Norman v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0007

ROYDIN NORMAN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2023
DATE OF JUDGMENT:	8 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 213	[Second revision: 11 October 2023]
JUDGMENT APPEALED FROM:	[2022] VCC 2237 (Judge Hogan)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to 30 months’ imprisonment on charge of arson and 9 months’ imprisonment on charge of persistent contravention of Family Violence Intervention Order – Sentences wholly cumulative – Whether cumulation not comply with principle of totality – Whether double punishment – Whether compensation order in respect of fire damage excessive – Leave to appeal refused.

Sentencing Act 1991 ss16 (1), 86.

Postiglione v The Queen (1997) 189 CLR 295; Azzopardi v The Queen (2011) 35 VR 43; Veen v The Queen (No 2) (1988) 164 CLR 465; Josefski v Donnelly [2007] VSCA 6; Chalmers v Liang [2011] VSCA 439 referred to.

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Counsel
Applicant:	Mr J Connolly
Respondent:	Mr J Lewis
Solicitors
Applicant:	David Barrese & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

The applicant pleaded guilty, in the County Court, to one charge of arson and one rolled-up charge of persistent contravention of a family violence order. After a plea presented on his behalf, he was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment M12120345
1	Arson[1]	15 years	30 months’ imprisonment	Base
2	Persistent Contravention of Family Violence Order[2]	5 years’ imprisonment and 600 Penalty Units	9 months’ imprisonment	9 months
Total Effective Sentence:		3 years 3 months’ imprisonment
Non-Parole Period:		2 years 2 months
Pre-sentence Detention Declared:		432 days
Section 6AAA Statement:		Total Effective Sentence 4 years 9 months
Other Relevant Orders: 1. Compensation Order to pay compensation in the sum of $426,899.38 to AAI LIMITED trading as AAMI.

[1]Contrary to s197(1) and s197(6) Crimes Act 1958.

[2]Contrary to s125A Family Violence Protection Act 2008.

The applicant seeks leave to appeal on the following three grounds:
Ground 1: The order for cumulation was manifestly excessive
Ground 2: The order for cumulation had the effect of doubly punishing the applicant
Ground 3: The quantum of the compensation order was manifestly excessive

