R v D L M

[1999] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 143 of 1998

THE QUEEN

v

D.L.M.

---

JUDGES:	PHILLIPS, C.J., ORMISTON and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November, 1998.
DATE OF JUDGMENT:	11 February, 1999.
MEDIA NEUTRAL CITATION:	[1999] VSCA 6

---

CRIMINAL LAW - Sentencing - Sexual offences on step-children - Counts representative - Guilty plea shortly before re-trial commenced - Judge not informed of individual sentences of previous judge - Whether bound to have regard to and not exceed latter's sentence - Counts somewhat different - Favourable findings on rehabilitation - Whether sentence manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C. M. Quin	P. C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr P. F. Tehan, Q.C.	David Tonkin and Associates

PHILLIPS, C.J.:

1. The applicant, who is aged 44, pleaded guilty in the County Court at Melbourne on 9 June last to two counts of indecent assault (counts 1 and 3 on the presentment); one count of attempted sexual penetration of a child under ten (count 2) and one count of sexual penetration of a child under ten (count 4). The Court was informed that these counts were “representative charges”.

2. These offences, which occurred between October, 1988 and September, 1989 involved three different complainants with whom the applicant then lived. These were, and I shall use initials, “S” (count 1), “C” (count 2) and “T” (counts 3 and 4). The offences carried maximum penalties of five years’, ten years’ and 20 years’ imprisonment respectively. The victims were all step children of the applicant. “S” was born on 16 August, 1979, “C” was born on 4 November, 1980 and “T” was born on 1 October, 1981. The applicant married their mother in 1987.

3. The applicant admitted 43 prior convictions from 20 previous court appearances between 1972 and March, 1988. These were, variously, for offences of dishonesty, driving offences and street offences, but they also included a convictions for armed robbery in July, 1982 and November, 1985 which were visited by imprisonment. The only convictions of a sexual connotation, indecent assault and indecent exposure, were recorded in February, 1976 and resulted in a relatively short term of imprisonment.

4. After hearing a plea for leniency and receiving on behalf of the applicant a letter from the Parole Board and a report of Mr Ian Joblin, Psychologist, together with other documents and three victim impact statements relating to the complainants, His Honour, on 15 June, sentenced the applicant as follows.

   Count 1 - 12 months’ imprisonment
   Count 2 - Three years’ imprisonment
   Count 3 - Two years’ imprisonment and
   Count 4 - five years’ imprisonment.

5. His Honour directed that four months of the sentence on count 1 and six months of each of the sentences on counts 2 and 3 be served cumulatively upon the sentence imposed on count 4 and upon each other making for a total effective sentence of six years and four months. A non-parole period of four years and six months was fixed and a declaration made as to 150 days pre-sentence detention. The applicant subsequently lodged notice of application for leave to appeal against sentence, pleading the sole ground that the sentence imposed was manifestly excessive but, later, the learned Registrar allowed five additional grounds as follows:-

“2.	The learned sentencing judge erred in failing to consider the sentence passed upon the applicant by His Honour Judge Meagher.
3.	The learned sentencing judge erred in sentencing the applicant to sentences of imprisonment greater than those imposed by His Honour Judge Meagher
4.	The learned sentencing judge erred in failing to place any weight upon the applicant’s plea of guilty and upon the circumstances in which it was entered.
5.	The learned sentencing judge erred in failing to place sufficient weight upon the fact that the applicant has and will continue to serve his sentence in protective custody.
6.	The learned sentencing judge erred in failing to take into account the whole of the time that was due to the applicant as pre-sentence detention pursuant to section 18 of the Sentencing Act 1991.”

1. It is now necessary to set out the history of the applicant’s progression through the criminal justice system. In September, 1995 the applicant was committed for trial on 16 counts relating to sexual offences upon his step-children. An aborted trial followed in July, 1997 and the applicant was subsequently presented before His Honour Judge Meagher on Presentment ZA 1227, which alleged three counts of indecent assault (counts 1, 2 and 4), one count of attempting to take part in an act of sexual penetration with a child under ten (count 3) and four counts of taking part in an act of sexual penetration with a child under ten (counts 5, 6, 7 and 8). Counts 1 and 2 involved “S”, count 3 “C”, counts 4, 5 and 6 “T” and count 7, another stepchild, “B”. The applicant was acquitted on count 8 and convicted of the remainder. On 10 October, 1996, for counts 1, 2 4, and 7 he was sentenced to 12 months’ imprisonment on each count and for counts 3, 5 and 6 three years’ imprisonment on each count. The learned judge directed that counts 1, 3 5 and 7 were to be served cumulatively upon each other making for a total effective sentence of eight years’ imprisonment and a non-parole period of six years was fixed. At this time the applicant was undergoing a sentence of three years and nine months’ imprisonment imposed with a non-parole period of two years and three months in June, 1995. The non-parole period fixed of six years was a new non-parole period. Upon the sentences being pronounced on counts 1 and 2, the judge found the applicant to be a serious sexual offender. The applicant has now completed the June, 1995 sentence and indeed remained in custody, as I understand it, having been refused bail, after the Parole Board made an order for his release on 16 January this year.

