Barbat v The Queen
[2014] VSCA 202
•4 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0038 | |
| BRETT BARBAT | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and BEACH JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 14 August 2014 |
DATE OF JUDGMENT: | 4 September 2014 |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 202 |
JUDGMENT APPEALED FROM: | DPP v Barbat [2014] VCC 42 (Judge Sexton) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Appeal – Totality – Cumulation of sentences – Appellant sentenced as serious offender under s 6E of Sentencing Act 1991 – Manifest excess – Appellant resentenced – Form of sentence – Date of commencement of sentence.
Sentencing Act 1991, s 6E.
R v Jennings [1999] 1 VR 352.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N D Kaddeche | Pica Criminal Lawyers |
| For the Crown | Mr J B B Lewis | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Offences and sentences
On 11 October 2012, in the course of a single episode, Brett Barbat (for convenience, ‘the appellant’) committed three indictable offences and a summary offence. The offences involved a former female partner. On 5 February 2014, having pleaded guilty to those offences before a judge of the County Court, he was sentenced. The offences committed, and the individual sentences imposed, were as follows:
Charge 1 - indecent assault - six months’ imprisonment
Charge 2 - indecent assault - eight months’ imprisonment
Charge 3 - indecent assault - one year, ten months’ imprisonment
Summary offence - dangerous driving - ten months’ imprisonment
The judge cumulated all of the sentences imposed on charge 2 and for the summary offence on the sentence imposed on charge 3, which was treated as the base sentence. The total effective sentence was thus three years and four months’ imprisonment. The judge fixed a non-parole period of two years’ imprisonment.
The total effective sentence and the non-parole period corresponded almost completely with the high end of the range proposed by the prosecutor. At the time, the approach commended by R vMacNeil-Brown[1] had not been supplanted by the High Court’s decision in Barbaro v The Queen.[2]
[1](2008) 20 VR 677.
[2](2014) 305 ALR 323.
The appellant sought leave to appeal against sentence on eight grounds. It is only necessary to set out two of them:
7. The sentencing judge erred in failing properly to apply the sentencing principle of totality in that the judge ordered full cumulation in respect of sentence imposed on charge 2 and the summary charge of dangerous driving.
8. The learned sentencing judge erred by imposing individual sentences, a total effective sentence and a non-parole period that were all manifestly excessive in the circumstances.
Appeal
On 2 May 2014, Neave JA granted the appellant leave to appeal on ground 7, but refused leave to appeal on all other grounds.
The appellant has elected to renew his application for leave to appeal on ground 8. He pursues his appeal on ground 7 and, if leave be granted, on ground 8.
Circumstances
The appellant and the complainant were, over a period of time, in a stormy relationship. The complainant attempted to bring an end to it in August 2012. But there was no clean break. Despite the complainant and her sister obtaining apprehended violence orders against the appellant, he and the complainant continued to exchange text messages. Indeed, it appears that the complainant continued sending text messages to him even after he had ceased to send messages to her. Against that background — and, I should add, a confrontation between the appellant and the complainant’s father on 10 October 2012 — the offending conduct took place.
The judge described it this way:
11The following day, 11 October, it so happened that you did see Ms Cook in her car, when you pulled out from a supermarket car park onto a road and shortly afterwards realised that she was travelling in a car behind you. You stopped your car in the middle of the road in front of her on two occasions, signalling for her to pull her car over, and twice, she drove around you. In her police statement, she describes her view that you were getting angry with her.
12On the third occasion, you drove up close behind her car, in what is described as a ‘tail gating’ manoeuvre, travelling at approximately 70 kph on Barwon Heads Road at about 5pm, while the road was wet. You then pulled alongside her car, and moved your car towards hers in an apparent attempt to cut her off, just as you had threatened you would do. Ms Cook was forced to pull her car off to the side of the road, whereupon you pulled over in front of her car. This conduct comprises the offence of dangerous driving, and is a serious example of that offence.
13… You spoke to Ms Cook at the driver’s window of her car, where you appeared as crying and emotional. I am satisfied that Ms Cook was also crying. You then grabbed her by the back of the neck and forcibly kissed her. I treat this conduct as part of the lead up to the indecent assaults which followed, and this does not form part of any charge for which you are to be sentenced.
14You then got into her car. As it was apparently raining heavily, I am not able to exclude that was a reason for you doing so. I am not satisfied that your sole reason for getting in the car was to assault Ms Cook, although given your conduct in kissing her, I am satisfied that it may have been on your mind to touch her, regardless of whether she was consenting.
