Ludeman v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0953

MICHAEL LUDEMAN	Applicant
v
THE QUEEN	Respondent
THE QUEEN	S APCR 2010 0203
DANIEL THOMAS	Applicant
v
THE QUEEN	Respondent
S APCR 2010 0213
JAMIE FRENCH	Applicant
v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, BUCHANAN, NETTLE, ASHLEY and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 October 2010
DATE OF JUDGMENT	10 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 333
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Campton, 4 December 2009 (Ludeman), 16 June 2010 (Thomas and French)

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Criminal law – Sentence – Interpretation – ‘The sentence’: Individual sentence, Order for cumulation/concurrency, Non-parole-period – ‘Total effective sentence’ – Sections 3, 278, 280, 281 and 282, Criminal Procedure Act 2009.

Sentencing – Intentionally causing serious injury – Theft – Whether application for leave to appeal should be granted – Leave granted on both counts – Appeal allowed – Appellant re-sentenced.

Sentencing – Intentionally causing serious injury – Assault – Whether application for leave to appeal should be granted – Leave granted with respect to sentence for assault – Appeal allowed – Appellant re-sentenced for assault – New total effective sentence – Non-parole period confirmed.

Sentencing – Intentionally causing serious injury – Application for leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant Ludeman	Mr S C Holt with Mr J E McLoughlin	Victoria Legal Aid
For the Applicant Thomas	Mr G M Hughan	Robert Stary & Associates
For the Applicant French	Mr D A Dann	Haines & Polites
For the Crown	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

I agree with the reasons and disposition in the joint judgment of Ashley and Redlich JJA. I also agree with the views expressed by Buchanan and Nettle JJA.

BUCHANAN JA:

Despite the inconvenient consequences which it entails, I am persuaded by the draft reasons for judgment prepared by Ashley and Redlich JJA, that ‘sentence’ in s 280(2) of the Criminal Procedure Act 2009 does not mean the total effective sentence passed below. I also agree with their Honours that s 282(2) does not authorise the Court to make an order with respect to an individual sentence which is not the subject of a grant of leave to appeal.

I agree with their Honours as to the disposition of each application and appeal.

NETTLE JA:

For a while after the enactment of the Criminal Procedure Act 2009, I was inclined to think or, perhaps more accurately, I dared to hope that ‘a different sentence’ in s 281(1) (b) meant a different total effective sentence. Were it so, it would save the lamentably large amounts of time and effort which are invested in dealing with leave applications and correcting individual sentences in cases where the total effective sentence is unexceptionable.

Having now, however, read in draft the reasons for judgment of Ashley and Redlich JJA, I am compelled to agree with their Honours that ‘a different sentence’ means a different individual sentence for a discrete offence. Consequently, we must continue to invest time and effort in correcting individual sentences in cases in which the total effective sentence is not inappropriate. If it matters, I do not consider that the supposed objectives and advantages of correcting individual sentences in cases

of that kind are sufficient to warrant the application of the resources which it entails. I also agree with Ashley and Redlich JJA that s 282(2) does not authorise the court to make an order with respect to an individual sentence which is not the subject of a grant of leave to appeal. In my view, that is a logical consequence of the power conferred by s 280(2) to refuse leave to appeal in relation to individual grounds of appeal.

I otherwise agree with their Honours and in the orders they propose.

ASHLEY JA

REDLICH JA:

On 4 December 2009, a County Court judge sentenced Michael Ludeman to a term of imprisonment in respect of two offences, the most significant of which arose out of an incident which occurred at Wonga Park on 1 February 2009. On 16 June 2010, the same judge sentenced Daniel Thomas, Jamie French and Candice Brady for their roles in the incident which occurred at Wonga Park. Each of Ludeman, Thomas and French lodged an application for leave to appeal against sentence. On 22 October 2010, Redlich JA referred the applications for hearing by a Full Court. He did so because an issue arose as to the proper interpretation of s 280 of the Criminal Procedure Act 2009 (Vic). In particular, the Crown’s considered position, according to counsel, was that leave to appeal should be refused where there was error in an individual sentence (or sentences) passed, so long as the judge hearing the leave application did not consider that there was a reasonable prospect that a less severe total effective sentence would be imposed on the hearing of the appeal. It was said that the purpose of s 280(2) was to enable a refusal of leave where there were sentencing errors which did not affect the total effective sentence. Some reference was made in argument to the obiter observations in Yusuf v R.[1] On 29 October, a Bench of five was assembled to deal with the issue of interpretation. With the consent of all parties, the Court also heard argument as to merits of the applications,

and as to the disposition of any appeal in which leave was granted.

[1][2010] VSCA 575 [25] (Nettle JA).

For the reasons which follow, the Crown contention advanced on the leave application upon the question of interpretation cannot be sustained. Where it is reasonably arguable that there has been a sentencing error with respect to an individual sentence, leave must be granted[2] unless the judge is satisfied that there is no reasonable prospect that a less severe sentence would be imposed on appeal.
[2]At least ordinarily. See s 280 (3).

We consider that Ludeman should have leave to appeal against the sentence imposed upon him on each of the two counts on which he was presented. As we later explain, that grant carries with it a right to challenge an order for partial cumulation and the non-parole period fixed by the judge. We consider that his appeal should be allowed, and that he should be re-sentenced. We further consider that Thomas should have leave to appeal against sentence imposed on an uplifted summary count of assault, and that he should be re-sentenced on that count; but that leave to appeal should be refused in respect of the sentences otherwise passed upon him. We finally consider that French should be refused leave to appeal against sentence.

The way in which we have just described the orders that should be made reflects our resolution of the issue of interpretation which was raised for our consideration, and the significance of that resolution for an appeal entertained under s 281 of the Criminal Procedure Act. Of these matters, more later.

The charges and the sentences

Ludeman pleaded guilty to a count of intentionally causing serious injury[3] and a count of theft.[4] He was sentenced to five years’ imprisonment on the first of those counts and to six months’ imprisonment on the second. The judge cumulated two months of the latter sentence on the former. The head sentence was thus five years and two months’ imprisonment. The judge fixed a non-parole period of three years and four months. She declared, pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, had Ludeman pleaded not guilty, then in the event of conviction she would have imposed sentences yielding a head sentence of seven years; and that she would have fixed a non-parole period of five years.
[3]Contrary to s 16, Crimes Act 1958 (Vic), maximum penalty 20 years’ imprisonment.
[4]Contrary to s 74, Crimes Act, maximum penalty 10 years’ imprisonment.

Thomas pleaded guilty to a count of intentionally causing serious injury and to an uplifted summary charge of assault.[5] He was sentenced to 44 months’ imprisonment for the first of those offences, and to two months’ imprisonment for the latter. The judge cumulated one month, thus producing a head sentence of 45 months. She fixed a non-parole period of two years and six months’ imprisonment. She made a s 6AAA declaration, saying that she would have imposed a head sentence of five years and eight months’ imprisonment, with a non-parole period of three years and ten months, had Thomas gone to trial and been convicted.
[5]The maximum penalty for which, in the circumstances, was three months’ imprisonment.

French pleaded guilty to a count of intentionally causing serious injury. The judge sentenced him to four years’ imprisonment with a non-parole period of two years and eight months. She declared, pursuant to s 6AAA, that had he gone to trial and been convicted, she would have imposed a sentence of six years’ imprisonment with a non-parole period of four years.

The circumstances of the offending

On the afternoon of Sunday, 1 February 2009 the applicants and Brady went to a swimming hole in the Yarra River adjacent to Reserve Road, Wonga Park. A number of people were swimming there. At one stage Thomas and French sought and obtained alcohol from others then present. Later, their request for more alcohol was refused. That refusal culminated in words being spoken and to Thomas punching a Mr Whitmore twice to the face. Mr Whitmore later made light of the punches, but they were apparently sufficiently hard to cause him to lose his balance and fall into the water. Those events led to the charge of assault against Thomas (‘the assault’) to which we have earlier referred.

In the vicinity at the time of this incident was the 17 year old daughter of Gregory Abel (‘GA’). She ran up some steps from the river side. They led to a car park off Reserve Road. Her intention was to call the police. In fact a call was made, but by one of her friends.

