Sepehrnia v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0091

TAHA SEPEHRNIA	Appellant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2024
DATE OF JUDGMENT:	27 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 149
JUDGMENT APPEALED FROM:	[2022] VCC 942 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Making threats to kill, prohibited person in possession of imitation firearm, rape and recklessly causing injury – Total effective sentence 13 years 4 months – Whether sentence infringed principle of totality – No error in sentencing judge’s appreciation or application of principle of totality – Whether orders for cumulation and total effective sentence manifestly excessive – Sentence and orders for cumulation within range – Appeal dismissed.

Sentencing Act 1991, s 6D.

Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Jones [2004] VSCA 68, considered.

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Counsel
Appellant:		Mr PJ Smallwood with Mr JD Cleveland
Respondent:		Ms S Lenthall
Solicitors
Appellant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

On 17 June 2022, the appellant was sentenced by a judge in the County Court to a term of imprisonment of 13 years and 4 months for serious sexual and other offending against two former intimate partners, Violet Wallace and Dawn Pena.[1]
[1]To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the complainants.
The offending involved two charges of rape,[2] three charges of make threat to kill,[3] one charge of prohibited person in possession of an imitation firearm,[4] and one charge of cause injury recklessly.[5] The plea proceeded by way of an agreed prosecution summary. The appellant gave evidence on his plea, called oral character evidence from two witnesses and tendered a psychologist report authored by Mr Jeffrey Cummins.
[2]Contrary to Crimes Act 1958, s 38(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3]Contrary to Crimes Act 1958, s 20.
[4]Contrary to Control of Weapons Act 1990, s 5AB(2).
[5]Contrary to Crimes Act 1958, s 18.
The following table shows the structure of the sentence:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Make threat to kill	10 years	2 years	4 months
2	Prohibited person in possession of an imitation firearm	10 years / 1,200 penalty units	1 year and 3 months	2 months
3	Rape	25 years	7 years	4 years
4	Make threat to kill	10 years	1 year and 6 months	4 months
5	Make threat to kill	10 years	3 years	9 months
6	Rape	25 years	7 years and 6 months	Base
7	Causing injury recklessly	5 years	1 year	3 months
Total Effective Sentence:		13 years and 4 months’ imprisonment
Non-Parole Period:		9 years and 4 months
Pre-sentence Detention Declared:		1,068 days
Section 6AAA Statement:		17 years’ imprisonment with a non‑parole period of 14 years
Other Relevant Orders: 1. The appellant was sentenced as a serious violent offender in respect of charges 4 and 5 pursuant to pt 2A of the Sentencing Act 1991.

By a grant of leave, the appellant appeals on the following two grounds:
Ground 1: The sentence first imposed infringed the principle of totality.
Ground 2:Each of the orders for cumulation made were manifestly excessive, and resulted in a ‘total effective sentence’ that was manifestly excessive.

Offences against Ms Wallace

The appellant and Ms Wallace met at a nightclub and, on the invitation of the appellant, the two of them stayed for three nights at a city hotel. They engaged in consensual sex. The appellant asked Ms Wallace to be in a relationship with him, stating to her that she could not hang around any other men anymore and that, if he found out she did, he would kill her (charge 1: threat to kill (rolled‑up charge)).
Ms Wallace agreed to move in with the appellant who was living at his mother’s house in Boronia. The appellant engaged in controlling and abusive behaviour towards Ms Wallace. In the course of one argument which occurred in the home, the appellant told Ms Wallace that he was going to get his handgun. She yelled at the appellant not to shoot her and tried to hide in a bedroom. The appellant pointed the firearm at her stomach, yelling ‘if you don’t shut up I will kill you’ (charge 1: threat to kill (rolled‑up charge) and charge 2: prohibited person possess imitation firearm).
On 16 August 2016, the appellant told Ms Wallace he wanted to end the relationship and stated that she should leave the house. She stayed until the next morning. There was an argument and Ms Wallace fled the house pursued by the appellant. He grabbed Ms Wallace who was hiding behind a bush and dragged her out from the bush. An argument ensued in the bedroom, and the appellant pushed Ms Wallace onto the bed, placed a pillow over her face and said to her, ‘Now, I’m going to rape you’. Ms Wallace was screaming as the appellant ripped her pants and underwear off, grabbed her around her throat and raped her (charge 3: rape).
Subsequently, the appellant contacted Ms Wallace. He threatened her that, if she did not meet with him, her family would get hurt. Ms Wallace met with the appellant in a carpark near the appellant’s home. He wanted to walk Ms Wallace to Knox police station to have a police report made by her withdrawn. Ms Wallace told him she would withdraw the report after she finished work. The appellant called Ms Wallace’s mobile phone multiple times, leaving messages on her phone saying that, unless she complied with his demands to withdraw her complaint, he was going to kill her parents (charge 4: threat to kill the complainant’s parents (rolled‑up charge)).
Ms Wallace reported the matter to police.

