Fridey v The Queen
[2014] VSCA 271
•31 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0239
| NEVILLE JOHN FRIDEY |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | WEINBERG, WHELAN and BEACH JJA |
| WHERE HELD: | WARRNAMBOOL |
| DATE OF HEARING: | 23 July 2014 |
| DATE OF JUDGMENT: | 31 October 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 271 |
| JUDGMENT APPEALED FROM: | DPP v Fridey (Unreported, County Court of Victoria, Judge Hampel, 29 July 2013) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Guilty plea – Sexual offences against a child aged between 7 and 12 – Whether total effective sentence of 10 years’ imprisonment and non-parole period of six years and six months manifestly excessive – Whether trial judge erred in application of totality principle – Applicant already serving sentence of 10 years and six months’ imprisonment, with non-parole period of seven years and six months, imposed in 2008, on appeal, for sexual offending against three children – Applicant in custody for earlier offending since 20 October 2005 – Effect of current sentence equivalent to total effective sentence of 17 years nine months and 20 days with non-parole period of 14 years three months and 20 days – Sentence excessive – Appeal allowed – Applicant re-sentenced to five years’ imprisonment with non-parole period of two years and six months – Sentence to commence from date pronounced – No pre-sentence detention – Equivalent to total effective sentence of 14 years and 9 days with non-parole period of 11 years six months and 10 days.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
WHELAN JA
BEACH JA:
The applicant, now aged 64, pleaded guilty in the County Court at Geelong to a number of sexual offences, and was sentenced, on 8 August 2013, as set out in the table below:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Indecent assault [Crimes Act 1958 s 44(1)] 5 years 2 years 12 months 2 Sexual penetration of a child under 10 [Crimes Act 1958 s 47(1)] 20 years 5 years Base 3 Indecent assault 5 years 18 months 6 months 4 Sexual penetration of a child under 10 20 years 5 years 12 months 5 Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)] 10 years 2 years 6 months 9 months 6 Sexual penetration of a child under 16 10 years 4 years 21 months Total effective sentence: 10 years’ imprisonment Non-parole period: 6 years 6 months Pre-sentence detention declared: Nil 6AAA statement: 15 years’ imprisonment, with a non-parole period of 12 years
The applicant now seeks leave to appeal against sentence, by notice filed on 5 December 2013, upon the following two grounds:
1.The total effective sentence and non-parole period are manifestly excessive in light of the plea of guilty, the applicant’s age and ill-health, the delay since the offending and the fact that at the time of sentencing the applicant had already served nearly eight years of a sentence for similar offences committed in the same time period.
2.The learned Judge erred in her application of the totality principle in sentencing the applicant.
The circumstances surrounding the offending
The victim of each of the six offences to which the applicant pleaded guilty was a young boy, AJ, who was aged only seven in 1989, when the offending first occurred. The applicant was then about 38 years of age. He was at that time living with his then partner, BS and her children in the same street in Colac as the complainant and his family. The complainant’s father and his partner, JS, were friends with BS and the families spent a lot of time together socially.
Charge 1, indecent assault, was a representative charge. It related to two separate acts on two separate occasions. On each occasion, the applicant placed AJ’s hand on his penis, and required AJ to masturbate him. The first incident occurred when AJ was seven, and the second when he was aged nine. On that second occasion, the applicant also touched AJ’s penis and masturbated in his presence before directing AJ to masturbate him.
Charge 2, sexual penetration of a child under 10, related to the applicant having put his penis in AJ’s mouth and making him suck it.
Charge 3, indecent assault, concerned a single occasion upon which the applicant masturbated AJ.
Charge 4, sexual penetration of a child under 10, involved the applicant having taken AJ’s penis into his mouth and sucking it. AJ was aged seven at the time.
Charge 5, sexual penetration of a child under 16, related to an incident that occurred after AJ had turned 10. It involved a single instance of the applicant having taken AJ’s penis into his mouth and sucking it.
Charge 6, sexual penetration of a child under 16, was a representative charge encompassing three separate instances of the applicant having, on each occasion, put his penis into AJ’s mouth, and requiring him to suck it, before ejaculating into his mouth.
All but one of these offences occurred in the bathrooms of the homes occupied at various times by AJ and his family. The applicant either took AJ into the bathroom, or followed him in. One offence occurred at a park, or possibly at another public venue.