As it happened, GA, his wife and their three other children arrived at the car park at this time. GA heard his daughter calling out, sounding frightened, ‘Mum, Dad’. He walked to the top of the steps and looked down. He saw French and Thomas running towards him. One of them yelled ‘are you the old man?’ He replied, ‘What are you talking about? I’ve come here for a swim’.

Then French, Thomas and Ludeman all approached GA. French and GA pushed each other. GA feared being attacked. He punched French in the face. Then French, Thomas and Ludeman began what turned out to be a prolonged attack upon him.

At first, there was punching, kicking and an attempt to gouge his face.

The four men then rolled down the steps and into the water. One or more of the offenders held GA’s head under the water. When he was able to raise his head out of the water, one of the men struck him over the head with a bottle.

GA attempted to retreat to an adjacent picnic area. The three men ran at him from behind and began to strike him again. At one stage, an offender struck him with a tree branch.

The men then went to a nearby vehicle, and armed themselves with golf clubs. They surrounded GA, and each of them struck him a number of times. One of the clubs broke, and the offender who held the damaged club attempted to stab GA in the stomach with it.

By the time that the police arrived, the men had decamped in a vehicle driven by Brady.

Later that evening the vehicle, driven by Ludeman, and in which Thomas was a passenger, was intercepted by the police.

French was arrested on 2 February 2009, as was Brady.

GA suffered scalp lacerations, damage to his nose, and significant damage to his spine. Initially, he was bleeding a lot, and suffered widespread pain. He was admitted to hospital under the care of a trauma team, and remained there for three days, at which time he self-discharged. At time of discharge he was in a neck brace, which he wore for some time. He was nine weeks off work. He required physiotherapy – at first three times each week, but by late November 2009 reduced to once each week. He suffered persisting, and understandable, emotional reaction to what had been done to him.

These were the events which gave rise to the count of intentionally causing serious injury (‘the principal offence’ or ‘count 1’) upon which each applicant was presented, and to which each of them, as we have said, pleaded guilty.

When the vehicle driven by Ludeman and in which Thomas was a passenger was intercepted on the evening of 1 February 2009, a quantity of groceries (to the value of about $400) were found in it. Their theft (‘the theft’), from a local supermarket, founded count 2 on Ludeman’s presentment, a count to which, as we have earlier said, he pleaded guilty.

Grounds

Ludeman sought to rely upon the following grounds:

1. The sentence was manifestly excessive.
2.The learned sentencing judge imposed a sentence against the appellant that offended the principle of parity when compared with the sentences imposed against the appellant’s two co-accused.
3.The learned sentencing judge erred by imposing a sentence which offended the principle of totality.
4.The learned sentencing judge erred by imposing a sentence which failed to reflect the larger than normal parole period which her Honour intended to impose.

Ground 1, as expressed, was unsatisfactory. Argument revealed that a number of ‘sentences’, within the meaning of that word for the purposes of s 280 of the Criminal Procedure Act2009 (Vic), were attacked. Of this matter, more later.

Thomas sought to contend that the sentence imposed upon him was manifestly excessive. In argument, attention was directed to the sentence for the assault, the head sentence and the non-parole period.

French sought to rely upon these grounds:

1.The learned sentencing judge erred in failing to give sufficient weight to the plea material presented to the Court.

2. The sentence and non-parole period are manifestly excessive.
3.The learned sentencing judge erred in failing to give any or adequate weight to the injury suffered by the applicant.
4.The learned sentencing judge erred in the application of the parity principle

The issue of interpretation

Since the late 1990s, applications for leave to appeal against sentence have been heard and determined by a single judge of this Court. Presently, that is authorised by s 315(1)(a) of the Criminal Procedure Act2009.

For a person under sentence, the foundation of the appellate challenge to sentence is most often s 278 of the Criminal Procedure Act. This is what it says:

A person sentenced for an offence by an originating court may appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gives the person leave to appeal.

Determination of an application for leave to appeal is dealt with by s 280, which reads as follows:

(1)This section applies to an application for leave to appeal under section 278 that is heard by a single Judge of Appeal under section 315(1).
(2)An application for leave to appeal under section 278 may be refused in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.
(3)An application may be refused under subsection (2) even if the Judge of Appeal considers that there may be a reasonably arguable ground of appeal.

If leave to appeal is granted, the determination of the appeal is governed by s 281. It is only necessary, for present purposes, to set out sub-ss (1) and (2). Thus:

(1)On an appeal under section 278, the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a) there is an error in the sentence first imposed; and
(b) a different sentence should be imposed.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 278.

The alternative dispositions, if an appeal is allowed, are set out in s 282(1):

(1)If the Court of Appeal allows an appeal under section 278, it must set aside the sentence imposed by the originating court and either—
(a)impose the sentence, whether more or less severe, that it considers appropriate; or

(b) remit the matter to the originating court.

We should mention also s 282(2). This is what it says:

(2)If the Court of Appeal imposes a sentence under subsection (1)(a), it may make any other order that it considers ought to be made.

Each of ss 278, 280, 281 and 282 refer to ‘the sentence’. ‘Sentence’ is defined by s 3 to include, most relevantly –

(a) the recording of a conviction; and
(b) an order made under Part 3, 3A, 4 or 5 of the Sentencing Act 1991.

An examination of those parts of the Sentencing Act 1991 reveals that many and disparate orders thus constitute a ‘sentence’. We begin with Part 3.

Section 7 provides for sentencing orders that may be made ‘(i)f a court finds a person guilty of an offence’.

Section 9 provides that an offender convicted ‘of two or more offences’ may in certain circumstances have imposed upon him or her ‘an aggregate sentence of imprisonment in respect of those offences’.

Section 11 provides for the fixing a non-parole period as ‘part of the sentence’ for an offence. Sub-section (4) is instructive. This is what it says:

(4)If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under subsection (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed.

Section 14 deals with the fixing of a new single non-parole period ‘in respect of all the sentences the offender is to serve or complete’. It applies when, before the end of an existing non-parole period, the offender is sentenced to a further term of imprisonment in respect of which the court proposes to fix a non-parole period.

Section 16, which deals with concurrency and cumulation, underlines the common thread of Part 3 – that ‘sentence’ relates to a number of orders which will or may be made in respect of a particular offence. See, for instance, sub-ss (3B) and (3C).

So much is further emphasised by s 18, which deals with pre-sentence detention, and by the variety of dispositions detailed in the many Divisions and Subdivisions of Part 3.

Part 3A of the Sentencing Act deals with superannuation orders. The purpose of the Part is -

to enable a court to make a superannuation order as a new sentencing option where a person who is or has been a public sector employee is convicted of an indictable offence involving abuse of office, corruption or perversion of the course of justice.

Again, the linkage between an offence and a particular kind of order is present.

Part 4 is headed ‘Orders in addition to sentence’. A restitution order may be made (not necessarily against the person found guilty or convicted) where a person is ‘found guilty or convicted of an offence connected with’ a theft of goods.

Part 5 is concerned with orders for compensation. Such orders are confined to reparation for injury directly resulting from the commission of an offence.

One ‘sentence’ conspicuously absent from Parts 3, 3A, 4 and 5 is the ‘total effective sentence’ or ‘head sentence’ to which reference is often made in Notices of Appeal, argument, and reasons for judgment; and which is a convenient description of the product of individual sentences and orders for cumulation.[6] The closest that the relevant parts of the Sentencing Act get to using either term is the reference to ‘the aggregate period of imprisonment’ in s 11(4).[7]
[6]Or, in cases where cumulation is the starting point, orders for concurrency.
[7]There is a reference to ‘the total effective period of imprisonment’ in s 6AAA of the Act. But that section, which has other problems, is in Part 2.

It was in the statutory setting which we have described that the question of interpretation which we identified at [7] arose before Redlich JA. The practical significance of the question was potentially exposed by the cases of Ludeman and Thomas. Suppose the judge hearing the leave application considered that the individual sentences for the theft in Ludeman’s case and the assault in Thomas’s case were, at least arguably, manifestly excessive, but that the sentence for the principal offence, the total effective sentence and non-parole period in each case were entirely unexceptionable, should leave to appeal be granted or refused? And, if leave was granted, then granted in respect of what? The possible answers to that sub-question are - (a) only against the sentences for the theft and assault – which, as we explain at [63]-[64] below, would include the order for part cumulation of those sentences and the non-parole period fixed by the judge (the consequential orders); or (b), the whole of the sentencing disposition?

