Brendan Lowell (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0094

BRENDAN LOWELL (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym.

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2022
DATE OF JUDGMENT:	12 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 134
JUDGMENT APPEALED FROM:	[2021] VCC 575 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Aggravated home invasion, intentionally causing injury, theft and possessing drug of dependence – Sentenced to 6 years and 8 months’ imprisonment with 4 years and 8 months non-parole – Whether judge took into account 220 days on remand for unrelated sentence – Whether judge gave insufficient weight to applicant’s assistance to authorities – Whether manifest excess – Pre-sentence detention miscalculated – Judge took into account all mitigating features including assistance – Moderate sentence – Leave to appeal refused – McElroy v The Queen [2018] VSCA 126, El-Waly v The Queen (2012) 46 VR 656; [2012] VSCA 184, R v Boyd [2002] VSCA 102 and Mejia (a pseudonym) v The Queen [2020] VSCA 141 applied.

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Counsel
Applicant:		Mr D Dann QC
Respondent:		Mr J McWilliams
Solicitors
Applicant:	Vassis & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

The applicant pleaded guilty in the County Court to one charge of aggravated home invasion, two charges of intentionally causing injury and two charges of theft. Before the same judge on the same day, he also pleaded guilty on a separate indictment to possessing a drug of dependence, namely cannabis in a small quantity, and further he consented to two summary charges being transferred to the County Court, also pleading guilty to those charges before her Honour. Those charges were committing an indictable offence (aggravated home invasion) whilst on bail, and resisting a police officer who was an emergency worker on duty.
The applicant was sentenced on 5 May 2021 to a total effective sentence of 6 years and 8 months’ imprisonment with a minimum non-parole period of 4 years and 8 months. The full sentencing details are set out in the table below:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment K10862538.A.2
1	Aggravated home invasion[2]	25 years	54 months	Base
2	Causing injury intentionally[3]	10 years	18 months	6 months
3	Causing injury intentionally[4]	10 years	30 months	10 months
4	Theft[5]	10 years	12 months	4 months
5	Theft[6]	10 years	9 months	3 months
Indictment K10862538.B
1	Possess a drug of dependence[7]	5 penalty units	Convicted and discharged	N/A
Summary charges
15	Commit indictable offence whilst on bail[8]	3 months’ imprisonment or 30 penalty units	1 month	1 month
16	Resist emergency worker on duty[9]	60 penalty units or 6 months’ imprisonment	2 months	2 months
Total Effective Sentence:		6 years, 8 months’ imprisonment
Non-Parole Period:		4 years, 8 months’ imprisonment
Pre-sentence Detention Declared:		512 days
Section 6AAA Statement:		Total Effective Sentence 7 years, 9 months Non Parole-Period 5 years, 9 months
Other Relevant Orders: 1. Cancellation of driver licenses/permits and disqualification from obtaining a driver license/permit for 3 years from 5/5/2021. 2. Forfeiture and destruction of property. 3. Undertaking noted pursuant to s 5(2AB) of the Sentencing Act 1991.[10]

[2]Contrary to Crimes Act 1958, s 77B.

[3]Contrary to Crimes Act 1958, s 18.

[4]Contrary to Crimes Act 1958, s 18.

[5]Contrary to Crimes Act 1958, s 74.

[6]Contrary to Crimes Act 1958, s 74.

[7]Drugs, Poisons and Controlled Substances Act 1981, s 73(1).

[8]Bail Act 1977, s 30B.

[9]Summary Offences Act 1966, s 51(2).

[10]Section 5(2AB) states: ‘If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details.’

The applicant proposes the following grounds of appeal:
GROUND 1:
The Learned Sentencing Judge erred in failing to reduce the Applicant’s sentence on account of the fact that the Applicant had spent approximately 251 days in custody that were not made subject of the Section 18 declaration.
GROUND 2:
The Learned Sentencing Judge failed to give sufficient weight to the Applicant’s assistance to the authorities.
GROUND 3:
The individual sentence, total effective sentence and non-parole period are manifestly excessive.
GROUND 4:
A specific sentence error has occurred in that 543 days imprisonment should have been the subject of the Section 18 declaration rather than the 512 days declared by the Learned Sentencing Judge.

