Bogdanovich v The Queen

[2011] VSCA 388

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 289

JEFFREY BOGDANOVICH

Appellant

v

THE QUEEN

Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2011
DATE OF JUDGMENT	25 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 388
JUDGMENT APPEALED FROM	R v Bogdanovich (Unreported, County Court of Victoria, Judge Jenkins, 30 July 2010)

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CRIMINAL LAW – Appeal – Sentence – Appellant sentenced on two indictments – Armed robbery, attempt to obtain property by deception, robbery, intentionally causing injury, conduct endangering persons (first indictment) – Theft x 3, reckless conduct endangering life x 8 (second indictment) – Judge ordered total cumulation between sentences on each indictment, making a total effective sentence of 10 years, and between that sentence and sentence of three years and eight months already being served – Effect of cumulation that appellant to serve 13 years and eight months – In addition, appellant had served four and a half months for breach of parole for which he received no credit – Overall result of judge’s sentence that appellant might have to serve more than 14 years – Judge fixed new single non-parole period of nine years – Principle of totality – Sentence manifestly excessive – Appeal allowed – Need to re-sentence – Court informed that appellant subsequently sentenced by County Court for other offences with two years cumulated upon earlier sentence – Overall effect that appellant might have to serve more than 16 years – Application of totality principle on re-sentencing – Sentence reduced – New single non-parole period fixed – No point of principle

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Kelly	Leanne Warren & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

WEINBERG JA:

1. This appeal illustrates, yet again, some of the difficulties that can arise when it becomes necessary to apply the totality principle in respect of multiple offences dealt with by different courts. 

1. On 9 July 2010, the appellant pleaded guilty in the County Court at Melbourne to a number of charges contained in two separate indictments.  He was sentenced for those offences on 30 July 2010.

1. Indictment A10346353 (‘the first indictment’) charged five indictable offences, and one related summary offence.  Indictment Y02444907B (‘the second indictment’), charged 11 indictable offences and 10 related summary offences. 

1. The offences charged in the two indictments were as follows:

INDICTMENT A10346353
Offence	Maximum Penalty	Sentence	Cumulation
Armed robbery (Charge 1)	25 years	3 years	Base sentence
Attempting to obtain property by deception (Charge 2)	5 years	4 months
Robbery (Charge 3)	15 years	18 months	8 months
Intentionally causing injury (Charge 4)	10 years	15 months	5 months
Conduct endangering persons (Charge 5)	5 years	8 months	3 months
Failing to stop after an accident (Summary charge)	14 days (1st offence); otherwise 1 month (minimum 14 days)	14 days
Sentence imposed on Indictment A10346353		4 years, 4 months

INDICTMENT Y02444907B
Offence	Maximum Penalty	Sentence	Cumulation
Theft (Charges 1, 4 and 10)	10 years	18 months on each charge	18 months on charge 1
Reckless conduct endangering life (Charges 2, 3, 5, 6, 7, 8, 9 and 11)	10 years	3 years on charge 5; 2 years on each other charge	Charge 5: Base sentence; 2 months on each other charge
Failure to stop after an accident (9 summary charges)	14 days (1st offence); otherwise 1 month (minimum 14 days)	14 days on each charge
Driving whilst exceeding the prescribed concentration of alcohol (Summary charge)	1 year	6 months
Sentence imposed on Indictment Y02444907B			5 years, 8 months

1. The sentencing judge ordered that the total effective sentence of five years and eight months’ imprisonment imposed in relation to the charges on the second indictment be served cumulatively upon the total effective sentence of four years and four months’ imprisonment imposed in relation to the charges on the first indictment.  That made a combined total effective sentence in respect of both indictments of 10 years’ imprisonment.  The judge ordered that this sentence be served cumulatively upon a sentence passed in the Magistrates’ Court on 17 February 2010.  She fixed a new non-parole period of nine years. 

1. It needs to be explained why such a high ratio between the non-parole period and the head sentence was fixed.    

1. The appellant had previously been dealt with, on 17 February 2010, at the Melbourne Magistrates’ Court for various offences, including burglary.  He was sentenced on that occasion to a term of seven months’ imprisonment for those offences.  In addition, he was dealt with for having breached four separate suspended sentences, all of which had been imposed between June 2007 and January 2008.  These four suspended sentences totalled, in all, five years and 10 months.  However, having regard to the totality principle, the Magistrate only partially restored those sentences.  In the end, the Magistrate imposed a total effective sentence of 44 months’ imprisonment (which included both the seven months for the instant offences dealt with, and 37 months for the suspended sentences that were breached).  A non-parole period of 26 months was fixed. 

