R v Grossi

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 405 of 2006

THE QUEEN
	v
SALLY GROSSI

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JUDGES:	VINCENT, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2007
DATE OF JUDGMENT:	2 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 51	1^st Revision 15 May 2008 – [53]

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Criminal Law – Aggregate sentences – s 9 Sentencing Act 1991 – Multiple counts of theft from employer – Separation of counts into two aggregate sentences – Impermissible aggregation of rolled up counts – Order for cumulation of part of one aggregate sentence on another – Ways in which composition of the aggregate sentence may be sufficiently exposed in the sentencing remarks – DPP v Felton [2007] VSCA 65 applied.

Pathological Gambling Addiction – Whether a mitigating factor affecting moral culpability and general deterrence – Relevance of principles explained in Rv Verdins (2007) 16 VR 269 to gambling addiction.

Continuing Criminal Enterprise Offences – Part 2B Sentencing Act 1991 – Whether offender to be sentenced for qualifying offences specified in s 6H as a continuing criminal enterprise offender – Whether increase in sentence necessary for continuing criminal enterprise offences.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Victoria Legal Aid

VINCENT JA:

Save that I agree with the view taken by Neave JA of the effect of the continuing enterprise offender provisions contained in Part 2B of the Sentencing Act 1991, I concur in the disposition of this matter proposed by Redlich JA and I do so for the reasons advanced by him in his judgment.

NEAVE JA:

I have had the advantage of reading the draft judgment of Redlich JA in this matter. As I explain below, I take a different view from his Honour on the effect of Part 2B of the Sentencing Act 1991. However, for the other reasons that Redlich JA gives, I would also allow the appeal and resentence the appellant in the manner he proposes.

I now turn to the question whether Part 2B of the Sentencing Act requires a person who is found guilty, at the same time, of three or more continuing criminal enterprise offences (‘CCE offences’) to be sentenced as a continuing criminal enterprise offender (‘CCE offender’) on all those offences, or whether the learned sentencing judge was correct in concluding that s 6I of the Act applies only in sentencing the offender on the third and any subsequent offence.

I should state at the outset, that I do not consider the other possibility advanced by the prosecutor, that is that the increased penalty which applies to CCE offenders applies only to the fourth and any subsequent CCE offence. For the reasons given in R v Arundell,[1] that interpretation is not open on the words of the legislation.
[1][2003] VSCA 69 [18]-[20].

If Part 2B means that once a person becomes a CCE offender the increased penalty applicable to CCE offences applies to all of the offences for which he or she is before the court, then it operates differently from Part 2A which deals with the sentencing of serious arson, sexual, violent and drug offenders.

The relevant provisions of Part 2A are as follows:

6A Application of Part
This Part applies to a court in sentencing—
(a)a serious sexual offender for a sexual offence or a violent offence;
(b)a serious violent offender for a serious violent offence;

(c) a serious drug offender for a drug offence;
(d) a serious arson offender for an arson offence.

6B Definitions for purposes of this Part
(1) In this Part—
arson offence means an offence to which clause 5 of Schedule 1 applies;
drug offence means an offence to which clause 4 of Schedule 1 applies;
serious violent offence means an offence to which clause 3 of Schedule 1 applies;
sexual offence means an offence to which clause 1 of Schedule 1 applies;
violent offence means an offence to which clause 2 of Schedule 1 applies.

(2) In this Part—
serious arson offender means an offender (other than a young offender) who has been convicted of an arson offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;
serious drug offender means an offender (other than a young offender) who has been convicted of a drug offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;
serious sexual offender means an offender (other than a young offender)—
(a)who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre; or
(b)who has been convicted of at least one sexual offence and at least one violent offence arising out of the one course of conduct for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;
serious violent offender means an offender (other than a young offender) who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre.

(3)     In this Part—
relevant offence, in relation to a serious offender, means—
(a)       an arson offence in the case of a serious arson offender;
(b)       a drug offence in the case of a serious drug offender;
(c)a sexual offence or a violent offence in the case of a serious
sexual offender;

(d)a serious violent offence in the case of a serious violent
offender;

serious offender means—
(a)       serious arson offender; or
(b)       serious drug offender; or
(c)       serious sexual offender; or
(d)      serious violent offender.

The effect of the serious offender provisions is that it is only after the offender has been convicted of the specified number and type of qualifying offences, and sentenced to a term of imprisonment or detention in a youth justice centre, that he or she becomes liable to be sentenced as a serious offender under Part 6A. In the case of a serious sexual offender, for example, the offender must have been convicted and sentenced to a term of imprisonment or detention for at least two sexual offences (as defined),[2] or for at least one sexual offence and one violent offence arising out of the one course of conduct, for each of which he or she has been sentenced to a term of imprisonment or detention, before the offender must be sentenced as a serious sexual offender for a relevant sexual offence.
[2]See Schedule 1, cl 1.

Section 6C(1)(a) provides that:

(1)In considering whether an offender being sentenced is a serious offender, a court must have regard to a conviction or convictions for a relevant offence irrespective of whether recorded –
(a)in the current trial or hearing; or
(b)in another trial or hearing; or
(c)in different trials or hearings held at different times; or
(d)in separate trials of different counts in the one presentment.

Although this provision requires the court to have regard to convictions for a relevant offence in the same trial or hearing, where a person is convicted and sentenced to imprisonment on multiple sexual offence counts[3] in the same presentment, he or she can only be sentenced as a serious sexual offender on the third and subsequent offences - that is the special sentencing principles applicable to serious sexual offenders do not apply to the first and second offence. Similarly, if a person is charged with more than one drug offence on the same presentment, the special sentencing principles relating to serious drug offenders apply only once the person has been convicted and sentenced to a term of imprisonment on the first offence, and not to the sentence imposed for the first offence.[4]
[3]Assuming that these come within the definition of sexual offences.
[4]See eg R v Arnautovic [2001] VSCA 34, [4]-[7]; R v Wai Keuone Wong [2007] VSCA 278, [13].

It is said that because Part 2A and Part 2B are expressed differently they must have been intended to operate differently.[5] In my opinion these drafting differences do not compel the conclusion that Part 2B of the Sentencing Act1991 requires a person who is found guilty of three or more CCE offences on the same presentment to be sentenced as a CCE offender on all those offences.
[5]The maxim is ‘expressum facit cessare tacitum.’ D C Pearce and R A Geddes, Statutory Interpretation in Australia (6^th ed, 2006) 142. The authors comment that in most circumstances this is a re-statement of the expressio unius est exclusio alterius principle.

The relevant provisions in Part 2B are set out in Redlich JA’s judgment.[6] The most significant difference in the language of Parts 2A and 2B is that the definitions of serious arson, drug, sexual and violent offender in Part 2A require the person to have been convicted and sentenced to a term of imprisonment or detention for the offences which qualify them to be sentenced as a serious offender (the ‘qualifying offences.’). By contrast, s6H defines a continuing criminal enterprise offender as a person who has been found guilty of the specified number of CCE offences.[7]
[6]At [60].
[7]That is three offences of the kind specified.

The reason for the difference in this language is unclear. The serious offender provisions were first included in the Sentencing Act 1991 by the Sentencing (Amendment Act) 1993. Neither the second reading speech[8] or the explanatory memorandum, which accompanied that amending Bill, made any reference to why the provisions included a requirement that the offender must have been sentenced to a term of imprisonment or detention for the offences. Similarly, neither the explanatory memorandum nor the second reading speech accompanying the legislation which introduced the continuing criminal enterprise provisions,[9] explain why a similar requirement was not imposed in relation to the offences which qualify a person to be sentenced as a CCE offender.
[8]Victoria, Parliamentary Debates, Legislative Assembly, 13 November 1997, 1354 (Mrs Wade, Attorney-General).
[9]Confiscation Act 1997, s 148.

It is said that the omission of the sentencing requirement in the definition of a CCE offender in s6H means that a person who is convicted of three or more CCE offences at the same time must be sentenced as a CCE offender on all of the offences and not just the third and subsequent offences.

In my opinion the presence of the requirement in Part 2A that the person be convicted and sentenced to a term of imprisonment and its absence in Part 2B does not dictate that conclusion. While differences in language can require separate sections in an Act to be interpreted differently, it is necessary to ‘seek confirmation in the broader context of the whole Act.’[10] I would have given greater weight to the difference in the language of the sections, if it were not for the fact that the substantive effect of s 6C(1)(a) produces a similar effect to that of s 6H(1)(c). The purpose of both s 6C and s 6H is to treat cases in which a person has been convicted of the requisite number of qualifying offences in the trial at which he or she falls to be sentenced (see s 6C(1)(a) and s 6H(1)(c)) in the same way as a person who has been convicted of some of the qualifying offences at an earlier or different trial (see s 6C(1)(b)(c)(d) and s 6H(1)(a) and (b)). The provisions ensure that regardless of whether the offender has been found guilty of the qualifying offences at the same trial, or different trials, they are to be sentenced as a serious offender (Part 2A) or a CCE offender (Part 2B). Section 6C(1)(a) requires a person who has been convicted of the requisite number of qualifying offences to be sentenced for the relevant offences as a serious offender, even though it is, in effect, a legal fiction to regard them as having been ‘sentenced to a term of imprisonment’ for the qualifying offences, before they are sentenced to a term of imprisonment for the relevant offence, when they are being sentenced for all the offences at the same time.
[10]Pearce and Geddes, above n 5, 142. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575.

