DPP v Morris

[2015] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0015

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ANDREW JOHN MORRIS	Respondent

and

S APCR 2015 0016

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MATHEW ERNEST BROOKE	Respondent

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JUDGES:	ASHLEY, WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2015
DATE OF JUDGMENT:	18 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 155	1st revision: 2 July 2015, para [2]
JUDGMENT APPEALED FROM:	DPP v Morris (Unreported, County Court of Victoria, Judge Coish, 18 December 2014)

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CRIMINAL LAW – Sentence – Crown appeal – Respondents (R1 & R2) broke into victims’ home and committed aggravated burglary, multiple counts of rape, armed robbery, and other offences – Two victims were mother and daughter of Vietnamese background – Evidence in respect of R2 that crime was racially motivated – R1 sentenced to TES 15 years with NPP 11 years – R2 sentenced to TES 16 years and 6 months with NPP 13 years – Whether sentences manifestly inadequate – Whether orders for cumulation insufficient given that charges related to two different victims and respondents fell to be sentenced as serious sex offenders on some charges – Sentences not wholly outside the range – Appeal dismissed.  

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B F Kissane QC with Mr B L Sonnet	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent Morris	Ms R S Sleeth with Mr J R Cass	Victoria Legal Aid
For the Respondent Brooke	Mr C B Boyce SC with Ms G F Connelly	Greg Thomas Barristers and Solicitors

ASHLEY JA

WEINBERG JA
WHELAN JA:

1. The Director of Public Prosecutions has appealed against sentences imposed upon Andrew John Morris and Mathew Ernest Brooke, both of whom pleaded guilty, in the County Court at Melbourne, to a number of sexual and other offences arising out of an incident that occurred on 23 May 2013. 

1. The charges to which each respondent pleaded guilty, the individual and total effective sentences, and the non-parole periods imposed were as follows:

ANDREW JOHN MORRIS
Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [Crimes Act 1958 s 77(1)]	25 years [Crimes Act 1958 s 77(2)]	5 years	5 months
2	False imprisonment [common law]	10 years [Crimes Act 1958 s 320]	2 years	3 months
3	False imprisonment	10 years	2 years	3 months
4	Administer drug for the purposes of sexual penetration [Crimes Act 1958 s 53(1)]	10 years [Crimes Act 1958 s 53(1)]	2 years	4 months
5	Rape[1] [Crimes Act 1958 s 38(1)]	25 years [Crimes Act 1958 s 38(1)]	8 years	BASE
6	Rape	25 years	7 years 6 months	10 months
7	Administer drug for the purposes of sexual penetration	10 years	2 years	4 months
8	Armed Robbery [Crimes Act 1958 s 75A(1)]	25 years [Crimes Act 1958 s 75A(2)]	4 years 6 months	5 months
9	Rape	25 years	7 years 6 months	10 months
10	Rape	25 years	7 years 6 months	10 months
11	Rape	25 years	7 years 6 months	10 months
12	Rape	25 years	7 years 6 months	10 months
13	Rape	25 years	7 years 6 months	10 months
Total Effective Sentence:		15 years’ imprisonment
Non-Parole Period:		11 years’ imprisonment
Pre-sentence Detention Declared:		574 days
6AAA Statement:		20 years’ imprisonment; NPP 16 years
Other orders: Disposal Order; Sex Offenders Registration Act 2004 – life reporting; Designated as ‘serious sexual offender’; Forensic Sample Retention Order.

[1] Representative count.

