Nicholson v The Queen
[2017] VSCA 238
•6 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0007
| STEPHEN WILLIAM NICHOLSON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KAYE and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 September 2017 |
| DATE OF JUDGMENT: | 6 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 238 |
| JUDGMENT APPEALED FROM: | DPP v Nicholson (Unreported, County Court of Victoria, Judge Parsons, 16 November 2016) |
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CRIMINAL LAW — Appeal — Sentence — Two indictments — Burglary, theft, deal with proceeds of crime and related offences — Breach of bail — Totality — Whether judge erred in ordering total cumulation of total effective sentences on each indictment — Whether manifestly excessive — Deprived upbringing — Repeated serious offending over extended period — Extensive criminal history — Prior rehabilitation opportunities — No error — Appeal dismissed — Sentencing Act 1991 (Vic) s 16(3C) — Bugmy v The Queen (2013) 249 CLR 571.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant For the Crown | Mr P J Smallwood Mr B L Sonnet | Greg Thomas Barrister & Solicitor The Office of Public Prosecutions |
PRIEST JA:
KAYE JA:
COGHLAN JA:
The appellant pleaded guilty in the County Court to a number of charges contained in two separate indictments. In relation to the first indictment (F 13147832), he pleaded guilty, on 1 February 2016, to one charge of burglary, one charge of theft, and one summary charge of committing an indictable offence while on bail. In relation to the second indictment (E 13973880), on 9 March 2016, the appellant pleaded guilty before the same judge to seven charges of knowingly dealing with the proceeds of crime, seven charges of obtaining property by deception, one charge of burglary, two charges of theft, and one summary charge of contravening a condition of bail.
On 16 November 2016, after a series of hearings in the Koori Court Division of the County Court, the appellant was sentenced, in respect of both the offences contained in both indictments, to a total effective sentence of four years and seven months’ imprisonment, with a non-parole period of three years, as follows:[1]
[1]DPP v Stephen Nicholson (Unreported, County Court of Victoria, Judge Parsons, 16 November 2016) (‘Reasons’).
Indictment
F13147832Offence Maximum Sentence Cumulation 1 Burglary [Crimes Act 1958 s 76(1)] 10 years’ imprisonment 18 months’ imprisonment Base 2 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 12 months’ imprisonment 3 months Summary charge Commit indictable offence whilst on bail [Bail Act 1977 s 30B] 3 months’ imprisonment or 30 penalty units 3 months’ imprisonment - Total Effective Sentence Indictment F13147832:
1 year and 9 months’ imprisonment
Other relevant orders: Sentence imposed on E13973880 and F13147832 to be served cumulatively
Indictment
E13973880Offence Maximum Sentence Cumulation 1 Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)] 15 years’ imprisonment 2 months’ imprisonment 1 month 2 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment 1 month imprisonment -
3 Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)] 15 years’ imprisonment 2 months’ imprisonment 1 month 4 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment 1 month imprisonment - 5 Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)] 15 years’ imprisonment 2 months’ imprisonment 1 month 6 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment 1 month imprisonment - 7 Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)] 15 years’ imprisonment 2 months’ imprisonment 1 month 8 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment 1 month imprisonment - 9 Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)] 15 years’ imprisonment 2 months’ imprisonment 1 month 10 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment 1 month imprisonment - 11 Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)] 15 years’ imprisonment 2 months’ imprisonment 1 month 12 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment 1 month imprisonment - 13 Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)] 15 years’ imprisonment 2 months’ imprisonment 1 month 14 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment 1 month imprisonment - 15 Burglary [Crimes Act 1958 s 76(1)] 10 years’ imprisonment 18 months’ imprisonment Base 16 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 12 months’ imprisonment 3 months 17 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 12 months’ imprisonment 6 months Summary charge Contravene condition of bail [Bail Act 1977 s 30A] 3 months’ imprisonment or 30 penalty units 1 month imprisonment - Total Effective Sentence Indictment E13973880:
2 years and 10 months’ imprisonment
Other relevant orders: Sentence imposed on E13973880 and F13147832 to be served cumulatively
Total Effective Sentence (both indictments):
4 years and 7 months’ imprisonment
Non-Parole Period:
3 years
Pre-Sentence detention declaration:
228 days
6AAA Statement: 6 years’ imprisonment, non-parole period of 4 years
The appellant, by leave, appeals against the sentence on a single ground, namely:
The sentencing judge erred by ordering that the entirety of the ‘total effective sentence’ imposed in relation to the charges on Indictment No E13973880 be served culmulatively to the entirety of the ‘total effective sentence’ imposed in relation to the charges on Indictment No F13147832. That order:
(a)offended the principle of totality; and
(b)led to the imposition of an overall ‘total effective sentence’ (4 years and 7 months) that is manifestly excessive.
