Director of Public Prosecutions v Jackson Lade (a pseudonym)[1]

[2017] VSCA 264

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0148

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
V
JACKSON LADE (A PSEUDONYM)[1]	Respondent

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

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JUDGES:	PRIEST, HANSEN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2017
DATE OF ORDERS:	8 September 2017
DATE OF REASONS:	21 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 264
JUDGMENT APPEALED FROM:	DPP v Lade (a pseudonym) [2017] VCC 721 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Family violence – Sexual assault; stalking (two charges); attempt to pervert the course of justice; contravention of family violence intervention order intending to cause harm or fear for safety; making threat to kill – Aggregate sentence of 16 months’ imprisonment – Whether sentence manifestly inadequate – Whether judge erred in imposing aggregate sentence – Appeal allowed – Re-sentenced to 2 years and 11 months’ imprisonment with non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D Dann QC with Ms C Hollingworth	Mr R Davis

PRIEST JA
HANSEN JA
COGHLAN JA:

1. On Friday 8 September 2017 we heard an appeal by the Director of Public Prosecutions against an allegedly inadequate aggregate sentence imposed by a judge of the County Court on 6 June 2017, following a plea of guilty to six charges.[2]  The victim in respect of these charges was the respondent’s ex-wife.

   [2]There was also a summary charge but the Director did not appeal against the sentence imposed on that charge.

1. The respondent was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Sexual assault [Crimes Act 1958 s 40(1)]	10 y	Aggregate 16 m imprisonment	N/A
2	Stalking [Crimes Act 1958 s 21A]	10 y
3	Stalking [As above]	10 y
4	Attempt to pervert the course of justice [Common law]	25 y
5	Contravention of family violence intervention order intending to cause hear or harm for safety [Family Violence Protection Act 2008 s 123A(2))	5 y
6	Making threat to kill [Crimes Act 1958 s 20]	10 y
Summary charge 4	Threat to distribute intimate images of another person [Summary Offences Act 1966 s 41DB]	1 y	7 d	Nil
Total Effective Sentence:		16 months’ imprisonment
Non-Parole Period:		Nil
Pre-sentence Detention Declared:		365 days
6AAA Statement:		2 years’ imprisonment (no non-parole period indicated)
Other orders: ·     Forensic sample order

1. The principal ground of the appeal was that the sentence was manifestly inadequate. There were also grounds that the judge erred in imposing an aggregate sentence, and that the judge failed to apply principles relevant to family violence.

1. At the conclusion of argument, we made orders allowing the appeal, set aside the sentence imposed on charges 1 to 6 and re-sentenced the respondent and made orders as follows:

1.        The appeal is allowed.

2.The sentence imposed by the County Court on 6 June 2017 on charges 1, 2, 3, 4, 5, and 6 is set aside and, in lieu thereof, the respondent is sentenced as follows:

Charge 1 – 18 months’ imprisonment

Charge 2 – 6 months’ imprisonment

Charge 3 – 9 months’ imprisonment

Charge 4 – 12 months’ imprisonment

Charge 5 – 3 months’ imprisonment

Charge 6 – 9 months’ imprisonment

3.The base sentence is the sentence on charge 1.  The Court directs that 3 months of the sentence on charge 2, 3 months of the sentence on charge 3, 6 months of the sentence on charge 4, 1 month of the sentence on charge 5, and 4 months of the sentence on charge 6 be served cumulatively upon each other and the sentence on charge 1.

4.        The total effective sentence is 2 years and 11 months’ imprisonment.

5.It is ordered that the respondent serve 2 years’ imprisonment before becoming eligible for parole.

6.It is declared that a period of 459 days (not including today) is to be reckoned as time already served pursuant to this sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.

7.All other ancillary orders of the County Court made on 6 June 2017 are confirmed, including the sentence imposed on the summary charge.

