DPP v Kennedy
[2008] VSCA 263
•11 December 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 418 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER KENNEDY |
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JUDGES: | MAXWELL P, BUCHANAN and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 July 2008 | |
DATE OF JUDGMENT: | 11 December 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 263 | |
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CRIMINAL LAW — Sentencing — Multiple armed robberies —Sentencing Act 1991 (Vic) — Section 16(3B) — Parole sentence being served — Commencement of sentence — Order in which sentences to be served — Principle of totality — Manifest inadequacy — Recidivist — Cumulation — Inadequate to reflect discrete and persistent offending.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr L C Carter | R V Tait & Co |
MAXWELL P:
I have had the advantage of reading in draft the reasons of Redlich JA. I agree with his Honour, for the reasons which he gives, that the appeal should be allowed and the respondent re-sentenced as he proposes.
BUCHANAN JA:
I would allow the appeal for the reasons stated by Redlich JA and re-sentence the respondent in the manner proposed by his Honour.
REDLICH JA:
On 20 November 2007 the respondent, having pleaded guilty in the County Court to four counts of armed robbery, one count of theft and one count of being a prohibited person carrying an unregistered firearm, was sentenced to six months’ imprisonment on the count of theft (count 1), two years and three months’ imprisonment on one count of armed robbery (count 2), two years and six months’ imprisonment on the remaining three counts of armed robbery (counts 3, 4 and 5) and one year and six months’ imprisonment on the count of being a prohibited person carrying an unregistered firearm (count 6). It was ordered that the whole of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 3 and that otherwise the sentences on all counts were to be served concurrently with the sentence imposed on count 3 resulting in a total effective sentence of five years’ imprisonment. It was ordered that the respondent serve a minimum of two years and nine months’ imprisonment before becoming eligible for parole.
The respondent committed these offences whilst on parole. He has an extensive criminal record, with convictions for 105 offences including armed robbery, firearms offences and drug offences from 19 court appearances.
On 19 March 2001 the respondent had been sentenced in New South Wales to a total effective sentence of five years and six months for a number of offences including entering a dwelling with a dangerous weapon. On 30 October 2001 the respondent was transferred to Victoria under the Prisoner (Interstate Transfer) Act 1983 (Vic) to face charges in the County Court,[1] including conspiracy to commit armed robbery. On 30 January 2003 the respondent was sentenced in the County Court to a total effective sentence of three years and nine months. A new non-parole period of three years and six months was fixed[2] and it was ordered that two years and six months of the sentence then imposed be served cumulatively upon the sentence the respondent was currently undergoing for the offences committed in NSW.
[1]The conspiracy to commit armed robbery offence was committed by the respondent on 9 February 2000 prior to the offences committed in NSW in 2001.
[2]The new single non-parole period was set pursuant to s 14 Sentencing Act 1991 (Vic).
The respondent was released on parole on 14 March 2006 on the condition that he report at regular intervals. He attended the scheduled appointment on 28 March 2006 but thereafter failed to honour his parole undertakings. The Parole Board cancelled the respondent’s parole on 12 April 2006 as he had failed to comply with conditions of his parole. Following his arrest on 9 June 2006 for the present offences, the respondent commenced serving the balance of the ‘parole sentence’ owing which, at the time of his arrest, was two years, seven months and 15 days. Consequently, at the time of sentencing on 20 November 2007, the respondent was serving the parole sentence.
As s 16(3B) of the Sentencing Act1991 (Vic) was applicable and no exceptional circumstances were found to exist, the sentencing judge ordered that the sentences imposed were to be served cumulatively on the parole sentence the respondent was currently serving. It will be necessary to return to the form of the order that was pronounced.
Grounds of the Director’s appeal
The Director of Public Prosecutions has appealed against the sentences on the grounds that the individual sentences, the total effective sentence and the non parole period are manifestly inadequate. The Director relied upon the particulars that the sentencing judge:
(a)failed to adequately reflect the gravity of the offences generally and in this case in particular;
(b)failed to take into account or sufficiently take into account the aspect of general deterrence;
(c)failed to take into account or sufficiently take into account the aspect of specific deterrence;
(d)gave too much weight to factors going to mitigation in particular the assistance provided to the Prosecution in relation to the co-offender;
(e)gave too much weight to the principle of totality;
(f)gave too much weight to the effect of cumulation upon the sentence being served for breach of parole;
(g)gave insufficient weight to the maximum penalties applicable;
(h)gave insufficient weight to the respondent’s prior criminal history;
(i)gave insufficient weight to the principles of denunciation and punishment;
(j)failed to order sufficient cumulation between counts relating to different victims; and
(k)failed to give sufficient weight to the impact of the offending upon the victims.
