DPP v Keller (a pseudonym)
[2021] VSCA 334
•3 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0058
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| BENJAMIN KELLER (a pseudonym)[1] | Respondent |
[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, KAYE and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 November 2021 |
| DATE OF JUDGMENT: | 3 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 334 |
| JUDGMENT APPEALED FROM: | DPP v Keller (a pseudonym) (Unreported, County Court of Victoria, Judge Leighfield, 29 April 2021) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Competency – Notice of appeal – Whether valid – Respondent sentenced on four charges – Aggregate sentence on two charges – Separate sentences on other charges – Notice of appeal referred only to ‘the sentence imposed’ – Failed to specify which sentence or sentences under appeal – Appeal incompetent – Leave to amend refused – Criminal Procedure Act 2009 ss 3, 287, 288, Supreme Court (Criminal Procedure) Rules 2017 r 1.15, Sentencing Act 1991 ss 9, 44 – Ludeman v The Queen (2010) 31 VR 606, DPP v Jones (2013) 40 VR 267, DPP v Currie [2021] VSCA 272 applied.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape, indecent assault, assault, destroy property – Offences committed against domestic partner – Total effective sentence 12 months’ imprisonment combined with 3 year community correction order – Whether manifestly inadequate – Exceptional circumstances – Respondent expressed immediate remorse – Substantial delay between offending and sentence – Significant rehabilitation during period of delay – Strong work history – Utilitarian value of plea during COVID-19 pandemic – Sentence within range – R v Merrett (2007) 14 VR 392, Bourne v The Queen [2011] VSCA 159, Worboyes v The Queen [2021] VSCA 169 applied.
WORDS AND PHRASES – ‘sentence’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms E Ruddle QC with Mr T Bourbon | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr C Carr SC with Mr J R Murphy | Dribbin & Brown Criminal Lawyers |
MAXWELL P
KAYE JA
SIFRIS JA:
The respondent pleaded guilty in the County Court to one charge each of common assault, destroying property, rape and indecent assault. After a plea presented on his behalf, the respondent was sentenced to a total effective sentence of one year imprisonment with a 3 year community correction order (‘CCO’). That sentence was constituted as follows:
| Charge on Indictment K12195424.1 | Offence | Maximum | Sentence | Cumulation |
| 1 | Common assault[2] | 5 years | 3-year CCO | N/A |
| 2 | Destroying property[3] | 10 years | 3-year CCO | N/A |
| 3 | Rape[4] | 25 years | 12 months’ imprisonment (aggregate); 3 year CCO | Nil |
| 4 | Indecent assault[5] | 10 years | 12 months’ imprisonment (aggregate); 3 year CCO | Nil |
| Total effective sentence: | 1 year imprisonment 3 year CCO (300 hours unpaid community work, supervision, treatment and rehabilitation) | |||
| Non-parole period: | N/A | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | Nil | |||
| 6AAA Statement: | 4 years’ imprisonment, with a non-parole period of 2 years and 6 months. | |||
| Other relevant orders: | Nil | |||
[2]Contrary to common law.
[3]Contrary to s 197(1) of the Crimes Act 1958.
[4]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007.
[5]Contrary to s 39 of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007.
The Director of Public Prosecutions (‘the Director’), pursuant to s 287 of the Criminal Procedure Act 2009 (the ‘CPA’), seeks to appeal that sentence. The relevant part of the notice of appeal is as follows:
TAKE NOTICE that I, KERRI JUDD QC, Director of Public Prosecutions for the State of Victoria, pursuant to s 287 of the Criminal Procedure Act 2009—
(a)consider that there is an error in the sentence imposed and that a different sentence should be imposed; and
(b)am satisfied that an appeal should be brought in the public interest.
I now give you Notice of Appeal to the Court of Appeal in respect of the sentence passed upon you on 29 April 2021 in the County Court at Melbourne.
GROUND OF APPEAL
Ground 1 — The sentence imposed is manifestly inadequate.
The signature on the notice of appeal was inserted by the Director authorising her associate to affix her electronic signature to the document.
The appeal is resisted on three principal grounds. First, it is submitted that the notice of appeal is invalid on the basis that the Director did not personally sign the document. The respondent acknowledges that this Court is bound to follow its recent decision in Director of Public Prosecutions v Currie[6] in which the Court held that the notice of appeal was not invalidated by reason of the Director having her signature affixed to the notice in that way.
[6][2021] VSCA 272 (‘Currie’).
The second basis upon which the present appeal is resisted is that the notice is, in any event, invalid, because it fails to identify the particular sentence or sentences which are the subject of the appeal. Thirdly, the appeal is defended on the substantive basis that the relevant sentences passed on the respondent were not manifestly inadequate.
Circumstances of offending
The respondent was born in June 1974. In 2006, he commenced a relationship with the complainant, who was born in November 1983. At that time the respondent had a daughter T (then aged six years) from a previous relationship, and the complainant had a daughter IB (then aged three) from a previous relationship. In 2009, the respondent and the complainant had a daughter Katrina.[7] The relationship between the respondent and the complainant was not particularly stable and they separated on a number of occasions. The offences to which the respondent pleaded guilty occurred between January 2009 and June 2013.
[7]A pseudonym.
Charge 1 (which alleged common law assault) was a rolled up charge which covered three separate incidents in which the respondent assaulted the complainant.
The first incident occurred in January 2009 in the family home. At the time the complainant’s parents, and also a friend, were present. The complainant was then 16 weeks pregnant with Katrina. On that occasion the complainant used the respondent’s mobile telephone to order dinner. When she did so, she noticed that the respondent had received an upsetting message about her from a third party. When the complainant confronted the respondent about the message an argument ensued between them. The complainant began to walk away, but the respondent grabbed her and pushed to her to the ground, causing her to land on her hands and knees. The complainant did not suffer any injuries as a result of the incident. The complainant’s mother witnessed the incident and confronted the respondent about it.
