offending in its totality and was manifestly inadequate as a consequence. In particular, the total effective sentence failed properly to reflect the fact that there were different victims.
39	There were no Verdins considerations that could act to mitigate penalty and, for the later offending, the respondent had relevant prior findings of guilt. Emphasis was placed by the applicant on the respondent’s limited insight, as assessed by psychologists, as well as his high risk of reoffending.
40	The respondent, on the other hand, emphasised the stringency of the test to be applied when a ground of appeal that alleges manifest inadequacy is to be assessed. The respondent traced through all the matters that were referred to by the sentencing judge and emphasised the ‘very thorough and careful treatment of the various sentencing factors’.
41	Particular reliance was placed by the respondent on the pleas of guilty; the early timing of those pleas; the utilitarian benefits of the pleas (including those utilitarian benefits that arise in a COVID-19 setting); the ‘limited remorse and acceptance of responsibility’; the respondent’s good character when it came to charges 1 and 2; that this was the respondent’s first period of imprisonment; and the impact that COVID-19 would have on the respondent’s experience in prison. The principle of totality was also relied on.
42	It was submitted that having regard to the thoroughness and care displayed by the sentencing judge; the absence of specific error; and the ‘wide measure of latitude, which is to be respected by appellate courts’, the stringent test for appellate intervention on the ground of manifest inadequacy had not been met.
43	Orally, the respondent again underscored the thoroughness of the Reasons. The respondent submitted that the sentencing judge was bound to consider where the offences lay on the spectrum of seriousness. In proof of the judge having satisfied that obligation, counsel took the Court in detail through the individual acts of offending that were referable to each of the charges. It was submitted that when this analysis was carried out with appropriate care and dispassion, it became evident in respect of each charge that the judge had correctly assessed the seriousness of each individual offence. Indeed, it was submitted that — properly analysed — many of the individual sentences could hardly even be described as ‘lenient’. Certainly this was so when the assessment of seriousness was examined against the context of the various mitigatory matters that were in play.
44	It was conceded, however, that the sentence on charge 5 was ‘lenient’.
45	It was submitted that, taking all relevant matters into account, none of the individual sentences could be said to be manifestly inadequate.
46	When it came to totality, it was submitted that there was cumulation for each separate victim. It was put that for much of the later conduct it had occurred relatively close in time. In the end, it was submitted that the orders for cumulation were ‘appropriate’.
Consideration
47	The principles that apply to a Crown appeal against sentence when the error pleaded is manifest inadequacy find expression in DPP v Karazisis:
	In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
48	In our opinion, the appellant’s submissions must — in large part — be upheld.
49	The analysis may commence with the sentence imposed upon the respondent for the charge 5 offence of sexual penetration. Far from being lenient, a sentence of 4 years and 6 months’ imprisonment was, in our view, manifestly inadequate.
50	The victim of this offence was seven. The respondent penetrated the victim’s vagina with his finger and whispered to her ‘does it feel nice?’. This offending took place when the respondent was on a community correction order and had relevant prior findings of guilt. The respondent was also relevantly a ‘serious sexual offender’ and a ‘standard sentence’ of 10 years’ imprisonment was relevant. 
51	The appellant, at the hearing in this Court, cited as a comparable case this Court’s standard sentence decision in McPherson v The Queen. In McPherson, after a successful appeal by the offender, this Court imposed a sentence of 6 years and 6 months’ imprisonment on one charge of sexual penetration of a child under 12. The relevant act was described as an ‘isolated example of relatively fleeting digital penetration’. The victim was eight. The offender had pleaded not guilty but had no prior convictions for sexual offending and there were strong matters in mitigation: the offender had had a ‘traumatic and disadvantaged past’ and his significant mental health difficulties would make his service of a prison term greatly burdensome.
52	The appellant also brought to the attention of the Court the decision in Tobin (a pseudonym) v The Queen. In Tobin a sentence of 8 years’ imprisonment was imposed upon an offender who was 20 years of age for the offence of sexually penetrating a child under 12 years. The offender was babysitting the victim (who was almost four). The offender inserted his finger into the child’s vagina. The same ‘standard sentence’ regime applied. The offender pleaded guilty.
