Contin v The Queen
[2012] VSCA 247
•4 October 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2011 0301
| MARK CONTIN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN and WEINBERG JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 15 August 2012 | |
| DATE OF JUDGMENT | 4 October 2012 | |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 247 | 1st rev: 14 February 2013 par [48], [51] |
| JUDGMENT APPEALED FROM | R v Contin (Unreported, County Court of Victoria, Judge Montgomery, 18 November 2011) | |
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CRIMINAL LAW — Appeal against sentence — Pleas of guilty to one charge of burglary, one charge of theft, two charges of kidnapping and one charge of robbery — Offences committed on 8 February 2008 — Two female victims, one elderly — Small amount of cash stolen — Total effective sentence of eight years’ imprisonment with non-parole period of five years and six months — Offences committed whilst appellant on parole with respect to sentence imposed in 2003 for similar offending—Previously sentenced in May 2009 to four years and two months’ imprisonment with non-parole period of two years and ten months for offences of same general character committed on 23 January and 16 February 2008 — Parole for 2003 offences cancelled in May 2010 — Approximately two years and six months of 2003 sentence required to be served, as well as sentences imposed in May 2009 — Whether sentence of eight years’ imprisonment with non-parole period of five years and six months offended principle of totality — Appeal allowed — Appellant resentenced — New single non-parole period fixed — Sentencing Act 1991 s 16(3B).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr V G Peters | Mr G Thomas |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I have had the considerable advantage of reading the draft reasons prepared by Weinberg JA. I agree that the appeal should be allowed for the reasons stated by Weinberg JA and that the appellant should be resentenced as his Honour proposes.
WEINBERG JA:
The appellant pleaded guilty in the County Court at Melbourne to one charge of burglary (charge 1), one charge of theft (charge 2), two charges of kidnapping (charges 3 and 4), and one charge of robbery (charge 5). On 18 November 2011, he was sentenced, by Judge Montgomery, as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Burglary
[Crimes Act (Vic) 1958 s 76(1)]10 years 2 years 1 year 2 Theft [Crimes Act (Vic) 1958 s 72] 10 years 1 year 3 Kidnapping
[Common law] [Crimes Act (Vic) 1958 s 320]25 years 3 years 1 year 4 Kidnapping
[Common law] [Crimes Act (Vic) 1958 s 320]25 years 3 years 1 year 5 Robbery
[Crimes Act (Vic) 1958 s 75(1)]15 years 5 years Base Total Effective Sentence: 8 years’ imprisonment Non-Parole Period: 5 years and 6 months Pre-sentence Detention Declared: Nil s 6AAA Statement: 10 years’ imprisonment with a non-parole period of 8 years’ imprisonment
The offences in question were all committed on the same day, 8 February 2008. The victims were two women, a mother and daughter. The mother was aged 81 at the time.
The offending began with a burglary at the elder woman’s home whilst she and her daughter were out shopping (charge 1: burglary). They disturbed the appellant upon their return. He then stole $50 from the mother’s handbag, and ransacked the house over a period of two hours whilst the women were present (charge 2: theft). The appellant then took the women, against their will, to a nearby ATM in the younger woman’s car (charges 3 and 4: kidnapping). After unsuccessfully trying to get the younger woman to withdraw money from the ATM for him, he produced a knife and threatened her with it. That led her to drive him to her sister’s home, where she procured $150 in cash (charge 5: robbery).
The entire bizarre event ended when the appellant walked away from the car after handing the younger woman $8.50 for petrol and telling her that he would return the $200 to her the following day. He also told her that he was ‘sorry’. She described the appellant as being ‘obviously on drugs’.
After a lengthy delay, charges were laid and the appellant eventually pleaded guilty.
The appellant was not entitled to credit for any presentence detention in respect of the sentence imposed for these offences. This was because he was, at the time, serving a period of cancelled parole. His parole had been revoked because he was charged not only with the offences committed on 8 February 2008, but also other offences committed on 23 January 2008 and 16 February 2008. Those offences were similar, in some respects, to the offences that are the subject of this appeal. They included two charges of burglary, two charges of theft, one charge of false imprisonment and one charge of recklessly causing serious injury.
On 21 May 2009, the appellant was sentenced by Judge Hicks for the offences committed on 23 January 2008 and 16 February 2008 (‘the Judge Hicks offences’). His total effective sentence for those offences was four years and two months’ imprisonment with a non-parole period of two years and ten months.