Circumstances of offending

A comprehensive Summary of Prosecution Opening for Plea was tendered on the plea. The circumstances of offending as set out are undisputed. It is convenient to recite the relevant parts of that document.
The Offending
4. At approximately 1:00 am on Wednesday the 3^rd of April 2019, Mr [Westley][11] and Mr [Mullins][12] were at their home address of [an address in Reservoir]. At this time, Mr [Westley] was in the lounge room and Mr [Mullins] was in his bedroom at the rear of the address. Parked at the rear of the property was a black 2016 Ford Mustang, registration 08 BLK (‘the Mustang’), belonging to Mr [Westley].
[11]A pseudonym.
[12]A pseudonym.
5. Mr [Westley] heard a rustling sound coming from outside the front door. He went to investigate and opened the door. As he did so, the door was pulled out from his hands.
6. Three males, including the [applicant] then pushed their way inside the house. The offenders were all wearing black balaclavas. All three offenders were armed. Mr [Westley] observed one of the offenders to be in possession of a baton in one hand and a screwdriver in the other and making demands for gold and money. Mr [Westley] described a second male carrying an object with a shiny blade. Mr [Westley] described a third male as carrying a screwdriver and possibly a baton [charge 1: aggravated home invasion]
7. The offenders hit Mr [Westley] at different stages, including with the use of weapons. Mr [Westley] attempted to defend himself but was knocked to the ground. One of the offenders [remained] with Mr [Westley], preventing him from moving, while the other two offenders [searched] through the house.
8. The noise of the struggle alerted Mr [Mullins], who then went to the lounge room where he observed the three offenders punching Mr [Westley]. Mr [Mullins] attempted to help Mr [Westley]. The offenders continued to make demands for money, gold and drugs.
9. The offenders kicked and punched Mr [Mullins], causing him to fall onto the ground. Mr [Mullins] continued to be assaulted while on the ground before the offenders turned back to Mr [Westley] and continued to assault him.
10. Mr [Mullins] was then dragged into the kitchen. One of the offenders asked Mr [Mullins] how to open the gate, saying they wanted to take the Mustang. While in the kitchen, another of the offenders stabbed Mr [Mullins] to the abdomen. Mr [Mullins] described the weapon used to stab him as a silver coloured tyre lever with a curved edge. The male with the red jumper walked out the back of the property and then returned to the kitchen, demanding the keys to the Mustang and that Mr [Mullins] sign the car over to them.
11. The offenders left the house via the back door and stole the Mustang using the keys they took from inside the property [charge 4: theft]. The offenders also stole cash and gold jewellery [charge 5: theft]. The total amount of cash stolen was $1800, $1,000 belonging to Mr [Westley] and $800 belonging to Mr [Mullins].
12. April Bravington, who lived at a neighbouring property, heard raised voices and crashing noises coming from Number 10. More specifically, Ms Bravington heard someone ask for keys to the Mustang and a person asking about money. Ms Bravington also observed the Mustang being driven away. After the offenders left, Mr [Westley] ran to the next-door property and alerted Ms Bravington to what was happening and asked her to contact the Ambulance and Police. Ms Bravington called ‘000’ and notified Police of the incident.
13. A short time later, Police arrived on the scene.
14. Mr [Westley] was transported to the Royal Melbourne Hospital. He suffered injuries, including a broken rib; a penetrating injury to the rear of his neck; a cut to the upper lip; bruising around the left eye; and multiple abrasions to the chest, abdomen and scalp [charge 2: causing injury intentionally].
15. Mr [Mullins] was also transported to the Royal Melbourne Hospital. He suffered a laceration through the left side of the chest, approximately 3 cm in length, A chest x-ray showed evidence of blood in the left side of the chest with a small amount of lung collapse. A CT scan also showed a laceration to the lung and a small amount of gas around the heart. Mr [Mullins] also suffered a laceration to his scalp. [charge 3: causing injury intentionally].
16. At approximately 6:30am on 3 April 2019, First Constable Dutton was at the 7-Eleven service station, located at the corner of Flemington Road and Wreckyn Street, North Melbourne, next door to the North Melbourne Police Station. As Constable Dutton was leaving the store, he observed the Mustang parked at the petrol pump. Constable Dutton observed two occupants in the vehicle. The [applicant] was in the driver’s seat of the Mustang.
