SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0041

MICHAEL TRANGLE (a pseudonym)	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	McLEISH, SIFRIS and OSBORN JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	24 May 2021	
DATE OF JUDGMENT:	3 August 2021	
MEDIUM NEUTRAL CITATION:	[2021] VSCA 210	
JUDGMENT APPEALED FROM:	[2019] VCC 2052 (Judge Smallwood)	

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of three charges of causing injury intentionally, six charges of indecent act with a child, 16 charges of incest, and one charge of assault (26 charges) – Whether verdict on one charge of incest unsafe and unsatisfactory – Whether open to jury to accept that penetration of complainant’s anus occurred – In context, complainant’s apparent denial of penetration a denial only of full penetration – Trial judge and defence counsel accepted that if complainant’s evidence accepted penetration established – Plainly open to jury to accept that penetration occurred – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Base sentence 12 years’ imprisonment on one charge of incest – 12 year sentence on incest course of conduct charge and 10 year sentences on other incest charges with cumulation ranging from 3 to 18 months – Total effective sentence 25 years’ imprisonment with non-parole period 19 years – Whether individual sentences, orders for cumulation, total effective sentence and non-parole period were manifestly excessive – Current sentencing practices only one factor – Sentences open –Extremely serious protracted offending – Leave to appeal granted – Appeal dismissed – DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 – DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 – Grantley (a pseudonym) v the Queen [2018] VSCA 112 – DPP v Polat (a pseudonym) [2020] VSCA 174, considered.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr C K Wareham	Leanne Warren & Associates	
			
For the Respondent	Mr P L Bourke QC	Ms A Hogan, Solicitor for Public Prosecutions	

McLEISH JA
SIFRIS JA
OSBORN JA:
Introduction
1	Following a trial in the County Court before his Honour Judge Smallwood and a jury, the applicant was convicted of a total of 26 offences against his two step-daughters, comprising:
(a)	three charges of causing injury intentionally; 
(b)	six charges of indecent act with a child under the age of 16; 
(c)	16 charges of incest;  and
(d)	one charge of common assault.
2	On 29 November 2019, the applicant was sentenced as follows:
Charge on Indictment	Offence	Maximum	Sentence	Cumulation	
1.		Causing injury intentionally	10 years’ imprisonment	6 months’ imprisonment	-	
2.	Causing injury intentionally 	10 years’ imprisonment	12 months’ imprisonment	3 months	
3.	Indecent act with a child under the age of 16	Not guilty by direction.	
4.	Indecent act with a child under the age of 16 	10 years’ imprisonment	3 years’ imprisonment	6 months	
5.	Incest 	25 years’ imprisonment	10 years’ imprisonment	12 months	
6.	Indecent act with a child under the age of 16	10 years’ imprisonment	12 months’ imprisonment	-	
7.	Incest	25 years’ imprisonment 	10 years’ imprisonment	3 months 	
8.	Incest	25 years’ imprisonment 	10 years‘ imprisonment	3 months 	
9.	Indecent act with a child under the age of 16	Not guilty by direction.
	
10. 	Incest	Not guilty by direction.	
11.	Incest	25 years’ imprisonment 	10 years’ imprisonment	6 months 	
12.	Causing injury intentionally	10 years’ imprisonment 	18 months’ imprisonment	3 months	
13.	Indecent act with a child under the age of 16	10 years’ imprisonment	12 months’ imprisonment		
14.	Indecent act with a child under the age of 16	10 years’ imprisonment	7 years’ imprisonment	24 months	
15.	Indecent act with a child under the age of 16	Alternative to charge 14. 	
16.	Indecent act with a child under the age of 16	10 years’ imprisonment	12 months’ imprisonment	-	
17.	Incest	25 years’ imprisonment	10 years’ imprisonment	6 months	
18.	Incest	25 years’ imprisonment 	10 years’ imprisonment	6 months	
19.	Incest 	25 years’ imprisonment 	12 years’ imprisonment	18 months	
20.	Incest 	25 years’ imprisonment 	10 years’ imprisonment	6 months	
21.	Incest 	Not guilty by direction.	
22.	Incest 	Not guilty by direction.	
23.	Incest 	Not guilty by direction.	
24.	Incest 	Not guilty by direction.	
25.	Incest 	25 years’ imprisonment 	10 years’ imprisonment	9 months	
26.	Incest 	25 years’ imprisonment 	10 years’ imprisonment	-	
27.	Incest 	25 years’ imprisonment 	10 years’ imprisonment	9 months	
28.	Incest 	25 years’ imprisonment 	10 years’ imprisonment	12 months	
29.	Indecent act with a child under the age of 16	10 years’ imprisonment	3 years’ imprisonment	9 months	
30.	Incest 	25 years’ imprisonment 	12 years’ imprisonment	Base	
31.	Indecent act with a child under the age of 16	Not guilty by direction.	
32.	Incest	Not guilty by direction.	
33.	Indecent act with a child under the age of 16	Not guilty by direction.	
34.	Incest	25 years’ imprisonment 	10 years’ imprisonment	6 months	
35.	Incest	25 years’ imprisonment 	10 years’ imprisonment	6 months	
36.	Incest 	25 years’ imprisonment	10 years’ imprisonment	6 months	
37.	Common assault 	5 years’ imprisonment	12 months’ imprisonment	3 months	
Total Effective Sentence:	25 years’ imprisonment	
Non-Parole Period:	19 years	
Pre-sentence Detention Declared:	362 days	
Other relevant orders:  
On charges 6, 7, 8, 11, 12, 13, 14, 16, 17, 18, 19, 20, 25, 26, 27, 28, 29, 30, 34, 35 and 36 – Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991. 
Pursuant to Sex Offenders Registration Act 2004 s 34, the length of the reporting period is life.	
3	The applicant now seeks leave to appeal against his conviction on charge 28 on the following ground:
The jury’s verdict on charge 28 (incest) is unsafe and unsatisfactory in that it was not open to the jury to accept that the complainant’s anus was penetrated as opposed to merely touched.
4	The applicant also seeks leave to appeal against sentence.
5	For the reasons that follow:
(a)	leave to appeal against conviction is refused;  and
(b)	leave to appeal against sentence is granted, but the appeal against sentence dismissed.
APPEAL AGAINST CONVICTION
6	Charge 28 alleged incest against the second complainant.  At the relevant time, s 44(1) of the Crimes Act 1958 prescribed the elements of the offence.  It relevantly provided that a person who takes part in an act of sexual penetration with a person whom he knows to be his child, other lineal descendant or stepchild is guilty of the offence of incest.  Section 35 relevantly defined sexual penetration as the introduction (to any extent) of the penis of a person into the anus of another person.
7	The complainants are half-sisters.  The first complainant is nearly 6 years older than the second.  At the time of the alleged offences, the applicant was married to the complainants’ mother.  They married in 1996 when the first complainant was aged 10 and the second complainant was aged 4.  They lived in regional Victoria.
8	The evidence as to charge 28 fell to be considered within the context of a complex of evidence demonstrating a pattern of persistent violation of the complainants’ bodies.  This context was established both by evidence of uncharged acts and by way of the offences other than charge 28 in respect of which the applicant was convicted (and in respect of which there is no application for leave to appeal).
9	It is convenient first to adopt the sentencing judge’s summary of the uncharged acts: 
What occurred after that is best described in the Crown opening and also the evidence that was given, and cross-examined on, before a jury by both the [first complainant] and the [second complainant].  I think these matters which are in fact uncharged acts and therefore [simply] go to context, put the overall circumstances into that context.  One relates to the [first complainant] and one relates to the [second complainant].  It is clear that there was violence throughout all this and I think these pages give a bit of an indication, before we get into the actual offences themselves, about what it was all about.
[The first complainant] was asked, ‘How old would you have been?’  [She] said, ‘Maybe things sort of changed around Grade 5 or Grade 6, around about nine or eight or nine.  I started to be singled out, compared to the other children … I started to do chores, as every child should, but I then started to get punished for things that I hadn’t done.’
Question, this is the prosecutor, ‘Well let’s start with the chores, what kind of chores were you doing?’  ‘So I used to just wash dishes and vacuum, make beds, get kids ready for school and that was in the early stages and then it went from that to, I think, when I was maybe in Grade 6, I started washing the car every morning and then picking up leaves and dog poo and weeds and just all that sort of stuff.  So I used to walk up and down the whole property picking up leaves one by one, morning and night.’  ‘Every day?’ ‘Yeah.’  ‘Summer and winter?’  ‘Yeah, from probably Grade 5 up until I left home when I was working full-time and stuff.’
‘Did it affect your school work?’  ‘Definitely.’  ‘So when was it that you did your chores?’  ‘So I’d wake up at six every morning and I’d do chores until I woke the other children up for school and I’d do it until I went to school and then I walked [to] school and then I’d come home at lunchtime and do chores, then I’d go back to school and then come home and do chores.  Then after chores I’d do spelling and then if I was lucky enough, I’d get a couple of hours’ sleep.’