15I find that you were still crying and emotional, but I am satisfied Ms Cook was also crying and shaking, and during the conversation that followed, I am satisfied that she gave answers that she thought would keep you calm, and prevent any violence that she thought might follow. …
16Without her consent, you then lifted her top and put your hand inside her bra. I treat this conduct as the context in which the next act occurred and it does not form part of any charge for which you are to be sentenced. However, I am satisfied that this was done without her consent, and that you were aware of this, for reasons which I will outline in a moment.
17Your next act was to kiss her on the mouth, which is the subject of the first charge of indecent assault. You then kissed her breasts, which is the subject of the second charge of indecent assault. You then put your hand inside her pants and touched her vagina under her clothing, which is the subject of charge 3 of indecent assault. …
18You also asked her to spread her legs, and put Ms Cook’s hand on your crotch, where she felt your erect penis, and you began to undo your pants until Ms Cook convinced you not to, saying that there were cars around. I treat this conduct as arising out of the context in which the indecent assaults occurred and it does not form part of any charge for which you are to be sentenced. However, I am satisfied that the acts were done without her consent, and that you were aware of this, for the reasons which I will come to next.
19However, I do find that you remained in the car for a period after that and did not attempt to assault her again. I find that the acts of indecent assault were not themselves prolonged.[3]
[3]DPP v Barbat [2014] VCC 42 (‘Reasons’) [11]-[19].
The judge was satisfied that an act of violence committed by the appellant had led the complainant to leave the relationship. But her Honour did not treat this as a factor making his offending more serious. The prosecution had not relied upon it for that purpose.[4]
[4]Reasons [23].
The judge concluded, however, that the appellant’s offending was more serious by reason of the fact that it was in breach of an intervention order; and also made more serious by the appellant’s persistence in his conduct on the day of the offending.[5]
[5]Reasons [24].
Whilst stating that she was not sentencing the application for breach of the intervention orders taken out on behalf of the complainant or her sister, the judge said that the appellant showed a total disdain for intervention orders made not only on this occasion, but on earlier occasions in other States. She stated that this reflected a ‘higher level of criminality’ in the appellant’s behaviour in the present case.[6]
[6]Reasons [25].
The judge stated, as was the fact, that the appellant had no criminal history of assaulting a woman in indecent circumstances, but that he did have a criminal history of assaulting women with whom he had been in relationships. She also noted that he had a criminal history of 31 prior convictions between 2001 and 2010. They included the assaults and breaches of intervention orders.[7]
[7]Reasons [26].
The judge took account of the content of the complainant’s victim impact statement. She assured the complainant that she had taken the impact of the offending very much into account in sentencing the appellant. She concluded her reference to the victim impact statement by saying this:
30.I am pleased to note that [you are] receiving counselling from a psychologist which is affording [you] some comfort and [you] bravely recognise that things will get better in time. I encourage [you] to continue to seek assistance for as long as [you] need. I wish [you] well in the future.[8]
[8]Reasons [30].
The judge stated that she was taking into account the utilitarian value of the appellant’s plea of guilty, but that she did not find it reflected remorse to any significant degree.[9]
[9]Reasons [32]-[33].
The judge noted that the appellant had a sound work history, and that whilst in custody — that is, on remand — he had kept himself fully occupied. She encouraged his reformation, but concluded that his prospects of rehabilitation were guarded.[10]
[10]Reasons [34] and [36].
The judge said that in sentencing the appellant, she must try to deter other men from committing offences against their domestic partners, that specific deterrence was in point, and likewise protection of members of the community.[11]
[11]Reasons [37]-[38].
The judge did not regard it as being necessary to impose a disproportionate sentence on charge 3, for which the appellant stood to be sentenced as a serious sexual offender. She did, however, on the other hand, conclude that the presumption of cumulation in respect of the sentence passed on charge 3 — see s 6E, Sentencing Act1991 (‘the Act’) — should not be disturbed.[12]
[12]Reasons [39] and [45].
It remains to note that, referring to charge 3, the judge described it as involving ‘an indecent assault at the high end of seriousness’. For that reason, and because the appellant was to be sentenced on charge 3 as a serious sexual offender, a higher sentence than the sentences imposed on charges 1 and 2 was appropriate.[13]
Disposition
[13]Reasons [45].