At the time the appellant committed the Judge Hicks offences, and those dealt with by Judge Montgomery, he was still on parole. He had been sentenced on 12 March 2003 to seven years’ imprisonment with a non-parole period of four years and six months for aggravated burglary, armed robbery, and kidnapping.
The offending for which Judge Hicks sentenced the appellant was clearly part of an ongoing escapade which included the offences dealt with by Judge Montgomery. In granting leave to appeal in respect of the Judge Montgomery sentences, Bongiorno JA observed that that fact did not, of course, lessen the gravity or seriousness of the individual charges for which Judge Montgomery sentenced the appellant. It did mean, however, that the principle of totality had to be given effect in fixing the appellant’s sentences for the offences committed on 8 February 2008.
Grounds of appeal
The appellant’s case rests upon three grounds. First, he contends that the total effective sentence of eight years and the non-parole period of five years and six months were both manifestly excessive. Secondly, he submits that the sentencing judge failed properly to apply the principles in R v Verdins.[1] Finally, he argues that the sentencing judge failed properly to take into account the effect of s 16(3B) of the Sentencing Act 1991.
[1](2007) 16 VR 269.
In support of his claim of manifest excess, the appellant relies primarily upon both the weight to be accorded to delay, and the principle of totality.
With regard to delay, the appellant was arrested on 29 February 2008 in relation to the Judge Hicks offences. On 22 April 2008, he was interviewed by police in relation to the Judge Montgomery offences, but declined to comment. He was not charged with those offences until 21 July 2009, more than a year later. It seems that there were also subsequent delays due to retesting of DNA material. He claims that
he took positive steps towards his rehabilitation during that lengthy period, which, of course, he spent in custody.
As regards totality, the appellant’s argument is that when account is taken of the sentence imposed by Judge Hicks, as well as that imposed by Judge Montgomery, he actually received a head sentence of the order of 12 years and two months’ imprisonment with a non-parole period of about eight years and four months. He submits that this is manifestly excessive. He contends that had he been dealt with at the same time for all of the offences committed in an around February 2008, he would not have received a sentence of anything like those figures.
Curiously, in seeking and obtaining leave from Bongiorno JA, no argument was advanced which related to the fact that both the Judge Hicks and Judge Montgomery sentences would have to be served cumulatively upon any period the appellant served as a result of the cancellation of his parole.
Bongiorno JA noted, in his reasons for granting leave, that no argument had been addressed to the effect of s 16(3B) of the Sentencing Act 1991 upon the appellant’s situation.
That section provides as follows:
(3B) Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order
His Honour expressed the view that the section seemed applicable to the appellant’s situation. He granted leave to add an additional ground to the effect that the sentencing judge had failed properly to take into account the effect of the section when imposing the sentences that he did.
For reasons that are by no means clear, the Crown conceded, before Judge Montgomery, that, because the appellant’s parole had been revoked, s 16(3B) had no role whatever to play in the sentencing process. His Honour accepted that concession, and therefore said nothing about cumulation.
During the course of the plea, the Crown’s position was stated to be as follows:
MS MAHADY: … Mr Contin is currently serving a sentence. He breached parole on a prior offence which means that that parole period has already been cancelled and there was a reclaim of two and a half or two years five months and 28 days to be claimed. And that's been put on top of a head sentence from a sentence that he received on 4 March 2003. That's the reason why even though he's in custody that there's no pre-sentence detention. In terms of coming to the range the Crown has taken into account principles of Renzella where there's a non-parole period and no PSD and the amount reclaimed by the Parole Board.
HIS HONOUR: So are you saying that the range offered should be concurrent or cumulative?
MS MAHADY: Well, it's my understanding, and I will stand corrected but my instructor, that it can't be cumulative because cumulation of the non-parole period, it's already been accumulated on the last sentence. I've got a table here.
HIS HONOUR: So whatever I impose here will run concurrently with what he's doing at the moment?
MS MAHADY: Your Honour, just excuse me for a minute. Your Honour, we've got a table here which sets it out.
HIS HONOUR: Can I make this Exhibit 2, Mr Pearson?
MR PEARSON: Yes.