The second incident occurred between 18 and 20 October 2010, again in the family home. On that occasion, the complainant’s daughter IB was present. The respondent and the complainant had an argument concerning the respondent wearing jewellery to work which was against workplace policy. The complainant had seen an email sent by the respondent’s work following up on the issue. At the time of the argument, the respondent was eating a Cornetto ice cream. He threw it at the complainant with the pointy end hitting her in the neck. The respondent then stood up from the couch, grabbed the complainant’s iPhone, and threw it against the wall causing it to smash. That conduct constituted charge 2 (destroying property). The respondent then grabbed the complainant around the throat and started yelling at her. The complainant was frightened and tried to get away from the respondent. He grabbed the side of her face and pushed her into the wall near the exit of the lounge room. The complainant suffered bruising as a result of the incident, but she did not seek any medical treatment in respect of it. The complainant’s daughter IB was present during the incident. She did not see the respondent push the complainant but she saw her fall to the floor.
The third incident occurred between 5 and 15 November 2012 when the complainant and the respondent attended the complainant’s parents’ house to celebrate the birthday of the complainant’s brother. On that occasion, a family friend, who was present, made a rude comment about the respondent’s anatomy. The complainant was upset about the comment because there had previously been issues in the relationship with the respondent concerning the sharing of photographs with other people. Later in the week, while the respondent was in the shower, the complainant took possession of his telephone. Before she could open it, the respondent got out of the shower, chased her, grabbed her with both arms and pulled her to the floor. He straddled the complainant while trying to take the phone off her, and in doing so he pushed her head into the floor. The incident occurred in the presence of the three children, and one of them told the respondent to stop. The respondent let go and the complainant left the house.
In March 2013, the complainant left the family home and moved into another property with IB and Katrina. At first the complainant and the respondent did not see each other very much. However, after a while they went on some group dates with friends.
On 28 June 2013, the complainant, the respondent, IB and Katrina went out for a dinner to celebrate the respondent’s birthday. On the next day the complainant and the respondent went to a restaurant with the mother of the respondent’s elder daughter T. There were about 25 to 30 people in attendance at the dinner. The complainant became intoxicated and planned to attend another location to continue celebrating. The respondent told her that she was too intoxicated to go out and he arranged to take her home in the same taxi that he was sharing with two friends.
The taxi arrived at the complainant’s home at about 12:30 am, having dropped off the two friends first. The respondent helped the complainant inside the house. As she was feeling cold, she lay down in front of the heater and played with her puppy. However, she did not remember anything after that. The next morning, she woke up in bed, naked from the waist down. She felt stiff and sore around and inside her vagina. The respondent was also in bed naked. When he went to the bathroom, the complainant looked through his telephone and found approximately ten photographs which were sexual in nature from the night before. One of the photographs depicted a cucumber or a zucchini which was inside her vagina. That conduct constituted charge 3 (rape). She also located videos on the telephone which depicted the respondent licking her vagina in circumstances in which she was unresponsive. That conduct constituted charge 4 (indecent assault).
The complainant commenced to delete the photographs and the videos from the telephone. As she did so, the respondent returned from the toilet. The complainant yelled at him and told him to leave, which he did.
Later on the same day, the respondent sent some text messages to the complainant, in which he said that he was sorry for what had occurred on the previous evening and he could not recall what had happened. He apologised for the ‘stupid … disrespectful thing’ he had done to her.
On 1 July 2013, further text messages passed between the respondent and the complainant, in which the respondent again apologised for his behaviour and acknowledged that he had no right to do what he had done. He admitted in one message that he thought he had licked and played with the complainant’s vagina.
In the ensuing weeks, the complainant told a number of people what had occurred, including her mother and her general practitioner. Her mother texted the respondent and confronted him about what the complainant had told her. On 1 July 2013 the respondent sent a text message to the complainant in which he said:
I feel so sick. Firstly for the way I treated you. It’s disgraceful … I am suffering … I hope your [sic] okay … please forgive me … I don’t no [sic] why I would do that to the person I love so much.
Some further text messages were exchanged between them, in which the complainant told the respondent he had no right to touch her. The respondent replied that he agreed that he had no right to do so, and he did not know why he had acted in that way. He said ‘I feel so bad … its sick … a rapist … I’m sorry I’ve caused this and you’re the innocent person’. The complainant made an initial report to police on 7 August 2013. However, she decided not to proceed and make a formal statement, as the respondent had apologised to her, and she was apprehensive about the legal process. Accordingly, the police closed the matter on 10 October 2013.
Four years later, in October 2017, the complainant reinstated her complaint. At the time, Family Court proceedings were taking place between the complainant and the respondent in relation to the respondent’s right to have contact with and access to their daughter Katrina. The complainant made a formal statement to police on 11 January 2018. The respondent was interviewed by police on 13 February 2019, and he made a ‘no comment’ record of interview. Charges were ultimately laid against the respondent on 13 August 2019.
At a committal mention hearing on 1 November 2019, the matter was listed for a committal hearing on 24 February 2020. On 21 February, resolution discussions took place between the respondent and the prosecution, but the matter did not resolve. The committal proceeding took place on 24 February. On 6 March, a further plea offer was made on behalf of the respondent, which was rejected in May. On 23 November, a further plea offer was made on behalf of the respondent, which was accepted two days later and the matter resolved. Accordingly, the respondent was arraigned at a hearing on 4 December 2020, in which he pleaded guilty to the charges.
Victim impact statement
The complainant provided a victim impact statement in which she described the significant psychological and emotional impact that the respondent’s offending had, and continued to have, on her. The complainant said that as a result of the offending she felt years of embarrassment and shame and she hated and blamed herself for what had happened. She also described her fear of the respondent, stating that she felt too scared to speak up and ask for help. She said that although eight years had passed, she still felt insecure, checking her windows and doors at night, and being easily frightened by minor events.