Question, ‘You said you’d be up at six in the morning, could you get yourself up?’  Answer, ‘No, so it was [the applicant]’s TV and he used to have a timer on it, so as soon as the static noise of the power got in the telly, if my feet weren’t on the floor, that was a punishment, if I wasn’t all ready to go.’  Question, ‘What was the punishment?’  ‘It could be spelling, it could be manhandled, it just depended on the day that he was having, I guess.’
Question, ‘All right, let’s take that one by one.  What spelling, what does that mean?’  ‘So if I start it off when I was in primary school.  I went home with a book because my schooling was very affected ah and so I would — took a spelling book home to write words, trying to get smart, because I thought that would make [the applicant] like me.  And then it progressed from that time, spelling all night and then I’d get tired, so I’d sort of lay down a little bit on the table and then my sister would dob on me.  Then I’d have to stand, so I used to stand in the doorway facing the family, write in the book backwards all night.’
‘When you say “all night”, how long are you talking about?’  ‘Sometimes I wouldn’t go to bed till 3 or 4 o’clock in the morning.’  ‘Was it [the applicant] that was making you do this?’  ‘Yes.’  ‘You said you were manhandled?’  ‘Yes.’  ‘What do you mean by that?’  ‘I used to get headbutted.  I used to get kneed.  I used to get thrown around.  I used to get choked, kicked, punched, thrown into walls, thrown out the back door like — yeah, just like a ragdoll thrown around.’  ‘We’re talking about [the applicant] when you - - -?’  ‘Yeah, yeah.’  ‘How did he speak to you?’  ‘Disgusting.’  ‘What sort of things did he say to you?’  ‘I was a peasant.  I was a rodent.  I was a mutt.  I was a slut.  I was brain dead.  I was a pigdog.  I was just — I was just, yeah, all the horrible things.’
A lot of that material is confirmed by the lady who lives next door, as well as by other witnesses in this particular matter.
She then goes on after that to describe being isolated from the rest of the family.
And then she said, for example … ‘So sometimes I wasn’t allowed to eat.  Ah, from Grade 2 onwards, I was never allowed to have breakfast, ah because once I tipped the extra Weet-Bix in the bottom of the thing in my breakfast bowl, so he’s like, “Well fucking go without” um and then I was only allowed to have one glass of water after dinner, if I was lucky.’
‘Did you eat with the family?’  ‘No.’  ‘Where did the family eat?’  ‘So when he first came along, we used to all have our spots at the table.  I used to sit beside him, ‘cause I liked him and then he just sorta went from that to, “You make everyone sick, so you can stand around the corner and face the wall, away from the family, because no one wants to see you.”‘  ‘So that happened probably from about Grade 3 or 4?’  ‘Ah, yeah.  And that’s where I used to stand and eat.’  Question, ‘So that’s where you regularly ate?’  ‘Yeah.’  ‘Was there ever a time when [he] deprived [you of] food and drink over an extended period of time?’  She said, ‘Yes’ and went onto give examples of that.  Insofar as the treatment is concerned, I don’t want to go through the details of it.
The second complainant had this to say about it.  Again, uncharged acts, but just the unbelievable environment in which these children were forced to live …  ‘Yeah, so I may have been in Year 8 or 9… so I’d asked to go to the social, um and he said, “No”, [the applicant] said, “No” and I was really upset because I just wanted to go and have fun with other kids at school.  Later that day, he’s come to me and said, “If you get a carrot and come down to the lounge room”, when my brothers were asleep, and I inserted it in my vagina in front of my mother, then he’ll let me go.’
Question, ‘So he asked you to do that?’  Answer, ‘Yes.’  ‘What did you end up doing?’  ‘I did what he said because I’m so scared of the man.  I got a carrot and I went to the lounge room and I sat down, I inserted the carrot in my vagina.’  ‘And who was in the lounge room when you put the carrot in your vagina?’  ‘My mother and [the applicant].’  ‘And how did your mother respond when she saw this happening?’  ‘She said, “What are you fucking doing, you idiot?”  I just kept doing what he said to do.
‘And what did you do when your mum said that?’  I just looked at her and I just kept doing what I was doing and then [the applicant] started laughing at me, calling me — he called me a “fucking idiot” and I cried and ran to my room, because he’d asked me to do it so I could go and that’s what I did and then he was calling me that’ and, she said, that is the way he spoke to her all the time.  Asked about [the applicant] sexually penetrating [her], she said, ‘Yes, he did’ and she said that was when she was around about 12 or 13.
I will go into that again in a moment, because later on she is asked about this incident with the carrot.  So she said, ‘So he had – he told me if I got a carrot, or zucchini, ‘cause it happened a few times um and to go down because [the complainants’ mother] wanted it too and she was unsure, type of thing.  He spoke about threesomes and things like that and that night I had to go down to the lounge room and sit on the couch and insert the vegetable up my vagina.’
‘You gave some evidence earlier about inserting a carrot in your vagina, were you talking about the same incident?’  ‘This is – like I said, like it happened so often, like there was lots of different – different times.’  ‘All right, so is this an incident where you had to insert, [is] it, what vegetable, in your vagina?’  ‘It was either a carrot or a zucchini.  It depended what was in the fridge.’  They are just examples of the way you conducted yourself with those children.  There were a number of others.
10	In turn, his Honour summarised the evidence as to the charges, other than charge 28, as follows:
Charge 1 relates to [the first complainant] and it is intentionally causing injury.  She said there was a time that she had been deprived of food and drink over an extended period of time.  ‘And what happened?’  And again, this has been paraphrased.  ‘He was punishing me for something and so I wasn’t allowed to have anything to eat or drink and I was doing spelling and I was standing in the doorway doing spelling and it was summer and I was still doing my chores, still walking to school, doing all that sort of stuff and I was really thirsty.  The first day I sorta said, “You know, Dad, can I please have a drink?” “Nah, nah.”’
‘And then obviously being a child, I started whining, you know, “I’m thirsty”, so eventually my mum’s lying in bed with him and I hear her say, “For fuck’s sake, just give her a drink. Like I’m sick of listening to the cunt whinge.”  So he got up with a bucket and he filled the bucket up with water.  We were standing in the kitchen and he’s like, “Fucking drink.”’
‘Did you?’  ‘I did.  And I drank as much as I could and then I went to walk off to go back to my spelling and as I did, I’m not sure sorta what happened, but sorta went — he sorta went to grab me.  I had the bucket as well and the water everywhere and he grabbed me by the hair and I was flying up and I landed on my tailbone and it took my breath away and I actually thought I was paralysed.  Then all of a sudden it was just sorta my mum’s come out and she’s saying, “Get up. Like, you know what’s going to happen, get the fuck up” and I couldn’t breathe, I couldn’t walk, anything.  Once I finally got up, I had to stand there and still keep doing the spelling and he just walked off and acted like nothing happened.’  She said she still had pain from her tailbone from that incident.
Charge 2 is again [the first complainant] and again, a charge of intentionally causing injury.  Again, she had been spelling and, question, ‘Then what happened?’  ‘Then I just had a little bit of an outburst and I just said, “Well I’m not doing any of my spelling” and I threw the book and it hit one of the kids in the head and the pen ...’  ‘Do you remember which one it hit?’  ‘I think it probably hit [the second complainant] in the head, um and then next thing you know, he just got up and starting punching and choking me.  I ended up with the flyscreen door in my forehead.’
‘How did that happen?’  ‘Ah, just from him – just manhandling me and I just had really, really long hair, so he used to just sort of just grab me by the hair and just throw me around.  But, yeah, I remember he choked me this day and I thought I was going to pass out and I wet myself a little bit and then he headbutted me and as I’ve sort of fallen to the ground, he’s just kneed me and just started kicking me and I had blood everywhere.’
‘And where was the blood coming from?’  ‘Ah, it was coming from my nose, but it was in my mouth as well, um and the kids were horrified and [the complainants’ mother] was sitting not far.  ‘That’s your mother?’  ‘Yeah.  And [the applicant] just walked off and then [the complainants’ mother] didn’t say anything and she just had a new carpet laid, so I just sat there and went — and spat, just spat it all on the floor, because I thought, “Well you’re not gonna — you’re not going to say anything like, you know.”‘  ‘This is blood from your mouth?’  ‘Yeah. And then she stood up and went into a fireball of rage because of her new carpet.  So she went off at him for doing it, but not because of what he did, it was because of her new — the carpet getting stained.’  ‘What injuries did you have from that incident?’  ‘Ah, I think my nose was broken from it, but I wasn’t taken to a doctor.’
Charge 4, indecent act within the presence of a child under the age of 16.  She was being asked again about the spelling and she said [she] had not done the spelling.  Tried to do things to get out of it.  ‘There was a time when I suggested something and he’s like,  “No, cunt, no, something else” and actually this might have been the day that I was wearing the lingerie’ and I do not have to go into all that detail.  ‘And he said — I don’t know if it was him or not.  I’m uncertain who suggested it, um, to insert my finger in my bum in front of everyone, so I had to bend over and do that in front of the children and my mother.’