1. We note that the appellant had been taken into custody on 29 September 2009 in relation to an earlier breach of parole, for which he owed 12 months to the Adult Parole Board.

1. Accordingly, in the period between 29 September 2009 and 17 February 2010 (just over four and a half months), the appellant was serving the 12 months’ imprisonment that he owed the Adult Parole Board. 

1. When the appellant came to be sentenced in the Magistrates’ Court on 17 February 2010 for the actual offences dealt with on that day, and the various breaches of suspended sentences, the total effective sentence of 44 months was made wholly concurrent with the seven and a half months or so that he then still owed the Adult Parole Board.  However, the net effect of all this was that the appellant received no credit, when sentenced by the Magistrate on 17 February 2010, for any pre-sentence detention.  As matters then stood, the period of 44 months would have run from 17 February 2010 until 16 October 2013, while the non-parole period of 26 months would have expired on 16 April 2012. 

1. When the judge below came to sentence the appellant she was, of course, required to take into account not just the fact that he had been serving the

Magistrates’ Court sentence since 17 February 2010, but also the fact that he had been in custody since 29 September 2009.[1]

[1]See R v Renzella [1997] 2 VR 88 (‘Renzella’), and the discussion of so-called ‘dead time’ in Warwick v The Queen (2010) 201 A Crim R 580; and Karpinski v The Queen [2011] VSCA 94. 

1. Although her Honour referred, in her sentencing remarks, to the principle of totality (and implicitly to the need to avoid a crushing sentence) the orders that she made as to cumulation resulted in the appellant having to serve, at the very least, close to 10 years’ imprisonment from the time he first went into custody, and potentially a term of just over 14 years’ imprisonment in total.[2]

   [2]The net effect of her Honour’s orders as to cumulation, made on 30 July 2010, was that the appellant would now not become eligible for parole until 29 July 2019.  That would be some nine years and 10 months after his initial remand on 29 September 2009.  The appellant’s actual sentence, consisting of the 44 months imposed on 17 February 2010 together with the 10 years’ imprisonment imposed by her Honour on 30 July 2010, would not expire until 16 October 2023.

1. The judge did not say why she considered it appropriate to make these orders for cumulation. There was nothing in s 16(3B) of the Sentencing Act 1991 that required total cumulation as between the sentences that she imposed in July 2010, and those imposed in February 2010. Her Honour was aware that the sentences imposed in February 2010 had been ordered by the Magistrate to be served wholly concurrent with the balance of the period of cancelled parole. The balance of that period would have expired in September 2010. Accordingly, any cumulation presumptively required by virtue of s 16(3B) (the offences the subject of the indictments having been committed whilst the appellant was on parole) would have been of the order of only about two months or so. And, of course, her Honour had a discretion not to order any cumulation in relation to the balance of the parole period if satisfied in accordance with that section that there existed exceptional circumstances.

1. As will be seen, the matter has become even more complex because of events that occurred after the appellant was sentenced by her Honour.  We shall return to those subsequent events later in these reasons for judgment.  However, before doing

so, it is necessary to say something about the background to the offences for which the appellant was sentenced, and about his own personal circumstances. 

Circumstances of the offending

1. It is useful to consider each of the two indictments separately. 

1. As already mentioned, the first indictment contained five indictable charges and one related summary charge.  The offences were all committed on the same day. On 30 June 2009, the appellant approached a young woman who was with her boyfriend’s young sister.  He asked the woman to show him the money she had with her.  As she removed her wallet from her handbag, he unzipped a ‘bum bag’ that he was carrying, took hold of a screwdriver, threatened the woman with it and grabbed her wallet.  After a brief struggle, the appellant ran of.  The woman yelled that she was calling the police.  The appellant then turned and once again threatened her.  He then pushed her and ran off.  This offending gave rise to charge 1 on the first indictment (armed robbery).

1. Shortly afterwards, the appellant attended a Westpac ATM and attempted unsuccessfully to withdraw cash using the woman’s ATM card.  This offending gave rise to charge 2 (attempting to obtain property by deception).