MATHEW ERNEST BROOKE
Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [Crimes Act 1958 s 77(1)]	25 years [Crimes Act 1958 s 77(2)]	5 years	9 months
2	False imprisonment [common law]	10 years [Crimes Act 1958 s 320]	2 years	6 months
3	False imprisonment	10 years	2 years	6 months
4	Administer drug for the purposes of sexual penetration [Crimes Act 1958 s 53(1)]	10 years [Crimes Act 1958 s 53(1)]	2 years	6 months
5	Rape[2] [Crimes Act 1958 s 38(1)]	25 years [Crimes Act 1958 s 38(1)]	8 years	BASE
6	Rape	25 years	7 years 6 months	10 months
7	Administer drug for the purposes of sexual penetration	10 years	2 years	6 months
8	Armed Robbery [Crimes Act 1958 s 75A(1)]	25 years [Crimes Act 1958 s 75A(2)]	4 years 6 months	9 months
9	Rape	25 years	7 years 6 months	10 months
10	Rape	25 years	7 years 6 months	10 months
11	Rape	25 years	7 years 6 months	10 months
12	Rape	25 years	7 years 6 months	10 months
13	Rape	25 years	7 years 6 months	10 months
Total Effective Sentence:		16 years 6 months’ imprisonment
Non-Parole Period:		13 years’ imprisonment
Pre-sentence Detention Declared:		574 days
6AAA Statement:		21 years’ imprisonment; NPP 17 years
Other orders: Disposal Order; Sex Offenders Registration Act 2004 – life reporting; Designated as ‘serious sexual offender’; Forensic Sample Retention Order.

[2] Representative count.

Grounds of appeal

1. There are two grounds in support of this appeal.  They are as follows:

1.The orders for cumulation, the total effective sentence and the non-parole period are manifestly inadequate in all the circumstances.

Particulars

The learned sentencing Judge —

(a) failed to have sufficient regard to the overall nature and gravity of the offending;

(b) failed to give sufficient weight to the principles of protection of the community, general and specific deterrence, just punishment and denunciation;

(c) failed to fix a sentence commensurate with the characterisation of the offending as ‘a vicious, callous and cowardly attack…’, and as falling ‘at the very high end of the offence gravity’;

(d) fixed orders for cumulation which failed to adequately reflect that the respondent was sentenced as a ‘serious sexual offender’ on charges 5, 6, 7, 9, 10, 11, 12 and 13;

(e) failed to have sufficient regard to the impact of the offending upon the victims;

(f) failed to have sufficient regard to the maximum penalties;

(g) failed to have sufficient regard to the aggravating features of the offending including multiple victims, home invasion in the middle of the night, the degree of planning and premeditation, the use of weapons, sedatives, restraints and disguises, a victim was known to the respondent, and the use of racial and violent taunts and threats; and

(h) gave excessive weight to relevant factors in mitigation.

2 The learned sentencing judge misapplied the principle of totality in the context of offending for which the respondent fell to be sentenced as a ‘serious sexual offender’ on charges 5, 6, 7, 9, 10, 11, 12 and 13.

Circumstances surrounding the offending

1. On the evening of 22 May 2013, Morris and Brooke were drinking together at their home in Beela Court, Sunshine West.  Together, they formulated a plan to attend another address in Sunshine West.  Their intention was to rape the occupants and steal their property.  The address was known to Morris who had done some gardening work for the occupants, both of whom were women of Vietnamese background, TD being the mother, and MT being her daughter.  The Crown contended that the respondents selected their target, at least in part, on the basis that Brooke had a hatred of Asians.

1. In preparation for the offending, the respondents gathered together a quantity of rope, some gloves, a balaclava, a pair of stockings, and a jemmy.  Morris had in his possession two condoms, and gave one to Brooke.  Morris also took with him some sleeping pills from his own medication. 

1. At about 2:00 am, TD was woken by the barking of her dog.  She went out into the backyard to see what was causing the disturbance, and became frightened as a result of the dog’s behaviour.  She went back into the house, locking the back door behind her.

1. TD then heard footsteps outside the front door.  She at once went to her daughter’s bedroom and alerted her to the fact that there was someone outside.  She told her daughter to ring the police.  However, before the call could be made, Brooke  had smashed a window next to the front door, and gained access to the lock and enclosed porch area.  He had then broken a second window alongside the main door to the house and unlocked that door from the inside.  The two women heard the sound of glass smashing and someone entering the premises (charge 1 — aggravated burglary). 

1. Brooke was wearing a stocking over his head, and Morris a balaclava.  Brooke kicked in MT’s bedroom door and he and Morris entered.  TD was, at that stage, hiding in a wardrobe.  MT struck Brooke with an umbrella and screamed, hoping to alert the neighbours.  Brooke told her to shut up, grabbed her, and threw her face-down on the bed. 