53	In our view, taking into account all relevant matters, and, in particular, those matters relied on as mitigatory by the respondent, We would re-sentence the respondent on charge 5 to a sentence of 6 years’ imprisonment.
54	Next, consideration must be given to the various ‘rolled-up’ charges of sexual assault. These involved acts of kissing and causing the victim to touch the respondent on the penis. The details of the respondent’s commission of these offences — in particular, their number — are summarised above. The ‘standard sentence’ regime (4 years’ imprisonment) applied to charges 3 and 4 and the respondent was a ‘serious sexual offender’ on each of these charges. Charges 3 and 4 were committed when the respondent had relevant prior convictions, and part of the charge 3 offending and all of the charge 4 offending was committed in breach of the community correction order imposed in 2021.
55	The appellant cited cases, at the hearing of the appeal, where a sentence of 4 years and 4 months had been imposed for this offence for a single occasion, where 3 years was imposed on a ‘rolled-up’ charge, and where 4 years’ imprisonment was imposed on ‘rolled-up’ charges.
56	The sentences on each of the individual ‘rolled-up’ charges are, by any estimation, lenient especially when regard is had to the fact that, as ‘rolled-up’ charges, the judge was required to have regard to the totality of the acts encapsulated within each charge. The sentences imposed for the acts of causing a victim to touch the respondent’s penis (charges 2 and 4) are, in point of fact, remarkably lenient. That said, we are not persuaded that those individual sentences are manifestly inadequate. We have reached the same conclusion in respect of the sentence on charge 6 — the single act of hugging and kissing committed upon CD.
57	In the end, we would confirm the individual sentences imposed below on charges 1 to 4 and 6. The appellant’s ground of appeal did not seek to impugn the sentences imposed on charges 7 and 8.
58	But the orders for cumulation are another matter, particularly in respect of those offences where the respondent was sentenced as a ‘serious sexual offender’ and, therefore, where the presumption of concurrency was replaced by a presumption of cumulation. In our view the orders for cumulation failed properly to account for the entirety of the respondent’s offending and the fact that the respondent offended against three separate victims — repetitively against two of them, and against two of them as a ‘serious sexual offender’.
59	Having reached the conclusion that the individual sentence on charge 5 is manifestly inadequate and that the same can be said of the orders for cumulation, we would therefore allow the appellant’s appeal, set aside the sentences imposed in the County Court, and re-sentence the respondent as follows:
(a)	Charge 1 (indecent act with a child under 16 years (‘rolled-up’)) — 18 months’ imprisonment;
(b)	Charge 2 (indecent act with a child under 16 years (‘rolled-up’)) — 2 years and 3 months’ imprisonment;
(c)	Charge 3 (sexual assault of a child under the age of 16 (‘rolled-up’) — 2 years’ imprisonment;
(d)	Charge 4 (sexual assault of a child under the age of 16 (‘rolled-up’)) — 2 years and 9 months’ imprisonment;
(e)	Charge 5 (sexual penetration of a child under 12 years) — 6 years’ imprisonment;
(f)	Charge 6 (sexual assault of a child under the age of 16) — 15 months’ imprisonment;
(g)	Charges 7 and 8 (failing to comply with reporting conditions) — 18 months’ imprisonment (aggregate sentence);

60	The sentence on charge 5 will form the base sentence. Six months of the sentence on charge 1, 9 months of the sentence on charge 2, 12 months of the sentence on charge 3, 15 months of the sentence on charge 4, and 6 months of the sentence on charge 6 are to be served cumulatively upon the base sentence and upon each other producing a total effective sentence of 10 years’ imprisonment. The aggregate sentence imposed on charges 7 and 8 is to run concurrently with the sentence imposed on charge 5. It is directed that the respondent serve 6 years and 6 months before becoming eligible for parole.
61	But for the pleas of guilty the respondent would be sentenced to a total effective sentence of 13 years and 6 months’ imprisonment with a non-parole period of 8 years and 6 months (Sentencing Act 1991, section 6AAA).
62	It is noted that pursuant to section 6F of the Sentencing Act 1991, the respondent is sentenced as a ‘serious sexual offender’ on charges 3, 4, 5 and 6 and that pursuant to s 34 of the SOR Act, the length of the respondent’s reporting period is life.
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