Tognolini v The Queen (No 2)
[2012] VSCA 311
•14 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0012
| TERRENCE RAYMOND TOGNOLINI | Applicant |
| v | |
| THE QUEEN (NO 2) | Respondent |
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| JUDGES | MAXWELL P, BUCHANAN and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 May 2012, 29 January 2013 |
| DATE OF JUDGMENT | 14 December 2012 |
| DATE OF ORDERS | 14 December 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 311 1st Revision 18 June 2013 |
| JUDGMENT APPEALED FROM | R v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010) |
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CRIMINAL LAW – Appeal – Sentence – Arson – Total effective sentence 12 years, 8 months – Applicant already serving sentence for other offences (‘first sentence’) – Non‑parole period not completed – 2 years, 7 months already served – Additional non‑parole period fixed at 8 years – Application for leave to appeal against arson sentence – Notice of abandonment subsequently filed – Application dismissed – Appeal against first sentence subsequently succeeded – Tognolini v The Queen [2011] VSCA 113 – First sentence reduced – Whether abandoned application for leave to appeal against arson sentence can be reinstated – Application reinstated – Leave to appeal granted – Onerous conditions in custody – Appeal allowed – New single non‑parole period fixed at 8 years – R v McNamara (No 2) [1997] 1 VR 257 applied – Sentencing Act 1991 (Vic) s 14(1) – Supreme Court (Criminal Procedure) Rules 2008 rr 2.40, 2.41.
CRIMINAL LAW – Sentence – Non-parole period – Pre-sentence detention – Offender still serving non-parole period fixed under prior sentence – Sentencing judge obliged to fix ‘new single non-parole period’ in respect of all sentences – Commencement date of new non-parole period – Whether date of sentencing or date of prior sentencing – Whether period since previous sentencing can be declared as pre-sentence detention – R v Rich (No 2) (2002) 4 VR 155, R v Stares (2002) 4 VR 314 considered – Sentencing Act 1991 (Vic) ss 14(1), 18.
PRACTICE AND PROCEDURE – Criminal law – Appeal – Reinstatement – Application for leave to appeal against sentence – Application abandoned – Taken to be dismissed – Inherent power of Court of Appeal to permit withdrawal of notice of abandonment – Power to prevent miscarriage of justice – Leave granted to withdraw notice of abandonment – Sentencing Act 1991 (Vic) s 14(1) – Supreme Court (Criminal Procedure) Rules 2008 rr 2.40, 2.41.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Galbally Rolfe |
For the Crown | Mr O P Holdenson QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
BUCHANAN JA
REDLICH JA:
In March 2009, the applicant was convicted after a trial in the County Court of one count of committing an indecent act with a child under 16, and one count of attempting to pervert the course of justice. He also pleaded guilty to 18 counts of supplying a drug of dependence to a child.
He was sentenced by Judge Sexton to be imprisoned for four years on each of the counts of supplying a drug of dependence to a child, for two years on the indecent act count, and for six years on the count of attempting to pervert the course of justice.[1] With a measure of cumulation, a total effective sentence of eight years and six months’ imprisonment was produced. A term of six years and six months’ imprisonment was fixed before the applicant was to be eligible for parole. (We will refer to this as the ‘first sentence’.)
[1]R v Tognolini (Unreported, County Court of Victoria, Judge Sexton, 5 March 2009).
On 20 April 2011, this Court refused the applicant leave to appeal against conviction, but upheld in part his appeal against the first sentence. The total effective sentence was reduced from eight years and six months to six years and six months, and the non‑parole period from six years and six months to four years and six months.[2] This significant change reflected a reduction from six years to four years in the sentence on the count of attempting to pervert the course of justice. (We will refer to this as the ‘sentence appeal’.)
[2]Tognolini v The Queen [2011] VSCA 113.
In the intervening period, in January 2010, Judge Pilgrim had sentenced the applicant on unrelated charges[3] to a total effective sentence of 12 years and eight months, which he ordered be served concurrently with the first sentence.[4] (We will refer to this as the ‘second sentence’.) At the time he was sentenced by Judge Pilgrim, the applicant was still serving the non‑parole period fixed under the first sentence. He had served two years and seven months of the first sentence.
[3]Nine counts of blackmail; three counts of arson; one count of threatening to damage property; one count of indecent assault; one count of assault; one count of intentionally causing serious injury; and one count of stalking.
[4]R v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010).
Accordingly, Judge Pilgrim was required by s 14(1) of the Sentencing Act 1991 (Vic) (the ‘Act’) to fix ‘a new single non‑parole period in respect of all the sentences the offender needs to serve or complete’. His Honour fixed a new non‑parole period of eight years, which he declared was to commence that day.