The respondent’s personal background and previous criminal history
The respondent is the eldest of four children. He grew up in the family home. He was educated to half way through Year 12 and left school in 1991.
After leaving school, the respondent had been engaged in consistent employment for 30 years. During that time, he predominantly worked in the construction industry as a scaffolder, rigger and dogman. In 2016, he studied for and successfully attained a Certificate III in Civil Construction.
The respondent was a keen sportsman, having played football from a very young age. Throughout his football career he had mentored young players and had coached a number of teams. At the time of the sentence, he was still a player and coach in a Masters Football club. On the plea, a reference was tendered from the president of that club who spoke highly of the respondent’s involvement in the club and of the assistance which he had provided in coaching, training and working bees and in mentoring other players.
In 2015, the respondent met his current partner and they commenced a relationship some 16 months before the respondent was sentenced. The respondent’s partner provided a reference, which was tendered on the plea, in which she described the difficulties she had experienced in her life, including the tragic death of her former partner, and in which she described the loyal support and care which the respondent had given to her.
Following the offending the respondent undertook counselling relating to sexual offending with a psychologist, and significantly reduced his consumption of alcohol. In addition, he undertook a Parenting After Separation course in 2018.
As mentioned, after the respondent and the complainant separated, they had resumed a friendly relationship until the respondent was interviewed by the police in February 2019. During that time, they went out for meals as a family. In 2014, the respondent helped the complainant move into her new home. He also assisted her doing chores around the house, such as mowing her lawn and removing a dead tree from the property. He continued to assume parental responsibility and dealings with their daughter Katrina.
The respondent’s previous convictions
The respondent had a previous criminal history in which he was sentenced for offences between January 1993 and September 2004. On some of those occasions, the offending was quite minor, comprising behaving in offensive manner in a public place, being drunk in a public place, theft and hinder police. He had come before the courts on two occasions in respect of offences relating to violence.
In 1998, he was sentenced on two charges of recklessly causing injury and one charge of assault with an instrument. On appeal to the County Court, he was sentenced to a total effective term of imprisonment of 3 months, which was wholly suspended for 12 months. Those charges arose out of a spontaneous fight in a night club involving two other individuals, in the course of which a bottle was thrown at a wall.
In March 2004, the respondent was sentenced by the Magistrates’ Court on one charge of recklessly causing injury to 2 months’ imprisonment which was wholly suspended for 12 months. That charge concerned an incident on the street when the respondent had come across a verbally abusive group and he had punched one of the men in that group.
The respondent did not breach either of the two suspended sentences and he had remained out of trouble from September 2004 until the current offending.
The plea in mitigation
On the plea, counsel for the respondent accepted that the offending by the respondent was serious. At the time of the offences the subject of charge 3 and charge 4, the respondent was intoxicated. While his intoxication did not mitigate his offending, it explained how and why it occurred, and gave context to the steps which the respondent had subsequently taken to rehabilitate and make amends.
In mitigation counsel relied on a number of factors. First, it was submitted that the delay was a significant mitigating factor. During the period of delay the respondent had taken constructive and positive steps to his rehabilitation. In addition, it was submitted that during that period, the respondent had a reasonable expectation that charges would not be laid, and thus there was an element of unfairness in the subsequent revival of the matters when the charges were laid against him.
Counsel further relied on the respondent’s plea of guilty, and his spontaneous expressions of remorse and apology to the complainant. Counsel noted that in expressing his contrition, the respondent had admitted to the offending, and had not in any way sought to understate its gravity.
Counsel further relied on the steps taken by the respondent towards his rehabilitation. In particular, the respondent had significantly reduced his consumption of alcohol, had sought and obtained psychological counselling, and had attended courses.
On the plea, the judge received a report by Ms Pamela Matthews, a forensic psychologist, who examined the respondent on two occasions in February and March 2021. Ms Matthews concluded that the respondent had addressed the risk factors associated with his offending, in particular by refraining from becoming intoxicated, by limiting his intimacy with his current partner in his relationship with her, and in undertaking a Men’s Behavioural Change Program. Ms Matthews concluded that the respondent no longer represented a risk to the complainant or to other persons, and that his current evaluated risk of sexual reoffending was very low.
Counsel also emphasised the respondent’s plea of guilty which, it was submitted, had significant utilitarian value, particularly in view of the current COVID-19 pandemic.
Finally, in mitigation, counsel referred to the respondent’s impressive work record. Counsel also tendered character references prepared by the respondent’s parents, sister and friends. The respondent’s parents and sister noted that the respondent was hard working, that he had maintained a close and supportive relationship with his two daughters, and that he had spent much of his spare time devoted to them. His sister described the respondent as an ‘amazing person and dad’ who she trusted with her five children. She described how the respondent had been a substantial help to her with her children. She described her brother as a ‘go-to person when you need a hand or something done’.
The respondent’s current partner provided a reference in which she noted that the respondent had helped her get through some very difficult times in her life. She said that the respondent was particularly dedicated to his family and always supported his younger daughter Katrina in after school activities. She further stated:
in the 6 years of knowing him he has never even once raised his voice to me, we are not really intimate as he struggles with affection because he’s extremely embarrassed about the past situation and is terrified of me thinking he’s doing something I don’t like or won’t like.
Reasons for sentence
In her reasons for sentence,[8] the judge noted that the courts and community regard offending in a domestic violence setting as being extremely serious.[9]
[8]DPP v Keller (a pseudonym) (County Court of Victoria, Judge Leighfield, 29 April 2021) (‘Reasons’).
[9]Ibid [31].
The judge considered that the three incidents that constituted charge 1 were a serious example of the offence of common assault, committed in circumstances of domestic violence. Her Honour also noted that the first incident occurred in circumstances in which the complainant was pregnant, and that the second and third incidents occurred in the presence of one or more of the children.[10] Her Honour further considered that the rape and indecent assault that constituted charges 3 and 4 were serious examples of those offences. They were committed in circumstances of a breach of trust, and in which the respondent knew that the complainant was vulnerable because she was intoxicated. In addition, the filming by the respondent of his conduct was ‘degrading and humiliating’.[11]
[10]Ibid [32].