Ground 8: Manifest excess
In a case in which the common law principle of totality falls for consideration in the context of a sentence governed by s 6E of the Act, moderation of individual sentences may be part of a judge’s approach to sentencing an offender, as explained by Redlich JA in DPP v Johnson.[14] Of this, more later. Nonetheless, the question whether it is demonstrated that an individual sentence was manifestly excessive can be considered independently of that moderating approach. So considered, I would grant the appellant leave to appeal on ground 8.
[14](2011) 35 VR 25.
The test of what must be demonstrated in order to establish manifest excess of a sentence is too well known to require it to be restated. It is enough to say that, in my opinion, whilst the sentences on charge 3 and the summary offence were within the permissible range, the sentences on charges 1 and 2 were not. Acknowledging everything that could be marshalled against the appellant, a sentence of six months’ imprisonment for an unwanted kiss was far too high, likewise a sentence of eight months’ imprisonment for kissing the complainant’s breasts. Counsel for the Crown particularly submitted that the sentence on charge 1 (focus was placed on that charge in the course of oral argument) was within the permissible range having regard to the whole context in which the offending occurred. Context was undoubtedly very important in the sentencing synthesis, but I am not persuaded that it rendered the sentence on charge 1, or the sentence on charge 2, within the range of sentences reasonably available for the particular offending in the exercise of a sound sentencing discretion. As to context, I add this. According to the judge’s finding, both the appellant and the complainant, at the time of the offending the subject of charges 1 to 3, were crying and emotional. Accepting that the reasons for their tears and emotional states would not have been identical, those circumstances do, I consider, give something of the flavour in which the offending occurred.
I should remark upon a further matter. The appellant did not renew his application for leave to appeal on ground 5, which was as follows —
The sentencing judge erred in placing too much emphasis on the criminal history and alleged aggravating features of the offending.
That ground, in part, addressed the statement made by the judge — noted at [11] above — that the appellant’s total disdain for particular orders made by courts on earlier occasions reflected a higher level of criminality in his behaviour in this case.
It appears to me to have been at the least arguable that the effect of what the judge said would have resulted in the appellant being punished again for past offending in respect of which he had already been punished. If that be the correct construction of what her Honour said, it would have constituted specific error, rather than being a matter of inappropriate weight being given to the particular factor, although ground 5 would not have been an appropriate vehicle for addressing such a contention. Regardless, I have taken no account of what may have been an error in her Honour’s approach in concluding that the sentences on charges 1 and 2 were manifestly excessive.
In the event, I would allow the appeal against sentence on charges 1 and 2. On charge 1, I would impose a sentence of 2 months’ imprisonment. On charge 2, I would impose a sentence of 4 months’ imprisonment.
Ground 7: Totality
The issue of cumulation of sentences is raised by ground 7.
The sentences imposed on charges 1 and 2 were sentences for ‘relevant offences’ within the meaning of s 6B(3) of the Act. It followed that the appellant fell to be sentenced on charge 3 as a ‘serious sexual offender’ as defined by s 6B(2). That was so by operation of s 6C(1)(a). In the circumstances, ss 6D and 6E were operative in respect of the sentence to be imposed on charge 3.
The judge concluded that it was unnecessary to impose a disproportionate sentence on charge 3, but stated that the appellant was to receive a higher sentence on that charge than on charges 1 and 2, in part because he was to be sentenced as a serious sexual offender. That, no doubt, reflected the requirement under s 6D that protection of the community was to be regarded as the principal purpose for which sentence was to be imposed. Her Honour’s treatment of charge 3 was thus unexceptional, although her description of the particular act constituting the offence as being at ‘the high end of seriousness’ was a strong finding.
That takes me to s 6E. The judge decided not to ‘otherwise direct’ for the purposes of that section. She then cumulated the entire sentence on charge 2 on the sentence on charge 3, which she made the base sentence. She also cumulated the entire sentence imposed for the summary offence on the sentence on charge 3. The latter cumulation was not required by s 6E because the summary offence was not a ‘relevant offence’.
For the purposes of the orders for cumulation, the judge made the sentence on charge 3 the base sentence.
Her Honour explained that she was ordering total cumulation of the sentence for the summary offence because —
it involved a different type of offending, has a high level of seriousness and set up the situation for the sexual offending.[15]
[15]Reasons [45].
The general common law sentencing principle of totality[16] is affected, to an extent, by the language of s 6E of the Act. That was also the situation under the now repealed s 16(3A) of the Act, the predecessor of s 6E.[17]
[16]See Postiglione v The Queen (1997) 189 CLR 295, 307-308 (McHugh J), 342 (Kirby J); and see Azzopardi v The Queen (2011) 35 VR 43, 59-63 [56]-[68] (Redlich JA).
