Nguyen v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0135

CHO NGUYEN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 January 2025
DATE OF JUDGMENT:	13 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 3
JUDGMENT APPEALED FROM:	[2024] VCC 609 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Totality principle – Offences committed while on parole – Parole cancelled and applicant required to serve remainder of original sentence for prior offending – Whether totality principle required consideration of time spent on remand that was not pre-sentence detention – No different sentence would be imposed – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by mistaking the applicable speed limit – No material error established – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Whether manifestly excessive – Conduct endangering persons – Driving motor vehicle – Current sentencing practice – Significant objective gravity of offending – Total effective sentence was within range reasonably open to sentencing judge – Leave to appeal refused.

Sentencing Act 1991, s 16(1A).

Bugmy v The Queen (2013) 249 CLR 571; DPP v Bowen (2021) 65 VR 385; DPP v Nguyen [2024] VCC 609; DPP v Pusey [2021] VCC 478; Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Sepehrnia v The King [2024] VSCA 149, considered.

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Counsel
Applicant:		Mr T Clamart
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ:

On his plea of guilty the applicant was sentenced by a judge of the County Court for three indictable and two summary offences.[1] The most serious of these was a charge of reckless conduct endangering serious injury (charge 1), which arose as a result of his reckless driving on the Western Freeway and which culminated in his vehicle colliding with another car. The prosecution alleged that the applicant drove his vehicle for around 17 minutes in a manner that endangered other road users. The prosecution relied principally on dashcam footage taken from the applicant’s own vehicle which provided clear vision of the driving over the relevant period. It also relied upon, amongst other things, the applicant’s admission that he estimated his speed to be around 130 to 140 kilometres per hour.
[1]DPP v Nguyen [2024] VCC 609 (‘Reasons’).
The agreed prosecution summary, on which the plea proceeded, said that the applicant drove his car at a speed considerably faster than surrounding traffic, drifted between lanes and followed cars at a dangerously close distance. All of that is clearly depicted in the footage which was viewed both by the sentencing judge and by this Court. Throughout this period, the applicant can be heard swearing and expressing frustration with other drivers whom he perceived were blocking his passage.
Immediately before the collision, the applicant was driving in the left-hand lane at a speed considerably faster than the surrounding traffic. He collided with the rear of a Toyota Corolla without any attempt on his part to brake or otherwise avoid the collision. Later, the applicant would tell police that he suspected he may have fallen asleep and that he did not see the collision.
The collision forced the driver of the Corolla to lose control of her vehicle, which slid into the left road barrier before rotating around to face the direction of oncoming traffic and ultimately stopping in the left lane, facing traffic. The applicant’s car also struck the left barrier causing damage to the front-left wheel of his car.
The applicant got out of his car and approached the Corolla. He asked if the driver was okay but did not provide his name and address. The applicant re-entered his car and drove a short distance, stopping on the left-hand side of the road. A short time later another car, driven by unnamed persons, pulled up alongside him. One of its occupants said to the applicant to ‘get the fuck in, hurry up, come on’. The applicant got into that car and left the scene. The following day Nicole Breitner attended a police station and falsely said she was driving the applicant’s car at the time of the collision. When spoken to by police the applicant said that Breitner had been driving his car. This false account led to a summary charge of making a false report to police (charge 15).
As well as the endangerment charge, the applicant also pleaded guilty to two charges of possession of a drug of dependence, being 1.5 grams each of heroin (charge 2) and methylamphetamine (charge 3).
At the time of the offending the applicant was on parole in respect of serious offending for which he had, in 2019, been sentenced to a term of imprisonment for 5 years and 6 months with a non-parole period of 4 years. He also pleaded guilty to a summary charge of breaching a parole condition (charge 12).[2]
[2]The applicant’s parole was subject to a condition that he not commit an offence whilst on parole.
In the result the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Conduct endangering persons[3]	5 years	20 months	Base
2	Possession of a drug of dependence[4]	1 year or 30 penalty units	2 months	Nil
3	Possession of a drug of dependence	1 year or 30 penalty units	1 month	Nil
Related Summary Offences
12	Breach of a prescribed condition of parole[5]	3 months or 30 penalty units or both	1 month	Nil
15	Make false report to police[6]	1 year or 120 penalty units	3 months	3 months
Total Effective Sentence:		1 year and 11 months’ imprisonment
Non-Parole Period:		16 months
Pre-sentence Detention Declared:		160 days
Section 6AAA Statement:		Total Effective Sentence 2 years 9 months Non Parole-Period 1 year 10 months
Other Relevant Orders: 1. With conviction on charge 1, any Victorian licence or permit is to be cancelled and disqualified from obtaining a licence or permit for 3 years. 2. Disposal order.

