Rankine v The Queen
[2022] VSCA 27
•7 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0175
| SCOTT RANKINE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T FORREST and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 February 2022 |
| DATE OF JUDGMENT: | 7 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 27 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1698 (Judge Bourke) |
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CRIMINAL LAW – Application for leave to appeal – Sentence – Whether orders for cumulation and resulting total effective sentence manifestly excessive – Persistent contravention of family violence intervention order – Whether contraventions distinct – Leave to appeal refused – Family Violence Protection Act 2008, s 125A – Pasinis v The Queen [2014] VSCA 97, considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Karitzis | Michael J Gleeson & Co |
| For the Respondent | Ms K Hamill | Ms A Hogan, Solicitor for Public Prosecutions |
T FORREST JA
WALKER JA:
The applicant pleaded guilty to and was convicted of 15 offences. Seven offences were indictable offences: one offence of common assault of his former partner, in which he grabbed her by the throat, pushed her against a concrete wall and headbutted her to the forehead; four offences of persistent contravention of a family violence intervention order, which related to his former partner (the ‘persistent contravention offences’); one offence of possession of a drug of dependence; and one offence of theft. The remaining eight offences were summary offences, including commission of an indictable offence while on bail; possession of a prohibited weapon; possession of a controlled weapon; trespass; and contravention of a family violence intervention order.
Following a plea hearing, the applicant was sentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Common assault[1] | 5 years’ imprisonment | 10 months | 4 months |
| 2 | Persistent contravention of family violence intervention order[2] | 5 years’ imprisonment | 12 months | Base |
| 3 | Persistent contravention of family violence intervention order | 5 years’ imprisonment | 12 months | 4 months |
| 4 | Persistent contravention of family violence intervention order | 5 years’ imprisonment | 12 months | 4 months |
| 5 | Persistent contravention of family violence intervention order | 5 years’ imprisonment | 12 months | 4 months |
| 6 | Possession of a drug of dependence[3] | 1 year imprisonment | 1 month | Nil |
| 7 | Theft[4] | 10 years’ imprisonment | 4 months | Nil |
| Related summary offences | ||||
| 11 | Commit indictable offence whilst on bail[5] | 3 months’ imprisonment | 1 month | Nil |
| 19 | Commit indictable offence whilst on bail | 3 months’ imprisonment | 1 month | Nil |
| 24 | Commit indictable offence whilst on bail | 3 months’ imprisonment | 1 month | Nil |
| 48 | Possession of prohibited weapon[6] | 2 years’ imprisonment | 3 months | Nil |
| 57 | Commit indictable offence whilst on bail | 3 months’ imprisonment | 1 month | Nil |
| 61 | Possession of controlled weapon[7] | 1 year imprisonment | 2 months | Nil |
| 66 | Trespass[8] | 6 months’ imprisonment | 2 months | Nil |
| 67 | Contravene Family Violence Intervention Order[9] | 2 years’ imprisonment | 3 months | Nil |
| Total Effective Sentence: | 2 years and 4 months’ imprisonment | |||
| Non-Parole Period: | 14 months | |||
| Pre-sentence Detention Declared: | 385 days | |||
| 6AAA Statement: | 3 years and 6 months’ imprisonment with a non-parole period of 2 years | |||
| Other orders:
| ||||
[1]Contrary to common law.
[2]Family Violence Protection Act 2008, s 125A (‘Family Violence Protection Act’).
[3]Drugs, Poisons and Controlled Substances Act 1981, s 73(1).
[4]Crimes Act 1958, s 74(1).
[5]Bail Act 1977, s 30B.
[6]Control of Weapons Act 1990, s 5AA.
[7]Control of Weapons Act 1990, s 6(1).
[8]Summary Offences Act 1966, s 9(1)(e).
[9]Family Violence Protection Act, s 123(2).