Circumstances of offending

The offending, that was the subject of charge 1, occurred on 8 October 2021, and the offending, that was the subject of charge 2, took place between 28 February 2022 and 31 March 2022. At the time of the offending, the applicant was 38 years of age. The principal victim of the charges was his estranged partner, AB.[3]
[3]A pseudonym has been used in place of the victim's name to prevent publication of any particulars likely to lead to the identification of any person involved in the proceeding or the subject of a Family Violence Intervention Order, prohibited by s 166(2)(b) of the Family Violence Protection Act 2008.
At the time of the offending the applicant had been in a de facto relationship with AB for more than 20 years. There were five children of the relationship, the eldest of whom was 21 years old, and the youngest three years of age. The applicant and AB had separated in May 2021, and they remained separated during the period leading up to the offending. At that time the applicant was residing in rented premises in Cheryl Court, Hampton Park, and AB was residing, with the children, in a rented property at Nilufa Court, Hampton Park (‘the Nilufa Court property’). AB was leasing those premises from Dung Tran. He had purchased the property in about 2017 for the sum of $525,000.
During the period of their separation, the applicant continued to visit the Nilufa Court property at various times of the day and night. On some occasions he would bang on the windows until someone answered the door. One such occasion occurred at 3 am. As a result of that conduct, AB made a successful application to the Dandenong Magistrates’ Court on 12 August 2021 for a family violence intervention order (‘FVIO’). An interim order was granted on 20 September 2021, however it had not been served at the time of the arson.
In mid to late September, the applicant attended the Nilufa Court property when AB was present there with her friend, Kevin Jefferson. The applicant commenced banging on the garage door and screaming out in abusive terms. Mr Jefferson raised the garage door, and a short conversation ensued between the applicant and him, following which Jefferson shook hands with the applicant and he left.
On 7 October 2021, after AB had been caring for the five children on seven consecutive days due to a COVID quarantine, arguments arose between her and the children. As a result, the applicant’s eldest daughter, Shakira, telephoned the applicant and requested that she and the other children be allowed to stay with him. The applicant and AB spoke on the telephone, and it was arranged that the children would stay with him.
AB then drove to the local shops with the youngest child, Riana, who was three years of age. While she was driving to the shops, she saw the applicant driving his vehicle. AB pulled over and the applicant reversed his vehicle to speak to her. In the course of the conversation the applicant criticised AB’s parenting, and told her that she only cared about her boyfriends. The applicant then drove off.
Later, AB drove her vehicle to the applicant’s house. She had a can of Woodstock bourbon in her vehicle, and an argument ensued between the applicant and AB concerning her drinking alcohol while driving. AB then drove home.
Approximately one hour later, the applicant drove to the Nilufa Court property. On arrival he observed Jefferson’s vehicle parked there. The applicant commenced to rev his vehicle loudly. He then walked towards the garage where he met AB. He told her that he had come to collect clothing for the children. As AB collected the clothing, the applicant said to her, through the security door, that Jefferson should come outside, because ‘I am going to smash him.’ Following further comments, the applicant drove away, but a short time later he returned to the Nilufa Court property. He paced up and down, shouting and making a noise, calling out for Jefferson to come outside. He then used a key to enter AB’s vehicle which, he believed, he was entitled to do. When Jefferson exited the house, the applicant reversed the vehicle towards him, braked the vehicle, and then repeated that manoeuvre. He then drove off at a fast rate. As a result of that conduct, AB and Jefferson decided it was not safe for her to remain at the Nilufa Court property and she left it in Jefferson’s vehicle.
It was in that context that the offence, that was the subject of charge 1, took place on the following day, 8 October 2021.
Shortly after 5 am on that day, the applicant attended outside the Nilufa Court property. CCTV footage depicted him exiting his vehicle, walking around the porch area of the home, returning to the vehicle and departing. He then drove back to his own premises.
At 6.45 am, the applicant returned to the Nilufa Court property in his vehicle. CCTV footage captured him opening the side gate and walking along the southern side of the house which lead to the backyard of the property. The applicant then gained access to AB’s bedroom, where he lit a fire in the vicinity of the bed. He then returned to his vehicle and departed the premises at 6.48 am, that is, three minutes after he had arrived there. At 6.56 am, smoke could be seen coming from the premises, which gradually formed a smoke haze. By 7.30 am, flames were visibly breaching the exterior of the premises. The residence at the premises was totally destroyed by the fire, and personal items belonging to AB were also destroyed. As a result of the fire, AB and the children were forced to reside in emergency accommodation. It is the destruction of that property that is the subject of charge 1.
Subsequent forensic fire examination revealed that there were no signs of forced entry into the premises. The cause of the fire was the ignition of combustible material in the bedroom, most probably the bedding and/or the mattress. There were no traces of any accelerant.