1. At that point, the appellant assaulted another woman who happened to be withdrawing money from the ATM beside him.  He pushed her to the ground, took $50 that she had withdrawn, and ran off.  This offending gave rise to charge 3 (robbery).

1. A bystander saw what the appellant had done and ran after him.  The appellant turned and said to the man, ‘Have the money back’, and offered him the $50.  As the man went to take the money the appellant punched him once in the face, causing him to fall over.  This offending gave rise to charge 4 (intentionally causing injury).

1. The appellant then drove off at high speed, on the wrong side of the road.  His car collided with another vehicle.  He failed to stop, and continued at high speed.  This offending gave rise to charge 5 (conduct endangering persons), as well as the summary offence (failing to stop after an accident).

1. Turning to the second indictment, which charged 11 indictable and 10 related summary offences, these were all committed on the evening of 2 August and in the early hours of 3 August 2009. 

1. Late on 2 August 2009, the appellant stole a Ford station wagon.  This offending gave rise to charge 1 on the second indictment (theft).

1. Early the following morning, while driving the stolen vehicle, the appellant side-swiped a truck, pulled in front of it, and skidded to a stop.  He then drove off without exchanging details. This offending gave rise to charge 2 (reckless conduct endangering life).

1. Shortly afterwards, the stolen vehicle collided with a Mercedes Benz, ramming it into a pole.  This offending gave rise to charge 3 (reckless conduct endangering life).  

1. The stolen Ford station wagon could no longer be driven.  The appellant decamped on foot, leaving the area without exchanging details.  He then stole a second vehicle, a Ford Utility.  This offending gave rise to charge 4 (theft).

1. While driving the stolen Ford Utility, the appellant overtook another vehicle and braked suddenly in front of it.  He then swerved, slowed down, and deliberately rammed that vehicle as the driver tried to make his escape.  The passenger in that car happened to be a woman who was heavily pregnant.  The appellant drove away without stopping.  This offending gave rise to charge 5 (reckless conduct endangering life). 

1. Thereafter, the appellant side-swiped and rammed a Hyundai Excel, and once again drove off without stopping.  This offending gave rise to charge 6 (reckless conduct endangering life). 

1. The appellant then flashed the high beam of the stolen Ford Utility at another vehicle.  As that other car slowed down, he side-swiped it, forcing it off the road.  He then drove away without stopping.  This offending gave rise to charge 7 (reckless conduct endangering life). 

1. Next, the Ford Utility slammed into the back of another car causing that vehicle to ‘fish-tail’.  The appellant yet again drove off without stopping.  This offending gave rise to charge 8 (reckless conduct endangering life). 

1. The appellant then struck a taxi from the rear.  He drove off without stopping.  This offending gave rise to charge 9 (reckless conduct endangering life). 

1. Shortly afterwards, some time before 7:00am, the appellant stole a third vehicle, this time a Ford Falcon sedan.  This offending gave rise to charge 10 (theft).

1. After that, the Ford Falcon collided with a Holden Barina, and once again the appellant left the scene without stopping.  This offending gave rise to charge 11 (reckless conduct endangering life). 

1. In addition to these indictable offences, the appellant’s conduct led to a number of summary charges being brought.   

The sentence imposed below

1. Prior to sentencing the appellant, the judge was told that he had served the entire period that he owed the Adult Parole Board in respect of his earlier breach of parole.

1. The judge was told correctly that, as matters then stood, the appellant would be eligible for parole, as a result of the 17 February 2010 sentence, on 16 April 2012.  She was told, incorrectly, that the end date for the appellant’s sentence in relation to the Magistrates’ Court matters was 16 October 2011.  Nothing turns upon that error as her Honour was well aware that the actual date by which the February 2010 sentence would be complete was 16 October 2013. 

1. The judge noted that the appellant had been born in 1975 and was therefore aged 35 at the time of sentence.  His parents had separated when he was 16.  His mother was employed as a law clerk, while his father had relocated to the United States. 

1. The appellant had attended St Albans Technical College and had completed year 10.  He had then served an apprenticeship and qualified as an auto electrician.  Thereafter, he had generally been gainfully employed. 

1. The appellant first began to use heroin when he was aged about 20.  He became addicted to that drug, and also developed a serious alcohol problem. 

1. In November 2008, the appellant had attended drug counselling as a condition of his parole.  It was submitted on the plea that his heroin addiction had been brought under control, primarily as a result of his having received methadone treatment. 