…
MS MAHADY: Your Honour, perhaps if we leave this and I'll continue to take some instructions with regards to – the difficulty that I'm having is that the non-parole period that was originally given on 12 March 2003 was then breached on 23 January, 16 February and then Your Honour will see on 21 May, then that was cumulated, so there can't be any further cumulation for that non-parole period.
HIS HONOUR: Well, I don't understand why, but if you say that any sentences I impose today or whenever I sentence are to be concurrent I'll make them concurrent.
MS MAHADY: No, Your Honour, what I'm submitting is that that - normally this would be a case where s.16 would apply and it would be cumulation because of the outstanding non-parole period be breached.
HIS HONOUR: Let me go to s.16. This is under 3C you're talking about, is it? This offending here, was that committed while they're on parole or on bail?
MS MAHADY: Yes.
HIS HONOUR: Which one? On bail or on parole?
MS MAHADY: On parole. What happened is that there was two lots of offending. If you see on the table on the 23 January and 16 February 2008, there was offending which breached his parole. And then on 8 February there was this matter which breached his parole. Today's matters, there was a DNA issue combination - - -
HIS HONOUR: So it's under 3B of s.16 ‘must unless otherwise directed because of the existence of exceptional circumstances be served cumulatively upon any period of imprisonment that he or she may be required to serve in custody in a prison on cancellation of the parole order’.
MS MAHADY: And this occurred on 21 May 2009 and it related back to 23 January and 16 February.
HIS HONOUR: So that cumulation has already occurred.
MS MAHADY: That's right.
HIS HONOUR: But - - -
MS MAHADY: But in terms of cumulation.
HIS HONOUR: But how does that affect this?
MS MAHADY: Just in terms of if Your Honour was going to cumulate and the Crown would say there should be some cumulation that would have to be with regards to this offending and the fact that there was more than one person that Your Honour couldn't cumulate that parole again.
HIS HONOUR: I'm not sure I'm following you.
MS MAHADY: I don't think I'm being very clear either, Your Honour.
HIS HONOUR: You have a think about it.[2]
[2]Plea transcript, 4 November 2011, 7-10.
It seems that the appellant’s parole was not cancelled until 3 May 2010. At that stage, the appellant owed the Parole Board some two years, five months and 28 days in respect of the March 2003 sentence. However, as previously noted, he had been remanded in custody on 29 February 2008 in relation to the Judge Hicks offences. That explains why Judge Hicks made a declaration of presentence detention of 458 days when he sentenced the appellant on 21 May 2009 (although that figure appears to have overstated the actual amount of presentence detention by 11 days).
However, neither the prosecutor’s comments, nor the document referred to as ‘Exhibit 2’ in the passage set out above, clearly explain why it was thought that s 16(3B) did not apply, in its terms, to the sentence to be imposed by Judge Montgomery.
In effect, the appellant began to serve his cancelled parole sentence from 3 May 2010. That sentence will not be completed until late October 2012.
On 8 February 2008, when he committed the Judge Montgomery offences, the appellant was still on parole in respect of the sentence imposed upon him on 12 March 2003. Section 16(3B) required Judge Montgomery’s sentence to be served cumulatively upon the period he had to serve as a consequence of the cancellation of his parole. Nonetheless, it is clear from the passage set out above, and from his Honour’s sentencing remarks, that he was persuaded that he was not required to take the period owing to the Parole Board into account in sentencing for these offences. In fact, the principle of totality did require that period to be taken into account.
As regards the Verdins ground presently before this Court, it is a fact that Judge Hicks referred to the psychological evidence placed before him when he sentenced the appellant.[3] Exactly the same material was placed before Judge Montgomery. Judge Hicks regarded that evidence as establishing that the appellant had a reduced moral culpability for his offending, and also as demonstrating that imprisonment would be more burdensome for him than for an ordinary offender. Judge Hicks also found that imprisonment would be detrimental to the appellant’s mental health.[4]
[3]DPP v Contin, (Unreported, County Court of Victoria, 21 May 2009) [9]-[10].
[4]Ibid [14]-[16].
Judge Montgomery adopted these conclusions, and said that he took them into account, at least to some degree. The appellant submits that his Honour’s sentence does not adequately reflect that observation.
