T P v The Queen
[2012] VSCA 166
•30 July 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0114 | |
| T P | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WARREN CJ, REDLICH and HANSEN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 April 2012 |
| DATE OF JUDGMENT | 30 July 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 166 |
| JUDGMENT APPEALED FROM | DPP v TP (Unreported, County Court of Victoria, Judge Chettle, 15 December 2009 (verdict) and 31 March 2010 (sentence)) |
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CRIMINAL LAW – Conviction – Multiple counts of aggravated rape and other offences – Whether forensic disadvantage caused by delay in prosecution – Adequacy of directions on effects of delay – Allegations by offender of collusion between complainants and motivation to lie – Offender cross-examined to test allegations of complainants’ motivation to lie – Whether failure to give Palmer direction erroneous – No risk of reversing onus of proof as to credibility of complainants in context of trial – Whether breach of rule in Browne v Dunn – R v Morrow (2010) 26 VR 526 applied – Whether risk of jury conflating possibly innocent change in position with recent invention – Directions as to inference of recent invention – Crimes Act 1958 (Vic) s 61(1A).
CRIMINAL LAW – Sentence – 18 years and 9 months’ total effective sentence and 14 years and 6 months’ non-parole period – Whether sentence crushing – Advanced age and ill health does not immunise offender from lengthy sentence – Failure to give any consideration to delay in bringing matter to trial – Manifest excess and totality – Individual sentences within range – Principle of totality infringed by total effective sentence and non-parole period – Azzopardi & Ors v The Queen [2011] VSCA 372 applied – Appellant re-sentenced to total effective sentence of 17 years’ imprisonment and 13 years’ non-parole period.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr P G Nash QC with Mr S Gillespie-Jones | Access Law |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ
REDLICH JA
HANSEN JA:
Following a trial in the County Court the appellant was found guilty of various offences against two sisters M and V, see table below. The appellant was sentenced to a term of 18 years and nine months’ imprisonment, and a non-parole period of 14 years and six months was fixed. He has appealed against both conviction and sentence.[1]
[1]Leave to appeal was granted on grounds 1, 3, 5 and 8 in relation to conviction. Leave was granted on all grounds in relation to sentence.
Count on Presentment Offence Maximum Sentence Cumulation 1 Assault occasioning actual bodily harm – February 1980
[Crimes Act 1958 (Vic) s 37][2]5 years
[Crimes Act 1958 (Vic) s 37]12 months 3 months 2 Assault occasioning actual bodily harm – March 1980
[Crimes Act 1958 (Vic) s 37]5 years
[Crimes Act 1958 (Vic) s 37]6 months Concurrent 3 False imprisonment – between 1 May 1981 and 11 June 1982
[Common Law]At large 12 months 6 months 4 Aggravated Rape – between 1 May 1981 and 11 June 1982
[Crimes Act 1958 (Vic) ss 45(3), 46(1)(a), (c), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]20 years
[Crimes Act 1958 (Vic) s 45(3), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]8 years Base 5 Assault – between 1 May 1981 and 11 June 1982
[Common Law]2 years
[Crimes Act1958 (Vic) s 37]3 months Concurrent [2]All assault offences and penalties refer to those in operation prior to the commencement of the Crimes (Amendment) Act 1985 (Vic).
6 Assault occasioning actual bodily harm – 1982 to 1983
[Crimes Act 1958 (Vic) s 37]5 years
[Crimes Act 1958 (Vic) s 37]12 months 3 months 8 Rape – between 1 August 1985 and 30 April 1986
[Common Law and Crimes Act 1958 (Vic) s 45(1), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]10 years
[Crimes Act 1958 (Vic) s 45(1), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]4 years 2 years 9 Rape – between 1 August 1985 and 30 April 1986
[Common Law]10 years
[Crimes Act 1958 (Vic) s 45(1), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]4 years Concurrent 11 Extortion with a threat to kill or injure – between 1 January 1987 and 30 June 1987
[Crimes Act 1958 (Vic) s 27]15 years
[Crimes Act 1958 (Vic) s 27]3 years 1 year 12 Assault – between 25 October 1987 and 1 December 1987
[Common Law]2 years
[Crimes Act1958 (Vic) s 37]3 months Concurrent 13 Threat to inflict serious injury – between 1 January 1987 and 31 December 1988
[Crimes Act 1958 (Vic) s 21]5 years
[Crimes Act 1958 (Vic) s 21]2 years 1 year 14 Intentionally causing injury – between 1 January 1987 and 31 December 1988
[Crimes Act 1958 (Vic) s 18]7 years [Crimes Act 1958 (Vic) s 18] 12 months Concurrent 15 Rape – between 1 December 1989 and 28 February 1990
[Common Law]10 years
[Crimes Act 1958 (Vic) s 45(1), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]4 years 1 year 16 Extortion with a threat to kill or injure – between 1 September 1990 and 22 September 1990
[Crimes Act 1958 (Vic) s 27]15 years
[Crimes Act 1958 (Vic) s 27]2 years 6 months 19 Indecent Assault of a child under 16 – between 1 May 1981 and 31 June 1982
[Crimes Act1958 (Vic) s 44(1), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]10 years
[Crimes Act1958 (Vic) s 44(2), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]9 months 3 months 22 Aggravated Rape – between 12 June 1985 and 25 October 1987 [Crimes Act 1958 (Vic) ss 45(3), 46(1)(a), (c), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)] 20 years
[Crimes Act 1958 (Vic) s 45(3), as amended by the Crimes (Sexual Offences) Act 1980 (Vic)]8 years 4 years
Under the grounds of appeal as to conviction the appellant relied upon three grounds. Firstly, that the trial judge erred in his directions as to the rule in Browne v Dunn.[3]Secondly, that he failed to give a direction of the sort in Palmer v The Queen[4] or any other appropriate direction as to motive. Thirdly, that the direction in relation to forensic disadvantage was insufficient. All other grounds were either abandoned at the outset of the oral argument or during the course of the hearing.
[3](1893) 6 R 67 (‘Browne v Dunn’).
[4](1998) 193 CLR 1 (‘Palmer’).