17. Constable Dutton then returned to the North Melbourne Police Station to get more Police members to assist with the arrest of the two males in the Mustang, Constable Dutton relying on the information that the Mustang was involved in the earlier incident at 10 Excelsior Street.
18. When First Constable Dutton has returned to the service station, the Mustang had left the area.
19. At approximately 7:20am, George Goutzioulis was driving east on Carlisle Street, St Kilda, approaching the intersection with Havelock Street. Mr Goutzioulis observed the Mustang cut in front of him as the vehicle turned right from Carlisle Street into Havelock Street. Mr Goutzioulis contacted the St Kilda Police station to report his observations.
20. A short time later, Mr Goutzioulis observed the Mustang parked in Havelock Street and updated Police.
21. Mr Goutzioulis kept observations of the Mustang and observed a male return to the vehicle and open the driver’s side door and rummage through the vehicle. The male then went over to the other side of the car and opened the front passenger door and rummage through the vehicle. This was [the applicant].
22. As [the applicant] started walking away from the vehicle, Police arrived at the scene. Sergeant Sklavounos arrived and spoke to [the applicant]. Sergeant Sklavounos observed [the applicant] to be in possession of a plastic bag containing a chisel and other unknown items. Sergeant Sklavounos took the bag from [the applicant] and placed it on the ground.
23. After a short conversation, [the applicant] ran away from Sergeant Sklavounos and fled from the scene, running along Havelock Street towards Carlisle Street. Sergeant Sklavounos pursued [the applicant] along Carlisle Street and then right into Albert Street towards Acland Street. At this point, [the applicant] extended his distance from Sergeant Sklavounos, who then ran back to his police vehicle. On the way back to his police vehicle, Sergeant Sklavounos updated another police member on the direction [the applicant was last seen running.
24. On his return to the vehicle, Sergeant Sklavounos collected the plastic bag with the chisel.
25. CCTV footage depicts [the applicant] discarding his hat after fleeing from Police. [The applicant] also discarded a balaclava as well as discarding the keys to the Mustang into rubbish bins located to the rear of 92A and 94 Acland Street, St Kilda.
26. Numerous Police units attended the area and assisted with the search for [the applicant].
27. At approximately 7:49 am, Detective Senior Constable Lavakeiaho observed [the applicant] jump the fence at the rear of The Globe store on Irwell Street and running towards Acland Street, with uniform Police members giving chase.
28. DSC Lavakeiaho ran towards [the applicant] and announced he was the Police and positioned himself in front of the male in an attempt to stop him. [The applicant] continued to run at speed and used his body weight to push past DSC Lavakeiaho.
29. DSC Lavakeiaho grabbed [the applicant’s] jumper and dragged him to the ground. Numerous other Police members attended and assisted with the arrest. [The applicant] resisted arrest by not allowing Police to secure his hands in handcuffs [summary charge 16: resist police].
30. After [the applicant] was arrested, he was searched and Police located a small quantity of cannabis, approximately 1 gram, in his front left pocket [charge 1, Indictment K10862538.B: possess a drug of dependence].
31. At the time of the offending, [the applicant] was on bail, having been bailed on the 25^th of January 2019 on a charge of affray [summary charge 15: commit an indictable offence whilst on bail].
This was grave offending.
In his interview with police the applicant denied the offending and constructed a complicated and largely false account.
Subsequent investigation revealed that blood was detected on the blade of the chisel found in the applicant’s possession. DNA analysis provided ‘extremely strong support’ that Mr Mullins was a contributor to that DNA profile.
The applicant’s shoes were seized. Blood pattern analysis suggested that spatter stains observed on various parts of the shoes indicated that the shoes had been in close proximity to ‘an event resulting in the airborne disposal [sic] of liquid blood’.
The key to the stolen Mustang and a balaclava were found in the vicinity of the applicant’s flight pathway throughout the streets of St Kilda.
At the time the prosecution summary was prepared police were unable to identify the two co-offenders.
The applicant was charged on 3 April 2019. In September 2019 he conducted a contested committal, cross-examining the complainant’s treating doctors and a police witness. By August 2020 the applicant conducted pre-trial examinations of two witnesses. Further witnesses were the subject of pre-trial cross-examination in September and October 2020. On 26 October 2020, the matter resolved and the applicant was arraigned, pleading guilty the next day.