When the context of Parts 2A and 2B is considered, the difference in language between these Parts does not support the submission that a person who is found guilty of three or more CCE offences on the same presentment must be sentenced as a CCE offender on all those offences.

In my opinion, the difference in language between these Parts may be explicable on a different basis. That is, that Schedule 1, which defines arson, drug, sexual and violent offences for the purposes of Part 2A, covers a broad range of offences, the seriousness of which may depend on the circumstances in which they were committed. One example of a Schedule 1 offence which may vary greatly in its seriousness, is threat to kill. Another example of such an offence is indecent assault, which may range from indecent touching of a relatively minor kind, to an indecent assault falling just short of rape.[11]
[11]As a result of amendments made to the Sentencing Act 1991 by the Working With Children Act 2005, all indecent assaults are now qualifying offences. Prior to these amendments, only indecent assaults accompanied by violence, or degradation of the victim, indecent assaults which occurred when the offender was aided and abetted by another person who was present, and indecent assaults against a victim under 16 were included. See Sentencing Act 1991, Schedule 1 cl 1(a)(ii) as at 1 January 2005.

In my opinion, the requirement that the person be both convicted and sentenced to a term of imprisonment serves as a mechanism to differentiate between an offence covered by cl 1, which, because of the characteristics of the offender or the circumstances in which it occurs, does not require a person to be sentenced to a term of imprisonment, and the same offence which, because of its seriousness, warrants a person being sentenced on the basis that their offending places other members of the community at serious risk of harm. Thus the requirement in s 6C that the person has been convicted and sentenced to a term of imprisonment for the qualifying offences allows a distinction to be drawn between offending which would otherwise be caught by the terms of Schedule 1 and offences which justify the person being sentenced as a serious offender.

By contrast, Schedule 1A defines a CCE offence to cover various offences of dishonesty, where the value of the relevant property is $50,000 or more. Because the seriousness of the qualifying offence is defined by reference to a monetary sum it is unnecessary to require that the person has been sentenced to a term of imprisonment in order to differentiate between more and less serious CCE offences.

It is said that, if it was intended that an offender could only be sentenced as a CCE offender on a third or subsequent offence, it was unnecessary for the definition of CCE offender in s 6H to differentiate between the situations covered by (a), (b) or (c). Instead the legislation could simply have provided that a person fell to be sentenced as a CCE offender when they were found guilty of a third qualifying offence. But it could equally be said that the provision was intended to make it clear that the provision applied regardless of whether the person was convicted of the relevant number of qualifying offences in the same trial or in different trials. This is precisely the same purpose as is achieved by s 6C(1)(a). The fact that the section could have been drafted differently to achieve its purpose does not require it to be interpreted to mean that once a person has become a CCE offender he or she must be sentenced on that basis for all the CCE offences.

It could be contended that such an interpretation is consistent with a literal interpretation of s 6H, when read with s 6I. The former provision defines a CCE offender as an offender who ‘is found guilty of three or more continuing criminal enterprise offences.’ The latter provision says that a CCE offender is liable to the increased penalty. The argument is that once a person acquires the status of a CCE offender they are liable to the increased penalty and that if it had been intended that this was only to apply to the third and subsequent offence, s 6I would have said so.

While I concede that this is one way in which Part 2B could be interpreted, I do not consider that it is the only possible interpretation. It could equally be said that the status of being a CCE offender does not come into existence until the person is convicted of the third offence and that thereafter s 6I applies.

There are two additional reasons supporting this interpretation of s 6H. First, as I have explained, a person who qualifies as a serious offender under Part 2B is only sentenced as such for the subsequent offences. In my opinion, it would be odd if the sentencing regime applicable to offenders who are found guilty of offences of dishonesty was harsher than that which applied to offenders convicted of serious arson, drug, sexual and violent offences.[12]
[12]Although I note that the sentencing consequences of being sentenced as a serious offender are different from being the consequences of being sentenced as a CCE offender.

Secondly, the sentencing principles in Part 2A apply regardless of whether the person is convicted of the qualifying offences and sentenced to a term of imprisonment in the same trial or in more than one trial. If the same approach does not apply in interpreting Part 2B, a person who is convicted of three or more qualifying offences in the same trial is potentially liable to much higher penalties than a person who has been convicted of such offences in successive trials. In the latter case, the person will not be subject to the higher penalties for the first or the first and second offence. In the former case, the offender will be subject to the higher penalties for all the offences.

It could be said that this distinction is justified, because there will be a nexus between qualifying offences contained in a single presentment,[13] and such a nexus will usually not exist between qualifying offences which have occurred previously and those for which the offender is being sentenced in a later trial. However, this contention assumes that Part 2B is primarily aimed at offenders who commit dishonesty offences which have some nexus between them, rather than simply at offenders who commit repeated dishonesty offences, which may involve different methodologies and be directed against different victims. The definition of a CCE offence in s 6H does not support the view that the legislation was aimed solely at those who commit linked CCE offences. Rather the purpose of the legislative amendment which introduced the CCE provisions[14] was to apply higher maximum penalties to criminals who ‘have acquired wealth as a result of sustained, repeat criminal behaviour’.[15] I therefore do not consider the legislation should be interpreted so as to provide a basis for treating offenders who are convicted of CCE offences at different trials more leniently than offenders who are convicted of three qualifying offences at the same trial.
[13]See Crimes Act 1958, Schedule 6, r 2.
[14]Part 6H was inserted as part of the Confiscation Act 1997, s 148.
[15]See the second reading speech which accompanied the Confiscation Bill: Victoria, Parliamentary Debates, Legislative Assembly, 13 November 1997, 1149 (Mrs Wade, Attorney-General).

In my opinion neither DPP v Kose[16] nor R vPandevski & Pandevska[17] precludes me from reaching the conclusion that Part 2B requires a CCE offender to be sentenced on that basis only for the third and any subsequent offence of which he or she is found guilty.
[16][2006] VSCA 119.
[17][2007] VSCA 84.

In DPP v Kose the question was whether the sentencing judge had erred by having failed to record that an offender who had committed three qualifying

offences was a CCE offender. The Director did not seek to invoke s 6I of the Act, so that it was unnecessary for the Court to consider whether he should have been sentenced as a CCE offender for the first two offences.[18] Redlich JA notes that it was ordered that it be entered in the records of the court that ‘in respect of those offences the fact that the offender was sentenced for a continuing criminal enterprise offence’. However, this matter does not appear to have been argued. I also observe that Ashley JA considered that the offender should have been sentenced as a CCE offender on the third offence.[19]

[18][2006] VSCA 119, [24].

[19]Ibid [36].

In R vPandevski & Pandevska[20] the basis of sentencing was not entirely clear. At one point in his reasons Eames JA appears to have assumed that s 6I applied to all the CCE offences,[21] but at another he seems to have regarded it as applicable only to some of the offences.[22] Again the issue was not argued.
[20][2007] VSCA 84, [2].
[21]Ibid [2].
[22]Ibid [26]. It is not clear whether this remark relates to the amount of property which was misappropriated or to the number of offences. See also Maxwell P, [49].

If I am wrong in my view as to the interpretation of Part B, so that s 6H applied to counts 7 and 8, as well as to count 9 and the subsequent offences, I agree with Redlich JA that, in the circumstances of this case, a higher sentence should not be imposed for these offences simply because the appellant was being sentenced as a CCE offender.

REDLICH JA:

Between 1999 and 2005, the appellant, who worked as a personal accountant for Mr Gordon and Mrs Marilyn Darling and for a charitable foundation established by Mr Darling, methodically embezzled funds amounting to $1,686,761. The appellant pleaded guilty to 19 counts of theft and was sentenced on 6 December 2006 to six years’ imprisonment with a non-parole period of three years and six months.

She has been granted leave to appeal against the sentence imposed.

This appeal is concerned with the methodology which should be employed in the imposition of an aggregate sentence, with the sentencing of the appellant as a ‘continuous criminal enterprise offender’ and the manner in which the sentencing judge dealt with the appellant’s pathological gambling addiction and her depressive and physical illnesses.