Depending upon the answer to the question of interpretation just posed, a further question might arise on the hearing of an appeal. Suppose that a judge granted leave to Ludeman to appeal against the sentence for the theft, including the consequential orders. Suppose that the Court determined to allow the appeal. Despite leave to appeal having been refused to appeal against the sentence for the principal offence, would the sentencing discretion be re-opened in respect of that sentence also?

The question which we have elaborated at [50] was the main focus of the submissions in this Court. As will be seen, the answer to the question posed at [51] would make no difference in the resolution of the Ludeman and Thomas matters. Nonetheless, acknowledging that full argument was not specifically directed to it, we will provide a considered answer to the latter question also.

Concerning the question elaborated at [50], counsel for Ludeman and Thomas[8] submitted that ‘sentence’ in s 280 ‘should be interpreted to mean the individual sentences and orders associated with those sentences which in combination create the effective sentence’. ‘The sentence’ included both ‘the individual component parts [and] the total effect of the sentence’. As we understood the submission, the discretion to refuse leave once an arguable ground had been made out would turn on whether the single judge concluded, in respect of either an individual sentence (or sentences) or the total effective sentence resulting from the individual sentences and any order(s) for cumulation, that a less severe sentence might be imposed on appeal.
[8]French was unaffected by the controversy. His counsel made no discrete submissions.

Counsel for the Crown resiled from the submission advanced before Redlich JA, now contending that ‘the overall product of individual sentences is simply the actual period that must be served by an offender - but that period is not a “sentence” in its own right’. The submission continued that the word ‘sentence’ wherever appearing in ss 280 and 281 of the Criminal Procedure Act ‘does not mean (or include) “total effective sentence”, but rather any sentence captured by the definition of “sentence” in section 3’. Thus, regardless whether the total effect of multiple sentences, or the non-parole period fixed, was likely to be any different, leave should be granted to appeal in respect of a particular sentence which was arguably erroneous. On appeal, s 281 of the Criminal Procedure Act should be given the same operation, as was the predecessor s 568(4) of the Crimes Act1958 – this mandating that an appeal be allowed so as to correct an erroneous sentence.

In our opinion, both the words of the relevant provisions and history point to the general correctness of the Crown’s submissions with respect to grant or refusal of leave. We think it is clear that, in the ordinary case, ‘sentence’ embraces each individual sentence imposed and any consequential orders made for cumulation/concurrency, and any non-parole period which is fixed; but not what is commonly called the ‘total effective sentence’. Thus, in an application for leave to appeal against sentence under s 280, in a matter involving multiple offences, leave should ordinarily only be granted in respect of an individual sentence which is arguably erroneous, but should be refused in respect of other individual sentence(s). Leave will extend, in such a case, to any consequential order for cumulation/concurrency made in respect of the impugned sentence and to any non-parole period which has been fixed. It will so extend without separate specification on the grant of leave.[9]
[9]See [63]-[64] below.

Next, it is not in doubt that the common law principle of totality remains a sentencing consideration. The Criminal Procedure Act, however, mandates the way in which a complaint about totality must be raised in a particular case. Often, when an applicant seeks to raise a totality complaint, the ground is stated this way: ‘the total effective sentence was manifestly excessive’. Sometimes, an expanded form is framed along these lines: ‘the individual sentence, the orders for cumulation and the total effective sentence were all manifestly excessive’. Whether the formulation be one or the other, in many instances no complaint is made about the individual sentences; the real battleground being the order(s) for cumulation. Consistently with what we have said thus far, the Criminal Procedure Act requires that a complaint about totality should be framed by reference to the individual sentences (if any) which the applicant seeks to impugn, as well as any order(s) for cumulation which will be attacked. The proposed ground then having a sufficient degree of specificity, the judge will be better able to determine whether leave should be granted in respect of one or more (and which) individual sentences and orders for cumulation.

We have said that grant of leave in respect of an individual sentence will carry with it a right to challenge such non-parole period which may have been fixed. But there are also cases where the principal complaint is that the non-parole period fixed was inappropriately great. In such a case, the applicant will need to frame a ground specifically to that effect. We should add that the success of such a ground, assuming a grant of leave, has implications for the head sentence.

Our discussion of s 280 has thus far focussed upon the subject of a grant of leave – that is, a sentence or sentences. But the section also deals with grounds of appeal. A judge may refuse to grant leave, notwithstanding that a ground is reasonably arguable, if there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed. In many instances, a ground relates to more than one sentence. Often the complaint is for example, that the individual sentences passed were manifestly excessive; as were the orders for cumulation. Consistently with what we have said, a ground may be reasonably arguable insofar as it relates to one sentence; but not so in the case of another sentence. Insofar as the ground is enlivened, the ‘no reasonable prospects’ test will then need to be applied with respect to the sentence to which the reasonably arguable error relates.

We should elaborate upon the conclusions which we have reached.

We first note that the language of s 278 refers to ‘a person sentenced for an offence’, and to appeal ‘against the sentence imposed’, so as to create a linkage between an offence and the sentence passed for that offence.

We secondly observe that this concept is carried into s 280. The ‘application for leave to appeal under section 278’ there mentioned is an application for leave to appeal against sentence imposed for an offence. The reference in sub-s (2) to ‘a less severe sentence than the sentence first imposed’ again links offence and sentence. The fact that there may be a challenge to multiple sentences, each passed with respect to a discrete offence, does not gainsay the necessary linkage.

Third, the definition of ‘sentence’ in s.3 of the Criminal Procedure Act, with its cross-reference to Parts 3, 3A, 4 and 5 of the Sentencing Act – there being no reference to ‘total effective sentence’ in those Parts, but only the reference to ‘the aggregate period of imprisonment’ in s 11(4) to which we earlier referred, and the reference (in the context of ‘aggregate sentence of imprisonment’) to ‘the total effective period of imprisonment that could have been imposed in respect of the offences’ – reinforces the conclusion that ‘sentence’ where used in ss 278, 280 and 281 is an intended reference to a sentence for an individual offence. It also strongly contraindicates ‘the sentence’ being read to include a ‘total effective sentence’ in a multi-sentence case.

Fourth, the definition of ‘sentence’ is apt to include a non-parole period, which is ‘part of the sentence’ for an offence – see s 11(1) of the Sentencing Act. Thus, if the sentence for an individual offence is arguably erroneous, a grant of leave in respect of that sentence will pick up a non-parole period which has been fixed, even if that period has been fixed by reference to the aggregate period which the offender is liable to serve under all sentences imposed.

Fifth if an individual sentence to which was attached an order for cumulation is arguably erroneous, then if the appeal succeeds it will necessarily follow that the question of cumulation will fall for consideration afresh on re-sentencing. Orders under s 16 are themselves ‘sentences’ within s 3 of the Criminal Procedure Act. But we think that it is unnecessary to grant separate leave to appeal against such an order where it is attached to an individual sentence in respect of which leave to appeal is granted. That is because such an order is inextricably connected with that individual sentence.

Sixth, an applicant’s complaint may be, on the other hand, that orders for cumulation have transformed unremarkable individual sentences into a head term which offends totality. Because orders for cumulation are ‘sentences’, ss 278 and 280 will permit a challenge to such orders. The fact that this will in substance permit an attack on the ‘total effective sentence’ is, conceptually, beside the point. To be clear, it does not mean that the ‘total effective sentence’ is a ‘sentence’ within those sections.

Seventh, the analysis thus far is entirely consistent with authorities under both the predecessor legislation and similar legislation. Upon the leave question, although the relevant Criminal Procedure Act provisions are different to the predecessor Crimes Act provisions, there is no reason to think that there should be any different outcome.

Section 567 of the Crimes Act 1958 (Vic) relevantly provided –

A person convicted on indictment … may appeal under this Part to the Court of Appeal –
…
(d)with the leave of the Court of Appeal against the sentence passed on his conviction …

That section was the counterpart of s 278 of the Criminal Procedure Act.