2. What had happened in the meantime was that the applicant had applied for leave to appeal against the convictions incurred on Presentment ZA 1227 and his appeal was, on 19 December, 1997, allowed by this Court, which directed a re-trial of the applicant be had. However, as appears above, he elected to plead guilty in June last.

3. I now turn to a summary of the facts of these matters. It is necessary that I mention, in this connection, that this application was attended by some unusual circumstances. I shall return later to these. The Summary of Evidence supplied to this Court discloses the following:

4. Count 1 involved the applicant entering the bedroom of the complainant then aged nine or ten years. After hugging her over the bed clothes, he put his right hand under the blankets and inside her underpants rubbing her genital area. The complainant felt scared and dirty as a result of this experience. As to count 2, the applicant entered the complainant’s room where she was alone and when she was about eight years old. He told her to touch his penis. She refused and he took her hand and placed it on his penis. After moving her hand up and down he lay on top of her and attempted to penetrate her vagina with his penis. The child moved her body around and the applicant was unsuccessful. He told her not to tell her mother threatening to kill her and other family members.

5. Counts 3 and 4 involved incidents when the complainant was some seven years of age. As to count 3, the child awakened one night to find the applicant seated on her bed with his hand inside her underpants moving one of his fingers in her vagina. Pain caused her to wake. He eventually stopped and told her that he would hit her if she told anything. He then left the room.

6. Count 4 involved a similar incident but the applicant went further removing the child’s lower clothing parting her legs and lying on top of her. He placed his penis in her vagina and held her down by a hand on her chest. Despite her tears, he continued until ejaculation.

7. I should repeat that these counts were put to the sentencing judge as representative counts and His Honour, so we were informed, had before him depositional material which indicated other similar incidents.

8. As to count 2, the Summary of Evidence adds “In her statement “C” described other episodes, which she was unable to particularise, where the applicant had inserted his fingers into her vagina. She quantified this at about four earlier episodes and ‘a few’ later episodes. These events were also associated with the applicant, first, fondling, and later, kissing the complainant’s breasts.”

9. As to counts 3 and 4, the Summary adds “In her statement “T” described one other incident which occurred in the weeks between the above described incidents, and which involved the applicant placing his tongue, and later his penis inside her vagina. Her statement does not refer to any other unparticularised incidents.”

10. Counsel also informed this Court that the learned sentencing judge did not have before him any of the evidence given at the applicant’s trial before His Honour Judge Meagher. Counsel also agreed, as I understood them, that the sentencing judge had material, as to “S”, of four uncharged events, whereas His Honour Judge Meagher had but two. The sentencing judge also had, as the transcript shows, an opening by the Crown prosecutor of the facts which was not materially contradicted by counsel then appearing for the applicant.

11. I now turn to the arguments of counsel.

12. Mr Tehan of Queen’s Counsel, for the applicant, began his submissions touching grounds 2 and 3, by pointing out that His Honour Judge Meagher had imposed a total effective sentence of eight years’ imprisonment on the applicant. Mr Tehan then proceeded to conduct a comparison between the instant sentences and those imposed on counts that were before that judge. This showed that count 1 was visited with the same sentence as previous counts 1 and 2; count 3 was visited with a sentence of two years’ imprisonment, an increase of a year over the corresponding count, count 4. Count 4 was visited with a sentence of five years’ imprisonment, whereas the previous corresponding counts 5 and 6 had attracted three years on each count. So, too, counsel continued, there were differences in cumulation directions between the two sentences. His Honour Judge Meagher had directed cumulation on counts 1, 3 and 5 and also upon count 7, which alleged an offence against a victim not included in the instant presentment.

13. As to the proceedings before His Honour Judge Meagher, Mr Tehan pointed out that counsel for the applicant on the plea had raised them with the learned sentencing judge asking, “Is Your Honour interested in what sentences were passed at the previous trial?” The learned judge responded, “I make no enquiry. If you want to tell me, you tell me.” Counsel then disclosed that, “together with the armed robbery offences of June of 1995, he (the applicant) was sentenced to a head sentence of eight years, with a minimum of six years for those offences.” He then described the subsequent appeal and its result. No more was said by anybody and it followed that the learned sentencing judge was not informed of the individual sentences imposed by His Honour Judge Meagher, nor was he informed that there had been cumulation directions and what they had been.

14. Mr Tehan submitted that the learned sentencing judge was bound to have regard to the previous sentences and fell into material error when he did not sufficiently do so. He cited R. v. Chen [1993] 2VR 139 at 158. That case involved an appeal against sentence in circumstances where the applicant had received a sentence of four years’ imprisonment with a non-parole period of 20 months. After an earlier trial he had been sentenced to four and a half years’ imprisonment with a non-parole period of two years. As it happened, the abolition of remissions between the two proceedings operated to make the second sentence more harsh than the first. The judgment of the Court of Criminal Appeal (Marks, Southwell and Harper, JJ.) contains both a clear statement of principle and a helpful summary of relevant authority. As to the former, the Court said, “In our opinion, the fact of and the practical effect of the earlier sentence were relevant matters to which the judge was bound to have regard. If it were to be held that His Honour did not have regard to that matter, error must be found.”(158).