The applicant now seeks leave to appeal against sentence. His single ground of appeal is that the orders for cumulation on the persistent contravention offences, and the resultant total effective sentence, were manifestly excessive. He also seeks an extension of time in which to file his application for leave to appeal, which was filed some four days out of time. He filed an affidavit explaining the delay. The respondent does not oppose the extension of time.
Given that the application for an extension of time is not opposed, we would grant the extension of time to file the application for leave to appeal. However, for the reasons set out below, we would refuse leave to appeal on the basis that the application has no real prospects of success.
Circumstances of the offending
The applicant was 28 at the time of the offending, which occurred between June and October 2020. The primary victim of his offending was his ex-partner, Mandy Cummings,[10] who was 26. The applicant and Ms Cummings had been in an ‘on and off’ romantic relationship for three years, but that relationship had ended some two years prior to the offending. However, the two had remained in contact.
[10]A pseudonym.
The offending is described in the sentencing judge’s reasons for sentence, as follows:
Charge 1 on the indictment is the assault of her on the Syndal railway station. In the afternoon of 3 June, you grabbed her by the throat, pushed her against a concrete wall and headbutted her to the forehead. Police, who were called by others, observed her to be distressed and having a substantial lump on the head.
Charges 2 to 5 are offences of persistent contravention of a family violence intervention order protecting Mandy Cummings. In accordance with the relevant legislative definition of the offence, there are four specific periods of breach, each of about three to 10 days. In short, during these periods, you breached mainly non-communication conditions of the order multiple times. You also went to where she lived.
For example, there were 39 texts or phone calls from 16 June to 26 June, part of Charge 2. Some of your behaviour was particularly intimidating. You sent her a threatening text with an image of a sawn-off shotgun on 26 June.
You made 36 texts or calls on Charge 3, 31 July to 3 August, and made threats to or about her at her grandparents’ home where she was living. You went to her home twice in this period.
There were 34 texts or calls on Charge 4.
On Charge 5, 1 October to 8 October, you contacted her 10 times and went to her home twice. I accept an element of apparent acquiescence by her during this period, on 2 October. You went to her home in the early hours and she went with you, staying overnight at Narre Warren Quest Apartments and again for a time at Quest Apartments in East Burwood on 3 October. On 4 October, you went to her grandparents’ home and again on 7 October. On 8 October, there were texts, some of them threatening.
On each of the four occasions of breaching the order, you were on bail for matters not related to these before me.
There was further offending on 3 October. During that afternoon, there was an altercation between you and Mandy Cummings left. Staff at Quest called the police. The police found 34.5 grams of 1,4-Butanediol in the Quest Apartment room, Charge 6. Later at night, when locked out of the room, you broke in, the summary charge of trespass. I was told that you did this seeking to retrieve your car keys.
On 6 October, you stole jump leads from a car close to your home in Ferntree Gully, Charge 7. The next day, you left a note on the windscreen blaming Mandy Cummings.
You were arrested on 9 October in possession of a paring knife and a taser, the two summary weapons charges.
After arrest and in remand at Marngoneet prison, you committed a single breach of the family violence intervention order by sending a letter on 28 August of this year to Mandy Cummings. It was a more benign breach, apparently thanking her for some charges being dropped at the committal proceeding in these matters.
Mr Brogden raised that communication between you and Ms Cummings was also two-way and this may have been to some extent right. However, the order applied to you. Further, I find that a good deal of this offending was aggressive, oppressive and intimidating. There is no victim impact statement; however, I should presume such an effect upon your victim. The assault on the Syndal railway station, Charge 1, was uncontrolled, vicious and it was cowardly. You told police who attended that Mandy Cummings had herself headbutted a wall.[11]
[11]DPP v Rankine [2021] VCC 1698, [10]-[21] (‘Reasons’).
Matters in mitigation
On the plea the applicant advanced various matters in mitigation, as follows:
(a) the applicant’s early plea of guilty;
(b) the applicant’s self-engagement with rehabilitative ventures; and
(c) the applicant’s drug-free status, particularly during his period of detention.