[11]Ibid [34].
The judge considered that while the respondent’s plea of guilty was not made at the earliest opportunity, nevertheless it facilitated the course of justice and was of significant utilitarian benefit. The plea was of additional value in the current circumstances of the pandemic which had disrupted the smooth running of the justice system.[12] Her Honour also accepted that the respondent genuinely regretted his conduct and that he had a reasonable awareness of the impact which his offending had had on the complainant.[13]
[12]Ibid [25], [28].
[13]Ibid [29].
The judge noted that during the period of eight years between the commission of the offences and sentence, the respondent had made a number of positive changes in his life, undertaking counselling, reducing his alcohol intake, and resuming an amicable relationship with the complainant. In addition, he had not committed any further offences. The judge accepted the view of Ms Matthews that there was a very low risk of the respondent reoffending in a sexual manner. Accordingly, her Honour considered that ‘minimal weight’ needed to be given to community protection and specific deterrence as sentencing purposes.[14]
[14]Ibid [39]–[42].
The judge accepted the submission by counsel for the respondent that the delay was a significant mitigating factor. As the respondent had undergone a lengthy period of rehabilitation, there was no need to protect the community from him. While punishment, denunciation and general deterrence remained as sentencing purposes, the weight which would ordinarily be given to those purposes should be ‘tempered’ by the impact of delay.[15] The judge also took into account as a mitigating circumstance that the burden of a period of imprisonment would be more substantial by reason of the COVID-19 restrictions which were currently in force. In addition, her Honour took into account the additional stress to the respondent of not being able to support his 11 year old daughter Katrina during any period of imprisonment.[16] The judge also took into account current sentencing practices as illustrated by some of the cases which had been drawn to her attention.[17]
[15]Ibid [44].
[16]Ibid [45]–[46].
[17]Ibid [47].
Finally, the judge noted the respondent had been assessed as suitable for a CCO. The author of the report had stated that the respondent had been open, forthcoming and honest, and that he had accepted full responsibility for his offending.[18]
[18]Ibid [52].
The judge concluded that notwithstanding the significant mitigatory factors, it was necessary to impose a term of imprisonment in order to denounce the respondent’s conduct, administer just punishment, and deter others from committing similar offending. Her Honour concluded that in view of the mitigatory factors a combination of an aggregate sentence of imprisonment with a CCO could sufficiently achieve the relevant purposes of sentencing while also giving weight to the respondent’s rehabilitation.[19]
[19]Ibid [53]–[54].
Validity of the notice of appeal — submissions
As we have noted, the respondent submitted that the notice of appeal was invalid for two reasons. First, it was submitted that the notice failed to comply with s 288(2) of the CPA, because the electronic signature of the Director was affixed by the Director’s associate, and not by the Director herself. That submission was put formally, as the respondent has accepted that this Court is bound to follow the recent decision in Currie,[20] in which the Court held that a notice of appeal was not invalidated by reason of the Director having her signature affixed to the notice in that manner.
[20][2021] VSCA 272, [46] (Beach, McLeish and Walker JJA).
The second basis, relied on by the respondent, is that the notice of appeal is invalid, because fails to comply with s 287 of the CPA. That provision entitles the Director to appeal against ‘a sentence’ if the Director considers that there is an error ‘in the sentence imposed’.
Counsel based that submission on the proposition that, in sentencing the respondent, the judge imposed three separate sentences on the four charges to which he pleaded guilty, an aggregate sentence being imposed in respect of charges 3 and 4. The notice of appeal did not define which of those three sentences was the subject of the appeal. Accordingly, it was submitted, the notice is invalid, and as such has not commenced a competent appeal in the Court.
In support of that submission, counsel referred to the decision of this Court in Director of Public Prosecutions v Jones.[21] In that case, the court considered the competency of an appeal by the Director, in which the notice complained of ‘the total effective sentence and non-parole period’. The Court held that a notice by the Director must identify which sentence or sentences are sought to be impugned.[22] It observed that the total effective sentence is not such a sentence, but rather is the result of individual sentences and the orders that are made for cumulation or concurrence are in respect of them.[23]
[21](2013) 40 VR 267; [2013] VSCA 330 (‘Jones’).
[22]Ibid 276 [22] (Redlich and Priest JJA).
[23]Ibid 275 [20].
Counsel for the respondent submitted that the point relied on is not a mere technicality, as the High Court has emphasised in a number of its decisions on the point that, in an appeal by the prosecution against sentence, the Director must strictly comply with the prescribed procedures.[24] Relying on those authorities, he submitted that a sentenced offender, who faces double jeopardy on a Director’s appeal, should be clearly informed of the scope of that jeopardy, by being informed specifically which sentence or sentences is or are liable to be re-opened on the appeal.
[24]Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58 (‘Malvaso’); Byrnes v The Queen (1999) 199 CLR 1; [1999] HCA 38 (‘Byrnes’); Bond v The Queen (2000) 201 CLR 213; [2000] HCA 13 (‘Bond’).
In response to questions from the Court, counsel for the Director accepted that the judge had imposed separate sentences on three of the four charges. Counsel properly acknowledged that — except where the aggregate sentencing provisions apply — a judge is bound to impose a sentence for each offence of which an offender is convicted (whether on a plea or after a trial). She maintained, however, that the judge had only imposed ‘a single sentence’. This was said to be the result of the combined effect of two statutory provisions.
The first was s 44(1) of the Sentencing Act 1991, which authorised the imposition of the combination sentence — 12 months’ imprisonment and a 3 year CCO — which her Honour imposed both as the aggregate sentence on charges 3 and 4 and as the total effective sentence. The second provision relied on was s 3 of the CPA, which defines ‘sentence’ for the purposes of that Act as including an order under pt 3A of the Sentencing Act (which includes s 44).