15. The court went on to agree with observations made by the New South Wales Court of Criminal Appeal in R. v. Bedford (1986) 28 A. Crim. R. 311 at 316/7.

    “Where the judge at a new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view.”

16. The court also agreed with statements of relevant policy considerations emanating from the Western Australian and New South Wales Courts of Criminal Appeal. These included the avoidance of the perception of some element of retribution by the machinery of the criminal justice system; the undesirability of a plainly inadequate first sentence operating as a fetter upon a second judge and the removal, as a matter of fairness, of any risk of a more severe sentence upon a second trial from an applicant who successfully challenges the result of a first.

(It is to be noted Chen concerned but a single count and it seems clear that the factual
basis for sentence was the same in the two proceedings.)

1. As to ground 4, Mr Tehan submitted that the sentences imposed on the applicant indicate insufficient weight was attached to the applicant’s plea of guilty and, in this connection, invited a comparison with the sentences imposed by His Honour Judge Meagher.

2. As to ground 5, counsel drew attention to the circumstance that the applicant married a former prison officer on 20 November, 1993, a son having been born of their relationship several months earlier. As a consequence of this relationship, he said, the applicant will have to serve any sentence in protection as indeed he has served the sentence imposed upon him in June, 1995.

3. As to ground 6, counsel submitted that the applicant had been entitled to entertain a reasonable expectation that he would have been released on parole in September, 1997. However, the pendency of the proceedings in this Court arising out of his conviction at his trial until 19 December, 1997, when judgment was given, operated so that he was not granted parole until 20 January, 1998. Thereafter, as I have earlier indicated, he was refused bail and has remained in custody. Mr Tehan submitted that in addition to making a declaration as to pre-sentence detention of 150 days, i.e., calculating back to 20 January, 1998, the learned sentencing judge should have had, in the circumstances, regard to the period from September, 1997 to January, 1998. He contended that the sentences passed reflected that insufficient weight had been attached to this matter.

4. Counsel then turned to ground 1, contending that the practical effect of the sentences imposed is that the applicant will not be released until approximately July, 2002. Under the sentences imposed by His Honour Judge Meagher he would have been eligible for release at approximately October, 2002. Thus, so the argument went, in their effect the sentences were very similar and this was so in the face of the applicant’s pleas of guilty, the absence from the second presentment of a count relating to a particular complainant and the history of the criminal process with which the applicant had been involved.

5. Mr Tehan also drew attention to the circumstance that the applicant’s offences are nearly ten years old and, in fact, pre-date the armed robbery for which he was sentenced in June, 1995. So, too, the applicant had abstained from alcohol on the evidence since mid 1992, thus removing a problem which had brought him into repeated conflict with the law.

6. Finally, mention was made of the applicant’s good work history and his family circumstances which included his wife’s illness.

7. Mrs Quin for the Crown, in an argument which lost none of its quality from its economical presentation, submitted, as to grounds 2 and 3, that His Honour Judge Meagher and the learned sentencing judge were faced with different evidentiary bases. As to the first complainant, “S”, His Honour Judge Meagher had before him two like, but uncharged incidents and the sentencing judge four. As to the second complainant, “C”, different associated circumstances were supplied to the two judges. As the two proceedings were not essentially the same, so the argument proceeded, the principles in Chen were not violated. Alternatively, she put it, the amount of information actually provided to the sentencing judge as to the earlier sentence was sufficient, with the same result. She cited R. v. Wright (unreported) CCA (Vic) judgment given 13 May, 1974 where it was held that where an accused person consented to his presentment on ten counts representative of the 65 charges upon which he had been committed, it was proper for a sentencing judge to have regard to the whole picture of his conduct. This, counsel submitted, is the law in Victoria.

8. Turning to ground 4, Mrs Quin submitted that the learned sentencing judge was, of course, aware that the applicant had pleaded guilty and expressly stated that he took those pleas “into account in your (the applicant’s) favour”. So, too, in his reasons for sentence, His Honour noted the timing of the plea.

9. As to ground 5, counsel pointed out that the applicant’s counsel gave the judge a deal of information as to previous custody of the applicant in protection and the likelihood of him having to serve a future term of imprisonment in the same fashion. His Honour indicated in his reasons that he found it “likely” that any sentence he imposed would have to be served by the applicant in this way.

10. As to ground 6, Mrs Quin furnished the Court with details of the sentence imposed on the applicant in June, 1995. It was apparent from the transcript, she said, and from Exhibit B before the judge, that the applicant was due for release on parole on 16 January last (the judge was given the date of 14 January, 1998 by counsel). In his reasons, she pointed out, the judge noted the general terms of this sentence. In addition, said counsel, the pre-sentence declaration appears to have been agreed by counsel at 145 days as at the date of the plea and the judge brought that figure up to the date of sentence.

