Adrian Hassall v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0076

ADRIAN HASSALL	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2024
DATE OF JUDGMENT:	16 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 163
JUDGMENT APPEALED FROM:	DPP v Hassall [2024] VCC 331

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CRIMINAL LAW – Sentence – Appeal – Contravention of Community Corrections Order imposed for aggravated burglary, intentionally destroying property, assaulting police on duty, and theft – Aggregate sentence of 2 years and 10 months – Whether sentencing judge erred in imposing aggregate sentence – Whether judge erred in ordering sentence wholly cumulative on current sentence being served by applicant – Appeal allowed – Applicant resentenced.

Sentencing Act 1991 (Vic), ss 9(1), 16(1) – DPP v Frewstal Pty Ltd (2015) 47 VR 660; Fitzpatrick v The Queen [2016] VSCA 63; DPP v Rivette [2017] VSCA 150; Cocakar v The Queen [2019] VSCA 178; R v Mantini [1998] 3 VR 340 considered.

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Counsel
Applicant:		Mr D Hannan and Mr J Allen
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

The applicant was charged, on indictment, with one charge each of aggravated burglary, intentionally destroying property, assaulting police on duty, and theft. He pleaded guilty to those charges at a committal mention on 30 August 2018. On 7 April 2020, he was sentenced, by Judge Ryan of the County Court, to an aggregate term of imprisonment of 528 days, and a Community Corrections Order (‘CCO’) of 3 years’ duration.
On 19 March 2024, the applicant pleaded guilty, before Judge Tinney of the County Court, to the offence of contravention of the CCO. The breach was particularised as both a failure to comply with the conditions of the CCO, and a breach by further offending.
On 19 March 2024, Judge Tinney, after hearing a plea on behalf of the applicant, re-sentenced the applicant to a total effective sentence of 2 years and 10 months’ imprisonment, with a non-parole period of 1 year and 8 months. That sentence was constituted as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment J10777517
1	Aggravated Burglary – Offensive Weapon (contrary to s 77 of the Crimes Act 1958)	25 years’ imprisonment	2 years 10 months’ imprisonment (aggregate)	Base
2	Intentionally Destroy Property (contrary to s 197(1) of the Crimes Act 1958)	10 years’ imprisonment
3	Assault Police on Duty (contrary to s 31(1)(b) of the Crimes Act 1958)	5 years’ imprisonment
4	Theft (contrary to s 74(1) of the Crimes Act 1958)	10 years’ imprisonment	7 days’ imprisonment	-
5	Contravene Community Correction Order (contrary to s 83AD(1) of the Sentencing Act 1991)	3 months’ imprisonment	14 days’ imprisonment	-
Total Effective Sentence:		2 years 10 months’ imprisonment
Non-Parole Period:		1 year 8 months
*Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		515 days
Section 6AAA Statement:		28 days’ imprisonment in respect of charge 5, a portion of which would have been served cumulatively upon the base sentence.[1]
Other Relevant Orders:		Direct that the sentence imposed is to be served cumulatively upon the sentence presently being served (imposed at the Horsham Magistrates’ Court on 20 December 2023).

[1]Judge Tinney declined to make a fresh s 6AAA declaration in respect of the resentencing: DPP v Hassall [2024] VCC 331, [52] (‘2024 Reasons’).

By notice dated 23 April 2024, the applicant seeks leave to appeal against sentence on three grounds, namely:
Ground One:
The sentencing judge erred by imposing an aggregate sentence.
Ground Two
The aggregate sentence and non-parole period are manifestly excessive.
PARTICULARS
(a)Guilty plea;
(b)Full admissions to investigators;
(c)Poor mental health prior to, and during, the offending;
(d)Acceptance by the sentencing judge that multiple limbs of Verdins had application;
(e)Relatively young at the time of the offence;
(f)Endured a more onerous term of imprisonment during COVID-19;
(g)Relatively good compliance with the obligations of the CCO for a significant period of time
Ground Three
The sentencing judge erred in ordering no concurrency between the aggregate sentence of imprisonment and the applicant’s current term of imprisonment.
The application for leave to appeal was commenced seven days after the time prescribed by s 279 of the Criminal Procedure Act 2009. Accordingly an application for extension of time was made on behalf of the applicant. That application has been granted administratively.
For the reasons that follow, we have concluded that ground 1 and ground 3 should each succeed. In those circumstances, it is not necessary to determine ground 2.