1. Morris then positioned himself on top of MT and used the rope which they had brought to tie her hands behind her back (charge 2 — false imprisonment).  Morris then attempted to remove MT’s pyjama pants but she managed to resist him, and held them up.  She told Morris that she was menstruating in an effort to persuade him to desist.

1. Brooke yelled ‘come out you fucking bitch’ and smashed the mirrored doors to the wardrobe where TD was hiding.  He pulled her out of the wardrobe, inserted a gag into her mouth and pushed her onto the bed.  Morris then moved over to TD and tied her wrists together behind her back (charge 3 — false imprisonment).  He then removed her pants and underpants.

1. Morris next took a bag containing sleeping tablets from his pocket and demanded that TD swallow them.  He grabbed her hair forcefully and turned her head to face him.  He threatened to hurt her if she did not do as he said.  TD pleaded with him, saying that she was a diabetic, but Morris forced the tablets into her mouth.  He then left the room momentarily to get some water (charge 4 — administer drug for purposes of sexual penetration). 

1. Brooke pulled MT up, removed her singlet, and pushed her back onto the mattress.  He took down her pyjama pants.  She pleaded with him to stop, but he ignored her.  He lay on top of her and said: ‘You’re a fucking Asian slut.  I’m going to fuck you in your cunt you dumb Asian mole’.  He then digitally penetrated her vagina (charge 5 — rape (representative charge)). 

1. Brooke then removed his finger from MT’s vagina and inserted it into her anus (charge 6 — rape).  He next pinched and twisted her right nipple, and bit her on the left nipple (uncharged acts).  He tried to open her mouth, succeeding in partially doing so, and pushed a condom wrapper into it, at the same time saying: ‘Do you feel that, this is what I’m going to fuck you with’.  He then pulled down her pyjama pants, put a condom over his penis, and lay on top of her.  She resisted, keeping her legs close together, to stop him from penetrating her with his penis. 

1. At some point, TD managed to untie herself.  She struck Brooke to the head several times.  He got up and threatened to kill her (uncharged act).  At that stage, Morris came back into the room, and saw Brooke seemingly about to attack TD.  He called out: ‘Don’t!’. 

1. Morris then pulled MT up to a seated position and inserted three or four Temazepam tablets into her mouth.  He forced her to swallow them (charge 7 — administer drug for purposes of sexual penetration).

1. Morris next demanded money.  MT pointed to a backpack and asked her mother, in Vietnamese, to give the respondents whatever money she had.  Brooke pulled TD off the bed and led her around the room, and the rest of the house, dragging her by the ties on her wrist.  In the living room, TD located $100 and a mobile phone which she handed to Brooke.  He then grabbed MT’s bag, which was on a table, and took her purse.  He also took several items of value from around the house, including some pens, a pair of sunglasses a diamond ring, a wedding ring, and a bangle (charge 8 — armed robbery).

1. At various stages, Brooke uttered racist epithets, describing TD as an ‘Asian bitch’ who did not belong in this country, and telling her that if he ever saw her face on the street he would kill her. 

1. In the meantime, Morris had hold of MT, and at various times rubbed her vagina with his hand while pinching and twisting her right nipple (uncharged acts).  He engaged in other degrading and humiliating conduct which need not be recounted here.

1. Subsequently, Morris went outside with TD in order to calm the dog, and Brooke was left alone with MT.  Brooke then lay on top of MT, pulled her legs apart, and digitally penetrated her (charge 5 — rape (part of representative charge)).  Brooke then penetrated MT vaginally with his penis (charge 9 — rape). 

1. In the meantime, Morris untied TD’s wrists and led her back to the bedroom.  He moved a mattress onto the floor and instructed her to lie on it, tying her right wrist to the leg of the table.  He left the room temporarily, and then returned.  He spread TD’s legs apart and attempted to have sexual intercourse with her but could not achieve an erection (uncharged act).  He then twice further tried to achieve an erection in order to sexually penetrate her, but on each occasion was unsuccessful (uncharged acts).  That led Morris to a further act of digital penetration (charge 10 — rape).  Finally, he was able to achieve an erection, and he engaged in sexual intercourse with TD (charge 11 — rape).