The sentencing judge’s decision
After setting out the circumstances of the offending, the trial judge explained his reasons for sentence as follows:
You are a 29-year-old man, presently awaiting this sentence in remand custody. On my reckoning, there are 385 days of pre-sentence detention. You grew up in the Berwick area. You may live there with your parents when you are released from this sentence. They are highly supportive of you. Your father has recently been diagnosed with cancer.
Your life has been badly impacted by drug use. I accept that you were using heavily and often affected by that during the offending period. Your drug abuse overtime is consistent with aspects of your criminal record. There are offences, mainly possession, related to methylamphetamine, amphetamine, ecstasy, GHB, prescription drugs and cannabis. On my reckoning, that criminal record states 11 court appearances between March 2011 and July 2020, which is during the early part of this offending period. I am mindful of the fact of some duplication in the sense; for example, of returning to court because of breach or further offending under
community-based orders. There is prior offending related to drugs; but also violence, dishonesty and weapon charges. You were on a community corrections order when committing these offences. There is prior persistent breaching of a family violence intervention order, I was told, against Mandy Cummings. There are a number of breaches of a community corrections order.You have made attempts to rehabilitate from drug abuse. Particularly you successfully completed a four-month residential rehabilitation, the Bridge Program, in the first half of 2019. You returned to the community and, your parents’ letter states, functioned well for a period until a TAFE course and your rehabilitation was affected by the circumstances of the COVID-19 pandemic when you lapsed. You have kept contact with your Bridge counsellor.
Although inhibited by custodial COVID restrictions, you have sought programs in remand and taken part in some. This appears to include attendance at Narcotics Anonymous.
This offending was serious. The breaches of the intervention order evidence uncontrolled, drug-fuelled and obsessive behaviour which was at times specifically intimidating and nasty. It also shows that you are or were fundamentally not willing to comply with such orders when it did not suit. You did so very often.
You have relevant prior offending.
The other offences include the attack on Syndal railway station and reflect also a concerning failure to control yourself and respect others, particularly when using drugs. That drug use cannot be seen as mitigation. Such offending as this against women is seen as a major community problem.
The circumstances make relevant sentencing considerations of moral culpability, deterrence, that is both specific and general deterrence, condemnation of what you did and a need to proportionately punish it.
There must be a term of imprisonment. I have decided that it should be one of a head and minimum term. You have failed to comply in the past with community corrections orders.
On 15 October, I requested an assessment of your suitability for a community corrections order in the context of a so-called combined sentence order. You are found not suitable. The report refers to multiple failures on past orders and “minimal insight” into this offending. I agree with the assessment.
However, the length of sentence will take into account moderating factors. They include the following.
(i) Your plea of guilty. As to genuinely felt remorse, I am at least guarded really doubtful. You persistently offended against Mandy Cummings. There are aspects in the explanations given of your offending which understated its seriousness and likely effect; and, perhaps more significantly, indicate a failure to have insight into the purpose and need for such orders.
(ii) You have failed to succeed in rehabilitation before and one cannot be highly optimistic about it. However, I do not utterly discount your prospects. You have good support and I accept that, as in the past at the Bridge Program, you are motivated to reform. If you do not reform and abstain from drug use permanently, your future is bleak.
(iii) I also take into account the additional hardship of imprisonment caused by the COVID-19 pandemic and its necessary restrictions. I accept that there is risk, particularly given developing outbreaks in the prison system, anxiety and well-known impacts such as lockdowns, on movement, programs and personal support.
(iv) The principle of totality must be applied. This will mean only partial cumulation and whole concurrency on a number of sentences. The aim is a just, total sentence which makes inevitable some apparent anomaly in this.
Mr Brogden argued that I should impose a straight sentence, effectively of time served. I have decided that the circumstances of offending and adverse considerations and sentencing purposes which flow require a head term significantly beyond what you have served in remand. However, I shall set a minimum term which allows you the opportunity to seek parole and then, if granted, have the supervision and supports I think you need to rehabilitate.