The appellant’s criminal history
It is useful, at this stage, to set out the contents of Exhibit 2. As mentioned above, it purports to reflect the appellant’s situation prior to being sentenced by Judge Montgomery for the 8 February 2008 offences. It indicates that the non-parole period of two years and ten months imposed by Judge Hicks on 21 May 2009 had expired on 29 December 2010, having regard to the 458 days declared as presentence detention. It is in the following terms:
DATE EVENT 12 March 2003 Sentence[d] by County Court to 7 years imprisonment with a non-parole period of 4 years & 6 months for aggravated burglary, armed robbery & kidnapping (Offending similar to this offence). 23 January 2008 & 16 February 2008 Committed offences for which he was sentenced on 21 May 2009 (The subsequent matter). Accused on parole. 8 February 2008 (Between the 2 above offences) The offence the subject of this plea committed. Accused on parole. 29 February 2008 Accused remanded into custody on the subsequent matter 22 April 2008 Accused interviewed for this matter & made no comment. 21 May 2009 Sentence for the subsequent matter: 4 years & 2 months imprisonment with a NPP of 2 years & 10 months. 458 days declared as PSD (all of time in custody to that point). 21 July 2009 Charges in this matter filed on summons 3 May 2010 Parole cancelled. 2 years, 5 months, 28 days owing to the parole board 21 December 2010 Contested committal in this matter. Bail refused. 29 December 2010 NPP for sentence of 21 May 2009 lapsed 17 June 2011 Bail application in this matter refused 16 October 2014 Accused’s latest possible release date
Exhibit 2 postulates that before the appellant was sentenced by Judge Montgomery, his latest possible release date was 16 October 2014. The document does not, in itself, explain how that date was arrived at. However, it is not difficult to work out. The appellant was sentenced by Judge Hicks to a maximum of four years and two months, dating back to 29 February 2008. Accordingly, his earliest release date on that sentence would have been 28 April 2012. What seems to have occurred is that the two years and almost six months owing as cancelled parole was added onto that date. That, no doubt, resulted in the latest possible release date of 16 October 2014.
In other words, Judge Montgomery was apprised by Exhibit 2 that s 16(3B) had already been invoked by Judge Hicks when his Honour had sentenced the appellant. For that reason, Judge Montgomery was led to believe that he did not have to consider again the operation of the section.
In the appellant’s Revised Written Case, he notes that he was released on parole on or about 12 April 2007. By that date, he had served four years, six months and two days of the March 2003 sentence, less the presentence detention declared in relation to that sentence of 155 days. Accordingly, his parole sentence was two years, five months and 28 days.
As stated, the appellant’s parole was cancelled on 3 May 2010. From that date onwards, he owed the Parole Board that period.
By virtue of s 16(3B), the sentence imposed by Judge Hicks had to be served cumulatively upon the parole period ‘owed’ by the appellant, unless his Honour found exceptional circumstances. He did not. Judge Hicks’ sentence was imposed about a year before parole was cancelled. Accordingly, from that time, the appellant had to serve, potentially, six years, seven months and 28 days, less 458 days of presentence detention. At the very least, he had to serve two years and ten months, plus a further two years, five months and 28 days.
In his Written Case, the appellant submitted that Judge Montgomery had cumulated the sentence he imposed in November 2011 upon the Judge Hicks sentence. Plainly, that was not so. Judge Montgomery made it clear that the term of eight years’ imprisonment with a non-parole period of five years and six months that he imposed was to be served wholly concurrently with any existing sentence. This, of course, excluded that part of the period of cancelled parole which had already been served by the time his Honour came to deal with the appellant.
Judge Montgomery declared no period of presentence detention because the appellant was, as at November 2011, still undergoing both a period of cancelled parole and an existing sentence.
If the sentence imposed by Judge Montgomery stands, the appellant may, potentially, be required to serve eight years’ imprisonment dating from 18 November 2011, with an end date of 17 November 2019. He will, at the very least, have to serve five years and six months’ imprisonment. His earliest release date will be 17 May 2017.
If the appellant serves his entire sentence, he will have been in custody for the Judge Hicks and Judge Montgomery offences, as well as the period of cancelled parole, for close to twelve years. At the very least, he will have served some nine years and three months.
Indeed, if one goes back further and has regard to the sentence he received in March 2003, the appellant will, if he serves his entire sentence, have been in almost continuous custody for more than 16 years. It need hardly be said that that is an extraordinarily lengthy period.