Circumstances of the offending
Count 1 relates to the respondent borrowing a Honda CRV motor vehicle from a friend on the understanding that it would be returned on 28 March 2006. The respondent treated the vehicle as his own and used it in the course of the armed robberies. The vehicle was not returned to its owner until after the respondent’s arrest.
The first armed robbery (count 2) occurred on 31 March 2006. That day, Joseph Dyer, his wife Lisa Dyer and the respondent discussed committing an armed robbery at a post office in order to raise funds for the purchase of a car by Joseph Dyer. A plan was agreed upon and the respondent, Lisa and Joseph Dyer drove to the Doncaster Westfield Shopping Centre in the Honda CRV vehicle (the subject of count 1). Joseph Dyer stole a Ford Fairmont Sedan (registration NZR 262) from the car park of the shopping centre. He then drove in convoy with the Honda to Yender Street, Balwyn East. Yender Street is a short distance from the Balwyn East Post Office which is located at 387 Belmore Road, Balwyn East. In Yender Street, the respondent got into the driver’s seat of the stolen Ford and Dyer took a mask, bag and shotgun from the Honda and got into the Ford. Lisa Dyer waited in Yender Street in the Honda.
At 2.30 pm that day there were two female staff on duty and two female customers in the post office. At that time the respondent drove the stolen Ford to the front of the post office and Dyer got out of that car and walked into the store. He was wearing the mask and carrying the bag and was armed with a sawn-off double barrelled shotgun with exposed hammers. He pointed the shotgun at staff and demanded money, then placed a bag on the counter and told staff: ‘Fill the bag, fill the bag’. One of the staff members placed a sum of money in the bag. Dyer then walked back to the stolen Ford and the respondent drove back to Yender Street where he parked the stolen Ford. The respondent and Dyer then got into the Honda CRV and were driven away from the scene by Lisa Dyer.
The second armed robbery (count 3) was committed by the respondent on 1 May 2006. The respondent drove the Honda CRV to the car park at the rear of the Oakleigh South Post Office. At 2.30 pm, there were two female staff members on duty at the post office and three female customers in the store. The respondent walked into the store wearing a disguise and carrying a multi-coloured backpack. He withdrew from the backpack a sawn-off double barrelled shotgun with exposed hammers, and pointed it at the staff. He yelled loudly at the staff: ‘This is a hold up; put the money in the bag; everything’. He placed the backpack on the counter and stood back, continuing to point the gun at staff. One of the staff placed a sum of money into the backpack. The respondent ordered all present to put their heads down, before backing out of the store. He ran back to the Honda CRV and drove himself away from the scene. This armed robbery was captured on video surveillance located within the post office.
The third armed robbery (count 4) was committed by the respondent on 12 May 2006. The respondent drove the Honda CRV to the car park at the rear of the Boundary Hotel in Bentleigh East. The respondent was wearing a wig, as he did in the second armed robbery. Once again he was armed with a sawn-off double barrelled shotgun with exposed hammers and was carrying a multi-coloured backpack.
At 2.34 pm there were three female staff members on duty at the post office and two customers in the store (one male and one female). The respondent walked into the store, withdrew the shotgun from the bag, cocked the hammers, pointed the gun at the staff and yelled loudly: ‘Give me what you’ve got; fill the bag’. He placed the backpack on the counter and continued to point the gun at staff who placed an amount of cash in the backpack. The respondent ran from the store back to the Honda CRV and drove himself away from the scene. This armed robbery was captured on video surveillance located within the post office and the respondent’s arrival at and departure from the Boundary Hotel car park was also captured on the hotel’s external video surveillance system.
The fourth armed robbery (count 5) was committed by the respondent on 19 May 2006. The respondent drove the Honda CRV to a street near the car park at the rear of the Vermont Post Office. The respondent had with him a clown mask, was again armed with a sawn-off doubled barrelled shotgun with exposed hammers, and was carrying a dark coloured gym bag.
At 4.45 pm the respondent walked into the post office brandishing the shotgun and wearing the mask. There were two female staff members on duty, both standing working in a rear room. The respondent walked up to the counter and pointed the shotgun at one member of staff who was visible to him. When she saw the respondent, she called to her workmate and the two ran out of the back door of the office and into the car park. The respondent then reached over the counter and stole $10 from a drawer. He walked out and around the corner to the car park at the rear of the store. As he walked through that car park, one of the victims pointed him out to passers-by. These passers-by began to follow the respondent for a short distance but he turned and pointed the shotgun at them and they discontinued their pursuit. The respondent walked back to the Honda CRV and drove himself away from the scene.