‘So where did this happen, in the lounge room or in the hallway?  Just take us through exactly what happened.’  ‘So I was standing there doing spelling and I said, “Dad, can I please go to bed?” and he said, “No, cunt.”  I said, “Please.”  I said, “Like I’ve been” — I had permanent indents on my fingers from the pen and I said, “My fingers are hurting” and he’s like, “No” and I said, “Well what can I do to get out of it?” and he said, “I don’t know, you tell me” and then, yeah, I’m uncertain who suggested it, but yeah, he said, “All right, bend over and put your finger in your bum and I’ll let you get out of your spelling”, so I did that and I had to leave it there for a short time and I still had to do the spelling anyway.’
‘How old were you when that happened?’  ‘Probably Grade 6 or 7.’  ‘Who was in the room?’  ‘I’m certain the children were there and [the complainants’ mother] was there.’  ‘When you say you had to bend over, what did you have to — just describe what you had to do?’  ‘So I just bent over with my bum facing towards the family, put my finger in there and just stand there and just stand there until he said to take it out and then stand up and pull my pants up and keep spelling.’
The next series of charges in regard to the first respondent are 5, 6, 7 and 8, which are all part of the one incident and as I have indicated, there has been very substantial concurrency because of that.  She was asked, ‘Did the treatment of — did his treatment of you ever become sexual?’  ‘Yes.’  ‘What’s the first time you can recall him sexually abusing you?’  ‘Grade 6 or 7.’
‘All right, and what happened?’  ‘Ah, I was doing spelling and it must have been on the school holidays or something, because I was inside doing spelling and the kids weren’t there and [the complainants’ mother], ‘cause they both smoked cigarettes, [the complainants’ mother] didn’t have any cigarettes, so she went next door to get some smokes and he was being really sort of playful that morning, like it was weird, ‘cause he was never nice to me.  Like, and when she went next door, um he ended up with me on the couch with my pants off and he started — he had my legs up in the air.  He started rubbing my vagina, he started rubbing my vagina and then he started licking it and sort of touched it with his penis and I didn’t know then — back then I wasn’t allowed to do sex ed at school, obviously now I know why.  Um, I didn’t know what — what it was that was coming out of the end of his penis, I just thought he spat on [me], but it turns out that he ejaculated’ … Question: ‘Whereabouts was it he ejaculated?’  ‘On my stomach and down the side of the couch.  He proceeded to lick my vagina and I don’t know what happened, but I was very sensitive and I now know that I climaxed and then he just sort of left it at that, and I told him that Mum was coming before that, [and] he just ignored me. And then when she came past the lounge room window he then just walked into the bathroom.  He used his shirt to clean up the stuff and I just stood there doing my spelling, acting like nothing happened.  But I was real jittery and then [the complainants’ mother] walked in and sat down right where it happened.’  Back then [the first complainant] didn’t know what was going on.
She was asked later, ‘Do you know … how many fingers he — did he put his finger into your vagina at all?’  ‘Yes’. ‘How far did his finger go into your vagina?’  ‘I actually – I actually don’t know.  I just know that when he did it he put it into my mouth afterwards.  Like I felt it go in, but I wasn’t watching’.  ‘What was that first thing he did, did he put his … finger in your vagina?’  ‘He spat on me first.’  ‘And the next thing he did?’  ‘So he spat on me, then he … put his finger in me’.  ‘How long did his finger stay in your vagina?’  ‘Just a short time’.  ‘Did he move [it] at all?’  ‘Yes’.  ‘Did he move it in and out?’  ‘Yes’.  ‘[And did you] say the next thing he did …?’  ‘Then he had his penis, [and I was] just sort of pulling away a little bit’.  So, yes,  ‘He put his finger in my mouth.’  ‘Was that after he took it out of your vagina?’  ‘Yep’.  ‘Just describe what he did then?’  ‘As soon as I’d sucked on finger, [then] he was trying to put his penis in me and I was sort of backing [off] a little bit, backing away’.  ‘You said that you sucked on his finger when it was in your mouth?’  ‘Yep’.  ‘Is that something he told you [to do]?’ ‘[Well], the way he just sort of put it in there and didn’t take it out.’ …  ‘So what happens after his finger goes in your mouth?’  ‘Then he got the head of his penis and he was rubbing it on me’.  ‘When you say rubbing it on you, whereabouts?’  ‘On my vagina’.  ‘All right, did it go into your vagina?’  ‘No’.  ‘How long did it take — rub his penis on your vagina?’  ‘It was only a short time’.  ‘All right and what did he then do after that?’  ‘Then he started licking me.  Like he put my legs backwards and then started licking me, I remember.  Cause he was a smoker his saliva always just had this stale, disgusting feel when it used to dry. So he was licking me and then playing with himself as well and then it was just sort of all over’.  ‘When you say he was licking you, your vagina, did his tongue go in your vagina?’.  She said it was just licking.  Then later on, ‘What part of your vagina was he licking?’  And she said, ‘My clit’.  And she said her clit was where he had been rubbing his penis as well.  That gives rise to three charges of incest and one charge of indecent act.
Next is Charge 11.  This was a situation that happened in the shed.
‘Do you remember how was it you ended up being in the shed with him?’  ‘I was down there helping him.  Like, he wanted me to help him for something’.  ‘All right, what happened in the shed?’  ‘So he’s called me [in] to help [him].  [The complainants’ mother] used to have fairly long shower routines.  She was in the bathroom having a shower and I went down there and this is the first time it happened in the shed.  I remember because he gave me a cigarette, because I actually got caught smoking in Year 7’.  She had had a cigarette, ‘Ended up feeling violently ill until I vomited and I passed out’.  And they thought it was quite funny and then a couple of days later I’m doing … spelling and he suggested that I went down to the shed again.  So I went down there and he gave me a cigarette and [he] said, “Don’t tell your mother”.  And then says — then he said — he goes, um, “You should put your finger in your bum again”.  And I said, “No, Dad, I’m not doing that”.  And he then said, “Can I?”  I just shrugged my shoulders and then he said — you know, sort of turned me around and I bent over and I’m still holding the cigarette.  At that point in my life short term pain was so much easier to deal with than getting starved and bashed and punished for stuff that I hadn’t done.’
‘So while I couldn’t look, while I couldn’t see his face I didn’t care what happened because I knew it was going to be over’.  ‘So he’s put his finger in your anus?’  ‘Yes, he spat on it, ‘cause I remember seeing the spit fall on the concrete floor in the shed. I remember seeing his hands like moving, so he was obviously playing with himself’.  ‘Was it just the one finger?’  ‘Yes’.  ‘How long was it in for? Did he leave it in your anus?’  ‘Not very long’.  ‘Did he move it?’  ‘Yeah’.  ‘How did this incident finish?’  ‘Yes. Once he’d obviously got whatever he was getting out of it he said,  “There you go, cunt. You liked that, didn’t ya?”.  I just — I never answered him, ‘cause of course I didn’t fucking like it.  I just had to go back out and do the leaves and act like nothing happened and go to school and still try and learn shit at school’.
Next one is Charge 12 of intentionally causing injury.  Again, I do not need to go into a great deal of it.  Just essentially the same sort of circumstances, that the discipline, all that sort of thing, was still continuing.  The punishments were still continuing.
‘Did you ever – as you got older did you ever try [and stand up to the applicant] about what was happening?’  ‘Yeah’.  ‘What did you do?’  ‘I [would] try and approach it properly but he’d just tell me,  “Fuck up. Like just deal with it”, like every other kid does [chores], so you should to’.
She went on to then describe … doing other chores.  She described only being able to change and shower once a week.  At one stage she refused to pick up the leaves and then ‘He got up off the chair and he just charged at me and just belted the absolute crap out of me … the fine details I’m unsure [of] because it was … all over and done with, then I was just standing there and I was black and blue, blood was everywhere.  I had hair out, I was just jittery’.  ‘How old were you when this happened?’  ‘I would have been 16 or 17’.  ‘All right. You said you can’t remember the details, but [in as] much detail [as] you can, just tell the members of the jury what happened to you; what [the applicant] did to you?’  ‘He [just] punched me, he kicked me, threw me into the wall.  Threw me down on the concrete, spat on me, head-butted me, [choked] me, like all them sort of things’.  ‘Were you injured?’  ‘Yes’.  She said she thought her nose had been re-broken.  ‘I had bruises all over my ribs.  I remember I [had] sort of … strangle marks, [but] all over my arms and legs.  That was the final out.  He said, “Fuck off, like we don’t want you to live here anymore.  You’re nothing but a pain in the arse, fuck off”, and so I went’.
They’re the charges that relate to the [first complainant].  They were not done in isolation, that is clear from all the contextual material.  You are not being sentenced for the contextual material.  But in no way shape or form can it be said that any of that offending against … at the start, a little girl was in any way opportunistic or any such thing.  It was deliberate and calculated brutalisation of a child.