After considering and weighing what I see to be the relevant matters, I sentence you as follows.[12]
[12]Reasons, [22]–[35].
His Honour then went on to set out the individual sentences, the periods of cumulation, the total effective sentence and the non-parole period, which are set out above in table form.
The parties’ submissions
As already noted, the applicant’s proposed ground of appeal is limited to the proposition that the degree of cumulation ordered in relation to the persistent contravention offences was manifestly excessive, with a consequence that the total effective sentence was also manifestly excessive.
The applicant submitted that the sentencing judge had identified, at the outset of the plea, the need for a high degree of concurrency between the sentences for each of the persistent contravention offences, because the conduct in question for each offence was ‘largely of the same kind’, and because it was somewhat artificial to divide that conduct up into discrete offences, despite that being required by the relevant legislation.[13] The applicant also observed that in the course of the plea the sentencing judge had noted that the ultimate sentence would be constrained by the maximum penalty of five years, which was reserved for the worst examples of the conduct in question.
[13]Family Violence Protection Act, s 125A.
The applicant further submitted that the persistent contravention offences were closely related in time, nature and circumstances (involving the same victim, the same intervention order, and proscribed conduct of the same character and seriousness), so as to justify a conclusion that, while technically separate, they were all properly characterised as part of a course of criminal conduct. He submitted that there was ‘a distinct overlap in the facts underpinning each of the particulars’ to the persistent contravention offences; and that it was not put to the sentencing judge that each charge comprised features of distinct and additional criminality. In those circumstances, he submitted, a cumulation of one third of the sentence imposed on charges three to five was unusually high, inviting heightened scrutiny.
The applicant submitted that the sentences and the orders for cumulation revealed that the judge had not made any real distinction between charges two to five, by reference to their individual seriousness, their relationship with each other, or the differences in culpability of the events that underpinned each charge. Further, he submitted in oral argument that the trial judge had overstated the seriousness and objective gravity of the persistent breach offences by finding that ‘a good deal of this offending was aggressive, oppressive and intimidating’.[14] He submitted that it was not open to the trial judge to describe the persistent breach offending in those terms, because it had not been put to the trial judge that ‘a good deal of the prescribed contact … was accompanied by any threats or oppressive contact’, and because ‘a lot of the communication … was not simply one way’.
[14]Reasons, [21].
When such scrutiny is undertaken, the applicant submitted, the sentencing judge’s conclusion that the impugned orders for cumulation were appropriate overlooked the following unchallenged matters that were raised on the plea:
c. The quantity of communications between the applicant and victim, and their context, was, to some degree, explicable on the basis that the victim had initiated messages and calls with the applicant. Assessed globally, the volume and frequency of contact and communication was modest.
d. The transmitting of prohibited text messages and telephone calls, occurring over 16 days, was the sole conduct the subject of charge 4, and not suggested to have been accompanied by threatening words or conduct.
e. The parties maintained mutual contact for periods of the relevant offending period. Relevantly, the victim’s attendance at the Quest Apartments, underpinning the facts to charge 5, was conceded to have not been … compelled by any threat and appears to have been on the basis of entering into a free, untrammelled agreement.
f. The resolution to the matters meant the applicant did not fall to be sentenced on the basis, and hence not unduly punished, for any threat to inflict serious injury, or to kill, notwithstanding the context of the transmitted communications.
The applicant submitted that the need for moderation of cumulation became greater as the individual sentences ‘skewed’ towards the high end of the available range (but he did not challenge the individual sentences as being outside the range reasonably available to the sentencing judge). In that context, he submitted that considerations of proportionality and totality required ‘a far more circumspect order for cumulation (if any)’. He submitted that the judge’s orders for cumulation were only explicable on the basis that the judge had ‘inflated the seriousness of the conduct beyond that which could reasonably be inferred from the objective circumstances’. That submission was further supported by the observation that the sentence imposed for the ‘uncontrolled, vicious and cowardly’ assault on the victim was lower than the sentences for the persistent breach offences.