Charges where the victim was Ms Pena

Ms Pena and the appellant met in March 2017 and soon after commenced a relationship. There was a 26‑year age gap between them: the appellant was 26 years old and Ms Pena was aged 52. She had two children: a son aged 10 and a daughter aged 16. The appellant agreed that throughout the relationship he was extremely volatile and aggressive. He would frequently damage the complainant’s property, assault her and make threats to harm her and her daughter. He was extremely possessive, controlling and jealous.
On one occasion, the appellant and Ms Pena were at a shopping centre when a male friend of Ms Pena approached them. The appellant told Ms Pena, ‘You are dead if you know this guy’ (charge 5: threat to kill (rolled‑up charge)). The appellant confronted the male friend who walked away.
In early January 2018, the appellant went to Ms Pena’s house, and, after banging on the door and threatening to break in, he was allowed entry. He forced Ms Pena to her bedroom, where he said, ‘If I ever find out that you’re with another guy I will kill you’ (charge 5: threat to kill (rolled‑up charge)). He then raped Ms Pena on her bed. When Ms Pena said to the appellant ‘you just raped me’, he replied ‘no I didn’t because we love each other.’
On 16 January 2018, after driving the appellant to a meeting, Ms Pena refused to drive him back to her house. The appellant screamed in her face, calling her insulting names, including ‘whore, ‘slut’ and ‘dog’. Fearing for her safety, she drove the appellant to her house where he remained for a number of hours. Ms Pena then drove him home, telling him that she never wanted to see him again. The appellant responded angrily, telling her to ‘shut the fuck up because everyone is looking at us. If anyone calls the [p]olice you are dead’ (charge 5: threat to kill).
When Ms Pena stopped the car outside the appellant’s house, he said to her, ‘If you go to [the] cops I will come back and kill you’ (charge 5: threat to kill (rolled‑up charge)).
On 10 February 2018, the appellant again went to the home of Ms Pena, banging on the door seeking to obtain entry. After he had been in the house for some time, the appellant took Ms Pena’s dog and put it in the front passenger seat of a car.[6] When she tried to retrieve the animal, the appellant grabbed her by the waist, picked her up and pushed her to the ground, causing her to sustain a cut to her left shoulder and bruising to her left arm (charge 7: recklessly cause injury). The appellant approached Ms Pena’s daughter, yelling at her about calling the police, saying to Ms Pena, ‘if she calls the cops, you’re dead’ (charge 5: threat to kill).
[6]The summary of prosecution opening does not specify whose car the dog was placed in.