Circumstances of offending
The offences, alleged in Indictment No F 13147832 (‘the first Indictment’) were committed on Saturday 14 August 2015. On that day, at approximately 9:30 pm, the appellant attended the South Melbourne Central Shopping Centre in Cecil Street, South Melbourne. He was wearing a cap and carrying a backpack, but he was not disguised. He entered the shopping centre through an after-hours access store, and walked around the ground floor and level one of the centre for about 15 minutes before leaving the centre through the same door.
At approximately 11:47 pm, on the same evening, the appellant returned to the shopping centre and entered again through the after-hours access door. He was again carrying a backpack and wearing a cap but was not disguised. He walked up a stairwell to level 6. There he approached a business premise called ‘Spotlight Photography’. He applied force to a door of the premises, causing it to open without any damage, and then entered the premises. Once inside the premises, the appellant used a screwdriver to open a deadlocked storage room door. He entered that room, and stole a number of cameras and photographic material, and $250 cash, which he put into his backpack. He then picked up a bottle of bleach, and splashed it around the storage room, before departing in possession of the stolen items. He was captured on CCTV entering and leaving the shopping centre on each occasion, and his face was clearly visible in the footage.
After leaving the centre, the appellant went to Armadale where he sold the stolen items to an unnamed acquaintance. The stolen items were valued at $112,645.70.
At the time he committed those offences, the appellant was on bail in respect of the matters the subject of Indictment E 12473880 (‘the second Indictment’) and he was also subject to a community correction order imposed on 2 June 2015.
The appellant was subsequently arrested on 8 September 2015 and interviewed at St Kilda Police Station. There he made full admissions regarding the incident. He told the police he knew he could get into the centre and that there was camera equipment at Spotlight Photography. He described how he entered the premises and stole the cameras and lenses and cash. He told police that he sold the goods to someone in Armadale for about $1,000. He used that money to pay his rent.
Subsequently, on 7 December 2015, at a committal mention hearing, the charges against the appellant were resolved, and the matter proceeded by a straight hand up brief. At his plea, the prosecution accepted that the appellant had pleaded guilty to the charges at the earliest opportunity.
Charges 1, 3, 5, 7, 9, 11 and 13 on the second Indictment (E 13973880) concern offences of knowingly dealing with the proceeds of crime committed by the appellant between 6 July 2013 and 31 July 2014. On various dates and at various locations during that period, the appellant attended EB Games in possession of items such as figurines, video games and Apple electronic products suspected of being the proceeds of crime. On each occasion, the appellant told the relevant sales assistant that he was the owner of the items and that he wished to sell them to EB Games as second hand goods. On each occasion, he produced a Victorian driver’s licence as proof of his identity, and he signed his name on a receipt. On each occasion, the appellant was either paid in cash, or he received funds paid into his debit card. As a result of those transactions the appellant received a total of $4,670 from EB Games. The receipt by the appellant of those payments were the subject of charges 2, 4, 6, 8, 10, 12 and 14 on the indictment, namely, obtaining property by deception.
The appellant was arrested in respect of those offences on 27 November 2014. When interviewed, he made full admissions, stating that he made over $1,000 from the offending. His co-offender (his then 24 year old partner) was also arrested and she made full admissions to stealing items from Target and selling them to EB Games. She was sentenced to 4 months’ imprisonment, which was reduced on appeal to an 18 month community correction order.