I then go onto the charges in relation to [the second complainant].  The first of those was the situation where you were in the toilet and [the second complainant] said that she … said, ‘I asked him if I could shave my legs’.  And he said, ‘What will you do for me?’  She said she could see into the toilet and she could see him sitting on the toilet.  He said, ‘What can you do for me?’  ‘What happened then?’  ‘I said, I [would] pick up the leaves properly and then he goes, “Well that’s stupid”.  And then I said I’d wash the cars properly and he said “That was stupid”.  And then he said, “What about this?”  Then he pointed to his penis and I asked what did he mean because I didn’t know anything about that type of stuff at this stage in life and he said … “Touch this and you can shave your legs”‘.  ‘So when you said he pointed to his penis?’  ‘That’s correct’.  ‘Was his penis exposed?’  ‘Yes, it was a little bit. [It was] sort of hanging in the toilet’.  [She] basically goes on to say that if she didn’t touch it she wouldn’t be able to shave her legs.  ‘And did you touch his penis?’  ‘I did’. ‘And how did you touch his penis?’  ‘I literally just poked it and he laughed and said, “Not like that”, and he showed me how to make a cylinder with my hand and he put my hand over his penis and then pushed it backwards and forwards.’  ‘And how long, how many times did he push your hand backwards and forwards over his penis?’  ‘It was a few times … Maybe two or three minutes. I moved my [hand] away after it was finished and [he] said, “[Good girl]”‘, and then she said she was able to go and shave her legs.  She said that was the first time she ever touched his penis and it happened on a number of occasions.  More than many other times.  That is a course of conduct charge as I have already indicated.  When asked how many she really could not say, that it just kept happening and kept going until she was around about 19 or so was when the offending overall stopped.  On the material before me it would seem that that form of indecent act occurred on multiple occasions, probably approaching triple figures, I would have thought.  But that is not necessarily part of the charge and it is all part and parcel of what has occurred. That gives rise to the Charges of 13 and 14, that is the exposure of the penis and the masturbation.
Charges 16.  ‘Did [the applicant] ever try and sexually penetrate you?’  ‘Yes, he did …  [I’m unsure of exactly when it was, but I remember he] called me to his room.’  [She] was maybe 12 or 13, ‘[the complainants’ mother] was in the shower’, which again seems to be a fairly common factor throughout this.  ‘You went into [his] room?’  ‘Yes … And he said, “We’re going to [try] something new”, and he told me to lay on the right side of the bed, which I did and he pulled his shorts down to his knees and he rubbed his penis on my vagina and around.’  ‘[And] when he rubbed his penis on your vagina did you have any clothing on, were you naked?’  ‘So I’m pretty sure I had a nightie on’.  ‘Did you have pants under your nightie?’  ‘I had my knickers’.  ‘So [when] he rubbed your vagina with his penis,  was it over your knickers or under your knickers?’  ‘It was under my knickers’.  ‘After he rubbed his penis on your vagina, what’s the next thing that happened?’  ‘He was then moving it up and down, then he tried to push it into my vagina and it wouldn’t go in’.  ‘Did it go in at all?’  ‘It went in past the flap area.  All I remember is it just hurt.’  ‘Did you say [that] it hurt?’  ‘Yes’.  ‘Did he try to push it into your vagina once or a number of times?’  ‘[A] number of times’.  ‘And you said that it went [in] past your flap area?’  ‘Correct’.  ‘Did it go [in] any further?’  ‘No’.  Then [she] said he stopped trying.  ‘He said [that we] had to keep it a secret or there’d be consequences and the people that I loved would get hurt’.  She was asked to repeat that, ‘[H]e said that the people I love would get hurt if I said anything’.  The threat is made to [the first complainant] as well, which I will come to in a few minutes.
Charge 18 is one of incest and again penile.  ‘Did he try and penetrate your vagina with his penis again?’  ‘Yes, it wasn’t long after that … in the lounge room …  We [had] dropped [the complainants’ mother] off to the hairdresser and I had to stay with [the applicant] because he may have had a diabetes attack or a heart attack or something and I had to make sure that he was okay without [the complainants’ mother].  We dropped [the complainants’ mother] off at [the hair salon] …  He sat down on the couch and told me to face the same way, which I did.  I had to hold onto his knees so that I wouldn’t fall When he brought me back his penis went into my vagina’.  ‘On this occasion, did it go fully in your vagina?’  ‘It did’.  ‘Did it move in and out of your vagina?’  ‘Yes, it did’.  ‘Do you know if he ejaculated?’  ‘He did’.  It was after that you took her — she said you took her shopping and bought her clothes.  She said that her vagina was very, very sore when she woke up the next morning.  Her mother had a look [at] her vagina, said that she might have thrush.  [The second complainant] was able to know that you had ejaculated inside her because in fact you told her.
Charge 19, again, of incest.  She said she went down to the shed, could not remember how old she was.  The main shed in the big corner.  ‘I started to sweep’ — she said, ‘I started to sweep and then he came in and he said he was going to teach me something new.  After that, he said ‘he was going to teach me about a blow job’.  ‘Did you know what a blow job was?’  ‘Vaguely, because the boys at school used to muck around and say that their girlfriends would give them blow jobs’.  ‘So you were a high school girl at this point?’  ‘Yeah’.  ‘So take us back to the shed.  After he said, “Teach you how to give a blow job”, what happened?’  ‘He told me to get on my knees and make a circle with my mouth.  All I remember was that it stunk like odour.  Like gagged at the smell’.  ‘Did he put his penis in your mouth?’  ‘He did.  He pulled my head over his penis, his penis went inside my mouth and he kept pulling my head backwards and forward.  And all I remember is just — I was gagging … [It] felt I had to spew’.  ‘Did he ejaculate?’ … ‘He said that he was about to ejaculate and I pulled my head away and he goes, “No, no”, and he pulled my head and put his penis back in my mouth and then he ejaculated in my mouth’.  ‘What did you do when he ejaculated in your mouth?’  ‘I just gagged, just [as] like I had to spew.  You could feel it rolling down the back of my throat’.  ‘And after this did [the applicant] say anything to you?’  ‘He said [that I] – we couldn’t say anything because no one would believe me by this point’.  ‘And after [it had] finished did you go back to the home?’  ‘No, we couldn’t leave the shed at the same time.  He left and I had to finish cleaning up the shed and then I finished and went back inside’.  ‘Was your mother [there]?’  ‘I think so’.  ‘Was that the only time you went to the shed when he [sexually abused you]’ — the answer was, ‘No’.
Charge 20 of incest is another situation where it is in the shed.  I do not have to go through the detail of that.  She was told — you told her to lie on the ground and inserted your penis into her vagina and ejaculated onto her tummy.  She said she cleaned it up with a rag.
She was going to the school social, ‘And tell the jury what happened when he collected you?’  ‘He would collect me from … the venue.  He would drive to a place [off] Howard Street’.  She was able to show a photograph of that.  ‘It was a dirt, dirt track near the swamp.  Not the swamp, near the [sewerage place] … [he] would get out of the car, he would come round to my side, push the seat back, get me to put my legs in the air whilst my back was on the seat.  And I’d have to [put] my hands underneath my bottom to tilt my pelvis up and he would insert his penis in my vagina.’  ‘Are you talking about a one- off or [are you] talking about repeated behaviour?’  ‘This is every time, like the times that I went to a social’.  She was then, as I say, she was then shown the photograph and identified the spot where it occurred and it is not a representative charge, it is the first occasion that that occurred.
Charges 26 and 27, again, incest.  That occasion she said she remembers specifically because they had been watching a pornography DVD of two women having sex on the television, and again – same situation and in these circumstances – said, ‘That was all just turned off and it was back to normal.  I remember on that occasion it was the first time I’d ever had anybody — somebody sorry — lick my vagina’.  ‘So he licked your vagina?’ ‘Yes’.  ‘Where were you when he licked your vagina?’  ‘I was lying on the couch facing the TV’.  ‘Were you dressed or naked?’  ‘I was dressed’.  ‘Did you have your undies on?’  ‘Yes’. [‘So just take us through what happened’] ‘Like … the routine of me getting toilet paper, going and waiting.  The DVD was playing and he got down and started licking around my vagina and [then] with that he also — that’s when he inserted his penis into my vagina’.  ‘So when he began to lick your vagina, were your pants still on?’  ‘I don’t recall’.  ‘When he was licking your vagina did he penetrate your vagina?’  ‘With his tongue’.  ‘His tongue went into your vagina?’  ‘Yes’.  ‘How far did it go in?’  ‘I don’t know how far it went in, it was a strange feeling’.  ‘How long was he licking your vagina?’  ‘Maybe two minutes, it wasn’t very long’ and then after that he put his penis in [her] vagina.  She said you ejaculated.
…
Charge 29 is indecent act.  ‘What about the bathroom?’  ‘[This] occasion he told me I had to wee on him’ …  ‘All right, where was he?’  ‘He told me I had to go and start to do a wee cause I couldn’t stand and wee.  He was laying with the … top of his body in the shower and once I started to wee he said, “Quick, come now”, and I remember peeing on his face and he was smiling.  I was just disgusted. I couldn’t believe I’d just done that.’  ‘Where was your mother when this occurred?’  ‘I’m not — she was — like I said, she was either — like, it happened so often, it was either she was — I don’t think she was in the lounge room at that time, but [it just], yeah’.  ‘How old were you when that occurred, when you weed on him?’  ‘Maybe 15, maybe …  That’s the only time that I ever weed on him’.