Totality
The principle of totality requires a sentencing judge to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted.[5]
[5]Postiglione v The Queen (1997) 189 CLR 295, 307-8 (McHugh J).
In Mill v The Queen,[6] the offender had committed three armed robberies, two in Victoria and one in Queensland, within a period of six weeks in December 1979 and January 1980. In September 1980, he was sentenced in respect of the Victorian offences to 10 years’ imprisonment with a non-parole period of eight years. On his release on parole, in Victoria, he was arrested and sent to Queensland where he was convicted of the Queensland offence and imprisoned for eight years with a recommendation that he be considered for parole after three years. That three year recommendation was made in recognition of the fact that he had already served eight years for the Victorian offences.
[6](1988) 166 CLR 59 (‘Mill’).
The High Court held that in deciding what was the appropriate sentence for the Queensland offence, the judge should have considered what effective head sentence would have been likely to have been imposed if the accused had committed all three offences in one jurisdiction, and been sentenced at the same time. In other words, the principle was not confined in its operation to the fixing of a non-parole period.
In arriving at this conclusion, the High Court cited, with approval, the following passage from David Thomas’ Principles of Sentencing:[7]
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.[8]
[7]D A Thomas, Principles of Sentencing (2nd ed, Heinemann, 1979) 56-7.
[8]Mill 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
It is noteworthy that Mill itself concerned a series of offences all committed at about the same time. In that context, it was said that the principle of totality fell to be applied in relation to sentences of imprisonment imposed by a single sentencing court, such that the sentences imposed could be made wholly or partially concurrent, or alternatively, lowered individually below what would otherwise be appropriate. Where practicable, the former was to be preferred.
At the same time, the High Court noted that the application of the principle became more complicated ‘where the offender commits a number of offences within a short space of time in more than one State’.[9] Here too, however, totality applied.[10]
[9]Ibid.
[10]The High Court referred to R v Todd [1982] 2 NSWLR 517, 519-20 (Street CJ); R v Suckling (1983) 33 SASR 133; R v Stringfellow (Unreported, Court of Criminal Appeal of Queensland, 8 November 1984); R v Jenkyns (Unreported, Court of Criminal Appeal of Queensland, 11 June 1986).
In Postiglionev The Queen,[11] the main issue concerned parity. However, McHugh J also considered the operation of the totality principle. His Honour said:
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.[12]
[11](1997) 189 CLR 295 (‘Postiglione’).
[12]Ibid 308 (citations omitted).
His Honour referred to three decisions of the New South Wales Court of Criminal Appeal in support of this proposition.
The first of these was R v Bakhos.[13] There, the appellant appealed against a sentence of four years’ imprisonment imposed for an offence of stealing because the effect of that sentence, when taken with sentences previously imposed, was that he would have to spend at least a further eight years in prison. At the time of the new sentence, he was still serving sentences for the previous offences. He had been
released on parole, but that had been revoked for reasons unrelated to the instant case.
[13](1989) 39 A Crim R 174 (‘Bakhos’).
It was held that, when considered in isolation, there was nothing wrong with the sentence of four years’ imprisonment. It was, however, objectionable when taken in conjunction with the previous sentences, there being a failure to have regard to the principle of totality.
The second was R v Harrison,[14] which involved a multi-jurisdictional offender who had been sentenced in New South Wales, after being transferred from Queensland, to a term of six years’ imprisonment for two armed robberies. That sentence was cumulative upon the 12 years he had already served for similar offences in Queensland. The Court of Criminal Appeal concluded that the New South Wales sentence was excessive. Hunt J applied totality on the basis that the various offences were ‘connected and roughly contemporaneous’.[15] He did, however, cite Bakhos with approval.[16]
[14](1990) 48 A Crim R 197 (‘Harrison’).
[15]Ibid 201.
[16]Ibid 198-9.
The third of the cases to which McHugh J referred was R v Gordon.[17] That case concerned a Crown appeal against the inadequacy of a sentence of six and a half years with an additional term of two and a half years imposed after the respondent pleaded guilty to a large number of aggravated sexual assaults and kidnappings. He was aged only 19 at the time of the offences, and was already serving a minimum term of three years with an additional term of three years for other offences. The sentences that were the subject of the Crown appeal had been ordered to commence prior to the existing sentences, and entirely subsumed those sentences.