The offences, that were the subject of charges 15 and 16 on the second Indictment, were committed on 10 October 2014. At approximately 11:30 pm on 9 October, the appellant went to Acland Arcade in St Kilda. He jemmied open the glass sliding doors to the arcade, entered it, and walked around for a while looking at the retail stores before departing. Subsequently, at 3:30 am on the next day, he returned to the arcade, gained entry and again walked around looking at the shops. He tried to open roller doors to several shops, but was unsuccessful in doing so. He then entered a small storeroom under the escalator and made a hole in the plaster wall, which enabled him to gain entry to the Vodafone store. That conduct was the subject of charge 15 (burglary). Once inside the Vodafone store, the appellant stole 84 mobile phones, $3,200 cash and other miscellaneous items. The total value of the stolen goods and cash was $42,837.95. That conduct was the subject of charge 16 (theft). None of the stolen items or cash were recovered. The incident was captured on CCTV footage.
The appellant was arrested and interviewed in respect of charges 15 and 16 on 30 July 2015. He made no comment to the allegations put to him by the police, but he conceded that the person depicted on the CCTV footage looked like him.
The offence alleged in charge 17 on the second Indictment (theft) was committed by the appellant on 12 November 2014. At approximately 2:00 am on that day, he went to Southern Cross Railway Station. He walked around the station area for over an hour, entering two stores and loitering in the station foyer. At approximately 3:15 am, he went to the station’s locker hire area. There he used implements to force open a locked door and a cash safe at the locker pay station. He stole at least $500 cash in the form of coins and notes from the safe. He then went to a nearby public toilet, where he filled a coffee cup with cleaning fluid from a cleaner’s trolley. He returned to the pay station, and washed and wiped down the machine with the fluid before leaving the area.
Notwithstanding the appellant’s attempts to expunge his fingerprints, police subsequently located his prints on the pay station and cash box, and he was identified in CCTV footage. As mentioned, the amount of cash stolen was at least $500 and the damage to the machine and locker room was $10,833. The appellant was arrested on 30 July 2015. When interviewed, he denied involvement in the offence, but he conceded that the person depicted on the CCTV footage looked like him.
Summary charge number 1 alleged that the appellant contravened bail. On 5 November 2014, he was granted bail at the Melbourne Magistrates’ Court on an unrelated matter, with a condition that he reside at an address in South Melbourne. On 25 November, police attended at that address, and were told by the occupier that the appellant had not resided at that address for the previous 10 days.
On 29 February 2016, at a committal mention hearing, the matters on the second indictment resolved, and they proceeded by way of a straight hand up brief.
The proceeding in the County Court
The appellant, having pleaded guilty to the charges on the first Indictment, came before the County Koori Court on 1 February 2016. On that date, a plea was made on his behalf, and the appellant had a sentencing conversation with the two Elders who were presiding with the judge. The matter was then adjourned to 9 March to enable the second indictment to be uplifted to the County Court, so that the two matters could be heard together.
As mentioned, the committal mention, in relation to that indictment, took place on 29 February. The matter proceeded as a straight hand-up brief. The matters the subject of the two indictments, returned to the County Koori Court on 9 March and 10 March. The Court was provided with a letter by Odyssey House Victoria dated 7 March 2016, confirming that the appellant had been deemed suitable to attend Odyssey House Victoria’s Therapeutic Community Residential Rehabilitation Program. Accordingly, the appellant was bailed to reside at Lower Plenty Odyssey House Rehabilitation Centre.
On 4 April 2016, Odyssey House provided a report that the appellant had been admitted to the program on 10 March, and that he had remained drug free since. The report stated that the appellant demonstrated the values required of residents, and that he was engaged with the institution’s curriculum which comprised learning conflict resolution, effective communication skills, emotional regulation and relapse prevention.
When the matter returned to the County Koori Court on 18 April, that letter was tendered to the Court. The matter was then further adjourned until July.
In the meantime, on 20 May 2016, the appellant was asked to leave Odyssey House, because he had made a threat of violence against another resident. On the next day he applied to return to Odyssey House. It would appear that that application was unsuccessful. When the matter came before the County Koori Court in July, the appellant had failed to answer his bail, and on 25 July, he was remanded in custody. Subsequently, Odyssey House provided a further letter dated 18 August confirming that the appellant had been deemed suitable to attend Odyssey House Victoria’s Therapeutic Community Residential Rehabilitation Program.
On 5 September, when the matter returned to the County Koori Court, it was adjourned to 7 November, the appellant was released in order that he could attend Odyssey House. However, the appellant did not attend Odyssey House, and failed to attend Court on the adjourned date. Accordingly his bail was revoked. Ultimately, the matter came again before the Court on 16 November. Further matters were put in support of his plea. The judge then sentenced the appellant on the charges on both Indictments.