The applicant also submitted that the sentence imposed on him was considerably higher than the sentences imposed in recent cases with similar features. In that regard he relied on DPP v Alexander (a pseudonym)[15] and DPP v Morton (a pseudonym).[16]He submitted that each of those cases involved a significantly higher volume and frequency of breach conduct, numbering in the hundreds, and that both offenders had relevant prior convictions. Further, he submitted that the communications in Alexander were ‘more glaringly intimidating, threatening and oppressive’ than in the present case. Yet in Alexander the persistent breach offences attracted different sentences (ranging from 2 months’ to 18 months’ imprisonment) and considerably less cumulation, with a total effective sentence of 2 years and 8 months’ imprisonment. And in Morton the persistent breach offences attracted sentences ranging from 3 months’ to 9 months’ imprisonment, with cumulation of 1 month, and a total effective sentence of 15 months. The disparity between the applicant’s sentence and the sentences in these cases meant, he submitted, that the sentence imposed on him ‘invited scrutiny’.
[15][2020] VCC 124 (‘Alexander’).
[16][2020] VCC 1850 (‘Morton’).
Finally, he submitted that the impugned orders for cumulation resulted in a ‘distortion to the overall disposition and a total effective sentence that was excessive in all the circumstances, including the matters relied upon in mitigation’.
The respondent submitted that the orders for cumulation were not excessive, and that each of the persistent contravention offences involved significant additional criminality. That could be seen by comparing the facts of each of charges three to five against the facts of charge two, which attracted the base sentence. The respondent submitted that it was not correct to say that there was ‘a distinct overlap in the facts underpinning each of the particulars’ to these charges. Each represented a different time period; the contraventions were not isolated; and the relevant court order was simply ignored by the applicant and thus provided no protection to Ms Cummings.
The respondent also submitted that the objective seriousness of the various offences was sufficiently similar that there was no oddity in the judge imposing the same cumulation (and the same sentence) for each offence.
The respondent further submitted that, in light of the unchallenged findings of the sentencing judge as to the gravity of the offending and the applicant’s criminal history, a sentence of 2 years’ imprisonment was a proportionate response to the persistent contravention offending.
Finally, the respondent submitted that the total effective sentence was not manifestly excessive.
Consideration
As noted above, the applicant advanced a single proposed ground of appeal: that the cumulation imposed on charges two to five was manifestly excessive, and thus the total effective sentence was manifestly excessive. In order to succeed on this ground, it is necessary for the applicant to establish that the orders for cumulation, and the total effective sentence, were wholly outside the range available in the sound exercise of the sentencing discretion.[17] It is not sufficient that this Court might have made different orders for cumulation or imposed a different total effective sentence.
[17]Tran v The Queen [2021] VSCA 292, [41] (Walker JA, Priest JA agreeing at [1]); Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at 637 [1]); [2010] VSCA 350.
It is important at the outset to make some observations about how this Court is to assess orders for cumulation. As explained by this Court in Pasinis v The Queen:
The question of whether the order for cumulation was appropriate cannot be determined simply by looking at the proportion of the individual sentence that must be served. While the proportion of 60% may appear high, it must be remembered that there are no minimum or maximum proportions. The duty of the sentencing judge is to impose an appropriate total effective sentence. That duty can be discharged in a variety of ways. One way is to moderate the individual sentences. Another — and preferable — way is to moderate the orders for cumulation.[18]
[18]Pasinis v The Queen [2014] VSCA 97, [50] (Neave JA and Kyrou AJA) (citations omitted). See also DPP v Grabovac [1998] 1 VR 664, 677, 680–1 (Ormiston JA, Winneke P agreeing at 665, Hedigan AJA agreeing at 690).
That is, cumulation and concurrency play an important role in assisting a sentencing judge to impose appropriate sentences for multiple offences, but still achieve a total effective sentence that is consistent with the principle of totality. It is thus difficult to assess orders for cumulation in isolation from the totality of the offending and the total effective sentence imposed.