[3]Contrary to s 23 of the Crimes Act 1958.

[4]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[5]Contrary to s 78A of the Corrections Act 1986.

[6]Contrary to s 53(1) of the Summary Offences Act 1966.

The sentencing reasons

The following matters were regarded by the judge as significant to his sentencing task:
(a)The judge described the applicant’s driving as ‘simply appalling’, noting that the applicant had travelled at great speed over a considerable distance, narrowly avoiding one accident, having another, and that he used the highway as a racetrack;[7]
(b)The applicant was 47 at the time of sentence.[8] His father suffered from schizophrenia and had been imprisoned. The applicant grew up in a house marked by considerable violence.[9] Psychological evidence tendered on the plea was to the effect that the applicant suffered post-traumatic stress disorder as a result of exposure to complex developmental trauma.[10]
(c)The applicant has a history of extensive drug taking, including cannabis, heroin and methylamphetamine.[11]
(d)The applicant has a ‘dreadful’ criminal history. The offending included property offences, offences of violence, drug offences including trafficking drugs of dependence and driving offences. Notably, he had received a sentence of 8 years and 3 months for intentionally causing serious injury and armed robbery in 2010, and 5 years and 6 months for causing serious injury, assault and possessing drugs in 2019. The judge noted that this was relevant to both general and specific deterrence.[12]
(e)The judge took into account the maximum terms for the relevant offences.[13]
[7]Reasons, [27].
[8]Ibid [14].
[9]Ibid [15].
[10]Ibid [23]–[24].
[11]Ibid [21].
[12]Ibid [28].
[13]Ibid [29].

Proposed grounds of appeal

In his written case, the applicant sought leave to appeal against his sentence on the following proposed grounds:

1. The judge erred in failing to apply the principle of totality.

2. The judge erred in misunderstanding the gravity of the offending by incorrectly stating the applicable speed limit.

3. The judge erred in imposing a sentence that was manifestly excessive.

The principal challenge to the judge’s sentence related to charge 1 (reckless conduct endangering serious injury). That sentence — of 20 months’ imprisonment — was the subject of all three grounds of appeal, and was the focus of both the written and oral submissions made on the applicant’s behalf. In the applicant’s written submissions he also challenged the sentence imposed in relation to charge 15 (making a false report to police), under cover of ground 1 only. That challenge was not further developed in either the written or oral submissions. The applicant did not challenge the other sentences imposed on him.

Ground 1

The applicant submits that when parole is cancelled due to the commission of subsequent offending, the principle of totality applies in the determination of a term of imprisonment for subsequent offending. In particular, he says ‘the sentencing court must ask itself whether the combined effect of the original sentence and the proposed breach sentence is (dis)proportionate to the total criminality involved in the two sets of offences’.[14]
[14]Quoting DPP v Bowen (2021) 65 VR 385, [42] (Maxwell P, Priest, McLeish, T Forrest, and Walker JJA); [2021] VSCA 355.
The respondent submits that totality has no application because totality only arises where the offender is presently serving a sentence of imprisonment. At the time the subsequent sentences were imposed the applicant was not in that position. In oral submissions the respondent submitted that, even if the principle of totality applied, the judge took into account its substance by having regard to the sentence of imprisonment on the earlier offending and the reasons for which it was imposed. Therefore, there was no basis to conclude that the judge misunderstood the need to impose a proportionate sentence.