The Crown case was that the appellant’s offending commenced in 1980 and involved two sisters, M and V, over a period of 10 years. The appellant met M in 1976 when she was 15 years old. The appellant and M began living and working together in 1977. He commenced a sexual relationship with her in that year.
On 2 February 1980 M and the appellant attended an 18th birthday party in Reservoir. Whilst at the party they had a minor altercation. The appellant became very upset and dragged M from the party to his car. He then grabbed her head and hit her head against the side of his car, between six and ten times. M incurred minor scarring from the incident (Count 1).
In March 1980 the appellant and M attended a function at the Pier Hotel in Frankston. During the evening M received a kiss from one of the patrons she was talking to. When the appellant and M returned home later that evening, he punched M in the eye. M attended a doctor in relation to the assault (Count 2).
M’s sister V moved in with the couple in approximately May 1981, V was aged 14 at the time. One month after V moved in, the appellant and M had a significant argument. The appellant became angry and dragged M into the living area, pushed her onto the floor, removed the belt from the dressing gown she was wearing and used it to tie her up. M’s wrists and ankles were secured and the appellant tied her to a large coffee table (Count 3). The appellant then entered the bedroom where V was sleeping. He indecently assaulted her by touching her breasts and vagina and rubbed some form of cream into her vagina (Count 19). Thereafter the appellant maintained a sexual relationship with both sisters.
Between June 1981 and June 1982 V was living in foster care. M’s younger brothers visited her whilst the appellant was interstate. The appellant arrived home unexpectedly and became upset to find them at the house. He ejected them. After they had left, the appellant dragged M through the shop that formed part of the house, and into the bathroom. He cut her hair before telling her to take her clothes off. He pushed her to the ground and onto her stomach. The appellant removed his trousers and anally raped M. She screamed for him to stop, as the rape was extremely painful (Count 4). The appellant then ordered M into the bath, where she crouched crying, while the appellant urinated on her. M showered for approximately 20 minutes. She then walked into the kitchen, where the appellant slapped her hard to the face (Count 5).
On another occasion during the same period the appellant and M had an argument and he told M to go to the bedroom. He followed her and forced her to lie on the bed before striking her a number of times on the legs and buttocks with a piece of polycarbonate tubing. M screamed and cried after being struck. She suffered welts and bruising as a result of the assault (Count 6).
M gave evidence of other uncharged acts of assault that occurred in a similar manner. He continued to victimise and terrorise M by assaulting her with the polycarbonate tubing. M attempted to run away from the appellant on many occasions and sought refuge with her mother who the appellant threatened to assault. The appellant forced M to return to him.
V returned to live with the appellant and M and remained there until mid 1985. She moved into a bungalow not far from where M and the appellant were living. V continued to work with the appellant during this time. During this period V went on a date with another man. Upon her return to the bungalow after her date she found the appellant waiting for her. He had concealed himself in the bathroom. When she entered the bathroom he punched her to the face with his fist causing her to suffer a black eye. The appellant accused her of having sex with the other man, which she denied. The appellant demanded that she shower and ‘clean the dirty diseases of someone else from your body’. The appellant threw V on the bed and anally raped her (Count 22).
M attempted to leave the appellant in late 1985 or early 1986. She planned to move into a unit in Sandringham and stayed in the meantime at the Sandringham Hotel. The appellant tracked M down, forced her into his car and drove to the Chadstone Motel. The appellant raped M, by inserting his penis into her vagina on two separate occasions (Counts 8 and 9).
In 1987 after M moved back in with the appellant, the appellant asked her for her mother’s phone number. M refused to give it to him. The appellant became angry, took a shotgun, loaded it in front of M and pointed it at M and said: ‘if you do not give me your mother’s telephone number, I’m going to blow your head off’ (Count 11). Later that same year, M damaged the appellant’s car’s aerial on a wooden rail. The appellant became enraged, opened the car door, and began screaming at her as she went into the house. He followed her and began to punch her in the arms and chest (Count 12).
In 1988 V began to once again live with the appellant and M. V and the appellant had an argument, and he locked her in an outside shed. The appellant re-entered the house armed with a crossbow and loaded it with an arrow which he aimed at M’s head. M collapsed to the floor crying and shaking. The appellant proceeded to kick M in the ribs. When she asked to be taken to see a doctor the appellant said: ‘You can just lie there you bitch and heal the way it is’ (Counts 13 and 14).
In 1990 M left the appellant, and went to live and work in a milk bar that was leased in East Malvern. Her sister V was then pregnant to the appellant. Another younger sister, N moved in with the appellant and V. Soon thereafter N also commenced a sexual relationship with the appellant.
One night the appellant banged on the door of the milk bar demanding to be let in. M opened the door, the appellant followed her upstairs and raped her by inserting his penis into her vagina. Following that event, M became pregnant and gave birth to a son (Count 15).
In late 1990 V left the appellant and moved to Queensland. Later she returned to live with the appellant and her younger sister N. Both sisters continued to have sexual relations with the appellant. V had two children to the appellant. She left the appellant in 1993 and did not return.
Throughout the 1990s M, V and the appellant became embroiled in intense and protracted proceedings in the Family Court mainly concerning custody issues of their children. The appellant vigorously denied the allegations of the sisters in relation to
the rapes and assaults. The appellant maintained at trial and on appeal that the acts that took place were all consensual in nature.
The appellant was found guilty on all counts relating to M, but on only two of the counts relating to V.
Ground 1 – Apprehension of bias – Abandoned in reply
Under cover of ground 1 the appellant submitted that the trial judge failed to disqualify himself for ostensible bias. Extensive written and oral argument was advanced in support of this ground but in reply the ground was rightly abandoned. It had no prospect of success. The impugned remarks did not raise a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matters before him.[5] At no time during the trial was an application made that the trial judge should disqualify himself.
[5]See Rozenes v His Honour Judge Kelly [1996] 1 VR 320, 329; Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293–294; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6]; Webb v The Queen (1994) 181 CLR 41, 67.
Ground 8 – Forensic disadvantage
The appellant submitted that the judge failed to appropriately charge the jury in relation to the lengthy delay by M and V in reporting their allegations to any authority and in bringing the matters to trial. In accordance with sub-s 61(1A) of the Crimes Act 1958 the trial judge charged the jury in relation to the forensic disadvantage as follows:
Now, because there was a significant and lengthy delay between the time the offences are said to have occurred and the time that a full complaint was investigated by the police; because of that delay there has been a real forensic disadvantage to the accused man. Now, what is a forensic disadvantage?