Charge 30 is another course of conduct charge, which involves penetration of [the second complainant’s] vagina with your finger and she said that that happened a lot.
She then goes through descriptions of that occurring.  She said it happened maybe twice a month, just depended and went on, effectively, up until she was around about 19.  She said it happened regularly, happened in the bedroom and sometimes other parts of the house.  Again, I do not have to go into the detail of that.
Charge 34, again, a charge of incest.  Again, a situation where mother was out of the house and by that stage your son was there and was watching TV.  [The son], effectively, supported this version of events as well, in terms of the cigarette at least.  The question of going out to the shed to have sex, so she said, ‘So I [laid] down on the floor.  It was concrete, but he had carpet over the concrete.  He inserted his penis in my vagina and we had sex.’  ‘Do you know if he ejaculated?’  ‘I can’t recall. He … it depended’.  She said you had a smoke in your mouth the whole time.
Charge 35, again, incest.  It was a situation where — it is identified specifically because [the complainants’ half-brother] came into the room.  She said, ‘[the applicant] would come and wake me up every morning at 6 o’clock, he [would] push me out of bed.  And this one time he came into my room and woke me up but his penis was erect.  I laid flat [on] my bed and he was in between my legs on his knees and had his penis in my vagina with — and we had — he had the blanket wrapped — he had the blanket wrapped around him.  Then [the complainants’ half-brother] — cause he was making [the applicant] a cup of tea, and that’s what we had to do, get his cup of tea [ready].  So [the complainants’ half-brother] was doing that then he was going out to feed the dog and clean up the dog poo and he walked and looked in’.  ‘You saw [your half-brother]?’  ‘Yes’.  ‘Did [the applicant] see [your half-brother]?’  ‘Yes’.  ‘What did [the applicant] do when he saw [your half-brother]?’  ‘He started pushing me around saying, “Get up you bitch, it’s time to get up, stop being lazy”‘.  She said she just laid there, she could not move.  She said, ‘Once [the complainants’ half-brother] had left he finished having sex and ejaculated inside me and I cleaned up … again’.
Charge 36, again, a charge of incest. This occurred when you took the truck to Myrtleford, and there was supportive evidence of this from another witness as well, and you had penile-vaginal sex in the bunk part of the truck overnight.  After you had undressed her she said that you ejaculated in her vagina.  She said that was the only time you had done that in the truck.
The last matter was one of assault, where you apparently found out about a boyfriend and you assaulted her as a result of [your] response to that.  She said, ‘He told me that I needed to stop talking to him, um, and he called me down the garage, of the … house and he grabbed me by the back of my head and he was ramming my head into the motorbike.  He was pushing me, swearing at me, saying I was a piece of shit … ’  ‘[W]here was your mother when this was happening?’  ‘She was standing there’.
11	Insofar as the incident the subject of charge 28 is concerned, counsel for the applicant drew attention to the terms in which the second complainant initially gave evidence describing the conduct in issue.
12	The second complainant, having already giving evidence of incidents of oral and vaginal penetration, answered ‘yes’ to the question ‘did he ever penetrate you in a different way to what you’ve already described?’.  She then gave evidence that the applicant ‘tried to insert his penis into my … bottom’.  She then described the incident:
All right and can you recall the first time that that happened?---He – he called me into his room and he said that we were going to try something new and he had Vaseline with him and he – he said that he was going to put his penis in my arse.  That’s what he said.
How old would you have been at this time?---I’m unsure of how old I was.  I was in my teenage years.
Were you still at school?---Yes.
How old were you when you finished school?---High school?
Yes?---Sixteen, I think.
Do you remember what year of school you were in?---Could have been Year 8 or 9.
So how old were you in Year 8 or 9?---I would have been 14 maybe.
You said he had Vaseline?---He did.
What did he do with the Vaseline?---He put the Vaseline – like he put his finger in the Vaseline and he rubbed it around my bum hole.
Were you naked at this point or did you have something on?---I think I – normally I only ever used to wear a nightie to bed normally.
So you had no pants under your nightie?---Yeah, just knickers normally.
How did he position you when he rubbed the Vaseline on your bum?---So I was on my knees on the bed.  Then he – he tried to put it in my bum and I remember it hurting and I pulled away and I said, ‘No, no’.
What did he do when you said, ‘No’?---He – it didn’t – it didn’t end up happening.  I just got up and I – I ran off to the lounge room.
Was there ever an occasion when he did penetrate your anus with his penis?---No – no.
13	After other acts were described, the second complainant gave the following further evidence:
I’m sorry to do this to you … but when you were giving some answers about when he tried to penetrate your anus, did he put his penis in your anus at all?---So all I remember is that it was stinging and hurting and it felt like it was not all the way in.  But all I remember is that it hurt so much, and that’s why I jumped away and I said, ‘No more’.
So you felt a pain sensation?---Yeah.
14	While the initial evidence demonstrated an intent to penetrate the second complainant, resulting in an attempt which caused pain, it also included an apparent denial that actual penetration occurred.  But, read in context with her further evidence, it is clear that when the second complainant denied there had been ‘penetration’ in her initial evidence, she was denying that full penetration, rather than any penetration, occurred.
15	Ultimately, the evidence as a whole showed:
•	that the applicant expressed the intention to fully penetrate the second complainant, prepared her with Vaseline and positioned her for this purpose;
•	that the second complainant experienced substantial pain when the applicant attempted to fully penetrate her;  and
•	that ‘it felt like it was not all the way in’.
16	This evidence also fell to be assessed in the context of the relationship evidence to which we have referred.
17	Prior to final address, the prosecutor raised the question of whether an alternative charge of attempted penetration should be left to the jury.  Defence counsel indicated that he would not argue that, if the second complainant’s evidence was accepted, penetration had not been established.  He further expressly agreed that, if the second complainant’s evidence was accepted, charge 28 would be made out and, accordingly, it was unnecessary to put the alternative attempt charge to the jury.  The defence run at trial was a global denial of the offending and the course adopted by defence counsel may have reflected a forensic choice not to dwell upon the detailed evidence of particular offending.
18	Nonetheless it is apparent from the terms of the discussion between the trial judge and defence counsel that, having had the advantage of hearing the second complainant give evidence, they both understood the ultimate effect of her evidence to be that some penetration had occurred.
HIS HONOUR:	But what I’m simply saying is that if there’s — if it’s accepted, that if her evidence is accepted, then that charge is made out.
COUNSEL:		Yes.
HIS HONOUR:	I think it has to.  I personally think it has to be, but –––  
COUNSEL:		Yes, I agree.
HIS HONOUR:	I don’t need to put the attempt.
COUNSEL:		No.
HIS HONOUR:	Are you okay with that?
COUNSEL:		Yes.
19	As the judge correctly directed the jury, slight penetration was sufficient to constitute the offence.  No exception was taken to his Honour’s charge.
20	There is nothing in this ground.  Each case must turn on its own evidence.  In our view, when regard is had to the full terms of the second complainant’s evidence, it was plainly open to the jury to form the view shared by the trial judge and defence counsel.  That is, having accepted the second complainant’s evidence, the jury were entitled to be satisfied that partial penetration occurred in the present case.
21	Leave to appeal against conviction must be refused.
APPEAL AGAINST SENTENCE
22	The sole ground of appeal against sentence, manifest excess, is in the following terms:
The individual sentences, orders for cumulation, the total effective sentence and the non-parole period were all manifestly excessive, in that insufficient weight was given to:
a) The age of the applicant and lack of relevant prior history.
b) Current sentencing practices.
c) The principle of totality.
23	In our opinion, for the reasons set out below, the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period, although stern, were open to the sentencing judge given the extremely serious nature of the protracted offending.
The plea
Prosecution submissions
24	The prosecution tendered an evidence summary, an outline of prosecution plea submissions, and victim impact statements.
25	It was submitted that the offending was amongst the most serious of these type of cases and was aggravated by violence, depravity and torture.
26	It was submitted that there were some prior convictions for violence that needed to be taken into account, including an unlawful assault against a de facto partner in 1994.
Defence submissions
27	It was conceded that significant factors in mitigation were not present.  The applicant had run his trial, and a guilty plea or indications of remorse were not present.  The applicant maintained his innocence at all times.
28	It was acknowledged that the offending was serious, had aggravating factors, and that a heavy sentence was required.  It was submitted that the judge would have to balance the necessity for cumulation between some of the charges to arrive at a total sentence reflective of the seriousness of the offence, and abide by principles of totality.
29	The applicant was aged 58 years, and was at Ravenhall in protective custody.  He was unsure if he would ultimately be imprisoned at Ararat, but counsel presumed that he would.