For the purposes of Part VI of the Crimes Act, ‘sentence’ was defined to include, inter alia –

(a) any order made under Part 3, 3A, 4 or 5 of the Sentencing Act 1991;

So much of that definition is now, in substance, replicated by paragraph (a) of the definition of ‘sentence’ in s 3 of the Criminal Procedure Act.

There was no predecessor of s 280 of the Criminal Procedure Act. The explanation for the section is simple; and except in one respect it does not alter the pre-existing position. In R v Raad,[10] a question arose as to what order should be made on a leave application if the judge considered that a ground of appeal was reasonably arguable, but considered that there was no reasonable prospect that a less severe sentence would be imposed in the event that the applicant fell to be re-sentenced. The majority opinion was that leave should be granted in such a case. The minority opinion is now adopted in s 280 (2) and (3).
[10](2006) 15 VR 338.

But whilst s 280 only alters the pre-existing position with respect to grant of leave in one respect, that is only part of the story. Before the enactment of that section, although s 567(1)(d) of the Crimes Act specified that there must be leave to appeal against sentence, the operative provision – which implicitly encompassed the grant of leave in an appropriate case – was s 568(4).[11] It provided –

(4)On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal.

The sub-section said nothing about grant of leave; and in that respect the connection between s 567(1)(d) and s 568(4) mirrored the relationship, in conviction matters, between ss 567(1)(c) and s 568(1).

[11]There was also the power conferred by s 568(5). In more recent times, it was made clear that the Court’s power to substitute a sentence extended to an aggregate sentence passed at trial. See s 569(5), inserted by Act No. 50/2006.

Section 281 of the Criminal Procedure Act[12] is the counterpart of s 568(4). The differences are that s 281 requires the applicant to satisfy the Court of two matters, rather than the Court ‘thinking’ that a different sentence should have been passed; and that one of the matters of which the applicant must satisfy the Court is ‘an error in the sentence first imposed’.
[12]And in part s 282.

In one sense, the differences are not of substance. In practice, this Court never interfered unless it was satisfied that there was error.

Within s 568(4) was the remedy if the Court thought that ‘a different sentence should have been passed or a different order made’. The Court should then quash the sentence, and pass such other sentence or make such other order as was warranted. The Court also had power to remit: see s 568(5).

The powers of the Court if it allows a sentence appeal are now the subject of separate provision. Section 281 of the Criminal Procedure Act simply requires that the appeal be allowed if the requirements of sub-s (1)(a) and (b) are satisfied; and otherwise, that the appeal be dismissed. We have earlier referred at [36]-[37] to s 282 and the orders that may be made if the appeal is allowed.

The approach under the previous statutory regime was consistent with the way in which we construe s 280 of the Criminal Procedure Act.

One question which arose under that regime was what course the Court should take if it was satisfied that individual sentences passed on an offender were inappropriate although the total sentence was appropriate. That question arose in R v Lomax,[13] a case in which the application for leave to appeal and the appeal, if leave was granted, were heard together. There was no discrete consideration whether leave should be granted, but the Court’s answer to the question before it is relevant to the operation of s 280. The Court said that the individual inappropriate sentences must be set aside, and that the offender must be sentenced appropriately, notwithstanding that the effect of the confirmed and substituted sentences and the orders for cumulation would mean that the resulting total effective sentence was no different. Likewise, a new non-parole period must be fixed – although, as it transpired, it was no different to the non-parole period fixed by the judge below.
[13][1998] 1 VR 551.

Ormiston JA expressed the necessary solution this way:

There remains the question what should be done in these circumstances, having regard to the conclusion already expressed that the total effective head term and the minimum term were not excessive. It was suggested in the course of argument that by reason of s. 568(4) this would nevertheless be a case where the Court of Appeal should dismiss the appeal unless it thinks that a different sentence ought to have been passed. So it was submitted on behalf of the Crown, if rather faintly, that, if the court thought that the total effective and minimum terms were not excessive, then it ought to dismiss the appeal without having regard to the sentences imposed on the individual counts. Doubtless it has been said on many occasions that, merely because there are errors in reasoning by a sentencing judge or misstatements of fact or law, that does not justify the granting of an appeal unless the court is of opinion that a different sentence should have been passed. No authority was cited to support the contention made, although it has the attraction of apparent compliance with the totality rule and avoids the need to give the appearance of ‘fiddling’ with what in the end are proper effective maximum and minimum terms. However, the argument cannot be accepted and I myself have found no authority in favour of it. The word ‘sentence’ must be treated as encompassing the plural and in any event it is wrong to describe the sentence by reference only to the total effective maximum and minimum terms: cf. the definition in s. 566. In accordance with s. 568(4) the court must therefore quash the sentences passed and impose different sentences to the extent that it has formed the view that the sentencing judge has been in error, albeit that that error has only affected the individual sentences on each count.[14]

[14]Ibid 564-565.

His Honour’s approach was consistent with Mill v The Queen,[15] and was soon

reflected in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen.[16] It did not mean, however, that leave to appeal must have been granted, or must now be granted, because a bare structural argument is available. Such arguments have been rightly discouraged.[17]

[15](1988) 166 CLR 59.

[16](1998) 194 CLR 610, 623-624 [45]-[50]. R v Hickey [2001] VSCA 75 and R v Coukoulis [2003] VSCA 22 are instances of the application of Lomax.

[17]See, for example, R v Albanus [2004] VSCA 236, [9] (Callaway JA).

In Lomax, Ormiston JA might perhaps be taken to have implied that a sentence is capable of being described, inter alia, by reference to ‘the total effective maximum and minimum terms’. There could be no argument against the proposition that, as a matter of statutory definition, the non-parole period may be so described. That said, we cannot accept that his Honour meant to so characterise the total effective sentence. To do so would have been consistent neither with the definition of ‘sentence’ in the Crimes Act nor with the observations of this Court in R v Boucher.[18] There, a Bench of five[19] stated that –

In our opinion a total effective sentence is not a term of imprisonment to which an offender is sentenced within the meaning of s10(1). The total effective sentence is nothing more than the term of imprisonment which results from the passing on the same occasion of more than one sentence of imprisonment on an offender once effect is given to the rules of law governing the cumulation or concurrency of sentences and any directions that are given as to cumulation or concurrency. The sentencing judge does not pass a total effective sentence as such. It is the usual, but not the necessary or even invariable, practice, for a judge, when passing a sentence of imprisonment on more counts than one, to state the total effective sentence. This he does as a matter of convenience, in order to inform the prisoner immediately of the length of the effective sentence and in order to reduce the danger that, as a result of some arithmetical or other error, the sentences which he has actually passed and the directions as to concurrency or cumulation which he has actually given will not give effect to his actual intention as to the total sentence to be served. It is not possible to appeal against a total effective sentence: the prisoner can appeal only against the individual sentences of imprisonment and the orders made for concurrency or cumulation.[20]

[18][1995] 1 VR 110, 116.

[19]Ibid (Phillips CJ, Brooking, Teague, Coldrey and Eames JJ).

[20][1995] 1 VR 110, 116.

The correctness of that proposition has often been reiterated. See R v Bolton & Barker,[21] R v Harkness & Ors,[22] and R v Albanus.[23]
[21][1998] 1 VR 692, 697 (Callaway JA).
[22][2001] VSCA 87 [41] (CallawayJA).
[23][2004] VSCA 236[9] (Callaway JA).

Under the previous statutory regime, the applicant was entitled to have an error with respect to an individual sentence corrected notwithstanding that there was no error with respect to the total effective sentence. Lomax was authority for that proposition. There is nothing in the new statutory regime that would suggest that Parliament intended to alter that position and leave the applicant with no remedy where error is shown with respect to an individual sentence. Unmistakeable language would be required to produce such a result. The conclusion which we have expressed with respect to grant or refusal of leave is therefore apt to save an offender from himself or herself. The uncorrected individual sentence remains a prior conviction. Although the ‘total effective sentence’ is probably all that an offender immediately cares about, it is in truth the product of that and the other individual sentences and orders for cumulation/concurrency. We say ‘immediately’ because, if the person re-offends, that individual sentence which is manifestly too heavy, or erroneously high for some other reason – for instance, because the judge acted on a wrong view of the maximum penalty – may come back to haunt the offender as a prior conviction.