11. As to ground 1, counsel submitted that the sentence was not manifestly excessive and contended that there were a number of aggravating features in the applicant’s conduct. These included his position of trust, the age of his victims, the threats he uttered and the serious nature of his offences. Nor was the court dealing with an isolated offence. Rather, the applicant’s conduct was persisted in over a lengthy period with significant adverse effects on his victims. Mrs Quin submitted that perusal of the remarks on sentence showed that His Honour had regard to all relevant circumstances.

12. I now turn to my conclusions.

13. In my opinion, there is no substance to ground 6. Firstly, the judge was never asked on behalf of the applicant to take into account in a specific way the period from September, 1997 to the notional date of parole in January, 1998. His Honour was asked, if I read counsel correctly, to take into account in a general way the circumstance that the applicant had been in custody continuously since the commencement of his 1995 sentence. A perusal of the reasons for sentence shows that not only did the learned judge say that he took into account that sentence, but also that the circumstance that the applicant’s prospective sentence followed immediately upon it, would produce “a lesser effective sentence...than would otherwise be the case”. I also accept that the period of 145 days pre-sentence detention was a matter of agreement before His Honour. This ground must fail.

1. Nor would I uphold grounds 4 and 5. His Honour expressly adverted to the fact of the applicant’s plea and the circumstances under which he would serve his prospective sentence. It is not to be supposed that he failed to give adequate weight to these matters.

2. Grounds 2 and 3. As to the latter, observations of the Court of Criminal Appeal in R. v. Emery unreported, judgment given 11 April, 1979 are apposite. Young, C.J., with whom Menhennitt and Jenkinson, JJ. agreed, said:

   “But it is necessary to say, I think, that such a ground (i.e. that an applicant received after a retrial a more severe sentence) does not justify the interference of this Court. When sentence is passed a discretionary judgment is exercised and that judgment necessarily depends upon the view of all the circumstances of the offence and the offender taken by the judge whose task it is to pass sentence. It is notorious that one judge will take a different view of an offence and an offender from that taken by another judge. The mere fact that on a previous occasion, when sentencing for this offence, another judge passed a sentence which was less than the sentence which the applicant is now obliged to serve is no reason for this Court interfering in the sentence so passed.” (7)

3. To my mind, the resolution of ground 2 depends on an examination of the factual bases upon which the two judges passed sentence. I think there is merit in the submission of Mrs Quin that Chen has no application if the two bases were different. As to them, the following matters are clear.

   * The applicant was convicted on seven counts before His Honour Judge Meagher and on four counts before the sentencing judge.

   * The counts on which the applicant was convicted before His Honour Judge Meagher involved three complainants and those before the sentencing judge, two.

* The sentencing judge did not have before him the evidence given at the

applicant’s trial.

* The sentencing judge had depositional material before him.

1. The rest of the picture is, in my opinion, far from clear. The Crown prosecutor informed the sentencing judge that the counts were representative and proceeded to open the facts. But, in doing so she did not advert to any uncharged criminal conduct when dealing with counts 1, 2 and 3 save to mention as to events in September of 1989 touching count 2, conduct which the applicant “usually did”. With respect to count 4, (a count of penile sexual penetration of the victim’s vagina) she referred to as “background” an incident of digital penetration and referred the learned judge to R. v. Holyoak (1995) 82 A. Crim. R. 502. In his reasons for sentence, the learned judge noted the counts’ representative character, stating that it prevented them being treated as “isolated” offences but did not refer to any uncharged acts. He had earlier stated that he had “read all the material”. Whether he took into account, factually, the four uncharged events touching “S” and the associated circumstances touching “C” is, in my opinion, a matter of speculation.

2. At the end of the day I am certainly not persuaded that the factual sentencing bases of the two judges were the same or that the differences were “minor” as Mr Tehan asserted in his outline of argument. In any event, having regard to the conclusion I have reached touching ground 1, it is unnecessary to further deal with these grounds.

3. As to ground 1, the applicant’s pleas of guilty followed after a long period in custody for other offences. True it is that his pleas were late and true it is that he had already put his victims through the ordeal of giving evidence. But the learned sentencing judge did not, as he might have, treat the pleas as having virtually no weight. Rather, he found that they “must be taken into account” in the applicant’s favour. He did this, conscious of their timing. Further, he did not find that in pleading guilty the applicant was simply acknowledging the inevitability of conviction, rather, he found that the applicant had “some remorse” for his offences and that he did “regret their commission”. Finally, the learned judge found that it was unlikely that the applicant would commit similar offences and that he now had “a high level of motivation” to keep out of trouble. These findings doubtless reflected the cogent evidence of the applicant’s successful efforts at rehabilitation.

4. Granting the gravity of the applicant’s misconduct these findings, in my opinion, sit uncomfortably with the sentence imposed. Taking them into account in the usual process of identifying all the relevant circumstances and then examining the face of the sentence, I am persuaded that the sentence imposed is indeed, both as to its total effective term and non parole period, manifestly excessive. I would uphold ground 1.

5. I have read the judgments of the other members of the Court in draft form. They have taken a somewhat different view in the resolution of ground 1. As mine is a minority view, there is no point in saying more.