The appellant commenced work for the Darlings in 1998 as a personal accountant to them and also undertook administrative work for the Gordon Darling Foundation. Her role was to maintain the accounting records and to attend to the payment of creditors. The appellant worked a 30 hour week and at the time of the termination of her employment she was paid $74,000 per annum and also received an annual bonus.

Mr Darling was a very successful businessman in his early life and was at the time of the offending an elderly man and legally blind. He also had a major hearing difficulty. Despite these disabilities, at the time of the offences, he and his wife regularly travelled both within Australia and overseas. Both Mr and Mrs Darling had complete faith in the appellant’s integrity. Because of their travel, Mr Darling developed a practice of leaving signed but incomplete cheques with the appellant for the purposes of resolving business issues which might arise during his absence. In addition, his poor eyesight made it necessary to rely upon verbal directions given to him by the appellant as to the accounts that needed to be paid when presented with a cheque for signing. Following the appellant’s departure in 2005 it became apparent that the records kept for the Darlings and the Foundation had not been properly maintained. It was ascertained that a substantial number of cheque butts were missing. In an effort to rectify these accounting practices, an investigation was undertaken by an employee of the Myer Family Office Ltd who had general advisory responsibility for the affairs of Mr Darling and the Foundation. Upon obtaining the cheques relating to the missing cheque butts from the National Australia Bank, it was discovered that a large number of cheques had not been drawn in accordance with the records maintained by the appellant and for which she was solely responsible. Enquiries revealed the cheques had been drawn either in cash or deposited into bank accounts held by the appellant. All of the cheques were found to have Mr Darling’s genuine signature. By the completion of the investigation some 107 cheques were identified as having been unlawfully drawn on the Darlings’ accounts or on company accounts for which they were the controlling directors.

The appellant had concealed the thefts from the supervising accountants and her employers by recording fictitious expenditure in the accounting records, by duplicating legitimate expenditure in those records, by creating false records which indicated payments were made between the accounts of the Darlings and their three companies and by failing to complete cheque requisitions or following normal accounting procedure.

The presentment contained the following rolled up counts:

Count 1:    Mar’99-Oct’99 $ 24,425 8 individual thefts

Count 2:    Jan’00-Dec 00

$209,332

23 individual thefts

Count 3:    Jan’01-Dec’01

$127,025

13 individual thefts

Count 4:    Feb’02-Dec’02

$158,095

13 individual thefts

Count 5:   Jan’03-Dec’03

$148,610

17 individual thefts

Count 6:    Jan’04-Dec’04

$245,270

18 individual thefts

Count 18:   Feb’05-Apr’05

$ 26,118

3 individual thefts

The balance of the counts, 7 to 17 and count 19 were counts representing single thefts of individual amounts of $50,000 or more. Counts 9, 16 and 17 involve amounts in the order of $100,000. The learned sentencing judge resolved that the appellant fell to be sentenced in respect of counts 9 to 17 and count 19 as a continuing criminal enterprise (CCE) offender as defined in s 6H of the Sentencing Act 1991 (the Act). His Honour chose to impose an aggregate sentence of imprisonment in relation to the CCE offences and an aggregate sentence in relation to the rolled up counts. He explained his approach in these terms –

It is convenient with so many counts to impose aggregate sentences, an option introduced into the legislation on 16 August this year. Accordingly upon counts 9-17 and count 19 inclusive you are convicted and sentenced to an aggregate sentence of five years’ imprisonment. Upon the remaining rolled-up counts on the presentment you are convicted and sentenced to an aggregate term of three years’ imprisonment. I direct that one year of the latter sentence be served cumulatively upon the sentence of five years, making an effective total of six years’ imprisonment. I fix a non-parole period of three years and six months. Pursuant to s 6J of the Sentencing Act I direct that in respect of counts 9-17 inclusive and count 19 there be entered in the records of the Court the fact that you were sentenced for a continuing criminal enterprise offence.

His Honour felt constrained to impose separate aggregate sentences because he had been correctly informed on the plea, in accordance with the decision of this Court in R v Ralphs,[23] that offences which are charged as a ‘rolled-up’ count are not CCE offences because it is only by virtue of their ‘rolled-up’ value that they exceed $50,000. The use of aggregate sentences by his Honour has been impugned on a number of bases.
[23][2004] VSCA 33.

Aggregation of rolled up counts impermissible

Firstly it is submitted under ground 3 that –

The learned sentencing judge erred by imposing an aggregate sentence in respect of “rolled-up” counts.

The learned sentencing judge did not have the benefit of the decision of this Court in DPP v Felton[24] when imposing sentence in the present matter. It is now settled that when sentencing for offences that are pleaded as ‘rolled-up’ counts, the sentencing judge cannot impose an aggregate sentence pursuant to s 9 of the Act.[25] The respondent has correctly conceded that the learned sentencing judge fell into error by using an aggregate sentence to combine each of the counts that were ‘rolled-up’ as they comprised a collection of offences bundled together into single counts. His Honour described this aggregate sentence as applying to ‘the remaining rolled-up counts on the presentment’ but as his Honour had earlier noted in his reasons, counts 7 and 8 were not rolled-up counts but were single counts involving thefts of individual amounts of $50,000. It will be necessary to return to the treatment of counts 7 and 8.
[24][2007] VSCA 65.
[25]Ibid [42], (Kellam AJA); R v Galleta [2007] VSCA 177, [10], (Redlich JA).
Identification of components of aggregate sentence

The appellant relies upon a second error which arose as a consequence of the judge’s imposition of aggregate sentences of imprisonment. Under ground 5 it was contended that the learned sentencing judge had failed to explain adequately or at all the constituent notional sentences and notional orders for concurrency and cumulation that went to make up the two aggregate sentences. In Felton Buchanan JA considered that where an aggregate sentence is imposed, it is still necessary for the sentencing judge to identify at least in general terms the components of the sentence, that is, the individual terms and the extent of the concurrency and cumulation that has been employed. Kellam AJA, with whom Buchanan JA and Eames JA agreed, identified the matters which would need to be disclosed so that the components of the aggregate sentence could be understood. The judgments of both Buchanan JA and Kellam AJA drew upon passages from a number of the judgments of Doyle CJ which emphasise that no rigid formula need be followed when explaining the aggregate sentence.[26] But some explanation is required that enables the offender, the public and an Appeal Court to understand the reasoning process by which the single sentence was fixed.[27]
[26]R v Major (1998) 70 SASR 488, 490; R v Symonds (1999) SASC 217; R v Waugh (2005) 93 SASR 274, 284.
[27]R v Bibaoui [1997] 2 VR 600, 603-4 (Ormiston JA), 607 (Tadgell JA).

The criteria for offences which may be included in an aggregate sentence, namely offences ‘which are founded on the same facts, or form, or are part of, a series of offences of a same or a similar character’[28] is identical to the criteria relevant to a determination of when charges for any offence may be joined in the same presentment[29] and those offences exempted under s 9(1A) of the Act. Thus multiple offences on the same presentment will, by definition, be offences for which the Court may impose an aggregate sentence. But an aggregate sentence will not necessarily be appropriate where the presentment contains only a small number of counts,[30] or counts which vary significantly in their seriousness or the manner in which the offences were committed.
[28]Section 9(1) of the Act.
[29]Rule 2 of the Presentment Rules Crimes Act 1958 – sixth schedule.
[30]DPP v Felton [2007] VSCA 65 (Buchanan JA), [2], [19] (Kellam AJA).

An aggregate sentence of imprisonment should not be a lesser or a higher sentence than would otherwise be imposed if separate sentences were fixed in respect of each offence and orders for cumulation made. Thus the sentencing judge must make an assessment of the notional sentences that would have been imposed upon the individual offences and any orders for cumulation that would have been made in arriving at the total effective sentence which is converted into the aggregate sentence. Where the sentencing judge has concluded that the individual offences should all attract the same sentence and that concurrency is appropriate, no more than that need be stated. If it is concluded that some of the offences should attract different sentences or if some cumulation of the sentences should take place, that must be sufficiently exposed so that it can be understood how the end sentence was determined. That will normally be done by identifying a base sentence, any differences in the sentences for different counts and the extent of any cumulation between counts. This should be able to be done without dealing specifically with each count. Where the sentencing judge has concluded that the individual counts must be dealt with in groups reflecting ‘separate events, episodes or transactions’,[31] those groups can be identified in a generic way and any difference between the notional sentences for the different groups of offences and any cumulation between counts explained. But however it is done, the components must be sufficiently exposed to enable an understanding of how the aggregate sentence was determined.
[31]DPP v Grabovac [1998] 1VR 664, 676 (Ormiston JA).