Circumstances of offending

The offending, that was the subject of the charges, took place on 21 March 2018. At that time, the applicant was living in Nhill. He was then 23 years of age.
On the evening of the offending, the applicant left his mother’s home and drove his Mitsubishi Triton utility to his girlfriend’s address in George Street, Nhill. Following a minor verbal argument with his girlfriend, the applicant left her home, taking with him a 30 centimetre long stainless steel carving knife.
At about 9:15 pm, the applicant drove his vehicle past the Nhill Police Station. He executed a U-turn, and drove his vehicle directly into the front of a marked police vehicle that was parked in front of the police station. It was estimated that the applicant was driving at a speed of at least 40 kph to 50 kph at the time. The force of the impact moved the police vehicle approximately three metres and rotated it. The police vehicle was damaged to the extent that it was a write-off. The total cost to Victoria Police as a result was $50,345. That conduct of the applicant was the subject of charge 2 (intentionally destroying property).
At the time of the collision, the Nhill Police Station was conducted by Senior Constable Ross McLeay. Upon hearing the collision, Senior Constable McLeay ran out of the police station and observed the applicant’s vehicle departing from the scene at a fast rate of speed.
About ten minutes later, the applicant drove his vehicle back to the police station. When the applicant alighted from his vehicle, Senior Constable McLeay recognised him and said to him, ‘Adrian, is that you? Did you hit our vehicle?’ As Senior Constable McLeay was speaking, he and the applicant walked towards each other. When they were about six metres apart, Senior Constable McLeay asked the applicant, ‘What’s going on?’ The applicant responded, ‘I’ve had enough, I just want to die, I can’t deal with it anymore’.
Senior Constable McLeay observed that the applicant was holding the carving knife in his right hand. Senior Constable McLeay told the applicant to put the knife down. That instruction resulted in a sudden and immediate change in the applicant’s demeanour. He tensed, clenched his teeth, and began talking to himself. Senior Constable McLeay again instructed the applicant to put the knife down. He withdrew his service revolver and pointed it at the applicant’s chest. The applicant responded by saying, ‘I want you to fucking shoot me, I’ve had enough. I want it all to end’. The applicant poked his knife towards Senior Constable McLeay and took three steps towards him.
In response, Senior Constable McLeay withdrew towards the front door of the police station, while keeping his service revolver trained on the applicant’s chest. As he did so, the applicant said, ‘Fucking shoot me, I’ve had enough I want you to kill me’. He then took another few quick steps towards Senior Constable McLeay and made stabbing movements with the knife towards him.
Senior Constable McLeay again firmly instructed the applicant to put his knife down, and warned him that if he moved any closer, he (Senior Constable McLeay) would shoot him. The applicant again responded, ‘Just go ahead and shoot me’. Senior Constable McLeay, at that stage, began slowly withdrawing towards the front door of the police station. As he did so, the applicant was drawing closer to him. That conduct of the applicant was the subject of charge 3 (assault police on duty).
Senior Constable McLeay continued to retreat towards the automatic front doors of the police station, and he then entered the station. The applicant followed him, still armed with the knife. As he did so, Senior Constable McLeay moved through the security door of the police station, which automatically closed and locked behind him. At the same time, the applicant entered the police station armed with the knife, and unsuccessfully attempted to open the security door that had just closed and locked. That conduct of the applicant was the subject of charge 1 (aggravated burglary — offensive weapon).
Senior Constable McLeay continued to speak to the applicant, attempting to persuade him to put his knife down. The applicant responded by walking around in circles in the foyer of the police station. Senior Constable McLeay then exited the police station through a side door, and into a secure yard, in an attempt to prevent the applicant from leaving the police station. However, by the time Senior Constable McLeay reached the gate to the station yard, the applicant had returned to his utility vehicle and driven off in the direction of Horsham.
About half an hour later, at 10:00 pm, the applicant drove into the Nhill Caltex service station. He pumped $84 worth of diesel fuel into his vehicle, and then drove away without making any attempt to pay for the fuel. That conduct was the subject of charge 4 (theft). The applicant was pursued by Mr Alan McDonald, who was a resident of Nhill. After about ten kilometres, Mr McDonald caught up with the applicant and noted his registration number. The applicant then drove his vehicle towards Horsham.
At about 11:35 pm, the applicant was located by police in the Horsham Police Paddocks Reserve, about 50 metres from his vehicle. He was lying on the ground, curled up, with his hands under his chest. He was conveyed to the Wimmera Base Hospital, where he was diagnosed to have taken an overdose of diazepam medication, having consumed some 40 five milligram tablets of diazepam, together with four 25 milligram tablets of Quetiapine.
On the following day, 22 March 2018, the applicant was interviewed under caution, and he made full admissions.

The applicant’s disposition following arrest

Following his arrest, the applicant was remanded in custody. Subsequently, on 9 May 2018, he was released on bail, with a condition that he attend the Hader Clinic for residential rehabilitation. On 16 July 2018, he was exited from that program because his partner was found in his room, which was a contravention of the conditions of the clinic. He was arrested on the same day, and remanded in custody. On 19 July 2018, he was granted bail on the condition that he attend the Court Integrated Services Program (CISP).
The applicant attended three case management appointments with CISP before he re-entered the Hader Clinic on 31 August 2018. He then successfully completed the 90 day program at the clinic on 24 September 2018.
The report of the Hader Clinic noted that, during his stay with the clinic, the applicant had been compliant with the program and had made consistent positive contributions to his community. During that time, his urine drug screens were all negative for all substances. The report concluded that the applicant had made ‘considerable progress’, and that he had ‘gained a greater understanding and awareness of self and [had] reassessed his belief and value systems’.
On 19 December 2019, the applicant was arrested, his bail was revoked, and he was remanded in custody. He had failed to report, pursuant to the terms of his bail, on four occasions between 23 November 2019 and 30 November 2019, and he had also breached the curfew conditions of his bail. In addition, he was charged with further offences, which included theft of a motor vehicle, resist police, possession of cartridge ammunition, and acting in a manner prejudicial to the management of a police gaol.