1. The judge accepted that there were a number of mitigating factors to which weight should be accorded.  These included the plea of guilty which, it was accepted, had been offered at the earliest practicable opportunity.  Her Honour found that the guilty plea reflected both an acceptance of responsibility, and a willingness to facilitate the course of justice.  She described it as a ‘significant’ mitigating factor. 

1. The judge was pressed with a submission that on neither occasion had the appellant’s offending been sophisticated or pre-planned.  Her Honour rejected that submission, saying that at least in the case of the armed robbery the appellant had equipped himself with a weapon which he intended to use in the commission of that offence.

1. The judge noted that counsel on behalf of the appellant on the plea had placed considerable reliance upon the principle of totality in submitting that the total effective sentence should not be ‘crushing’.  Her Honour said that she would endeavour to apply that principle when sentencing the appellant.  She added that she recognised the importance of giving the appellant ‘some realistic prospect of rehabilitation within the community’. 

1. In summarising the Crown’s submissions on sentence, the judge observed that the appellant had been on parole at the time of his offending.  That fact was said by the Crown to warrant the imposition of a particularly heavy sentence.  

1. In response to the judge’s invitation to put forward a proposed sentencing range for the various offences for which the appellant was to be sentenced, the Crown proffered what it described as a ‘range’ of between eight and a half and nine years combined for the two indictments, and a non-parole period of between seven and eight years. 

1. It need hardly be said that neither of these suggested ‘ranges’ could properly be so described.  They in no way met the requirements laid down by this Court in R v MacNeil-Brown.[3]

   [3](2008) 20 VR 677.

1. In characterising the gravity of these offences, the judge described the appellant’s offending as ‘relentless’, and as displaying ‘extreme aggression’.  She commented that the appellant had chosen ‘soft’ targets in the two robberies.  She described his various driving offences as demonstrating ‘an apparent intent to wreak as much havoc on the road as possible’. 

1. The judge found that the appellant posed a ‘high risk’ of like re-offending.  However, she said that by reason of the principle of totality, and the need to ensure proportionality, she would appreciably moderate any sentences that would be imposed. 

1. Having then fixed individual sentences in relation to each charge, her Honour made the orders for cumulation which we have previously set out. 

1. Her Honour gave no reason whatsoever as to why the various sentences imposed upon the second indictment were all made wholly cumulative upon those sentences imposed on the first indictment.  Nor did she give any reason why the combined sentences imposed upon the two indictments were made wholly cumulative upon the term of imprisonment that had been imposed on 17 February 2010. 

1. In accordance with s 14(1) of the Sentencing Act 1991, the judge then fixed a new single non-parole period in respect of all sentences the appellant was to serve or complete.  That new single non-parole period of nine years was to commence from the date of sentence, 30 July 2010.

1. There was no declaration made as to time already served, the appellant to that point having been serving the sentence imposed by the Magistrates’ Court and the balance of 12 months owed to the Adult Parole Board. 

1. Her Honour said, in accordance with s 6AAA of the Sentencing Act 1991, that but for the plea of guilty she would have imposed a total effective sentence, in relation to the two indictments, of 13 years’ imprisonment with a non-parole period of 11 years. 

The appeal to this Court

1. In his written case in support of the appeal,[4] counsel for the appellant relied upon three grounds.  In general terms, they complained of the judge having:

·failed to pay sufficient regard to the principle of totality;

·imposed, without explanation, a total effective sentence which was higher than the sentencing range suggested to the court by the prosecution; and

·imposed a sentence on charge 5 of the second indictment, and a new non-parole period, that were each manifestly excessive. 

[4]Leave to appeal having been granted on 6 May 2011.

1. In the Crown’s written outline of submissions, it was all but conceded that the judge had failed to give proper weight to the principle of totality.  It was acknowledged that her Honour’s sentencing remarks had not made clear why there had been complete cumulation ordered between the total effective sentence imposed in respect of each of the first and second indictments, and still further complete cumulation between the 10 years’ imprisonment ordered in respect of those two indictments and the 44 months’ imprisonment imposed by the Magistrates’ Court. 