The learned sentencing judge gave no explanation for the aggregate sentences that were imposed. The appellant contends that the aggregate sentences must have involved some element of cumulation as the individual offences within each of the two aggregate sentences varied substantially as to the amounts that were stolen. Furthermore, it was submitted that in relation to the aggregate sentence imposed for counts 9 to 17 and count 19, no individual count could have supported a sentence of five years’ imprisonment. Thus counsel for the respondent properly conceded that his Honour fell into error in failing to identify the components of the aggregate sentence and in particular the extent of concurrency and cumulation so as to explain the aggregate sentences that were imposed.

Cumulation of part of one aggregate sentence on another

It was further contended under ground 2 that his Honour had erred in ordering partial cumulation of one aggregate sentence upon the other. The power to direct that there be cumulation between ‘term(s) of imprisonment’ is found in s 16(1) of the Act. It was submitted that as s 9, which permitted aggregate sentences to be imposed, was introduced after s 16, the words ‘term of imprisonment’ which appear in s 16(1) were not intended to refer to an aggregate sentence so no order for cumulation could be made with respect to such a sentence. This submission is in my view without substance. There is nothing in the language of s 9 or s 16 which would support the conclusion that an aggregate sentence of imprisonment under s 9 was not a ‘term of imprisonment’ within the meaning of s 16. Moreover it would defeat the purpose of an aggregate sentence if the Court did not have the power to direct that a term of imprisonment which it imposed be served concurrently or cumulatively upon other sentences.

Separation of counts into two aggregate sentences permitted

The appellant also contended that his Honour was in error in imposing two aggregate sentences, as all of the counts on the presentment constituted one ‘series of offences of the same or of similar character allowing for the imposition of only one aggregate sentence and should not have been into two groups. In addition it was submitted that although the counts on the presentment were pleaded in chronological order, that order was not preserved when the individual offences were divided into two groups. In my view these submissions are also without substance. Section 9 provides that the Court may impose an aggregate sentence of imprisonment on part of a series of offences on the presentment in respect of ‘all or any two or more’ of the offences ‘which are founded on the same facts, or form or are part of a series of offences of the same or of similar character.’ If the sentencing judge considers it just and convenient to do so, the individual sentences comprising the series of offences may be divided up into two or more aggregate sentences as the judge sees fit.

Continuing Criminal Enterprise Offences- increased sentence not automatic

The learned sentencing judge grouped together counts 9 to 17 and count 19 as the appellant was a continuing criminal enterprise (‘CCE’) offender and these counts were CCE offences as defined in s 6H of the Act. Under cover of ground 6 it was submitted on the appellant’s behalf that his Honour had fallen into error in fixing an aggregate sentence of five years on those counts which were continuing criminal enterprise counts as opposed to the aggregate sentence of three years imposed on the ‘rolled up counts’. Relying upon R v Arundell[32] counsel for the appellant submitted that it was impermissible to automatically increase the penalty simply on account of the fact that an offender was guilty of a continuing criminal enterprise offence. It was submitted that his Honour had fallen into error in this way in the present case, no reason having been given by his Honour for the difference of two years between the two aggregate sentences. Counsel for the appellant drew attention to the fact that a number of the individual offences making up the aggregate sentence which consisted of rolled up counts, involved much larger sums of money than the continuing criminal enterprise offences comprising the second aggregate sentence. In this regard the circumstances appear to be indistinguishable from those considered in Arundell, as the difference in penalties there also appeared to rest solely upon the fact that the offences were continuing criminal enterprise counts.
[32][2003] VSCA 69 [28]-[29].

Themaximum penalty prescribed by Parliament for an offence provides authoritative guidance as to its relative seriousness and is prescribed for the worst class of the offence in question.[33] The increase will be relevant whenever the increase shows that Parliament regarded the previous penalties as inadequate. Even in cases where the new maximum is only of general assistance, it becomes the ‘yardstick’ which must be balanced with all other relevant factors.[34] But it does not necessarily follow that offences should attract an increased sentence because the maximum penalty has been increased. Thus, in Arundell, Vincent JA, with whom the Chief Justice and Cummins AJA agreed, regarded the absence of any reasons to explain the difference in the penalties imposed as raising a serious doubt as to whether proper regard had been given to what differential, if any, was required between those offences which were subject to an increased maximum penalty and those which were not. But that is not to say that the amount involved in a continuing criminal enterprise count will not in a particular case provide a sufficient justification, without more, for the imposition of an increased penalty. Here it was not disputed by the respondent that this, and the other errors to which I have referred required the re-opening of the sentencing discretion. We would do so if satisfied, as s 568(4) of the Crimes Act 1958 requires, that a different sentence should have been imposed.[35]
[33] Markarian v R (2005) 228 CLR 357; R v Sibic [2006] VSCA 296.
[34] R v AB (No 2) [2008] VSCA 39 [51]; DPP v Aydin & Kirsch [2005] VSCA 86, [10]-[12] (Callaway JA) as to the variable factors that bear upon the significance of an increased maximum.
[35]R v Palmieri [1998] 1 VR 486, 490, (Brooking and Hayne JJA); R v Wright and Gabriel [2008] VSCA 19, [46].

In plea mode counsel for the appellant drew attention to the following mitigating factors which it was submitted should lead to the imposition of a lower total effective sentence and non-parole period than was originally imposed. He relied upon the appellant’s plea of guilty, her full confession to investigating police, her genuine and profound remorse, her previous good character which had been the subject of compelling evidence on the plea and her good prospects of rehabilitation.

Relevance of pathological gambling addiction

The learned sentencing judge accepted that none of the stolen money had been kept by the appellant, it having been gambled away. The appellant was a Crown Casino club member and had been accorded special privileges at the Casino. On the plea evidence was called from a clinical and forensic psychologist who had assessed the appellant in August 2006 and was of the opinion that at the time of the offending the appellant would have been diagnosed as having an Impulse Control Disorder in the form of pathological gambling listed in Diagnostic and Statistical Manual (DSM-IV-TR, Code 312.31). In evidence the psychologist testified that the disorder enabled a person to ‘retreat to fantasy’. He further testified that the appellant had been unconsciously using disassociative defence mechanisms over many years in order to maintain her gambling addiction which developed during the course of an unhappy marriage. Psychiatric evidence was also tendered on the plea that the appellant had suffered from intermittent depressive symptoms for the last eight years as a consequence of marital problems and had embarked upon gambling as a means of distraction from her depression which had developed into pathological gambling.

During the plea it emerged that the appellant had been receiving counselling from a psychologist between October 1999 and January 2002 in relation to her gambling addiction. She had seen the psychologist on some 52 occasions. During those consultations the appellant claimed the source of funds she used for gambling came from her house mortgage. In his sentencing remarks his Honour appears to have accepted that the appellant resorted to gambling to escape from the realities of her unhappy marriage but despite the counselling she received, lacked the self-control to cease gambling and continued to delude herself that she could recoup her losses and repay the stolen money with large wins. His Honour found the appellant to be a pathological gambler and considered that to be a factor which should be taken into account in mitigation. Counsel for the respondent submitted that the appellant had continued to make the choice of stealing from her employers over a very extensive period of offending and that her addiction could not greatly impact upon general deterrence or her moral culpability which he described as being at a high level.

It is plain that the learned sentencing judge was acutely conscious of the appellant’s gambling addiction. His Honour adverted to the relevant sentencing principles which entitled him to attach little weight to the appellant’s gambling addiction as part of the intuitive sentencing synthesis.[36] Faced with this conclusion, counsel on the appeal, advanced a submission which had not been raised on the plea, to the effect that as the appellant suffered from a pathological gambling disorder, she had a form of mental disorder which, applying the principle in R v Verdins[37] required her condition to be treated as a mitigating factor. This argument was further refined, counsel placing particular emphasis upon the appellant’s major depressive illness which it was submitted was the underlying cause for the appellant’s chronic gambling addiction. As that addiction was a manifestation of her depression, it was submitted that both should have been taken into account in accordance with the principles stated in R v Verdins.
[36]R v Con Chi Huynh [2004] VSCA 128, [58] (Eames JA); DPP v Raddino (2002) 128 A Crim R 437, [26]-[27] (Chernov JA); R v Atalla (2002) 132 A Crim R 531, [12]-[15] (Vincent JA); R v Galletta [2007] VSCA 177, [15] (Redlich JA).
[37](2007) 16 VR 269, [26].

The argument advanced on appeal raised the threshold question as to whether the line of authority to the effect that little or no weight will usually be afforded to an offender’s gambling addiction must give way in light of the principles espoused in Tsiaras and Verdins.