Decision on ground 1

The following chronology is relevant to the argument:
(a)The applicant was sentenced for the relevant earlier offending on 26 July 2019 and a sentence of 5 years and 6 months was imposed;
(b)On 26 July 2022, he was released on parole in respect of that sentence;
(c)On 21 February 2023, he was arrested and remanded for the current offending;
(d)On 22 February 2023, his parole was cancelled and he was required to serve out the balance of the earlier sentence in prison (being some 9 months);
(e)On 25 November 2023 the sentence for the 26 July 2019 conviction was completed and the applicant remained in custody on remand for the present offending;
(f)On 3 May 2024 he was sentenced for the current offending.
In respect of the period from arrest on 21 February 2023 until sentence on 3 May 2024: 277 days were spent under the original sentence and 160 days were recorded as pre-sentence detention for the current offending.
When a sentencing court is called to pass sentence on multiple offences, or is dealing with an offender who has been sentenced on another occasion and is still under sentence, the principle of totality requires the judge to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved and avoids a crushing sentence.[15] Where the offender is under sentence at the time that the second sentence is imposed, the relevant criminality that is being assessed is that which relates to both the extant sentence being served by the offender and the additional criminality involved in the offending for which the person falls to be sentenced.[16]
[15]Mill v The Queen; (1988) 166 CLR 59, 62–3 (Wilson, Deane, Dawson, Toohey, Gaudron JJ); [1988] HCA 70; Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J), 304 (Dawson and Gaudron JJ); [1997] HCA 26 (‘Postiglione’).
[16]Postiglione (1997) 189 CLR 295, 308 (McHugh J); [1997] HCA 26; DPP v Bowen (2021) 65 VR 385, 391 (Maxwell P, Priest, McLeish, T Forrest and Walker JJA); [2021] VSCA 355.
The application of the principle of totality does not reduce to a mathematical equation and involves an overall assessment that allows for a moderation of sentence. It is meant to avoid disproportionate sentences. Moderation is generally achieved through orders for cumulation or by allowing for concurrency. To ensure that the overall period of incarceration is not disproportionate, a sentencing judge must consider the extent to which sentences to be imposed are cumulative upon each other and, where appropriate, cumulative upon the sentence being served at the time. That task must also have regard to the extent to which the Sentencing Act1991 makes particular provision for cumulation.[17]
[17]For example, in respect of serious offenders or where there is a breach of parole.
As the above chronology reveals, at the time of sentence the applicant fell within the first kind of case (he was being sentenced for multiple offences) but not the latter as he had completed and was no longer serving his earlier sentence. Strictly speaking, no issue of cumulation or concurrency on that earlier sentence arose for the judge to consider. The judge plainly had regard to the extent to which orders for cumulation ought to be made in respect of the multiple offences for which the applicant was to be sentenced.
That said, at the time of the applicant’s arrest and remand on the present charges he was on parole. That parole was cancelled and he served out the remainder of the original sentence. Because he was under that sentence, the period of time between his remand on the current charges and the expiration of the earlier sentence (some 277 days) were not treated as pre-sentence detention for the current sentence. The applicant submits that the totality principle applies in these circumstances and it was an error for the judge not to apply it.
In Sepehrnia v The King this Court said:
Although a failure to consider and to apply correctly the principle of totality is capable of vitiating a sentence, it is for the appellant to establish that the error has been made. Such an error may be apparent where the judge makes no reference to totality, although reasons for sentence should not be read in an unduly critical way. Further, having regard to the individual orders for cumulation or the effective sentence, error may be shown in that the judge must have misapplied the principle to have arrived at the result. Given that what is a just and appropriate sentence must have regard not only to totality but to all other relevant considerations and that the outcome does not admit of one answer but may legitimately lie within a spectrum of available sentences, it must be a rare case that this Court could infer a failure to apply the principle of totality where the orders for cumulation and the total effective sentence are within range.[18]
[18][2024] VSCA 149, [54] (Priest and Niall JJA).
Informed by the context supplied by those observations the following two matters are important.
First, the point was not raised before the sentencing judge. Second, the judge said he had regard to the original sentence and was provided with the reasons for sentence given on the earlier occasion to which he referred.[19] Given the chronology, the applicant’s case did not fall within either of the two circumstances considered by the High Court in Postiglione, and it is therefore not surprising that the judge did not treat, and was not invited to treat, the case as one involving a conventional application of totality. The failure to mention totality was explicable and does not found an inference that the judge failed to address the need to impose a proportionate sentence on the applicant, having regard to all of the circumstances including the requirement that he serve out the original sentence.
[19]Reasons, [12].
Whether or not the circumstances fall within the concept of totality as it is presently understood is not the critical question. Rather, in order to succeed, the applicant has to establish that the judge ignored the earlier sentence and its potential to moderate the sentence to be imposed. The applicant has failed to make that good. The failure to refer to totality reflects the way the plea was conducted. The sentence was not disproportionate. The earlier sentence provided little basis for moderation. The criminality involved in the earlier offending was separate in time, and involved distinct offending and the punishment imposed in respect of it did not provide a strong reason to moderate the current sentence. The earlier offending involved violence with the use of a weapon[20] and was quite different to the current offending, although there remains a strong theme of anti-social and dangerous behaviour on the part of the applicant. This latter point reinforced the need for specific deterrence which operated as a counterpoint to totality.
[20]DPP v Nguyen [2019] VCC 1167.
I would grant leave to appeal on ground 1 but I would not uphold the ground.
In any event, as will become apparent when I address ground 3, even if I was minded to uphold ground 1, I would not impose a different sentence and would dismiss the appeal for that reason.