The Nilufa Court property was insured with AAMI Insurance to the value of $539,400 and the contents to the value of $17,000. The damage to the premises and AB’s property was assessed as $426,899.38, which was paid by AAMI. That sum was the subject of the compensation order made by the judge pursuant to s 86(2) of the Sentencing Act.
The applicant was arrested for criminal damage by fire. He was conveyed to the Narre Warren police station, and the FVIO granted in September 2021 was served on him.
On the same day, the applicant participated in a recorded interview with police. In the interview, he said that he had attended near the Nilufa Court property because he had arranged with AB to collect clothes for his daughter. He denied that he went into the backyard of the premises, and he denied causing the fire. He said that AB smoked ice on a daily basis, and that he had been trying to fight for his children for some time. He said that he was a victim of family violence perpetrated by AB.
Subsequently during the interview, after being informed that he had been seen approaching the Nilufa Court premises immediately before the fire, the applicant admitted that he was responsible for lighting the fire. He said that he suffered from a ‘mental illness’. He told police that he heard voices, that he had been put in a psychiatric ward, and that he was meant to be on medication but he did not use it.
Following his arrest, the applicant was remanded in custody. The offending, that was the subject of the second charge, consisted of a number of telephone calls made by the applicant from prison to AB between 28 February 2022 and 31 March 2022.
On 13 December 2021, the Dandenong Magistrates’ Court granted a Final FVIO against the applicant for the benefit of AB. That order was served on the applicant on 21 December 2021. It included conditions that precluded the applicant having contact or communication with AB by any means, and which also prohibited the applicant from getting any other person to do anything that he was prohibited from doing pursuant to the order.
The breaches of the order, that were the subject of charge 2, consisted of a number of communications between the applicant and AB commencing on 28 February 2022. As a matter of context, the prosecution also relied on four communications between the applicant and his daughter, Shakira, which were not breaches of the FVIO, but which were relied on in order to provide some insight into the motivations of the applicant in effecting their communications that are the subject of charge 2.
On 17 November 2021, the applicant telephoned Shakira. He said to her that AB should drop the FVIO so that he could be granted bail. He told Shakira that AB needed to say that she had lied in her statement to police, ‘which she did’. Later on the same day, the applicant made a further telephone call to Shakira. He again told Shakira that AB needed to drop the FVIO, and that she needed to say that she had lied in her statement. Shakira responded that if AB did so, she would ‘get charged’. The applicant told Shakira that AB needed to ‘redo another statement’.
Two days later, on 19 November 2021, the applicant again telephoned Shakira. He told her that the FVIO ‘need to go’. He told her that AB should drop the charges ‘because far out abuse’. He said that if AB dropped the charges, he might be able to get bail.
On 27 February 2022, one day before the period of the offending, the applicant made a fourth telephone call to Shakira. He referred to AB as ‘aunty’ as a coded reference to her. The applicant asked Shakira whether the ‘aunty’ was aware of the telephone number, to which Shakira responded, ‘I’ll message her’. The applicant said that he would talk to everyone next week, and ‘then talk about it properly’.
On the next day, 28 February 2022, at 6.50 pm, the applicant made the first telephone call which was the subject of charge 2. The call was made to Shakira. In the course of it, the telephone was handed to AB. After AB greeted him, the applicant asked, ‘How are you?’ AB responded that she was, ‘Not too bad…up and down…’ She told the applicant that she had received his letter and ‘everything for the kids’. The applicant asked her, ‘Did you get the pictures?’ to which AB responded, ‘Yeah’.
About fifteen minutes later, the applicant made a second telephone call to Shakira. That call was answered directly by AB. The applicant commenced by saying, ‘Kaira’ (which was the shortened version of Shakira). AB responded, ‘Hey it’s me’. The applicant then asked if the call could be put on speaker so that he could, ‘Ask my kids if they like the pictures please’. AB responded that she had not given the pictures to the children yet, to which the applicant responded, ‘Oh, okay, they’ll love it, I’ve only got two minutes’.
The third telephone contact, that was the subject of charge 2, was made by the applicant on 12 March 2022 at 1.56 pm, when he telephoned Shakira. During the call, the telephone was handed to AB and the applicant communicated directly with her. The conversation was in the following terms.
AB: But I do love you and I feel you all the time.
APPLICANT: Yeah, I know.
AB: I get upset ...like I’m a bit lonely and that, and I know how you felt and it just hurts me so much, and I can’t sleep since the hotel.
APPLICANT: I’m sorry.
AB: And I’ve been — I’m — I’m trying to get my act together as ... like, I’ve got money but I can’t tell you where I’m getting it from over the phone.
APPLICANT: Yeah, yeah, that’s fine.
AB: I’ll send you some more money, like 100 bucks.
APPLICANT: Yeah.
AB: Yeah. I’ve got a lot of things to sort out within myself. And, yeah it’s been really hard but I - I love and miss you.
APPLICANT: Me too.
AB: Mm.
APPLICANT: Me too. I really do.
AB: All right. We’ll see what happens hey.
APPLICANT: Yeah, definitely.
AB: Even if we just be close for the kids. I don’t know. Maybe
APPLICANT: Yeah.
AB: - - - we’ll get back together, maybe we won’t. We’ll see