There have been numerous clear and emphatic statements by this and other intermediate courts of appeal that the occasions on which it would be appropriate to treat a gambling addiction as a mitigating factor will be uncommon.[38] In R v Petrovic Charles JA described it as ‘a rare case indeed where an offender can properly call for mitigation of penalty on the ground that it was committed to feed a gambling addiction’ while Tadgell JA described it as ‘exceptional.’[39] Similar views were expressed by Winneke P in R v Pascoe.[40] In R v Con Chi Huynh & others Eames JA, citing DPP v Raddino[41] and R v Atalla[42] said that the sentencing judge was entitled to give it little if any weight.[43] When a gambling addiction should be afforded any weight as a mitigating factor and the weight to be attached to it will vary according to the nature of the case.[44] In some cases the addiction has rather been viewed as avoiding what otherwise would have been an aggravating motive such as pure greed or a desire to fund some other criminal activity.[45]
[38] R v Atalla [2002] 132 A Crim R 531 [14] (Vincent JA); R v Dawsan, Court of Appeal, 27 May 1997, 6 (Winneke P, Brooking JA and Ashley AJA); R v Molesworth [1999] NSWCCA 43; R v Telford [2005] SASC 349; Assi v R [2006] NSWCCA 257.
[39][1998] VSCA 95.
[40](Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Brooking and Charles JJA, 29 April 1998).
[41](2002) 129 A Crim R 437.
[42](2002) 132 A Crim R 531.
[43][2004] VSCA 128.
[44]R v Galletta [2007] VSCA 177, [15] (Redlich JA); R v Petrovic [1998] VSCA 95, [19]-[21] (Charles JA); R v Cavallin (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Tadgell, Ormiston and Phillips JJA, 24 July 1996); DPP v Raddino [2002] 128 A Crim R 437, [26]; R v Telford [2005] SASC 349; Assi v R [2006] NSWCCA 257, [27] (Howie J).
[45] Vu v R [2006] NSWCCA 188, [74] (Hall J); R v Henry (1999) 106 A Crim R 149, [225].

It would be an unusual case where evidence of addiction to gambling would have any significant effect upon the importance of the element of general deterrence.[46] In R v Luong, Nguyen & Cao[47] the sentencing judge did not accept that the appellant’s gambling addiction was a mitigating factor to any significant extent. Winneke P with whom Charles and Chernov JJA agreed said:
[46]R v Martin (1994) 74 A Crim R 252 (Southwell J); R v Luong, Nguyen and Cao [2005] VSCA 94, [26] (Winneke P) and the cases therein cited; DPP v Raddino [2002] 128 A Crim R 437, [26]; R v Ivic [2006] SASC 8.
[47][2005] VSCA 94.

In my view, his Honour was correct to so regard the matter of "gamblingaddiction". It is apparent from the words which he used that he did regard the addiction togamblingas a mitigating factor "to some extent" but that it could not loom large in thesentenceto be imposed because of the very grave nature of the offending for which the applicant fell to be punished.
Whether or not an addiction togamblingcan mitigate asentenceby reflecting upon the offender’s "moral culpability" and the aspect of general deterrence will, as it seems to me, very much depend upon the nature of the crime and the circumstances of the offending. For my own part, the concept that an appropriatesentencefor widespread heroin trafficking should be moderated by the prisoner’sgamblingaddiction is not one which should loom large in the exercise of the Judge’s discretion. It may be that crimes of dishonesty precipitated bygambling addiction will attract a different view (see Novak); although the Court of Criminal Appeal in this State rejected the idea that Novak should become authority for the proposition that agamblingaddiction reduced the relative importance of the element of general deterrence even in crimes of dishonesty. In R v Martin Southwell, J. said (257):
"As it seems to me there is no logical distinction to be drawn, so far as evidence of addiction is concerned, between the commission of an armed robbery to obtain funds to feed on the one hand an addiction to heroin and on the other an addiction togambling. The same can be said where the offence is not that of armed robbery but a theft in breach of trust. In the latter type of case at least it would, in my opinion, be an unusual case where evidence of addiction togambling will significantly reduce the importance of the element of general deterrence."

Similar views have been adopted by this Court in the cases of R v Chamberlain; Limb; Dawsan and Pascoe. In the case of R v Dawsan, I said, with the concurrence of Brooking JA and Ashley AJA:
"In my view, it will be a rare case where a court will find that a person’sgambling habit will be available to that person for the purposes of mitigating thesentence which would otherwise be appropriate."

It follows that in my view no error has been disclosed on the part of the judge in failing to give adequate weight inmitigationofsentenceon account of the applicant’s addiction togambling.[48]

[48]See R v Telford [2005] SASC 349 where similar views were expressed.

As the passage from the judgment of Southwell J in Martin suggests, gambling addiction has sometimes been viewed as analogous to drug addiction for sentencing purposes.[49] Where a crime is not committed for gain but to satisfy a drug addiction, moral culpability is sometimes reduced,[50] but generally the addiction is afforded little weight. The underlying reason sometimes advanced is that where a crime is the predictable consequence of a rational choice to take the drug, that choice establishes moral responsibility for the condition at the time of the offence.[51] Where drugs are the cause of extended repeat offending, the addiction and any consequential impairment of judgment will generally be of only slight mitigatory significance.[52] Drug or alcohol induced conditions have not as a general rule required any significant moderation of sentencing considerations such as denunciation and deterrence.[53] Gambling addiction has been treated in the same manner.
[49]R v Martin (1994) 74 A Crim R 252 (Southwell J cited with approval in R v Luong); Garnsey v Stamford (2002) 131 A Crim R 427 (Underwood J).
[50] R v Tran [2002] VSCA 148, [9] (Phillips JA); R v McKee & Brooks [2003] VSCA 16, [12] (Buchanan JA); R v Tien [2007] VSCA 56, [23]; R v Nagy [1992] 1 VR 637, 640 (McGarvie J); R v Bernath [1997] 1 VR 271, 276 (Callaway JA, with whom Winneke P and Brooking JA agreed); Roberts & Urbanec [2004] VSCA 1, [142] (Batt JA); R v Nolan [1998] VSCA 135, [15] (Buchanan JA); R v Fox [2003] VSCA 138, [28]-[29] (Chernov JA).
[51]R v Henry (1999) 106 A Crim R 149 (Spigelman CJ); R v Ross [2001] VSCA 223, [17] (Callaway JA); R v Howell [2007] 16 VR 349, [19] (Nettle JA).
[52]R v Djeri [2006] VSCA 195, [13] (Nettle JA).
[53] R v Redenbach (1991) 52 A Crim R 95, 99; R v Sebalj [2006] VSCA 106, [14] (Vincent JA); R v Howell [2007] 16 VR 349, [19] and [20]; R v Do [2007] VSCA 308, [10] and [11] (Redlich JA).

In the recent decision of this court in R v Do[54] the application of the principles in Verdins to a pathological gambling condition were considered:

The statement of principle in R v Tsiaras[55] as explained in Verdins applies to a mental disorder or abnormality or an impairment of mental function whether or not the condition could properly be described as a serious mental illness.[56] The mental condition may affect the offender’s moral culpability, the extent of the need for denunciation of general or specific deterrence.[57] But just as Verdins explains that the absence of a label for the condition does not preclude the operation of the principle, so the ability to attach a label to the condition will not necessarily mean that the principle will apply. A diagnostic label is only the beginning, and not the end of such an enquiry. It is not the classification of the condition which matters but ‘what the evidence shows about the nature, extent and effect of the mental impairment’ at the relevant time.[58] The focus must be on how the particular condition affected mental functioning of the offender in the circumstances[59] … In any event, it would not necessarily have followed, had it been established by evidence that this disorder impaired the appellant’s ability to exercise appropriate judgment or make calm and rational choices or if it made him disinhibited,[60] that there should be a diminution in the appellant’s moral culpability or that there should be any amelioration of denunciation or specific or general deterrence. As Nettle JA states in R v Howell[61] ‘the theory in reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique’ and the assessment of moral culpability or the need for amelioration of denunciation or deterrence will depend upon the facts of each case.[62]

[54][2007] VSCA 308.

[55][1996] 1 VR 398.

[56](2007) 16 VR 269, [5].

[57]Ibid [17]-[18].

[58]Ibid [8].

[59]Ibid [13].

[60]Ibid [26](a)(b)(c).

[61](2007) 16 VR 349, [24].

[62]In Do there was a paucity of evidence explaining the gambling condition and its relationship to the commission of the evidence, the sentencing judge having found there was no just basis for reducing the appellant’s moral culpability or general deterrence because of his compulsion to gamble.

As Verdins explains, whether a particular mental condition should reduce moral culpability[63] or general deterrence,[64] and the extent to which it should do so, will usually depend upon :

(1) the nature and severity of the symptoms
(2)its effect on the mental capacity of the offender at the time of the offence or at the time of sentence.[65] There must be some connection between the condition and the commission of an offence. That nexus may be established by showing that it affected the offender’s ability to exercise an appropriate judgment in one or more of the ways stated in Verdins .

(3) the nature and seriousness of the offence.[66]

[63]R v Verdins (2007) 16 VR 269, [26].