1. Morris next returned to the other room and proceeded to digitally penetrate MT (charge 12 — rape).  He unsuccessfully attempted penile intercourse with her, (uncharged act).  He finally succeeded in inserting his penis into her vagina (charge 13 — rape). 

1. Before the respondents left the house, they seized some additional items, including two mobile phones, an iPhone, two laptops, a computer tablet, a DVD player, an electronic dictionary, and several pairs of earrings.  They then departed, and walked back to their home in Beela Court.  During the trip home, they disposed of their gloves and condoms, and scattered some of the stolen items along the road. 

1. TD and MT remained in the bedroom for a few minutes.  They then sought assistance.  Police were called at 4:41 am.  The entire incident had lasted some two and a half hours.   

1. Within an hour or so, using an iPhone application called ‘Find-my-phone’, which picks up GPS signals from a mobile phone to identify its location, police tracked the location of the stolen iPhone to the respondents’ home address.  Police attended and arrested them both.  They soon admitted to having been involved in the attack and identified locations where they had discarded stolen items and clothing.

1. Brooke’s DNA was later detected in MT’s vagina and anus. 

Plea hearing

1. At the very commencement of the plea hearing, the prosecutor noted that each respondent had pleaded guilty to 10 offences, specifically designated as sexual, and, accordingly, fell to be sentenced as a serious sexual offender on the third and subsequent of those charges. The prosecutor made it clear that the Crown did not seek a disproportionate sentence, but reminded his Honour that, pursuant to s 6E of the Sentencing Act 1991, cumulative sentences were to be imposed on each of charges 5, 6, 7, 9, 10, 11, 12 and 13 unless otherwise directed by the Court. 

1. That is of some relevance given the Crown’s submission before this Court that his Honour fell into specific error in failing to appreciate the significance of that fact. 

Morris

1. Morris was a 48 year old single male who had two adult daughters from a previous marriage.  One of those daughters had three children.  At the time of the offending, Morris was unemployed. 

1. He had been raised in Queensland and had left school when aged 15.  He had been the victim of sexual abuse when a teenager.  He had worked as a farm labourer and later completed an apprenticeship as a chef, and gained employment in that industry.  At some stage, he had been injured during the course of his employment and from that time onwards, and for a number of years, had received a disability support pension. 

1. Morris had a history of alcohol abuse, and had for a considerable time smoked cannabis on a regular basis.  In the lead up to the offending, he had graduated to using methylamphetamine (‘ice’).  Following the breakdown of his marriage in 1997, he had led an isolated existence.  It seems that Brooke had been his only friend from that time onwards. 

1. Morris had no prior convictions that were in any way relevant.  He stood in stark contrast, in that regard, with Brooke, who had previous convictions in both Victoria and New South Wales spanning between 1994 and 2007.  These included convictions for burglary, armed robbery and theft, as well as criminal damage and stalking. 

1. During the course of the plea, counsel for Morris tendered a clinical and forensic psychological report prepared by Carla Lechner.  The report refers to Morris having presented with symptoms of Alcohol Use Disorder, Cannabis Use Disorder, and Stimulant Use Disorder, all of which, by reason of his incarceration, were in remission.  The report also states that Morris had symptoms of clinical depression  which were of sufficient severity to warrant a diagnosis of Adjustment Disorder with Depression (DSM 5).

1. Ms Lechner referred to Morris having been the victim of sexual abuse as a child.  She was of the opinion that he lacked nurturing and emotional support within his family environment.  She concluded that those experiences had undermined his capacity to form close and trusting relationships.  She also noted that Morris had never been afforded any psychological support or counselling.  She expressed the opinion that he would benefit from a range of therapeutic supports such as substance abuse counselling, social skills training and mood management.

1. Morris also relied, at the plea hearing, upon a psychiatric report from Dr Danny Sullivan.  Dr Sullivan noted that Morris would ‘clearly satisfy’ a diagnosis of polysubstance dependence, including alcohol, cannabis and methylamphetamine.  He also stated that Morris reported depressive features consistent with a mild Adjustment Disorder.  However, Dr Sullivan concluded that there was no indication of an overt cognitive impairment, or any significant personality disorder.  