It followed, according to the argument, that there was ‘a single sentence, a single combination sentence pursuant to s 44’. This was so because the CCO imposed on each of charges 1 and 2 was ‘the same CCO’ as was imposed as part of the combination sentence for charges 3 and 4. As a result, so it was said, ‘it’s all one CCO, it attaches to each of them’. In the end, therefore, the sentences imposed ‘form a single sentence’. Thus, when the notice of appeal referred to ‘the sentence imposed’, it was referring to the combination sentence, being ‘the sentence imposed’ under s 44.
Counsel for the Director further submitted that if the ground of appeal was incorrectly framed in the notice, such a deficiency constituted an irregularity under the Supreme Court (Criminal Procedure) Rules 2017 (the ‘Rules’), in respect of which the court has power to permit an appropriate amendment to be made under the provisions of r 1.15(1) of the Rules. She submitted that in the circumstances the Director should be permitted to amend the existing notice of appeal. Alternatively, she further submitted, if the Court concluded that by reason of such a deficiency the notice of appeal was invalid, the Director should be granted leave to file and rely on a new notice of appeal.
We interpolate that we rejected each of those applications in the course of oral argument. In respect of the application to amend the notice, we noted that if the notice was deficient because it failed to identify the sentence or sentences which were under appeal, such a deficiency would constitute a failure by the Director to comply with ss 287 and 288 of the CPA, which could not be the subject of amendment under r 1.15(1).
Further, we concluded that it was far too late for the Director to seek leave to file and rely on a new notice of appeal out of time. The respondent was sentenced on 29 April 2021. The Director filed the notice of appeal on 27 May 2021, being the last day of the period prescribed by the CPA. The question of the validity of the notice of appeal was first raised in the respondent’s written case which was filed on 27 July 2021. The Director has had ample opportunity to consider the matters raised as to the validity of the notice in that written case. Having done so, she elected to proceed to the hearing of the appeal on the basis of the original notice already filed. In those circumstances, it would be unfair to the respondent, and not in keeping with the rigour which courts expect of the prosecution in prosecuting such appeals,[25] if the court were to now permit the Director to file and serve a new notice of appeal.
[25]Bishop v The Queen (1982) 40 ALR 40, 42 (Deane J); DPP v Craib (2001) 3 VR 388, 402 [40] (Chernov JA); [2001] VSCA 92; DPP v Hayden [2006] VSCA 152, [7] (Maxwell P and Vincent JA).
Validity of the notice of appeal — analysis and conclusion
In a case like the present, where a sentencing judge has passed separate sentences in respect of two or more separate offences, a notice of appeal filed by the Director must — in order to be valid — identify which of the sentences is/are the subject of appeal. That conclusion follows from four propositions, namely:
(1) An appeal under s 287 of the CPA is directed to the sentence, or sentences, which the Director considers to be in error.
(2) In order that a valid appeal be instituted, the Director must commence the appeal by a notice under s 288 of the CPA.
(3) In order to comply with s 288, it is necessary that the ‘sentence’ or ‘sentences’, which are the subject of the intended appeal, be properly specified in the notice of appeal.
(4) In s 287 and s 288, the term ‘sentence’ embraces each individual sentence imposed on the respondent and any consequential orders made for cumulation or concurrency, but it does not embrace the ‘total effective sentence’ which is the product of such individual sentences and consequential orders.
The first two points are derived from the text of ss 287 and 288 of the CPA. Section 287 provides that the Director may appeal to the Court against ‘a sentence’ if the Director considers that there is an error in ‘the sentence’ imposed and that a different ‘sentence’ should be imposed. Thus, the Director’s appeal must specifically be against the sentence or sentences imposed by the sentencing court, which it is contended were imposed in error. Section 288 provides that an appeal under s 287 is ‘commenced’ by filing a notice of appeal within 28 days after the day on which ‘the sentence’ is imposed (or an extension of that period granted under s 313). That is, the CPA specifically provides that the foundation for any appeal is constituted by the filing of the notice of appeal in respect of the sentence or sentences to be appealed.
The third and fourth propositions were enunciated by this Court in Ludeman v The Queen[26] and Jones.
[26](2010) 31 VR 606; [2010] VSCA 333 (‘Ludeman’).
In Ludeman, one of the three appellants had been sentenced on more than one charge. The question arose, in respect of that appellant, whether the Court might refuse leave under s 280 of the CPA (as it then was) in a case in which the Court was satisfied that an error had been made in the individual sentence, if the judge hearing the leave application did not consider that there was a reasonable prospect that a less severe total effective sentence would be imposed on the appeal. We interpolate that, at the time of that decision, s 280 did not include sub–s (1)(b) in its present form, which provides that a court may refuse an application for leave to appeal against sentence if there is no reasonable prospect that the court would reduce the total effective sentence despite there being error in the sentence imposed.
In determining the question which was then before it, the court in Ludeman held that in ss 280 and 281 of the CPA ‘sentence’ meant each individual sentence imposed, and not the total effective sentence. Ashley and Redlich JJA (with whom Warren CJ, Buchanan and Nettle JJA agreed) expressed that conclusion in the following terms:
In our opinion, both the words of the relevant provisions and history point to the general correctness of the Crown’s submissions with respect to grant or refusal of leave. We think it is clear that, in the ordinary case, ‘sentence’ embraces each individual sentence imposed and any consequential orders made for cumulation/concurrency, and any non–parole period which is fixed; but not what is commonly called the ‘total effective sentence’. Thus, in an application for leave to appeal against sentence under s 280, in a matter involving multiple offences, leave should ordinarily only be granted in respect of an individual sentence which is arguably erroneous, but should be refused in respect of other individual sentence(s). Leave will extend, in such a case, to any consequential order for cumulation/concurrency made in respect of the impugned sentence and to any non–parole period which has been fixed. It will also extend without separate specification on the grant of leave.