A forensic disadvantage is a loss or a lack of opportunity to properly defend yourself, to properly put material before a jury that might assist in their determination of a case, or might help prove TP was innocent, if that be the case. A number of examples of forensic disadvantage have been given. You heard of the witness, HK, who had an 18th birthday, who was at the 18th birthday on 2 February 1980. We do not know what HK may or may not have said had she been asked about this at some time close to the party. You heard that she refused to make a statement of recent times; Mr Digby told you that.
But it is possible – we do not know – although we cannot speculate on what she might have said, her evidence may have assisted TP. Because of the effluxion of time, that simply cannot be checked.
The appellant complained that the judge’s warning to the jury in relation to the forensic disadvantage did no more than state the obvious. It was not a warning that was unmistakeable and firm and which emphasised as a separate issue, the effect of lapse of time on memory. It did not make sufficiently plain that due to the inability to fix dates and times, the opportunity to provide alibi evidence was lost. Such a warning was said to be necessary to avoid an improper assessment of the evidence presented.
The trial judge recognised that the appellant was faced with practical difficulties because of the effluxion of time and that he was unable to contact certain witnesses or access records. The issue was explored with counsel before the judge delivered his charge. The judge addressed all of the issues that defence counsel raised in those discussions.
The respondent submitted with some force that the appellant now quibbles with what was not said by the trial judge and submits that further issues should have been explored. When such directions are subjected to painstaking analysis, matters that could have been addressed may be identified but the omission of a specific way in which the accused may have been disadvantaged will not necessarily render the warning insufficient. The warning must be considered in its entirety and with regard to the manner in which the trial was conducted. Defence counsel was best placed to discern if the charge was lacking or inadequate. He took no exception to the form or substance of the charge.
Although the judge did not explicitly direct the jury in relation to the effect of the elapse of time on memory, it was implicit from the tenor of the directions given. The issue of the effect of the effluxion of time on memory was highlighted throughout the trial during the evidence of the complainants and the appellant. A likely explanation for the absence of any objection by experienced counsel who appeared for the appellant was that this was not an issue which required discrete or further emphasis.
Having regard to the entirety of the warning, the jury would clearly have understood the significance of the delay and how it impacted unfairly on the appellant. This ground is not made out.
Ground 5 – Motivation to lie – Absence of a Palmer direction
The appellant submitted that the judge erred by failing to properly direct the jury in relation to the complainants’ alleged motivation to lie. There were three distinct circumstances each of which, it was contended, required the judge to give a Palmer direction. Firstly, during prolonged cross-examination the witness asked the rhetorical question ‘Why would I lie?’ Secondly, the defence asserted that there was collusion between M and V. Thirdly, the defence asserted that the protracted Family Court proceedings between the appellant and M and V provided the motive for M and V to conspire to give false testimony.
During a lengthy cross-examination in which M was constantly challenged as to her truthfulness, she said in answer to a question that ‘I am being truthful, why would I be sitting here after 30 years’. The cross-examination immediately proceeded to a further suggestion that she had not been truthful in her earlier evidence. V was also cross-examined at length as to the truthfulness of various parts of her evidence. In answer to the suggestion that she and M were in ‘cahoots’ and that she and M ‘cooked up’ a story that she told the police in 2004, she said that what she had told the police was true and added ‘do you think I’d put myself through this torture if it wasn’t true’. The cross-examination then continued as to where the welt marks from the polycarbonate piping were on her body.
The allegations that the complainants had conspired to give false testimony in order to advance their position in the Family Court had been put squarely to the complainants. During the appellant’s evidence he attributed specific motivation to the complainants for conspiring to give false testimony. The appellant was taken to the detail of many of the complainants’ allegations and the fact that some of the complaints were made to police long before the Family Court proceedings in order to demonstrate that the allegation that they had colluded to give false evidence, was baseless, as was the motive for doing so. The prosecutor only cross-examined to test the validity of the allegations put forward by the appellant. At no time was the appellant asked to speculate as to why the complainants may be lying.
In closing the prosecutor reminded the jury:
So if you don’t accept the defence case and the accused man’s evidence, it does not mean that he is guilty. Just because you reject his version of events, you don’t switch and say ‘Well, because I don’t believe him, he is therefore guilty.’ That’s not the way it works, and the reason for it is the burden of proof is on the Crown and the Crown have to satisfy you beyond reasonable doubt that these alleged offences occurred in a way that the complainants say. So you must be satisfied beyond reasonable doubt on the Crown evidence that the accused committed the offences as alleged, even if you reject the evidence of the defence. That is most important.
The trial judge repeatedly instructed the jury that in order to convict it was necessary for the jury to reject the appellant’s account and be satisfied beyond reasonable doubt as to the truth of the complainants’ evidence. The judge in his charge to the jury summarised the defence closing. At the end of the charge he summarised defence counsel’s argument in closing as follows:
They [the complainants] had a king-sized motive to falsely inculpate TP. He said the Family Court feud had been continued here; that this court case represents the final chapter in a vicious fight between V on the one hand, and TP on the other, and that V and M are supporting the cause and falsely implicating TP as part of that Family Court feud.
He said that Mr Coombes and Mr Mortimer are simply, as TP says, liars going along with what M said, and that Mrs Dobell is in the same camp. That she has rung up and told what to say.
The appellant relied upon Palmer, R v PLK[6] and R v Cupid[7] to support the contention that the jury should have been directed that each of the three circumstances mentioned above called for a direction that it was not for the defence to establish a motive but for the prosecution to prove its case to the criminal standard.
[6][1999] 3 VR 567.
[7][2004] VSCA 183.
The reasoning which underlies Palmer rests upon the concern that if invited to consider a lack of a proved motive, the jury will use its absence as strengthening the credibility of the prosecution witness thereby diminishing the onus of proof which rests upon the Crown.[8] In R v Cupid Callaway JA said:[9]
In Palmer v R and other cases it has been explained that to ask an accused person why the complainant would lie, or to ask that question rhetorically of a jury, is objectionable because (a) it invites the jury to speculate, (b) it is unfair to the accused, who is not in a position to see into the mind of the complainant, (c) it may undermine the onus of proof and (d) the fact that the accused cannot suggest a motive is generally irrelevant. The position can be no better if the complainant herself says, ‘Why would I lie?’ or words to that effect in the presence of the jury and they are forcefully reminded of that in the course of the prosecutor’s final address.