ORMISTON, J. A.:

1. On this application I have found it necessary, unfortunately, to differ in part from the conclusion of the Chief Justice as to the outcome. Upon careful reflection I have concluded that in substance I prefer the reasoning and outcome proposed by Batt, J.A. However, I would desire to express my opinion on the following matters.

2. As presented to the Court the primary argument seemed to be addressed to the failure of the learned sentencing judge on this occasion to have proper regard to the sentences imposed by Judge Meagher at the conclusion of the earlier trial of the applicant in October 1996. As explained in the Chief Justice's judgment, the total effective sentence and the term to be served before becoming eligible for parole were each less than was imposed on the earlier occasion, to the extent of one year and eight months and one year and six months' respectively, although on the earlier occasion the sentences related also to an indecent assault on a child not the subject of the plea and the non-parole period was fixed in relation to not only those offences but also certain unrelated offences for which the applicant was then undergoing sentence. However, although overall the terms imposed were lower, the term imposed on count 3 was one year longer and the term imposed on count 4 was two years longer.

3. The complaint now made arising out of that comparison is that the judge wrongly failed to "consider" the sentences imposed by Judge Meagher and that he erred in sentencing the applicant to terms greater than those imposed by that judge. Each of the complaints is partly true, but I would agree with the other members of the Court that the significance is not as great as might first appear. It is clear that the learned judge was aware of the earlier trial and that the presentment had been reformulated to include representative counts, but counsel then appearing for the applicant did not inform him in detail of the sentences earlier passed. He merely enquired as to whether the judge wished to hear of the sentences previously passed but the judge made clear that, if counsel wanted to tell him, he could do so. In fact it was then that the judge was notified of the total effective sentence and the minimum term, but nothing of the details. Thus counsel then appearing not only knew that the judge was unaware of the details but also chose not to give any further detail.

4. Obviously it is unwise to impose a sentence without being aware of sentences previously imposed for identical or similar counts on the same accused. Failure by counsel to inform the judge may, in other circumstances, evidence mere ignorance in assuming that the judge would necessarily be aware of the details of the sentences because in some way they would be reflected on the file or some other record which would be available as of course. The risk of remaining ignorant is that there will be such a disparity between the earlier imposed sentences and the later ones that, although it has been recognised to be a separate exercise, the prisoner may feel a sense of grievance because the difference is so great as to lead to a perception of injustice because those differences have not been explained. Whether the perception is really justified is another matter but it seems that that issue is to be resolved by the High Court in Markovina v. The Queen, in which leave to appeal was granted on 11 September 1998. For myself, I would think it preferable to avoid such perceptions, however unjustified they may be in all the circumstances, by the sentencing judge explaining in clear terms why it is that different sentences are to be imposed, if this is what is required. From the accused's point of view that must occur where higher sentences are to be imposed, but there might likewise be good sense, from the victims' and the community's point of view, if it were also done in cases where lower sentences are to be imposed.

5. As the other members of the Court have pointed out, the principle stated in R. v. Chen [1993] 2 V.R. 139 at 158 requires only that the judge should have regard to "the fact of and the practical effect of the earlier sentences". I am not inclined, however, to accept counsel's submission that the judge did that in the present case inasmuch as he was told only of the total effective head sentence and the non-parole period. The relevant sentences in each case must start with the individual sentences and to those the learned judge did not pay and could not have paid regard. However, that should not be the end of the matter. The issue was squarely raised in the course of the plea, counsel then acting for the applicant made a choice and the choice in this case was not entirely negative, but resulted only in giving the bare bones of the sentence and going no further. In the absence of some accusation that counsel was negligent or the like (and this was not suggested), it cannot now be said that the judge wrongly failed to go further, unless it be said that, regardless of the choice made by counsel on behalf of the prisoner, it is incumbent on every judge to make himself or herself aware precisely of the terms of the earlier sentences. On that issue I would consider that there must be at least some element of discretion left to counsel in conducting a plea which would include the right to say that, for the purposes of making submissions on what sentences were then appropriate, no account should be taken of what was earlier passed by way of sentence. Forensically one can think of a number of reasons why counsel responsibly would not seek to draw the judge's attention to earlier sentences. In the first place it may be thought inappropriate to spend time examining the differences between the basis for the earlier sentences and the basis then under consideration. Secondly, and again on this hypothetical basis, counsel may think it unwise to draw attention to severe sentences already handed down.