APPLICANT: Yeah, I know. I understand.
AB: - - - for now.
APPLICANT: Yeah.
The fourth telephone conversation, that was the subject of charge 2, took place about ten minutes later at 2.09 pm. The applicant called Shakira, and AB answered the call. The following exchange took place in the course of that conversation.
APPLICANT: Yeah, thanks. I appreciate it though.
AB: ... yeah, I love you, but you can get fucked.
APPLICANT: Yeah, I appreciate it. So — but
AB: No, you don’t appreciate shit
APPLICANT: I do ...
AB: - - - because I lost everything ‘cause of you. I lost my job, I lost my life, I lost everything. You did this to me — you.
APPLICANT: Yeah, O.K. I’m sorry, bro.
AB: You did it. You did it.
APPLICANT: I’m just saying
AB: You did it ...
APPLICANT: - - - I don’t need your guys’ money.
AB: ... you did this to me.
APPLICANT: I’ve got my own money.
AB: Yeah, good for you ‘cause I lost everything ‘cause of you.
The fifth contact, that was the subject of charge 2, took place some twenty minutes later, when the applicant again made a telephone call to Shakira’s telephone. During that call, the phone was handed to AB and the applicant directly communicated with her. The applicant stated that he was ‘going to bail next month’. In response, AB stated, ‘Oh cool good, what I’ll have to do go to the court and say I lied? Nuh’. The applicant responded, ‘You don’t have to say shit … I’ve got this myself’. AB then told the applicant that he was not allowed ‘anywhere near here’. The applicant responded that he did not want to anyway. AB told him that if he wanted to see the children, they would be under supervision. The applicant responded, ‘That’s fine … as long as I get to see them …’ The applicant confirmed that he knew that he had to see the children under supervision and said, ‘As long as I get to see them, that’s good, all right’. AB reminded the applicant that he had to stay away from her to which he again responded, ‘Fine that’s all good’. He said that he was going to apply for bail, and that he had accommodation and a ‘Harley’. After some further conversation, AB said, ‘Own it, we’re not lying, own it’. The applicant responded, ‘I’ve already owned it, I’ve already owned it’. AB told him he should be prepared not to get bail, to which the applicant responded, ‘If that’s what you want.’ AB said, ‘It’s not what I want’.
Ten days later, on 22 March 2022, the applicant made a telephone call to Shakira, in which the applicant discussed AB’s approach to the upcoming legal proceedings. That conversation was not relied on as offending under charge 2, but was used as context to that offending. The applicant told Shakira that AB needed to say, ‘Well … I can’t really remember, I don’t know’. He told Shakira to inform AB that he was ‘owning’ the arson to the house. He said that AB had to ‘own some of the shit too’. He said that if the tables were turned he would do the same for her.
The sixth contact, that was the subject of charge 2, took place at 5.54 pm on 28 March 2022. The applicant made a call to Shakira’s telephone. Shakira then handed the telephone to AB. The applicant told her to give his love to all the children. He said, ‘I love you hey, I love you baby, hun’. AB responded, ‘I know but you had too many chances’. The applicant replied, ‘I know, I know’. AB then said, ‘And you’re still trying to put me through shit’, which the applicant then denied. AB said, ‘… if you take this Court case to trial, I’m going to get in trouble.’ She said that if the applicant denied her statement then she would get into trouble. She said, ‘Either way, one of us is going to get in trouble for lying, might be me.’ The applicant responded, ‘Well that’s out of my league,’ to which AB retorted, ‘No it’s not’. AB said, ‘You’re denying it,’ to which the applicant responded, ‘I’m not denying it … I’m accepting it’. When AB persisted that he was denying ‘it’, the applicant said, ‘They’re trying to put me down for like attempted murder … I’m denying that’. AB then said, ‘I didn’t know that they were going to charge you … they asked me those questions when I was in shock’. The applicant then said, ‘That’s what you need to — that’s what AB needs to tell them’.
The seventh contact occurred two days later, on 30 March 2022, when the applicant made a call to Shakira’s telephone at 6.07 pm. The telephone was again handed to AB. The conversation commenced with the applicant saying that he had not received some food which apparently AB had sent to him, but he expressed his appreciation for it. AB responded, ‘I’m just doing it for you because we were together for a long time and I give a fuck and I’m a good cunt like that’. The applicant told AB that the police were charging him with more offences, because he had been speaking to her on the telephone. He told her that the telephone calls had been recorded. AB asked if she was also in trouble, to which the applicant responded, ‘No I am’. The applicant reassured AB that she would not get into trouble for that matter.
Finally, on 31 March 2022, at 7.03 pm, the applicant made a call to Shakira’s telephone, which was then handed to AB. After they greeted each other, AB said, ‘I took son to training and I’m just driving him home then pick up the girls’. The applicant responded, ‘Oh cool’. AB said that the son had been behaving really well, and that she was just driving him home. She asked the applicant, ‘How are you?’ The applicant responded that he was good, but that he just had to ‘process a few things’. When AB asked him what he was processing, the applicant responded that the police were investigating him, but that she should ‘never mind’. AB again asked him what he was being investigated about. The applicant responded:
The coppers are doing what they need to do just cause they think I’m trying to change AB’s statement which I’m not that’s all. They are listening to every call that I am — that I am talking about but yeah.