The applicant gained access to AJ because of the friendship that existed between his partner, BS, and AJ’s father’s partner. As the sentencing judge noted, the offending involved a gross breach of trust, and exploitation of the vulnerability of a very young child.
The applicant’s personal history
To make matters worse, so far as the applicant was concerned, he had previously been involved in sexual offending against young children. By the time he began assaulting AJ, he had already been before a court on one occasion for such offending.[1]
[1]The trial judge referred, in her sentencing remarks, to the applicant having already appeared in court on two separate occasions for sexual offending against children prior to the current offending. This appears to have been an error, as detailed in the parties’ agreed chronology of the applicant’s past offending.
In 1986, he had faced 14 charges of indecent assault on three separate children, and been sentenced to a total of 20 months’ imprisonment with a non-parole period of 10 months.[2] There were other prior convictions, but with the exception of a charge of carnal knowledge dating back to 1974 (for which he received a good behaviour bond), they were for unrelated matters, including dishonesty and driving offences.
[2]In 1995 (after the applicant ceased his offending against AJ), the applicant was dealt with for one charge of sexual penetration of a child aged between 10 and 16, and sentenced to a term of 24 months’ imprisonment with a non-parole period of 14 months.
Of greater significance, so far as her Honour’s sentencing task was concerned, was the fact that the applicant had been dealt with in the County Court at Melbourne in 2005 for various offences committed against the children of his former partner, BS. On that occasion, he pleaded guilty to two counts of maintaining a sexual relationship with a child under the age of 16, three counts of committing an indecent act with a child under the age of 16, and one count of indecent assault. It is of particular significance to note that those offences took place between September 1991 and August 1996. Accordingly, there was a degree of overlap, speaking temporally, between the offences for which the applicant was sentenced in 2005, and the offences for which he came to be sentenced in 2013.
To complicate matters somewhat, the applicant was sentenced in 2005 to a total of 11 years’ imprisonment. He received a non-parole period of eight years and six months. That was not the end of the matter. He appealed against that sentence, and his appeal was allowed. The sentencing judge had erred in relation to the maximum penalty for two of the offences to which the applicant pleaded guilty. This was held to have vitiated the individual sentences imposed. This Court set aside those sentences and substituted for the original sentence a total effective sentence of 10 years and six months’ imprisonment.
The applicant had been in custody for the offences involving BS’s children since October 2005. It is not altogether clear what period of pre-sentence detention was declared, but the sentencing judge indicated that in his view there were 10 days pre-sentence detention as at 28 October. Since then, different figures have been put forward, and it is now thought that the correct figure may have been eight days. That means, in effect, that the applicant has been in custody since 20 October 2005, and had already served some seven years, nine months and 20 days by the time he came to be sentenced by her Honour for the offending involving AJ.
The applicant’s non-parole period, as fixed by this Court in 2008, was seven years and six months’ imprisonment. That period expired on 20 April 2013, several months before the applicant came to be sentenced for these offences. He was not, of course, granted parole, presumably in part, at least, because he was facing these charges.
When the sentencing judge imposed a total effective sentence of 10 years, with a non-parole period of six years and six months, she stated that it was her intention that the sentence commence on the day that it was imposed. In other words, she said, the sentence of 10 years was to run concurrently with the balance of the applicant’s existing sentence. Her Honour also made it clear that the non-parole period of six years and six months was to start from that day.
The net effect of all this appears to be as follows. If the applicant were to serve every day of the 10 year sentence he received in this matter, he would, by the time that sentence has expired on 8 August 2023, have served a total of 17 years, nine months and 20 days. His earliest eligibility for parole would be 8 February 2020. He would, by then, have served 14 years 3 months and 20 days.
It was understood, on the plea, that notwithstanding s 6E of the Sentencing Act 1991, and its presumption of cumulation, the principle of totality would have to be taken into account. Her Honour said that she had moderated the sentence that she would otherwise have been minded to impose, in order to give effect to totality, as well as the various mitigating factors that were present. The applicant contends that the sentence imposed does not reflect any such adequate moderation.
We shall return to the question of totality shortly. It is first necessary to say something more about the applicant, and his personal circumstances. A psychological assessment by Mr David Ball was tendered on the plea. According to his report, the applicant claimed to have had relationships with various women and girls of about his own age from the time he was 16. Despite acknowledging his convictions for child sex offences, for which he had in the past expressed remorse, the applicant maintained that he was not guilty of the offences involving AJ. He claimed that he had only pleaded guilty as a result of the ruling by the judge that evidence of his prior offending would be admissible at his trial for the AJ matters, whereupon he came to the view that he could not possibly mount a successful defence in those circumstances.