At the time the applicant was resentenced by this Court following the success of the sentence appeal, there was on foot — although it was not known to the Court — an application for leave to appeal against both conviction and sentence in the second matter. Subsequently, however, the application for leave to appeal against sentence was abandoned and the application for leave to appeal against conviction was refused.[5]
[5]Tognolini v The Queen [2011] VSCA 394.
When judgment was handed down in the sentence appeal on 20 April 2011, counsel for the applicant said:
It would seem the reduction in the applicant’s sentence has repercussions by reason of a subsequent sentence imposed by his Honour Judge Pilgrim for an unrelated offence.
The following exchange then took place:
THE COURT: If there is a consequential effect and there needs to be an amendment of the subsequent sentence or a fixing of a new non‑parole period or some such …
COUNSEL:We can make submissions.
THE COURT: If you can make submissions about that then [the Court] can deal with that matter quite quickly.
In February this year, pursuant to that invitation, counsel for the applicant filed further submissions, contending that the bench which heard and determined the sentence appeal should:
(a)reconsider the first sentence in its entirety; or
(b)‘at the very least’, impose a new global non‑parole period referable to the entirety of his offending.
The Crown’s response is that the bench which dealt with the sentence appeal (which concerned only the first sentence) has no jurisdiction to review or reconsider the second sentence. Alternatively, the Crown submits, there is no basis to alter the global non‑parole period set by Judge Pilgrim.
As the Crown correctly submits, the bench which determined the sentence appeal has no jurisdiction to consider, let alone to modify, the second sentence. That is not, however, the end of the matter. For reasons which follow, we would give the applicant leave to reinstate his abandoned application for leave to appeal against the second sentence.
Withdrawing a notice of abandonment
Plainly enough, if the reduction in the first sentence had occurred before Judge Pilgrim came to impose the second sentence, the task of fixing the new non‑parole period under s 14(1) of the Act would have been undertaken by reference to that reduced sentence. That the applicant’s success on the sentence appeal did not, in the event, occur until after Judge Pilgrim had imposed the second sentence could not, in our view, operate to deprive the applicant of the opportunity to have the overall non‑parole period fixed on the correct basis.
The obvious course, it would seem, is to permit the applicant to reinstate his application for leave to appeal against the second sentence. As we have said, on 7 October 2011 a notice of abandonment was filed with respect to that application. By operation of rr 2.40 and 2.41(1) of the Supreme Court (Criminal Procedure) Rules 2008 (Vic), the application was taken to be dismissed on that date. As things stand, therefore, there is no proceeding before the Court which gives the Court jurisdiction to consider the second sentence.
This Court does, however, have inherent power to permit a notice of abandonment to be withdrawn, notwithstanding that the filing of the notice has the effect of leading to the dismissal of the application. So much is clear from the decision in R v McNamara (No2),[6] in which the Court surveyed English authority dealing with the circumstances in which there might be reconsideration of an appeal not previously determined on the merits. Reference was made to the following part of the judgment of the English Court of Criminal Appeal in R v Moore:[7]
There have been from quite early days in the history of the court, applications for leave to withdraw a notice of abandonment, and it is exceedingly difficult to understand what power the court has to give leave to withdraw a notice of abandonment, considering that by the rules, which have the force of a statute, the appeal has been dismissed. An examination of the cases has shown that, except in one case at any rate, the court has only allowed notice of abandonment to be withdrawn if they are satisfied that there has been some mistake. No doubt if a case could be made out that a prisoner had in some way or another been fraudulently led or induced to abandon his appeal, the court in the exercise of its inherent jurisdiction would say that the notice was to be regarded as a nullity; but where there has been a deliberate abandonment of an appeal, in the opinion of the court there is no power or right to allow the notice of abandonment to be withdrawn and the appeal reinstated, because the appeal having been dismissed the court has exercised its powers over the matter and is functus officio.[8]
[6][1997] 1 VR 257 (‘McNamara’).
[7][1957] 1 WLR 841.
[8]Ibid 842, cited in McNamara [1997] 1 VR 257, 262.
The Court in McNamara went on:
The Full Court of this State has adopted the principles expressed by Lord Chief Justice Goddard in R v Moore. It, too, has taken the view that, if the court does have an inherent power to permit a notice of abandonment to be withdrawn, it is only available to be exercised in circumstances where the notice can be said to be ‘a nullity’ in the sense that the applicant has failed to understand or appreciate the nature or effect of the document; ie that his mind did not ‘go with his act’: see R v Gardiner [1970] VR 278, 280–1; R v Zakarian [1971] VR 455, 457–8. The comments made by the court in these cases were based upon a consideration of r 6(4) of the Criminal Appeal Rules 1965. That rule was, for all relevant purposes, identical with r 2.10 of the current rules.[9]
[9]McNamara [1997] 1 VR 257, 262.