30	The applicant’s personal history was relatively unremarkable.  His mother was 92 years old and was quite ill, which was the cause of some concern to him.  His father was strict, with some resort to corporal punishment, but nothing that the applicant thought caused him any long-lasting effect, or anything that was not lawful physical chastisement.  The applicant’s family moved around a lot when he was younger because of his father’s work, which was unsettling to a degree, and impinged upon his ability to be consistently in education.  His father worked, as did the applicant later on, as a truck driver.  His father passed away in 2004.  The applicant left school aged 14 years and found work as a truck driver.  He maintained that work until his early 40s, when physical ailments overtook him and made it more difficult to work.  The applicant had been on the disability support pension for a long period of time, and the complainants’ mother was officially his carer.  The applicant has four children from a previous relationship.  His relationship with the complainants’ mother endures to this day and she remains supportive of him.
31	The applicant has physical ailments — ventricular tachycardia, sleep apnoea, asthma, and type 2 diabetes.  It was submitted that this would make his time in custody somewhat harder.
32	The applicant was getting on in years and in poor health.  By the time that he is released, his potential for reoffending would be very limited.
Reasons for sentence
33	After providing relevant background and context, as referred to above, the judge set out the uncharged acts, then dealt with each of the charges, and concluded as follows:
That is a summary, if it can be called that, of the offending.  Words fail me, in terms of trying to categorise it.  It is extremely serious offending.  It is, in anybody’s view of it, vile, depraved, went on for a long period of time, in a lot of dreadful circumstances. 
The offending is in fact aggravated by the age of the victims, that is [the first complainant] was 10 up to about 16 or 17, 18; [the second complainant] was 12 to round about the same sort of an age.  The penile-vaginal sex with both was unprotected.  Gave rise to the risk of infection, the risk of pregnancy.  It is a situation where the occasion of having [the second complainant] urinate on your face is simply almost unbelievable.
The offending occurred regularly, as I have indicated.  There was significant violence, there was punching, choking, headbutting, kicking and spitting and your threatened violence if they were ever to disclose this.  [The second complainant] was told, as I have already indicated, the sexual offending against her was to be a secret and there would be consequences if anyone found out and people she loved would be hurt.  It is also done in the circumstances with the sheer domination of those children.
[The first complainant], in her evidence … was asked [whether] there had been physical abuse.  Question: ‘Why didn’t you talk to your father about that?’ Answer:  ‘Because [the applicant] had always told me that he would kill or hurt anyone, or myself, if I was to tell anyone about any of it’.  So it is extremely serious and I think I can put no higher categorisation of it on that.
34	The judge then took the course of reading the victim impact statements in full ‘just so that everybody has a very clear idea of the damage that you have done’.
35	The judge then referred to and specifically took into account the following matters:
(a)	the delay between the cessation of the offending and the reporting of the offending;
(b)	the emotional damage to the step-daughters and the damage caused by ‘what you put them through afterwards’.  Both complainants were cross-examined at a committal and at trial and called liars;  and
(c)	the fact that the applicant is ‘an ill man’.  Reference was made to his ailments and his Honour noted that ‘those illnesses will make your time in custody more difficult’.  His Honour then said:
And I do take into account that as it stands at the moment you are a protection prisoner, and I take into account that the likelihood will be that you will remain a protection prisoner.  As I said though, and I think your counsel concedes, that is of far less weight if in fact you do go to Ararat, but I certainly do in these circumstances make allowances for it.
36	Next, the judge referred to the applicant’s background, childhood, family life, education and present circumstances and said:
Not much can be said, as your counsel very sensibly indicated during the course of the plea.  Very little can be said in these circumstances.  Your conduct is, as obviously as it has been described, vile and in your own description, evil.
37	In relation to totality, the judge said:
I take into account the concept of totality, as much as I can.  I will indicate that a number of the sentences — I have modified the actual sentence by reason of totality.  In these circumstances the Act provides for me to cumulate the sentences unless I otherwise order.  In this situation that would result in an extraordinary long sentence.  Accordingly, I have given very limited cumulation.  There is cumulation between the two of the girls and I feel uncomfortable with the lack of the sentence, if I can put it that way, as far as it relates to [the first complainant].  But that cumulation is very limited indeed and it feels to me that it should be greater cumulation than that, but principles of totality and the necessity to avoid, if possible, a crushing sentence make it even more difficult.
…
You are now 59, there is obviously in these situation, there is always a risk of an accused, who gets a very significant sentence, dying in gaol.  But there is not much I can do about that and there is certainly no matters put before me which would indicate that you have any form of life-threatening prognosis, certainly at the present time.
38	In relation to remorse, the judge said:
There is absolutely no remorse.  That does not aggravate the situation, but it simply means that again, you do not have the benefit of that in mitigation and clearly, as it is displayed by the victim impact statements, the fact that you ran a trial, you do not get the utilitarian benefit of a plea of guilty having been made. 
Indeed, insofar as remorse is concerned, I simply point out what the evidence of one of your sons, Keith, was when you told him about what had occurred, he said he was:
‘I remember one day, Dad and Michelle were having a smoke in the garage.  They looked worried as they were talking.  I asked them if something was wrong and Dad told me that [the second complainant] was filing a sexual assault claim against him.  I said to him, ‘Really?’ and Dad then said, ‘If she goes through with it, I will, Keith, kill her and her spastic fuck husband.’  I didn’t know what to say.’
That is about the level of remorse involved in all this and it is a very significant example of it.  It is also a situation where even though you deny ever having said these things and [ever] having made any admissions, [ever] having done the offending, that when [the first complainant], at the age of around about 12 asked you why you had done these things to her, you said:
‘I’m a rat and I’m an evil cunt and I’m just jealous that you’re not mine.’
She was not to know at that stage that it was going to continue against both her and her sister for another decade.
When [the second complainant] contacted you after these charges had been laid, or around about that time at least, and asked you why you had done it to her, you said:
‘Well, you wanted it too.  You were my girl.’
I think that pretty amply displays what the background of this is, in terms of your remorse, or lack thereof.
39	In relation to prior offending, the judge said:
You do not have any prior convictions for sexual offending.  You do have priors for drugs, which is of no real significance to me.  You do have a prior where you had served 21 days’ imprisonment for assault back in 1994.  I am only aware that it involved some form of domestic violence and clearly it was not a part of this actual relationship.  It seems that it was the one before with a woman with whom you had four children.  I take that no further, other than to point out that your relationship with the mother of these children commenced not long after that had occurred. 
The parties’ submissions
40	Although the applicant recognised and acknowledged the seriousness of the offending and that the ground of manifest excess was a stringent requirement to satisfy, it was submitted that it was made out, essentially for three reasons:  first, the personal circumstances of the applicant, and, in particular, his age, his ill-health, and lack of relevant prior history;  secondly, current sentencing practices;  and thirdly, the principle of totality.
Age, ill-health and lack of relevant prior history
41	The applicant submitted that insufficient weight was given to his age and lack of relevant criminal history.  He was 58 at the time of sentence and would be 85 years old at the expiration of his sentence.
42	It was submitted further that the applicant suffered from a variety of ailments and illnesses, the effect of which was not adequately reflected in the overall sentence.
43	The respondent submitted that it was clear from the sentencing remarks that his Honour was mindful of all of these factors and took them into account.
Current sentencing practices
44	The applicant submitted that, although not a determinative factor, each incest charge was outside the range suggested by current sentencing practices.  It was submitted that the average length of sentences for incest was between 5–7 years.  The sentencing judge imposed a term of 10 years for each of 14 incest charges and 12 years each in respect of charge 19 and charge 30, which was the base sentence, a course of conduct charge.
45	The applicant referred to Harmon v The Queen, where the sentences for each individual incest charge were between 4–7 years with the highest individual charge being 7 years for a course of conduct charge.
46	The respondent submitted that current sentencing practice was merely one factor to be considered in the sentencing process.  It was submitted and emphasised that the current maximum sentence was 25 years, and that sentencing for such offences against young children required effect to be given to specific and general deterrence, just punishment and denunciation by the courts.  It was submitted that the serious sexual and violent offending ‘must be given its due weight in the instinctive synthesis’.
Totality
47	Finally, it was submitted by the applicant that insufficient weight was given to totality.  Accepting that the applicant was required to be sentenced as a serious sexual offender on the incest charges, the applicant submitted that the sentencing judge, having decided not to impose full cumulation, nevertheless added by way of cumulation a further 6 years and 7 months to the base sentence of 12 years in respect of charge 30.  Taken together with the sentences on the other charges, this resulted in a  total of 25 years.  It was submitted that this was manifestly excessive.
48	The respondent submitted that the presumption of cumulation ‘is indicative of a different sentencing regime to be applied to particular offending so as to specifically denounce such conduct’.  It was submitted that the moderation of totality was required to be consistent with this underlying provision.  It was submitted further that each charge was required to be (and was adequately) separately considered.  The sentence and order for cumulation, in respect of each offence against each victim, adequately reflected the gravity of the offending.
49	Finally, it was submitted by the respondent that the sentence reflected the total criminality of the offending, which was considerable.  Although substantial, it was submitted that the sentence was not ‘wholly outside the range of sentencing options available’.