So far as his other offending against children was concerned, the applicant attributed this to his social isolation and poor social skills. He also claimed to have been a victim of sexual abuse himself on more than one occasion.
Mr Ball reported that the applicant did not suffer from any mental illness, mood disorder or personality disorder. He had not engaged in drug abuse. He showed no signs of meeting the DSM-V diagnostic criteria for a paedophilic disorder, or any other paraphilia. That was, as Mr Ball pointed out, because the applicant had been in custody for the best part of eight years by the time her Honour came to sentence him. Mr Ball assessed the applicant as being at a ‘moderate’ risk of reoffending. He also characterised him as being ‘largely institutionalised’ and dependent upon the prison system to meet his physical and psycho-social needs.
Mr Ball went on to say that the applicant had vague and unrealistic plans for his release. He had expressed the wish to go and live with his frail, then 89 year old mother, and care for her. In the event that she died before he could be released, he would seek accommodation at an aged care facility, and would be prepared to remain in prison until such a place became available.
Her Honour noted that throughout his almost eight years in custody the applicant had undertaken a number of rehabilitation programs, including the Sex-Offender Treatment Program at Ararat Prison. The fact that he had done so, but still refused to acknowledge any wrongdoing in relation to AJ, was a source of concern, indicating that perhaps his prospects of rehabilitation were not all that great.
The judge’s sentencing remarks
The sentencing judge observed that the applicant could not look forward to any family support upon his release. He was isolated from all family apart from his mother. He had no friends, and no realistic prospect of making any new friends apart from those with whom he came into contact in prison. Her Honour accepted that this made imprisonment more onerous for him, and said that she would take that into account.
Her Honour also accepted that the applicant was entitled to a reduction in the sentence otherwise appropriate by reason of his guilty plea. Although that plea had been entered only after the ruling that the tendency evidence was admissible, it would have a significant utilitarian benefit, and would spare AJ from the ordeal of having to relive the events through giving evidence.
In addition, her Honour accepted that delay was a factor in favour of mitigation. She noted that the offences involving AJ had taken place over a four year period some 20 years earlier. Importantly, they had occurred at about the same time as the offences that resulted in the sentence imposed upon the applicant in 2005, and ultimately varied by this Court in 2008.
After noting again that the applicant had been in custody for just over seven and a half years, and that he had served the whole of the minimum term fixed by this Court in 2008, her Honour turned to the question of totality. She said:
Ms Hurst submitted correctly that had these charges been dealt with at the same time as the other charges that were committed over about the same time period, there would likely have been some concurrency if for no reason other than the need to conform with the principle of totality. It is, she submitted, through no fault of your own that these charges were not laid until recently. I accept that there would likely have been some concurrency, despite the presumption in favour of cumulation by reason of the application of serious sexual offender provisions to these charges and those that resulted in that last sentence, by reason of the principle of totality.[3]
[3]R v Fridey (Unreported, County Court of Victoria, Judge Hampel, 8 August 2013) [38].
She added, shortly thereafter:
That still leaves the question of how to apply the principle of totality. Although this is similar offending to the offending against the two sons of your partner against whom you were offending at the same time, there are different aspects to this offending by reason of the manner in which you gained and betrayed the trust of [AJ]’s family. In my view, even had you been sentenced at the same time, that would have led to substantial cumulation with the sentences imposed in respect of the three other children.
I consider that I should take into account, into a general sense, the time you have spent in custody since these charges were laid. That time cannot be counted as pre-sentence detention because of course you were serving your other sentence. Had you been sentenced for these offences, as well as the offences of the three other children at the same, any pre-sentence detention that you had served would have counted for all charges. Although I have said I would have imposed substantial cumulation with the sentences of the offences committed on the other children, had I been sentencing you at the same time for these offences, I take into account the fact that you lost the opportunity to be considered for parole when your non-parole term expired in April this year because these charges had by then been laid.[4]
[4]Ibid [44]–[45].
The applicant’s submissions
The applicant argued grounds 1 and 2 together. He focused primarily upon the principle of totality, citing that as the main reason why, in his submission, the sentence was manifestly excessive.