The Court in McNamara also cited R v Medway,[10] a decision of a five‑member bench of the English Court of Appeal. The effect of that decision, it was said, was that the Court ‘did have an inherent power to permit the withdrawal of a notice of abandonment but only in circumstances where the applicant could show that the notice was a nullity in the sense expressed by the Full Court in R v Zakarian’.[11] The English Court of Appeal had expressed its conclusion in these terms:
The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly … exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the court to say that that abandonment should be treated as a nullity, there co‑exists an inherent jurisdiction, in other special circumstances, enabling the court to give such leave. We are satisfied and hold that there is no such jurisdiction. In our judgment the kernel of what has been described as the ‘nullity test’ is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment.[12]
[10][1976] QB 779, cited in McNamara [1997] 1 VR 257, 262.
[11]McNamara [1997] 1 VR 257, 263.
[12]R v Medway [1976] QB 779, 798 (emphasis added).
The question before the Court of Appeal in McNamara, however, was quite different from that with which we are concerned in the present case. In McNamara, an application for leave to appeal against conviction had been heard and determined on its merits and the appeal dismissed by order of the Court. The application before the Court was for leave to reopen the conviction appeal ‘in order to correct a substantial miscarriage of justice’.[13] The only relevance of the case law concerning the withdrawal of a notice of abandonment was that those decisions
provide strong persuasive authority for the principal submission made for the Crown in this court that there is no jurisdiction to re-open an application which has been determined on the merits.[14]
[13]McNamara [1997] 1 VR 257, 258.
[14]Ibid 263.
Accordingly, what was said in McNamara about notices of abandonment was obiter. The Court did, however, refer to two earlier Full Court decisions, which are in point. In R v Gardiner,[15] the court refused an application for leave to withdraw a notice of abandonment because the applicant had made a deliberate election, based on legal advice, to abandon his appeal. The ground of his application to withdraw the notice was his subsequent dissatisfaction with that advice. In R v Zakarian,[16] on the other hand, an application of this kind was granted, it having been established that the applicant had not understood that the notice he filed was a notice of abandonment of his conviction appeal.
[15][1970] VR 278.
[16][1971] VR 455.
Both decisions proceeded on the assumption that the Court had an inherent power to permit such a notice to be withdrawn and that the power was exercisable where ‘some mistake or fraud had occurred’. But in neither case was it necessary for the Court to decide whether those categories exhausted the scope for the exercise of the power.
In our view, the so‑called ‘nullity test’ exemplifies — but does not exhaust — the principle that, where the interests of justice require it, an applicant for leave to appeal should be given leave to withdraw an earlier notice of abandonment.[17] In the present case, what the applicant did not know — and could not have known — at the time of the abandonment was that his appeal against the first sentence would succeed. It would be contrary to the interests of justice for him to be denied the opportunity, having had that subsequent success, to raise the issue which properly arises concerning the non‑parole period.
[17]See R v D B B [2013] 1 Qd R 188, 203 [61].
The matter may be viewed another way. The decision of Judge Pilgrim in fixing a new non‑parole period was — unwittingly — based on a false premise. The decision which his Honour made under s 14(1) of the Act naturally assumed the correctness of the first sentence, reflecting as it did Judge Sexton’s assessment of the seriousness of the offending. That assumption having subsequently been displaced, this Court could not permit its rules to stand in the way of the need to correct an obvious miscarriage of justice, arising from a court order that rests upon a premise which was subsequently falsified. That is a separate basis, in our view, justifying the exercise of the inherent power to permit the notice of abandonment to be withdrawn.
We shall treat the applicant as having made that application orally on the day of the hearing. We grant leave to withdraw the notice of abandonment and treat the application for leave to appeal against the second sentence as reinstated.