1. It was submitted on behalf of Morris that despite the gravity of his offending, which counsel acknowledged to be at the ‘higher end’, there were some mitigating factors that should be taken into account in his favour.  These included his plea of guilty, made at an early stage, which was said to have considerable utilitarian benefit, and to be accompanied by genuine remorse.  In addition, Morris’ lack of prior convictions, and his low risk of reoffending, were matters that should properly weigh in his favour.  So too was the fact that he had been extremely cooperative with police during the course of their investigation.  It was submitted that, all in all, Morris had good prospects of rehabilitation.

1. Counsel also submitted that the offences, bad as they were, did not have about them certain aggravating features sometimes present in offending of this kind.  For example, there were no children involved.  There was said to be no element of breach of trust.  There was no abduction, and no subsequent inhumane conduct.  There had been no use of objects for sexual penetration.

1. With regard to parity, counsel of course drew attention to his client’s lack of prior convictions, and contrasted Brooke’s extensive prior criminal history.  He also relied upon statements made by Morris, in preparation of the psychological and psychiatric reports, to the effect that Brooke had exercised a degree of influence over him. 

1. It was conceded that general deterrence and protection of the community had to loom large in the sentencing synthesis.  It was submitted, however, that given the lack of prior convictions, and the presence of remorse, specific deterrence should not be regarded as a major sentencing consideration. 

Brooke

1. Brooke was aged 37 at the time of the commission of these offences.  He was, at that stage, in a de facto relationship, and had two young children. 

1. He had been born and raised in country Victoria.  He was educated through to year 11 before he first found himself in difficulty with the criminal law.  He was, at that stage, detained in a youth training centre for about five and a half months.

1. After his release, Brooke commenced, but did not complete, a pre-apprenticeship course, as well as an apprenticeship.  He then worked in a variety of jobs, including as a trades assistant, fruit picker, storeman, forklift operator and in retail and telemarketing.  At the time of these offences, he was working in the field of media sales.  In other words, he had a solid employment history.

1. As was the case with Morris, Brooke had a lengthy history of alcohol and cannabis abuse.  In his case, it dated back to his teenage years.  He had also taken to using ice on weekends, particularly in the six-month period leading up to the offending. 

1. A psychological report prepared by Gina Cidoni, which was tendered on the plea, suggested that Brooke had below average intellectual capacity with a full-scale IQ of 85.  Ms Cidoni suggested that personality testing had revealed a marked sociopathic inclination, depressed mood, and poor coping resources.  Her report noted that abuse of illicit drugs would have further destabilised him. 

1. It seems that Brooke had suffered two head injuries during his teenage years.  He had been diagnosed in January 2014 as having a brain lesion at the parietal temporal junction region.  A report from St Vincent’s hospital suggested that the lesion could have been a low grade tumour, and indicated that he was scheduled for further MRI scanning.  Subsequently, however, it was accepted that the lesion which had been identified had no causal connection with the offending on the night in question.

1. Counsel for Brooke submitted that his client, too, was entitled to rely upon several mitigating factors.  These included his early plea of guilty, his cooperation with police, and what was said to be his remorse and shame for his actions.  It was submitted that he had realistic prospects of rehabilitation based upon his past employment history and his ongoing family support.  Although he had a number of previous convictions, he had gone a significant period without offending, prior to this incident. 

1. Counsel for Brooke rejected the submission made on behalf of Morris that Brooke had in some way instigated the commission of these offences.  He submitted, as did the Crown, that the two men were jointly responsible for what had occurred, and that no distinction should be drawn between them in terms of their respective roles. 

1. Counsel informed his Honour that his client had instructed him to say that he was not a racist, and that he bore no ill-feeling towards Asians.  Significantly, however, he did not deny having made the racist comments attributed to him.  Brooke’s father gave evidence in support of his son, saying that he had never previously exhibited racist attitudes.  He spoke of his intention to provide ongoing support. 