Previous convictions
The appellant was born in June 1978, and at the time of sentence was 38 years of age. He had a substantial previous criminal record, such that the Victoria Police criminal history report covered some 29 pages. The appellant’s first convictions dated back to April 1996. The large majority of his previous convictions were for offences of burglary, theft and other forms of dishonesty. He had been sentenced on 16 separate occasions to immediate terms of imprisonment, and on a number of other occasions, he had been sentenced to a term of imprisonment, which had been wholly suspended. The most recent matters comprised convictions by the Melbourne Magistrates’ Court on 2 June 2015 for three charges of burglary, eight charges of theft, five counts of intentionally damaging property, three charges of attempting to obtain property by deception, two charges of going equipped to steal, and one charge of using heroin. He was sentenced to an aggregate 200 days‘ imprisonment, with time held in custody 198 days to be reckoned as part of the term of imprisonment already served.
The plea
The focus of the plea, made on his behalf, was on the appellant’s severely deprived and traumatic background and upbringing, and on the effect that those circumstances had had on the appellant’s subsequent pattern of offending.
The appellant, who is a member of the Wurundjeri people, was born in Melbourne. His parents divorced when he was two years of age, and he was raised by his mother. In the years that followed, the appellant’s mother had a number of different partners who were violent towards the appellant and his mother. The appellant witnessed his mother being violently assaulted on a number of occasions when he was between the ages of 7 years and 16 years. On one occasion, he saw his mother’s partner strike her with such force that he broke her nose. In addition, the appellant was sexually molested by a member of his family when he was just commencing primary school. As a result of those circumstances, the appellant’s mother from time to time sent him away to live with various aunties so that he could escape from the violence. During that time he lived with at least four different aunties from the age of 12 years.
The appellant left his family home at the age of 16 years. He commenced to live in a rented caravan at the back of the home of a friend, where he remained for about two years. Subsequently, he frequently moved home, and he has never had stable independent accommodation.
The appellant’s personal life has also been marked by instability and drug addiction. He has had three significant partners. His first relationship lasted for four years, during which the couple had three children. The second relationship lasted for two years, and produced two children. The appellant’s most recent relationship continued for five years and produced two children.
After leaving school, the appellant had been employed in roof tiling, brick labouring and cabinet making. His longest period of employment was with Nirvana Solid Timber Frames for three to four years between the ages of 17 years and 21 years. He was last employed with Cleanaway, a waste disposal business, for a period of two years. That employment ceased in 2009.
The appellant commenced using cannabis at the age of 12 years. He continued to smoke that drug socially. He also abused alcohol to the age of 24 years. He began to use heroin at the age of 21 years, and became addicted to that drug. As a result he was on the methadone program for a period of 10 years. He had also used methylamphetamine.
The appellant was examined by Dr Aaron Cunningham, a forensic psychologist, in February 2014. At that time, the appellant was awaiting an appeal against a sentence imposed on him for offences of dishonesty. Dr Cunningham’s report was tendered and relied on in the present matter.
In that report, Dr Cunningham concluded that the appellant presented with symptoms of depression and with sexual abuse trauma. He considered that the appellant would benefit from engagement with psychological intervention to address his perceptions of abandonment by his mother, to improve his symptoms of depression, and to address his unresolved issues relating to the sexual abuse to which he had been subjected when he was young.
Dr Cunningham carried out a psychometric assessment. The result of the assessment was that, on the verbal comprehension index, 95% of his age peers would have done better than the appellant; on the perceptual reasoning index, 45% of his age peers would have done better; on the working memory index, 70% of his age peers would have done better; and on the processing speed index, 96% of his age peers would have done better.
Dr Cunningham noted that the appellant’s full scale intellectual quotient was assessed at 82, so that 88% of his age peers would do better. However the test was not a valid measure of his intelligence, because of the significant differences between the index scores. Dr Cunningham concluded that the testing had indicated a verbal learning disorder.
In conclusion, Dr Cunningham concluded that the appellant had symptoms of depression and sexual abuse trauma, resulting from the physical violence by his mother’s partners, and the sexual abuse to which he had been subjected. His perceptions of abandonment and depression were aggravated during times of breakdowns in his relationships. His symptoms of depression were perpetuated by his drug and alcohol abuse, and the related instability of his accommodation and employment. The appellant presented as being overwhelmed when encountered with stressors, and he was unable to plan long term goals.