The applicant referred in particular to Mill v The Queen[5] where the High Court cited, with approval, the following passage from a leading English text, Principles of Sentencing:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.[6]
[5](1988) 166 CLR 59 (‘Mill’).
[6]Ibid 63, citing D A Thomas (Heinemann, 2nd ed, 1979) 56–7.
In Postiglione v The Queen[7] McHugh J, referring to Mill, said:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.[8]
[7](1997) 189 CLR 295 (‘Postiglione’).
[8]Ibid 307–8.
Kirby J considered that the totality principle defied ‘precision either of description or implementation’.[9] His Honour said that after the sentencing judge had arrived at what was thought to be an appropriate sentence, he or she must consider whether the resulting sentence needed further adjustment based upon the operation of that principle. This might ‘result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed’.[10]
[9]Ibid 341.
[10]Ibid.
McHugh J recognised that the totality principle had been given an extended application by the New South Wales Court of Criminal Appeal. His Honour said:
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon:
When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.[11]
[11]Ibid 308 (citations omitted). In addition to R v Gordon, to which his Honour referred, and which is reported at (1994) 71 A Crim R 459, McHugh J referred to R v Bakhos (1989) 39 A Crim R 174 and R v Harrison (1990) 48 A Crim R 197.
In Azzopardi v The Queen[12] Redlich JA (with whom Coghlan and Macaulay AJJA agreed) said:
[12](2011) 35 VR 43 (‘Azzopardi’).
There are two accepted methods of adjusting the total sentence to satisfy the principle. Thus, it was said in Mill:
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
A like approach was adopted by the majority of the High Court in Johnson v R. In explaining the proper method to be adopted in sentencing for multiple offences, Ormiston JA, in Grabovac, made it clear that the ‘preferable course’ described in Mill, is only a guide. His Honour said:
In general a Court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practical when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a ‘crushing’ sentence.[13]
[13]Ibid 61–2 [63]–[64] (citations omitted). See also Rouge v The Queen [2013] VSCA 160.
A sentence is said to be ‘crushing’ when it is of such a length that it would provoke a feeling of helplessness in the applicant if and when he or she is released, or which would result in the destruction of any reasonable expectation of useful life after release.[14]
[14]Azzopardi (2011) 35 VR 43, 63 [69].
Often, the notion of a crushing sentence is one relied upon by older offenders. The need to avoid a sentence of that character, if possible, is separate and distinct from the need to have regard to the principle of totality. However, as a practical matter, the two principles are often conflated, and are considered as part and parcel of the same point.
The applicant submitted that the principle of totality was fundamental to sentencing. Where a court sentences an offender who is already undergoing sentence for offences committed at the same time as those now the subject of consideration, it is essential that the sentence imposed for those current matters reflect the totality of the criminality in all of the offending.[15] Moreover, the court must be astute to ensure that the total sentence imposed, when combined with the earlier sentence already being served, is no greater than that which is required to meet the proper purposes of sentencing. This may entail substantial concurrency between individual sentences. It may also involve the reduction in individual sentences below that which would be regarded as proportionate to achieve an appropriate outcome.
[15]Rouge v The Queen [2013] VSCA 160, [20].
The applicant submitted that although the sentencing judge was clearly aware of the need to give effect to totality, the total effective sentence of 10 years that she imposed, when added to the almost eight years that the applicant had already served for the offences involving BS’s three children, demonstrated that she had failed to give proper weight to that principle.
In the applicant’s submission, it was plain that had he been sentenced at the one time for both the AJ offences, and those involving BS’s three children, he would not have received a sentence anywhere near as great as 17 years, nine months and 20 days with a non-parole period of almost 14 years and four months. The sentencing judge must have failed to take the necessary ‘last look’ at the overall result to ensure that the outcome was not excessive.
The applicant further submitted that when measured against current sentencing practices for offences of this type, the net effect of the sentence imposed in this case was to result in a sentence that was significantly out of line with like offending. He referred to a number of sentences imposed in cases that had found their way into this Court,[16] as well as statistics contained in the various reports of the Sentencing Advisory Council.
[16]The applicant provided a table containing 13 separate cases in which the total effective sentence had ranged from five years, in CMG v The Queen [2013] VSCA 243, to nine years and four months in Beyer v The Queen [2011] VSCA 15. Most of the cases cited clustered around the six to eight year mark.