Analysis
50	As the authorities make clear, the ground of manifest excess is very difficult to establish.  In Clarkson v The Queen, the Court of Appeal said:
As this Court has repeatedly emphasised, the ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.  That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender.  This is a stringent requirement, difficult to satisfy.  It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance.  Sentencing is not the task of appellate courts, except where clear error is shown.
51	The ultimate question is whether the sentences and the total effective sentence were reasonably open to the sentencing judge.  As the High Court said in Director of Public Prosecutions v Dalgliesh (a pseudonym) (‘Dalgleish’):
While the instinctive synthesis must be informed by each of the factors listed in s 5(2), the extent to which each factor bears upon the case is inevitably a matter for judgment.  The process of instinctive synthesis thus allows a measure of discretion to the sentencing judge.  The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances.  Nevertheless, it is well understood that a sentence may be so clearly unjust, because it is either manifestly inadequate or manifestly excessive, that it may be inferred that the sentencing discretion has miscarried.
52	In all of the particular and devastating circumstances of this case, the applicant has failed to establish that the individual sentences and the total effective sentence were wholly outside the range of sentencing options available to the sentencing judge.
Age, ill-health and lack of relevant prior history
53	It is clear from the sentencing remarks that his Honour gave careful consideration to these matters and took them into account.
54	Whether, in the instinctive synthesis, the sentencing judge accorded too little weight to these suggested factors in mitigation can only be determined by examining the sentences ultimately imposed in light of all relevant factors.  For the reasons that follow, no such inference can be drawn in the present case. 
Current sentencing practices
55	As properly accepted by the applicant, current sentencing practice is ‘only one factor’ to be taken into account by the sentencing judge and ‘is not said to be the controlling factor’.  As this Court said in R v AB [No 2]:
No single matter specified in s 5 is ‘fundamental’ to the fixing of the sentence.  The imperative that the sentencing court ‘have regard to’ the enumerated matters requires the judge to consider each of the matters and determine whether any or any particular weight should be given to them.  The judge is required only to have regard to the factors so far as they are known to him or her.  The provision does not require that the matter in question have an actual influence on the ultimate result.  Each matter may inform the ‘instinctive synthesis’ but none is determinative;  the emphasis each receives will vary from case to case.
56	In Till v The Queen, this Court said:
Current sentencing practice, while a useful tool, is not determinative in the task of ascertaining whether a sentence falls wholly outside the range of sentences that would be appropriate for an individual offender.  While a sentencing judge must have regard to current sentencing practice, pursuant to s 5(2)(b) of the Sentencing Act 1991, it remains only one factor to be taken into account and not the controlling factor.  It reflects the importance of consistency in sentencing; however, that consistency is not a matter of numerical equivalence but rather of consistency of the application of legal principle.
57	The sentencing judge described the offending in this case in the following terms:
(a)	‘Words fail me, in terms of trying to categorise it.  It is extremely serious offending.  It is, in anybody’s view of it, vile, depraved, went on for a long period of time, in a lot of dreadful circumstances.’
(b)	‘The offending is in fact aggravated by the age of the victims … The penile-vaginal sex with both was unprotected.  Gave rise to the risk of infection, the risk of pregnancy.  It is a situation where the occasion of having [the second complainant] urinate on your face is simply almost unbelievable.’
(c)	‘The offending occurred regularly, as I have indicated.  There was significant violence, there was punching, choking, headbutting, kicking and spitting and your threatened violence if they were ever to disclose this.  [The second complainant] was told, as I have already indicated, the sexual offending against her was to be a secret and there would be consequences if anyone found out and people she loved would be hurt.  It is also done in the circumstances with the sheer domination of those children.’
(d)	A ‘reign of terror that you exercised over these two girls.’
(e)	‘As I have indicated, I am just simply going to say this is extremely serious and deserving of an extremely serious sentence.’
(f)	‘Your conduct is, as obviously as it has been described, vile and in your own description, evil.’
58	The vile conduct and circumstances relating to each charge was set out in some detail by the sentencing judge at paragraphs 35 to 67 of the sentencing remarks, as set out above.  It is an appalling chronicle of extreme sexual abuse characterised by violence, depravity and torture.  In relation to the gravity of the offending, as described above, the following features should be noted and emphasised:
(a)	the offending commenced when both victims were approximately 12 years old;
(b)	the offending involved penile, digital and lingual penetration of the vagina, penile and digital penetration of the anus, penile penetration of the mouth;
(c)	there were instances of ejaculation in the vagina and mouth and on the stomach;
(d)	the offending involved the risk of infection and pregnancy;
(e)	there were threats to harm loved ones to ensure secrecy;
(f)	there was manipulation into acquiescence by rewards;
(g)	the duration of offending extended over approximately a 6–7 year period;
(h)	some offences involved sexual conduct in the presence of other family members;
(i)	the offences of violence were committed against children, who were physically vulnerable to the applicant;  and
(j)	the victims of each offence were in the applicant’s care and trust.
59	The sentences must reflect the gravity of the offending, particularly offending against children which involves an ‘egregious breach of trust and appalling consequences for victims’.  The victim impact statements, set out in full by the judge, disclose the extent of the damage to two innocent young girls in the ‘care’ of the applicant.  It is hard to imagine a worse case of breach of trust.
60	In R v Sposito, Marks J (with whom Hampel and McDonald JJ agreed) said:
A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.  The offence of incest is particularly erosive of human relations and casts doubt upon the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.
61	In Ryan v The Queen, Kirby J said:
Courts must uphold the law which treats sexual offences against children and young persons as extremely serious crimes, particularly where (as is often the case) such offences involve breaches of trust and responsibility on the part of those who had such young persons in their care.
62	In Director of Public Prosecutions v Short, this Court observed:
Those who are minded to engage in such behaviour and exercise either their physical power or that arising from their dominant relationship position over vulnerable persons must anticipate the imposition of substantial terms of imprisonment.  The Courts, when dealing with such cases, must have regard to the vindication of the community’s social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens.
63	And in Director of Public Prosecutions v Dalgliesh (a pseudonym), this Court said:
community values have an important role to play in assessments of the objective gravity of a particular offence.  Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes.  The very high maximum penalty underlines the seriousness with which the offence is regarded.
64	It follows that the sentences and the total effective sentence must reflect society’s condemnation and rejection of such behaviour.  As referred to by the sentencing judge, the values of society must be vindicated through general and specific deterrence.
65	As the applicant’s own counsel conceded at the plea hearing, there is not a great deal to be said by way of mitigation.  The applicant displayed a striking absence of remorse, verging on truculent righteousness.  He was not able to draw on the principles in Verdins.  He had no similar prior convictions, but that is hardly significant given the scale of the offending which this case involves;  it amounts in any event to no more than the absence of an aggravating factor.  His age and health, while relevant sentencing considerations, were hardly matters of enormous weight.  Of course, he did not have the considerable benefit a guilty plea would have carried.
66	In relation to each of the incest charges it is relevant to note and emphasise that Parliament has determined that the maximum sentence is 25 years’ imprisonment.  This penalty is the ‘highest in the criminal calendar, short of life imprisonment’.  In the second reading speech for the Bill which implemented the increase in the maximum penalty for incest from 20 years to 25 years in 1997, it was said that:
The government believes that sexual crimes against children are extremely serious and when they occur have the potential to ruin young lives.  This view has been repeatedly expressed by members of the public, victims’ groups and other specialist bodies, and is now being acted upon.
67	In all of the circumstances, as we have endeavoured to show, the gravity of the offending was at the high end.  The lives of two young girls were shattered.
68	In 2016, this Court handed down its decision in Director of Public Prosecutions v Dalgliesh (a pseudonym).  The respondent in that matter had been convicted on a plea of guilty of one act of incest (charge 1) and one act of sexual penetration of child under 16 (charge 4) against A and one act of incest (charge 2) and one act of sexual penetration of child under 16 (charge 3) against B.  A and B were sisters and were the respondent’s step-daughters.  A was aged between 9 and 13 and B was aged between 15 and 16 at the time of the respective offences.  B also had a mild intellectual disability.  A fell pregnant as a result of the offending constituting charge 1.  The respondent was sentenced in the County Court to 3 years and 6 months’ imprisonment on charge 1, 3 years’ imprisonment on charge 2, 18 months’ imprisonment on charge 3, and 3 years and 6 months’ imprisonment on charge 4.  The Director appealed on the ground that the sentence on charge 1 was manifestly inadequate.  
69	In reaching its decision, this Court considered 12 cases of incest involving pregnancy, in which the range of sentences extended from 4–7 years’ imprisonment.  The Court made particular reference to Director of Public Prosecutions v BGJ (‘BSJ’) and RSJ v The Queen (‘RSJ’), which were said to be ‘worst category’ offending.
70	In the 2007 case of BGJ, the offender pleaded guilty to one charge of incest against his daughter and one charge of indecent assault.  The offences were committed while he was on parole for previous incest offences against all three of his daughters.  As a result of the latter incest offending, his daughter fell pregnant and gave birth to a severely disabled daughter, who, 20 years later, became the victim of the indecent assault.  In 2007, the Court allowed the Director’s appeal and resentenced the offender to 6 years’ imprisonment on the incest charge.