1. Finally, it was submitted that the fact that Brooke’s relationship with his partner had come to an end as a result of his offending meant that he would no longer have any contact with his children.  It was submitted that this was a form of hardship that should be taken into account by way of mitigation. 

Crown submissions

1. The prosecutor tendered victim impact statements prepared by TD and MT.  Plainly, as would be expected, these two women had suffered dreadfully as a result of this offending.  The consequences were likely to subsist for a long time. 

1. The Crown accepted that pleas of guilty had been entered at an early stage, and that each respondent was entitled to a substantial discount on that basis alone.  However, the prosecutor submitted that, even amongst the significant admissions made by the respondents during the course of their police interviews, there had been a number of false denials. 

1. The prosecutor rightly emphasised the gravity of these offences.  He noted that they had involved a degree of planning, and were in that sense premeditated.  The victims had been carefully selected.  The respondents had disguised themselves, and used gloves to avoid leaving fingerprints.  They had utilised restraints, and had inflicted terror as well as actual violence upon the two women. 

1. In relation to Brooke, the prosecutor submitted that the various racial epithets that he had used constituted a significant aggravating feature of his offending.  Morris was nonetheless to be regarded as essentially equally culpable, despite not having used language of the kind that Brooke had used, because he had betrayed TD’s friendship.  In the end, the Crown did not seek to draw any distinction between the respondents based upon their involvement in the offending, recognising that their culpability arose through joint criminal enterprise.  It was submitted that each of the men had fully supported the actions of the other, and the only differentiation between them lay in their respective antecedents. 

1. As to cumulation, the Crown submitted that cumulation was warranted in relation to all offences on the indictment. It was submitted that this cumulation could be ‘very modest’ on counts 1, 4 and 7. The Crown submitted that the ‘real issue’ was the ‘question of totality via the mechanism of cumulation’. The sentencing judge was referred to the ‘serious sexual offender’ provisions in pt 2A of the Sentencing Act 1991 and to R H McL v The Queen.[3]

   [3](2000) 203 CLR 452.

Sentencing remarks

1. The judge accepted the Crown’s submission that Brooke’s racist comments should be viewed as an aggravating feature of these offences.  His Honour accepted that both men had been significantly affected by alcohol and ice on the night in question.  However, he did not regard this as in any way mitigatory.

1. Having set out the various aggravating factors that were present in this case, and having given specific attention to the impact of the offending upon the victims, his Honour assessed Brooke’s prospects of rehabilitation as cloudy, but rated Morris’s prospects as reasonable. 

1. The judge concluded that it was not appropriate to differentiate between the respondents on the basis of their respective roles in the commission of these offences.  He specifically rejected the submission put forward on behalf of Morris that Brooke had been the instigator.

1. His Honour said that, when regard was had to the differences in their antecedents and prospects of rehabilitation, it was appropriate to impose a somewhat more lenient sentence and non-parole period upon Morris than upon Brooke.  His Honour did not, however, differentiate between the sentences imposed upon individual charges, preferring to arrive at their respective total effective sentences and non-parole periods through differences in the amount of cumulation ordered. 

The Director’s submissions before this Court

1. With regard to ground 1, namely manifest inadequacy, the Director noted that Morris fell to be sentenced as a ‘serious sexual offender’ on eight separate charges.  That meant that the ‘protection of the community’ was the principal sentencing consideration in dealing with his case. 

1. The judge had described the offending as ‘extreme’, ‘very serious indeed’, and falling at the ‘very high end of offence gravity’.  The Director submitted that these were apt descriptions.  There were a significant number of aggravating factors present, each of which was detailed in the Director’s written case.

1. In particular, the Director noted that there had been a level of planning and premeditation.  Moreover, Brooke had armed himself with a jemmy.  Both men had been disguised.  The victims had been terrorised in their own home, and restrained by being tied up.  They had been forced to ingest drugs to make them more compliant.  In Morris’s case, his offending was aggravated by the fact that the victim TD was known to him, and in that sense, involved a breach of trust.  Moreover, and unusually, the home invasion had a dual intent, namely to rape the women, and steal from them.