The applicant’s plea

The applicant’s plea was heard by Judge Ryan on 30 March 2020. The focus of the plea was on the applicant’s background, and, in particular, on his psychological condition at the time of the offending.
The applicant was born on 21 December 1994. Before the offending, he had some minor previous convictions, which included convictions for offences of possession of cartridge ammunition without a licence, wilfully damaging property, possession of a drug of dependence, being drunk in a public place, and resisting an emergency worker on duty. Those charges had each been dealt with by the imposition of a non-custodial sentence.
The applicant was raised in Horsham. His parents separated a number of times while he was young. Nevertheless, he successfully completed Year 12 at the Nhill College, and he was accepted into a Bachelor of Health Science at Adelaide University. He deferred commencing that course in order to be able to work and earn some money to support himself. During that time, he commenced to drink heavily, and he lost interest in attending university.
The applicant first worked for Nhill Bulk Handling in a grain bunker. He was employed by that company for some four years. In that time, he worked well, and, on his plea, the previous manager of the business provided a reference, which described the applicant as being an ‘outstanding worker with unparalleled work ethic’.
Subsequently, the applicant was involved in other semi-skilled employment, including bricklaying, working on an excavator, driving a front-end loader, and constructing wind power generating towers at a wind farm north of Ararat.
The applicant had had a relationship with his partner, Taylor, for about four years. Taylor gave birth to their four month old son, Xavier, some four months before the plea. There were difficulties in the relationship. At the time of the plea, and the police had taken out an interim intervention order in relation to Taylor and Xavier.
The applicant had a longstanding problem with drug abuse. He had commenced drinking alcohol and using cannabis at the age of 14 years. Subsequently, he began using ecstasy and amphetamines during his time at school. At the age of 18 years, he commenced to use methamphetamine after it was offered to him at his workplace. He soon began using that substance quite regularly. In 2017, he attended the Hader Clinic for a residential rehabilitation program, following which he was able to be abstinent for some 12 to 14 months. However, he relapsed into drug use in early 2019, following some difficulties in his relationship with his partner, Taylor. It was during that time that he returned to Nhill, and obtained full-time employment at the wind farm.
The applicant attended six sessions with Mr Warren Simmons, a clinical psychologist, between 25 July 2018 and 30 October 2018. Mr Simmons provided three reports, which were tendered on the plea.
In the first report, dated 7 November 2018, Mr Simmons expressed the view that, at the time of the offending, the applicant had been experiencing psychotic phenomena as a result of his use of methamphetamines, which were also possibly compounded by being prescribed benzodiazepines and antipsychotics in the period that immediately preceded the offending. Mr Simmons was of the opinion that the applicant’s actions appeared to have been driven more by disturbed cognitive processes, rather than by any premeditation or antisocial traits. At the time of the offending, the applicant did not appear to be able to think clearly, so that he did not make rational or calm choices. Mr Simmons noted that the applicant had engaged in a significant and intensive rehabilitation program at the Hader Clinic, and that he was benefiting from that program. Mr Simmons considered that, in view of the applicant’s level of motivation, and his lack of antisocial personality traits, his prospects of rehabilitation should be quite good.
In the report, Mr Simmons noted that the applicant had described to him symptoms of post-traumatic stress disorder. In a second report (dated 20 March 2019), Mr Simmons expressed the view that at the time of the offending, the applicant had in fact been suffering from post-traumatic stress disorder, which, combined with his substance use, as well as symptoms of depression and anxiety, had led him to act as he did. While the applicant may have been experiencing a drug-induced psychosis at the time of the offending, that would appear to have developed from the applicant self-medicating in the context of suffering post-traumatic stress disorder and experiencing problems with depression and anxiety.
In his third report, dated 9 March 2020, Mr Simmons noted that when the applicant had separated from his partner, he was left isolated, and it was in those circumstances that he had consumed alcohol and commenced smoking heroin and abusing methamphetamines. Mr Simmons further noted that after successful treatment at the Hader Clinic, the applicant had nevertheless struggled to remain abstinent from the use of such substances. Mr Simmons considered that the applicant still had positive prospects for rehabilitation, in view of the fact that he had been able to remain in employment for most of the previous year.