71	In the 2012 case of RSJ, the appellant had sexually abused his daughter over 28 years.  Over the period of the abuse the complainant had borne four children to her father, one of whom died and two of whom were born with intellectual difficulties.  The appellant pleaded guilty to 10 charges of incest.  He was sentenced to a total effective sentence of 22 years and 5 months’ imprisonment which was upheld on appeal.  The base sentence for one of the charges of incest (representative count) was 6 years.
72	After considering the 12 cases, the Court said: 
Our review of sentencing for incest enables us to make a number of general observations about the current state of sentencing.  Most sentences for incest with a dependent child under the age of 18 are around three years and six months or four years’ imprisonment.  Slightly higher sentences are imposed if the charge is a representative one involving high levels of repetition or victim impact, or if it involves other circumstances of aggravation, such as ejaculation, pregnancy, threats or overt violence.  The highest recorded sentence in such circumstances is six years on a guilty plea and seven years following a trial.  There is little evidence of any real differential where the victim is very young.
In our view, current sentencing for incest reveals error in principle.  The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender.  Sentences for incest offences of mid-range seriousness must be adjusted upwards.  That is a task for sentencing judges and, on appeal, for this Court.  The criminal justice system can be — and should be — self-correcting.
Incest is a crime of violence and must be so regarded.  General and specific deterrence and denunciation must be given their proper emphasis.  The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus.  Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.
73	The Court ultimately dismissed the appeal on the basis that the Director was unable to establish that the sentences imposed were outside the range of sentences reasonably open to the sentencing judge based upon existing sentencing standards.  The Court held that, but for the constraints of current sentencing, it would have had ‘no hesitation’ in concluding that the sentence imposed was manifestly inadequate.
74	An appeal was allowed by the High Court and the matter was sent back to this Court for resentencing.  In its reasons for decision the plurality of the High Court said the following:
The Court of Appeal was correct to conclude that current sentencing practices did not reflect the objective gravity of the offending.  The Court of Appeal’s acceptance that the range so indicated must apply in the present case was not warranted by the need for reasonable consistency in the administration of criminal justice.  That is because the range was seen to reflect a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence, and the moral culpability of the offender.  The view of the Court of Appeal that this amounted to an error of principle was clearly correct.
75	The Court of Appeal resentenced the applicant to 7 years and 6 months’ imprisonment on charge 1.  In Dalgliesh there were certain aggravating features, in particular the pregnancy and fact that the offender stood by while his step-daughter lied to her mother about who impregnated her, resulting in the family having to be uprooted.  While there was no pregnancy involved in the case before us, there was a serious risk of pregnancy and numerous other aggravating features which we have identified and emphasised.  Further, and importantly, in Dalgliesh, the offender had the benefit of a reduction of his sentence because of his guilty plea.
76	In Grantley (a pseudonym) v The Queen, this Court dismissed an appeal against a total effective sentence of 9 years’ imprisonment with a non-parole period of 7 years for one representative charge of incest, one charge of incest and one charge of an indecent act with a child under the age of 16.  The offending was characterised as ‘mid-range’, the offender had no relevant criminal record, pleaded guilty at the earliest opportunity and was said to be genuinely remorseful and empathetic.  The base sentence for the representative charge of incest was 6 years and 6 months’ imprisonment.  The Court observed that in the two years following Dalgliesh there had been a ‘dramatic change in the sentencing parameters for incest offences’ and held that the sentences were:
wholly consistent with what has been said by this Court and the High Court about the need for an increase in sentences for mid-range incest offences, in order to reflect the objective gravity of the offence and the moral culpability of the offender.
77	In the recent case of Director of Public Prosecutions v Polat (a pseudonym) (‘Polat’), a sentence of 6 years’ imprisonment was imposed on each of four charges of incest in relation to the respondent’s step-daughter, following a guilty plea.  Although the Director’s challenge related only to the orders for cumulation, the Court clearly regarded the sentence as too low.  The Court said:
In view of the Director’s strong submissions in this Court, and before the judge, about this being ‘extremely serious offending’, the acceptance of the individual incest sentences as being within range may be thought to be somewhat surprising.  This is particularly so given the High Court’s strong affirmation in Director of Public Prosecutions v Dalgliesh (a pseudonym) of this Court’s conclusion that current sentencing practices for incest did not reflect the objective gravity of this kind of offending or the moral culpability of the offender.
78	In the circumstances we consider that the individual sentences of 10 years’ imprisonment for most of the charges of incest were within the range applicable to high-range offending following Dalgliesh and reasonably open to the sentencing judge, following a fully contested trial.
79	Further, we consider that the 12 year sentences on each of charge 19 and charge 30 were also entirely open to the sentencing judge.
80	Charge 30 was a course of conduct charge involving digital vaginal penetration about twice a month for several years concluding when the second complainant was about 19.  The objective gravity of this charge and the moral culpability of the applicant is at the very high end.  The offending was continuous and unremitting.
81	A sentence of 12 years’ imprisonment was well open to the sentencing judge, taking all relevant sentencing considerations into account.  We do not think that the sentences imposed in other cases, to which we have referred above, suggest otherwise — rather to the contrary.  We are confirmed in that view by the sentence of 15 years, after a guilty plea, imposed by this Court on an incest course of conduct charge in Director of Public Prosecutions v Tullipan (a pseudonym), decided after argument was heard in the present case.
82	Charge 19 was a charge of incest in which the applicant forcibly held the second complainant’s head while he put his penis into her mouth and ejaculated.  The objective gravity of this charge and the moral culpability of the applicant is again very high and a sentence of 12 years’ imprisonment with cumulation of 18 months was open to the judge.
83	Finally, each of the 10 year sentences in respect of the incest charges comprising charges 5, 7, 8, 11, 17, 18, 20, 25, 26, 27, 28, 34, 35 and 36 were entirely open to the sentencing judge despite the different, but equally serious, nature of the offending.  The objective gravity of the charges and the moral culpability of the applicant is at the very high end and a sentence in each case of 10 years, with different periods of meaningful cumulation as endorsed by Polat, was open to the judge.  We now turn to cumulation and totality.
Totality
84	As noted by the applicant and in relation to certain identified incest charges and a charge of committing an indecent act with a child under 16, a further 6 years and 7 months’ imprisonment was added by way of cumulation.  In assessing each order for cumulation it is important to note three matters:  first, the need to take each separate act of criminality into account;  secondly, the need to consider that the offending was in relation to two individual girls;  and thirdly, since the applicant fell to be sentenced as a serious offender, the requirement in s 6E of the Sentencing Act 1991 for full cumulation unless otherwise ordered.  The sentencing judge did, mindful of totality, otherwise order.
85	In respect of charge 26, there was no order for cumulation.  In respect of the incest charges comprising charges 7 and 8 the order for cumulation was 3 months.  In respect of charges 11, 17, 18, 20, and charges 34–36 the order for cumulation was 6 months.  In respect of charges 25 and 27, the order for cumulation was 9 months.  In respect of charges 5 and 28, the order for cumulation was 12 months.  In respect of charge 19, the order for cumulation was 18 months.
86	The orders for cumulation in respect of the incest charges comprising variously 3, 6, 9, 12 and 18 months give proper effect to the three matters referred to in paragraph 84 above, and were reasonably open to the sentencing judge, notwithstanding that they added 9 years to the total effective sentence. 
87	In Polat, the Court regarded the orders for cumulation of 9 months on each of the incest charges comprising charges 2, 3 and 4 as manifestly inadequate.  The sentence in relation to the incest charge comprising charge 1, of 6 years, was the base sentence.  The Court said:
According to the Director’s submission, the cumulation of only 9 months of each of the sentences on charges 2, 3 and 4 was wholly inadequate to reflect the separate criminality involved in each offence.  The Director pointed out that, although TP was sentenced as a serious sexual offender on charges 3, 4 and 5, the cumulation ordered on charges 3 and 4 was the same as that on charge 2.  This showed, it was said, that the judge had failed to give effect to the different requirements applicable to the sentencing of a serious sexual offender.
For the reasons which follow, we would allow the appeal.  In our view, it was not reasonably open to her Honour to make the orders for cumulation which she did.  This was extremely serious offending and those orders failed to recognise both the separate criminality of each offence, and TP’s increased culpability on each successive occasion of offending against his stepdaughter.  Moreover, the manifestly inadequate orders for cumulation led to a manifestly inadequate total effective sentence and non-parole period.
88	In the present case, the individual sentences for each charge of incest, and the orders for cumulation, carried the weight required to reflect the gravity of each separate offence against each victim and the total very considerable criminality of the offending.
89	There was no challenge to the individual sentences and cumulation for the non-incest charges.  These charges amounted to a cumulation of 48 months’ imprisonment.
90	As stated above, in all of the particular and devastating circumstances of this case, and in the absence of any significant factors in mitigation, the applicant has failed to establish that the individual sentences and the total effective sentence were wholly outside the range of sentencing options available to the sentencing judge.
91	For the reasons given above, we grant leave to appeal against sentence but dismiss the appeal.