8.Pursuant to s 6AAA of the Sentencing Act 1991, it is declared that, but for the respondent’s pleas of guilty, the Court would have imposed a sentence of 4 years’ imprisonment with a non-parole period of 2 years and 6 months.

Other matters

The Court grants to the respondent an indemnity certificate pursuant to s 15 of the Appeal Costs Act 1998.

1. We made those orders on the basis that we would provide reasons for doing so subsequently. These are those reasons.

Circumstances of the offending

1. The respondent’s offending occurred over an 18-month period between 2015 and 2017.  It is useful to set out a chronology of the charges:

·    14 July 2015 — Sexual assault (Charge 1); 

·    September 2015 — Threaten to distribute intimate images (Summary charge 4);

·    1 February – 1 March 2016 — Stalking (Charge 2);

·    2 March – 19 May 2016 — Stalking (Charge 3);

·    1 April – 2 June 2016 — Attempt to pervert the course of justice (Charge 4);

·    26 September 2016 – 10 February 2017 — Contravention of family violence intervention order intending to cause fear or harm for safety (Charge 5); and

·    4 February 2017 — Threat to kill (Charge 6).

1. The respondent and his now ex-wife, C, met in 2007, moved to Victoria in 2011, married in 2012 and had two children.  They separated on 3 June 2015.  It appears that the respondent’s loss of employment in 2014, subsequent drug abuse and volatile mood had resulted in the breakdown of the relationship.  C moved with the children out of their home to her parents’ house nearby.  At first, the respondent remained in the matrimonial home and C brought the children to visit the respondent daily.  Separation arrangements were agreed upon and, on 13 July 2015, consent orders were made in the Family Court to the effect that the children would live with C and visit the respondent by mutual arrangement, and the respondent would sign the house over to C after she had paid him out.

1. The following day, on 14 July 2015, the respondent asked C to return to the house after the children were asleep to help with some painting.  C returned later that day and painted several areas in the house.  After C had finished painting some tile skirting upstairs, the respondent sexually assaulted her (Charge 1). The offending was described by the sentencing judge as follows:

On one particular occasion, you asked her to come and help with the painting and I have no reason to think that what followed was premeditated.  She painted upstairs and after she had finished doing that, you complimented her on the painting, grabbed her, pressed your body up against her and grabbed her between her legs.  She was wearing leggings over her underwear, which you apparently were able to remove.  You had your hand against her vagina, pushed her backwards onto the bed in the main bedroom.  She tried to push you off and it was clear on the material that she was not consenting to what occurred.

You held her down on the bed, partly removed her underwear, exposing her vagina.  You were wearing shorts with no underwear and took your penis out which you placed against her vagina.  She said that she was saying, ‘No, no, I don’t want to.’ You said to her, ‘You’re my wife … do you understand that?’ You ejaculated on her, though I sentence on the basis that there was no penetration.  She was crying and was clearly upset.  You told her if she stopped crying you would let her go.  At around that point in time, her mother rang and said that your son was awake, that she had to go.  You then asked her if she understood that you had to do it and in any event, she left. … She washed her face so that her parents would not know she had been crying.[3]

[3]DPP v Lade (a pseudonym) [2017] VCC 721 [6], [7] (‘Sentencing remarks’).

1. A few days after the sexual assault, the respondent moved to New South Wales to live.

1. The respondent and C continued to communicate by phone and text messages to discuss property settlement and child access.  When they disagreed in these conversations, the respondent would tell C that he possessed old intimate photos and videos of her and threatened to send them to various people, including her father and her employer, if things did not go his way.  He texted her two of the images to prove that he had them (Summary charge 4).

1. C was very distressed by these events and reported the threats as well as the sexual assault to police.  The respondent was interviewed at the Forster Police Station in New South Wales on 14 December 2015 regarding the charge 1 and summary charge 4 matters. 