In the present case, it is not possible to say that either the orders for cumulation or the total effective sentence imposed on the applicant were outside the range available. The sentencing judge’s reasons are exemplary, and we see no basis to disturb his Honour’s orders.
As noted above, in relation to the issue of cumulation the sentencing judge recognised the need to apply the principle of totality, and that this required ‘only partial cumulation and whole concurrency on a number of sentences’.[19] His Honour was correct in that observation; and he gave effect to it in the orders he made for cumulation. His Honour also took into account the matters put on the plea by way of mitigation.
[19]Reasons, [33](iv).
His Honour recognised the serious nature of the persistent contravention offences, describing ‘a good deal’ of the offending as ‘aggressive, oppressive and intimidating’.[20] That was so even though, as his Honour observed, some of the unlawful communication between the applicant and Ms Cummings was ‘two-way’, and that there was a degree of apparent acquiescence by her in relation to some of the conduct constituting the offending under charge five.[21] We do not accept the applicant’s submission that that description of the offending was not open to the judge. First, ‘a good deal’ is an elastic term that could mean considerably less than 50 percent of the various communications that made up the persistent breach offending. Secondly, a high volume of communication from one person to another person may well be described as ‘aggressive, oppressive and intimidating’ regardless of its content. The fact that the victim may have willingly participated in some of the communication, or that she had not provided a victim impact statement, did not preclude the trial judge from characterising the offending in the manner he did. In that regard, we reject the submission that the judge overstated the seriousness of the offending. We also reject the proposition that the sentence imposed for charge one (the assault) supports an argument of that kind.
[20]Reasons, [21].
[21]Reasons, [15], [21].
In support of his submission that the sentencing judge had ‘inflated the seriousness’ of the relevant conduct, the applicant pointed to certain remarks made by the sentencing judge during the hearing of the plea. It is necessary to say something about that submission. As a general proposition, unless a specific error is alleged that requires recourse to the transcript of the plea hearing, such as a breach of procedural fairness, it will be inappropriate for submissions to rest on remarks made or questions asked by a judge in the course of a hearing. Judges quite properly ask questions and make remarks in the course of submissions in order to test their reasoning process or to obtain assistance from counsel on particular issues. Those remarks or questions might not reflect the judge’s ultimate reasons, which find their expression in the written reasons for judgment handed down after the hearing. On an appeal, the reasons for the trial judge’s decision are found in those formal written reasons, not in what the judge might have said during the hearing. Of course, as already indicated, there will be cases where something a judge has said in the course of a hearing is indicative of error, but those cases will be relatively rare. This case is not one of them.
While it may be accepted that much of the particular conduct that constituted each of the persistent contravention charges was, in broad terms, of the same character — that is, contacting Ms Cummings by telephone — it is also the case that some of the conduct was different, either in its tone and content or because it involved something other than contact by telephone. So, in relation to charge two, the applicant sent Ms Cummings a threatening text with an image of a sawn-off shotgun. In relation to charge three, the applicant made threats to or about Ms Cummings at her grandparents’ home (where she was living), and went to her home twice. In relation to charge five, he went to her home on one occasion and to her grandparents’ home on two occasions. Some of the texts sent in the period covered by charge five were threatening.
Further, each period reflected in charges two to five was a distinct period and separated by periods of weeks. Thus, the period the subject of charge three occurred around one month after the charge two period; the period the subject of charge four occurred around two weeks after the charge three period and six weeks after the charge two period; the period the subject of charge five occurred around one month after the charge four period.