Ground 2

As just intimated, showing an error of a kind alleged by proposed ground 2 would not avail the applicant because I would not impose a shorter term, but I am not persuaded that the error for which he contends under this ground is established.
In his reasons for sentence, the judge said at one point ‘for most of the trip the speed limit was 100 kph’.[21] That was erroneous because the agreed summary stated that the posted speed limit was 110 kilometres per hour for most of the section of the freeway the applicant drove on.
[21]Reasons, [4].
The applicant submits that the judge, in making this error, misunderstood the gravity of the offending because the extent to which the driving exceeded the speed limit was relevant to the recklessness and whether the driving endangered serious injury to other road users.
I accept the submission of the respondent that the judge correctly understood the speed limit. In any event, the extent to which the driving exceeded the speed limit was not relied upon by the prosecution as relevant to the gravity of the offending.
The judge said that the details of the offending appeared in the summary of prosecution opening which was marked as an exhibit and which set out the applicable speed limit.[22] In the paragraph immediately after the one relied on by the applicant, the judge said that the applicant was travelling at a speed considerably greater than 110 kilometres per hour.[23] Third, the prosecution stated, both in writing and in oral submissions, that they had not alleged that the applicant was travelling at a particular speed nor did they rely on the extent to which he exceeded the speed limit as relevant in itself. Rather, the prosecution was advanced on the basis that the applicant was travelling at a speed that was considerably greater than surrounding traffic, and involved carelessly changing lanes and aggressively tailgating.
[22]Ibid [2].
[23]Ibid [5].
In his summary the judge said this:
Focussing on the main charge of reckless endangerment, I have looked at the dashcam footage on four occasions. Your driving was simply appalling. You travelled at a great speed over a considerable distance, narrowly avoiding one accident and having another. Through sheer good fortune, it appears no one was injured. You used the highway as a racetrack.[24]
[24]Ibid [27].