The sentencing reasons

The reasons for sentence are long and detailed.[7] By his grounds of appeal, the appellant does not seek to challenge any individual finding or attribute any specific error apart from what was said to be an error of principle in relation to totality.
[7]DPP v Sepehrnia [2022] VCC 942 (Judge Tinney) (‘Reasons’).
For that reason, it is not necessary to rehearse the judge’s reasons in great detail.
In addition to setting out the facts relating to the individual charges, the judge referred to a transcript of a telephone recording between the appellant and Ms Pena which was referred to in the prosecution opening.[8] We have listened to the telephone call.
[8]Ibid [5].
As recorded by the judge, it commenced with the appellant apologising to Ms Pena, saying that he was ‘very sorry’ and repeating any number of apologies.[9] Within a short space of time, his tone became aggressive and he yelled vile abuse and threats at Ms Pena. The appellant repeatedly asked whether Ms Pena wanted him out of her life to which she replied, sobbing, ‘yes, yes, yes, please yes. Yes please’. Screaming at her, he tells her the only way she will not date the appellant is if she kills herself and that ‘you’re not leaving my life. What, you think I’ll let you move on? You’re fucken’ dreaming’.[10]
[9]Ibid [7].
[10]Ibid [8].
The appellant repeatedly questioned Ms Pena about whether she continued to wear a nose ring, screaming at her that she had to take it out. He threatened to kill her and have people come around to bash her.
The appellant’s tone is extremely aggressive, violent, intimidating and controlling. The language is vile. Ms Pena can be heard sobbing and begging.
Although no charges were laid in relation to that particular conversation, it is plain from his reasons that the judge inferred that it informed the nature of the relationship between the appellant and Ms Pena. It also served to place the offending in the context of a highly conflictual and violent relationship in which Ms Pena was highly subjugated.
The judge referred to a victim impact statement from Ms Pena and concluded that the impact on her was deep and lasting.[11] The judge noted the speed with which the appellant had insinuated himself into the lives of the complainants and dominated and controlled them and that each of the two women had been damaged by the appellant’s offending.[12]
[11]Ibid [32].
[12]Ibid [33].
The judge addressed in some detail the matters relied on in mitigation.
The judge said that the substance of the plea was that the appellant was a drug‑addled, cocaine‑ and steroid‑abusing man, monstering or controlling his female partners, but had the capacity for reflection and change.[13]
[13]Ibid [26].
He noted that there had been a guilty plea in the midst of the global COVID‑19 pandemic, the presence of some remorse, the impacts of COVID‑19 upon the appellant’s custodial experience and the need for totality and to take into account delay.[14]
[14]Ibid [43].
The appellant was 30 years of age at the time of sentencing and had been held in custody since March 2018, a period of over four years. His mother endured an abusive relationship with the appellant’s father who it appears became estranged from the family.[15] The appellant attended a large number of schools and was expelled from a number of secondary schools, leaving school as a 15‑year‑old boy. After a short stint working as a painter, it had been many years since the appellant had been in legitimate, gainful employment.[16]
[15]Ibid [49].
[16]Ibid [50].
The appellant has a criminal history involving selling drugs and collecting drug debts, with serious issues with drug use from his mid‑teens, predominantly relating to steroids and cocaine.[17] The appellant had no prior convictions for sexual offending, although he had been imprisoned for violent and drug‑related offending and was on a community correction order (‘CCO’) at the time of the offending.[18]
[17]Ibid [51].
[18]Ibid [54]–[55].
Given the appellant’s criminal history, the judge considered it necessary to deter the appellant and protect the community from him. He described the need for specific deterrence as ‘very plain here indeed’.[19]
[19]Ibid [56].
The judge took into account the guilty plea, noting that it was not an early plea and that there were contested committals for each complainant. The allegations concerning Ms Wallace proceeded to trial, where she was fully cross‑examined, although the jury did not reach a verdict but was discharged as a result of a mishap in the trial.[20]
[20]Ibid [57].
The matters involving both Ms Wallace and Ms Pena were then listed for trial and a jury was empanelled on the retrial concerning the allegations of Ms Wallace. Ultimately, all of the matters settled on the basis of the charges to which the appellant pleaded guilty.[21]
[21]Ibid [59].
Although it was not an early guilty plea, the judge accepted that the appellant had ultimately taken responsibility for the offending.[22] The judge said that the guilty plea was still of real importance as it facilitated the course of justice.[23] The judge said he would give it extra weight for the reasons set out in the decision of this Court in Worboyes v The Queen[24] concerning the impact of the COVID‑19 pandemic.[25]
