Davies v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0041

LUKE DAVIES	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 April 2014
DATE OF JUDGMENT	10 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 69
JUDGMENT APPEALED FROM	R v [Davies] (Unreported, County Court of Victoria, Judge Mullaly, 28 February 2013)

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SENTENCING – Application for leave to appeal sentence – Application granted and treated as heard instanter – Multiple charges for sexual offences – Applicant sentenced to a total effective sentence of 16 years’ imprisonment with a non-parole period of 14 years – Trial judge erred in failing to make orders consistent with his intention that the sentences imposed should be served concurrently with the sentences already being served – Appeal allowed – Appellant re-sentenced to a total effective sentence of 14 years and 43 days with a non-parole period of 12 years and 43 days – Sentence to be served concurrently with the term of imprisonment the applicant is already serving – Period in custody prior to sentence taken into account under Renzella [1997] 2 VR 88 – No point of principle.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr S Ginsbourg	Tait Lawyers
For the Respondent	Ms S A Flynn	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The applicant, Luke Davies, was indicted on 14 charges of sexual offences against his stepdaughter (Indictment B12601697) which occurred in Mildura in 2006 and 2007. He was also indicted on 6 charges of sexual offences against his sisters and his niece, (Indictment A 10631522) which occurred between 1967 and 2003 in Swan Hill. He pleaded guilty to all these charges and was sentenced in the County Court by Judge Mullaly on 28 February 2013 as follows:

SWAN HILL INDICTMENT
Charge on Indictment A10631522.1C (victim)	Offence	Maximum	Sentence	Cumulation
1 (SJ)	Incest  [Crimes Act 1958, s 52(3)]	7 years	20 months	9 months
2 (WK)	Unlawful Carnal Knowledge [Crimes Act 1958, s 48]	10 years	2 years	12 months
3 (GV)	Incest  [Crimes Act 1958, s 52(3)]	7 years	2 years	BASE
4 (GV)	Incest  [Crimes Act 1958, s 52(3)]	7 years	20 months	6 months
5 (GV)	Gross indecency  [Crimes Act 1958, s 69]	2 years	3 months	Nil
6 (GV)	Incest  [Crimes Act 1958, s 52(3)]	5 years	12 months	3 months
Total sentence on this indictment:	4 years 6 months imprisonment (3 years cumulated on sentences on indictment B12601697 referred to below)
Non-Parole Period:	N/A
Pre-sentence Detention Declared:	N/A
s 6AAA Statement:	TES of 6 years 6 months on this indictment
Other orders:	Nil
MILDURA INDICTMENT
Charge on Indictment B12601697 (victim R on all charges)	Offence	Maximum	Sentence	Cumulation
1 (Rep. charge)	Produce Child Pornography  [Crimes Act 1958, s 68]	10 years	18 months	6 months
2	Administer drug for Purposes of Sexual Penetration  [Crimes Act 1958, s 53(1)]	10 years	2 years	6 months
3 (Rep. charge)	Indecent Act with or in Presence of Child under 16  [Crimes Act 1958, s 47]	10 years	2 years 9 months	6 months
4	Incest  [Crimes Act 1958, s 44(2)]	25 years	5 years	12 months
5	Indecent Act with or in Presence of Child under 16	10 years	2 years	Nil
6	Produce Child Pornography	10 years	12 months	Nil
7 (Rep. charge)	Indecent Act with or in Presence of Child under 16	10 years	2 years 9 months	8 months
8 (Rep. charge)	Incest  [Crimes Act 1958, s 44(2)]	25 years	6 years	2 years
9 (Rep. charge)	Incest  [Crimes Act 1958, s 44(2)]	25 years	6 years	18 months
10	Indecent Act with or in Presence of Child under 16	10 years	18 months	4 months
11 (Rep. charge)	Incest  [Crimes Act 1958, s 44(2)]	25 years	6 years	BASE
12 (Rep. charge)	Indecent Act with or in Presence of Child under 16	10 years	9 months	Nil
13 (Rep. charge)	Indecent Act with or in Presence of Child under 16	10 years	2 years	Nil
14	Produce Child Pornography	10 years	12 months	Nil
Total sentence on this indictment:	13 years’ imprisonment
Total effective sentence as between Swan Hill and Mildura indictments:	16 years’ imprisonment
New single non-parole period:	14 years
Pre-sentence Detention Declared:	Nil
s 6AAA Statement:	16 years on this indictment with a new non-parole period of 17 years
Other orders:	• - Disposal Order under s 77(1) of the Confiscations Act 1997; • - Life reporting under s 34 of the Sex Offenders Registration Act 2004