… Consistently with what we have said thus far, the Criminal Procedure Act requires that a complaint about totality should be framed by reference to the individual sentences (if any) which the applicant seeks to impugn, as well as any order(s) for cumulation which will be attacked. The proposed ground then having a sufficient degree of specificity, the judge will be better able to determine whether leave should be granted in respect of one or more (and which) individual sentences and orders for cumulation.[27]
[27]Ibid 614–15 [55]–[56] (citation omitted).
That construction of ss 280 and 281 of the CPA was applied to s 287 of the CPA in Jones. In that case, the respondent pleaded guilty in the County Court to 16 charges. The Director appealed against sentence on the ground of manifest inadequacy. The ground contained in the notice of appeal, alleged that the total effective sentence and non–parole period were manifestly inadequate. The ground contained particulars, which were directed to the orders for cumulation and concurrency, and to the non–parole period. The respondent raised, as a preliminary point, the question whether the appeal was incompetent, because the notice was not directed to the sentences imposed on any particular specific charge.
The court held that, if not for the particulars, the notice of appeal would not have complied with s 288, because it was not directed to a sentence imposed on the respondent, but rather to the total effective sentence which constituted the product of the sentences imposed on each charge and the respective orders for cumulation made in respect of them. In their joint judgment, Redlich and Priest JJA stated:
Essentially for the reasons given in Ludeman, the term ‘sentence’ as it is used in Divs 2 and 3 of Pt 6.3 of the CPA embraced each individual sentence imposed and any consequential order made for cumulation or concurrency, and any non–parole period which was fixed, but not the total effective sentence.[28]
[28]Jones (2013) 40 VR 267, 275 [18]; [2013] VSCA 330 (citation omitted).
As we have noted, and as counsel for the Director conceded, the sentencing disposition by the judge contained three separate sentences, in respect of charges 1, 2 and (as an aggregate sentence) 3 and 4 respectively. As also noted, the notice of appeal stated that the Director considered that there was an error in ‘the sentence’ imposed. The sole ground (without any particulars) expressed in the notice was that ‘the sentence’ is manifestly inadequate.
On its face, therefore, the notice plainly does not comply with the requirement, explained in Ludeman and Jones, that the particular sentence or sentences sought to be appealed be specifically identified. Nothing in s 44(1) of the Sentencing Act or the definition of ‘sentence’ in s 3 of the CPA can overcome that deficiency.
Section 44(1) provides:
Subject to any specific provision relating to the offence, when sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.
Self-evidently, all that s 44(1) does is to authorise the court to make a CCO in addition to a sentence of imprisonment where the sum of ‘all the terms of imprisonment to be served’ is one year or less. As can be seen, the section specifically contemplates the imposition of separate sentences (whether imprisonment or otherwise) in a case in which an offender is sentenced in respect of more than one offence.
It is, of course, unsurprising that a sentence imposed under s 44(1) falls within the definition of ‘sentence’ in s 3 of the CPA. After all, the appeal provisions of the CPA must be capable of applying to all of the types of sentence provided for by the Sentencing Act. But the only significance of the definition in the present case is to confirm that, when her Honour imposed a combination sentence on charges 3 and 4, she was indeed imposing a ‘sentence’. Contrary to the Director’s submission, the definition does not — cannot — alter the fact that the judge also imposed a ‘sentence’ on charge 1 and another ‘sentence’ on charge 2. The submission that the judge only imposed a single ‘sentence’ is therefore without foundation.
As we have said, the sentencing judge correctly imposed separate sentences in relation to charges 1 and 2, and (as an aggregate sentence) in relation to charges 3 and 4. The notice did not specify which of those three sentences is/are the subject of the appeal. It follows that the notice of appeal fails to comply with s 288 of the CPA, and consequently the appeal is incompetent.
The courts have consistently emphasised that because an appeal by the prosecutor subjects a sentenced offender to double jeopardy,[29] the statutory procedures prescribed for such an appeal must be strictly complied with.[30] In the present case, for the reasons we have discussed, the formulation of the notice of appeal constitutes a significant departure from the procedure prescribed by ss 287 and 288 for the filing of a notice of appeal by the Director against sentence. It follows that the notice of appeal is invalid, and consequently the appeal is incompetent.
[29]See, eg, Malvaso (1989) 168 CLR 227, 234 (Deane and McHugh JJ); [1989] HCA 58; Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ); [1994] HCA 49; Bond (2000) 201 CLR 213, 222–3 [27] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ); [2000] HCA 13.
[30]Malvaso (1989) 168 CLR 227, 233 (Mason CJ, Brennan and Gaudron JJ); [1989] HCA 58; Byrnes (1999) 199 CLR 1, 26–7 [53] (Gaudron, McHugh, Gummow and Callinan JJ); [1999] HCA 38; Bond (2000) 201 CLR 213, 223 [29] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ); [2000] HCA 13.
Although we have reached that conclusion, it is appropriate in the circumstances of this case that we address the substantive ground of appeal relied on by the Director, both in deference to the impressive arguments presented by both sides with respect to that ground, and also in view of the issues raised by it.
Manifest inadequacy — submissions
In her submissions in support of the proposed ground of appeal, counsel for the Director accepted that it could not be contended that the sentences imposed on charges 1 and 2 were manifestly inadequate. Counsel’s submissions were directed specifically to the aggregate sentence of one year imprisonment and the 3 year CCO imposed in respect of the offending that was the subject of charges 3 and 4. In essence, counsel submitted that that disposition was wholly inadequate in view of the gravity of the offending.
In that respect, counsel noted that the judge correctly described the offending that was the subject of those charges as serious examples of such offences. The offending involved the degradation by the respondent of the complainant in her own home. The circumstance that it occurred in a domestic setting added to the seriousness of the offending, because it involved a breach of the trust which the complainant had placed in the respondent. In view of her intoxicated state, the complainant was vulnerable. The offending involved degrading acts by the respondent, in which he treated her as an object for his own pleasure. The offending was aggravated by the fact that he filmed and photographed the incident. Further, the offending took place in the context of a relationship in which the respondent had perpetrated previous acts of domestic violence against the complainant.