[8] R v Cupid [2004] VSCA 183 (‘Cupid’), [12] (Ormiston JA), [28] (Callaway JA), [40] (Buchanan JA).
[9]Ibid [28].
Counsel for the appellant submitted that in circumstances where collusion was alleged between M and V and a motivation for them to provide false testimony was proffered, a Palmer direction should have been given, regardless of whether it was requested by counsel or not. No Palmer direction having been given, there was a substantial risk that the credibility of the complainants was strengthened by the rejection of the only motive to lie advanced by the defence and the standard of proof thereby diminished.
The respondent submitted that a Palmer direction was not required. It was the defence contention and the appellant’s evidence that the complainants had colluded and conspired to falsely implicate the appellant was the final chapter of the Family Court feud. Defence counsel had cross-examined the complainants on the basis that their testimony was false, that it was a result of collusion and that it was motivated by the Family Court proceedings. The prosecutor was entitled to question the appellant as to the implausibility of this defence hypothesis. The rhetorical question uttered by M after extensive cross-examination would not have impermissibly distracted the jury from their task. Even if V’s remark should be viewed as raising a question of motive, the impugned remarks of V and M were, when viewed in the context of the whole trial, insignificant.
The respondent further submitted that neither V’s rhetorical question, the prosecutor’s questioning of the appellant, the submissions of the prosecutor in closing or the judge’s summation had the effect of encouraging the jury to reverse the onus of proof by reasoning that the complainants’ credibility was strengthened as the appellant had advanced no persuasive motive for them to lie. Experienced counsel, who appeared for the appellant at trial, did not seek a Palmer direction. Finally the respondent relied upon the repeated directions given to the jury that they could not convict unless the jury were able to reject the appellant’s version of events and were satisfied to the criminal standard as to the truth of the complainants’ account.
The respondent’s submissions should be accepted.
A Palmer direction was not here required in relation to the impugned comments of M or V, where their comments were not repeated by the prosecutor or the trial judge.[10] The congregation of circumstances which were present in Cupid which called for a Palmer direction, and which were not here present, included the reliance by the prosecutor in closing address upon the rhetorical questions ‘why would I lie’ uttered by the complainant and the judge’s reminder of it in the charge. There was no conduct by the prosecutor or the trial judge that would here give rise to illegitimate speculation on the jury's part, as to the probability of the witness telling the truth.
[10]Ibid [41] (Buchanan JA).
Neither is a Palmer direction required in every instance where a jury is asked to consider the question whether a prosecution witness has a motive to lie.[11] R v DCC[12] was a case fought on the basis that the accounts of the complainants were not the product of mistake or false recollection, but of deliberate concoction and collusion.[13] Complaint was made that the prosecutor had in closing made critical comments as to the defence that the complainants had colluded and concocted their evidence. Eames JA, with whom Callaway and Nettle JJA agreed, rejected the argument that it was therefore necessary in the context of that trial for the trial judge to direct the jury that there was no onus on the accused to provide a motive or that if the jury could discern no motive for the complainants lying that it did not follow that the complainants were telling the truth. Eames JA said:[14]
The propositions advanced by the prosecutor were no more than part of an argument employed by him to counter the contention that the complainants had, in fact, colluded in making false accounts. The comments did not encourage a reversal of the onus of proof, but, rather invited rejection of the defence hypothesis that the applicant was the victim of collusion between the step-daughters and the lies concocted by them. Far from reversing the onus of proof, the questions merely invited the jury to be satisfied that the accounts of the witnesses bore the hallmarks of truth, rather than collusion and concoction. Had the prosecutor been making an argument in his address concerned with the absence of any motive for the complainants to lie then there may well have been a basis for the further complaint made by Mr Kassimatis that the jury should have been directed that even if they rejected the motives suggested by the applicant that did not mean that the complainants were necessarily telling the truth. The prosecutor, as I have said, was not, however, addressing the question of the complainant’s motive to lie, but the improbability of them having colluded.
[11]See R v PLK [1999] 3 VR 567.
[12](2004) 11 VR 129.
[13]R v DCC (2004) 11 VR 129, 146 [70].
[14]R v DCC (2004) 11 VR 129, 146 [73] (emphasis added).
Both the prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case. A satisfactory charge will usually include reference to those arguments.[15] It is preferable that a judge then direct the jury to the effect that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful but it will ordinarily be sufficient if the direction makes clear that where it is alleged that the complainant had a motive to lie, the jury's task is to consider such an allegation and the evidence in support of it and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true.
[15]Palmer, 9–10, [10]–[11].
The jury were not explicitly told that if they reject the specific motive to lie on the part of the complainants, that rejection of the motive does not mean the complainants were telling the truth.[16] However, the charge, fairly understood, was to the effect that in addition to rejecting the appellant’s version, the Crown must satisfy the jury beyond reasonable doubt as to the truth of each complainant’s account. Such a direction was sufficient and it was repeated in numerous ways during the charge. Nothing was said by the prosecutor or trial judge which would have deflected the jury from the task of enquiring by permissible reasoning whether the prosecution had proved its case beyond reasonable doubt. In particular, the charge did not encourage reasoning that the complainants’ evidence should be accepted, unless some positive motive to lie was demonstrated by the appellant.
[16]R v PFG [2006] VSCA 130, [37].
This ground is not made out.
Ground 3 –Breach of the rule in Browne v Dunn – Recent invention
The appellant under cover of this ground complains that the judge erred in his directions to the jury as to how the jury might use the breach of the rule in Browne v Dunn.