The applicant has been a sexual offender since he was 18 years old. When he was sentenced on the Mildura and Swan Hill indictments he was already serving sentences for a large number of other sexual offences. The sentences imposed for these offences and the date on which the sentences were imposed can be summarised as follows.
On 23 December 2009 the applicant was re-sentenced on a Crown appeal from sentences for sexual offending imposed by Judge Jenkins. In the Court of Appeal he received a total effective sentence of 8 years and 6 months imprisonment with a non‑parole period of 6 years. A period of 687 days was declared as pre-sentence detention.
On 15 December 2010 Judge Harbison sentenced the applicant on further offences to a total effective sentence of 6 years and 4 months, 4 years and 6 months of which was to be served cumulatively on the total effective sentence imposed by the Court of Appeal. She fixed a new single non-parole period of 7 years to commence on 15 December 2010. Her Honour stated that the head sentence would expire on 3 February 2021.
The applicant now seeks leave to appeal against the individual sentences and total effective sentence imposed by Judge Mullaly. In their final form his grounds of appeal claimed that the new single non-parole period of 14 years ordered by his Honour was manifestly excessive and that both the head sentence and the new single non-parole period imposed by his Honour failed to give effect to Judge Mullaly’s intention. The applicant argued that his Honour had intended the total effective sentence of 16 years’ imprisonment imposed on both indictments to be served concurrently with the earlier sentences and had intended that the new single non‑parole period of 14 years should run from the date when the applicant first went into custody in February 2008.
As a consequence of earlier submissions made on behalf of the applicant Judge Mullaly was asked to provide the Court with a Report indicating what he had intended in sentencing the applicant. In relation to the total effective sentence the judge said that:
No part of the sentence of 16 years that I imposed on the Applicant was or is meant to be served cumulatively with the sentence the accused is undergoing, that is, either or both of the sentences imposed by the Court of Appeal on 23 December 2009, or the sentence imposed by Judge Harbison on 15 December 2010.
In relation to the non-parole period the judge said that:
The new minimum term of 14 years is a term which incorporates what the accused has served as part of the Court of Appeal’s minimum term as adjusted by Judge Harbison. It is the period of imprisonment that must be served for all offences before there can be consideration of parole. Thus the commencement period of the new single non-parole period is from when the accused commenced serving the sentences that were imposed by the Court of Appeal and as adjusted by Judge Harbison.
I made it clear in [121] that:
The actual gap allowable for the potential parole is likely to be longer than may be apparent from my announcement of the sentence, that is because the new parole period operates from the time that you were incarcerated.
In referring to the actual gap being longer than was apparent his Honour meant that a 14 year non-parole period would normally be a very high non‑parole period in relation to a 16 year head sentence, but that in practice the minimum period to be served would take account of the time served in relation to the earlier sentences.
Because the applicant fell to be sentenced as a serious sexual offender, s 6E of the Sentencing Act 1991 required the total effective sentence of 16 years for the Mildura and Swan Hill offences to be served cumulatively on any uncompleted sentence being served by the offender, unless otherwise directed by the court. As previously indicated, if the applicant served the full term of the sentences imposed for his prior offending he would be released on 3 February 2021. The effect of his Honour’s failure to order total or partial concurrency with the sentences already being served by the applicant was that if the applicant served his full term for the Swan Hill and Mildura offences he would not be released until 2037, when he would be aged 88. This was clearly not intended by his Honour. Uncertainty also arose about the commencement date for the new non‑parole period.
The Crown conceded that the sentences imposed below did not reflect his Honour’s intention, and should therefore be adjusted.
In the course of discussion during the hearing, the applicant’s counsel withdrew the ground of manifest excess, on the basis that we would make orders giving effect to his Honour’s intention. In our view the sentences imposed on the applicant ( leaving aside his inadvertent failure to order partial concurrency with the sentences already being served by the applicant) were, if considered in isolation, lenient, having regard to the seriousness of the offending. However counsel for the Crown did not indicate any intention to challenge those sentences.
Having regard to the above matters we consider that leave to appeal should be granted and the appeal allowed, so that the Court can make orders giving effect to the learned sentencing judge’s intention. The Court gave counsel time to consider the form of the orders which should be made.
The suggested orders proposed that the 687 days which the applicant served prior to the Court of Appeal decision, should be treated as pre-sentence detention. However, s 18(2)(d) of the Sentencing Act 1991 prevents the Court from making a declaration of pre-sentence detention in relation to the period of custody already taken into account by the Court of Appeal. To give effect to the principle of totality it is open to this Court to take the 687 days into account under the principle in R v Renzella. Having regard to his Honour’s intention, we consider it appropriate to do so.
We will set aside Judge Mullaly’s orders, but impose the same individual sentences and make the same orders for cumulation within the two indictments as those made by Judge Mullaly. We will order that one year and 43 days of the total effective sentence imposed on indictment A10331522.1C be cumulated on the total effective sentence of 13 years’ imprisonment arising from indictment B12601697. The cumulation between the two indictments is lower than which would normally be ordered, in order to take account of the Renzella time served by the applicant. This will reduce the total effective sentence on both indictments to 14 years and 43 days. We will order that the total effective sentence of 14 years and 43 days be served wholly concurrently with the term of imprisonment that the applicant was serving at the date of sentencing, to be served from the date of Judge Mullaly’s orders (28 February 2013).
We will fix a new single non-parole period of 12 years and 43 days’ imprisonment. The non-parole period will commence from the date of the Court of Appeal sentence (23 December 2009).
Because of the confusion which has existed in relation to this sentence we indicate our intention that the earliest release date for the applicant should be 3 February 2022, that is 14 years from the date he first went into custody. If he serves the full term of imprisonment he will be released on 12 April 2027, when he will be 78 years old.

WEINBERG JA:

I agree, for the reasons given by Neave JA, that the applicant should be re‑sentenced as her Honour has proposed.

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[2014] VSCA 69

10 April 2014