The plea hearing

Aggravated home invasion is a ‘category 1’ offence under s 3(1) of the Sentencing Act 1991 (‘the Act’). Section 10AC of the Act requires that a term of imprisonment be imposed for the offence of aggravated home invasion and (in the absence of certain specified circumstances) a non-parole period of not less than 3 years be fixed.
On 2 December 2020, the plea commenced. In camera the applicant’s counsel requested an adjournment in order to facilitate his client providing assistance to the investigating authorities. The plea commenced on that day with the tender of various documents including the Prosecution Opening for the Plea and a psychiatric report from Dr Danny Sullivan. Defence counsel then set out his client’s background to which we shall refer in more detail later in these reasons. He contended that there was a solid utilitarian value to the plea, despite its late entry. The judge remarked that that value was to be diminished by the amount of court time spent by the applicant conducting pre-trial examinations of various witnesses.[13] Defence counsel accepted that this was an ‘11^th hour’ plea. He contended that despite this, various factors in combination (including the putative co-operation with the authorities, his late plea, and several testimonials) could lead to an inference that the applicant was remorseful for his actions. The judge, unsurprisingly, queried this, noting that the applicant fled from the police on several occasions and denied his guilt for a long time.
[13]Counsel spent six days cross-examining three witnesses.
It was put on the applicant’s behalf that he had strong family support, is in a relationship with a 14-month-old child and that Dr Sullivan’s psychiatric report was supportive if ‘not the strongest report’. Defence counsel sought to rely on Dr Sullivan’s conclusion that the applicant’s predisposition to anxiety and depression was likely to be exacerbated by incarceration, although, as the judge correctly observed the applicant’s impairments of lowered mood and anxiety symptoms were mild.
In response to a question from the bench about the respective roles played by the three offenders, the following exchange occurred:
[PROSECUTOR]: … In terms of who did what at the house, and more particularly, who was responsible — actually responsible for the stabbing of Mr [Mullins], the Crown can’t say which of the three offenders specifically did that, given the differences in descriptions, for example, between Mr [Mullins] and Mr [Westley].
In my submission it wouldn’t be safe the Crown to say that, ‘We can definitely say that [the applicant] is responsible for these particular acts’. What it is put as is that all three entered together, they were all armed with weapons, and they are culpable for the actions of each other on a complicity basis.
Defence counsel submitted that the applicant’s explanation for the offending was ‘drugs and alcohol’. The victims were the applicant’s drug dealers, known to the applicant and his co-offenders. This was ‘part of the story’. The prosecutor pointed out that if the victims were targeted, this may not be a mitigating factor at all, but perhaps an aggravating one. The plea hearing was then adjourned to 19 March 2021.
Prior to that day the applicant had provided a statement to police detailing his involvement in the offending, the identity of another offender, and a description and nickname of the third offender. On 19 March, her Honour pointed out that there were some discrepancies between the prosecution opening and the content in the statement. Counsel for the applicant accepted that the prosecution opening was undisputed and that it provided the factual basis for sentence. The applicant signed an undertaking to assist police and, if required, to give evidence in accordance with his statement at any trial of a co-offender.

The judge’s reasons for sentence

The judge summarised the circumstances of the offending as outlined above at [4].[14]

Criminal history

[14]DPP v Lowell (a pseudonym) [2021] VCC 575, [2]–[15] (‘Reasons’).

The judge then charted the applicant’s extensive criminal history, noting:[15]
[15]Ibid [20]–[23].
•On 27 April 2011, the applicant appeared in the Paramatta Children’s Court, New South Wales, for offences of robbery in company and affray.
•On 25 May 2015, the applicant appeared in the Downing Centre Local Court, New South Wales, for possessing a prohibited drug.
•On 27 April 2016, he was convicted at the Dandenong Magistrates’ Court for intentionally damaging property, failing to stop after an accident, intentionally damaging or destroying property and unlawful assault. He was ordered to undertake a Community Correction Order.
•On 3 November 2016, at the Dandenong Magistrates’ Court, he was found to have contravened the April 2016 Community Correction Order, which was varied by the Court, and further convicted of contravening a Family Violence Intervention Order, unlawful assault, theft of a motor vehicle and using a carriage service to menace.
•On 24 January 2018, the applicant pleaded guilty to a charge of robbery before the Dandenong Magistrates’ Court, with the matter being adjourned to 20 April 2018. Also on 20 April 2018, at the Dandenong Magistrates’ Court, the applicant appeared on a charge of contravening the November 2016 Community Correction Order; two further charges of contravening Family Violence Intervention Orders; and theft and theft of a motor vehicle. He was sentenced for these matters together, to a total effective sentence of 157 days’ imprisonment with an 18-month Community Correction Order.
•On 25 January 2019, the applicant was charged with affray and granted bail.