In R v Morrow[17] Redlich JA, with whom Nettle JA and Lasry AJA agreed, discussed the various consequences of non compliance with the rule in a criminal trial.[18] In the present trial the breach of the rule was not only relied upon as going to the weight of the evidence in support of the allegations not ‘put’[19] but in the second way discussed in Morrow as bearing upon the credibility of the appellant’s account.[20] Although decisions such as MJW v R,[21] Morrow and R v Thompson[22] emphasise that it should only be in rare cases that a judge should direct a jury in a criminal trial that the jury may draw an adverse inference as to the accused’s credibility from a breach of the rule, no complaint is made by the appellant that the judge did so in the present case, presumably because it had been so explicitly suggested during the prosecutor’s cross-examination of the appellant.
[17](2010) 26 VR 526 (‘Morrow’).
[18]Ibid [56].
[19]Ibid [60].
[20]Ibid [62]–[70].
[21]MJW v R (2005) 222 ALR 436, 448 [38]–[40].
[22](2008) 21 VR 135.
How to treat a failure to cross-examine on a certain issue must be considered in the light of the nature and course of the proceedings.[23] It was not in issue at trial or on the appeal that there had been non compliance with the rule during the course of the trial. The appellant had given evidence in which he testified as to matters that had not been put to Crown witnesses. The omission by his counsel to cross-examine the crown witnesses as to those matters was then explored by the prosecutor in cross-examination of the appellant.
[23]MJW v R (2005) 222 ALR 436, 440–441 [18].
The prosecutor was entitled to question the appellant in relation to those parts of his evidence which should have been ‘put’ to Crown witnesses during their cross-examination. As the prosecutor intended to rely upon the failure of the defence to challenge the Crown witnesses as to these matters, it was necessary that the prosecutor, in compliance with the rule, provide the appellant with an opportunity to explain why these matters had not been put to the Crown witnesses.
During that cross-examination, the appellant’s counsel on a number of occasions interrupted to state before the jury that it was his fault that the matter then the subject of cross-examination had not been raised with the relevant Crown witness. However, as to a number of the matters on which the appellant was cross-examined, his counsel made no suggestion that he was responsible for the omission to cross-examine the Crown witness.
It is convenient to set out some of the matters upon which the Crown ultimately relied in its closing and which were then referred to in the charge. As to the first of the matters upon which the Crown relied, the appellant was cross-examined as follows:
Q--I want to give you an example. Count 1, the panel van assault where it's alleged that you smashed M's head against the car. You recall those allegations?
A---Yes.
Q--You gave your barrister instructions about what you say occurred, didn't you?
A---Yes.
Q--The evidence was it was an 18th birthday party and your car was there or M said there was a white panel van there?
A---Mm.
Q--Is that right?
A---She did, yeah.
Q-- There was a car, as described by some of the other witnesses, with DJ equipment in the car?
A---A stationwagon, yeah.
Q---But with DJ equipment?
A---That's what they said, yes.
Q--- M said you were there at the party?
A---She did, yes.
Q--- And Ms Shaw and Ms Dobell said that they were introduced by M, her new boyfriend or a boyfriend by the name of Trevor?
A---That's what they said.
Q--- On your instructions your barrister suggested that it never occurred, didn't he?
A---I beg your pardon?
Q--- The assault?
A---I beg your pardon.
Q--- The assault never occurred?
A---Yes.
Q--- That's what he suggested to those witnesses?
A---Yes.
Q---But it was never suggested that you weren't there, was it?
A---Um I don't remember what the evidence was given.
Q--- But you say you weren't there, don't you?
A---No, I definitely wasn't there.
Q--- Never went to that party?
A---I never went to that party.
Q--- It was never put to any of those witnesses, was it?
A---Well, that appears to be some sort of a communication breakdown between myself and [defence counsel] when he asked me, do you recall this? And I said, I have no recollection whatsoever of that party.
Q---But [defence counsel] is a very thorough and detailed barrister, isn't he?
A---Yes.
Q---I suggest to you that if you had told him that he would have put that matter to those witnesses?
A---Well, that's what I told him.
Q--- I suggest to you, you never told him that at all?
A---Well, you can suggest what you like. I told him that.
Q--- So you say you told him that and he didn't put it?
A---You're putting words in my mouth. I said that he asked me, do you recall this? And I said, I have absolutely no recollection of that party.
Q--- You told him you weren't there?
A---That's where I think the communication broke down because I don't think I added the words, I wasn't there. I thought that it meant that if I didn't have a recollection I wasn't there.
Despite those answers, in re-examination the appellant stated that he had only come to the conclusion that he was not at the party during the course of the trial. He said that during the currency of one of the witness’s evidence he had made the decision that he had never attended the party.
As to the other matters upon which the Crown relied, the appellant either conceded in evidence that he had not told his counsel or was unable to recall whether he had done so. The following further cross-examination is illustrative. The appellant was cross-examined as to his suggestion that he would not have gagged M and hog tied her to a coffee table, so that she could not breathe through her nose:
Q--- That was never put to her, that she had some psychological problem or some sort of problem that caused her difficulties in breathing through her nose, was it?
A---Maybe I should have been allowed to cross-examine her.
Q--- What, you say [defence counsel] didn't do the right thing by you there either, because you told him that as well?
A---[defence counsel]'s a brilliant barrister but he's not God and can't remember everything.
Q---So you told him that, did you?
A---Told him what?
Q---You told him that she had a problem breathing through her nose, did you?
A---I – I can't recall that.
Q---You can't recall?
A---No.
Q---Can I suggest to you that had you told [defence counsel] he would have put it and I suggest to you, you didn't?
A---OK, then maybe I didn't.
As to another of the matters, the appellant’s evidence was as follows:
Q--- Let's give you – see another example. What about the milkman? The milkman would deliver the milk every morning?
A---Yes.
Q--- He'd go inside the shop?
A---M'mm.
Q--- We never heard anything about the milkman either, did we?
A---No one asked her.
Q--- Was that ever put to M that there's a milkman who'd come in and put – deliver the milk?
A---I don't think so.
Q--- Did you tell [defence counsel] that?
A---I don't know, I don't think so.
The prosecutor made clear during the cross examination that he was suggesting that the appellant had recently invented his evidence on these matters. Those suggestions were repeated in the prosecutor’s closing address. No objection was taken to the prosecutor’s questions or his closing submissions.