1. The Crown proffered the suggestion that her Honour may have been under the mistaken impression that s 16(3B) of the Sentencing Act 1991 had some application to the appellant’s case. That suggestion was prompted by the fact that in her sentencing remarks her Honour referred to the absence of exceptional circumstances. Such language was redolent of the requirement in s 16(3B) that there be cumulation upon a parole sentence unless exceptional circumstances could be demonstrated. The Crown accepted that if her Honour had indeed approached the matter in that way, that would have constituted specific error and would have required that the sentencing discretion be re-opened.

1. In oral argument before this Court, senior counsel for the Crown went further and specifically conceded that the sentencing discretion had miscarried, and that the appellant should be re-sentenced. 

1. It was also conceded that the sentence of three years imposed on charge 5 of the second indictment was out of kilter with the other sentences of two years imposed on like-charges, and was itself manifestly excessive.

1. The Crown further acknowledged that, on a re-sentencing exercise, there could properly be a greater measure of concurrency within each of the two indictments than the judge below had ordered.  The Crown also accepted that there should have been some measure of concurrency between the sentences on those indictments, and the earlier sentence imposed by the Magistrate in February 2010. 

1. Put simply, senior counsel for the Crown accepted that the sentences imposed below could not be supported.

Conclusions

1. It is obvious that the judge’s orders for cumulation cannot stand. 

1. The effect of those orders was to expose the appellant to the possibility of his having to serve more than 14 years’ imprisonment for a series of offences that, grave though they were, did not warrant anything like that period of incarceration.

1. The task of sentencing an offender facing multiple charges is often a daunting one.  The judge must fix individual sentences that are appropriate, but must also have regard to the totality principle.  The judge must ensure that any sentence imposed is neither disproportionate to the entirety of the criminal behaviour, nor ‘crushing’.[5]

   [5]As to the meaning of a ‘crushing’ sentence in this context, see R v Yates [1985] VR 41. See also R v Beck [2005] VSCA 11, [19] (Nettle JA, with whom Vincent JA and Cummins AJA agreed).

1. The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a ‘just and appropriate measure of the total criminality involved’.[6] The totality principle is said to ‘defy precision either of description or implementation’.[7] Sometimes it is described as a requirement of ‘just deserts’,[8] and whether the total effective sentence offends that principle is often a ‘matter of impression’.[9]  A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.[10]

   [6]Postiglione v The Queen (1997) 189 CLR 295, 307-308 (McHugh J) (citations omitted); see also 321 (Gummow J), and 340 (Kirby J).

   [7]Ibid 341 (Kirby J).

   [8]Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372 (‘Azzopardi), [57] (Redlich JA with whom Coghlan and Macaulay AJJA agreed).

   [9]R v Aleksov [2003] VSCA 44, [17] (Callaway JA), cited with approval in Azzopardi [2011] VSCA 372, [58] (Redlich JA with whom Coghlan and Macaulay AJJA agreed).

   [10]A-G (SA) v Tichy (1982) 30 SASR 84, 92-3 (Wells J). Cited, with approval, in Johnson v The Queen (2004) 205 ALR 346, 348 (Gleeson CJ).

1. Where a number of technically separate offences have been committed, but they can fairly be described as ‘parts of a multi-faceted course of criminal conduct’,[11] it will often be appropriate to order substantial concurrency.

   [11]A-G (SA) v Tichy (1982) 30 SASR 84, 93 (Wells J).

1. Closely related to the totality principle is the requirement that the sentencing judge avoid the imposition of a crushing sentence.  In R v MK,[12] Chernov and Nettle JJA said:

Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released or whether it connotes the destruction of any reasonable expectation of useful life after release. But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive. In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it.[13]

[12][2005] VSCA 194.

[13]Ibid [125] (citations omitted).

1. The problem is exacerbated, however, when the sentencing judge must have regard not merely to totality in relation to the offences for which the offender is being sentenced, but also other periods of incarceration in respect of earlier and unrelated offending.[14] 

   [14]See Renzella [1997] 2 VR 88; Warwick v The Queen (2010) 201 A Crim R 580; and Karpinski v The Queen [2011] VSCA 94.

1. In Director of Public Prosecutions (Vic) v Grabovac,[15] Ormiston JA[16] noted that a sentencing judge has a discretion as to the combination of cumulation and concurrency adopted to achieve both appropriate individual sentences in respect of each offence, and an appropriate total effective sentence, having regard to proportionality and totality.  His Honour expressed a preference, however, for achieving these objects by imposing appropriate individual sentences, each reflecting the gravity of the offence, and making them largely concurrent, rather than imposing lower sentences that are individually inappropriate and making numerous orders for cumulation. 