6. Finally on this ground, the argument draws attention to a problem arising in a number of sentencing appeals, namely, the perceived inequity arising from the imposition of sentences passed at different times but upon what is claimed to be the same basis. In this case I agree with the conclusions of the Chief Justice as to the differences which did exist between the basis for the sentences earlier imposed and that for the sentences which are the subject of this appeal: the Chief Justice has had the very distinct advantage of hearing the appeal from the convictions sustained when the applicant was first found guilty and sentenced and his views as to the differences reinforce those which otherwise might have appealed to me. The matter, however, goes further. In essence the applicant says that he had a justifiable sense of grievance because in certain respects his sentences on this occasion might be seen to be more stringent than those formerly imposed. Senses of grievance vary considerably and one would not be surprised if by far the majority of prisoners were aggrieved by the sentences they received. The question in each case, however, is whether there is a "justifiable" grievance. The difficulty is in determining what justifiably creates a sense of grievance such that an appellate court should interfere. Up to the present time observations such as those expressed and cited in cases such as Chen and Bedford (cited by the Chief Justice) have been taken to permit a judge on re-sentencing to work out a sentence which in all the circumstances is appropriate both to the offence and the offender. There is, however, in logic no reason why the re-sentenced offender should not feel a sense of grievance if the new sentence differs significantly from that which was formerly imposed. Indeed the argument may be thought to be stronger than in the case of co-offenders inasmuch as the court is dealing with exactly the same offender, although even then other events may have occurred which are disclosed in the course of the later sentencing hearing and which enable a judge to take a different view. Thus in some cases, though it seems almost too obvious to make the observation, the evidence may differ as to the offender's character and prospects for rehabilitation or the like to such an extent that no sense of grievance could fairly be felt by an offender then given a harsher term upon the basis of the new evidentiary materials. Again it is easy to assert that the circumstances of the offence must be the same in each case, but that flies in the face of experience, inasmuch as it is rare in any case of even moderate complexity for the trial (or other) evidence relating to the crime or crimes to coincide or to bear sufficiently similar a complexion as would require the subsequent sentencing judge to apply Chen directly or to observe any more stringent rule.

7. In the present case this Court is not forced by reason of authority or otherwise to the conclusion that the judge was not entitled to look upon the circumstances of both the applicant and the crimes he admitted in a way which could fairly permit some variation in sentence as here occurred. Doubtless Sir Rupert Cross was correct when he first asserted that like cases should be treated alike (Punishment, Prison and the Public (1971) at p.167), and so it has been held that identical charges should be treated alike. The principle cannot be gainsaid in this country (R. v. Lowe (1984) 154 C.L.R. 606 at 610-611 and 623) but, with the greatest of respect, care should be taken in the application of that principle both to co-offenders and in other circumstances. Since Sir Rupert Cross wrote there have been a plethora of sentencing statutes in which large numbers of factors are required to be taken into account, especially in relation to the offender, and likewise there have been vast numbers of reported cases seeking to lay down "principles" relating to the consideration of the characteristics of offenders or the nature of particular offences and the means of their commission. To the cynical it might seem difficult now to take the application of the principle stated in Lowe far beyond the case of identical twins with no or identical records participating in the same manner in the commission of the same offence. Common- sense dictates that no unjustifiable disparity should occur when offenders are being sentenced at the same time, but it is perhaps preferable to describe the principle in terms of avoiding unnecessary and unjustifiable disparity, inasmuch as, as has been repeated on many occasions, there is no single correct or "right" sentence for any offence, only an appropriate range having regard both to the commission of the offence and the circumstances of the offender: cf. R. v. Storey [1998] 1 V.R. 359 at 366.

8. In the present case it is unnecessary to take the discussion further for the applicant received in substance a lower sentence having regard at least to the total effective term and the non-parole period and having regard to the fact that the particular offences were treated on the later sentencing hearing as representative. There can be no reasonable complaint about the somewhat greater terms imposed for the specific but now representative offences, counts 3 and 4, at least having regard to the degree of concurrency ordered.

9. This perhaps is an even more suitable case for consideration of the principles applicable to representative counts than that which the Court handed down on 17 December 1998 in R. v. SBL. During argument in the present case counsel were informed that the Director of Public Prosecutions was about to argue another case in the same week relating to representative counts and it was made clear that the Court would have to take into consideration the arguments it heard as to principle in the later case, but no objection was raised to the Court taking this course. I have attempted in SBL to say how the Court should approach the sentencing of persons convicted or pleading guilty to representative counts. The present case is one where it is clear why some more serious view should be taken of a count agreed to be treated as representative and where the fact that it forms part of a pattern of repetition may fairly be treated as an aggravating circumstance. The point is here emphasised by the fact that both counts 1 and 4 represent what formerly consisted of two counts on the original presentment on which the applicant was formerly found guilty, although that was not said to be the limit of the extent to which they were representative counts. Being a serious sexual offender for the purpose of count 4 the presumption would have been that the applicant should suffer a degree of cumulation, although the principles of totality might have required entirely concurrent (or almost concurrent) sentences: cf. R. v. Lomax [1998] 1 V.R. 551. It is sufficient here to say that I do not consider the sentences imposed by the learned sentencing judge were excessive or otherwise erroneous.