Reasons for sentence on original offending

In his reasons for sentence,[2] Judge Ryan set out, in detail, the circumstances of the offending, and the applicant’s background. His Honour noted that the opinions, held by Mr Simmons, as to the circumstances in which the applicant had offended, had altered. Nevertheless, his Honour accepted that the applicant’s psychological state at the time of offending was compromised to such an extent that he wanted to be shot dead. Accordingly, his Honour accepted that limbs one to four prescribed by this Court in R v Verdins[3] had been established.[4]
[2]County Court of Victoria, unreported, 7 April 2020 (‘First Reasons’).
[3](2007) 16 VR 269, 276; [2007] VSCA 102.
[4]First Reasons [41].
Judge Ryan noted that the applicant’s prospect of rehabilitation were entirely dependent on his ability to remain abstinent from drugs, and, in particular, methylamphetamine. His Honour had grave reservations in that respect, and, for that reason, he assessed the applicant’s prospects of rehabilitation to be guarded.[5]
[5]Ibid [57].
Judge Ryan considered that, objectively, the applicant’s offending was serious. However, in view of the applicant’s mental state, the sentencing purpose of general deterrence must be ‘sensibly moderated’. His Honour considered that specific deterrence had limited application in the applicant’s circumstances, and that the applicant’s moral culpability was reduced.[6]
[6]Ibid [59].
The judge concluded:
Taking into account the circumstances of the offences and their effects with your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending which I regard as a course of conduct engaged in by you over a short period of time, I consider it appropriate to impose an aggregate sentence by way of a term of imprisonment combined with a Community Correction Order.[7]
[7]Ibid [60].
Accordingly, the applicant was sentenced to a term of imprisonment of 528 days, together with a Community Corrections Order for a period of three years, with conditions that included that he undergo treatment and rehabilitation in respect to his drug addiction and in respect to his mental health. It was declared that the applicant had spent 165 days by way of pre-sentence detention.

Breach of community corrections order

In February 2024, the prosecution instituted proceedings against the applicant for breaches of the CCO, which were founded on three bases:
(1)the applicant had failed to undergo treatment and rehabilitation, as required, on 17 May 2021 and 7 July 2021;
(2)the applicant had failed to be supervised, monitored and managed, as directed, on 7 April 2021, 17 May 2021, 20 March 2023, 7 August 2023 and 30 August 2023;
(3)the applicant had been convicted of further offences during the operational period of the order.
In respect of the third basis, on 20 December 2023, the applicant was before the Horsham Magistrates’ Court on charges involving a number of offences, committed by him on five separate dates between 23 February 2023 and 11 September 2023. They included offences of: carjacking (using force to steal a motor vehicle); possession of a drug of dependence; contravening a family violence order; unlawful possession of a firearm; being a prohibited person carrying a firearm; failing to answer bail; contravening a condition of bail; and committing an indictable offence while on bail. The applicant was sentenced on those charges to a total effective sentence of 12 months’ imprisonment. A declaration was made that he had already served 99 days by way of presentence detention. Accordingly, he was due to be released on 11 September 2024.

Plea on breach of CCO

On the plea in the proceeding for the contravention of the CCO, counsel for the applicant relied on a number of mitigating circumstances.
First, counsel noted, the applicant had not previously been subject to a CCO.
Secondly, as indicated in the contravention report, the applicant had initially made positive progress in complying with the CCO. In the first 12 months, he had completed Drug Complex Counselling. He had also completed urine screen tests as requested between June and September 2021.
Thirdly, in April 2022, the applicant had obtained employment in the grain industry, and he had been working at the same time as complying with his obligations under the CCO. The applicant had maintained that employment until January 2023, when his long-term relationship with his partner broke down and he lost access to his four year old son.
Fourthly, the applicant’s mental health had deteriorated, and he was experiencing suicidal ideation. Since August 2023, he had been homeless. He had relapsed into methamphetamine use in mid-2023 after he had been admitted to hospital in May 2023 for a medical procedure. The applicant had self-referred to Grampians Community Health for voluntary admission to an AOD detox program. Through that program, he had completed two sessions in September 2023 of the Step Through Non-Residential Withdrawal Program.
Finally, counsel noted, the applicant had been subject to the CCO for almost two years before he had reoffended, and that offending had occurred in the context of the difficulties in the applicant’s personal life.

Reasons for sentence — breach of CCO

In sentencing the applicant for contravention of the CCO, Judge Tinney noted that since the passing of the original sentence, the applicant had committed further offences. On the other hand, the applicant had complied with the CCO over a reasonably significant period of time, working and living a ‘decent life’ in the community.[8] The judge considered that he had no other realistic alternative than to cancel the CCO and resentence the applicant pursuant to s 83AS(1)(c) of the Sentencing Act.
[8]DPP v Hassall [2024] VCC 331 (‘Second Reasons’).
The judge noted that he would take into account the mitigating factors which Judge Ryan had taken into account in the first sentence. However, the applicant was now older than at the time of the offending and the original sentence, and, in addition, by reason of the breaches by the applicant of the CCO, his prospects of rehabilitation must be ‘slightly downgraded’.[9]
[9]Ibid [26].
Judge Tinney accepted account that, consistent with the sentencing reasons of Judge Ryan, the first four principles in Verdins applied to the sentencing of the applicant.[10] His Honour took into account the extent of the applicant’s compliance with, and his progress under, the CCO, noting that the applicant had done quite well in complying with ‘a decent part’ of it.[11] The judge also took into account the extent of the sentence that the applicant was currently serving. In addition, the applicant was originally credited with 13 emergency management days, and the presentence detention declaration in the present case could not recognise that period. Accordingly, it was appropriate to account for that circumstance in orders for concurrency.[12]
[10]Ibid [29].
[11]Ibid [30].
[12]Ibid [32].
The judge considered that the offending by the applicant had been serious.[13] In those circumstances, general deterrence was a significant sentencing factor, albeit that both general and specific deterrence should be moderated, taking into account the applicant’s psychological condition.[14]
[13]Ibid [34].
[14]Ibid [33].
Finally, the judge considered that it was not appropriate to impose a further sentence combining a term of imprisonment with a CCO. Rather, it was necessary to impose a further term of imprisonment. His Honour considered that it was open to impose an aggregate sentence on charges 1, 2 and 3, in view of the ‘unity of [the] conduct’ involved in each of those three offences.[15]
[15]Ibid [37].