[64]Ibid 272; R v Yaldiz [1998] 2 VR 376, 381; R v Skura [2004] VSCA 53, [8] (Buchanan JA), [33] (Smith AJA); R v Sebalj [2006] VSCA 106.

[65]R v Verdins (2007) 16 VR 269, 271; R v Yaldiz [1998] 2 VR 376, 383; R v Sebalj [2006] VSCA 106, [21].

[66]R v Verdins (2007) 16 VR 269, [25].

Properly analysed, there is in my view no tension between the principle explained in Verdins and those authorities which have dealt with gambling addiction. Evidence may establish that an offender suffers from an impulse control disorder in the form of pathological gambling listed in DSM-IV-TR, the essential feature of which is ‘persistent and recurrent maladaptive gambling behaviour that disrupts personal family or vocational pursuits’.[67] The relevance of the disorder to the sentence to be imposed, is then to be assessed in accordance with the principles restated in Verdins. That assessment will generally lead to the conclusion that the presence of a gambling addiction should not, on that ground alone, result in any appreciable moderation of the sentence. There are a number of reasons why that will be so. Firstly in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence. Secondly, it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period. The long term chase to recoup losses is characteristic of those with such a disorder. Thirdly, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning.[68] Fourthly, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence. Fifthly, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction.[69] This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession. Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated. The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission. Hence, by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct.
[67]DSM-IV-TR, [312.31].
[68] DPP v Bulfin [1998] 4 VR 114, 131; R v Atalla (2002) 132 A Crim R 531, (Vincent JA with whom Winneke P and Charles JA agreed).
[69]R v Telford [2005] SASC 349, [30]; R v De Stefano [2003] VSC 68, [56]( Kellam J).

The appellant’s conduct was premeditated, calculated, and systematic. Counsel for the appellant properly acknowledged that, to satisfy her addiction, the appellant had repeatedly exercised the choice to re-offend over a lengthy period and that this bore upon the weight to be given to her addiction. In my view the learned sentencing judge made no error in not mitigating the sentence to any significant extent because of the appellant’s gambling addiction. The existence of the disorder did not, on that ground alone, necessitate any reduction in moral culpability or amelioration of general deterrence.

Other mitigating factors- depressive illness and physical ailments

Counsel thus sought to mount the argument for mitigation of sentence upon additional personal factors. He relied upon a compelling body of evidence, tendered at the time of the plea, that the appellant suffered from a major depressive illness.[70] This was a mitigating factor which was properly to be taken into account. In addition the appellant also suffered from an irritable bowel syndrome and Crohn’s disease. The latter illness had required her hospitalisation on two occasions in April 2007 and again in August 2007. On the appeal it was accepted that the appellant’s illnesses had made prison more burdensome for her as difficulties in dietary management within the prison system and stress are factors which aggravate this condition. A report from the appellant’s gastroenterologist that was tendered on the appeal states that management of the disease is important to minimise the impact of the disease and to decrease the risk of complication. It was reported that management needed to take into account short term goals as well as being aware of long-term complications and this often leads to a difficult balancing of therapies, made even more difficult within a prison setting. The clinical manifestations of the disease which were described obviously make incarceration for the appellant more onerous. It was noted that the appellant also suffers from back and proximal joint pain and peripheral arthritis which is a common extra-intestinal manifestation of Crohn’s disease. The disease had been more active since the appellant’s incarceration and the gastroenterologist opined that that may relate to her current stressful situation. The appellant also suffered another complication of Crohn’s disease in that she had developed lactose and fructose malabsorption which requires a special diet which, when unsatisfied, results in an exacerbation of symptoms of the disease and increases vitamin and mineral malabsorption. Counsel for the respondent did not dispute that imprisonment will constitute a greater burden on the appellant by reason of her state of health.[71] A similar conclusion was reached in R v Orbach.[72]
[70]It was not in issue that such a condition was a mental condition to which Verdins applied. See for example R v Howell a major depressive episode of mild-moderate severity, so described in DSM-1V- TR- which placed the offender in a fragile emotional state and which had significantly disinhibited the offender, reduced the offender’s moral culpability and the need for general deterrence. (2007) 16 VR 349, [20],[23]-[24] (Nettle JA).
[71]R v Van Boxtell (2005) 11 VR 258, [29]-[30] (Callaway JA).
[72][2007] VSCA 166, [63]-[64] (Kaye AJA).

Taking all of these factors into account I consider that the sentence imposed at first instance was too high. I would fix an aggregate sentence for counts 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 19, each of them being CCE offences.

Treatment of qualifying counts of continuing criminal enterprise offences

To explain why the appellant is liable to be sentenced as a CCE offender on counts 7, 8 and 9,[73] it is necessary to consider Parts 2A and 2B of the Sentencing Act 1991 which deals with CCE offenders. Part 2B provides as follows:
[73]The first three counts on the presentment being CCE offences to which s 6H (1) (c) applies

6GThis Part applies to a court in sentencing a continuing criminal enterprise offender for a criminal enterprise offence.

6H (1) In this Part –
continuing criminal enterprise offence means an offence referred to in Schedule 1A;
continuing criminal enterprise offender means an offender who is found guilty of –
(a)a continuing criminal enterprise offence and who in another trial or hearing or more than one other trial or hearing had been found guilty of 2 or more relevant offences;
(b)2 continuing criminal enterprise offences and who in another trial or hearing had been found guilty of a relevant offence;
(c)3 or more continuing criminal enterprise offences;

relevant offence, in relation to a continuing criminal enterprise offence, means a continual criminal enterprise offence of which an offender has been found guilty within a period of 10 years before the date on which the later offence was committed
…

6I(1) A continuing criminal enterprise offender is liable, for a continuing criminal enterprise offence, to a maximum term of imprisonment of 2 times the length of the maximum term prescribed for the offence or 25 years, whichever is the lesser.
(2)This section has effect despite anything to the contrary in this or any other Act.

6J(1) A court that sentences a continuing criminal enterprise offender for a continuing criminal enterprise offence must, at the time of doing so, cause to be entered in the records of the court in respect of that offence the fact that the offender was sentenced for a continuing criminal enterprise offence.

The appellant, who had no prior convictions, and had therefore not been found guilty of any relevant offence as defined in 6H(1), faced a presentment containing 12 counts which were CCE offences. Upon the appellant being found guilty on counts 7, 8 and 9, the first three CCE offences, 6H(1)(c) was enlivened and the appellant became a CCE offender. All three ways in which an offender may become a CCE offender under 6H(1), call for the offender to have been found guilty of a specified number of CCE offences. This dependence upon guilt reveals the legislature’s intent that an offender, who meets the criteria in paragraphs (a) (b) or (c), becomes a CCE offender prior to being sentenced for any CCE offences on the presentment including those qualifying offences which have caused him to become a CCE offender.

On the plea, the prosecutor referred to counts 7, 8 and 9 as being the qualifying offences which brought s 6H into operation. He then said –

the more conservative view is that the counts subsequent to count 9 on the presentment of $50,000 or more those provisions come into play. The more liberal view is that if you have got three such counts then all counts on a presentment of $50,000 or more are covered by the 20 year maximum but I would be satisfied in this case if your Honour goes on a conservative view, mainly the maximum penalty for counts 10, 11, 12, 13, 14, 15, 16, 17 and 19.

The learned sentencing judge rejected both views proffered by the learned prosecutor and sentenced the appellant on the erroneous basis that count 9, the third of the three qualifying offences under s 6H(1) (c) was the first offence upon which the appellant fell to be sentenced as a continuing criminal enterprise offender.

Substantial amendments were made to the Sentencing Act in 1997 when the ‘serious offenders’ provisions forming Part 2A of the Act were introduced.[74] Part 2A required conviction and sentence for qualifying offences under the serious offender provisions. The definitions of ‘serious arson offender’, ‘serious drug offender’, ‘serious sexual offender’, and ‘serious violent offender’ contained within s 6B require that the offender to have been convicted and sentenced in relation to the qualifying offence or offences before they become a serious offender. Section 6C provided that the qualifying conviction for a serious offender could either be recorded in the current trial or hearing or in some other trial or hearing.
[74]Sentencing and Other Acts (Amendment) Act 1997 No 48, 1997.

Part 2B of the Act which immediately follows the serious offender provisions, was also introduced in 1997 by the Confiscation Act 1997 which also added a new Schedule 1A to the Sentencing Act.[75] Significantly the legislature chose to employ a quite different sentencing regime for the purpose of continuing criminal enterprise offenders (s 6G-6J) to that used for the serious offender provisions (6A-6F), an offender becoming a CCE offender upon a finding of guilt and without the requirement of being sentenced on a requisite number of CCE offences.
[75]Act No 108-1997, s 148-9.