The applicant accepted, correctly in my view, that these findings were unimpeachable and fairly reflect the objective gravity of the offending captured by charge 1. I do not accept it to be arguable that the judge misunderstood the gravity of the offending. The better view is that when read in the context of the reasons as a whole the reference to ‘100 kph’[25] was a slip and the judge understood the true position. If there was a mistake it was immaterial given the judge’s overall assessment of the offending and how the prosecution presented its case.
[25]Ibid [4].
Ground 2 must be rejected and I would refuse leave to appeal in respect of it.

Ground 3

The applicant submits that, having regard to a number of matters, the sentence on charge 1 is manifestly excessive. In his written case he refers to the objective gravity of the offending; the applicant’s plea of guilty; the applicant’s matters in mitigation, including Bugmy v The Queen[26] considerations; totality; proportionality and parsimony; current sentencing practices; and that the maximum penalty for the offence was five years’ imprisonment.
[26](2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); [2013] HCA 37 (‘Bugmy’).
The applicant in his submissions recognises the stringency of the test and that in order to succeed he must establish that the sentence imposed on charge 1 was wholly beyond the range available in the reasonable exercise of the sentencing discretion.
He contends that the offending trended towards the lower end of objective gravity, noting there was no independent evidence as to the precise speed of the vehicle and there was an absence of circumstances of aggravation such as the presence of alcohol, drugs or attempts to avoid police.
He relies on the early guilty plea, the positive steps towards rehabilitation taken by the applicant in custody and his personal circumstances, which the judge accepted attracted the principles explained in Bugmy.[27] He notes that the maximum sentence for the offence was 5 years imprisonment and the judge imposed a sentence which, in mathematical terms, amounted to 33 per cent of the maximum penalty. In relation to current sentencing practices he notes that many prosecutions for this offence are prosecuted in the Magistrates Court and this sentence would be in the top 5 per cent of terms imposed in that Court. He points to the sentence imposed by the County Court in DPP v Pusey, in which an offender had driven a car in moderate traffic, weaving between vehicles, changing lanes without indicating, and driving at speeds of up to 300 kilometres per hour, received a term of imprisonment of 8 months on the charge of reckless conduct endangering serious injury.[28]
[27]Ibid.
[28][2021] VCC 478 (Judge Wraight).
I do not accept the applicant’s submission that the sentence imposed on charge 1 was manifestly excessive. The offending required a period of imprisonment. And a term of 20 months was lenient.
The charge of recklessly endangering serious injury can cover a variety of circumstances, only some of which involve the operation of a motor vehicle. Where as in this case the offending arises from driving a car on a freeway, the risk of danger is often large. Here, the applicant was driving his car at speeds which were considerably greater than surrounding vehicles on a busy stretch of freeway and engaged in aggressive and unpredictable driving. The risk of serious injury is obvious. The collision that ultimately ensued could very easily have resulted in very serious injury for the occupant of that car or other road users. The driver lost control of her car as a result of the collision and it rebounded in a way that could have easily resulted in a further collision with oncoming traffic. The judge’s description of the driving as ‘appalling’[29] was entirely apt, and the risk it involved was high. The objective gravity was significant and certainly not towards the lower end.
[29]Reasons, [27].
Importantly, offending of this kind required close attention to general deterrence to deter reckless and cavalier driving at speed on public roads. The important need for general deterrence meant that it was legitimate to temper the moderating impact of the personal circumstances of the applicant. Nevertheless, it was necessary to give some weight to the very traumatic and difficult upbringing that the applicant had suffered and its effects may be accepted as ongoing.
On the other hand the ‘dreadful’[30] criminal record of the applicant meant that specific deterrence was also a factor that needed to be given prominence. It may be accepted that as a result of this offending the applicant’s parole was cancelled and he was returned to prison. The balance of the earlier sentence was not reckoned as pre-sentence detention but it was necessary to have regard to the fact that the applicant had been in prison since his arrest. Against that of course was that the breach of parole, although it was an offence in its own right, reinforced the importance of specific deterrence. Notably, the judge made the breach of parole offence fully concurrent, notwithstanding s 16(1A) of the Sentencing Act, which provides that the general rule of concurrency not apply where the offence is committed while a person is released under a parole order.[31] No doubt this approach was informed by the fact that the breach of parole pointed out the need for specific deterrence which was also a matter that was relevant to charge 1.
[30]Ibid [28].
[31]Sentencing Act 1991, s 16(1A).
In light of the applicant’s dreadful history and the seriousness of the offence, and notwithstanding that he could call in aid some substantial mitigating factors based on his personal circumstances, the sentence of 20 months was by no means excessive. It was not out of step with other sentences imposed in the County Court, and those imposed in the Magistrates’ Court are of no assistance.
For these reasons ground 3 must fail and I would refuse leave to appeal in respect of it.
Furthermore, for the reasons given above, had it been necessary for this Court to resentence the applicant, I would not have imposed a shorter term of imprisonment on charge 1.
In relation to the sentence imposed on charge 15, I note that the applicant did not develop any argument in relation to the appropriate sentence for that charge. Nonetheless, it is appropriate to record that I would not have imposed any different sentence in relation to charge 15. I consider the sentence imposed for that offence was relatively lenient. Making a false report to police is a serious offence, with impacts on the administration of justice. It requires attention to both general and specific deterrence, thus again the applicant’s criminal history is relevant, in the manner described above. The maximum penalty is 1 year’s imprisonment. In the circumstances, a sentence of 3 months’ imprisonment was plainly appropriate. As for the order for cumulation, it reflected the fact that the timing and nature of the offending was quite distinct from the offending the subject of charge 1. Again, had it been necessary for this Court to resentence the applicant, I would not have imposed a shorter term of imprisonment.