Ground 1 — submissions

In support of ground 1, counsel for the applicant submitted that the imposition of an aggregate sentence on charges 1, 2 and 3, pursuant to s 9 of the Sentencing Act, was not open in the circumstances of the case for three reasons. First, there were only a small number of charges in the indictment. Secondly, the individual offences, that were the subject of those charges, were of a different nature, both in their inherent criminality and in the differing interests that the law was seeking to protect by the offences themselves. In that respect, the differential nature of the offending was reflected in the differences in the maximum sentences prescribed for the three offences. Thirdly, the gravity of the offending, that was the subject of each charge, was not uniform, but it varied between the individual charges.
In those circumstances, it was submitted that the imposition of an aggregate sentence amounted to an error in principle that requires intervention by this Court.
In response, counsel for the respondent noted that charges 1, 2 and 3 concerned a series of offences that were committed in one single episode, over a short period of time. They involved a sequence of behaviour in which the applicant, first, deliberately drove his vehicle into a parked police vehicle (charge 2), he then assaulted the police officer on duty who came to investigate the damage to the police vehicle (charge 3), and, after the police officer returned to the police station, the applicant continued his advance towards him by entering the police station, still armed with the knife (charge 1).
In those circumstances, it was submitted, the decision to impose an aggregate sentence for charges 1, 2 and 3 was well within the bounds of appropriate judicial discretion. Although the maximum sentences for the offences varied significantly, the gravity of the offending involved in each charge did not. Nor was there any significant variance in the manner in which the offences were committed. Rather, it was submitted, the offences were of the same or similar character, driven by the same underlying purpose, and they were related in time.
Counsel for the respondent further noted that no complaint had been made in respect of the sentencing at first instance, when Judge Ryan imposed an aggregate sentence in April 2020. Nor were any submissions made by counsel for the applicant opposing the imposition of an aggregate sentence during the contravention hearing in 2024. It was submitted that the use of an aggregate sentence in the present case was appropriate, as it enabled the sentencing judge to approach the sentencing task in a flexible and pragmatic manner.