[22]Ibid [61].
[23]Ibid [62].
[24](2021) 96 MVR 344; [2021] VSCA 169.
[25]Reasons, [62].
On the plea, counsel for the appellant submitted that there was evidence of some remorse. The judge accepted that the guilty plea provided some evidence of remorse, although the judge noted that the matter had settled at the door of the Court.[26] The judge noted that the appellant had given evidence on the plea, during the course of which he said, ‘I understand my behaviour was wrong once it got explained to me properly what’s going on and how times have changed. I completely understand.’[27] The judge said that he was not satisfied there was much remorse but a ‘fair dose of self‑pity’.[28] The judge observed that the appellant ‘harboured terrible attitudes towards women’ but the judge was prepared to take into account some ‘very limited remorse’.[29]
[26]Ibid [63].
[27]Ibid [65].
[28]Ibid [66].
[29]Ibid [67].
On the question of rehabilitation, the judge noted that the appellant was a man of mature age who had long‑term and significant issues with illegal drugs of dependence, which cast a shadow of his future prospects.[30] Further, he noted a risk assessment in the report of Mr Cummins which recorded the opinion that the appellant was a low to moderate risk of sexual reoffending.[31]
[30]Ibid [70].
[31]Ibid [71].
After referring to the character evidence on the plea, the judge said that he could only be very guarded in relation to his assessment of the appellant’s prospects of rehabilitation, conditional as they were on the appellant obtaining employment, remaining drug‑free and obtaining treatment and counselling.[32] He said rehabilitation would require the appellant to totally change his possessive and violent attitude towards women.
[32]Ibid [76].
Turning to the report of Mr Cummins, the judge observed that the appellant did not rely on any of the principles in R v Verdins.[33] The judge noted that the report of Mr Cummins suggests that drugs may have played a role in the offending. However, as the judge observed, this would not have been mitigatory. The judge accepted that drugs would have had a role in disinhibiting the appellant but the more powerful factor was the appellant’s attitude towards women, which the judge regarded as ‘quite extraordinary’.[34] The judge referred to the appellant’s sense of entitlement towards women.
[33](2007) 16 VR 409; [2007] VSCA 102.
[34]Reasons, [79]–[82].
The judge noted that the offending was undoubtedly serious, with all of the offending occurring in the midst of an intimate partner relationship. In relation to Ms Wallace, the judge noted that the threats to kill were nasty, jealous and controlling, one of them being enforced by the production of an imitation firearm. The threats extended to threatening to kill Ms Wallace’s parents.[35] The judge noted that the rape of Ms Wallace involved physical force and the use of a pillow, with Ms Wallace crying, screaming and attempting to resist.[36]
[35]Ibid [92].
[36]Ibid [93]–[94].
Similarly, the threats to kill Ms Pena were serious and included threats to kill if either she or her daughter reported the assault to police. The rape, the judge observed, was ‘extremely serious’.[37]
[37]Ibid [96].
The judge referred to a ‘catalogue of controlling, violent and shocking behaviour against two successive intimate partners’.[38]
[38]Ibid [99].
The judge then referred to the purposes of sentencing, emphasising punishment, denunciation and the requirement to give appropriate weight to deterrence, both general and specific.[39] The judge specifically addressed the question of totality, observing that he was required to impose a sentence that was just and appropriate and commensurate with the overall criminality of the appellant’s offending. In that respect, the judge described the appellant’s criminality as high and observed that it was not a single episode nor did it pertain to a single victim.[40] He also took into account the rolled‑up nature of the threat to kill charges and that the question of totality was also informed by the fact that the appellant would be sentenced as a serious violent offender, which required the judge to consider the protection of the community as the principal purpose of the sentence imposed on charges 4 and 5.[41]
[39]Ibid [107]–[114].
[40]Ibid [121].
[41]Ibid [122]–[123].
Because they are relevant to both grounds of appeal, it is convenient at this point to say something about delay and pre‑sentence detention.
The appellant was arrested and remanded in custody on 13 February 2018. He was remanded in custody from that date until 17 June 2022, when he was sentenced, a total of 1,585 days. For some of that period, the appellant was serving sentences for other offending and, ultimately, a period of 1,068 days was reckoned as pre‑sentence detention, with the remaining 517 days referable to other offending.
The judge took the delay into account in sentencing, observing that it was not the appellant’s fault that the first jury was discharged in late 2019 and that COVID‑19 intervened and made the retrial impossible until quite some time down the track.[42]
[42]Ibid [90].