The applicant’s background

The applicant was born in New Zealand, and he is the second of a family of five children. He grew up in a dysfunctional family environment in which he was subjected to both physical abuse and neglect. His father was violent both towards his mother and himself. The applicant left home at the age of eleven years, and from that time he lived with the families of friends.
The applicant completed primary school education, but he did not proceed to secondary level. After leaving school, he became involved in a street gang which was engaged in crime, as a means to support himself and, in time, his growing family. In that context, the applicant came before the courts in respect of a number of offences which included, on three occasions, being involved in family violence.
In 2014, the applicant and AB decided to relocate to Australia with their children. That decision was motivated by a strong desire to get away from his previous criminal associates. Since he migrated to Australia, the applicant has not had any criminal history. He has a strong work record. He completed an apprenticeship as a boiler welder in New Zealand, and became qualified in that trade at the age of 23 years. Since 2016 he held the position of workshop supervisor at Steelfinne Fabrications.

The plea submissions

In mitigation of sentence, the applicant relied on his plea of guilty, which, it was submitted, was indicative of remorse, and his acceptance of responsibility. It was further submitted that the plea had particular utilitarian value in view of the delays and backlogs in trials that had been occasioned by the COVID pandemic.
In addition, as a result of his offending, the applicant faced a real possibility of being deported to New Zealand, if he was sentenced to a term of imprisonment of twelve months or more. In those circumstances, it was submitted, the applicant would suffer extra-curial punishment as a result of his offending, and, his expectation that he would be deported following release would render his term of imprisonment more burdensome for him.
Counsel for the applicant particularly relied, in mitigation, on the applicant’s dysfunctional and unstable upbringing. For the purpose of the plea, the applicant was interviewed by Ms Marlese Bovenkerk, a forensic psychologist. A report prepared by Ms Bovenkerk was tendered on the plea, and she gave evidence in respect of it. In essence, Ms Bovenkerk considered that as a result of his childhood, in which he witnessed family violence and was the victim of physical and sexual abuse, the applicant had developed post-traumatic stress disorder (‘PTSD’) and a major depressive disorder. In addition, he met the diagnostic criteria for alcohol use disorder and stimulant use disorder. In her report, she expressed the opinion that the applicant’s untreated mental health had played a ‘significant underlying role in his offending’.
The prosecution strongly challenged that conclusion by Ms Bovenkerk, and she was cross-examined quite extensively in respect of it. That cross-examination exposed that there were a number of incorrect or unsupported factual assumptions made by Ms Bovenkerk in reaching her conclusion as to the effect of the applicant’s underlying mental health, and particularly the effect of his mental health on his offending.