Following the completion of addresses the trial judge, in the absence of the jury, discussed with counsel the content of his proposed charge on the breach of the rule. He read out to counsel what he intended to say as to the rule and the possible consequence of its breach. No objection was raised as to any part of what his Honour proposed to say. In addition, there was a discussion as to what his Honour might say as to each of the specific matters relied upon by the prosecutor. The tenor of the discussion was that the appellant’s counsel was taken to each of the matters relied upon. In substance counsel conceded that on some matters there was no error on his part and that the prosecutor was entitled to rely upon them. On others he maintained, as he had done during his interruptions to the prosecutor’s closing address, that the appellant should not be blamed, in substance contending that he had instructions on those matters and that the omission to cross-examine was due to an oversight or a forensic decision. The trial judge acting upon the appellant’s counsel’s frank statements from the Bar table, informed the parties that he would only direct the jury as to those five instances where the appellant’s counsel conceded that the omission should be attributed to the appellant.
The trial judge then charged the jury in the following manner which accorded with those prior discussions with counsel:
I want to turn to a topic that seemed to loom fairly large and rage throughout this case, and you will recall questions being asked and propositions being put about ‘Did you hear your barrister put’ or ‘Did you say this’. It is a rule of fairness that counsel representing an accused should give a witness for the Crown an opportunity to answer matters which he knows his client is going to give in evidence.
Another way of saying it is: it is a rule of evidence that things your client is going to say should be put to Crown witnesses. In this case, [defence counsel], who you heard, is a very thorough and competent barrister, indeed, cross-examine Crown witnesses, it might be said, to great detail and length. You can infer that what he put to the Crown witnesses was what he had been told or instructed by his client, TP. That is what a barrister does. When a barrister gets up and says ‘I put it to you that this happened, he was not there,’ he is only relying on his instructions what it was that he has been told by his client.
Now, if there is, and you believe, a shift or a change in position between what [defence counsel] put to a witness and what TP said in evidence. If you think there has been such a shift, you are not obliged, of course, to conclude that any difference that exists between the two versions; that is, between what [defence counsel] put to the witness and what TP said in evidence, is as a result of a change in his position.
However, you might ask yourself whether any glaring or flagrant change in position indicates some recent invention or change of story by TP. Remember there may be other reasons why there had been such a change. [Defence counsel], on a couple of occasions, told you frankly, several occasions, stood up and said ‘That's my fault’. Remember when he said that. ‘I didn't put it because either I mucked it up, or I chose for forensic reasons. I didn't think it was smart, so I didn't do it’.
So, in those circumstances, of course, you could not conclude that the change in position, if it exists, is because of some change of position by TP. He has had the same position all the time. His barrister just did not put it properly.
But there are other examples where that was not the position. You may remember there were some where [defence counsel] did not say they were his fault, and I will deal with those in a moment.
But remember what I said to you about inferences. Before you could conclude that the accused man changed his story or made up his evidence, you have to be satisfied beyond reasonable doubt that there was no other explanation for his change in position, if there was one. Again, even if you are satisfied that there was such a change of position by the accused man in respect of some matter, that goes only to his credit; and by that I mean whether you determine or not to believe the things he says to you from the witness box, what weight you give his evidence, whether you believe him or not.
The trial judge then referred to the five matters that were relied upon by the Crown that were said to reflect a change in the appellant’s position. Attention was drawn to the appellant’s evidence and the way in which it differed from what had been put to the witnesses by his counsel. His Honour then said:
But they are examples of where the Crown say you can draw inferences that the accused man has changed his tune, as it were, from the time that the witnesses were cross-examined to the time he gave evidence. You will bear in mind what I said to you about inferences, and the rules that apply. You can draw an inference that the accused man has changed his position in relation to some of those matters, but that can only be used for your view of whether or not you believe him, whether he is a truthful witness, and does not, of course, mean that he is guilty in any way of any of the crimes that he is charged with. It simply reflects – you can only use that if you choose to do so at all, and you may not – if you choose to believe that he has changed his story, that goes only to his credit and not to any of the offences for which he is charged. Now, it is obvious to you that in this case there is a clear conflict between the evidence of the prosecution witnesses, all of them I think, and TP. It is not necessary for you to accept TP's evidence in order to find him not guilty. You do not have to believe him to acquit him.
No exception was taken to any aspect of these directions.
On appeal the appellant submitted that the judge had failed to alert the jury to the fact that there may have been explanations for the breach of the rule other than recent invention and that the direction conflated the issue of whether there was a change in the appellant’s position during the course of the trial with the question of whether that change in position permitted the inference of a recent fabrication. The direction was said to create the risk that the jury would reason impermissibly that any breaches of the rule that could not be explained by counsel’s omission were due to recent invention by the appellant.
The context in which these directions came to be formulated informs the question whether they were appropriate.
During the oral argument in reply by senior counsel for the respondent, the Court’s attention was directed to the answers of the appellant during cross-examination. That there had been a change in the appellant’s account on the five matters upon which the Crown relied and which was not attributable to his counsel, emerged clearly enough from the appellant’s answers during his evidence. In oral argument the respondent also relied upon the subsequent discussions between the trial judge and the appellant’s counsel to which we have referred concerning the content of the proposed directions which were not the subject of any objection and the concessions made by the appellant’s counsel. Following the hearing of the appeal the Court was provided with a transcript of those discussions during which the trial judge resolved the appellant’s position on each of the matters on which the Crown had relied. The charge was then tailored to the issues as settled in those discussions.
Accordingly, the directions were focussed on whether the jury could infer from the change in the appellant’s position that he had recently invented his evidence on those matters. His Honour had already given the jury the customary direction as to the drawing of inferences. In the course of the Browne v Dunn direction, he reminded them of that earlier instruction. Furthermore, he explicitly instructed the jury that they could only draw an inference affecting the appellant’s credibility if they were able to exclude beyond reasonable doubt that there was any other explanation for the change in his position. Although the form of the directions was less than ideal, we do not regard them as containing any of the errors alleged or as giving rise to a risk that the appellant’s change in position may have been misused by the jury.
It follows that the appeal against conviction fails.
Sentence
The appellant’s grounds of appeal against sentence alleged that the sentence was crushing, manifestly excessive in all respects, and did not sufficiently reflect the delay in prosecution.