Dr Cunningham noted that there were some positive protective factors, particularly, that the appellant’s mother was supportive, that the appellant was motivated to engage in drug and alcohol and psychological intervention, and that he was motivated in relation to his latest partner and their children. Dr Cunningham considered that the appellant would benefit from a disposition that facilitated his rehabilitation, and, in particular, he would benefit from psychological intervention, and from drug and alcohol counselling.
Reasons for sentence
In his reasons for sentence, the judge set out the circumstances of the offending as charged in each indictment. The judge noted that the appellant had pleaded guilty, that his plea was accompanied by remorse, and that generally he had made admissions when interviewed by the police. The judge referred to Dr Cunningham’s report, the appellant’s history, and the letters from Odyssey House.
The judge accepted that the principles stated by the High Court in Bugmy v The Queen[2] were applicable to the appellant’s sentence, in light of the systemic deprivation and living circumstances which the appellant had endured as a very young person. His Honour stated:
Accordingly you derive the benefit of the considerations that are set out in the case of R v Bugmy, given what can be regarded as your systemic deprivation and the living circumstances that you endured as a very young person. Clearly they have continued over time, and I think you have only ever been employed for a short time and that was some years ago. Apart from that your life seems to be bedevilled by matters of great personal crises, drug and alcohol addiction and homelessness.[3]
[2](2013) 249 CLR 571 (‘Bugmy’).
[3]Reasons [42].
The judge further stated that while the question of rehabilitation was of great significance, the principles of general deterrence were of considerable importance, and the protection of the members of the community was also relevant. The judge noted that the offences, to which the appellant had pleaded guilty, were serious, and that there was no alternative to the imposition of custodial sentences.[4]
[4]Ibid [44]–[46].
Submissions
In support of the ground of appeal, counsel relied on the circumstance that the appellant had had an appalling background, and that during his childhood he had been physically and sexually abused and he had witnessed his mother being violently assaulted. Counsel noted that the appellant had been diagnosed with a significant verbal learning disorder, which inhibits his ability to overcome his deprived background. He also suffers from symptoms of depression and from childhood sexual abuse trauma, and he is of low intelligence.
Counsel acknowledged that save for one exception, it was not submitted that there was any error in the individual sentences imposed by the judge, and the orders for cumulation made on each individual charge in each indictment. However, it was submitted that the judge fell into error by ordering that the entirety of the total effective sentence, imposed in relation to the charges on one indictment, be served cumulatively to the entirety of the total effective sentence imposed on the charges in the other indictment. It was submitted that notwithstanding s 16(3C) of the Sentencing Act 1991 (Vic), that order constitutes a sentencing error, and resulted in an overall total effective sentence that was manifestly excessive. In particular, it was submitted that the cumulation of the sentences failed to pay regard to the principles of totality, and failed to give adequate weight to the appellant’s background, psychological presentation, pleas of guilty, remorse and family circumstances. Counsel noted that, at the plea, the prosecution had initially indicated to the judge that a sentence, combining a term of imprisonment with the imposition of a community correction order, would have been appropriate. That concession, it was submitted, was relevant in support of the proposition that the total effective sentences imposed on the appellant significantly exceeded those that were necessary. Accordingly, it was submitted that the total effective sentence imposed on the appellant was manifestly excessive.
Counsel for the appellant further submitted that if the appellant’s appeal was allowed, a lower individual sentence should be imposed on the summary offence of committing an indictable offence on bail. It was submitted that the judge erred by imposing the maximum sentence available on that charge, which failed to take into account the appellant’s guilty plea and the other mitigating circumstances referred to.
In response, counsel for the respondent noted that the judge had correctly applied the principle stated by the High Court in Bugmy and gave appropriate weight to those principles. On the other hand, the appellant’s offending was serious, he had a very lengthy criminal record, with numerous previous convictions for matters involving dishonesty, and he had already received a number of Court dispositions including terms of imprisonment and community based orders. In those circumstances, the total effective sentence imposed by the judge could be regarded as very lenient, no doubt reflecting that the judge gave full weight to the principle stated in Bugmy.
Analysis
The principles, that apply to the ground of appeal relied on by the appellant, are well established and not in issue in this appeal.