Personal circumstances and psychiatric background

The judge then turned to the psychiatric material tendered on the applicant’s behalf.[16] The applicant’s personal history was set out in the report by Dr Sullivan, and was summarised by the judge. The applicant was 25 at the time of the offending subject of this appeal. The applicant’s parents were harsh disciplinarians, particularly his father. The applicant also said that he was inappropriately touched by an uncle when he was around 14 years old. He attended school until the end of Year 11 and began an apprenticeship in carpentry, which he did not complete. He has done some labouring and forklift driving work but reported to Dr Sullivan that ‘his employment tended to end when he lost motivation and ceased attending work’. His child was born in October 2019 whilst the applicant was in prison.
[16]Ibid [25]–[28].
Dr Sullivan reported that the applicant has ‘a significant history of substance use which would meet the diagnosis of polysubstance dependence, including cannabis, stimulants, and benzodiazepines’. He began smoking cannabis regularly from age 17 and regularly binge drinking alcohol from age 18. Further, he commenced using methamphetamine (‘ice’) heavily at different periods from the age of 18 and periodically (but not regularly) used cocaine, ecstasy, ketamine and GHB. To assist in coming down from stimulants, the applicant used various prescription sedative medications. The applicant stated that he had experienced occasional auditory hallucinations and paranoia.
Dr Sullivan made a provisional diagnosis of a recurrent mild depressive disorder and differential diagnosis of mixed anxiety/depression induced by substance abuse. The judge accepted Dr Sullivan’s finding that the applicant’s symptoms relating to depression and anxiety, albeit mild, would make imprisonment more onerous.

Guilty pleas

The judge found that the applicant was entitled to some discount on the sentence which she would otherwise have imposed for his pleas of guilty on the two indictments. The pleas were entered during the COVID-19 restrictions which made it impossible for criminal trials to be run in the County Court. However, the utilitarian value was ‘considerably diminished’ by the ‘very late’ stage at which they were entered.[17]
[17]Ibid [29].
At the plea hearing, the applicant’s counsel submitted that the pleas of guilty could be regarded as evidence of remorse. This was rejected by the judge because of the applicant’s denials to police that he was involved in the offending. His counsel also argued that the following extract in the applicant’s statement to police: ‘I’m making this statement of my own free will and I reached out to investigators. I have had a lot of time to think about things and want to make it right’, was an expression of remorse. The judge however found this to be ‘an ambiguous statement, which cannot necessarily be construed as an expression of sorrow for the serious crimes [the applicant has] committed’. The judge did not accept that there was evidence of regret over his actions.[18]

Assistance

[18]Ibid [30].

The applicant provided assistance to authorities.[19] The information he provided enabled police to identify and prosecute one of the two co-offenders. The prosecution accepted that the applicant gave ‘full and frank disclosure’ as to this co-offender’s identity.[20] The applicant also gave an undertaking to assist law enforcement. As a result, the judge stated:[21]
In all of the circumstances I accept that this cooperation with authorities should attract a significant and meaningful discount on the sentence which otherwise would have been imposed and should be reflected in both the head sentence and minimum sentence imposed.
I am not satisfied on the balance of probabilities that your decision to cooperate with authorities approximately 1 ½ years after the commission of the offences was borne of remorse on your part, an expression of sorrow for what you did to the victims and a desire to atone, as distinct from a desire to reduce your own sentence… Nevertheless, even where the motive to cooperate is one of self-interest, an offender should still be entitled to a discount for such cooperation.
[19]See [17] above.
[20]Reasons, [34].
[21]Ibid [31]–[32].
The judge ultimately characterised the applicant’s assistance as ‘significant but not very significant’, and whilst there was potential risk to the applicant or his family there was no specific evidence of any risk over and above the usual risks attendant upon being an informer.[22] The judge thus concluded that no special reason existed pursuant to s 10A(2) of the Act which would justify not imposing a minimum term of imprisonment of 3 years on the offence of aggravated home invasion.

Moral culpability and prospects of rehabilitation

[22]Ibid [61]–[62].

The judge found that the applicant’s moral culpability was high and that the offending was an ‘extremely serious example’ of aggravated home invasion.[23] She took into account that the applicant was still relatively young, being 27 years of age at the time of sentence, with some prospects of rehabilitation. However, there was a lack of evidence of true remorse; the applicant had minimised his role in the offending in his statement to police; and had a lengthy history of substance abuse, leading the judge to ‘be cautious in expressing a view concerning [the applicant’s] prospects of rehabilitation.’[24] To his credit, the applicant had undertaken 19 courses and work as a billet whilst in custody.
[23]Ibid [62], [63].
[24]Ibid [63].