That takes us to the question which we set out at [51]. There are two possible answers: If an appeal is allowed in respect of a sentence against which leave to appeal has been granted, then – (a) the appellant falls to be re-sentenced for that offence only; or (b), the appellant falls to be re-sentenced for every offence in the multi-sentence disposition. Alternative (a), for reasons discussed already, includes any consequential order for cumulation/concurrency made in respect of the particular sentence, and also an order fixing a non-parole period.

As a matter of statutory interpretation, we consider that there is an extremely strong argument that alternative (a) is correct. The steps are these:

(1) Section 278 permits an appeal by leave against sentence imposed for an offence.

(2) Section 280 contemplates grant of leave, with respect to a sentence, if there is a reasonably arguable ground of appeal, and so long (putting s 280(2) in reverse language in order to emphasise the point) as the judge considers that there is a reasonable prospect that the Court ‘would impose a less severe sentence than the sentence first imposed’. Otherwise, leave to appeal against a sentence must be refused.

(3) The appeal to which s 281(1) refers can only be an appeal against a sentence in respect of which leave has been granted. If the appellant satisfies the Court, with respect to that sentence, of the matters set out in paragraphs (a) and (b), then the appeal must be allowed.

(4) By s 282(1), the Court must ‘set aside the sentence imposed’ and either ‘impose the sentence … that it considers appropriate’ or else remit the matter to the originating court. The ‘sentence imposed’ must be the sentence in respect of which leave was granted and the appeal allowed. The fresh sentence (or the remitter) relates to the offence the subject of the sentence which has been quashed.

(5) By s 282(2) –

(2)If the Court of Appeal imposes a sentence under subsection (1)(a), it may make any other order that it considers ought to be made.

That sub-section replicates, though by no means precisely, the power given to the Court by s 568(4) of the Crimes Act to ‘make such other order warranted in law … as it thinks ought to have been … made’. Section 568(4) plainly distinguished between a ‘sentence’ and a ‘different’ or ‘other’ order. So, the opening part of the sub-section referred to the Court thinking that ‘a different sentence should have been passed or a different order made’.

The distinction between ‘sentence’ and ‘other order’ is maintained by s 282(2). In our opinion, s 282(2) refers to an order pertinent to the offence in respect of which a fresh sentence has been imposed – that is, an order which does not meet the definition of ‘sentence’. A possible instance might be an order made under s 28 of the Road Safety Act 1986 – though see s 7(1)(k) of the Sentencing Act. We do not accept that s 282(2) authorises this Court, having allowed an appeal in respect of a particular sentence, and having imposed a sentence in lieu, to make orders with respect to other sentences which have not been the subject of a grant of leave.

There are, however, cases decided under the predecessor legislation which state or imply that answer (b) in [82] is the correct one.

It might be said that in the end the issue is simply one of the proper construction of the present legislation. It might also be said, we consider with much force, that the hearing conjointly of the application for leave to appeal, and the appeal if leave was granted – which for a very long period was the norm – conduced against consideration of the consequences of a grant of leave which in truth was confined to only one or some of the sentences passed upon an offender at the one time. Again, the language of s 568(4) itself did not encourage consideration of the matter just mentioned. It is also the fact that, after leave applications in sentence matters began to be heard by a single judge, the practice was simply to grant or refuse leave. That is, if leave was granted, it was granted without specificity or limitation.

Nonetheless, there is a question whether the cases expressed a principle which is incompatible with the construction of the provisions of the Criminal Procedure Act to which we have referred. For the reasons which follow, we consider that no such principle was expressed.

We should refer to a line of cases beginning with R v Iddon& Crocker.[24] In most of them it was held that successful attack upon failure by a judge to fix a non-parole period had the consequence that the head sentence was re-opened for consideration. In one of them,[25] a question was raised whether that must always be the situation – specifically, if the error as to the non-parole period ‘by its very nature [was] such that it could not have affected the determination of the head sentence’. But accepting the general import of those cases, what was said flowed from the concept, expressed in the Sentencing Act, that the fixing of a non-parole period (within which is included the refusal or failure to fix such a period) is a part of a sentence. We have concluded that attack upon an individual sentence includes attack upon a non-parole period fixed in respect thereof. The Iddon & Crocker line of authority simply illustrates that the converse is true.
[24](1987) 32 A Crim R 315. See also R v Wardrope (1987) 29 A Crim R 198, R v Brett & Ors (Court of Criminal Appeal, 22 May 1995, unreported), R v Zarb (1996) 88 A Crim R 55 and R v Sener [1998] 3 VR 749.
[25]R v Sener, ibid. See at 753, (Callaway JA).

We should also refer again to R v Lomax,[26] and as well to R v Harkness & Ors[27] and R v Coukoulis.[28] They exemplify, in cases not involving refusal or failure to fix a non-parole period, somewhat different approaches to the notion of the sentencing discretion being ‘re-opened’ in the context of the predecessor legislation. In Lomax, the applicant was charged with a number of sexual offences. The sentencing judge made no order for cumulation in respect of the individual sentences passed. Ormiston JA concluded that, in the case of each offence, the sentence passed was manifestly excessive.[29] In consequence, and so as to produce a head sentence which was unchanged, it was necessary not only to re-sentence the applicant on the individual counts, but to make orders for partial cumulation. It was in the context as described that his Honour stated that it was necessary to ‘quash the sentences passed and impose different sentences … albeit that the error has only affected the individual sentences on each count’.
[26][1998] 1 VR 551.
[27][2001] VSCA 87.
[28][2003] VSCA 22.
[29]Ibid 562.

Winneke P agreed in the orders proposed by Ormiston JA. It should be noted, however, that the President did not conclude that all the individual sentences were manifestly excessive. He said this:

Once the applicant has demonstrated that the sentences imposed in respect of some of the counts are manifestly excessive, it behoves this court in my view to re-sentence the applicant in the interests of imposing sentences which are appropriate for the individual offences notwithstanding that the total sentence and the non-parole period resulting from the re-sentencing process period will remain the same as those imposed by the learned judge.[30]

[30]Ibid 555.

Two points may be made. First, like Ormiston JA, the President considered that the head sentence and the non-parole period at which the sentencing judge had arrived were appropriate. To achieve the same head sentence, when some at least of the individual sentences were going to be reduced, meant that orders for partial cumulation, not necessarily restricted to the individual sentences which were to be altered, would be required. This implied the need for re-assessment of all the sentencing elements which had gone to produce the total effective sentence. Second, the grant of leave which the President announced was general.[31]
[31]Ibid 555. See also at 568 (Ormiston JA).

In Harkness, four offenders were charged with trafficking in heroin. One of the offenders was presented on three other counts, two of which were drug-related. One of the complaints by the offender was that the sentence on a particular count was manifestly excessive. Another complaint was that the gap between the head sentence and the non-parole period was too small.

Callaway JA gave the principal judgment.[32] He agreed that the impugned sentence was impermissibly high. He held that there was no apparent fault with the non-parole period. Then he said this:

Even if a non-parole period of four years was open to the judge, might it not be said that the sentencing discretion is reopened by the conclusion that the sentence imposed on count 4 was too severe? There are arguments both ways. On the one hand, it might be said that we are doing no more than restructuring the head sentence in a way that implies agreement with the judge's view of the overall criminality involved and that that does not authorize us to reconsider the non-parole period. On the other hand, it might be said that, because the non-parole period includes a penal element, the length of individual sentences that are wholly or partly concurrent is likely to have some effect on it.[33] I find it unnecessary to decide the point because, in my opinion, if the discretion is reopened in this case, we should take the responsibility of confirming the non-parole period.

[32]Ormiston JA disagreed with the disposition proposed by Callaway JA in a presently immaterial way.

[33]Totality may, for example, require two sentences to be concurrent, but the fact that there were two offences may lead the judge to conclude that justice requires a longer period to be served before eligibility for release than if only one offence had been committed.

Although his Honour left the point open, when he came to re-sentence the offender he imposed a lesser sentence on the particular count, but then made different orders for cumulation so as to result in the same total effective sentence. He confirmed the non-parole period.