Thus we do not accept the submission that the offending the subject of charges two to five was but a single course of criminal conduct that had been artificially fragmented into four discrete offences. The legislature has resolved that the persistent contravention offence under s 125A of the Family Violence Protection Act relates to a period of 28 days. The result is that if a person contravenes a family violence protection order over a period longer than 28 days, they commit more than one offence. Each offence involves different acts and distinct criminality. It is not appropriate, in those circumstances, for a court to sentence a person on the basis that they committed only a single offence. Nor was it necessary for it to be put to the sentencing judge that each charge comprised features of distinct and additional criminality; so much was readily apparent given that the four persistent contravention offences comprised different acts that occurred in different periods of time. This is not a case concerning charges for multiple offences arising from a single act, where issues of double punishment would be relevant.[22]
[22]See, eg, Pearce v The Queen (1998) 194 CLR 610, 621–4 [34]–[50] (McHugh, Hayne and Callinan JJ); [1998] HCA 57. We observe that the applicant in this case was also charged with committing indictable offences while on bail (summary charges 11, 19, 24 and 57). These offences arose from the same factual matrices as the underlying indictable offences. For these offences, the sentencing judge ordered no cumulation, thus avoiding any issue of double punishment.
Nor do we accept the submission that the sentencing judge overlooked the matters set out at paragraph 14, above.
(d) As to the first matter, the sentencing judge was plainly aware of both the number of communications and the ‘two-way’ nature of that communication.[23]
[23]See Reasons, [21].
(e) As to the second matter, the sentencing judge was plainly aware that charge four involved only the transmission of text messages and telephone calls, not accompanied by threatening words or conduct.[24]
(f) As to the third matter, the sentencing judge plainly understood that the applicant and Ms Cummings had maintained mutual contact during parts of the offending periods. On the plea the sentencing judge asked counsel for the respondent whether Ms Cummings went with the applicant to the Quest apartments by her ‘free, untrammelled agreement’, and counsel for the respondent said, ‘I don’t know I can take it that far’, and went on to say that there were ‘no threats delivered by [the applicant] to [Ms Cummings] to compel her to go with him’. In his reasons, the judge said that Ms Cummings went with the applicant with her ‘apparent acquiescence’.[25]
(g) As to the fourth matter, there is no suggestion that the applicant was sentenced on the basis of a threat to inflict serious injury or to kill. The sentencing judge made no reference to such matters in his reasons. His Honour referred to the threatening nature of some of the texts, and the fact that the applicant made threats to Ms Cummings at her grandparents’ home.[26] Those were contextual matters relevant to the gravity of the offending. But that does not suggest that he sentenced the applicant on any incorrect basis.
[24]See Reasons, [14].
[25]Reasons, [15].
[26]Reasons, [12], [13], [15].
Nor do we accept the submission that the sentencing judge had not made any real distinction between charges two to five, by reference to their individual seriousness, their relationship with each other, or the differences in culpability of the events that underpinned each charge. The offending was principally comprised of telephone and text communications with Ms Cummings, albeit with the differences identified above. It was open to the judge to regard the offending underpinning each charge as broadly similar in seriousness.
As for the cases to which we were taken,[27] which were said to be comparable, they do not provide any real indication of a sentencing range, and we have given them little weight. While we accept that the individual sentences imposed in those cases for persistent breach offences were (save for one offence) less than the individual sentences imposed in the present case, there is no challenge to the individual sentences imposed on the applicant. Further, the differences in cumulation may reflect the manner in which the sentencing judge in each particular case adhered to the principle of totality. Pointing to different orders for cumulation in other cases does not mean that the orders for cumulation made by the sentencing judge in the present case were not open, nor that the total effective sentence was not open.
[27]Alexander [2020] VCC 124; Morton [2020] VCC 1850.
In our opinion it was well open to the sentencing judge to conclude that some degree of cumulation was appropriate for the persistent contravention offences. Having so concluded, the degree of cumulation imposed was comfortably within the range available to the sentencing judge. As noted, the offending was serious, and each offence involved distinct criminality. Both general and specific deterrence were important factors. The applicant had relevant prior convictions and was on bail at the time of the offending. The matters in mitigation were taken into account. We accept the respondent’s submission that, if one applies the principle of totality only to the persistent contravention offences, a total sentence of 2 years’ imprisonment was not manifestly excessive for those four offences. Nor was the total effective sentence manifestly excessive.
For these reasons, we would refuse leave to appeal.
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