1. Police applied for a family violence intervention order (‘FVIO’), and an interim FVIO was issued at the Latrobe Valley Magistrates’ Court on 21 December 2015.  The order prohibited the respondent from making contact with C and the children, except in circumstances permitted by the Family Law Act 1975 and/or to negotiate child arrangements.  It also prohibited the respondent from approaching or remaining within five metres of C, or from going or remaining within 200 metres of her home.  The interim FVIO was served on the respondent.

1. In or about December 2015, C placed the matrimonial home on the market for sale. In March 2016, C moved back to the matrimonial home with the children. The interim FVIO was made final on 31 March 2016. The house remained on the market.

1. On 1 April 2016, the respondent called C after he had sent her a text message asking if he could speak to her on the phone. The respondent spoke, amongst other matters, about their separation and the charges he was facing. C told him that she did not want to discuss the charges.

1. On 1 May 2016, the respondent again called C after he had requested via text message to speak to her on the phone. The respondent asked C to drop the charges and told her that she had destroyed his life. C remained silent. The respondent told her that he had attended the matrimonial home a number of times about a month earlier.  The respondent said to her, ‘Do you think I would hurt you? I could have if I wanted to, but I didn’t.’

1. On 19 May 2016, C called the respondent after he had requested via text message to speak to her. During this conversation, the respondent told C that she had ruined his life and spoke of committing suicide, listing instructions for when he was dead. The respondent also said, ‘You really need to lock the garage roller door … It’s unlocked, you need to go and lock it.’  The respondent described various things around the house, including C’s new bed which she had set up in the house on 15 February 2016. The respondent told C that he had slept in their son’s bed for two nights, whilst C and the children were still living with her parents. The respondent also described watching their son play at C’s parents’ house one night while C was putting their daughter to bed. The respondent told C that on that occasion he had taken bread from the kitchen and eaten it in the rumpus room.  The respondent also told C that he had left various notes for her around the house. He told her to watch a video he had filmed on the digital camera in her wardrobe. He said he had filmed his room at the boarding house where he lived. This caused C to be terrified and fearful for her safety.  C called her mother and her parents attended and stayed the night.  The respondent’s disclosures also caused C to have a deadbolt fixed on the door leading to the garage.

1. C duly found the digital camera in her home; it contained a number of videos the respondent had recorded for her.  Either as above mentioned or in phone conversations or by text message, he drew her attention to them.  The recording of the respondent’s place of accommodation has him narrating to C.  In the other videos, the respondent speaks directly to the camera addressing C or their children.  One video was filmed while inside C’s home without her permission.  (These matters are the subject of Charges 2 and 3.)

1. Between late May and early June 2016, the respondent spoke to C requesting that she withdraw the charges. He threatened that if she did not have the charges dropped he would kill himself and she would be responsible for his death (Charge 4).

1. The respondent was arrested in New South Wales on 6 June 2016 and has been in custody since that day.

1. On 7 June 2016, members of Victoria Police attended New South Wales for an extradition application regarding the stalking and attempt to pervert the course of justice charges. During that application, the respondent gave sworn evidence making admissions to the charges.

1. In January 2017, the respondent’s sister, J, and her partner flew from Queensland to Melbourne to visit the respondent at the Melbourne Assessment Prison. On 4 February 2017, during their visit, the respondent was angry and made threats to kill C, and made further threats to distribute intimate images of her (Charge 6).

1. J maintained regular telephone contact with the respondent whilst he was in custody. During this telephone contact, the respondent made similar threats and demanded J send text messages to C in relation to his children visiting him. As a result, J sent several text messages to C.  He further contravened the FVIO by sending mail to C on two occasions, and by requesting that a friend send a parcel of presents to C.  (This contravening conduct constituted Charge 5.)

Plea hearing

1. The respondent was initially charged with charges 1 to 4 on the indictment, and the matter was listed for plea on 7 March 2017.  On that day, the plea was adjourned to enable the police to investigate allegations of recent threats by the respondent against C.  This led to charges 5 and 6.