1. The Director submitted that the judge had correctly identified general deterrence as the primary sentencing consideration.  However, in his submission, the total effective sentence of 15 years and non-parole period of 11 years imposed on Morris fell well short of what the gravity of this offending warranted.  In the Director’s submission, the inadequacy was obvious and readily apparent.

1. It is important to note that the Director accepted that the individual sentences imposed on each charge may well have been within range.  However, he submitted that, in the case of seven of the charges, namely, 6, 8, 9, 10, 11, 12 and 13, there had been insufficient orders for cumulation.  Orally, he particularly focused upon the orders for cumulation in respect of charges 10 and 11, 12 and 13, and 8. 

1. With regard to ground 2, the Director argued that the judge had misapplied the totality principle in the context of offending for which Morris fell to be sentenced as a ‘serious sexual offender’.  In other words, he singled out charges 5, 6, 7, 9 10, 11, 12 and 13. 

1. Ground 2, as the Director recognised, seemingly complains of specific error.  However, in the written case, and bearing in mind the decision of this Court in DPP v Chatterton,[4] he submitted that it was really to be seen as a particular of ground 1, namely, manifest inadequacy.

   [4][2014] VSCA 1.

1. In that regard, the Director said of this ground:

It is not customary to institute a Crown appeal alleging specific error which, if made out, would require an appellate court to resentence an offender.  However, the primary complaint in this appeal is ground 1, namely manifest inadequacy of the total effective sentence (and the non-parole period).  This ground is relied upon to explain, in part, the manifest inadequacy of the sentence in this case — thus, it is similar to the approach taken by the appellant in the Crown appeal of DPP v Fabriczy[5] and consistent with the observations made by this Court in the recent decision of DPP v Chatterton.[6]

[5](2010) 30 VR 632.

[6][2014] VSCA 1.

1. The Director’s submissions regarding Brooke were essentially the same as those relied upon in his appeal against the sentence imposed upon Morris.  Once again, he accepted that the individual sentences imposed were, when viewed in isolation, within range.  However, he submitted that the total effective sentence of 16 years and 6 months’ imprisonment, with a non-parole period of 13 years, was wholly outside the range reasonably available.  As with Morris, he argued that the error resulted from inadequate cumulation, and identified the very same orders as having created the problem. 

1. In both cases, the Director identified a specific error, apart from that designated in ground 2, which he contended had materially contributed to the inadequate total effective sentence.  The Director observed:

In purporting to apply section 6E, the judge states ‘I must decide in your case … whether I should direct that sentences be served cumulatively upon the sentences I impose on this day’ — … this inverts the correct approach — cumulation applies automatically and it is the principle of totality … which enlivens the ability of a judge to otherwise direct concurrency.

1. It is debateable whether this formulation constitutes a misstatement of the law, as the Director contends, or whether it is nothing more than a somewhat informal translation of what s 6E in substance requires. Of course, that section was intended to have more than formal effect, and to that extent, the totality principle must be regarded as modified, in its application, to multiple sexual offences. At the same time, it is obvious that the section cannot be applied without any regard to the principle of totality. In other words, as Redlich JA observed in Gordon v The Queen:[7]

A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[8]

[7][2013] VSCA 343.

[8]Ibid [74].

1. The Director also referred to Pilgrim v The Queen,[9] where this Court recently observed:

The scope for applying the totality principle in this case is more limited than it would otherwise be had the applicant not been sentenced as a serious sexual offender.[10]

[9][2014] VSCA 191.

[10]Ibid [70].

Conclusion

1. It is convenient to deal with ground 2 of each appeal first. 

1. This ground cannot be sustained. 

1. First, it is doubtful that the judge who sentenced these respondents was under any misconception as to the proper operation of s 6E. In posing the question ‘whether’ he should direct that particular sentences falling within that section should be served cumulatively, his Honour was not stating, as a presumption, the common law position that ordinarily sentences are to be served concurrently, unless otherwise ordered. The transcript of the plea hearing, and his Honour’s sentencing remarks when read as a whole, make it clear that he was under no misapprehension as to the special rules governing cumulation applicable to offenders who fall within the ambit of s 6E.