We make these observations. First, his Honour’s reasons[34] do not refer to grant of leave at all. Second, pertinent to the unanswered question in the passage cited, it would be compatible with the Sentencing Act that error in one sentence would open up the question of what non-parole period should be fixed. Third, at least in the case of an error discerned in one sentence, any order for cumulation made with respect to it would fall for re-consideration. Fourth, the multiple different orders for cumulation are compatible, on analysis, with leave having been granted in respect of the ‘sentences’ represented by those orders, so that the head sentence should properly reflect totality.
[34][2001] VSCA 87 [60].

Coukoulis involved a former solicitor who pleaded guilty to many counts of theft, and to a count of defalcation. He was sentenced on the theft counts to varying periods of imprisonment, all concurrent. On the defalcation count, he was sentenced to a term of imprisonment, made wholly cumulative with the effective sentence for the thefts.

There were a number of problems with the sentencing exercise. Thus – (a) the sentences on some of the thefts were impermissibly high or low; (b) there were no orders for cumulation at all with respect to the thefts, and there should have been; and (c) the order for total cumulation made in respect of the defalcation count was inappropriate. But, viewed overall, the head sentence and the non-parole period were unexceptionable.

Ormiston JA said this:

It is sufficient at this stage to say that the cumulation order was inappropriate and that the error, as both sides conceded if it were established, reopens the sentencing discretion in respect of all aspects of the sentences imposed.

Consistently with the concession made, his Honour confirmed some sentences, imposed different sentences in some instances, and made different orders for cumulation.

We make these observations. First, it appears that leave to appeal had been granted before the Full Court considered the matter. Coukoulis is referred to throughout as ’the appellant’. Consistently with the practice at the time, grant of leave was probably general. Second, his Honour proceeded upon an agreed concession that ‘all aspects of the sentences imposed’ were re-opened. Third, the sentencing errors with respect to individual counts and as to cumulation and non-cumulation meant that, to achieve totality, a multiplicity of different orders needed to be made. In that context, a general grant of leave was appropriate.

Sentencing remarks – Ludeman

The judge set out the circumstances of the offending much as we have described them. Then she addressed Ludeman’s personal circumstances. She noted the following matters:

· Ludeman was aged 23 at time of sentence;

· he had been abandoned by his parents and had been raised by his maternal grandmother;

· he had done well at school until years 9 and 10, at which time he had begun to behave badly, and had been eventually expelled;

· he had thereafter spent some time in the care of the Department of Human Services, then being introduced to alcohol and illicit drugs;

· alcohol and drugs had been a continuing problem for him thereafter;

· he had been before the courts on 13 previous occasions, and had been convicted on 19 occasions for offences involving violence;

· he had been diagnosed by a psychologist as suffering from ‘an explosive personality disorder’, attributable to past misfortunes;

· he had been affected by attacks upon him by others;

· the psychologist was of opinion that Ludeman appeared determined to establish a ‘legitimate and productive lifestyle on release’, he having a pregnant girlfriend and hopes of employment;

· the psychologist was further of opinion that the personality disorder was amenable to treatment, and that Ludeman’s prospects of rehabilitation were reasonably favourable both because of that fact and because of his insight into his problems;

· Ludeman’s counsel had argued for a longer than usual potential period of parole, so as to facilitate rehabilitation;

· counsel had further submitted that –

o it explained, but did not excuse what the applicant had done, that he had been affected by ingestion of Xanax at the time;

o Ludeman had pleaded guilty at an early stage;

o he was truly remorseful.

The judge stated that she had ‘taken into account all the mitigating factors’ referred to by Ludeman’s counsel. Implicitly, she accepted the matters advanced.

The judge further stated that the attack had been cowardly and vicious, that it had caused great trauma to GA and his family (who had witnessed the attack), that the offence was aggravated by it having occurred in a public place where others were present, and that general and specific deterrence and denunciation were relevant considerations.

The judge expressed a hope that the ‘larger than normal parole period’ which she had fixed would enable Ludeman, under proper supervision, to get his life in order.

Sentencing remarks – Thomas

The judge noted the following:

· Thomas was aged 27 at time of sentence;

· he came from a dysfunctional family;

· he had a disrupted education, attending a number of primary schools and two secondary schools;

· he had twice been expelled from secondary schools;

· according to a psychologist, he exhibited symptoms and behaviours strongly suggestive of Attention Deficit Disorder;

· he had begun using drugs and alcohol at a young age;

· he had begun one apprenticeship, and completed another;

· he had been more often in work than unemployed;

· he had expressed remorse to an examining psychologist, who considered that he had sufficient insight to understand that he needed to change his behaviour;

· he had taken action to curb his resort to alcohol and drugs. A counsellor had reported that he was highly motivated, and had been drug free since January 2010;

· another counsellor had reported that he had taken positive steps to change his life. With continued support and therapy, she opined, he could continue with the change to his life, and continue to be drug free;

· an aunt with whom the applicant had been living since early 2010 had given evidence that she had imposed strict regulations upon his behaviour, with which he had complied. He had been co-operative, and had expressed remorse for what he had done;

· several employers – one past, one present – had provided favourable testimonials;

· his grandparents had written, confirming his ‘terrible family life’, and stating that he had shown remorse and had changed for the better;

· his counsel had submitted that he should receive a lesser sentence than Ludeman, his criminal history disclosing only one instance of violent offending, and he having no convictions subsequent to this offending.

The judge stated that she had taken into account all mitigating factors relied upon by his counsel. He was entitled to a discount for the plea of guilty. She did not accept that his drug use on 1 February 2009 (of which evidence had been given) was a mitigating circumstance. On the other hand, she considered that he had made considerable efforts to rehabilitate himself, and that he was truly remorseful.

Her Honour further stated that this had been a cowardly attack on GA, in public and in front of his family. It had been ‘appalling and outrageous behaviour’. Denunciation, and as well general and specific deterrence were relevant sentencing considerations.

In sentencing Thomas as she did, her Honour stated that although the prosecutor had sought the same sentence as had earlier been passed on Ludeman (five years’ imprisonment on the count of intentionally causing serious injury), she considered that the sentence imposed on Thomas should be less. That was because Ludeman had a ‘far more extensive criminal history with 19 prior offences which involve violence while you have one.’

Sentencing remarks – French

The judge noted the following:

· French was aged 31 at time of sentence;

· his family life had been affected by a dominating, violent, alcoholic father;

· he had left school after completing year 10;

· he had moved into accommodation with somewhat older friends when aged 15 or 16, and had, under their influence, become a heroin addict;

· he had travelled overseas when aged 21. On his return, he had obtained work, and he and a girlfriend had bought a home. But the relationship had broken up and the house had been sold;

· he had thereafter bought another house. It was subject to a mortgage, and he was concerned about being able to meet repayments if incarcerated;

· a psychologist had opined that childhood traumas had left him with residual symptoms of post traumatic stress disorder. He had a compulsion ‘to repeat the trauma in the role of victim, victimiser or both’;

· thus was explained a criminal history which included two prior convictions for recklessly causing serious injury, a conviction for recklessly causing injury and a conviction for intentionally or recklessly causing injury;

· he had explained the circumstances of the various offences to a psychologist. One of them had been an instance of road rage, another had been a beating of an off-duty policeman, another had been a beating of a taxi driver, yet another had involved a fight at a station;

· he had told the psychologist that if someone tried to stand over him, or had a crack at him, he had a problem with not backing down. The psychologist opined that he was not psychologically equipped to deal with being physically threatened. She considered that he might profit from intense therapeutic intervention;

· a second psychologist had begun to treat him for management of ‘anger and anxiety issues’ in February 2009. She had prescribed medication for anxiety, and had referred him for participation in a men’s anger management course;

· this psychologist reported that he had told her that he had been ‘king hit’ in the incident on 1 February 2009, that this had been without provocation, and that he had only ‘a fragmented memory of the remainder of the incident’;

· testimonials had been provided by his stepfather, two friends and his current employer. They attested to his remorse and to his attempts to change his life;

· his counsel had relied upon the plea of guilty, remorse, and his efforts to rehabilitate himself, and as well the circumstances (which the judge accepted) that he had tried to prevent the altercation between Thomas and Whitmore, and that GA had struck the first punch (which had broken his sunglasses, and caused him some injury);

· his counsel had submitted that he should receive a lesser sentence than Ludeman. His criminal history was not as bad, he had complied with non-custodial orders in the past, he had not previously been incarcerated. Counsel had further submitted that there should be a relatively long gap between the head sentence and the non-parole period.