Conclusion

The applicant has failed to persuade me that grounds 2 and 3 are sufficiently arguable to justify the grant of leave and for that reason leave to appeal against the sentence on those grounds must be refused. I would grant leave to appeal on ground 1, but dismiss the appeal on that ground.

WALKER JA:

I have had the considerable benefit of reading Niall CJ’s reasons in draft form. I agree with his Honour that, for the reasons he gives, leave to appeal on grounds 2 and 3 should be refused. I also agree that leave to appeal on ground 1 should be granted but the appeal should be dismissed; however, my reasons for so concluding differ somewhat from his Honour’s reasons.
In relation to ground 1, I would grant leave to appeal but dismiss the appeal pursuant to s 281(2) of the Criminal Procedure Act 2009. That is because, although I consider that the judge erred by failing properly to take into account the cancellation of the applicant’s parole as an aspect of the principle of totality, I am not satisfied that any different sentence should be imposed.
In light of that conclusion, it is necessary to deal only briefly with the judge’s error.
The applicant was arrested on 21 February 2023. At that time he was on parole for his earlier offending. His parole was cancelled and he was returned to custody. He remained in custody prior to his sentence on 3 May 2024. Thus, in the period from 21 February 2023 to 3 May 2024:
(a)277 days were spent under the original sentence and were thus not ‘pre-sentence detention’ within the meaning of s 18 of the Sentencing Act; and
(b)160 days were recorded as pre-sentence detention for the current offending.
As Niall CJ explains, the principle of totality operates where a sentencing court is dealing with an offender who has been sentenced on another occasion and is still under sentence. In such cases the principle requires the judge to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved and avoids a crushing sentence. In addition, the principle of totality can apply in circumstances where the offender is no longer serving the sentence for the earlier offending. This includes circumstances where the offender was on remand for the present offending, while at the same time serving a term of imprisonment for another offence. Such a period of imprisonment cannot be claimed as pre-sentence detention under s 18, but is nonetheless relevant to the sentencing discretion as an aspect of the principle of totality.[32]