[17]R v Mantini [1998] 3 VR 340, 346 (Callaway JA).
In RH McL v The Queen,[18] McHugh, Gummow and Hayne JJ said this with respect to the prospect that the successful appellant in that case might fall for re-sentence after a retrial:
76.The need for judges not to compress sentences is especially important where the accused person is a ‘serious sexual offender’ within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[19]
[18](2000) 203 CLR 452.
[19]Ibid 476-477 [76] (strictly, obiter dicta, but considered).
The problem in a particular case of giving application to the intent of s 6E and yet not obliterating the application of the totality principle has vexed sentencing judges and this Court for a number of years. It would be wrong to ‘direct otherwise’ simply in order to achieve what totality might have required in the absence of s 6E. On the other hand, a direction otherwise has from time to time been given — under s 6E,[20] the predecessor s 16(3A), and also under ss 16(3), (3B) and (3C) of the Act. In the case of ss 16(3) and (3B), a direction otherwise has been given despite those sub-sections providing that the court can only give such a direction ‘because of the existence of exceptional circumstances’.
[20]A very recent instance is Pilgrim v The Queen [2014] VSCA 191 [68] (Almond AJA, for the Court).
The issue of principle was thoroughly discussed by Redlich JA in DPP v Johnson, a case which relevantly involved s 16(3B) of the Act.[21] His Honour concluded that, by moderation of individual sentences, proper effect could be given to the legislative intent of that sub-section, and yet that a total sentence might be imposed which was not greater than the entirety of the circumstances required.
[21][2011] 35 VR 25, 38-41 [63]-[73].
I respectfully agree with his Honour’s analysis. The question which arises, in light of my conclusion that the sentences imposed on charges 1 and 2 were manifestly excessive, is how the overall sentence should be structured so as to satisfy the totality principle whilst having proper regard to the intent of s 6E. Then there is also a question as to the form in which an order should be made, a matter which I will address later in these reasons.
In my opinion, a direction otherwise should not be given in the case of the cumulation of the sentence on charge 3 on the sentence on charge 2. I consider, to the contrary, that a direction otherwise should be made in respect of the cumulation of the sentence of charge 3 on the sentence on charge 1. Later, I will explain why I have formulated those conclusions in that way.
I further consider, having regard to the common law principle of totality, that part but not all of the sentence imposed for the summary offence — five months of the ten months sentence of imprisonment — should be cumulated on the sentence on charge 2. Again, I will explain the form in which I have stated that conclusion a little later.
The upshot of my proposal is that a total effective sentence of two years and seven months’ imprisonment would be imposed upon the appellant. I would fix a non-parole period of one year and seven months’ imprisonment.
I turn to the matter of the form in which orders should be made.
Section 6E of the Act provides for the prima facie cumulation of a term of imprisonment imposed upon a serious offender for a relevant offence upon any uncompleted sentence or sentences. The only sentence imposed upon the appellant as a serious offender for a relevant offence was the sentence on charge 3. It is beside the point, so far as s 6E is concerned, that the sentences on charges 1 and 2 were sentences for relevant offences. The significance of those sentences was simply that they were in respect of offences pertinent to the appellant becoming a serious sexual offender as defined by s 6B(2).
The question which then arises is whether it was permissible for the judge — and whether it is now permissible for this Court — to treat the sentence on charge 3 as the base sentence, and to cumulate all or part of other individual sentences upon it. The Court requested counsel to make additional written submissions which addressed this question.
Counsel for the appellant submitted that the judge must have cumulated or in part accumulated the sentence on charge 3 on the sentences on charges 1 and 2. She submitted that that was the plain meaning of s 6E. She further submitted that in this case there was no requirement that there be a base sentence.
Counsel for the Crown submitted, to the contrary, that charge 3 was the charge which attracted the larger sentence and, as is usual, the judge designated the sentence on that charge as the base sentence. Counsel then framed the question as being whether ‘a designated base sentence can be served “cumulatively on” the other sentences imposed’. His answer was that a base sentence merely denotes a sentence in relation to a particular charge which is a point of reference for all directions relating to concurrency or cumulation. A base sentence can properly be said to be cumulative on another sentence imposed. ‘On’ does not imply that a particular sentence comes first in time or place. There was no fault in the form of the sentence which the judge imposed.