On 9 June 2006 the respondent was arrested at his residence in Maryborough by members of the Armed Offenders Squad. The Honda CRV was seized and searched, and was subsequently returned to its owner. The respondent was interviewed at the Maryborough Police Station. He was extremely cooperative with detectives and described where investigators would find the weapon and the disguises used in the commission of the offences. These were later discovered after a search of his premises. The respondent made full admissions in relation to the armed robberies of the Balwyn East, Oakleigh South, Bentleigh East and Vermont post offices. He admitted having had possession of the shotgun used in these offences and also admitted his involvement in the theft of his friend’s car. He also assisted investigators in relation to the involvement of his co-offender Dyer in the Balwyn East armed robbery.
The respondent’s personal circumstances
The respondent was aged 43 at the time he committed these offences. At age five he had been hit by a car, rendered unconscious and suffered multiple injuries. He was made a ward of the state at age nine, presumably because of dysfunctional family circumstances. In the early 1990s the respondent commenced a de facto relationship which continued for some five years. He has two daughters aged 14 and 16 from that relationship. The respondent has an intermittent work history having spent 16 and a half of the past 25 years in custody.
In the reasons for sentence, the sentencing judge referred to a report prepared Mr Bernard Healey, a consultant clinical psychologist. Mr Healey stated his intellectual testing of the respondent revealed a dull capacity with a full scale IQ of 79 placing the respondent at the eighth percentile, where 92 per cent of his age would do better. Mr Healey also expressed the opinion in his report that the respondent suffered from ‘distressed emotionality with depression, sociopathic trend, significant social introversion/withdrawal, anxiety, a schizoid trend and paranoid features’. Reference was also made to repeated suicide attempts and that the respondent was on anti-depressant medication. In regard to the respondent’s psychological issues the sentencing judge did not regard the principles in R v Verdins[3] as applicable. No complaint was made about this conclusion on appeal. The clinical psychologist was of the view that the respondent had become institutionalised. The respondent submitted that this was a considerable mitigating factor.
[3](2007) 16 VR 269.
Section 16(3B) and application of the totality principle
His Honour proceeded upon the view that, as a consequence of s 16(3B) of the Sentencing Act1991 (Vic), the respondent would first serve the whole of his parole term owing to the Parole Board and would then commence to serve the sentences he imposed. The judge said that he imposed ‘a lesser than normal non-parole period to reflect the principles of totality’.[4] Unfortunately, no assistance was given to his Honour by prosecuting or defence counsel in properly construing the effect of s 16(3B) or in directing attention to the legislative provisions which do not permit such a course. On appeal, the Director submitted that the sentencing judge had misconstrued s 16(3B) and had erred because he gave too much weight to the principle of totality.
[4]Reasons for Sentence [32].
Section 16(3B) provides:
Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody.
Whilst s 16(3B) does not impinge upon the duty of the judge to have regard to the principle of totality, its purpose, as with s 16(3C), is to override the general presumption of concurrency set out in s 16(1).[5] These provisions displace the presumption but they do not direct that the sentencing judge take any particular course.[6]
[5]R v Alashkar (2007) 17 VR 65, [15]–[16] (Vincent, Redlich and Kellam JJA).
[6]R v Hennen [2004] VSCA 42; R v Sebborn [2008] VSCA 200, [27] (Vincent and Weinberg JJA and Robson AJA).
The learned sentencing judge misconstrued the effect of s 16(3B) as dictating that, if he did not order that the sentences he was to impose were to be concurrent with the parole sentence, the sentences he imposed would be cumulative upon and have to be served after the parole sentence.[7] The sentencing judge explicitly stated — ‘so that there is no misunderstanding’ — that the ‘non-parole period only commences to run when you have completed serving your parole sentence’.[8] His Honour intended that the respondent not commence serving the sentences he then imposed until 23 January 2009, when the respondent would have completed serving his existing parole sentence.
[7]The ‘parole sentence’ was being served following the respondent’s arrest on the present offences. See [6] above.
[8]Reasons for Sentence [32].
The commencement date of a sentence and the order in which sentences are to be served
Section 17(1) SentencingAct1991 (Vic) provides that a sentence of imprisonment commences on the day that it is imposed. By law, the sentences which the judge imposed commenced on 20 November 2007, being the date of sentence, and not on the future date which his Honour purported to fix.
