R v Vizzard

The applicant, Vizzard, appealed against the sentence imposed by the Supreme Court of New South Wales, Criminal Division. Vizzard pleaded guilty to multiple offences including permitting sodomy, attempted sodomy, indecent treatment of a child, wilful exposure, and procuring, which occurred between 1997 and 2001. The court sentenced Vizzard to a total of 23 years imprisonment, with all sentences running concurrently. Vizzard argued that the sentence was manifestly excessive, particularly as it failed to consider the totality principle.

The court was required to decide whether the sentence imposed was manifestly excessive or inadequate. This involved examining the principles of sentencing and whether the totality principle had been appropriately considered. The totality principle requires that the total sentence should not exceed the aggregate of the sentences that would have been imposed for each offence if they were to be served consecutively, adjusted to reflect the overlap of the terms of imprisonment. The court also considered whether the sentence imposed had adequately reflected the seriousness of the offences, the circumstances of the offender, and the need for deterrence and rehabilitation.

The court found that the sentence imposed was manifestly excessive, failing to properly consider the totality principle. The court held that the appropriate aggregate of the sentences for each offence, adjusted for overlap, was 14 years. Given the lengthy period Vizzard had already spent in custody, the court substituted sentences of four years each on the counts of permit sodomy and attempted sodomy, and sentences of three years on each of the other counts, to be served concurrently from 4 February 2012. This decision recognised the need to balance the severity of the crimes with the time already served by Vizzard, while also considering the principles of sentencing.