R v MDB,[22] cited by counsel for the Crown, was a case in which the judge made the relatively shorter sentence imposed on one count the base sentence, rather than the much longer sentence imposed on another count. Batt JA said this:
… it may be that making count 1 the base count was the source of error, for that created a distortion whereby the less serious offence (false imprisonment) took on an undeserved primacy, whilst the most serious offence (rape the subject of count 4) was, or appeared to be, diminished. At least in general, it is preferable for judges to cumulate upon the most serious count, as otherwise the effective sentence for it appears to be reduced: Director of Public Prosecutions v Grabovac; R v Reid; and R v Birnie.[23]
[22][2003] VSCA 181 (‘MDB’).
[23]Ibid [14] (citations omitted).
In R v Nikodjevic,[24] also cited by counsel for the Crown, the appellant pleaded guilty to many dishonesty offences. He was sentenced to a term of imprisonment for each offence. The judge then ordered that parts of each of the individual sentences be served ‘cumulatively upon each other’; and that otherwise the sentences be served concurrently. The judge did not fix a base sentence. Ormiston JA, with whom Vincent JA agreed and Callaway JA agreed in all but a presently irrelevant aspect, said this:
[24][2004] VSCA 222 (‘Nikodjevic’).
35.When raised by the Court with counsel, none could put forward any authority which suggested that this process was the correct one, or, indeed, that it had ever been held to be incorrect. On the other hand, none could say that they had ever seen such an order before. Again that was likewise the impression of members of the Court and that has been confirmed to me by other members of the Court not sitting in this application. Nevertheless it is a matter which must be resolved, if not by reference to principle, at least by reference to the provisions of the Sentencing Act 1991.
36.In the first place, concepts of cumulation and concurrency of sentences would seem to connote that the whole or part of one sentence will be added to (in the case of cumulation), or served at the same time as (in the case of concurrency), another term of imprisonment. Logically that other term of imprisonment should be a whole term and not a part of a term. It would again seem to follow, secondly, that a direction to cumulate the whole or part of a term on another part of a term would be ineffective, not because the arithmetical calculation could not be made, but because the part term upon which cumulation is to be made is not a term of imprisonment in itself. This method of cumulation seems to be all the more unlikely to be correct where, as in the present case, there were a series of part terms which were directed to be cumulated upon ‘each other’, but where when no-one could know which was the starting or finishing point of that process, and that was made all the more eccentric, if one may be so unkind as to describe it, by also ordering concurrency of a series of (other) whole terms with one or all of a series of part terms, albeit that none of the uncumulated terms in itself exceeds the longest period directed to be cumulated. It is possible, but highly unlikely, that the judge intended that the eight other terms be looked at independently, which would have resulted in a one month’s sentence after giving effect to the concurrency direction, but there would then have been no single ‘aggregate period’ for the purpose of fixing the non-parole period, as required by s 11(4) of the Act (see the next paragraph for its terms).
37.That the process was and is intended to be effected by adding on to some base or principal term parts of terms by way of cumulation is, in my opinion, the preferable way to read the legislation. Before looking at the specific sections it is desirable to add, lest it be thought that the object of the legislation is to produce at the end of the day merely a ‘total effective sentence’, that that term appears nowhere in the Sentencing Act and is a concept used by courts purely for convenience’ sake, before moving to the fixing of a non-parole period, if any. The most that is mentioned, specifically in relation to the power to fix a non-parole period, is that under s 11(4), when more than one sentence is made the subject of such an order or direction, then it must be ‘fixed … in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed’. That expression does appear also from time to time in provisions such as those relating to combined custody and treatment orders and home detention orders. The concept of an ‘aggregate sentence’, on the other hand, is dealt with by s 9 of the Act, but is permitted only in the Magistrates’ Court and is not related to concepts of cumulation or concurrency: rather a power is given to that court to fix such a sentence for a number of offences without going through the detailed procedural steps required in the higher courts.
38.The two principal sections, however, relevant to cumulation and concurrency are s 16 and s 6E. Sub-section (1) of s 16 reads:
‘Subject to sub-section (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 training centre or youth residential centre imposed on that person, whether before or at the same time as that term.’
Section 6E, which is of such constant relevance because of the frequent number of cases which involve ‘serious offenders’, reverses the requirement in the following way:
‘Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.’
It is unnecessary to go to other provisions in the Act, of which there are well over a dozen, which speak of sentences being served ‘cumulatively on’ another sentence, another term, or upon any period of imprisonment. Apart, arguably, from the latter example, each of the provisions assumes in my opinion that there is a sentence or term, which must be read as meaning a whole sentence or whole term, upon which the cumulation is to take effect. Nowhere in the legislation is it suggested that cumulation may be effected on parts of terms; nor, in my opinion, would that be appropriate, for in each case it is desirable to have at least a starting point which is ordinarily taken to be the most serious offence. Indeed, in R v MDB Batt, JA, with the concurrence of Vincent, JA and myself, affirmed that that was the desirable course.