In order to establish that the total effective sentence imposed on the appellant was manifestly excessive, the appellant must demonstrate that that sentence was wholly outside the range of sentences available to the judge, so that it was not reasonably open to the judge to impose that sentence. That test has been, properly, characterised as being a stringent test, which is difficult to make good, given the range of discretionary factors that must be taken into account and synthesised by a judge in determining the sentence in an individual case.[5]
[5]See, eg, Clarkson v The Queen (2011) 32 VR 361, 384 [89].
The principle of totality applies where a judge is required to sentence an offender for more than one offence. It applies whether or not the offences are related, or have been committed on separate occasions and in different circumstances. The principle requires a sentencing judge in such a case, having passed individual sentences for each offence, to review the total effective sentence, in order to ensure that it is just and appropriate in the circumstances.
The principle of totality was discussed by the High Court in Mill v The Queen.[6] In that case the appellant had committed three armed robberies, two in Victoria and one in Queensland, in close consecutive order. He was sentenced in respect of the Victorian offences. After being released in Victoria, he was sentenced in Queensland. The judge did not take into account the sentence, imposed in respect of the Victorian sentence, in fixing the head sentence for the Queensland robbery. The appellant successfully appealed to the High Court on the ground that the sentence so imposed infringed the principles of totality and accordingly was manifestly excessive. The Court, allowing the appeal, quoted, with approval, the following passage from D A Thomas, Principles of Sentencing[7] as follows:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.[8]
[6](1988) 166 CLR 59.
[7]Second Ed (1979), pp 56–57.
[8]Mill v The Queen (1988) 166 CLR 59, 63.
The principle of totality was further considered, at some length, by Redlich JA (with whom Coghlan and Macaulay AJJA agreed) in Azzopardi v The Queen.[9] There his Honour stated:
The rationale underlying the principle is that a ‘just measure’ of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct. Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. …
…
Accordingly, the principle requires the sentencing judge to determine an aggregate sentence that ensures that all recognised sentencing objectives will be sufficiently achieved, leaving no purpose in requiring the person to serve the balance of each individual sentence. The sentence is thus structured so that those additional portions of each individual sentence are served concurrently.[10]
[9](2011) 35 VR 43.
[10]Ibid 61 [61], 63 [68].
In the present appeal, three matters are not in dispute. First, it is accepted, by the appellant, that save for the sentence in respect of the summary charge on the second indictment (contravene a condition of bail), each of the individual sentences were appropriate, and the orders for concurrency and cumulation, on each of the two indictments, were appropriate. That is, there is no submission on behalf of the appellant that the individual sentences, and the total effective sentence, imposed in respect of the charges on the first indictment, or that the individual sentences, or the total effective sentence, imposed in respect of the charge on the second indictment, were inappropriate or erroneous. Rather, the sole focus of the appeal is on the order made by the judge for total cumulation between the total effective sentence, imposed on the first indictment, and the total effective sentence imposed by the judge on the charges in the second indictment.
Secondly, it is accepted by the respondent that the principle of totality still applies, notwithstanding s 16(3C) of the Sentencing Act 1991 which provides:
Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
In R v Mantini,[11] Callaway JA (with whom Phillips CJ and Batt JA agreed) considered that the requirement, in that subsection, for cumulation of sentences was a ‘prima facie’ rule which may be displaced so as to accommodate the principle of totality.[12]
[11][1998] 3 VR 340.
[12]Ibid 348.
Thirdly, it is accepted that the appellant was a person to whom should be applied the principles, established over a series of cases, and articulated by the High Court in Bugmy. In that case, the High Court was concerned with an appeal by an Aboriginal man, whose background had been characterised by alcohol abuse and violence when he was growing up, a lack of formal education, a history of head injury and auditory hallucinations, and a long record of convictions and incarceration for offences of violence. The plurality,[13] having referred to the oft cited statement of principles by Wood J in R v Fernando,[14] stated:
… The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
…
The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficulthttp:// - FTN.62. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[15]
[13]French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.
[14](1992) 76 A Crim R 58, 62–3.
[15]Bugmy, 594–5 [42]–[44].