Ground 1 — analysis and conclusion

Section 9(1) of the Sentencing Act 1991 provides for the imposition of an aggregate sentence in the following terms:
If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.
Section 9(2) provides that the aggregate sentence of imprisonment imposed in accordance with sub-s (1) must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences, if the court had imposed a separate sentence of imprisonment in respect of each of them.
This Court has, on a number of occasions, emphasised that it is inappropriate to impose an aggregate sentence in a case in which the indictment contains only a small number of charges, or in which the charges vary significantly either in their seriousness or in the manner in which the offences were committed.[16] In that respect, the ‘seriousness’ of the offences comprises the objective gravity of the conduct that was the subject of the particular offences, and not the maximum sentence which the offences carry.[17]
[16]Fitzpatrick v The Queen [2016] VSCA 63, [48] (Weinberg AP, Priest and Beach JJA) (‘Fitzpatrick’); DPP v Rivette [2017] VSCA 150 [87] (Ashley and Priest JJA) (‘Rivette’).
[17]Kerapa v The Queen [2017] VSCA 56, [12] (Redlich and Santamaria JJA).
In DPP v Frewstal Pty Ltd,[18] Maxwell P identified the considerations which are relevant to a determination whether it is appropriate, in a particular case, to impose an aggregate sentence:
The kind of case for which an aggregate sentence is appropriate is one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality. The archetypical example is the case of multiple offences of burglary and theft, committed over a relatively short period, where an aggregate sentence is a “more flexible and pragmatic” way of “reflecting all of the offender’s conduct”.[19]
[18](2015) 47 VR 660; [2015] VSCA 266.
[19]Ibid, 670 [44].
While each case is necessarily different, the application of those principles has been demonstrated in a number of decisions in which this Court has considered that it was inappropriate for the primary judge to impose an aggregate sentence.
In Fitzpatrick, the appellant appealed against an aggregate sentence of 4 years and 9 months’ imprisonment imposed in respect of six offences, namely, persistent contravention of a family violence intervention order, common assault, making a threat to kill, theft (two charges) and criminal damage, as well as a summary charge of unlicensed driving. The appellant had entered the home of the principal victim, who was his former domestic partner in contravention of the family violence intervention order (charge 1). When inside the victim’s home, the appellant assaulted her (charge 2), made threats to kill her and others (charge 3) and took her mobile telephone from her bedside table (charge 4). He then seized her house keys and car keys, left her home and took her vehicle (charge 5), which he intentionally damaged (charge 6). In considering an appeal on the ground of manifest excess, the court expressed the view that, in the circumstances of the case, it had not been appropriate to impose an aggregate sentence, as the aggravating features of the common assault were significantly more serious than the conduct encompassed in the other charges.[20]
[20]Fitzpatrick [2016] VSCA 63, [48]–[49] (Weinberg AP, Priest and Beach JJA).
In Rivette, the court was concerned with an appeal by the Director of Public Prosecutions in respect of an aggregate sentence imposed on the respondent for offences of burglary, theft (two charges) and reckless conduct endangering life, together with two summary charges. The respondent and his co-offender had entered a residential property through an unlocked door (charge 1, burglary). There they stole a number of items from the premises (charge 2, theft). The respondent and the co-offender then left the premises. Later in the afternoon, the respondent and the co-offender stole a vehicle that was parked in a street near their home (charge 3). The owner attempted to intervene, and mounted the bonnet. The respondent then drove the vehicle erratically with the owner remaining on the bonnet (charge 4, reckless conduct endangering life). In considering the Director’s appeal, the Court, applying the principles stated by Maxwell P in Frewstal, expressed the view that the imposition of an aggregate sentence in the circumstances of the case was inappropriate, as there were relatively few charges, they were distinct in character, and one of them involved much more serious offending than the others.[21]
[21][2017] VSCA 150 [89] (Ashley and Priest JJA).
In Cocakar v The Queen,[22] the sentencing judge imposed an aggregate sentence of four years and eight months’ imprisonment on an appellant who had pleaded guilty to charges of false imprisonment, intentionally causing injury, making a threat to kill and armed robbery. The appellant and his co-offender, on a pretence, had attended the residence of the victim. After they entered the premises, the co-offender locked the front door. The appellant, who was armed with a meat cleaver, punched the victim and secured his hands behind his back with duct tape. He repeatedly punched the victim and threatened to kill him (charge 3 — making a threat to kill), and struck the victim over the head with the meat cleaver (charge 2 — intentionally causing injury). The appellant and the co-offender then forced the victim into his vehicle, which was driven by the co-offender to a bank in Mitcham, where the appellant, while threatening the victim, demanded his bank card. The co-offender then used the bank card to withdraw $700 (charge 4 — armed robbery). Ultimately the victim was released (charge 1 — false imprisonment). On appeal, Maxwell P, with whom Priest JA agreed, held that it was not appropriate in the circumstances of the case for the judge to impose an aggregate sentence, but his Honour was not persuaded that a different sentence should be imposed.[23]
[22][2019] VSCA 178.
[23]Ibid [33].
The circumstances of each case are, of course, necessarily different. The question whether, in a particular case, it is appropriate to impose an aggregate sentence, must necessarily depend on the circumstances of the offending and the nature of the offences in question. However, the foregoing review of the decisions of this Court illustrates the constraints which are applicable in a case in which a court considers imposing an aggregate sentence pursuant to s 9(1) of the Sentencing Act.
In the present case, the aggregate sentence was imposed in respect of a small number of charges. The conduct of the applicant, which was the subject of each of those three charges, constituted separate and individual offending committed by him, notwithstanding that they occurred close in time and in the course of the same incident. Each offence was an additional breach of the law, and they each required separate consideration in terms of their gravity and the nature of the conduct of the applicant that constituted the offending.
The conduct of the applicant, that was the subject of charge 3 (assault police on duty) was, objectively, particularly serious. The assault was committed by the applicant threatening a member of the police force, in the course of his duty, with a carving knife. The applicant persisted in the assault despite having been directed, at least twice, to desist. In determining the sentence for that offence, in the absence of mitigating circumstances, it would be necessary to give particular weight to the sentencing purposes of general deterrence and denunciation.
The conduct that was the subject of the first charge (aggravated burglary) was also serious, involving the intrusion by the applicant into a police station armed with a knife, in circumstances in which he had already been warned, on a number of occasions, to desist from his conduct. It involved a significant infraction on the offices of a law enforcement agency.
The conduct that was the subject of charge 2 (intentionally destroy property) was serious in two respects. First, it involved intentional damage to a police vehicle. Secondly, the damage was significant, so much so that the vehicle was damaged beyond repair, resulting in a cost to Victoria Police of $50,345.
In those circumstances, it was necessary for the sentencing judge to give careful and separate consideration to the particular conduct of the applicant that constituted each of the three offences that were the subject of the aggregate sentence. It was necessary for the judge to balance, as against the objective gravity of the offending, relevant mitigating factors as determined by the sentencing judge. In that respect, in determining the sentence to be imposed in respect of each of the three charges, it was necessary to take into account that the sentencing judge had accepted that the first four principles, specified by this Court in Verdins, applied to the applicant’s condition, so that his moral culpability, and the sentencing purposes of general deterrence and specific deterrence, were moderated.
The imposition of an aggregate sentence in such a case, which necessarily takes a ‘global’ view of the offending, did not and could not involve a distinct and balanced consideration by the judge of all those aspects of the sentencing process. Further, in a case such as this, the resort to an aggregate sentence has had the effect that it is not possible to perceive what weight the judge allocated to each of the three offences that were the subject of the sentence.
In those circumstances, it must be concluded that the judge did err in imposing an aggregate sentence in respect of charges 1, 2 and 3 on the indictment.
In reaching that conclusion, we appreciate that the applicant did not, at any time, raise any issue concerning the imposition of an aggregate sentence by Judge Ryan on all four charges (including the charge of theft). Nor, in the course of the plea before Judge Tinney, did the applicant contend that the imposition of such a sentence would be inappropriate. Nevertheless, and for the reasons we have discussed, we are driven to the conclusion that it was not appropriate in this case to impose an aggregate sentence in respect of the first three charges on the indictment.
In those circumstances, it is necessary to determine the appropriate sentence which should be imposed on the applicant in respect of charges 1, 2 and 3 on the indictment. Taking into account the objective gravity of each of the three offences, and the relevant mitigating circumstances, we consider that the appropriate sentences for each of those three charges should be as follows:
•charge 1 (aggravated burglary — offensive weapon) 18 months’ imprisonment
•charge 2 (intentionally destroy property) 2 years’ imprisonment
•charge 3 (assault police on duty) 2 years’ imprisonment
The sentence on charge 3 should be the base sentence. We would order that two months of the sentence imposed on charge 1, and two months of the sentence imposed on charge 2, be served cumulatively on the sentences imposed on each other and on the base sentence. The sentence on charge 4 (theft) of 7 days’ imprisonment is confirmed and (consistent with the order made by Judge Tinney) that sentence should be served concurrently with the sentences imposed on charges 1, 2 and 3.