Reasons for sentence

In detailed reasons for sentence,[4] the judge concluded that she could not be satisfied, on the balance of probabilities, as to the veracity of the history taken by Ms Bovenkerk. In particular, the judge noted that the applicant had told ‘multiple lies’ in his interview with the police, and that there were inconsistencies in other materials before the court, which precluded her satisfaction, on the balance of probabilities, concerning the nature and extent of any physical or sexual abuse he had suffered during his upbringing, and the consequences of that trauma by way of major depressive disorder and PTSD as diagnosed by Ms Bovenkerk.[5]
[4]DPP v Norman [2022] VCC 2237 (‘Reasons’).
[5]Reasons [56], [61].
The judge did accept that the applicant was suffering symptoms of depression, and that he had experienced suicidal ideation in early September 2021, but she did not accept the opinion by Ms Bovenkerk that there was a relevant causative link between the applicant’s mental health condition and his commission of the offences. Her Honour was satisfied, beyond reasonable doubt, that the arson was not an impulsive act by the applicant, but rather was an act of ‘angry revenge’ against his ex-partner who had formed a new relationship of which he was jealous. The judge was satisfied that the breakdown of the applicant’s relationship was the primary triggering cause for his heavy consumption of alcohol and relapse into substance abuse. Thus, the applicant’s offending, under charge 1, was ‘an act of jealous revenge’ towards his ex-partner.[6] Accordingly, the judge rejected the submission made on behalf of the applicant that the first four principles in R v Verdins[7] applied in mitigation of sentence.[8]
[6]Ibid [62]–[67].
[7]The Queen v Verdins (2007) 16 VR 269,276 [32].
[8]Ibid [62].
In mitigation, the judge took into account the applicant’s plea of guilty to the charges following the second day of a contested committal hearing in which AB, his daughter and the arson expert had been cross-examined. Although the plea was not accompanied by remorse, nevertheless it had particular utilitarian value as a consequence of the effects of the COVID pandemic on court listings. The judge also took into account that the applicant had not offended since he had migrated to Australia in 2014, he had a good work history, and he had been a good father to his children. In addition, the applicant had taken steps to engage in drug and alcohol counselling, and he had obtained assistance to manage his emotions, while in custody.
The judge also noted that the imposition of a sentence of twelve months’ imprisonment or more would attract mandatory cancellation of the applicant’s visa, as a consequence of which he would be deported to New Zealand at the completion of his sentence. The judge acknowledged that that would be a particular extra-curial punishment for the applicant, since each of his children resided in Australia. Further, the judge acknowledged that the applicant does suffer from depression and anxiety, so that a term of imprisonment would be more burdensome for him than for a prisoner who does not suffer from such issues.[9]
[9]Ibid [77].
Finally, the judge considered that the applicant had not accepted full responsibility for his offending, and that he had little insight into his own psychological state. For those reasons, her Honour was guarded concerning the applicant’s prospects of rehabilitation.[10]
[10]Ibid [78].
Her honour concluded by pronouncing sentence in the terms set out above. In doing so, she ordered the applicant to pay compensation of $426,899.38 to AAI Ltd (trading as AAMI) pursuant to s 86 of the Sentencing Act 1991.[11]
[11]Ibid [86].

Ground 1 — submissions

In his submissions in support of ground 1, counsel for the applicant contended that the order by the judge, that the sentence on charge 2 be fully cumulated on the sentence for charge 1, contravened the sentencing principles of totality and proportionality, and failed to give account to the presumption of concurrency in s 16 of the Sentencing Act.
Counsel submitted that there was significant ‘overlap’ between the circumstances in charge 1 and those in charge 2. First, he contended, there was an ‘overlap’ in victims. In particular, the victim of charge 2 was AB, and she was also one of the victims of the arson that was the subject of charge 1. In addition, it was submitted, there was a temporal overlap, in that the intervention order, that the applicant contravened, was the finalisation of the interim order that predated the offending in charge 1.
In addition, counsel submitted that there was a contextual overlap between the two offences. In that respect, the arson ‘elevated’ the severity of the breaches that were the subject of charge 2, in that it formed the context to the prohibited communications made by the applicant to AB. It was submitted that if the house that the applicant set on fire had no connection with AB, the telephone calls would not have resulted in a nine month gaol sentence, let alone an order for cumulation of nine months.
Counsel further submitted that the judge failed to explain why an order of total cumulation was justified, in light of the presumption of concurrency in s 16 of the Sentencing Act. It was submitted that the order had the effect of producing a total effective sentence that, taking into account the applicant’s criminality as a whole, was not just and appropriate.
In response, counsel for the respondent noted that the offending, that was the subject of each of the two charges was separate and distinct. In particular, charge 1 involved two victims, one of whom was the owner of the house that was destroyed by the arson. That offending occurred on 8 October 2021. On the other hand, charge 2 involved five separate breaches of a FVIO by the applicant telephoning his former partner between 28 February and 31 March 2022. It was submitted that although the two charges involved the same victim and both were committed in the context of family violence, the offending in each charge was ‘vastly different’ in nature. Further, the offending in charge 2 occurred some four months after the offending in charge 1.
Counsel for the respondent further noted that the applicant has a history of family violence offences which he committed in New Zealand in 2008 and 2009. It was submitted that in those circumstances the full cumulation of the sentence imposed on charge 2 was explicable and appropriate, and was a disposition reasonably open to the sentencing judge.