As with the other offenders, the judge stated that she had taken into account matters relied upon in mitigation by counsel. The plea of guilty would earn a discount.

Specifically concerning French, her Honour accepted that he had made efforts to deal with his problems, particularly anger; and she accepted also that he had some remorse for his conduct.

The judge applied the same remarks concerning the offending conduct, with respect to the need for denunciation, and as to the relevance of general and specific deterrence, to both French and Thomas.

In sentencing French, the judge concluded that he should serve a lesser term than Ludeman. On the other hand, his greater background of criminal violence meant that he should serve a longer term than Thomas.

Submissions in this Court

Because of the curial history of these matters,[35] in each instance we heard at the one time submissions in respect of the application for leave to appeal and in respect of the appeal if leave was granted. That is not the ordinary situation. The atypical way in which the matters proceeded does not mean, of course, that the questions whether there should be a grant of leave and, if so, whether the appeal should be allowed, should not be separately addressed. That said, it is convenient to describe the submissions as they were generally advanced.
[35]Described at [7] above.

Submissions for Ludeman
Manifest Excess/Totality

Counsel argued these grounds together. He submitted that the theft fell into the ‘miniscule class’ of offending. Six months’ imprisonment for what was shoplifting was plainly excessive. There should have been complete concurrency in the two sentences. Alternatively, if there was to be part cumulation, then the sentence for the principal offence should have been adjusted downwards to meet the totality requirement.

With respect to the sentence for the principal offence, counsel submitted that although his client had a substantial criminal history, he was a youthful offender who was finally showing evidence of serious attempts at rehabilitation. He further submitted that, although the episode had been serious, GA’s injuries had been in the lower range of serious injury.

In support of his submissions generally concerning manifest excess and totality, counsel relied upon his client’s early plea of guilty, which he contrasted with the other offenders having gone to committal. He relied also, in the context of totality, upon the fact that although his client had been in custody between 1 February and 3 March 2009, and between 5 June 2009 and time of sentence, much of the latter period was in respect of sentence passed in the Magistrates’ Court on 24 September 2009.

Parity

Counsel submitted that French had probably started the trouble, along with Thomas. They had turned a confrontation with GA into a physical fight. His client had joined in. His client’s much worse criminal history than those of the other men had been overweighted. Again, the early plea of guilty was important .

The Non-parole Period

Counsel argued that, when ‘dead time’ was factored in, the non-parole period was about two thirds of the effective head term. In consequence, the judge’s stated intention was not achieved.

Crown submissions – Ludeman

Counsel submitted that the sentence on each count was within range. The principal offence was a particularly serious example of that offence. There were a number of aggravating features. The applicant’s prior criminal history for offences for violence was relevant. The relative seriousness of GA’s injuries could not be considered from other aspects of the offence and the offender.

As to totality, counsel submitted that the judge had been aware of the ‘dead time’ issue. She had referred to it in her sentencing remarks. It could not be inferred that she had not factored it in when producing the head sentence which she did. Neither did the partial cumulation of an admittedly stern sentence on the theft count offend totality.

With respect to the non-parole period, counsel accepted the arithmetic of the applicant’s submissions. But he contended that, all things considered, a non-parole period of two thirds of the head sentence did not bespeak error.

Finally, counsel argued that leave should be refused because, even if there was arguable error, there was no reasonable prospect that this Court would impose a lesser sentence.

Submissions for Thomas

Counsel argued that the sentence for the assault was impermissibly high. It was two thirds of the maximum penalty in a case in which the victim had made light of the blows and in which the applicant had made admissions and entered an early plea of guilty. Further, the applicant was a man with little in the way of prior criminal history (which had never before involved imprisonment), he was genuinely remorseful and he had taken steps to overcome his substance abuse problems.

As to the head sentence produced by the sentence for the principal offence and the partial cumulation of the sentence for the assault, counsel submitted that whilst the former was shocking and terrifying, GA had suffered injuries at the lower end. Further, the extent of cumulation was impermissibly great. Further still, the non-parole period was also far too high a proportion of the head sentence. In circumstances of the applicant’s steps towards reformation, the non-parole period should have been set, as counsel had submitted at trial, at 50 per cent or less of the head term.

Counsel also drew attention to – (a) the unfortunate circumstances leading to his client becoming a substance abuser; (b) the evidence of remorse and of significant reformation; and (c), the support which the applicant was now able to receive from his family and health professionals in continuing his reformation.

Submissions for the Crown

The Crown’s submissions largely replicated those advanced in Ludeman’s case. Beyond that, counsel argued that – (a) the judge had adverted to all of the matters now called in aid for the applicant; (b) unlike Ludeman, the applicant was not a youthful offender. He was not a first-time offender, although he did have a lesser criminal history than Ludeman; (c) the sentence for the assault was admittedly stern. But it was still within the permissible range. The assault had ‘involved not only a battery for an unprovoked and unjustified public humiliation of the victim’; and (d), the non-parole period was unremarkable. The judge had not been bound to act upon the submissions of the applicant’s counsel.

Counsel finally argued that there was no reasonably arguable ground of appeal. But if that was wrong, then there was no reasonable prospect that this Court would impose a lesser sentence.

Submissions for French
Insufficient weight to plea material

Counsel submitted that there was evidence that the applicant had been psychologically damaged by his childhood experiences, that this damage was pertinent to his offending, that it would make imprisonment onerous, and that Verdins[36] was called into play with respect to the applicant’s moral culpability, the significance of general deterrence and the burden of imprisonment. Counsel argued that his client’s criminal conduct ‘occurred only after he had been punched to the face by GA and seriously injured in an act that enlivened childhood trauma generally and including a specific incident when [the applicant] was 13 years old.’ Counsel then submitted that, although the judge had said she had taken into account all mitigating factors relied upon, she had not identified the applicant’s psychological condition or abuse when listing the matters identified. He argued that she may have regarded his condition as aggravating the sentences, because she had focused, implicitly, on the prospect of rehabilitation.
[36]R v Verdins and Buckley (2007) 16 VR 269.

Manifest excess. Failure to give any or adequate weight to the applicant’s injury

Counsel submitted that the sentence and the non-parole period were impermissibly high when regards was had to – (a) absence of pre-meditation; (b) the applicant’s limited criminal history; (c) the criminal conduct having followed upon his client having received a ‘significant injury to his head’; (d) the ‘limited’ physical injuries sustained by GA; (e) the early plea of guilty; (f) the fact that, so far as he was able, the applicant was remorseful; (g) the applicant’s positive response to anger management and psychological counselling; (h) the likelihood that prison would be onerous for the applicant because of his psychological condition; (i) the applicant’s good work history and community support; (j) the fact that the applicant had previously complied with non-custodial dispositions (which could not be said of Ludeman). The sentence and the non-parole, counsel added, could be seen to be too high when contrasted with the sentence imposed on Thomas – who had not been injured. Further, the difference between the sentences passed on Ludeman and his client for the principal offence had been compressed when one looked at the non-parole periods fixed in the two cases.

The injury to which counsel referred was this: when GA punched French, the latter suffered a cut which required 13 stiches. He was left with a scar. Counsel submitted that this injury, with its sequela, ‘warranted a very significant mitigation of penalty’. It amounted to additional punishment and was an effective form of deterrence.

Submissions for the Crown – French

The Crown’s submissions again replicated, in many respects, submissions made in the cases of Ludeman and Thomas. Otherwise, attention was directed, in the context of the complaint of manifest excess, to the applicant’s ‘very relevant prior criminal history’ and to the fact that he was neither a youthful nor a first time offender. As to the complaint that the judge did not have proper regard to the plea material, counsel submitted that the judge took account of all matters highlighted by applicant’s counsel; and that counsel below had not called Verdins in aid. Finally, nothing indicated, counsel submitted, that the judge had not given appropriate weight to the significance, for sentencing purposes, of the applicant’s own injuries. In any event, even if any proposed ground was reasonably arguable, there was no reasonable prospect that this Court would impose a less severe sentence.