10. One other aspect of the case deserves some mention. Emphasis was placed on the fact that the applicant had now pleaded guilty to the offences in the latest presentment. Doubtless the Sentencing Act requires there to be some reflection of that fact in the course of the re-sentencing of the applicant. For myself I would treat it as here requiring only a very limited reduction in the appropriate sentence. Undoubtedly it has saved the State the expense and inconvenience of a further trial. On the other hand the applicant has now pleaded guilty to a series of offences which he previously contested and in respect of which he made no attempt to plead guilty for the purposes of the earlier trial. In consequence the youthful witnesses were put through the ordeal of having to give their evidence both at committal and at the first trial and had the prospect of having again to undergo the same ordeal in relation to offences which the applicant in the end admitted and to which he pleaded guilty. It cannot be said to be a mere compromise, for the offences are of a very serious kind, ordinarily justifying significant gaol terms, but the applicant chose in the end to admit them on a representative basis and there can be (and there was put forward) no excuse for not pleading guilty to them by the time of the earlier trial. As has been said on many occasions no prisoner can be penalised more for having placed guilt in issue but this was a case where the applicant sought a benefit by way of reduction and his admissions showed that the applicant must have known his guilt, so that any benefit to which he is entitled by reason of his pleading guilty (as provided by statute) should here have been of a minimal kind.

11. I agree with the observations of the Chief Justice as to the remaining added grounds and consequently there remains for consideration the first ground claiming that the sentence was manifestly excessive. As to that ground, in ordinary circumstances and having regard to the nature of the offences and of the criminality of the applicant, I would see no reason for concluding that the sentences imposed for each count and the new parole term were other than well within the appropriate range; indeed, they may be considered modest having regard to all the circumstances outlined in the Chief Justice's judgment, especially having regard to the applicant's long record. The fact that two counts are conceded as being representative merely emphasises the appalling nature of the applicant's behaviour towards the young children who had been placed in his trust. The only factors which might be seen to derogate from the need to impose condign punishment reflecting both the requirements for general and specific deterrence were those factors which had arisen from his apparent attempts at rehabilitation to which the learned sentencing judge referred. Even if the comparison with the earlier sentences had in the end been of significance, it was not clear whether that conduct had been known when the earlier sentencing took place, although the chronology, so far as is known, suggests that most of the information had been available. This is just another instance of how it is difficult to be aware of all the relevant factors taken into account on an earlier and different sentencing hearing, for clearly no transcript of the proceedings before, or of the remarks made by, Judge Meagher were made available to the learned judge on this occasion. Cost and time restraints make provision of more material largely impracticable.

1. Nevertheless the learned judge expressed himself as being satisfied about a number of factors which the applicant called in aid to justify his application and to establish the need to impose a lower set of sentences. There was of course the plea of guilty to the reformulated presentment, but I have dealt with that already and expressed the opinion that, of all occasions requiring reduction for such a plea, this perhaps required the least reduction. Further the judge directly referred to the fact that, having married a former prison officer, the applicant had been held in the protection division at the Melbourne Assessment Prison and would most likely have to serve his term in similar protection units, albeit that he might be sent to Ararat. The learned judge also pointed out that not only did he consider that the applicant regretted the commission of the offences but that he now had some remorse for those crimes.

2. However, the most significant of the learned judge's findings related to the applicant's apparent reformation and attempts at rehabilitation. He accepted that he was no longer a heavy drinker of alcohol which it seems was accepted as one of the elements leading to his exceptionally bad criminal record, albeit that only one of those offences was a sexual offence. His Honour accepted that since his marriage the applicant had made a very genuine attempt to reform himself, being largely motivated by his wish to look after his wife and child. His Honour expressly accepted that the applicant now had a "high level of motivation to keep out of trouble" so that he thought it "unlikely that [he] will commit similar offences".

3. It is after having had regard to those factors, especially those referred in the last paragraph, that I have reached the conclusion with some hesitation that the learned judge erred in the manner in which he sentenced the applicant. I cannot accept that the individual terms and the total effective term were beyond the appropriate ranges, even having regard to those factors to which I have referred, but it seems to me to have been unreasonable to have fixed a non-parole period of four years six months, namely a term only one year and ten months less than the total effective sentence. I am well aware of the authorities which require that in fixing a term of imprisonment both the head sentence and the minimum term should be looked at as a whole and that ordinarily one should not look only to the minimum term as a means of granting a degree of amelioration, if only because the non-parole period is not necessarily the minimum term and must depend upon the discretion of the Parole Board: cf. cases such as R. v. Bolton and Barker [1998] 1 V.R. 692. I do not accept that there is any hard and fast rule requiring equal or almost equal reduction. This seems to me to be a case where it was entirely inappropriate, and it remains inappropriate, to reduce the individual terms and the total effective sentence. These were very serious crimes affecting young children in circumstances where the continued pattern of criminal misbehaviour of all kinds could not and cannot justify lower terms. That to which the judge referred, especially the aspects of rehabilitation and the applicant's motivation, are still in the realm of speculation. There has been some improvement in his behaviour but for much of the period the applicant has been serving a sentence in one or other gaol and most of the rest of the time has been spent awaiting sentencing on one or other charge. It is not appropriate to reduce the head sentences because of these forecasts of continued good behaviour where there was so little convincing evidence of what the applicant will do when freed from the constraints of prison or the prospect of prison. The Court cannot allow the prisoner ultimately to be released after serving a lower sentence when one has regard to both his record and the nature of the offences.