Counsel for the Director acknowledged that the respondent was entitled to rely on a number of factors in mitigation of sentence, including his guilty plea, his remorse, the delay and his steps towards rehabilitation and reform during that delay. In that respect, counsel accepted that the period of delay in the case was a significant mitigating factor. However, she submitted, the trial judge allowed that circumstance to ‘overwhelm’ all the features of the offending, by reason of which it was particularly serious. In essence, counsel submitted that the sentence imposed on charges 3 and 4 was manifestly inadequate in that it failed to adequately vindicate the sentencing purposes of general deterrence and denunciation.
In response, counsel for the respondent submitted that while the offending was serious, nevertheless the respondent was entitled to rely on a number of significant mitigating circumstances. In particular, the early plea of guilty by the respondent was a significant mitigating circumstance. The plea was of special utility, because it was made during the current COVID-19 pandemic which has disrupted trial courts in this State. In addition, the plea was accompanied by remorse, in circumstances in which the respondent had apologised to the complainant immediately after the offending.
Counsel placed particular reliance on the significant delay between the date of offending and the date of sentence. During that period, the respondent had taken important steps towards his rehabilitation, so that Ms Matthews assessed him as a ‘very low risk category’ for sexual reoffending. In addition, it was submitted, the effect of the lapse of time was such as to engender a legitimate sense of unfairness. Counsel also relied on the respondent’s impressive work record, and the character references tendered on his behalf.
In respect of the offending, counsel noted that the act of rape, that was the subject of charge 3, did not involve any gratuitous force or the risk attending penile penetration without a condom. Further, the offending in charges 3 and 4 was immediately followed by prompt admissions made by the respondent and unqualified remorse.
Counsel also relied on sentencing dispositions in other cases which he submitted demonstrated that the sentence imposed on charges 3 and 4 was not wholly outside the range of sentencing options available to the judge. In that respect, counsel referred the court to the sentences in Bourne v The Queen,[31] Director of Public Prosecutions v Walsh (a pseudonym),[32] and Director of Public Prosecutions v Tilley.[33]
[31][2011] VSCA 159 (‘Bourne’).
[32][2018] VCC 1710.
[33][2018] VCC 1700.
Finally, counsel submitted that if the appeal was competent, and if the court were to conclude that the sentence, the subject of this appeal, was manifestly inadequate, the court should nevertheless dismiss the appeal in the exercise of its residual discretion. In support of that submission, counsel relied on three principal points, namely, first, that the notice of appeal was improperly framed, secondly, that the notice was filed on the last day provided by the CPA, and thirdly that in any event the appeal does not raise any point of principle in view of the highly unusual combination of circumstances attending the offending.
Manifest inadequacy — analysis and conclusion
In order to succeed on the ground, that the sentence imposed was manifestly inadequate, the Director must persuade this Court that the sentence, under consideration, was wholly outside the range of sentences reasonably open to the sentencing judge. In other words the sentence must be demonstrated to be so inadequate as to bespeak error by the judge in the exercise of her sentencing discretion, notwithstanding that no specific error can be identified.[34]
[34]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40; R v Tait (1979) 24 ALR 473, 476 (Brennan, Deane and Gallop JJ).
Those principles were authoritatively stated by this Court in Director of Public Prosecutions v Karazisis[35] in the following terms:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[36]
[35](2010) 31 VR 634; [2010] VSCA 350.
[36]Ibid 662–3 [127]–[128] (Ashley, Redlich and Weinberg JJA) (citations omitted).
As was accepted on the plea, and on this appeal, the offending to which the respondent was sentenced was particularly serious. Charge 1 involved three incidents of physical violence perpetrated by the respondent against the complainant in the course of their relationship. The first incident occurred in circumstances in which the complainant was 16 weeks pregnant. The second and third incidents occurred in the presence of one or more of their children. Each incident took place either in the family home or in the family setting in which the complainant was fully entitled to feel safe and protected. In those circumstances, it is well recognised that the sentencing principles of general deterrence and denunciation assume particular prominence in the exercise of the sentencing discretion.
As we have noted, in the course of submissions, counsel for the Director did not contend that the sentences imposed on charges 1 and 2 were manifestly inadequate. However, the circumstance that the respondent had engaged in previous acts of violence towards the complainant in a domestic setting had the effect that he could not maintain that the incident, that was the subject of charges 3 and 4, constituted an isolated incident in their relationship.
The offence that was the subject of charge 3 was particularly serious, as is reflected by the maximum prescribed sentence of 25 years’ imprisonment. As counsel for the Director correctly pointed out, the offending in the present case was attended by a number of serious circumstances. The complainant was heavily intoxicated and as such was vulnerable and defenceless. The incident occurred in the complainant’s own home where she was entitled to feel safe. The offences that were the subject of charges 3 and 4 constituted a gross violation by the respondent of the trust which the complainant had reposed in him. The acts that constituted each of those two charges were degrading and humiliating for the complainant. The conduct of the respondent, in filming and photographing aspects of the incident, aggravated his offending.
In those circumstances, in the absence of cogent mitigating circumstances, it might be readily concluded that the sentence imposed by the judge on charges 3 and 4 was manifestly inadequate. There were, however, particularly powerful mitigating circumstances in this case which the respondent was entitled to have taken into account in the exercise of the sentencing discretion.
The first, and foremost, mitigating circumstance derives from a combination of the respondent’s profound remorse, the delay between the date of the offence and the sentence, and the significant steps taken by the respondent to reform and rehabilitate during that period.
In that respect, it is particularly significant that almost immediately after the offence that was the subject of charges 3 and 4, the respondent spontaneously sent text messages to the complainant in which he expressed his abject apology and regret for his actions. In doing so, he made full admissions as to his conduct. He did not seek at all to minimise or excuse his conduct, or to blame anyone else for it. Instead, he (correctly) castigated himself for his conduct and for the harm that he had occasioned to the complainant.