[17](1994) 71 A Crim R 459 (‘Gordon’).
The Crown appeal succeeded. The respondent was resentenced to eight years’ imprisonment with an additional term of four years. Importantly, for present purposes, the Court of Criminal Appeal stated that the sentencing judge had to take into account not only the offences for which the respondent was then standing for sentence, but also those for which he had previously been sentenced. The object had to be to ensure that the ultimate practical effect of all the sentences adequately and fairly represented the totality of the criminality involved in all of the crimes. The fact that the earlier offences were unconnected with, and not strictly contemporaneous with, those the subject of the appeal did not seem to present an obstacle.
It is interesting to observe that Hunt CJ at CL was the author of the lead judgment in both Gordon and Harrison, and was also a member of the Court in Bakhos. However, it was only in Harrison that contemporaneity was an essential component of the application of the totality principle.
Recent authority in this State may be thought to have adopted the broader approach suggested by McHugh J in Postiglione.
In R v Hunter,[18] a decision of this Court, the appellant was sentenced in the County Court to a total effective sentence of six years and six months’ imprisonment with a non-parole period of four years and six months. The offences in respect of which that sentence was imposed were committed whilst on parole. It was argued on appeal that the sentencing judge had failed properly to take into account the period which the appellant would have to serve as a consequence of the cancellation of his parole.
[18](2006) 14 VR 336.
In allowing the appeal, Maxwell P, Buchanan and Redlich JJA said:
There must be relativity between the totality of the criminality and the totality of sentences, not only for the offences for which the person is being sentenced, but for the sentence which the person is currently serving.
Where parole is cancelled, the principle of totality must “bulk large” in the determination of the aggregate term of imprisonment imposed for the later offences. In R v Sullivan, Eames JA (with whom Charles and Buchanan JJA agreed) said:
[T]he principle of totality … requires that the sentencing court evaluate the overall criminality involved in all the offences and adjust the sentence downwards, where appropriate, to ensure there is an appropriate relativity between the totality of the criminality and the totality of the length of sentence imposed. It is a principle which requires the court to have regard both to the sentences about to be imposed and those which the prisoner is already undergoing: see Postiglione v The Queen (1997) 189 CLR 295. Notwithstanding section 16(3B), the principle of totality also has application in circumstances where, as here, the sentence currently being served derives from a breach of parole.[19]
[19]Ibid 341-2. See also R v Alashkar (2007) 15 VR 501; R v Mangelen (2009) 23 VR 692; DPP v Dickson [2011] VSCA 222, [22]-[26] (Maxwell P).
In R v Piacentino; R v Ahmad,[20] a five member bench of this Court had to deal with two separate cases. The first involved an offender who had been sentenced for offences committed while on parole imposed with respect to offences against Victorian law. At the time of sentencing, no action had been taken by the Parole Board with respect to that offender’s breach of parole. The second concerned an offender who had been sentenced by another judge for offences committed while on parole with respect to an offence under Commonwealth law. Both offenders complained that the respective sentencing judges had failed to have regard to the principle of totality. The first offender’s appeal was dismissed, but the second offender had his sentence reduced.
[20](2007) 15 VR 501 (‘Piacentino’).
Putting to one side the analysis that turned upon the construction of the statutory regime in this State for sentencing after breach of parole, Eames JA, with whom the other members of the Court relevantly agreed, noted that there was a difference between the principle of totality, and the avoidance of a ‘crushing’ sentence. A particular sentence might offend totality, but not be properly described as ‘crushing’.[21] The requirement to ‘stand back’ and ‘review the aggregate sentence’, in other words ‘to take a last look at the total just to see whether it looks wrong’,[22] applied even where the sentence could not be so described. Importantly, his Honour said that the totality principle would apply even in relation to an offender who was liable to serve an additional sentence by virtue of breach of parole.
[21]Ibid 507.
[22]Ibid citing D A Thomas, Principles of Sentencing (2nd ed, Heinemann, 1979).
There was no mention in Piacentino of any contemporaneity requirement as between offences. The principle was treated, tacitly at least, as applying across the board.
To the same effect was Thorpev The Queen,[23] where, although it was held that the principle had not been infringed, it was nonetheless accepted that it did apply despite a lack of contemporaneity in offending.