Resolution of application for leave to appeal – Ludeman

It need only be said once that the principal offence to which the three offenders pleaded guilty was a bad example of the crime. It involved a substantial attack by three men on a single victim in a public place where others, including the victim’s family, were present. It involved a number of phases, in which the assault was made in different ways. At times, it involved the use of weapons. The attack was unprovoked. It was accepted that GA had only punched French out of fear of being attacked. The judge was quite right to describe the attack as cowardly and vicious, and as deserving of denunciation. Both general and specific deterrence – subject to any moderation of those considerations that any of the offenders could call in aid – were also important sentencing considerations. That was particularly so for Ludeman and French, men who had a history of violent offending.

We turn to Ludeman’s application specifically. Notwithstanding the matters urged upon the judge below in mitigation, and the matters called in aid in this Court, we consider that it is not reasonably arguable that the sentence imposed upon him for the principal offence was manifestly excessive. The sentence was, we consider, far from meeting that description. This was violent offending by an offender with a disgraceful history of repeated violent offending.

On the footing, however – see later – that the sentences passed on the co-offenders for the principal offence should remain untouched, we do consider that it is reasonably arguable that there was an impermissible disparity between Ludeman’s sentence and the sentences passed on the other men. In essence, the judge treated Ludeman’s substantial past history of violent offending as the basis for differentiating between the sentence imposed upon him and the sentences passed upon his co-offenders. But that, with respect, was only one consideration. Accepting as we do the Crown’s submissions that the involvement of the three men in the offending was generally equal, it should nonetheless be noted that French took a leading role in initiating the confrontation. Again, each of French and Thomas was some years older than Ludeman. They were not youthful offenders. Further, Ludeman accepted responsibility and faced court earlier than did the others.[37] Further still, the judge evidently accepted that Ludeman had made progress with his rehabilitation. Whilst the same could be said of Thomas, the situation with French was somewhat more problematic.
[37]They went to committal. But there may not have been a full-scale committal hearing.

If Ludeman’s contention that there was impermissible disparity between the sentences was upheld on appeal, a lesser sentence would be imposed upon him for the principal offence. For that reason, we consider that he should have leave to appeal against the sentence imposed for that offence on ground 2 (that is, the parity ground).

We turn to the submission that the sentence imposed for the theft was manifestly excessive. We consider that the contention is reasonably arguable. If upheld on appeal, the result must be a lesser sentence. Leave should be granted on ground 1 (manifest excess) in respect of that sentence.

Resolution of the appeal - Ludeman

In our opinion, the appeal against sentence on count 1 should be allowed on the ground of impermissible disparity. We have already said enough to explain why that should be so. We would impose a sentence of four years and three months’ imprisonment on that count, which in our opinion would sufficiently differentiate between the offenders.

We next consider that the sentence imposed on the theft count was manifestly excessive. Even given the applicant’s bad prior criminal history, the offence was at the lower end of seriousness, and the applicant could call in aid the matters in mitigation to which we have already referred. We would impose a sentence of two months’ imprisonment on that count.

There should be some cumulation. In our opinion, it is appropriate to cumulate one month of the sentence on count 2 on the sentence imposed on count 1. The total effective sentence would then be four years and four months’ imprisonment.

We consider that the appropriate non-parole period, allowing for ‘dead time’, and making adequate allowance for the prospect of rehabilitation, should be two years and nine months’ imprisonment.

Had the applicant pleaded not guilty, and been convicted after trial, we would have imposed a sentence on count 1 of five years and two months’ imprisonment and a sentence on count 2 of 10 weeks’ imprisonment. With cumulation, the total effective sentence would have been five years and three months’ imprisonment. We would have fixed a non-parole period of three years and six months’ imprisonment.

Resolution of application for leave to appeal – Thomas

We agree with the submissions for Thomas that it is reasonably arguable that the sentence for the assault was manifestly excessive. It was two thirds of the maximum penalty, and that in circumstances of a plea of guilty and other matters legitimately going in mitigation of sentence.

Since, if the appeal was allowed, the sentence must be reduced, we should grant leave to appeal against the sentence passed.

We do not agree, however, that it is reasonably arguable that the sentence imposed for the principal offence was manifestly excessive. Allowing for the matters which the applicant could legitimately call in aid in mitigation, we consider that the sentence was well within what was permissible. We would refuse leave to appeal against that sentence.

Resolution of the appeal – Thomas

Moving to the appeal, we consider, for reasons already described, that the sentence on the assault charge was manifestly excessive. We would impose a sentence, in lieu, of one month’s imprisonment.

We consider that some cumulation is required. The incidents were quite separate. We would order that two weeks of the sentence for the offence be cumulated on the sentence imposed for the principal offence. The total effective sentence would thus be three years, eight months and two weeks’ imprisonment.

The judge fixed a non-parole period of two years and six months’ imprisonment. The small alteration to the total effective sentence which our orders will produce has not caused us to conclude that a different non-parole period should be fixed.

Had Thomas pleaded not guilty to the assault, and had he been convicted after trial, we would have imposed six weeks’ imprisonment on that charge. With cumulation, the total effective sentence would have been 45 months’ imprisonment. We would have fixed a non-parole period of two years and six months’ imprisonment.

Resolution of application for leave to appeal - French

The first ground relied upon – that the judge did not give sufficient weight to the plea material – did not propose that the judge had committed specific error by failing to apply one or more of the Verdins principles. The ground, so stated, was consistent with the Crown’s submission that Verdins was not relied upon below. That submission, we add, was itself consistent with the transcript of the plea. Nonetheless, the judge appears to have taken account of the applicant’s troubled childhood, and the postulated connection between that troubled past and his compulsion to violence. It is also clear that her Honour concluded that the applicant had taken steps towards reformation. Further, in our opinion, the judge did not misapply the evidence of the psychologists. The complaint that her Honour treated the applicant’s psychological problems only as going in aggravation of sentence cannot be accepted. One aspect of those problems was that they explained the applicant’s past violent acts. On a best view for the applicant, the problems remained partly unresolved. In those circumstances, protection of the community was a significant sentencing consideration.

In the circumstances just summarised, we consider that ground 1 is not reasonably arguable.

We next consider that it is not reasonably arguable that either the head sentence or the non-parole period were manifestly excessive. The applicant was the oldest offender. Like the others, his offending was violent and sustained. The fact that GA struck the first blow did not mean that the applicant and his co-offenders were not the attackers. The plea was conducted on the agreed footing that GA struck the blow when in fear of being attacked. French was struck because he, particularly, confronted GA at the outset. He had a history of violent offending, and in this respect his history compared unfavourably with that of Thomas. Despite his plea of guilty, the extent of his remorse – regardless of the reason – was less than that of both Ludeman and Thomas. According to the evidence of the psychologists, his prospects of rehabilitation were more doubtful than were the prospects of both Ludeman and Thomas. The applicant did suffer some injury when struck by GA; but it drew a long bow to describe it as ‘a significant injury to the head’, warranting ‘a very significant mitigation of penalty’. In some cases, injury to an offender may amount to extra-curial punishment, and lead to a reduction in the sentence which would otherwise be imposed. But we do not accept that the facial cut sustained by the applicant, and the resulting scar, had any significant part to play in determining the appropriate sentence in this case. Next, it is true that the applicant had complied with the terms of non-custodial orders in the past. But in our view the judge sufficiently allowed for this circumstance in both the head sentence and the non-parole period which she imposed. Finally, it is true that there was a smaller difference between the non-parole periods fixed for Ludeman and French than between the head sentences imposed on the two men for the principal offence. But unless the non-parole periods, as a proportion of the sentences, needed to be considerably different – and here they did not – that would always be the case.

What we have said thus far is enough to dispose also of grounds 3 and 4 adversely to French. Accordingly, we would refuse him leave to appeal against sentence.

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Citations

Ludeman v The Queen [2010] VSCA 333

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[2010] VSCA 333

10 December 2010