That spontaneity and level of regret and remorse is of itself quite unusual in cases such as this. In the years that followed, the respondent embarked on a course of reform and rehabilitation to ensure that he did not reoffend. The steps that he has taken have been positive and constructive, and have reflected his ongoing sense of remorse and regret. In particular, during that period, he has significantly reduced his alcohol consumption, undertaken a course of counselling, and continued to engage in gainful employment. It is relevant that during that period he was able to resume a respectful and amicable relationship with the complainant which no doubt was to the benefit of their daughter. The respondent’s ongoing regret, and his consciousness of the gravity of his offending, was reflected in the testimonial of his current partner, to which we were referred, and which described the difficulties that the respondent now has with expressing affection in an intimate manner because of his deep embarrassment about his conduct that was the subject of the charges.
Of themselves, remorse, regret and steps taken by an offender to rehabilitate are important mitigating circumstances. As this Court stated in Barbaro v The Queen:
If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy — in the form of a material reduction in what would otherwise be an appropriate sentence — is very likely due.[37]
[37][2012] VSCA 288, [39] (Maxwell P, Harper JA and T Forrest AJA).
In a case such as this, the length of the delay between the offending and the sentence, and the steps taken by the respondent to reform his behaviour, were properly regarded by the judge as powerful mitigating factors. In R v Merrett, Piggott and Ferrari,[38] Maxwell P (with whom Chernov JA and Habersberger AJA agreed) stated:
The relevance of delay lies rather in the effect which the lapse of time — however caused — has on the accused. Delay constitutes ‘a powerful mitigating factor’. In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v R:
where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.[39]
[38](2007) 14 VR 392; [2007] VSCA 1.
[39]Ibid 400 [35] (citations omitted).
Those principles were later followed and applied by the court in Bourne. In that case the appellant pleaded guilty to one charge of rape of his partner. The offending occurred in November 2004. The victim did not make a formal report to police until November 2008. The appellant was interviewed in January 2009, but was not charged until November 2009. He was sentenced in July 2010. On appeal, this Court held that the sentencing judge failed to give adequate weight to the delay. The Court observed:
What makes delay such a ‘powerful mitigating factor’ in a case such as the present is that considerations of rehabilitation and fairness weigh heavily in the sentencing synthesis, mitigating the punishment which the seriousness of the offence might otherwise warrant.[40]
[40]Bourne [2011] VSCA 159, [30] (Maxwell ACJ, Buchanan and Bongiorno JJA).
There were further important mitigating circumstances. The respondent pleaded guilty at an early stage of the proceeding. The judge, understandably, accepted that the plea was attended by true remorse. The plea had significant utilitarian value, sparing the complainant the ordeal of giving evidence, and it facilitated the course of justice. The plea was entered by the respondent during the current COVID-19 pandemic. As this Court recognised in Worboyes v The Queen,[41] a plea of guilty entered during the pandemic is deserving of additional weight in mitigation than a similar plea entered at another time. It is important that sentences imposed in such a case properly reflect the additional utilitarian value of the plea and accord it appropriate weight as a mitigating circumstance in the sentencing synthesis.
[41][2021] VSCA 169, [21]–[39] (Priest, Kaye and T Forrest JJA).
As an allied consideration, it was appropriate for the judge to take into account that the sentence of imprisonment imposed on the respondent was his first experience of custody. That experience was to be undergone during the pandemic, in which the respondent was required to undergo quarantine for 14 days in circumstances of isolation, and he would then be required to serve his sentence in an environment which was strictly controlled in order to prevent the entry of the virus into the prison population. In addition, the respondent would not be able to support his 11 year old daughter with whom he shared a close relationship. All of those matters were circumstances appropriately to be taken into account in assessing the additional burden on the respondent as a result of the term of imprisonment imposed on him.
In addition, there were other mitigating circumstances. The respondent had been gainfully employed in the construction industry for more than 30 years. He had been actively involved in sport in the local community, both as a participant and as a coach and mentor to young footballers. The character references tendered on behalf of the respondent attested to his work ethic, to his close relationship with his daughters, and his loyalty to and support of his family. Finally, and relevantly, the judge accepted the view of Ms Matthews, the forensic psychologist, that there was a very low risk of the respondent reoffending in a sexual manner.
Considered in combination, the mitigating factors to which we have referred were particularly powerful. As we have discussed, the judge was correct to take into account the period of delay, and in particular the genuine remorse experienced by the respondent and the steps that he had taken during that period of delay to reform and rehabilitate himself. It was strongly in the public interest that the sentence imposed should, so far as possible, enable that process of rehabilitation to continue. A combination sentence was therefore particularly appropriate, given the unique capacity of a CCO to advance an offender’s rehabilitation.[42]
[42]Boulton v The Queen (2014) 46 VR 308, 335 [112]–[114] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA); [2014] VSCA 342.
Those factors, and particularly the aspects of remorse, delay and rehabilitation, rendered this case most unusual. As we observed earlier, in the absence of strong mitigating circumstances, we would have concluded that the sentence imposed on the respondent, on charges 3 and 4, was manifestly inadequate. However, in our view the judge was correct to accord those mitigating factors a significant weight in the sentencing equation.
Taking those matters into account, we are not persuaded that the aggregate sentence imposed on the respondent on charges 3 and 4, or the total sentencing disposition, was outside the range of sentencing options available to the sentencing judge, so as to require appellate intervention.
It follows that if the notice of appeal in the present case had been valid, we would nevertheless, in any event, have dismissed the appeal.
Conclusion
For the foregoing reasons, we have concluded that the notice of appeal in the case is invalid, so that the appeal is incompetent. We have further concluded that if the notice had been valid, the sentence imposed on charges 3 and 4, and the total effective sentence, were not manifestly inadequate. For those reasons, the appeal must be dismissed.
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