In the second reading speech of the Confiscation Bill, the Attorney General described the intended CCE offenders regime:

A person who has three convictions for certain offences will be liable to be sentenced as a continuing enterprise offender. Some criminals have acquired wealth as a result of sustained repeat criminal behaviour. Under the Bill, where a person is convicted of three of the following offences within ten years and the amount involved in each offence is more that $50,000, the person will be liable to a maximum penalty which applies to that offence or up to 25 years imprisonment.

The purpose of Part 2B was explained in R v Arundell[76] by Vincent JA in these terms:

What is evident is that a number of categories of repeat offenders, who in different ways have been perceived as constituting a special risk to the community, have been created. Persons who fall within these categories are regarded as potentially liable to the imposition of a significantly increased maximum term of imprisonment should they continue to offend in relevantly similar fashion.
I would add that there is clearly a broader notion of the protection of the public also underlying these sets of provisions. Persons who by the commission of the required number of relevant offences have a demonstrated propensity to engage in serious criminal activity of a designated kind have been perceived as constituting a significant threat to the community which is entitled to protection through the sentencing process should they continue to offend.
Parliament has, through the enactment of Part 2B, expressed an intention to deter those who demonstrate preparedness to engage in repeated predatory behaviour, affecting through the commission of offences of the kind presently under consideration, the economic welfare of individual victims and the general community. That propensity may become apparent in the case of the commission of a relevant offence on or after 1 July 1998 when regard is had to other similar offences whether committed before or after that date.

[76](2003) VSCA 69.

Upon pleading guilty the appellant became a CCE offender who was to be sentenced on each of the 12 counts on the basis that they were continuing criminal enterprise offences. The unmistakeable effect of s 6H, 6I and 6J is to treat those qualifying offences upon which the offender has been found guilty[77] and which lead to the offender becoming a CCE offender, as CCE offences to which the increased maximum sentence applies. That is to say, the qualifying counts 7, 8 and 9, as well as the balance of those counts attracted the operation of s 6I so that the appellant became liable to be sentenced for each CCE offence to a maximum term of imprisonment twice the length of the maximum term which would otherwise apply.
[77]One CCE offence under 6H(a), two CCE offences under 6H(b) and three CCE offences under 6H(c).

This view accords with the approach adopted in DPP v Kose[78] where on a three count presentment, this court accepted the argument of the Director that upon pleading guilty to the three counts, the offender became a CCE offender;[79] the Chief Justice with whom Buchanan and Ashley JJA agreed, stating that it would be entered on the record that, the offender had been sentenced for a CCE offence on each count. Similarly in R v Pandevski & Pandevska[80] Maxwell P and Eames JA, dealing with a presentment containing 24 counts which were all CCE offences, assumed the increased penalty applied to all of the counts on the presentment. In the present case, pursuant to s 6J, it was necessary for a declaration to be made that in relation to each of the 12 counts, the appellant was sentenced for a CCE offence. But that is not to say, as I shall later explain, that the qualifying offences should necessarily attract a higher sentence than that which would have been imposed if the lower maximum sentence applied. So much is also implicit from Kose where it was noted that the Director did not seek to invoke s6I in relation to the CCE offences.
[78][2006] VSCA 119 (Warren CJ with whom Buchanan JA agreed [23] [27]; Ashley JA [37]).
[79]Ibid [24].
[80][2007] VSCA 84 [2].

In each of the circumstances in 6H(1)(a) and (b) and (c) the legislature provided that CCE offences would be before the Court for the purpose of sentence. Under 6H(1)(a), a CCE offender falls to be sentenced as a CCE offender on one CCE offence of which he is found to be guilty, the offender in one or more previous trials or hearing having been found guilty of two or more ‘relevant’ offences. Under 6H(b), the offender having been found guilty of two CCE offences and having been found guilty of a ‘relevant’ offence in another trial or hearing falls to be sentenced as a CCE offender on those two CCE offences. Under 6H(c), the offender having been found guilty of three or more CCE offences falls to be sentenced as a CCE offender for those offences. A ‘relevant’ offence under the definition is a CCE offence of which the offender has been found guilty – within the previous 10 years – and before the date on which the ‘later’ offence was committed. The ‘later’ offence is a reference to the CCE offence of which the offender has been found guilty and falls to be sentenced. Although the definition of ‘relevant’ offence refers to such an offence in the singular and to ‘the later offence’ in the singular, the definition will extend to ‘relevant’ offences in the plural (s 6H(a)) and to later offences in the plural (6H(b)).[81] In each of the circumstances contemplated in 6H(1), the CCE offender is liable to the increased maximum term of imprisonment specified in s 6I for all of the CCE offences on the presentment and which include the qualifying CCE offences.
[81]Interpretation of Legislation Act 1984 s 37(c), s 37(d).

The purpose behind Part 2B is to increase the punishment for scheduled criminal offences committed in a repetitive and sustained manner. As already noted, the presentment rules permit separate offences on the same presentment where they are founded on the same facts or form part of a series of offences of the same or a similar character and thus share a sufficient nexus.[82] Hence where 6H(1) (b) or (c) comes into play because there are at least two CCE offences on the presentment, there will be a connection between those qualifying offences, which will not necessarily be shared by the CCE offences and relevant offences in 6H (a) and (b). The number of CCE offences to which an offender is exposed, increases in each of (a) (b) and (c). The difference in liability under each of these subsections gives effect to the discernable legislative purpose that the more closely connected the CCE offences, the greater the potential liability may be.
[82]R v Reid (1999) 2 VR 605, 621.

It is evident that Parliament intended that the common law presumption relating to a ‘subsequent offence’[83] namely that an offender is not to be exposed to an increased penalty because of the commission of a prior offence, unless the offender has already been convicted and sentenced for that offence prior to the commission of the offence upon which the offender is to be sentenced, would not apply to Part 2A or 2B of the Sentencing Act. In R vCowburn,[84] this court, in dealing with a serious sex offender, rejected the notion that qualifying offences must be prior convictions and said:

It may be thought that among the principal considerations of Parliament in passing the 1993 Act was deterrence - both special and general. If a 'first-time' serial rapist is not to be regarded, throughout the sentencing process, as a 'serious sexual offender', there appears to be nothing in the 1993 Act to act as a general deterrent, except to those who have already been convicted of two serious sexual offences. In our view it is highly likely that Parliament intended to deter a much wider field, by saying to everyone, 'if you commit a series of serious sexual offences you will be dealt with harshly.

[83]Christie v Britnell [1895] 21 VLR 71, 73 (Madden CJ); Bell v Feehan [1985] VR 841, 843 (Gobbo J); Chief Commissioner of Police v Rigg (2004) 10 VR 134, 143 (Balmford J).

[84](1994) 74 A Crim R 385, 392.

In Cowburn the Court held that the predecessor to s 6C(1)(a) of the Act abrogated the principle that a prior conviction is not to be treated as an aggravating circumstance unless it is truly prior to the conviction in respect of which the offender stands to be sentenced. In R v Smart[85] the reasoning in Cowburn was said to apply mutatis mutandis to ss 6c(1)(b) and (c). Thus where an offender came within the literal definition of a serious offender-having been convicted of relevant offences- the presumption had no application and the offender fell to be sentenced on those offences as a serious offender. Nettle JA with whom Chernov JA and Harper AJA agreed, considered the language of 6C manifested an unmistakable and unambiguous intention to apply to prior convictions for sexual offences whensoever committed.[86]
[85][2005] VSCA 226.
[86]Ibid [23].

The reasoning in Smart and Cowburn is equally applicable to Part 2B and CCE offences whensoever committed. The legislative intent to displace that common law presumption has been manifested by unmistakeable and unambiguous language. Its application would render Part 2B meaningless and inoperative.[87] But the legislature has drawn a distinction between a ‘relevant offence’ and a CCE offence by defining a ‘relevant offence,’ so that it does not violate the presumption. A relevant offence is one upon which the offender was convicted prior to the commission of the subsequent CCE offence. This further illustrates the legislative intent that the offender may be liable to increased punishment for CCE offences, which are not prior convictions.
[87]Coco v R (1994) 179 CLR 427.