1. On 6 June 2017, the respondent was arraigned and pleaded guilty to each of the six charges and the summary charge.  A plea was then had. The prosecutor read out a summary of the offending and a victim impact statement by C.  Both documents were tendered.  Defence counsel tendered a bundle of documents, including a psychological assessment report by Mr David Ball, a character reference from a friend which included an offer to house the respondent in New South Wales following his release, two drug screening reports and certificates related to courses the respondent had undertaken while on remand.

1. The respondent’s counsel relied on the following in mitigation:

(1)       The respondent had:

(a)       no prior convictions, and the 12 months spent on remand was his first time in custody;

(b)      made full and frank admissions during his extradition hearing on 7 June 2016;

(c)       given early indication that he would plead guilty;

(d)      undertaken eight courses while on remand at the Melbourne Assessment Prison;

(e)       acted as a prisoner representative in gaol, responsible for relaying prisoners’ concerns to authorities;

(f)       undertaken drug screening tests in October 2016 and May 2017, which showed no sign of illicit substances;

(g)      accepted that his relationship with his ex-wife was at an end. Counsel referred to Mr Ball’s report in which the respondent expressed that view during interview on 25 January 2017, which  pre-dated the respondent’s threat to kill, the subject of charge 6;

(h)      not distributed intimate images of C; and

(i)       made arrangements to live with a friend in New South Wales, away from C and the children who resided in Victoria;

(2)       In July 2016, C had applied to have the FVIO varied so that she could take the children to visit the respondent in custody, and C’s parents had taken the children to visit him on one occasion; and

(3)       The FVIO expired on 30 March 2017 and no extension had been sought by the police or C.

1. In the course of the plea, the judge indicated that 12 months’ imprisonment was an appropriate sentence for the ‘original offending’, meaning the offending in charge 1.  He also said that ‘the subsequent offending’ was concerning and that there had to be ‘something on top for what occurs after’.  The prosecutor submitted that the sexual assault and stalking were serious examples of offending, and that the time served, being 12 months, was not sufficient for the offending.  The respondent’s counsel submitted that the stalking charges were ‘not the most sophisticated’ offending, in that the respondent told C what he had done and he was monitored in gaol, but counsel later conceded that the stalking was ‘very serious’. 

1. It is apparent from the transcript that the judge considered an important factor to be that the respondent intended to move to New South Wales following his release from custody.  A substantial portion of his Honour’s discussion with the respondent’s counsel concerned this point, and whether he should fix a non-parole period.  The judge agreed with the respondent’s counsel’s submission that ‘a straight sentence [without provision for parole] allows him to plan … as to when he goes [to New South Wales]’.  The discussion concluded with the following exchange:

His Honour:  When he gets out, all right.  Now, the other thing is also, I can give an aggregate sentence here, can’t I, because it’s the one course of conduct?

Respondent’s counsel:         Thank you Your Honour.

His Honour:  Yes. Can I incorporate the — I’m not sure that I can incorporate the uplifted matter in an aggregate. Well, I won’t take the risk, I’ll just make a short sentence on that and make it concurrent.

Respondent’s counsel:         Yes, Your Honour. Thank you, sir.

His Honour:  All right, well, I’ll do it as I sit here, subject to revision obviously.

1. The judge then proceeded to deliver his sentencing remarks.

Sentencing remarks

1. The judge noted that the respondent was aged 47 at the time of sentence, the reasonably early pleas of guilty and that he was entitled to allowance for remorse and the utilitarian benefit of the pleas.  Further, the respondent had no prior convictions or, technically speaking, subsequent offending.

1. The judge then referred to the circumstances of the offending.  As to charge 4, being the attempt to pervert the course of justice, the judge said:

You, on occasion, demanded or asked that she drop the charges against you or you would kill yourself.  That gives rise to attempt to pervert the course of justice, which in this particular situation I regard as being at the lower end.