This application

Grounds 1 and 4 can be considered together.
It is common ground that pre-sentence detention was miscalculated, as alleged in ground 4. Rather than the 512 days’ imprisonment declared, 543 days should have been declared. This does not amount to a sentencing error such as to reopen the sentencing discretion. This Court has held that this type of error ‘is not a sentencing error’.[25] It does not affect the validity of the sentencing discretion itself as a declaration of pre-sentence detention is not part of the sentence imposed but rather an official statement of time served under the sentence.[26] We shall order that an adjustment be made to this declaration to reflect the true position.
[25]Nov v The Queen [2020] VSCA 11, [1].
[26]Ibid [1]. See also DPP v TY [No 2] (2009) 24 VR 705; [2009] VSCA 226.
Insofar as the unrelated sentence is concerned (ground 1) the applicant contended that, despite the fact that the 220 days of the period on remand were for an unrelated sentence (affray), the judge was obliged to take into account this period of imprisonment in the applicant’s favour on sentence. The applicant complains that this 220-day period was ‘doubly warranted’ and was not taken into account by the judge.
In Wheldon v The Queen,[27] the prisoner whilst on remand for recklessly causing serious injury was required to serve a short sentence for an unrelated sentence. The court said:[28]
The sole ground of appeal in this Court in relation to which leave was granted raises the question of the discretion recognised in R v Renzella.[29] In Renzella, Winneke P, Charles and Callaway JJA, in a joint judgment, followed the approach of Brooking JA in Heaney’s case[30] in recognising that at common law there was a discretion, when sentencing an offender, to take into account the offender’s detention in custody in circumstances where the detention was ‘warranted twice over’,[31] by the offence in relation to which the instant sentence was imposed, and by unrelated offending.
The discretion permitted the sentencing judge to take that detention into account ‘in a broad way’ by reducing the head sentence and non‑parole period. This was so despite the fact that this could not be taken into account under what was then s 18(1) of the Sentencing Act1991 …
[27](2011) 31 VR 297; [2011] VSCA 83.
[28]Ibid 300 [18]–[19] (Tate JA, with Nettle and Neave JJA agreeing) (citations as in original).
[29][1997] 2 VR 88.
[30](Unreported, Supreme Court of Victoria, 27 March 1996).
[31] R v Renzella [1997] 2 VR 88, 96.
In El-Waly v The Queen,[32] the Court took a slightly different approach. Whilst accepting that time spent in custody for an unrelated sentence, whilst on remand for a particular offence, should be taken into account when sentencing for the particular offence it was preferable to take it into account under the umbrella of totality, rather than under the Renzella discretion. The Court said:[33]
We would have thought that this case, where the appellant was on remand for the current offences, while at the same time serving a term of imprisonment for another offence which cannot be claimed as presentence detention under s 18, raises an issue of totality, rather than calling for the application of Renzella.[34] We note however, that in Wheldon v The Queen[35] the Crown conceded that such a period should be treated as Renzella time. In Wheldon, the Court accepted that concession.
[32](2012) 46 VR 656; [2012] VSCA 184 (‘El-Waly’).
[33]Ibid 674 [111] (Neave and Weinberg JJA and Bell AJA) (citations as in original). See also R v Boyd [2002] VSCA 102, [21]–[25] (‘Boyd’); McElroy v The Queen [2018] VSCA 126, [191] (‘McElroy’).
[34]Cf Karpinski [2011] VSCA 94, [70]–[75].
[35][2011] VSCA 83 (‘Wheldon’).
In our view it was incumbent upon the trial judge to take account of this 220-day period in the applicant’s favour on sentence, regardless of whether it is considered under the principle of totality, or as some variant of ‘Renzella time’. For our part we consider it to be more appropriate to consider it under the umbrella of totality and to be evaluated in the broad way applied in Boyd,[36] El-Waly[37] and McElroy.[38]
[36][2002] VSCA 102, [21]–[25].
[37](2012) 46 VR 656, [111] (Neave and Weinberg JJA and Bell AJA); [2012] VSCA 184.
[38][2018] VSCA 126, [191].
It is unclear to us whether the trial judge took into account this 220-day period as having an impact upon the sentence that she imposed on the applicant. Certainly her Honour was acutely aware of the status of the applicant’s time on remand. At [19] of her reasons for sentence, the judge noted the applicant’s intervening sentence. We agree with the respondent that the judge therefore would have been aware that the continuous time the applicant was required to spend in custody was extended by 220 days as a consequence of this unrelated offending. So much is clear enough.
What is unclear however is whether the judge took this period into account at all. At [63] of her reasons for sentence the judge specifically stated that she was mindful of the principle of totality, but that statement was made in the context of considering concurrency and cumulation. Whilst the judge made no specific mention of the 220 days as impacting her assessment of totality as a mitigating or compressive factor, we are unable to positively conclude that she did not take it into account in this way. The mere failure to mention a factor bearing on sentence is not usually evidence of a failure to take that factor into account.[39]
[39]R v Giakas [1988] VR 973, 977 (Young CJ, Crockett and Marks JJ); R v Gray [1977] VR 225, 233 (Gillard, McInerney and Crockett JJ); Cuthbertson v The Queen [2019] VSCA 104, [57]–[59].
Even if this aspect somehow eluded her Honour’s sentence, and we don’t think that it did, for reasons that we shall set out when considering grounds 2 and 3, we consider that the individual sentences imposed and the total effective sentence imposed are certainly not stern. Even if error were established under this ground, we consider there to be no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed.[40]
[40]Criminal Procedure Act 2009, s 280(1)(a).
Grounds 1 and 4 must be refused.