Grounds of appeal: the submissions

By ground 1, the appellant contends that the sentence infringed the principle of totality.
After referring to the relevant principles,[43] the appellant observes that the base sentence was 7 years and 6 months with total cumulation of a further 5 years and 10 months. He says that ‘the manifestly excessive cumulation produced a “total effective sentence” that infringed the principle of totality’. The weight to be given to the principle of totality is also informed by the 1,585 days the appellant spent in custody between his arrest and sentencing.
[43]Citing, among other authorities, DPP v Bowen [2021] VSCA 355, [7] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA).

As for charges 4 and 5, in respect of which the appellant was sentenced as a ‘serious violent offender’, the appellant accepts that the sentencing judge was required to regard the protection of the community from the appellant as the principal purpose for which the sentence was imposed.[44] However, he observes that ‘it does not follow that a sentence where protection of the community is the principal purpose will necessarily be longer than one where it is not’.[45]
[44]Sentencing Act, s 6D(a).
[45]Citing Dukic v The Queen [2021] VSCA 18, [34] (Ferguson JC and Beach JA).
By ground 2, the appellant submits that, having regard to the following factors, the total effective sentence and orders for cumulation were manifestly excessive:
(a)the guilty pleas were entered during the COVID‑19 pandemic and had real value;
(b)there was a delay of more than four years and four months between the appellant’s arrest and sentencing;
(c)the appellant endured hardship in custody, which has been especially onerous; and
(d)the appellant would continue to endure hardship as he served his sentence, including that arising from the COVID‑19 pandemic.
In oral submissions, counsel for the appellant emphasised the hardship faced by the appellant during his time in custody, particularly due to the effects of COVID‑19 and periods spent in protective custody, as well as the delay between arrest and sentencing.
The respondent submits that the orders for cumulation and total effective sentence were well within the range of sound discretionary judgment having regard to all of the circumstances of the case and, in particular, the seriousness of the appellant’s offending. The judge took into account the principle of totality and properly had regard to the separate instances of offending committed against both complainants, including two separate rapes and minimal overlap between the charges other than between charges 1 (rolled‑up charge of make threat to kill) and 2 (prohibited person in possession of an imitation firearm). The significance of the principle of totality was also mediated by the ‘serious violent offender’ provisions in relation to charges 4 and 5.[46]
[46]Sentencing Act, pt 2A.
The respondent further submits that male violence against women is a scourge against society and justifies a sentence which reflects an appropriate degree of denunciation and deterrence in the face of ongoing risk to the community and any future intimate partners of the appellant. Against the seriousness of the offending, there were few matters in mitigation, with the exception of the late plea, the appellant’s limited remorse and his onerous time in custody. On the other hand, the appellant has a significant criminal record, was on a CCO at the time of the offending and has poor prospects of rehabilitation.