In a case such as this, where an offender is subject to several terms of imprisonment some of which carry non-parole terms while others do not, the question of the order in which the sentences are to be served is determined by s 15(1) of the SentencingAct 1991 (Vic). The effect of that provision is that the offender must first serve any non-parole period of any sentence before commencing to serve the balance of any other term or terms.[9] To ensure that sentences imposed by the Court are served in the correct order, s 15(2) provides that if during the service of a sentence a further sentence is imposed, service of the first-mentioned sentence must, if necessary, be suspended in order that the sentences may be served in the correct order. Thus the earlier sentence is suspended until the respondent has completed the non parole period of the new sentence.[10]
[9]See s 15(1)(b) and (c).
[10] R v Piacentino (2007) 15 VR 501, [54] (Eames JA).
At the time the sentence was imposed, the respondent therefore commenced to serve the non-parole period of two years and nine months imposed by the sentencing judge. After completion of the non parole period he would, until released on parole, serve the balance of the sentence imposed by the sentencing judge and the previous sentence still owing to the Parole Board. The totality principle requires a sentencing judge to take account of periods of imprisonment which include those a prisoner is required to serve consequent upon cancelled parole.[11]
[11]R v Hunter (2006) 14 VR 336, [28] (Maxwell P, Buchanan and Redlich JJA) citing R v Masterson (Unreported, Victorian Court of Criminal Appeal, Young CJ, McInerney and Southwell JJ, 31 August 1982); R v Youil (1995) 80 A Crim R 1; R v Cutajar (Unreported, Court of Appeal, Winneke P, Charles JA and Crockett AJA, 20 July 1995); R v Brock (Unreported, Court of Appeal, Tadgell, Charles JJA and Southwell AJA, 22 February 1996); R v Gorman (Unreported, Court of Appeal, Hayne, Charles, Crockett JJ, 10 August 1995); R v Ulla (2004) 148 A Crim R 356, [37] (Eames JA); R v Berkelaar [2001] VSCA 143.
In oral argument, the Director’s primary submission was that the sentencing judge had not achieved relativity between the totality of the criminality and the totality of sentences, by failing to order sufficient cumulation between sentences and in fixing sentences that were too low.
Cumulation between counts of armed robbery
The appellant contended that the sentencing judge fell into error in permitting concurrency on all but one of the sentences on the armed robbery counts, producing a sentence which did not reflect the totality of the respondent’s criminality.[12] It was submitted that substantial orders for cumulation were required on the four counts of armed robbery, which were discrete episodes involving eight victims, all significantly affected by these offences.
[12]Reasons for Sentence [32].
An order for partial cumulation is generally made where sentences are imposed on different counts representing separate episodes, transactions or incidents,[13] in order to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity.[14] I consider that there needed to be some degree of cumulation of the sentences on the three counts of armed robbery on the base count of armed robbery, to reflect the seriousness and persistence of the criminality involved and to take account of the impact on the eight separate victims.[15]
[13]DPP (Vic) v Grabovac [1998] 1 VR 664, 655 (Ormiston JA); R v O’Rourke [1997] 1 VR 246, 252 (Winneke P, Brooking and Callaway JJA); R v Mantini (1998) 3 VR 340, 349–50 (Callaway JA); R v Musson [1997] 1 VR 656, 660–1 (Hedigan AJA). See also R v Clark [2007] VSCA 254, [11] (Neave JA).
[14]R v Grabovac [1998] 1 VR 664, 676 (Ormiston JA).
[15]DPP (Vic) v Solomon (2002) 36 MVR 425, [19]; DPP (Vic) v Towle [2008] VSC 101, [25] (Cummins J).
Manifest inadequacy
It was submitted by the Director that the individual sentences on the armed robberies, the total effective sentence and the non parole period did not reflect the objective gravity of the offences, as the armed robberies were very serious examples of such offending, requiring condign punishment. The appellant drew attention to the careful planning of each robbery, the use of a sawn-off shotgun and disguise, the selection of soft targets at a time of day when members of the public were likely to be caught up in the incident, and the significant effects on the victims.