   [15][1998] 1 VR 664 (‘Grabovac’).

   [16]With whom Winneke P and Hedigan AJA agreed.

1. It is clear that the appellant must be re-sentenced, and that the re-sentencing exercise should be conducted in accordance with the principles set out in Grabovac.

1. If that task were not sufficiently complex, it is certainly rendered so by the subsequent events to which we referred earlier in these reasons for judgment.  After the appellant had been sentenced by her Honour on 30 July 2010, he was dealt with in the Magistrates’ Court, and still later in the County Court, for a series of other offences. 

1. Not much need be said about the sentence passed in the Magistrates’ Court on 8 October 2010.  The appellant was then sentenced for offences of theft, endangering life, criminal damage, going equipped to steal, and possession of a weapon.  He received a total of two years’ imprisonment.  That sentence was made concurrent with all sentences that the appellant was then serving. 

1. Then, the Court was told, the appellant was convicted after a trial in the County Court earlier this year on one charge of aggravated burglary, one charge of indecent assault, and two charges of common assault.  On arraignment, he had pleaded guilty to charges of theft of a plasma television, and of a stereo system. 

1. Those offences were committed in the early hours of 3 August 2009, just after 4:30am. Again they were committed whilst the appellant was on parole. However, that did not lead to any s 16(3B) consequences.

1. The facts can be summarised briefly.  The appellant approached a house where three adults (one of whom it seems the appellant knew) and three children were asleep.  He banged loudly on the front door and threatened to break it down.  When one occupant of the house eventually opened the door, he grabbed her by the neck and kissed her.  He snatched at her clothing in a manner that caused her to believe that he was staring at her breasts.  He followed her inside, then pinned her to the ground, withdrew his penis, and attempted to achieve an erection.  At some point, he pulled the woman’s tracksuit pants and underpants down, but did not attempt sexual penetration.  The appellant assaulted two other occupants, before all except one occupant fled the house. 

1. Before the police could arrest him, the appellant escaped with the television and stereo system.  Later that morning he was arrested.  His blood alcohol content at 9:30am was 0.119. 

1. On 27 June 2011, the appellant was sentenced in respect of these offences to a total effective term of five years and six months’ imprisonment.  The judge was informed of the effect of the sentences imposed in relation to the charges that are the subject of the present appeal, and was aware that the appellant’s earliest release date would be 29 July 2019.  His Honour was told that the total of all sentences left to be served would expire on 15 October 2023. 

1. It was in the light of the position as it then stood that the judge took into account both the principle of totality and the need to avoid a sentence that was crushing.  His Honour ordered that two years of the sentence of five years and six months that he imposed be made cumulative upon the sentences that the appellant was then serving. 

1. Pursuant to s 14 of the Sentencing Act 1991, the judge fixed a single new non-parole period of nine years and one month commencing on 27 June 2011. 

1. The net effect of all this is that, as matters now stand, the appellant may have to serve 44 months in relation to the 17 February 2010 sentence, 10 years in relation to the two indictments, and a further two years in relation to the sentence imposed by the County Court on 27 June 2011.  There is, as well, the period between 29 September 2009 and 17 February 2010 during which the appellant was in custody in relation to his breach of parole.  That makes a total of more than 16 years. 

1. At the very least, the appellant will have to serve nine years and one month from 27 June 2011, when that single new non-parole period was fixed, together with the almost two years that he had already served up until that date.  In other words, the appellant will be required to serve a minimum of about 11 years in custody.

1. On any view, an outcome of that kind is excessive.  The question is, how best is that matter to be rectified?

1. The sentences imposed by the County Court on 27 June 2011 are not before this Court.  The orders for cumulation made by the County Court on that date were made on the basis that there was an extant sentence upon which such cumulation could be ordered.  As a result of the appeal against the sentence imposed on 30 July 2010 being allowed, that is no longer the case.  That means that whatever sentence this Court imposes when it re-sentences the appellant on the two indictments that were the subject of this appeal, it will be necessary to make new orders for cumulation.  In our view, the only way in which that can be done is to cumulate some portion of the new sentence that we now impose upon the appellant upon the total effective sentence fixed by the County Court in June of this year.[17]

   [17]We were told that the appellant does not intend to appeal against the June 2011 sentences, and senior counsel for the Crown informed us that there would be no Director’s appeal in relation to those matters. 