Grounds 2 and 3

Grounds 2 and 3 can be considered together. We have set out the offending in some detail at [4] of these reasons. It is dreadful offending. Ground 2 is a complaint about weight and is properly considered under the rubric of manifest excess.
It is settled law that assistance given by an offender to the authorities must be accorded a really substantial sentencing benefit in the instinctive synthesis. It is in the public interest that offenders be encouraged to inform upon co-offenders.[41]
[41]Cottee v The Queen [2010] VSCA 285, [25]; Mejia (a pseudonym) v The Queen, [2020] VSCA 141, [1] (‘Mejia’).
In this case the applicant made a statement to police identifying a hitherto unidentified co-offender. The prosecutor at the plea hearing acknowledged that this involved a full and frank disclosure which enabled police to charge the co-offender. The applicant had also undertaken to assist in further investigations concerning his two co-offenders and to give evidence in future related proceedings.
The judge correctly assessed the applicant’s co-operation as significant and ‘crucial to the prosecution case against one co-offender’, although her Honour considered the value of this evidence[42]
may well be eroded by the passage of time together with the fact that [the applicant has] undermined the seriousness of the offending in [his] statement by failing to acknowledge that [he] and [his] co-offenders were disguised by wearing balaclavas and that [they] were all armed with weapons of various types.
There is no error suggested by the applicant in these remarks.
[42]Reasons, [34].
It is clear, as was conceded by the prosecutor on the plea, that by co-operating with authorities the applicant had exposed himself to physical risk. The applicant submitted on this application that it was highly likely that the applicant’s co-operation with authorities would become known in circumstances where the subject of his co-operation were his co-offenders, one of whom was already in custody.
We agree with this submission, as did her Honour.[43]
[43]Ibid [34].
In Mejia, the Court expressed with clarity the sentencing challenge presented by a ‘cooperation discount’.[44]
It has long been accepted that an offender who provides assistance to law enforcement authorities is entitled to seek a reduced sentence on that account. The availability of a ‘cooperation discount’ is of vital importance to the administration of criminal justice. It serves the public policy objective of encouraging offenders to provide information which will help bring other offenders to justice.[45]
Determining the extent of the discount to which an offender is entitled is, however, a task of particular difficulty for the sentencing court. On the one hand, the discount must reflect the benefit flowing, or likely to flow, from the assistance provided, and the risk to which the offender is exposed by reason of having given the assistance. On the other hand, the discounted sentence must be — and be seen to be — an adequate punishment for the offending, having regard to its objective gravity, the offender’s moral culpability and the need for deterrence of the crime in question.[46]
[44][2020] VSCA 141, [1]–[2].
[45]R v Su [1997] 1 VR 1, 77 (Winneke P, Hayne and Southwell JJA); R v Cartwright (1989) 17 NSWLR 243, 252 (Hunt and Badgery-Parker JJ); Collins (a pseudonym) v The Queen [2018] VSCA 131, [25] (Osborn JA).
[46]R v Gallagher (1991) 23 NSWLR 220, 232 (Gleeson CJ); R v Johnston (2008) 186 A Crim R 345, 350 [18]; [2008] VSCA 133 (Nettle JA).
In the present case, as we have observed, the judge characterised the applicant’s assistance as ‘significant but not very significant’.[47] Her Honour evaluated the applicant’s co-operation in this way:[48]
I agree with the submissions of … the prosecution that your assistance is not close to the high level of discount that is reserved for what has been referred to as ‘true informers’. However, it must be acknowledged that, if the charges against your co-accused proceed to committal or trial, it is inevitable that the fact of your cooperation with law enforcement authorities will become known. This carries with it a risk of reprisals and the burden of imprisonment is thereby increased. There is a potential risk to your family, but there is no specific material before the Court in relation to any actual risk. There is always a risk to an offender who provides cooperation, but there is no suggestion that this offending was conducted by an organised crime syndicate of any sort. Indeed, your statement to police indicates that you were 6 to 8 years older than your two co-offenders, one of whom you had known for only a matter of months, and the other of whom you’d only met on three occasions, and were unable to supply any significant identifying factors about to the police. Further, the offending in respect of which you have provided information to authorities involves a high level of moral culpability on your part to which I will now refer.