39.In the absence, to my knowledge, of any direct authority on the subject, I would therefore conclude that it is not merely inappropriate but that it is wrong to sentence by way of directing the cumulation of parts of terms upon each other. Prima facie each term of imprisonment has to be served, unless suspended, until parole (if any) is granted. Where, however, there are a number of terms imposed at the same time, the statutory presumption in ordinary cases is that those terms will commence and be served at the same time, i.e., concurrently, unless the judge directs to the contrary. If the judge does direct to the contrary, that will have the result, in the case of total cumulation, that the cumulated term will be served upon the expiry of the earlier term, although it is more frequently the case that only part of a second or other term will have to be served beyond the duration of the first term. That does not mean, however, that only part of that term has to be served or that the term itself is being reduced to just a proportion of its original term. Rather the proper assumption is that the balance of the partly cumulated term is treated as having been served concurrently with the first term. Thus the whole of that second or other term still must be served but the prisoner is entitled to treat the uncumulated part of the term as being served concurrently with the first or ‘base’ term. In a sense the provisions are directed more to the time when the various terms are treated as having commenced and served, as is done more explicitly pursuant to the rather different Commonwealth provisions on sentencing contained in the Crimes Act 1914 (Cth). Thus each term in this State will in fact be served, albeit that some or parts of some will be served at the same time as others. The scheme of the sentencing legislation, as would be the case at common law, therefore requires that every term of imprisonment imposed by a judge shall be served, in each case subject to the many provisions relating to the mode of service. It follows that, whenever a sentence is imposed for more than one offence, not only must all terms be served in one way or another, but there must always be a base term which will be the basis or point of reference for all directions relating to concurrency or cumulation. That is what the judge failed to do in the present case.[25]
[25]Ibid [35]-[39] (citations omitted, emphasis original).
Nikodjevic shows clearly that a base sentence must have been imposed by the judge below, and must now be imposed. I reject the submission for the appellant to the contrary.
It is clear also that, in the ordinary case, the longest sentence imposed, when more than one sentence is imposed in the same proceeding, should be the base sentence.
In the usual case, the base sentence must be a complete sentence, not part of a sentence.
When Ormiston JA said in Nikodjevic that the situation was arguably different in the ‘latter example’,[26] he was referring to the s 6E situation. That is, his Honour contemplated that a sentence which attracted the operation of s 6E might be cumulated upon another term of imprisonment which was not ‘whole’. This implied, although his Honour did not need to decide it, that s 6E contemplates the cumulation of a s 6E sentence upon another sentence which is to be the base sentence.
[26][2004] VSCA 222 [38].
In a case where one of a number of sentences imposed upon an offender calls s 6E into operation, there is still, as I have said, the necessity that a base sentence be identified. As a matter of construction, in my opinion, the general rule that the base sentence be the longest sentence imposed in the one proceeding is displaced by the words of s 6E.
It may be said that the effect will be the same, in the present case, whether the sentence on charge 3 is treated as the base sentence and that orders for cumulation of sentences on other charges then be made. But the question is one of the proper approach; and as Batt JA said in a quite different context in MDB, a wrong approach may be the source of error, creating a distortion in sentencing.
The form of orders which I propose reflects my conclusion as to the way in which s 6E operates. But the issue which I have been discussing is one in which, in my view, a court of three judges should provide definitive guidance if and when the issue arises again. The opinion which I have expressed, and upon which I propose the Court should act in this case, is qualified to that extent.
The later County Court sentence
On 27 May 2014, in the County Court, on appeal from the Magistrates’ Court, a judge imposed a sentence of four months’ imprisonment on the appellant. Her Honour ordered that that sentence be served concurrently with the sentence imposed on 5 February 2014, which is the subject of the present appeal. The sentence imposed in the County Court apparently related to an assault by the appellant upon the complainant’s father on the day preceding the event the subject of the present matter, and breach of the intervention orders to which I have referred at [7] above.
Confronted with the fact of the later County Court sentence, the Court requested counsel to make submissions as to the way in which it should formulate its orders, in the event that the appeal was allowed.