Accordingly, the total effective sentence which is imposed by way of resentencing is 2 years and 4 months’ imprisonment. We fix a minimum non-parole period of 1 year and 3 months.
As we earlier noted, in view of that conclusion, it is not necessary for us to consider ground 2.

Ground 3 — submissions

Ground 3 is directed to the order by Judge Tinney that the sentence imposed by him be served cumulatively on the sentence of imprisonment imposed by the Horsham Magistrates’ Court on 20 December 2023.
In support of ground 3, counsel for the applicant submitted that the judge erred in not applying the presumption of concurrency mandated by s 16(1) of the Sentencing Act. Counsel noted that the position of the applicant was to be contrasted with offenders who are the subject of the provisions of cumulation under s 16(1A) of the Sentencing Act. Counsel further submitted that although the judge stated that regard was to be had to the principle of totality, the sentence imposed by his Honour did not observe that principle.
In the written case in response, counsel for the respondent noted that s 16(1) of the Sentencing Act does not oblige a sentencing court to allow for concurrency in imposing a term of imprisonment. In the present case, it was submitted, the orders for cumulation reflected the differences in the seriousness of the different offences and the different episodes of offending. As the judge noted, there was no relationship between the offending that was before the Horsham Magistrates’ Court in December 2013, and the offending for which the applicant was to be resentenced as a consequence of his contravention of the CCO. Rather, it was submitted, the offences arose from entirely separate events, separated by a significant period of time, and each with their own distinct aspects of criminality.
In oral submissions, senior counsel for the respondent advised that there has been some administrative confusion in relation to the effect of the order for cumulation made by Judge Tinney. In effect, it would seem, the Corrections authority has construed that order in such a way that the sentence is deemed to commence on the expiry of the sentence imposed in the Horsham Magistrates’ Court on 11 September next, but that, for some reason, the non-parole period in respect of that sentence commenced on 19 March last. In those circumstances, senior counsel, quite properly, submitted that, notwithstanding the arguments made in the written case on behalf of the respondent, it would be appropriate for this Court to allow the appeal on ground 3, and to re-sentence the applicant, in order to remove the confusion concerning the effect of the orders made by Judge Tinney.