[32]See, eg, Kenyeres v The King [2023] VSCA 25, [59]–[64] (T Forrest JA and J Forrest AJA); Lowell (a pseudonym) v The Queen [2022] VSCA 134, [30]–[33] (Priest and T Forrest JJA); El-Waly v The Queen(2012) 46 VR 656, 674 [111]–[112] (Neave and Weinberg JJA and Bell AJA); [2012] VSCA 184; R v Renzella [1997] 2 VR 88, 98 (Winneke P, Charles and Callaway JJA). The applicant did not rely on these authorities in this Court, nor were they drawn to the judge’s attention. Nonetheless, the applicant’s case on appeal was consistent with these authorities.

In the present case the judge was required to take into account the 277 days that the applicant was on remand for the current offences while at the same time serving a term of imprisonment for the earlier offending. As explained above, those 277 days did not constitute pre-sentence detention under s 18; nonetheless they raised a distinct issue of totality.[33]
[33]I note that there is some debate about whether time spent in custody both on remand and serving an earlier sentence should be regarded as an aspect of the ‘Renzelladiscretion’, or whether it is better understood as a particular application of the principle of totality: see, eg, Lowell (a pseudonym) v The Queen[2022] VSCA 134, [33] (Priest and T Forrest JJA). It is not necessary for me to enter into that debate in the present case.
In my view, the judge did not have regard to this aspect of the applicant’s circumstances. Although his Honour referred to the sentencing reasons in relation to the applicant’s earlier offending, and although the judge was aware that the applicant’s parole had been cancelled, his Honour made no reference to the 277 days of detention that did not constitute pre-sentence detention.
I accept that sentencing judge’s reasons are not to be read with an ‘overly zealous eye for error’.[34] I also accept that a ‘failure to expressly mention a factor that was so obviously a part of the sentencing synthesis that the parties themselves barely alluded to it’[35] would not demonstrate error. While on one view the principle of totality might be so described, I do not think that the question is to be addressed at such a high level. Rather, the question is whether the judge properly took into account the effect of the cancellation of the applicant’s parole and the relevance of the 277 days he spent in custody that could not be characterised as pre-sentence detention. These were not, in my view, matters that were so obviously a part of the sentencing synthesis that it would be proper to conclude that the judge must have taken these issues into account, even though he did not expressly refer to them. Nor do I consider that the judge’s reference to the sentencing reasons for the earlier offending demonstrates that his Honour applied the principle of totality so as to take into account the earlier offending in the sentencing synthesis.
[34]Cuthbertson v The Queen [2019] VSCA 104, [58] (Emerton JA, Priest JA agreeing at [1]) (‘Cuthbertson’).
[35]Cuthbertson [2019] VSCA 104, [58] (Emerton JA, Priest JA agreeing at [1]).
It is appropriate, however, to emphasise that, as Niall CJ points out, the application of the principle of totality in circumstances where the applicant’s parole for his earlier offending had been cancelled, and the significance of the 277 days of detention that was not pre-sentence detention, was not raised with the judge. That plainly explains why his Honour did not deal with this issue.
Notwithstanding the identification of error, I would not impose any different sentence on either charge 1 or charge 15 in the present circumstances.
My reasons for so concluding in relation to charge 1 are captured by the reasons given by Niall CJ at paragraphs 38 to 42. In short, although I have taken into account the applicant’s 277 days in custody that cannot be characterised as pre-sentence detention, the following matters result in my conclusion that no different sentence should be imposed on charge 1:
(a)the seriousness of the offending;
(b)the applicant’s criminal history;
(c)the need for both specific and general deterrence; and
(d)the quite distinct nature and timing of the earlier offending, which means that even if the applicant had been sentenced at the same time for both the earlier offending and the present offending, significant cumulation of the sentences would have been warranted.
My reasons for so concluding in relation to charge 15 are captured by the reasons given by Niall CJ at paragraph 45.
For these reasons I would dismiss the appeal on ground 1.

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[2025] VSCA 3

13 February 2025