Counsel for the appellant submitted that if this Court imposed sentence, the presumption of concurrency contained in s 16(1) of the Act would not apply, as the sentence would be imposed on a serious offender. Further, unless the sentence imposed was made concurrent, the sentence imposed on 27 May would have cumulative operation. It would be served, counsel submitted, before any non-parole period which this Court might fix. Counsel further submitted that the appellant had been in custody since 11 March 2013 in respect of the offending comprehended by the matter presently before this Court and the matter dealt with by the County Court in May this year. She submitted that consideration needed to be given to the totality of the criminality involved when settling upon the proper sentence in respect of the matters the subject of this appeal.
Counsel for the Crown submitted that if the present appeal succeeded and the appellant was re-sentenced, the order for concurrency made in the County Court would have no sentence upon which to act, the sentence imposed in the present matter on 5 February of this year having been overturned. Counsel submitted that the Court should order any sentence that it imposed be served concurrently with the sentence imposed in the County Court. Further, pre-sentence detention up to the date of the re-sentencing should be declared pursuant to s 18 of the Act. The result would be, as the County Court judge intended, that the sentence which her Honour imposed would remain totally concurrent with the sentence imposed in relation to this matter.
Counsel further submitted that s 15 of the Act was no impediment to an order for concurrency between the two sentences, one with a parole period and one without. That section, he submitted, says nothing about orders for concurrency. Its effect is that an offender must serve each non-parole period of any sentence fixed upon him before becoming eligible for parole. It was not intended to, and does not, stand in the way of an order for concurrency as between two sentences such as these. Further, counsel submitted, a construction of s 15 which did not allow for concurrency as between sentences with parole periods and sentences without parole periods would run contrary to the provisions of s 16 of the Act, in particular, s 16(1).
Neither counsel addressed the question whether this Court might make an order, if it allowed the appeal, which specified the date of commencement of the sentence as the date upon which the judge below imposed sentence.
In R v Jennings,[27] Brooking and Tadgell JJA concluded that a substituted sentence must be taken to have been passed on the date of the original sentence, but that nonetheless the period of pre-sentence detention declared by this Court should include the period down to the date of the Court’s order. JD Phillips JA dissented. In his opinion, a sentence substituted by this Court would ordinarily commence on the date of the Court’s order. But the Court was empowered to order that a substituted sentence commence on the date on which sentence had originally been imposed. If the Court so ordered, then pre-sentence detention should be declared only in respect of time spent in custody before the original date of sentence.
[27][1999] 1 VR 352 (‘Jennings’).
It is clear that, considered in the context of s 568(4) of the Crimes Act1958 and s 18 of the Sentencing Act as it then stood, none of their Honours in Jennings concluded that it was impermissible to date the commencement of a substituted sentence from the date of the sentence imposed below. Brooking and Tadgell JJA concluded that this was the effect of an order made by this Court. JD Phillips JA concluded that this Court could explicitly so order. The only substantive disagreement between their Honours, in that event, was whether pre-sentence detention would run up to the date of this Court’s order, or end at the date of commencement of the substituted sentence.
Subsequent to Jennings, the majority approach in that case has been specifically applied in a relatively few cases: R v Ngui;[28] DPP (Cth) v Haunga;[29] DPP (Cth) v Guest;[30] see also R v Rich (No 2).[31] Each of Ngui, Haunga and Guest was a case involving Commonwealth offences, and so s 16E of the Crimes Act1914 (Cth) was in point. It may have been thought desirable to state the commencement date of the sentence in light of s 16E(1) and also because, except in the case of a sentence substituted by this Court, there is no power in a Victorian court to backdate the commencement of a sentence (see, for example, Fasciale v The Queen).[32]
[28](2000) 1 VR 579 (‘Ngui’), 585 [15] (Winneke P, Callaway and Buchanan JJA agreeing).
[29](2001) 4 VR 285 (‘Huanga’), 295 [22] (Tadgell JA, Callaway and Batt JJA agreeing).
[30][2014] VSCA 29 (‘Guest’), [43] and FN 8 (Coghlan JA, Weinberg and Whelan JJA agreeing).
[31](2002) 4 VR 155, 166-7 [106] (Brooking JA, Winneke P and Charles AJA agreeing).
[32](2010) 30 VR 643, 647 [27] and FN 6 (Weinberg JA, Ashley JA agreeing).