[23][2011] VSCA 346, [47]-[50] (Sifris AJA).
Similarly, in R v Wright,[24] the appellant was charged with twelve counts of indecent assault upon three males under the age of 16. Six of those counts were representative in nature. The offending took place over a seven year period between 1975 and 1982. It had not come to light until many years later.
[24][2009] VSCA 27.
The appellant was sentenced to twelve months’ imprisonment on each count. Because of prior convictions for similar offences, he was required to be sentenced as a serious sexual offender on each charge. The sentencing judge ordered that four months of each of the terms of imprisonment imposed on counts 2-12 be served cumulatively upon the sentence imposed on count 1. This amounted to a total effective sentence of four years and eight months’ imprisonment. His Honour fixed a non-parole period of three years.
The appellant had previously been sentenced in 1994, 1998, and 2000 for similar offences against 15 other young boys. The earliest of those offences occurred between 1973 and 1975, and the most recent in 1993. The appellant was released on parole in February 2003 after serving nine years’ imprisonment for the offences for which he had been sentenced in 1994.
On appeal, it was submitted, inter alia, that the sentencing judge had erred in the application of the principle of totality. It was submitted that had the appellant been sentenced for all of the offences that he committed between 1973 and 1993, he would not have received a combined total effective sentence of 14 years and eight months’ imprisonment. Nor would he have received a combined non-parole period of 12 years.
The submission was put on the basis that the 12 offences committed between 1975 and 1982 were all committed at or about the same time as the offences for which the appellant was dealt with in 1994. That made it particularly important to give full effect to totality. Counsel submitted that failure to do so in cases involving sexual offences committed many years earlier could lead to injustice. An offender who was sentenced for offences committed long ago would run the risk that if other victims from the same period made complaints after he had completed the sentences for the earlier offences, he would be disproportionately punished for his criminal behaviour.
In its judgment in Wright, this Court observed that the sentencing judge had noted, in his reasons for sentence, that the Crown had conceded that the sentence to be imposed ‘should be moderated’ because of the earlier sentences, having regard to the principle of totality.[25]
[25]Ibid [46] (Maxwell P, Neave and Weinberg JJA).
The submission that there was specific error, as a result of a failure to apply totality correctly, failed. However, it did so only because this Court was persuaded that the sentencing judge had given careful consideration to the relevant principle, and applied it correctly in the particular circumstances of the case. What is significant for present purposes is the Court’s tacit acceptance of the proposition that totality should be taken into account even though there was not strict contemporaneity between the offences in question. In Wright, there was a nine year gap between the 1973 offences and the 1982 offences. That did not obviate the need to give effect to totality.
So too in Bogdanovich v The Queen.[26] There, the appellant had been sentenced on two indictments containing multiple counts of robbery, deception and reckless conduct endangering life. The sentencing judge ordered total cumulation between the sentences on each indictment, making a total effective sentence of ten years, and between that sentence and a sentence of three years and eight months already being served. The effect of cumulation was that the appellant would serve, potentially, 13 years and eight months. In addition, he had served some four and a half months for breach of parole for which he received no credit. This meant that he might have to serve more than 14 years. A new single non-parole period of nine years had been fixed.
[26][2011] VSCA 388.
Having decided that the sentences in question were manifestly excessive, this Court was obliged to resentence the appellant. The Court was informed that the appellant had since been sentenced by the County Court for other offences with two years cumulated upon the instant sentence. This meant that, unless the appeal succeeded, the appellant might have to serve more than 16 years’ imprisonment for all of his offending. In a joint judgment, Ashley and Weinberg JJA said:
63 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’.[27] The totality principle is said to ‘defy precision either of description or implementation’.[28] Sometimes it is described as a requirement of ‘just deserts’,[29] and whether the total effective sentence offends that principle is often a ‘matter of impression’.[30] 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.[31]
64 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’,[32] it will often be appropriate to order substantial concurrency.
65 Closely related to the totality principle is the requirement that the sentencing judge avoid the imposition of a crushing sentence. In R v MK,[33] 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.[34]
66 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.[35]
[27]Postiglione (1997) 189 CLR 295, 307-8 (McHugh J), 321 (Gummow J), 340 (Kirby J).
[28]Ibid 341 (Kirby J).