1. Pursuant to s 14 of the Sentencing Act 1991, it will, in any event, be necessary for this Court to fix a new single non-parole period which will cover the charges relating to the two indictments that led to this appeal, the sentence imposed in the Magistrates’ Court on 17 February 2010, the sentence imposed in the Magistrates’ Court in October 2010, and the sentence imposed in the County Court in June of this year.

1. Doing the best that we can, and having regard to the principle of totality, we would re-sentence the appellant as follows.

INDICTMENT A10346353
Offence	Maximum Penalty	Old Sentence	New Sentence	Cumulation
Armed robbery (Charge 1)	25 years	3 years	3 years	Base sentence
Attempting to obtain property by deception (Charge 2)	5 years	4 months	4 months	----
Robbery (Charge 3)	15 years	18 months	18 months	3 months
Intentionally causing injury (Charge 4)	10 years	15 months	15 months	3 months
Conduct endangering persons (Charge 5)	5 years	8 months	8 months	2 months
Failing to stop after an accident (Summary charge)	14 days (1st offence); otherwise 1 month (minimum 14 days)	14 days	14 days	----

1. The new total effective sentence in relation to the first indictment would therefore be three years and eight months’ imprisonment. 

INDICTMENT Y02444907B
Offence	Maximum Penalty	Old Sentence	New Sentence	Cumulation
Theft (Charges 1, 4 and 10)	10 years	18 months on each charge	18 months on each charge	18 months on charge 1
Reckless conduct endangering life (Charges 2, 3, 5, 6, 7, 8, 9 and 11)	10 years	3 years on charge 5; 2 years on each other charge	2 years on each charge	Charge 2: Base sentence Cumulate 2 months on each of charges 3, 5, 6, 7, 8, 9
Offence	Maximum Penalty	Old Sentence	New Sentence	Cumulation
Failure to stop after an accident (9 summary charges)	14 days (1st offence); otherwise 1 month (minimum 14 days)	14 days on each charge	14 days on each charge	----
Driving whilst exceeding the prescribed concentration of alcohol (Summary charge)	1 year	6 months	6 months	----

1. The total effective sentence on the second indictment would therefore be four years and six months’ imprisonment.

1. We would cumulate three years of the total effective sentence on the first indictment upon the total effective sentence on the second indictment, making a combined total effective sentence of seven years and six months’ imprisonment.  We would make the total effective sentence upon these two indictments concurrent with the sentence imposed in the Magistrates’ Court on 17 February 2010. 

1. We would order that four years of the combined total effective sentence of seven years and six months that we now impose be cumulated upon the sentence of five years and six months imposed by the County Court on 27 June 2011.  That results in what is in substance a total effective sentence of nine years and six months, operative from this day.

1. In accordance with s 14 of the Sentencing Act 1991, we are required to fix a new single non-parole period.  In that regard, we fix a period of seven years and six months. 

1. The new single non-parole period of seven years and six months requires some explanation.  At first blush, it seems odd that this Court would fix a non-parole period that is precisely the same length as the total effective sentence that we impose in relation to the two indictments the subject of the appeal.  However, that is precisely what the law seems to us to require in a case of this kind.   

1. The reality is that the new non-parole period now fixed encompasses not just the sentences that we impose in relation to the two indictments, but also the sentence imposed on 17 February 2010 by the Magistrates’ Court (the non-parole period of which does not expire for some months), as well as the sentences imposed by the Magistrates’ Court in October 2010, and by the County Court in June 2011. 

1. Pursuant to s 6AAA of the Sentencing Act 1991, we should indicate that, but for the pleas of guilty, we would have imposed a total effective sentence of four years and six months on the first indictment, and six years on the second indictment.

1. It is declared that the period of 483 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

1. We should say, for the sake of completeness, that the ground complaining of the judge having imposed a heavier sentence than that put forward by the Crown in the course of a MacNeil-Brown[18] submission, is without merit.  A judge is under no obligation to impose a sentence that does not exceed the upper limit of a MacNeil-Brown submission.  Nor is a judge, having imposed a sentence that does not fall within that range, required to state why that course has been adopted.   

   [18]R v MacNeil-Brown (2008) 20 VR 677.

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