Consideration

For reasons that will become apparent, we can dispose of both grounds together.
When a sentencing court is called to pass sentence on multiple offences, or is dealing with an offender who has been sentenced on another occasion and is still under sentence, principle requires the judge to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved and to avoid a crushing sentence.[47]
[47]Mill v The Queen (1988) 166 CLR 59, 62–3; [1988] HCA 70; Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J); [1997] HCA 26.
The orthodox approach is for the sentencing court to arrive at the appropriate sentence for each offence and, by means of cumulation or concurrency, determine a proportionate head sentence. That is not an easy task and it does not admit of arithmetic precision. On the one hand, the prisoner will experience the sentence as an indivisible head sentence that the Sentencing Act requires the judge to assume will be served in full. On the other hand — and this is particularly acute where there are discrete episodes of offending or more than one victim — it is important that the sentence reflects the total range and scope of the offending.
Although a failure to consider and to apply correctly the principle of totality is capable of vitiating a sentence, it is for the appellant to establish that the error has been made. Such an error may be apparent where the judge makes no reference to totality, although reasons for sentence should not be read in an unduly critical way. Further, having regard to the individual orders for cumulation or the effective sentence, error may be shown in that the judge must have misapplied the principle to have arrived at the result. Given that what is a just and appropriate sentence must have regard not only to totality but to all other relevant considerations and that the outcome does not admit of one answer but may legitimately lie within a spectrum of available sentences, it must be a rare case that this Court could infer a failure to apply the principle of totality where the orders for cumulation and the total effective sentence are within range.
For that reason, it is useful first to determine whether the orders for cumulation and total effective sentence were within range, and that brings us to ground 2. In order to succeed on a ground of manifest excess, the appellant must show that the sentence imposed was ‘wholly outside the range of sentencing options available’ to the judge.[48] The appellant must show that ‘something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion’.[49] An allegation of manifest excess is an example of a challenge to the exercise of a discretion which does not depend on specific error, as articulated in House v The King.[50]
[48]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA and Habersberger AJA agreeing); [2007] VSCA 32, citing R v Boaza [1999] VSCA 126, [42] (Winneke P).
[49]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[50](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370–1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25; Hili v The Queen (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45.
Although the appellant understandably focused his attack on the orders for cumulation and the total effective sentence, it is necessary to start with the constituent parts and look at the individual sentences.
Starting with the two charges of rape, it may be said at the outset that there were objectively serious features of the two rapes. The rape of Ms Pena occurred in her home, which the appellant had been allowed to enter only after threatening to break the door down. The rape itself involved physical force that was applied to overcome Ms Pena’s resistance and pleas to the appellant to stop. It was brutal and involved an aggressive violation in a place where Ms Pena was entitled to feel safe.
The rape occurred in the context of an intimate relationship. Putting aside the threats to kill, which were charged separately, the controlling, overbearing, aggressive and cruel features of the relationship give context to the rape. There was no ambiguity, nor were there shades of meaning: it was a severe manifestation of a controlling, disrespectful and brutal relationship.
The rape of Ms Wallace was similarly grave. Ms Wallace was aggressively dragged from behind a bush after having attempted to flee. The appellant’s use of the pillow to cover her face and his grabbing of her around her throat must have been both terrifying and humiliating.
The threats to kill Ms Wallace (charges 1 and 4) and Ms Pena (charge 5) were also serious. It is important to highlight that charges 1, 4 and 5 were rolled‑up charges. In R vJones, CharlesJA distinguished between representative counts and rolled‑up charges, accepting a submission that:
… rolled‑up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled‑up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel for the respondent] argued that reasons of public policy dictate the use of rolled‑up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. … The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.[51]
[51][2004] VSCA 68, [13] (citations omitted).
Of course, a rolled‑up charge is a single charge and carries the maximum penalty that attaches to the offence. The maximum penalty remains an important yardstick but the rolled‑up nature of the charge allows the judge to proceed on the basis that the offence is not an isolated example, and the fact that the charge occurs in this context may exacerbate rather than reduce the impact of the particular offence on the victim. Conceivably, there may be cases where the repetitive nature of the threats may diminish their force. That is not this case. The threats to both women occurred in the course of menacing relationships. Given the context in which they were uttered, the threats were by no means hollow.
Against the seriousness of the offending, there were some factors in mitigation. First, there was the appellant’s plea of guilty. It needed to attract a significant degree of moderation for its utilitarian value. That was especially so given the COVID‑19 pandemic with its twin adverse consequences of rendering incarceration more onerous and the backlog in criminal cases more burdensome on the overall justice system. Second, the judge took into account the delay between arrest and sentencing as a factor in mitigation, noting the effect of the discharge of the first jury and the effect of the COVID‑19 pandemic in delaying the retrial. The judge accepted that the appellant’s time in custody had been especially onerous.[52]
[52]Reasons, [90]–[91].
The judge found that there was scant evidence of remorse. That finding is undoubtedly correct. The appellant’s evidence on the plea did not provide a footing for a favourable finding and showed, as the judge found, both a degree of self‑pity and a continuing malevolent attitude unmitigated by any significant insight.
All up, the factors in mitigation beyond the plea and delay were insipid.
Because an aggravating feature of all of the offending was the fact that it occurred in the context of intimate relationships in which the appellant exercised a menacing and controlling influence, there is an appreciable risk that orders for cumulation may yield an overly long sentence. The appellant is correct in observing that the total period of cumulation of just shy of six years is very significant. Its longest component is four years’ cumulation on the charge of rape.
In our opinion, the rape of Ms Wallace called for a substantial period of cumulation. It involved a different victim, it was separated in time and context and was itself a serious example of the offence. The threats to kill plainly added to the overall criminality.
The fact that the appellant raped and threatened an intimate partner in two relationships is highly significant. As the judge observed, a significant part of the picture is the appellant’s appalling attitude towards women. The separate offence highlighted the importance of specific deterrence and the protection of the community. If there ever was a time in which the volatility and imperfection of human relationships provided some moderating context to crimes of violence occurring within a domestic setting, that time has long passed.[53] The vulnerability and dependency that domestic settings often produce mean that violations are rendered more serious and the need for specific and general deterrence is more powerful.
[53]Skeates (a pseudonym) v The King [2023] VSCA 226, [55]–[61] (Emerton P, Niall and Taylor JJA).
The total effective sentence imposed on the appellant is undoubtedly a long one. But his crimes were extremely serious, and many of the charges involved offending that occurred on separate occasions. We are not persuaded that the sentence or its constituent parts were not open to the judge. The sentence, including the orders for cumulation, were within range.
Equally, we are not persuaded that the judge misunderstood or misapplied the principle of totality. Standing back, as the judge did, we are not persuaded that the appellant has established that the overall sentence is disproportionate or out of kilter with the overall criminality involved.
We would dismiss the appeal.
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[2024] VSCA 149

27 June 2024