Ground 1 — analysis and conclusion

The fundamental submission made on behalf of the applicant under ground 1 is that the order for cumulation made by her Honour was such as to offend against the principles of totality and proportionality.
In effect, the totality principle requires a judge, who is to pass sentence on more than one charge, to ensure that the total effective sentence does not exceed that which is appropriate in view of the totality of the criminal conduct engaged in by the offender.[12]
[12]Mill v The Queen (1988) 160 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
In Postiglione v The Queen,[13] McHugh J described the principle in the following terms:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.[14]
[13](1997) 189 CLR 295.
[14]Ibid, 307–8; see also 321 (Gummow J), 340 (Kirby J); Azzopardi v The Queen (2011) 35 VR 43, 59 [57], 63 [68]–[69] (Redlich JA).
In the context of the present case, the proportionality principle, referred to by the applicant, is to the same effect, namely, that the total sentence imposed on the offender be proportionate to the totality of the offending.[15] Although s 16 of the Sentencing Act provides that sentences are to be served concurrently unless otherwise directed by the court, and full cumulation of sentences is not common, there is no reason in principle why full cumulation may not be ordered in an appropriate case. In the present case, it might have been preferable for the judge to have provided a brief explanation of why full cumulation of the two sentences was ordered, but the fact that she did not do so does not, without more, establish the ground of appeal. It is on the result, as reflected in the total effective sentence, that the ground, which is under consideration, focusses.
[15]Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ), 485–86 (Wilson J), 490–91 (Deane J); DPP v Haidari [2013] VSCA 149, [45] (Harper JA).
The starting point, in applying the totality principle, is that the offending that was the subject of charge 1 was serious. It involved a deliberate act of arson by the applicant on domestic premises, in which his estranged ex-partner was residing, born out of the applicant’s jealousy of her. The effect of the fire was to destroy the premises, and to render AB, and their children, homeless. In view of the maximum sentence prescribed for arson, the sentence imposed by the judge, of 2 years and 6 months’ imprisonment, could only be described as moderate.
It might fairly be accepted that the sentence of 9 months’ imprisonment, imposed in respect of the offence that was the subject of charge 2, was quite stern. The offending did not involve any act or threat of violence, whether explicit or implicit. It comprised a number of telephone calls made by the applicant to his daughter, in which, it would seem, his ex-partner AB voluntarily participated. The content of the calls was quite benign. AB did not make a complaint concerning the calls. Rather, they came to the attention of the police because telephone calls made by the applicant from prison were being monitored and recorded. On the other hand, it must be borne in mind that the offending, that was the subject of charge 2, occurred in the context of the conduct of the applicant towards AB, which had necessitated the issue of the FVIO, and in the context of the arson committed by him.
The applicant did have available, and relied on, a number of mitigating circumstances, which the judge identified in her reasons for sentence.[16] Nevertheless, taking those considerations into account, we are not persuaded that the total effective sentence of 3 years and 3 months’ imprisonment, imposed on the applicant, exceeded a sentence that was just and appropriate in the circumstances, taking into account the totality of the criminal conduct engaged in by the applicant, and giving proper weight to those mitigating circumstances.
[16]Reasons, [77].
It follows that ground 1 of the application for leave to appeal must fail.

Ground 2 – submissions

In oral submissions, counsel for the applicant argued ground 1 and ground 2 together. In his written case, counsel submitted that the larger context of the offending — family violence — was a context which must have informed the judge’s sentences on both charges. In those circumstances, it was submitted that the lack of any concurrency, recognising that consideration, must have impermissibly resulted in a double punishment for the applicant.
In response, counsel for the respondent submitted that the sentences imposed by the judge on the two charges did not involve any aspect of double punishment. While the context to each of the two offences was the applicant’s jealousy towards his estranged ex‑partner, the two offences were each quite separate and distinct.

Ground 2 – analysis and conclusion

Ground 2 may be disposed of shortly. As counsel for the respondent correctly submitted, the acts and conduct that were the subject of charge 1 were quite separate and distinct to those which were the subject of charge 2. Further, the offending that was the subject of charge 1 took place some four months before the offending that was the subject of charge 2.
In those circumstances, the relationship between the offending by the applicant, that was the subject of the two charges, was entirely different and distinct from that in cases in which it has been held that there has been double punishment.[17] Accordingly, it could not be maintained that the circumstance, that the judge did not order any concurrency between the sentences imposed on the two charges, resulted in any form of double punishment of the applicant.
[17]See Pearce v The Queen (1998) 194 CLR 610, 624, [49] (McHugh, Hayne and Callinan JJ).
It follows that ground 2 must also fail.