In any event, you were interviewed in New South Wales, arrested and extradited to Victoria.  You are being held in custody.  There was an intervention order still in place in regard to it and you, from custody, were sending angry and revengeful threats towards her.  You made further threats to distribute intimate images of her and asked a sister to send a text to her as well.  That behaviour over a period of time contravened the family violent final intervention order which had been granted in March 2016.  She was genuinely afraid of the threats to kill.[4]

[4]Sentencing remarks [9] and [10].

1. The judge then said that all the offending was ‘serious’, and called for general and specific deterrence, denunciation and appropriate punishment.  He then referred to matters personal to the respondent and of a mitigatory nature. 

1. In reaching a positive assessment of the respondent’s prospects of rehabilitation, the judge took into account that:

(a)       until the offending, the respondent had been a relatively good citizen;

(b)      the respondent’s first experience of custody would have been a salutary lesson for him;

(c)       the respondent had stopped using drugs while in gaol; and

(d)      the respondent had used his time in custody well by undertaking courses.

1. The judge regarded the respondent’s risk of re-offending, particularly of a sexual nature, as low.  He noted that the respondent intended to live with a friend in New South Wales who had provided a reference, and considered that the resulting geographic distance from C would be of ‘real significance’ in reducing any such risk.

1. His Honour then said:

I accept in these circumstances that you regard now at least the relationship is over. I regard the offending as situational in the sense that it was based within a relationship, not that that condones it in any way, shape or form. I think that an active custodial sentence is inevitable in this situation. I have had a very frank discussion with your counsel about that. Because of your intention to go to New South Wales, it seems to me that I impose a sentence that does not have a parole period or a community corrections order attached to it. It is the sensible way of going about it.

I have taken into account all of the materials on your behalf. There is no application of the Verdins principles. It simply becomes a question of what offending of this nature in a domestic violence situation and a male dominant situation is worth.

Taking all those matters into account, particularly the fact that you will now be relocated to another state and that you have no priors and present a low risk of reoffending, I am of the view that a straight sentence is the appropriate disposition.

Accordingly, on the charges on the indictment, you are sentenced to be imprisoned for an aggregate period of 16 months. On the summary offence, seven days, which is to be served concurrently with the aggregate offence. That gives an overall effective head sentence of 16 months. For the reasons I have outlined, I do not propose to give a non-parole period. That would cause you more difficulties than what it was worth.[5]

[5]Sentencing remarks [14], [15], [16], [17].

1. Finally, his Honour declared that the 365 days that the respondent had spent in custody on remand was to be regarded as time already served under the sentence.

Grounds of appeal

1. As mentioned earlier, there are three grounds:

Ground 1 —   The total effective sentence imposed on charges 1 to 6 of Indictment C1611012 is manifestly inadequate.

Particulars

By imposing the sentence referred to above, the Learned Sentencing Judge —

(a) failed to have sufficient regard to the maximum penalties for the offences;

(b)failed to have sufficient regard to the nature and gravity of the offences;

(c)failed to have sufficient regard to the sentencing purpose of protection of the community, general deterrence, specific deterrence, just punishment and denunciation;

(d)failed to have sufficient regard to the impact of the offence upon the victim;

(e)failed to have sufficient regard to the offences having been committed in the context of family violence;

(f)gave too much weight to mitigatory matters concerning the respondent;

(g)gave too much weight to the fact that the respondent intended to geographically move interstate upon his release from custody.

Ground 2 —The learned sentencing judge erred in imposing an aggregate term of imprisonment.

Particulars

By imposing an aggregate term of imprisonment on charges 1 to 6 on the Indictment C1611012, the learned sentencing judge —

(a)did not consider the varying levels of seriousness of each individual offence on the indictment;

(b)did not consider the different manner in which charges 1, 5 and 6 were committed;

(c)did not consider that charges 2 to 6 were aggravated by the offending having been committed in breach of a Family Violence Intervention Order.

Ground 3 — The learned sentencing judge erred by not giving any consideration to the principles relevant to the sentencing of offenders in the context of family violence.