[29]Azzopardi v The Queen [2011] VSCA 372, [57] (Redlich JA).
[30]R v Aleksov [2003] VSCA 44, [17] (Callaway JA).
[31]A-G (SA) v Tichy (1982) 30 SASR 84, 92-3 (Wells J).
[32]Ibid 93.
[33][2005] VSCA 194.
[34]Ibid [125] (citations omitted).
[35]See R v Renzella [1997] 2 VR 88.
The final result in relation to the two indictments that were the subject of the appeal was a total effective sentence of seven years and six months’ imprisonment, and with cumulation upon the later County Court sentence, a total effective sentence of nine years and six months. A single new non-parole period of seven years and six months was fixed.
Conclusion
I note that in R v Berkelaar,[36] Buchanan JA (with whom Callaway and Chernov JJA agreed), assumed, perhaps without ultimately deciding, that the Postiglione line of authority, if applicable, required regard to the total period spent in custody for the earlier sentence, and not merely the additional period the appellant was required to serve by reason of the breach of parole.
[36][2001] VSCA 143.
In considering the totality principle in the present case, however, it is unnecessary to decide whether to have regard not merely to the offences committed by the appellant in January and February 2008 (as well as the time served by reason of revocation of parole), but also the actual time spent in prison from 2003 until parole was granted.
As I have noted, there is some support in the authorities for that wider approach. There is also, however, support for the more restrictive view. In my opinion, it matters not which approach is taken in this case. That is because, on any view, the application of the totality principle requires a significant reduction of the appellant’s sentence.
As previously indicated, the appellant is not, as matters stand, eligible to be considered for parole until May 2017. If he is refused parole, he will have served a term of imprisonment that extends until late 2019. That would mean that he would have been in custody for close to twelve years.
The totality of the appellant’s offending in January and February 2008 was undoubtedly serious. Although the actual amount stolen was very small, the two women who were his victims would no doubt have been terrified by the ordeal to which they were subjected. In addition, the appellant has a lengthy criminal record.
Nonetheless, when one considers that the appellant pleaded guilty to the Judge Montgomery offences (as well as those dealt with by Judge Hicks), that he was entitled to a discount by reason of the factor of delay, that the offences were committed to obtain cash for drugs for personal use, that he was found to be making genuine attempts to overcome his long history of addiction, and that he received a Verdins discount in respect of moral culpability and the burdensome nature of imprisonment, I consider that the total effective sentence of eight years with a non-parole period of five years and six months failed to give adequate effect to the principle of totality.
The appellant must be resentenced. It is therefore unnecessary to say anything further about the other grounds of appeal.
Because proper effect must be given to the principle of totality, it is now necessary to impose various terms of imprisonment that, if viewed in isolation, would, no doubt, be regarded as lenient. The fact is, however, that these sentences are not to be viewed in isolation. That is the whole point of totality.
I would set aside the sentences currently imposed and substitute for them the following:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Burglary
[Crimes Act (Vic) 1958 s 76(1)]10 years 2 years Nil 2 Theft [Crimes Act (Vic) 1958 s 72] 10 years 6 months Nil 3 Kidnapping
[Common law] [Crimes Act (Vic) 1958 s 320]25 years 2 years 6 months 4 Kidnapping
[Common law] [Crimes Act (Vic) 1958 s 320]25 years 2 years 6 months 5 Robbery
[Crimes Act (Vic) 1958 s 75(1)]15 years 4 years Base Total Effective Sentence: 5 years’ imprisonment Single new non-parole period: 3 years’ imprisonment
As I understand the position, the appellant is not entitled to any presentence detention as at the date of this resentence. That is because he has, until now, been serving the sentence imposed by Judge Hicks, as well as the period of cancelled parole.[37]
[37]See Sentencing Act 1991 s 15 for the order in which terms of imprisonment are served.
For the avoidance of doubt, my intention is that the end date for his release should be five years from this date, and that he be eligible for parole in three years. That means that any sentence imposed on this date should be concurrent with the month or so that the appellant still owes the Parole Board. In my opinion, the facts of this case give rise to ‘exceptional circumstances’ within the meaning of s 16(3B).
Pursuant to s 6AAA of the Sentencing Act 1991, I would state that, but for the pleas of guilty, the appellant would have been sentenced to six years and six months’ imprisonment with a non-parole period of four years and three months.
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