Since Jennings was decided, s 568(4) of the Crimes Act has been repealed. It has been replaced by s 282(1) of the Criminal Procedure Act2009. The question whether this legislative change might make any difference to the reasoning in Jennings does not appear to have been explored. So also, at the time when Jennings was heard, s 18(1) of the Act did not include the words ‘including any period pending the determination of an appeal’. The first occasion upon which words to that effect were inserted into the sub-section was by the Magistrates’ Court (Amendment) Act1999. The present language came into operation when s 18(1), in much its present form, was substituted for the earlier version of the sub-section by s 3(1) of the Sentencing (Suspended Sentences) Act 2006. Cases subsequent to those amendments in which Jennings has been cited do not appear to have considered the effect which the amendments may have had.
Looking at its practice over the last decade, it is far from clear to me that this Court has ordinarily treated its substituted sentences as commencing on the date when sentence was originally imposed. It is clear, however, that on occasions it has made a specific order that the substituted sentence commence on the date upon which sentence was originally imposed. In doing so, it has applied an aspect of the dissenting approach of JD Phillips JA in Jennings.
It is also the case that, generally speaking, the Court has made a declaration of pre-sentence detention which has included time spent in custody pending appeal. But it is not clear to me whether it has made such a declaration in a matter in which it has specifically ordered that its substituted sentence commence on the date of imposition of the original sentence.
Against the background described, and in the absence of argument touching the point, I think it right to adhere to the conclusion that it is at least permissible for this Court to order that a sentence which it substitutes in place of a sentence imposed below should commence on the date of the sentence earlier imposed.
I consider that such a course should be adopted. It may then be said, I think, that there has always existed a sentence to which the order for concurrency made in the County Court matter would attach. Further, it appears to me that no problem would then arise either by reason of ss 6E or 16(1A)(c) of the Act.
Orders
Summarising my conclusions, I propose that —
(1)The appellant have leave to appeal on ground 8.
(2)The appeal against sentence on charges 1 and 2 be allowed.
(3)On those charges, the appellant be re-sentenced respectively to periods of two months and four months’ imprisonment.
(4)The sentence on charge 3 and the sentence for the summary offence be confirmed.
(5)Taking the sentence on charge 2 as the base sentence, all of the sentence on charge 3 and five months of the sentence for the summary offence be cumulated on each other and on the sentence on charge 2.
(6)Direct, so far as it may be necessary, that the sentence on charge 3 not be cumulated on the sentence on charge 1, and that there be no cumulation of the sentence on charge 1 on the sentence on charge 2.
(7)Fix the period before the appellant becomes eligible for parole as one year and seven months’ imprisonment.
(8)Order that the date of commencement of the sentence imposed by this Court
be 5 February 2014.
(9)Confirm other ancillary orders made on 5 February 2014.
The effect of these proposed orders is that the appellant will serve a total effective sentence of two years and seven months’ imprisonment, commencing on 5 February 2014, with a non-parole period of one year and seven months’ imprisonment commencing on that day.
I would declare that the period to be reckoned as already served under the sentence up to and including 5 February 2014, the date of commencement of the sentence imposed by this Court, was 332 days; and that it be noted in the records of the Court the fact that the declaration was made and its details.
If the appellant had not pleaded guilty, I would have imposed a total effective sentence of three years and six months’ imprisonment, with a non-parole period of two years’ imprisonment.
The form of the orders which I propose, the reasons why I have proposed them in that form, and the consequences for pre-sentence detention are all matters which involve some technical complexity. To be crystal clear, I intend that the sentence imposed by this Court should commence as at 5 February 2014, that the later sentence imposed in the County Court, should operate concurrently with such sentence, and that, having regard to the date specified for commencement of this sentence, pre-sentence detention should be allowed only until 5 February 2014. In case the parties or the administrative authorities suggest that there would be any difficulty in the application of the orders which I propose, I would allow the parties 24 hours after publication of reasons, before making the formal orders, in which to raise with the Court any envisaged difficulty.
BEACH JA:
I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I agree with his Honour’s conclusions and orders for the reasons given
by him. Cumulating all of the sentence on charge 3 and five months of the sentence for the summary offence on each other and the sentence on charge 2, with the sentence on charge 1 to be served concurrently, produces a total effective sentence of 2 years and 7 months’ imprisonment. I agree with Ashley JA that a non-parole period of 1 year and 7 months should be fixed.
I also agree that the sentence imposed by this Court should commence on the date of the sentence originally imposed in the County Court (5 February 2014), with 332 days being declared as the pre-sentence detention up to but not including that date, so that the order for concurrency made in the County Court on 27 May 2014 can be given effect.
Finally, while I agree with the analysis of Ashley JA concerning the operation of s 6E of the Sentencing Act 1991, I also share his view that this is a matter about which a court of three judges should provide definitive guidance if and when the issue arises again.
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