The different language employed in Part 2B for qualifying offences to that used in Part 2A further emphasises the legislature’s intent that the common law presumption or any variant of it has no application to Part 2 B. An offender becomes a CCE offender upon being ‘found guilty’ of three qualifying offences. The offender need not have been sentenced for any of the three qualifying offences at the time they become a CCE offender. The recent decision of R v Wong,[88] concerned with offences under Part 2A, draws attention to the distinction made in Part 2A between the qualifying offences, upon which the offender is to have been convicted and sentenced, and the subsequent offences upon which an offender is to be sentenced as a serious offender.[89]
[88][2007] VSCA 278 [13]
[89]See also Buchanan JA, [39]

As Part 2B describes in affirmative language the course which is to be followed, the presumption ‘expressum facit cessare tacitum’ operates to import a negative that the same matter is not to be conducted according to some other course.[90] Part 2B provides that an offender who has become a CCE offender upon a finding of guilt with respect to the requisite number of CCE offences is liable to be sentenced for the CCE offences before the court. The language does not permit any of those CCE offences, so defined, to be treated as though they were not CCE offences for the purpose of sentence. This maxim complements the ordinary rules of construction in determining the meaning of a statute,[91] the fundamental object being to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.[92]
[90]R v Wallis; Ex parte Employers Association of wool Selling Brokers (1949) 78 CLR 529, 500 (Dixon J); Pearce and Geddes, Statutory Interpretation in Australia (6^th ed, 2006) [4.30]. An example of the operation of the presumption although not referred to expressly, is to be found in R v Arundell [2003] VSCA 69, [26].
[91]Beckwith v R (1976) 135 CLR 569 (Gibbs J).
[92]Cooper Brooks Wollongong v Federal Commissioner of Taxation (1981) 35 ALR 151.

His Honour’s failure to treat counts 7 and 8 as CCE offences for the purpose of sentence rested upon a misconception as to what Arundell had decided. Like the present case, Arundell was one in which each of the qualifying offences were counts on the presentment on which the appellant fell to be sentenced. In Arundell the first two counts which fell within the definition of CCE offences, referred to in Schedule 1A, were offences which had been committed prior to the commencement of Part 2B. The court rejected the contention that Part 2B had any retrospective effect so that a person could not be sentenced as a CCE offender for any CCE offence which had been committed prior to the commencement of Part 2B,[93] but held that the CCE offences committed prior to Part 2B coming into effect could still constitute relevant offences.[94] Thus in Arundell the first two offences which fell within Schedule 1A, whilst constituting qualifying offences for the purpose of s 6H, were not offences which attracted the higher sentencing regime because they had been committed prior to the introduction of Part 2B. Although in Arundell only the third qualifying offence attracted the increased maximum penalty, the reasons given for so treating the third offence may be applied to the first and second qualifying offence and are consistent with the conclusions I have expressed about how the provisions of Part 2B are to be construed.
[93]R v Arundell [2003] VSCA 69, [18] (Vincent JA with whom the Chief Justice and Cummins AJA agreed).
[94]Ibid [18]–[20].

The language of Part 2B is incompatible with either the view that it is not until the fourth and subsequent CCE offences that the increased maximum penalty applies or with the view that it only applies to a third and subsequent CCE offences. Vincent JA in Arundell rejected the first of these views and made these observations:

The second basis upon which it was contended that his Honour fell into error with respect to the operation of Part 2B related to the manner in which the provisions would operate.
Counsel for the appellant submitted that it was only after the commission of a third qualifying offence and not upon its commission that an offender would be liable to the increased maximum penalty.
In support of this argument, reliance was placed upon a passage in the Explanatory Memorandum of the Confiscation Bill (1997), in which the relevant provisions were contained, when it was introduced before Parliament. It reads:

"Clause 148 provides a new maximum sentence for a person who is found to be a 'continuing criminal enterprise offender'. A continuing criminal enterprise offender is a person who commits a third or subsequent continuing criminal enterprise offence within ten years of having been convicted of at least two other continuing criminal enterprise offences. The offences which may constitute a continuing criminal enterprise offence are listed in clause 149. If a person is being sentenced in relation to a continuing criminal enterprise offence and that person is at that time a continuing criminal enterprise offender, the maximum term of imprisonment which may be imposed in relation to a continuing criminal enterprise offence is two times the length of the maximum term prescribed for the offence (for example, of theft) or 25 years, whichever is the lesser."[95]

In my opinion, the Explanatory Memorandum provides little assistance to the appellant and the contention can be dealt with very briefly. The legislation makes it clear that a person is designated as a continuing criminal enterprise offender upon conviction for a third relevant offence. When subsequently sentenced for that offence, he or she is clearly at that time within the category. Again there is no reason in principle nor is there any justification as a matter of statutory interpretation for not attributing to the words of the provision this obvious meaning and effect.[96]

[95]Ibid 53.

[96]This is an illustration of the operation of the presumption expressum facit cessare tacitum although not referred to expressly.

All three qualifying counts are CCE offences to which the increased maximum sentence applies. The learned sentencing judge should have found that counts 7 and 8 also constituted CCE offences to which s 6I applied.[97] But that does not mean that a proper exercise of the sentencing discretion required a sentence to be imposed on those counts that was greater than would have been imposed had the lower maximum sentence applied. If only the fourth CCE offence were intended to attract the increased maximum penalty, that being one of the views advanced by the prosecutor, plainly unintended outcomes under all three parts of the definition of a CCE offender would result. It would render parts (a) and (b) otiose as the offender could not be sentenced for any CCE offences where 6H(a) or (b)was applicable. And where (c) applied and there were only three counts on the presentment, it would fulfil no purpose. If it had been intended that the increased maximum penalty only applied upon conviction for the third CCE offence, the creation of the three part definition would have been unnecessary and serves no purpose. It would have sufficed to provide that an offender would become a CCE offender upon a finding of guilt for a third offence which fell within schedule 1A. Section 6H(1) was so designed so that the offender, upon becoming a CCE offender, is liable to the increased penalty for those qualifying CCE offences, which are before the court, whether it be one, two or three such offences.
[97]Refer to DPP v Kose [2006] VSCA 119.

Consequently I am unable to agree with Neave JA, that Part 2B is to be construed so as to produce the same result in relation to qualifying offences, as Part 2A. Such a construction would not, in my respectful opinion, give effect to the ordinary and unambiguous meaning of the words used in Part 2B, including the words that are defined. In my opinion, the important differences in the language of each Part shows an intent by Parliament that different sentencing regimes are to apply to the qualifying offences for ‘serious offenders’ and CCE offenders.

In the present case, the difference in views as to whether the appellant was to be sentenced as a CCE offender with respect to the first two qualifying offences does not affect the sentence which should be imposed. The sentencing judge retained a discretion as to whether a greater sentence should be imposed where the maximum penalty on a count is increased because it is a CCE offence. This discretion obviously extended to the qualifying CCE offences. We are not here concerned with the effect of ‘relevant offences’ under 6H(1) (a) or (b) and which may warrant the imposition of a greater sentence on the CCE offences. Where all of the qualifying CCE offences are before the court and it can be determined that the qualifying offences were committed in furtherance of a particular criminal scheme so that it can be said that from the outset that the offender intended to commit those offences to achieve their objective, it may be appropriate to impose a greater penalty on some or all of the qualifying CCE offences. There may be other circumstances where the nexus between the first, second and third qualifying offences would justify such an outcome. The present case was not one in which it could be shown that the appellant intended to commit any further offences at the time she committed the first or the second qualifying offences. In those circumstances it would not have been an appropriate exercise of the discretion to impose a greater sentence on the first or second qualifying offences because they were CCE offences.

I would enter in the records of the Court that the appellant was sentenced for a CCE offence in relation to counts 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 19 in accordance with s 6J. Each of the CCE offences involve the same crime and occurred in the period between January 2004 and April 2005. Apart from the amounts stolen, there is nothing distinguishable about the circumstances of each of the offences. Therefore they are offences which readily lend themselves to the aggregation provision. The aggregate sentence has been fixed on the basis that each of the three offences, counts 9, 16 and 17 involving sums in the order of $100,000, warrant a notional term of imprisonment of 15 months, one count to be the notional base sentence and three months on each of the other counts to be cumulative; the remaining nine counts involving sums of $50,000 warrant a notional sentence of six months on each with cumulation of one month of the sentence on each of those nine counts upon the base sentence of 15 months making an aggregate sentence of two years and six months. In relation to the rolled-up counts I would impose the following individual sentences. On each of counts 2 and 6, I would impose sentences of 24 months’ imprisonment, on each of counts 3, 4 and 5, I would impose sentences of 18 months’ imprisonment and on each of counts 1 and 18, I would impose sentences of three months’ imprisonment. I would order that 15 months of the sentence imposed on count 2, 12 months of the sentence imposed on count 6 and three months of the sentences imposed on counts 3, 4 and 5 be served cumulatively upon each other and upon the aggregate sentence making a total effective sentence of five years and six months. I would fix a period of three years before the appellant would be eligible for parole.

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Count 1: Mar’99-Oct’99	$ 24,425	8 individual thefts
Count 2: Jan’00-Dec 00	$209,332	23 individual thefts
Count 3: Jan’01-Dec’01	$127,025	13 individual thefts
Count 4: Feb’02-Dec’02	$158,095	13 individual thefts
Count 5: Jan’03-Dec’03	$148,610	17 individual thefts
Count 6: Jan’04-Dec’04	$245,270	18 individual thefts
Count 18: Feb’05-Apr’05	$ 26,118	3 individual thefts

[2008] VSCA 51

2 April 2008