While the discount for your cooperation must reflect the benefit that is likely to flow in terms of investigation by law enforcement authorities or prosecution of an offender as well as acknowledging the potential risk to you as an informer, the sentence must also be adequate in order to give emphasis to the sentencing objectives of denunciation, general and specific deterrence, and just punishment, by having regard to the overall gravity of your criminal offending and the nature and extent of your moral culpability for it.[49]
[47]Reasons, [62].
[48]Ibid [35]–[36].
[49]Mejia [2020] VSCA 141, [2].
There is no error identified in these careful and comprehensive sentencing remarks. The judge plainly took into account all relevant factors. The applicant was entitled to a ‘significant and meaningful discount’ for his co-operation with authorities, and the judge articulated this:[50]
In all of the circumstances I accept that this cooperation with authorities should attract a significant and meaningful discount on the sentence which otherwise would have been imposed and should be reflected in both the head sentence and minimum sentence imposed.
[50]Reasons, [31].
The applicant’s argument proceeds on the basis that when all mitigating factors are taken into account, including this ‘significant and meaningful discount’, the sentence imposed is wholly beyond the sentencing range available in the reasonable exercise of the judge’s sentencing discretion. In short compass the other factors in mitigation are:
•Late plea of guilty.[51]
•Impact of COVID, including a Worboyes allowance.[52]
•Difficult childhood.[53]
•Family support.[54]
•Relative youth.[55]
•Anxiety and depression.[56]
•Lengthy history of substance abuse.[57]
•Some prospects of rehabilitation.[58]
•The principle of totality generally and specifically as set out in our discussion under ground 1 of this application.
[51]Ibid [29].
[52]See Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169. Reasons, [53].
[53]Reasons, [48].
[54]Ibid [49]–[50].
[55]Ibid [52].
[56]Ibid [27], [52]–[53].
[57]Ibid [25]–[27], [63].
[58]Ibid [63].
As this Court routinely states, grounds of manifest excess allege implied sentencing error said to be inferred from the actual sentence or sentences imposed. To make good such an argument an applicant must clearly demonstrate that the sentence/s are wholly beyond the range available to the sentencing judge in the reasonable exercise of his or her sentencing discretion.[59] There is nothing nuanced about this ground. The sentence imposed must be unreasonable or plainly unjust. This is a difficult ground to establish.
[59]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

On any view the individual sentences imposed, all at or less than 25 per cent of the maximum penalty available for the particular offence being considered, are extremely moderate for what is grave offending indeed. We also regard the orders for cumulation and the non-parole period as moderate given the circumstances of the offending. We consider it is apparent from the judge’s sentencing remarks and the sentences imposed that the judge took into account all mitigating factors including the significant and meaningful discount for co-operation when synthesising her sentence. The applicant contended that if this were the case, the judge must have started her synthesis from a very high base. Without descending into a two– or three–stage analysis, it is sufficient to observe that the objective seriousness of this truly serious offending remained a factor of central importance in this sentencing exercise as did the applicant’s high level of moral culpability. The weight given to these factors required some moderation in the circumstances we have set out. Striking this balance was no easy task. In this case, the judge needed to balance these powerfully competing factors and distil a sentence that reflected all of the mitigating factors but also provided adequate punishment for the offending itself. We can discern no implied error in this difficult sentencing exercise. Leave to appeal on grounds 2 and 3 must be refused.
The application for leave to appeal will be refused.

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[2022] VSCA 134

12 July 2022