In particular, the applicant noted that the Sentencing Advisory Council’s Sentencing Snapshot 33, sentencing trends for sexual penetration of a child under 10, indicated that between 2001 and 2006 the average total effective sentence was between approximately six and seven years. In referring to Sentencing Snapshot 149, sentencing trends for sexual penetration of a child under 12, he noted that 91 per cent of total effective sentences had been for less than 10 years.
The applicant submitted that when one had regard to totality, as well as the mitigating factors that were present in this case, the overall sentence had to be viewed as being wholly outside the range. He referred, in particular in that regard, to his guilty plea (which was said to have considerable utilitarian value), and the long delay of about 20 years between the offending and sentencing. He also noted his age and ill health,[17] the finding that imprisonment would be more burdensome for him because of his social isolation, and the fact that these offences could not be regarded as being at the most serious end of the spectrum in terms of gravity of offending.
[17]The applicant suffers from Type 2 diabetes and high blood pressure for which he requires medication.
The respondent’s submissions
In its written submissions, the Crown sought to defend the sentence imposed below. However, it acknowledged that when considered in light of the prior sentences, the result could be seen as ‘stern’.
The Crown noted that the offending involved a trusted adult who had exploited the vulnerability of a young boy in order to engage in what it described as ‘base sexual acts’. Moreover, the applicant had persisted in sexual offending against children, despite having previously been imprisoned for such offending. Next, the effect of the applicant’s offending on his victim had been profound. In addition, the plea of guilty came only after an adverse ruling on a point of evidence, and was not accompanied by any remorse.
The Crown also submitted that the principle of totality had a lesser role to play in this case by reason of the applicant having been dealt with as a serious sexual offender. Finally, it contended that delay was of less significance than might otherwise have been the case because there was no compelling evidence of rehabilitation in the intervening period, nor had there been any ‘Sword of Damocles’ hanging over the applicant’s head over the years in question.
The Crown acknowledged, however, that the applicant was entitled to a reduction in sentence for his plea of guilty, that by reason of his social isolation imprisonment would be more burdensome for him, and that he had suffered a lost opportunity to gain parole because of the delay in bringing these charges against him.
By the time this matter came to be heard before this Court, the Crown’s position had altered somewhat. The learned prosecutor, who appeared on the appeal, was reluctant to embrace the written submissions that had been filed on behalf of the respondent.
Counsel submitted that by reason of totality, the sentencing judge had faced a particularly difficult sentencing task. That said, she did not shy away from the fact that ‘the orders’ (by which she no doubt meant the individual sentences) that were imposed here were ‘extremely stern’, and had led to a ‘very severe result’.
When asked what she thought the outcome would have been if the applicant had been sentenced for the AJ matters in 2005, at the same time as he was sentenced for the matters involving BS’s children, she readily acknowledged that it was unlikely that he would have received a total effective sentence of close to 18 years’ imprisonment with a non-parole period of close to 14 years and four months. In fact, she said:
If sentenced all at the same time in 2013 by any judge of the County Court, not to make a submission as to range, but it would have been more likely, I would have thought, that it would have been the sentence maxing out at around 14-15 years and so that makes my position effectively a concession.
We should say that we do not regard that statement as a ‘concession’ in the strict sense of that term. It was nonetheless a mark of the conspicuous fairness with which this particular prosecutor approached her task in this extraordinarily complex, and difficult, case.
In our opinion, counsel’s submission that the applicant would not have received more than 14 or 15 years by way of total effective sentence had the AJ matters been dealt with along with the other matters in 2005 was correct. It indicates that, despite the evident care with which the sentencing judge approached her task in sentencing the applicant, she may not have given appropriate weight to the principle of totality.
Conclusion
Any sentence for the offending involving AJ, when added to the eight years or so that the applicant had already served, had the potential to result in a sentence that was virtually ‘crushing’ so far as this applicant was concerned. There is a distinct possibility, as matters stand, that he will remain in custody until August 2023. By then, assuming he is still alive, itself a questionable proposition, he will have served almost 18 years in prison, and will be 73 years of age. He is already said to be, in large measure, institutionalised.
The sentencing judge viewed the applicant’s offending as very grave indeed, as it obviously was. The harm done to AJ by the applicant’s predatory behaviour was immense. There was a significant breach of trust involved. He has shown no remorse for his conduct.