4. On the other hand it should have been seen to have been entirely necessary, and I would presently consider it still necessary, to give the applicant a real sense of opportunity by imposing in this case a considerably lower non-parole period than is customary for this kind of offence. That which was put forward on his behalf shows that there may well be, after serving an appropriate time, good reason to allow the applicant to be released upon parole for an extended period so as to give him a direct opportunity both of proving his motivation and achieving his own ultimate rehabilitation. For that reason I would agree that the non-parole period imposed by the learned sentencing judge paid far too little regard to those prospects of rehabilitation, to the extent that it requires present reconsideration. In that sense I consider the sentence manifestly excessive. If there had been, and were now to be, a difference between the total effective sentence and non-parole period of three full years then I think that would give proper recognition of what so far appeared to be genuine attempts at reformation on the part of the applicant. If his progress is maintained then he may fairly expect to be released at the end of the non-parole period of three years and four months, as suggested by Batt, J.A. Having regard to his record and to all other relevant factors I do not consider that less than three years would be appropriate as the potential period for continued supervision by parole, so that I would agree that the application be allowed, the appeal be upheld and a non- parole period of three years and four months be substituted.

BATT, J. A.:

1. I have had the benefit of reading in draft the judgment of the Chief Justice. I agree with his Honour's reasons and conclusions on grounds 2 to 6, but I am unable to agree as regards ground 1 except to a limited extent.

2. Before turning to ground 1, I add some supplementary remarks about ground 2. This case is, I should have thought, somewhat unusual in that, when the parties knew of the previous sentence and all its details, the judge, although informed of the total effective sentence and the non-parole period set by reference to it and the term of imprisonment imposed in June 1995, was not informed of the individual sentences or the directions for cumulation. If it be accepted that, ordinarily at any rate, a judge should in sentencing an offender a second time seek to ascertain the details of the previously imposed sentence when he or she is aware of its imposition, the applicant cannot in this case, in my view, complain because it was clearly within defence counsel's power to inform the judge of the details and he made a deliberate decision not to do so, presumably for forensic reasons. This is so however one reads his Honour's remark "I make no inquiry. If you want to tell me, you tell me." In any event, having been informed of the total effective sentence and the non-parole period, his Honour had knowledge of "the fact of, and the practical effect of, the earlier sentence" within the principle stated in R. v. Chen[1993] 2 V.R. 139 at 158.

3. It was argued for the applicant under grounds 2 and 3 that, even so, his Honour did not have regard to the fact and practical effect of the earlier sentence, in the sense of taking them into account and giving weight to them as fundamental elements in arriving at his sentence, to adapt the language of Reg. v. Hunt; ex parte Sean Investments Pty. Ltd. (1979) 180 C.L.R. 322 at 329. Like the Chief Justice, however, I am in the end not persuaded that the factual sentencing bases of the two judges were the same or that the differences were minor. To what the Chief Justice has said I would add that the sentencing judge seems to have used the fact that the counts were representative merely negatively, to exclude a mitigatory view that the offences were isolated. For the reasons I give in R. v. SBL [1998] VSCA 144 I consider that the representative nature of the counts was a circumstance of aggravation and thus bore on the sentencing basis of the second judge.

4. I turn to ground 1 to make my own assessment of the sentence as a whole and each of its constituent elements. When I have regard, on the one hand, to the circumstances and seriousness of the offences, especially counts 2 and 4, the maximum penalties provided, the provisions concerning serious offenders, the applicant's record and the importance of general deterrence in sentencing for these offences, and, on the other, to the several favourable factors found by his Honour, including in particular that the applicant had some remorse, that as regards rehabilitation he had a high level of motivation to keep out of trouble, that it was unlikely that he would commit similar offences, and that he had already achieved some reformation by ceasing several years ago to drink heavily, together with the fact that he was likely to serve any term of imprisonment in protective custody, I cannot say that any of the individual sentences, including that for count 4, or any of the directions for cumulation is manifestly excessive. I reach that view even though I proceed on the footing that, as it seems to me, his Honour accepted Mr. Joblin's apparent opinion that since the applicant met his present wife he had genuinely undergone a significant psychological and attitudinal change. In making my own assessment, however, I consider that the applicant's pleas of guilty are entitled to little weight, coming, as they did, after he had required his victims to go through the ordeal of giving evidence in the first trial and to steel themselves to go through such an experience again.

5. I do, however, consider that the non-parole period of 4 years and 6 months is in the circumstances manifestly excessive. I have already referred to some of his Honour's findings about rehabilitation, achieved and prospective. His Honour's findings are, I think, deserving of greater weight when the final task of fixing upon the non-parole period is undertaken. Indeed, his Honour said, "That prospect of rehabilitation shall be reflected in the sentences I shall impose on you, particularly the non-parole period." To my mind, that has not occurred in relation to the non- parole period. In any event, since the question of non-fulfilment of the statement may not strictly be comprehended by ground 1, my view is that rehabilitation, achieved and prospective, warranted a lower non-parole period. On the assumption that the whole sentencing discretion is re-opened, I do not think that any other sentence for the individual offences or any other order as to cumulation or concurrency should have been passed. But I would, in all the circumstances, fix a period of 3 years and 4 months.

6. I would therefore uphold ground 1 to the extent indicated and allow the application for the purpose of substituting the non-parole period that I propose.