1. Secondly, the judge did make orders for cumulation in relation to both respondents. Every separate offence had attached to it an order of cumulation upon the base sentence of eight years for the offence of rape, that being of course a representative charge. Absent s 6E, his Honour might well have treated some of these offences as falling within the ‘one transaction rule’, justifying complete concurrency.

1. Thirdly, sentencing is not to be reduced to a mathematical equation.  Although concerned with numbers, there need not be perfect symmetry in a structured sentence so long as each individual sentence is within range, as is the overall result both in terms of the total effective sentence, and the non-parole period.  Of course, one could cavil at the fact that each charge of rape, from charges 9 to 13, results in cumulation of exactly 10 months, when arguably some are more serious than others.  And one might accept, in theory, the submissions made by the Director as to counts 10 and 11, 12 and 13, and 8.  However, to approach the matter in that way is to ignore the largely intuitive nature that is part and parcel of the sentencing exercise, in favour of a mythical quest for scientific precision that can never be achieved, and should not form part of the process of instinctive synthesis. 

1. Fourthly, the Director’s attempt to identify particular charges as involving insufficient cumulation, but not others, ignores the reality of the sentencing process when dealing with multiple charges.  At some point, the amount of cumulation must reduce, and perhaps cease.[11] Otherwise, the principle of totality ceases to have any application, and the total effective sentence will vastly exceed what is proportionate to the gravity of the offending. Section 6E should not be understood as requiring that outcome.

   [11]See DPP v Marino [2011] VSCA 133; DPP v Husar [2011] VSCA 70; Hudson v The Queen (2010) 30 VR 610; R v Harvey [2007] VSCA 127; R v Lomax[1998] 1 VR 551; DPP v Grabovac [1998] 1 VR 664; Mill v The Queen (1988) 166 CLR 59.

1. Fifthly, the judge did differentiate in his orders for cumulation between Morris and Brooke.  He did so in the somewhat unorthodox manner of cumulating only a portion of the sentences on charges 1, 2, 3, 4,  7, and 8 imposed on Morris, as compared with the greater degree of cumulation on those sentences when it came to deal with Brooke.  In other words, he treated the non-sexual offences (other than charges 4 and 7) as warranting less cumulation than the sexual charges.  A pedant might raise questions as to whether that distinction was warranted, in that form.  Once again, however, that seems to fall into the category of a structural argument that, viewed in isolation, should not succeed on a Director’s appeal. 

1. That takes us to ground 1, the true ground of appeal in this case. 

1. It can be said at once that these were appalling crimes, committed in an utterly vicious and callous manner.  If they fell short of the worst category of rape, they did so only by a relatively small margin. 

1. Had it not been for the pleas of guilty, coupled with the findings of remorse, a sentence in excess of 20 years might well have been justified for Brooke, and something not far short of that for Morris.  Even given those mitigating factors, we can well understand why the Director considered it appropriate to bring these appeals in relation to these two respondents.  Brooke’s offending, in particular, had about it features that were utterly abhorrent, including his vile comments about his victims, which put his offending into a separate and worse category than that of Morris.  In retrospect, Brooke may consider himself somewhat fortunate to have received a sentence of 16 years and 6 months, when a sentence of 18 or 19 years might have been more appropriate so far as he was concerned. 

1. Morris, on the other hand, received what we regard as an appropriate sentence, bearing in mind his particular situation. 

1. In neither case can we say that the sentence imposed was wholly outside the range available to the learned sentencing judge.  His Honour’s sentencing remarks were carefully chosen, and he seems to us to have had regard to all relevant factors, and given them due weight. 

1. A submission to the effect that a sentence is manifestly inadequate faces the same difficulties as those identified where an applicant argues that the sentence under challenge was manifestly excessive.  That is a ground that must confront the breadth of the sentencing discretion afforded to trial judges, a discretion that will not lightly be treated as having miscarried.  While opinions may differ as to whether Brooke, in particular, received adequate punishment, we do not think it can be said that his sentence was wholly outside the range reasonably available to the sentencing judge. 

1. In these circumstances, we would dismiss each appeal.

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