Had the total effective sentence of 10 years, with a non-parole period of six years and six months stood alone, we would have regarded it as severe, but not outside the range. The problem is that it cannot be viewed that way. The principle of totality requires a very different approach to be taken.
We would grant leave to appeal and allow the appeal itself, though we stress, on the basis of totality only.
Our aim is to fix a total effective sentence of 14 years to encompass the entirety of the applicant’s offending, both in relation to AJ and in relation to his offending against BS’s children. We would want the applicant to serve 11 years and six months’ imprisonment for the entirety of his offending in relation to both matters before becoming eligible for parole.
It seems to us that we can achieve this object by setting aside the individual sentences imposed by her Honour below, as well as the orders for cumulation, and substituting for them the following sentences:
Charge on Indictment Offence Current New
SentenceCumulation 1 Indecent assault [Crimes Act 1958 s 44(1)] 2 years 2 years 1 month 2 Sexual penetration of a child under 10 [Crimes Act 1958 s 47(1)] 5 years 4 years Base 3 Indecent assault 18 months 18 months 1 month 4 Sexual penetration of a child under 10 5 years 4 years 4 months 5 Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)] 2 years 6 months 2 years 6 months 2 months 6 Sexual penetration of a child under 16 4 years 4 years 4 months Total effective sentence: 5 years’ imprisonment Non-parole period: 2 years 6 months Pre-sentence detention declared: Nil 6AAA Statement: 7 years’ imprisonment, with a non-parole period of 4 years
There is, however, a complicating factor. Section 15 of the Sentencing Act 1991, which deals with the order of service of sentences, provides as follows:
(1) If an offender has been sentenced to several terms of imprisonment in respect of any of which a non-parole period was fixed, the offender must serve —
(a) firstly, any term or terms in respect of which a non-parole period was not fixed;
(b) secondly, the non-parole period;
(c) thirdly, unless and until released on parole, the balance of the term or terms after the end of the non-parole period.
(2) 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 order referred to in subsection (1).
It seems to us to be clear that the sentencing judge took the view that both the earlier sentence and the sentence that she imposed would run concurrently. After pronouncing the sentences, she observed:
That makes a total effective sentence of 10 years’ imprisonment. It is my intention that this sentence commence today. That is, it will run concurrently with the balance of your existing sentence.[18]
[18]R v Fridey (Unreported, County Court of Victoria, Judge Hampel, 8 August 2013) [57].
She made formal orders to that effect in the following terms:
Order that this sentence commence today and be served concurrently with the sentence already being served.
Counsel for the Crown advised the court, in a supplementary written submission, that the Sentence Calculation and Warrant Administration Unit of the Department of Corrections had taken the view that the earlier sentence was ‘suspended’ for the term of the non-parole period of the sentence under appeal and that upon expiry of the non-parole period of the sentence under appeal the applicant would then serve the balance of both terms of imprisonment concurrently. The applicant submitted, in a supplementary written submission, that that approach was a misapplication of s 15(2).
There are two issues which arise.
The first is whether it was ‘necessary’ within the meaning of s 15(2) of the Sentencing Act 1991 for the earlier sentence to be ‘suspended’. That issue arises against the background of the fact that the sentencing judge ordered that the sentence under appeal commence on the day it was imposed, and that it be served concurrently with the sentence already being served. It also arises against the background of the fact that without any ‘suspension’, the non-parole period on the sentence under appeal would have been served first, even though the balance of the prior term was being served at the same time.
The second is whether any ‘suspension’ (if ‘necessary’) of that portion of the earlier sentence which remains unserved while the non-parole period on the sentences we would impose elapses has any practical impact. That issue arises given that a period of two years and six months will remain to be served after the expiry of the non-parole period on the sentences we would impose, and any unserved portion of the earlier sentence will be served concurrently with that two years and six month period. Unless that unserved portion is greater than two years and six months there would, it seems to us, be no practical effect of any suspension.
We will give the parties the opportunity to consider the orders which ought to be made to give effect to the conclusions we have reached. It would be of assistance if these reasons and the proposed orders were brought to the attention of the Sentence Calculation and Warrant Administration Unit. If our understanding of the operation of s 15 is accepted, the orders we have proposed in [59] will stand. If, however, there is any uncertainty as to whether those orders do in fact give effect to our clear intent, we will give liberty to apply on reasonable notice, and hear further argument as to the proper operation of s 15 of the Sentencing Act 1991, at least in the particular circumstances of this case.
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