Ground 1 – The sentence was crushing
The appellant submitted that insufficient regard had been given to his age and state of health and also relied on these factors to contend that the sentence was crushing. The appellant was approximately 60 years of age[24] at the time sentence was passed. He suffers from a bi-polar disorder, depression and memory dysfunction, and has ongoing pain management issues due to a back injury. Because of his spinal problems he ceased working more than sixteen years ago. The appellant was on a disability pension. His memory and physical conditions are said to be substantially deteriorating.[25]
[24]Some confusion seemed to exist at the time of the plea as to whether the appellant was aged 60 or 61 at the time of sentence.
[25]DPP v TP (Unreported, County Court of Victoria, Judge Chettle, 31 March 2010) (‘Reasons’), [41].
The correct approach to the sentencing of an offender of an elderly age and declining health was discussed in R v RLP.[26] It is not uncommon that offenders of the appellant’s age or even older come before the courts for sentence.[27] This Court has consistently stated over the years that an offender’s age or ill health does not provide a justification for avoiding just punishment, or for the imposition of a lengthy sentence.[28] The ill health or advanced age of the accused will be a relevant sentencing consideration, but the weight attached to these factors will be dependant on the individual circumstances of the case. Punitive sentencing considerations such as general deterrence and denunciation do not cease to be significant because of an offender’s age or health status.
[26][2009] VSCA 271.
[27]See for example R v RLP [2009] VSCA 271 where the appellant was aged 77; R v Iles [2009] VSCA 197, where the appellant was aged 83; R v Taric [2008] VSCA 166 where the appellant was 63 at the time of sentence.
[28]R v Gregory [2000] VSCA 212, [21] (Winneke P); R v Bazley (1993) 65 A Crim R 154.
The sentencing judge was evidently mindful of the appellant’s age and referred to it several times during his sentencing remarks. His Honour recognised that the appellant suffered from ill health and stated that he took that into account. His Honour accepted that the appellant would therefore find his prison sentence more onerous. No specific error in his Honour’s approach to the weight accorded to considerations such as the appellant’s advanced age or ill health has been shown.
With particular respect to whether the sentence was crushing, the appellant relied upon the observations of Southwell J in R v Ridsdale[29] who had confessed to considerable vacillation upon the question whether a sentence of 18 years imprisonment imposed upon a 60 year old man should be regarded as manifestly excessive, when such a sentence might fairly be regarded as a virtual life sentence. As his Honour explained, he used the phrase virtual life sentence for the reason that the life expectancy of a 60 year old man is about 18 years, being the head sentence passed upon the applicant in that case. However, Southwell J rejected the contention that the sentence was manifestly excessive as did the Chief Justice and Hampel J. Notwithstanding the admonition of this court in Hudsonv The Queen[30] against seeking to distinguish between cases which fall into the worst category, the appellant contended that Ridsdale was a more serious case than the present. Ridsdale had committed a multiplicity of grave offences including five counts of buggery, one count of attempted buggery, thirty counts of indecent assault on a male person under the age of sixteen years, four counts of gross indecency with a male person, five counts of indecent assault and one count of indecent assault on a girl under sixteen. Those counts, many of which were representative, covered a twenty year period.
[29][1995] VSC 88.
[30](2010) 205 A Crim R 199, 206 [25]–[26].
On the plea in mitigation this consideration was raised with the sentencing judge. His Honour stated in his sentencing remarks that he had moderated the sentences to avoid imposing a crushing sentence. But the appellant submitted that it was likely that he would see out the rest of his natural life in gaol, given the length of the sentence imposed and the average life expectancy for a male. While the appellant will not be eligible for parole until his mid 70s we do not consider that the sentence meets the description of a crushing sentence, being one that would destroy any reasonable expectation of a useful life after release.
Delay
We turn to the ground under cover of which it is asserted that his Honour failed to give any mitigatory weight to the period of delay in the matter being brought to trial.
That there had been a lengthy delay in bringing the matter to trial was not in dispute. V had first complained to the South Australian police in 1987. M had also made a series of statements to the police alleging physical violence from 1991 to 1994. Victoria Police began an investigation after full statements were made by V and M in 2004.
The appellant was charged by the police in 2007. Prior to the trial, the appellant made an unsuccessful application for a permanent stay of the proceeding on the basis that the loss of material made it impossible for him to receive a fair trial. In the course of rejecting the application his Honour noted that following the making of statements in 2004 the investigation proceeded ‘at a leisurely but not unusually slow pace’ given the historical nature of the matters and the somewhat unusual interpersonal relationships that the police had to deal with when investigating this case.
The sentencing judge did refer to the question of delay in his sentencing remarks but he did so in the context of the appellant’s failure to understand how ‘traumatic, degrading, and terrifying’ his crimes were for both complainants. His Honour recognised that it is not uncommon for victims of domestic violence and or sexual assaults to delay reporting of the crimes until years later and that the victims’ ‘shame, guilt and embarrassment will endure often when the perpetrator has moved on and put his crimes behind him’.[31] This was a recognition of the fact that delay between the commission of such offences and sentencing is an unfortunate by-product in cases of this type.[32]
[31]Reasons, [45].
[32]See TRG v The Queen [2011] VSCA 311, [52] (Weinberg JA); R v Toomey [2006] VSCA 90, [14] (Buchanan JA).
Because the sentencing judge was focussed upon the effects of the appellant’s conduct upon the victims, the appellant in a supplementary written submission contended that the sentencing judge failed to take into account that the period of delay did not start from the time he was charged but from a time considerably earlier. His offending ceased in 1990. During the period since the protracted Family Court proceedings commenced in the 1990s and the complainants made their further complaints to investigating police, it could not be said that the complainants were under his thrall. Hence, it was submitted that this period of time, well before the time that he was charged, should have been counted as part of the period of undue delay.
The respondent provided a supplementary written submission addressing the explanation for the delay. A file note held by the OPP reveals that the informant, presently deployed overseas in East Timor, gave the reason for the delay as ‘identifying and contacting witnesses who have since moved to other parts of Victoria, interstate and overseas.’ The respondent provided a transcript of the permanent stay application which contained the finding by his Honour to which we have referred. As the respondent acknowledges in its further submission, V first made allegations of a sexual and physical nature to South Australian police in 1987 which were followed up after her further statement to Victorian police in 2004. M made 5 statements in all between 1991 and 1995 containing allegations of physical violence against the appellant and the allegation that the appellant had been in a sexual relationship with V since she was 14.