In the present case, the materials, put to the Court, on the plea, in relation to the appellant’s background and circumstances, were quite scant. Nevertheless, they were sufficient to demonstrate that the appellant had suffered a most deprived and traumatic upbringing, marked by physical and sexual abuse and violence, which had resulted in ongoing and unresolved psychological issues that have affected his conduct throughout his adult life. As a consequence of that upbringing, he had lived a life marked by significant lack of stability in terms of his residence, his employment, and his personal relationships. Those problems had been exacerbated by long standing and unresolved abuse by the appellant of alcohol and drugs. As properly accepted by the respondent in this case, the sentencing judge was correct to accept that the principles stated by the High Court in the passage from Bugmy, to which we have referred, applied to the sentences to be imposed on the appellant.
It is trite, but important, to bear in mind that the principle of totality does not require that, in every case in which an offender is sentenced on more than one indictment, there be some degree of concurrency between the total effective sentences imposed in respect of each indictment. Rather, as already mentioned, the principle does no more than direct that a judge ensure that the total effective sentence imposed on the offender is just and appropriate, in order to serve the relevant purposes of sentencing, including specific deterrence, general deterrence, denunciation, protection of the community and rehabilitation.
In the present case, the offending, charged in the two indictments, took place over an extended period of time. It was repeated offending, and serious. Each offence was premeditated and planned. In the case of the offending in charges 1 and 2 on the first indictment, and charge 17 on the second indictment, the appellant attempted to conceal any trace of his involvement in the offending, albeit that those attempts were uncomplicated and unsuccessful. The value of the items stolen in the course of the offences in charges 15, 16 and 17 on the second indictment, and charges 1 and 2 on the first indictment, was quite substantial.
As mentioned, the appellant has a long history of convictions for similar offences of dishonesty. Notwithstanding that he had been sentenced on numerous occasions previously to terms of imprisonment, those sentences had been insufficient to deter the appellant from continuing to indulge in the same pattern of behavior. In addition, the appellant had, previously, been given a number of opportunities to rehabilitate himself, but each of them were unsuccessful. On 12 March 2014, the Melbourne County Court placed the appellant on a community correction order for 12 months. He breached that order within two months of it being made. More recently, the appellant had been placed on a community correction order by the Melbourne Magistrates’ Court on 2 June 2015. He breached that order by the offending in charges 1 and 2 on the first indictment, committed on 14 August 2015. As already noted, the appellant was given a further opportunity at rehabilitation in the course of the plea. On the initial occasion on which the matters were adjourned so that the appellant could attend Odyssey House, he appeared to do quite well. Due to an altercation with another resident, he was expelled. However, subsequently, in September 2016, when he was bailed to return to Odyssey House, he failed to attend there, and was involved in yet further offending.
Each of those matters were particularly relevant to the determination by the sentencing judge of the individual sentences, the orders for cumulation, and the total effective sentence. If there were no mitigating circumstances, the sentences imposed, including the total effective sentence, would be properly characterised as particularly lenient. However, there were, of course, important and significant mitigating circumstances. They included the appellant’s plea and remorse. Most importantly, it was correctly accepted that the principles stated in Bugmy applied to the appellant, in light of his appalling background characterised by deprivation and trauma during his childhood, which had an ongoing and recurrent effect on him during his life. As a consequence of that trauma, he has suffered depression and sexual abuse trauma. He has a significant verbal learning disorder which inhibits his ability to overcome his deprived background. Those circumstances necessarily explain the unstable, if not chaotic, nature of his life since leaving home at the age of 16, characterised by the lack of any permanence in his residence, stability in his relationships, or consistency in his employment record. It also explains, at least substantially, his resort to alcohol and drug abuse. Clearly those matters need to be addressed. Taken together, they constitute strong mitigating circumstances which no doubt explain the lenient sentences imposed in respect of each charge.
Nevertheless, giving those mitigating circumstances their full weight, but taking into account the nature and gravity of the appellant’s offending, and his previous convictions, in our view it could not be maintained that the total effective sentence or the non-parole period was not open to the judge, or that they exceeded a sentence that was necessary to fulfil the requirements of general and specific deterrence, protection of the community, denunciation and rehabilitation. In our view, the total effective sentence of four years and seven months’ imprisonment, with a non-parole period of three years, was well within the range of sentences appropriate for the circumstances of the appellant, giving full weight to the mitigating factors to which we have referred.
Accordingly, the appeal must be dismissed.
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