Particulars

No reference was made by the learned sentencing judge to the principles pronounced by the Court of Appeal as appropriate considerations to be made in cases where offences have been committed in a family violence context.

Consideration of grounds

1. As mentioned, the principal ground of appeal is ground 1.  At the outset of his submissions, counsel for the Director stated that ground 3 was supplementary to ground 1;  that is correct as the particulars to ground 1 allege a failure to have sufficient regard to the fact that the offences were committed in the context of family violence.  Hence there is no need to separately consider ground 3.  Nor, in the circumstances, and for reasons given in dealing with ground 1, is it necessary to give separate consideration to ground 2.  We turn then to ground 1 which is the basis upon which we allowed the appeal and made the orders referred to above. 

1. In submitting that the aggregate sentence was manifestly inadequate, counsel for the Director stressed that, in imposing an aggregate sentence, the judge effectively conflated the offending conduct and treated it as though it were a single course of conduct.  In consequence of so treating the offending conduct, the judge did not have regard to the seriousness of the offending that constituted each charge;  in a nutshell, the aggregate sentence involved a significant devaluation of the respective offending.  While counsel referred to various matters to make good this submission, the above lay at the heart of the Director’s complaint.

1. In summary, the particular matters the Director relied on were these.  First, the sentence is seen to be explained by the judge’s view that a sentence of imprisonment without parole best suited the situation, as on release the respondent could immediately move to New South Wales to live, without any difficulty of supervision.  As to this, the Director noted that the judge omitted to consider the arrangements that may be made for interstate parole transfer. 

1. Secondly, the main charge was charge 1 which was both separate in time and different in nature from the other offending, and was in itself a particularly serious form of sexual assault, being violent, non-consensual and humiliating for C who was treated as though a marital chattel.

1. Thirdly, noting that the judge had 12 months’ imprisonment in mind as appropriate for the offence in charge 1, that meant (if acted upon) that four months only was allowed for the balance of the charged conduct.  That significantly devalued the offending in charges 2 to 6.  Moreover, it was submitted that 12 months’ imprisonment was unduly lenient for charge 1. 

1. Fourthly, in his sentencing remarks the judge said that the respondent had ‘on occasion’ demanded or asked C to drop the charges or he would kill himself, giving rise to the attempt to pervert the course of justice.  The judge said that he regarded that conduct as being ‘at the lower end’.  It was submitted that the expression ‘on occasion’ reflected a downplaying of the number of occasions, and that the passage as a whole reflected an undervaluation of the gravity of the offending conduct, and the effect on C. 

1. Fifthly, charges 2 to 6 were committed in breach of the FVIO which in itself constituted an aggravation of the offending conduct.[6]  The judge did not refer to the fact that charges 2, 3 and 4 were committed in breach of the FVIO.  While the judge did refer to the fact that an intervention order was in place during the course of charges 5 and 6, this was not treated as being an aggravating feature of the offending. 

   [6]Marrah v The Queen [2014] VSCA 119 [25]; Filiz v The Queen [2014] VSCA 212 [21].

1. Sixthly, the judge had no express regard to C’s victim impact statement and to the effect that the respondent’s offending had on her.  Further, while noting the considerations of general and specific deterrence, denunciation and just punishment, the judge did not reflect on the importance of these principles when the offending was committed in circumstances of family violence.  Hence, it was submitted, the judge had not given appropriate and adequate weight to these considerations.  That failure was manifested by the leniency of the sentence imposed.  Moreover, it was submitted, by characterising the offending as ‘situational in the sense that it was based within a relationship’, the judge minimised the seriousness of the offending. 