The Director further submitted that the sentencing judge failed to give sufficient weight to the maximum penalty of 25 years for armed robbery, relying upon the proposition that the high maximum sentence justifies the view that deterrence is a matter that should be given priority.[16] The failure to give the maximum penalty its proper weight was said to be evident from the fact that the sentences imposed represented only 10 percent of the maximum penalty available. In addition, it was submitted, no due regard was given to the respondent’s extensive and serious criminal history. While a serious criminal history does not necessarily call for the imposition of more severe sanctions, it will ordinarily impact upon the sentencing process as indicating ‘the offender’s moral culpability, his prospects of rehabilitation, his dangerous propensity and the community’s need for protection and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence’.[17]
[16] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) [12.501].
[17]R v O’Brien [1997] 2 VR 714, 718 (Charles JA); R v Weininger (2003) 212 CLR 629, 635–8 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Based upon all of these considerations, the appellant contended, the individual sentences were plainly outside the range of sentences reasonably open to the sentencing judge, and that the failure of the sentencing judge to make appropriate orders for cumulation produced a total effective sentence and non parole period that were also manifestly inadequate.
Whilst acknowledging that these sentences were ‘low,’ counsel for the respondent submitted that it was evident from the plea in mitigation that the sentencing judge recognised the serious nature of the crime of armed robbery and that these were serious examples of these offence. He drew attention to the mitigating circumstances taken into account by the sentencing judge.
The respondent had pleaded guilty at a very early stage in proceedings. His Honour accepted that there was remorse. Prior to the commission of these offences the respondent was a heavy drinker, and he was using amphetamines intravenously at the time of offending. By the time of the plea, however, he had successfully undertaken courses on drugs, alcohol, first aid and hairdressing, and a course to adopt a mentoring role with younger prisoners. The sentencing judge accepted that the respondent had made some progress towards rehabilitation.
Both on the plea in mitigation and on appeal, particular reliance was placed on the degree of cooperation by the respondent with investigating police following his arrest. He provided important information as to the commission of offences in NSW. He made a statement implicating his co-accused in the first of the armed robberies. He gave a sworn undertaking to the Court to give evidence in accordance with the statement against his co-offender. The prosecution of his co-offender was dependent on his cooperation. Counsel for the respondent contended that he was entitled to a substantial discount for his cooperation. There are well recognised and powerful policy reasons for leniency in penalty in such circumstances.[18] On this basis the sentencing judge stated in accordance with s 5(2AB) of the Sentencing Act 1991 (Vic) that he intended to impose a less severe sentence than he would have otherwise imposed. For his part, the Director submitted that, though the assistance given to authorities was important, it was limited to one offence and, given the respondent’s past history, this factor was given too much weight by the sentencing judge.
[18]R v Roston [1996] 2 VR 97, 103 (Charles JA).
Sentencing principles — Director’s appeal
Crown appeals must not be permitted to circumscribe unduly the sentencing discretion of judges..[19] Something more than manifest inadequacy is required to warrant appellate intervention.[20] There are additional well recognised constraints on the circumstances in which this Court may interfere with a sentence on a Crown appeal.[21] In DPP (Vic) v Bright it was said:
When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent’s exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a ‘rare and exceptional’ character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court’s determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.[22]
[19]DPP (Vic) v Bright (2006) 163 A Crim R 538, 542 (Redlich JA).
[20]Ibid.
[21]See R v Ciantar (2006) 16 VR 26; DPP (Vic) v Fevaleaki (2006) 165 A Crim R 524, 530 (Redlich JA).
[22](2006) 163 A Crim R 538, 542 (Redlich JA). See also Malvaso v The Queen (1989) 168 CLR 227; DPP (Vic) v Scott (2003) 6 VR 217, 225 (Vincent JA); DPP (Cth) v Gaw [2006] VSCA 51.
Current sentencing practices, which are required by s 5 of the Sentencing Act1991 (Vic) to be considered, disclose that offences of this grave nature committed by an offender of this character normally attract much longer sentences than were here imposed.[23] The frequency with which armed robberies come before the Court should not deflect attention from the fact that it is a particularly serious offence, because of the impact of threatened violence upon its victims and because the use of a weapon carries with it the risk of serious injury or death.[24] Generally they are offences of such gravity that they call for a condign sentence.[25] Where they are carefully and professionally planned and executed, they will ordinarily be viewed as more deserving of exemplary punishment.[26]
[23]See R v Williams [2007] VSCA 208; R v Mourad [2008] VSCA 4; R v Tayar (2007) 17 VR 65, [41] (Vincent, Redlich and Kellam JJA); R v McNamara [2006] VSCA 267; R v Bortoli [2006] VSCA 62.
[24]R v Bortoli [2006] VSCA 62.