Ground 3 – submissions

In respect of ground 3, counsel for the applicant noted that, in the course of the plea before the judge, counsel had submitted that the applicant did not have the financial capacity to pay the amount of compensation sought by the prosecution. On the plea, counsel informed the judge that, before his imprisonment, the applicant earned $1,250 net after tax, from which he had been paying $300 per week in child support to AB, and an additional $300 per month to her in payment of utilities. The judge was also informed that the applicant paid $350 per week in rent, and about $60–$70 per month in utilities.
Taking those matters into account, counsel for the applicant submitted to this Court that the fact that a compensation order was ultimately made by the judge in the full amount sought by AAI Limited demonstrated that the sentencing judge had placed insufficient weight on the inability of the applicant to pay that sum. It was submitted that the magnitude of the compensation order imposed a ‘crushing financial burden’ on the applicant, which would compromise his capacity to rehabilitate after the completion of his prison sentence.
In response, counsel for the respondent submitted that it was open to the judge to make an order for compensation in the amount of the damage sustained by the insurance company. It was submitted that there was no error made by the judge in ordering that that amount of compensation be paid by the applicant. Further, it was submitted, on the hearing of the plea, counsel then acting for the applicant did not demonstrate to the judge that some other, lesser, amount of compensation would be appropriate.

Ground 3 – analysis and conclusion

Sections 86(1) and (2) of the Sentencing Act provide that the payment of compensation by a person found guilty of an offence in the following terms:
(1)If a court finds a person guilty of, or convicts a person of, an offence it may order the offender to pay to a person who has suffered loss or destruction of, or damage to, property as a result of the offence any compensation (not exceeding the value of the property lost, destroyed or damaged) that the court thinks fit.
...
(2)If a court decides to make an order under subsection (1) it may in determining the amount and method of payment of the compensation take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
It has been recognised that, in considering the matters prescribed by s 86(2), it is relevant to take into account the effect which the burden of payment of the compensation may have on the rehabilitation of the offender.[18] In that way, the sentencing judge should balance the need to compensate the injured party, on the one hand, with the public interest in the rehabilitation of the offender.[19] In considering those issues, it is important to bear in mind that the offender bears the relevant onus to demonstrate that the proposed compensation order may compromise the offender’s capacity to properly rehabilitate.[20]
[18]Josefski v Donnelly [2007] VSCA 6, [18] (Buchanan, Vincent and Nettle JJA); Dura Construction Aust Pty Ltd v Dovigi [2004] VSC 252, [50] (Williams J).
[19]Chalmers v Liang [2011] VSCA 439, [22] (Maxwell P, Redlich JA and Kyrou AJA).
[20]Sullivan v Gibson [2018] VSC 785, [115]–[118] (Croucher J).
The amount, that was the subject of the compensation order in this case, was particularly substantial. It is apparent that the applicant is of limited means. At the time of the order he was facing a term of imprisonment in excess of 3 years, after which it was most probable that he would be deported. It may readily be concluded that the applicant’s capacity to pay the compensation order, on his release, would, at the very least, be most limited. It might also be fairly inferred that that consideration may well render the applicant’s rehabilitation into society, after his release from prison, significantly more difficult.

On the other hand, it was the intentional criminal actions of the applicant, in setting fire to his ex‑partner’s bedroom, that directly caused the damage in respect of which the compensation has been ordered to be paid. The party which ultimately bore the loss arising from the applicant’s offending — AAI Ltd — had a just claim to be appropriately compensated for that loss.
It was for the judge, pursuant to the discretion contained in s 86(1) of the Sentencing Act, to balance those two competing considerations. In the present case, her Honour did not provide any reasons for making a compensation order in the full amount sought on behalf of AAMI. However, the making of that order by the judge does not demonstrate that her Honour failed, in any material way, to take into account the relevant circumstances of the case. Nor, on its face, could it fairly be concluded that the compensation order so made by the judge is ‘manifestly excessive’, as claimed by ground 3. The order did no more than require the payment of the full amount of the damages that were a direct result of the applicant’s intentional, deliberate criminal actions. Notwithstanding the financial hardship and difficulty that that order may impose on the applicant, it could not in those circumstances be maintained that the judge in some relevant manner erred in the exercise of her discretion under s 86(1).
For those reasons, with ground 3 of the proposed grounds of appeal must also fail.

Summary of conclusions

For the foregoing reasons, the applicant has failed to succeed on each of the three grounds sought to be relied on.
It follows that the application for leave to appeal must be refused.

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[2023] VSCA 213

8 September 2023