Ground 3 — analysis and conclusion

Section 16(1) of the Sentencing Act provides:
Subject to subsection (1A), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment or detention in a youth justice centre or youth residential centre imposed on that person, whether before or at the same time as that term.
Section 16(1) is considered to constitute a ‘prima facie rule’ about concurrency in a case to which s 16(1A) does not apply.[24] In R v Mantini,[25] Callaway JA (with whom Phillips CJ and Batt JA agreed) explained that there must be a good reason to direct or order cumulation in a case to which s 16(1) applies. His Honour noted that in determining whether the prima facie position should apply, the sentencing judge possesses a discretion, which must be exercised judicially and in accordance with applicable sentencing principles.[26]
[24]R v Lomax [1998] 1 VR 551, 553 (Winneke P).
[25][1998] 3 VR 340.
[26]Ibid, 348.
In Ka Ming Chong v The Queen,[27] Macaulay JA, in considering an application for leave to appeal against sentence, explained the role of cumulation in the sentencing process as follows:
Cumulation ensures that the distinct criminality of each offence is recognised. Its application avoids the appearance that an offender may commit a series of separate crimes with effective impunity should all the sentences for a series of unconnected offences be served concurrently. At the same time, the totality principle requires that the aggregation of sentences imposed for each offence is a just and appropriate measure of the total criminality involved and avoids a crushing sentence.[28]
[27][2022] VSCA 156.
[28]Ibid [27] (citations omitted).
In the present case, the offending, that was the subject of the sentences imposed by the Horsham Magistrates’ Court, was separate and distinct from the offending for which the applicant was sentenced in the present case. In those circumstances, it was appropriate to order some degree of cumulation of the sentences imposed in the present case with those imposed by the Horsham Magistrates’ Court.
However, that proposition did not justify the conclusion that the sentences imposed for the offending in the present case should be wholly cumulative on the sentence imposed by the Horsham Magistrates’ Court. Taking into account the applicant’s mitigating circumstances that attended the offending in the present case, that disposition did not conform with the principle of totality, in that it resulted in a total term of incarceration that exceeded, and did not fairly reflect, the totality of the applicant’s offending.
In particular, the imposition of a sentence that was wholly cumulative on the sentence imposed by the Horsham Magistrates’ Court failed to properly take into account his Honour’s conclusion that, by reason of the applicant’s mental condition at the time of the offending, the sentencing purposes of general deterrence and specific deterrence should be appropriately moderated.
Further, the imposition of such a sentence failed to give adequate weight to the finding by the judge that, notwithstanding the contraventions by the applicant of the CCO, nevertheless he had made quite good progress in complying with a substantial part of the order in a manner which, it must be expected, would have been conducive to his rehabilitation.[29] The imposition of a sentence, that would only commence after the conclusion of the operation of the sentence imposed by the Horsham Magistrates’ Court, involved a material risk that the applicant’s steps towards rehabilitation, albeit imperfect, might be significantly undermined by such a disposition. In that way, the imposition of a sentence that was wholly cumulative on the sentence that the applicant was already serving, had a significant potential to crush, rather than reform, the applicant.
[29]Second Reasons [30].
For those reasons, ground 3 of the application should be upheld.
The sentences, that are imposed by resentencing by this Court, are deemed to have commenced on the date of the sentence which is under appeal, namely, 19 March 2024.[30] The sentence imposed by the Horsham Magistrates’ Court on 23 December 2023 is due to expire on 11 September next. In those circumstances, and for the reasons that we have discussed, it is appropriate that the sentence that is imposed on the applicant by resentence be served concurrently with the balance of the sentence, imposed by the Horsham Magistrates’ Court, from the date of imposition of the sentence in the present case.
[30]Sentencing Act 1991, s 17(1); R v Jennings [1999] 1 VR 352; DPP v Ibrahimoff (2001) 3 VR 66; [2001] VSCA 46.
Accordingly, the presentence detention, declared on resentencing the applicant in the present case, will include the period of sentence served by the applicant since 19 March 2024 to the date of resentencing (a period of almost four months). Further, we do not direct that the sentence that is imposed by resentencing be served cumulatively on the balance of the sentence imposed by the Horsham Magistrates’ Court ( a further period of almost two months). In effect, that will mean that the sentence served by the applicant will be wholly concurrent with the balance of the sentence imposed by the Horsham Magistrates’ Court that is served by the applicant since 19 March 2024.

Summary of conclusions

For the foregoing reasons, the applicant should be granted leave to appeal on ground 1 and ground 3, and his appeal on those grounds be allowed. The sentences imposed by Judge Tinney are set aside and in lieu the applicant should be sentenced as follows:
(1)Charge 1 — 18 months’ imprisonment
(2)Charge 2 — 2 years’ imprisonment
(3)Charge 3 — 2 years’ imprisonment
The sentences of 7 days’ imprisonment on charge 4 and 14 days’ imprisonment on charge 5 are confirmed.
It is directed that 2 months of the sentence imposed on charge 1, and 2 months of the sentence imposed on charge 2, be served cumulatively on each other and on the sentence imposed on charge 3.
Accordingly, the total effective sentence imposed by way of resentencing is 2 years and 4 months’ imprisonment. We fix a minimum non-parole period of 1 year and 3 months.
Pursuant to s 16(1) of the Sentencing Act, that sentence is deemed to run concurrently with the balance of the sentence imposed by the Horsham Magistrates’ Court on 23 December 2023.
Accordingly, the period of pre-sentence detention declared to have been served by the applicant will include the whole of the period since 19 March 2024.
Pursuant to s 6AAA of the Sentencing Act, but for the guilty pleas, we would have imposed the following sentences:
(1)Charge 1 — 2 years’ imprisonment
(2)Charge 2 — 2 years, 6 months’ imprisonment
(3)Charge 3 — 2 years, 6 months’ imprisonment
(4)Charge 4 — 14 days’ imprisonment
(5)Charge 5 — 28 days’ imprisonment
We would have directed that 2 months of the sentence imposed on charge 1, and 4 months of the sentence imposed on charge 2, be served cumulatively on each other and on the sentence imposed on charge 3. Accordingly, but for the guilty pleas by the applicant, we would have imposed a total effective sentence of 3 years’ imprisonment, with a non-parole period of 2 years.
Finally, it is appropriate, in this case, to acknowledge the commendable presence of mind and courage displayed by Senior Constable Ross McLeay in averting what might otherwise have been a tragic outcome arising from the conduct of the applicant.
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[2024] VSCA 163

16 July 2024