1. Seventhly, it was submitted that regarding the sentencing remarks overall, the judge was seen to have given too much weight to factors urged in mitigation.  Counsel referred to several matters which he submitted had not been taken into account by the judge either appropriately or at all.  One such matter was the finding by the judge that the respondent regarded ‘now at least the relationship as [being] over’.  This finding would seem to derive from the report of Mr Ball who, as mentioned, saw the respondent on 25 January 2017.  Mr Ball records that the respondent told him ‘that the relationship with his former wife is clearly now over’.  Mr Ball further recorded that the respondent said that ‘he considers himself to be single and unattached’.  In addition to accepting this as the fact, the judge held that the Verdins[7] principles did not apply in the circumstances.  While accepting the proposition that the respondent regarded the relationship as ‘now’ being over, the judge did not mention that when the respondent made the statements to Mr Ball he was continuing to engage in behaviour the subject of charge 5.  Further, it was submitted that no weight could be placed on the assertion in Mr Ball’s report that the respondent was unlikely to reoffend because he found gaol a salutary experience, as the day after the report was authored the respondent made the threats the subject of charge 6.  Accordingly, the respondent’s assertions of remorse and acceptance of the relationship with C having ended must be seen in that context with a consequent reduction in weight to be afforded to them.  

   [7]R v Verdins (2007) 16 VR 269.

1. Without overlooking all that was said in the written submission, the Director contended that the judge gave too much weight to matters in mitigation.  Overall, it was submitted that the resulting sentence was exceptionally lenient and outside the permissible range for the offending, such that it was manifestly inadequate. 

1. In his submissions, the respondent’s counsel immediately conceded that the offending was serious and accompanied by aggravating features including the existence of the FVIO at the time of offending, and the fact that he was in custody at the time of the offending the subject of charges 5 and 6.  In summary, and without doing any injustice to the respondent’s counsel’s frank and helpful submissions, the essence of the various aspects relied on by the Director was recognised.  It was also acknowledged that the sentence was unusual.  Nevertheless, when regard was had to the various mitigatory matters referred to by the judge, the sentence imposed was one that was open to the judge to impose, and, while lenient, it could not be said that the sentence was manifestly inadequate.  Further, it was submitted that the prosecutor at the plea had not assisted on the question as to whether an aggregate sentence could be imposed.  As to that, it is correct that the prosecutor did not say anything on that matter, but nor was the prosecutor brought into the discussion between the judge and the respondent’s counsel.  And, indeed, the judge moved immediately to sentence the respondent. 

1. The respondent’s counsel further submitted that, if it were considered that the judge had fallen into error and the sentence was manifestly inadequate, in view of the fact that the respondent had almost completed the sentence, the appropriate disposition would be to dismiss the appeal without imposition of an increased sentence.  Such a disposition occurred in Director of Public Prosecutionsv Dalley,[8] where only a few days remained to complete the sentence in question.

   [8][2008] VSCA 173.

1. Considering all that was said in the parties’ submissions, and the circumstances of the respective offending, it is overwhelming that the aggregate sentence dealt inadequately with the respondent’s offending and to the extent of the insufficiency being manifest.  Taking charge 1 alone, a sentence of 12 months’ imprisonment, if one assumes that the judge acted on that basis, would be minimal to the point of not recognising the seriousness of the offending.  And, as submitted, even if 12 months was regarded as being within range for charge 1, to allow a mere four months in total for charges 2 to 6 bespeaks error.  The offences are so separate in nature and time and accompanied by aggravating circumstances such as the domestic context, the presence of the FVIO, the fact of offending while in gaol and even then in the face of the FVIO, indicate a failure to give recognition to the relative seriousness of each separate piece of offending. 

1. It is true that there were a number of factors that went to mitigation of sentence that were properly taken into account, but regarding the sentencing reasons overall and in the light of the conclusion reached, it is irresistible that the factors in mitigation, considered overall or separately, were afforded a treatment that overbore, and devalued, the seriousness of the offending and the considerations of general and specific deterrence, denunciation and imposition of a punishment that was just in the circumstances.  The resulting aggregate sentence imposed was so inadequate as to show error in point of principle.  Further elaboration is not required.  It was for these reasons, based on acceptance of the proposition that the aggregate sentence was manifestly inadequate, that we allowed the appeal and made the orders mentioned earlier. 

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