The respondent stated that it was not otherwise in a position to expand upon the reasons for the delay other than to suggest that it appeared that a partial explanation for the pace of the investigation was the need to obtain the past complaints made by M and V and the need to obtain affidavits and transcript from the protracted Family Court proceedings. This does not completely explain why the investigation took so long and the laying of the charges was so delayed. Moreover, the respondent has said nothing as to the appellant’s repeated contention that the delay must be viewed as having commenced long before the date that the appellant was charged. In our view there is considerable force in this submission.
It was submitted further that the fact that the lengthy delay before trial could not be attributed to the appellant was a significant mitigating factor at a number of levels. In particular, the appellant drew attention to the relevance of delay to the issues of rehabilitation and fairness in the sentencing process.[33]
[33]R v Merrett [2007] 14 VR 392.
As Chernov JA stated in R v Cockerell,[34] the community has a vested interest in sentences being tailored to permit, as far as possible, any process of rehabilitation that is under way at the time of sentence.[35] The appellant submitted on appeal that he had throughout the period of delay been at large, had committed no offence and had ordered his affairs with a view to reorganising his life. But beyond these relevant matters, no evidence of insight, or remorse was led at the plea hearing or on appeal. To the contrary, his Honour found that the appellant completely lacked remorse and understanding as to his offending conduct. That said, the appellant was entitled to have taken into account in his favour the fact that since the complainants had left his home in 1990, he had re-organised his life.
[34][2001] VSCA 239, [9].
[35]See R v MWH [2001] VSCA 196.
Furthermore, the fact that these offences remained outstanding and unresolved for a number of years was, as a matter of fairness, a matter which had to be taken into account. As was recognised in R v Miceli,[36] fairness required consideration of the fact that the appellant had been left in a state of anxiety and uncertain suspense as to what will happen to him over a long period whilst his fate was undetermined.
[36][1998] 4 VR 588.
His Honour made no express reference in his sentencing remarks to either aspect of the delay as a mitigating factor. Whether by oversight or otherwise, the delay was not treated as a mitigating factor in either of these ways. However, as we are of the view that the sentencing discretion must in any event be re-opened, we do not stay to further consider this ground.
Manifest excess
We turn then to the contention that the sentences were manifestly excessive or infringed the principle of totality.
The appellant relied upon certain factors in mitigation which it was submitted had not been given adequate weight and which in combination required a lesser sentence. The appellant has no prior convictions. He was in a committed relationship at the time of sentence and has a young daughter. Given his health and mental state, prison would be more onerous. There was an undue delay in his prosecution. Save for the last of these matters, the judge referred to each of these factors and stated that he moderated the sentence accordingly.[37]
[37]Reasons, [45].
The objective gravity of the offences, the appellant’s lack of remorse, and the protracted period of offending required that a very significant custodial sentence be imposed. In his sentencing remarks his Honour said:[38]
You controlled and dominated the women in your life, you threatened bullied raped and assaulted them. Your crimes are serious examples of serious offences. You systematically and regularly sexually and physically assaulted two young women who relied upon you to care for them. Your conduct was ongoing for nearly ten years and all your crimes call for condign punishment.
[38]Ibid [39].
The offending was extremely serious and occurred over a protracted period of time. It has had the most profound effects upon the complainants. The judge was required to give the punitive sentencing considerations such as general deterrence and denunciation their proper weight in the sentencing synthesis despite the appellant’s age, ill health and the age of the offences. Having regard to the degree of
criminality of the appellant’s conduct, the individual sentences may be viewed as stern but they were in our view within a sound exercise of the sentencing discretion.
As we have said, we would not characterise the total effective sentence as ‘crushing’ but we consider the orders for cumulation have produced a sentence which infringes the principle of totality. As was stated in Azzopardi & Ors v The Queen:[39]
The applicant’s argument proceeded upon the false but often stated assumption that a crushing sentence and one that infringed totality were the same. Whether a sentence offends the principle of totality is directed to the broader question whether the total sentence is proportionate to the offenders overall criminality. It is not dependent upon the subjective views of the offender. Thus a sentence may offend the totality principle without being ‘crushing’. It may be too long without destroying any reasonable expectation of a useful life after release.
[39][2011] VSCA 372 (‘Azzopardi’), [56]–[69] (Redlich JA).
The combined sentence must be a just and proportionate measure of the offender’s total criminality. It must be commensurate with the gravity of the whole of the offending and the offender’s just deserts.[40] As was also stated in Azzopardi:[41]
The rationale underlying the principle is that a ‘just measure’ of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct. Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing.
[40]Ibid [56]–[57].
[41]Ibid [61].
The principle of totality has been infringed because the total effective sentence exceeded that which was necessary to achieve all sentencing purposes. Consequently, the effective sentence was disproportionate to his overall criminality.
Accordingly we would allow the appeal and would re-sentence the appellant as follows:
Count 1 – 12 months’ imprisonment, 3 months cumulative,
Count 2 – 6 months’ imprisonment,
Count 3 – 12 months’ imprisonment, 3 months cumulative,
Count 4 – 8 years’ imprisonment, Base Sentence,
Count 5 – 3 months’ imprisonment,
Count 6 – 12 months’ imprisonment, 3 months cumulative,
Count 8 – 4 years’ imprisonment, 1 year 6 months cumulative,
Count 9 – 4 years’ imprisonment,
Count 11 – 3 years’ imprisonment, 9 months cumulative,
Count 12 – 3 months’ imprisonment,
Count 13 – 2 years’ imprisonment, 9 months cumulative,
Count 14 – 12 months’ imprisonment,
Count 15 – 4 years, 1 year cumulative,
Count 16 – 2 years’ imprisonment, 6 months cumulative,
Count 19 – 9 months’ imprisonment, 3 months cumulative,
Count 22– 8 years’ imprisonment, 3 years 6 months cumulative.
Each of the sentences ordered to be served cumulatively shall be served cumulatively on each other and the sentence fixed on Count 4 making a total effective sentence of 17 years. We would fix a minimum period of thirteen years before the appellant is eligible for parole.
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