Whether a lesser offence is necessarily included in the offence charged under s 421(2) of the Crimes Act 1958 (Vic) is determined solely by the terms of the presentment, not by evidence or concessions at trial. Incest sentences at the higher end of the range are reserved for cases with aggravating features such as sustained offending, very young victims, violence, threats, and refusal to desist; cases lacking such features must be sentenced at a lower level to maintain proportionality. The methodology of sentencing separately on each presentment and then cumulating is a proper approach, subject to the totality principle.
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