[25]R v Williscroft [1975] VR 292, 302 (Adam and Crockett JJ).
[26]Barci v Asling (1994) 76 A Crim R 103.
These were serious examples of armed robberies. Their careful planning, the use of a firearm, the appellant’s appalling criminal history and the fact that he committed these offences whilst on probation, are all matters which inform the range of sentences that would be considered appropriate. Making proper allowance for the cooperation the appellant gave investigators, and the other mitigating factors to which reference has been made, I consider that the sentences imposed are so inadequate as to plainly demonstrate serious error in sentencing principle.[27] The specific error in approach to s 16(3B) may also have contributed to the inadequacy of the sentences. The failure to order cumulation compounded the error arising from the inadequacy of the individual sentences, resulting in a total effective sentence and non parole period which was a ‘gross departure from what might in experience be regarded as the norm’[28] and demonstrating error which demands this Court’s intervention.[29] I would therefore allow the appeal.
[27]R v Clarke [2007] VSCA 254; DPP (Vic) v Bright (2006) 163 A Crim R 538, 540 (Chernov JA).
[28]Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ). See also DPP (Vic) v Johnston (2004) 10 VR 85, 96 (Ormiston, Batt and Chernov JJA); DPP (Vic) v Oversby [2004] VSCA 208.
[29]DPP (Vic) v Bright (2006) 163 A Crim R 538, 540 (Chernov JA), 542 (Redlich JA).
Allowance must be made for the respondent’s exposure to double jeopardy.[30] Counsel adopted a submission that had been raised but not argued in the appeal of DPP v Save,[31] that to allow for double jeopardy the sentence imposed by the appeal court should be at the lower end of the range. I do not regard this case as an appropriate vehicle to address this issue, it not having been the subject of argument.[32]
[30]See [34] and the passage from DPP (Vic) v Bright (2006) 163 A Crim R 538.
[31][2008] VSCA 633.
[32]See DPP (Vic) v Milne [2001] VSCA 93; DPP (Vic) v Goldberg [2001] VSCA 107; DPP (Vic) v Lepoidevin [2003] VSCA 61. But compare cases where it has been said that the sentence is to be ‘somewhat less severe’ than that which should have been imposed at first instance. For example: R v Boxtel [1994] 2 VR 98; R v Clarke [1996] 2 VR 520; DPP (Vic) v BAB [2002] VSCA 93, [3] (Callaway JA), [63] (O'Bryan AJA); DPP (Vic) v Haunga [2001] VSCA 73; DPP (Vic) v Zullo [2004] VSCA 153; DPP (Vic) v Rzek [2003] VSCA 97, [34] (Eames JA); DPP (Vic) v Ellis (2005) 11 VR 287, 296–7 (Callaway JA); DPP (Vic) v VH (2004) 10 VR 234, [14] (Callaway JA). Special leave to appeal to the High Court has twice been refused on this question: Vivona v DPP(Vic) [2006] HCA Trans 334; Gany v DPP(Vic) [2006] HCA Trans 629.
In fixing the sentences, some relativity is necessary between the totality of the criminality and the totality of his sentences, including the parole sentence which he is currently serving.[33] Bearing in mind that the parole sentence will be cumulative upon the sentences now imposed,[34] the aggregate sentence must be moderated to fulfil the principle of totality,[35] without undermining the legislative policy inherent in s 16(3B).[36] It is intended to achieve that outcome by making only moderate orders for cumulation between counts and at the same time ensuring that the total effective sentence and non parole period are not crushing sentences.[37]
[33]In R v Hunter (2006) 14 VR 336, [30] (Maxwell P, Buchanan and Redlich JJA) citing R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459.
[34]Johnson v R (2004) 205 ALR 346, [4] (Gleeson CJ).
[35]R v Hunter (2006) 14 VR 336.
[36]R v Mourad [2008] VSCA 4, [14] (Redlich JA).
[37]DPP (Vic) v Grabovac [1998] 1 VR 664, 676 (Ormiston JA).
I propose that the respondent be re-sentenced as follows:
Count 1 — 9 months
Count 2 — 3 years
Count 3 — 5 years
Count 4 — 5 years
Count 5 — 5 years
Count 6 — 1 year and 6 monthsI would order three months of the sentence on count 1, and one year and nine months of the sentence on each of counts 3, 4 and 5 be served cumulatively upon each other and on the sentence imposed on count 2, making a total effective sentence of eight years and six months. I would fix a minimum period of five years before the respondent is eligible to be released on parole.
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