Conditions of incarceration
The applicant relies on the conditions under which he has been held in custody during the five years of his incarceration. His counsel submits that the conditions ‘border on the inhumane’. In an affidavit sworn for the purposes of this application, the applicant says:
The conditions of my incarceration continue to be:
(1)I must spend a minimum of between 20–22 hours in my cell per day;
(2)I am permitted only one contact visit a month which lasts between half an hour and an hour;
(3)I am permitted one Box visit per week for between half an hour and an hour. A box visit is one during which I and my visitor sit in separate rooms separated by a wall of glass;
(4)I am however not permitted more than 4 visits a month in total; so that if I have one contact visit a month, I am only then allowed 3 box visits for the remainder of the month;
(5)I am permitted one telephone call per day which must be booked 24 hours in advance;
(6)I have very restricted exercise privileges which involve my being allowed out alone into one of a number of yards, the largest of which measures a mere 40 paces in circumference in a circle and is covered in its entirety by a mesh ceiling;
(7)the smaller yards measure only 15 or 20 paces in circumference;
(8)I am permitted access to the larger yard only every five days;
(9)I have restricted canteen privileges. I am not permitted to buy (for example) razors and certain food items like fruit or confectionery;
(10)my expenditures (for phone calls, canteen purchases and the like) are capped at $140 per month; and
(11)I am not permitted to associate with other prisoners.
…
I have two children … a girl aged 14 and … a boy aged 12. Although I have never been charged with, much less convicted of, any offence against any of my children, I am — by reason of my conviction for the offence of an indecent act with a child under 16 — regarded a ‘restricted access prisoner’. Consequently, my children cannot visit me without the consent of their mother … She has to date withheld, and I anticipate will continue to withhold, that consent.
I have seen my children only twice since my incarceration in mid June 2007 — whilst on remand — and before my being sentenced by Judge Sexton in March 2009.[18]
[18]Emphasis in original.
The Crown maintains that the conditions which the applicant describes accord with what was anticipated by the successive sentencing judges. Reliance is placed on the following passage from the sentencing reasons of Judge Sexton dated 5 March 2009:
You have been in custody since your arrest in June 2007. You have been held in a management unit since that time. It seems that was based on intelligence received by Corrections Victoria that there were threats against you. Concerns were held for your safety because of these threats, because of the alleged offences which included sexual offences against children, because of your former association with the Hells Angels motorcycle club where you were president for a time, and from which you were expelled in 2007 after the allegations in this case were made, because of your criminal associations and other connections to motorcycle gangs.
This morning, your file from Corrections Victoria was provided to the Court under subpoena and released to the parties. I then heard further submissions based on the material that the parties had gleaned from the file. I had earlier received copies of correspondence passing between your solicitors and the Acting Governor of Port Phillip Prison, where you are currently held, and from Mr Brendan Money, Assistant Commissioner Offender Management Services, Corrections Victoria.
Your counsel submitted that I should take into account as a significant mitigatory factor that you have spent your remand time in much more onerous conditions than a remand prisoner not held in the management unit and, that upon assessment after this sentence is passed, you are likely to remain in a management unit for the period of any sentence I impose.
Dr Sullivan gave evidence about the effect on your mental health of being and remaining in a management unit since your arrest. He said that being in such a unit for up to 23 hours a day was likely to have led to the Vitamin D deficiency you currently have and would not be likely to lift your mood. Further, it was his experience that, generally, incarceration in such a unit led to a higher risk of a mental disorder. However, as against this increased risk, he noted that despite your apparent depression, you appear resilient and have strength of will.
Dr Sullivan also recommended that you receive the opportunity for undertaking the Sex Offenders Program and drug counselling as well as treatment for your depressive symptoms. The programs would not be made available to you if you remain in the management unit. However, he seems to think that your attitude to therapy makes it unlikely that you would take any of these opportunities should they be made available.
There has of course been a change in your situation since the verdicts on 17 November 2008, with a lower number of offences overall and only one now involving a sexual offence against a child. I was told this morning that it appears from your prison file that you have been taken to sentence planning meetings on a monthly basis. You have indicated a willingness to be placed in the general population but the authorities have so far decided that the safety concerns are such that you must be either in protective custody or a management unit. You have declined to move to protective custody. It appears that there has been a lack of engagement by you in the most recent of these meetings.
You will, of course, be subjected to a prisoner assessment again after this sentence and it is up to you whether you become involved in discussions which will assist in decisions about where you are placed.
The prosecutor submitted that while it was a matter for me what, if any, benefit should apply for the time you have already spent in a management unit, that I was unable to make any such allowance for the future as this was an unknown situation.
In light of the material I received this morning, I will take into account that you have spent 628 days in a management unit and that is a more onerous imprisonment than if you were in the general population.
As for the future, I note that there is at least the possibility that you will remain in a management unit and that deprives you of certain opportunities, most particularly for increased time outside your cell. To the extent that I can take into account an unknown situation, I will recognise the possibility in my ultimate sentencing disposition.[19]
[19] R v Tognolini (Unreported, County Court of Victoria, Judge Sexton, 5 March 2009), [44]–[53] (emphasis added).
The Crown also relies on the following passages from the sentencing reasons of Judge Pilgrim dated 19 January 2012:
All that fell from [Judge Sexton] equally applies to you at this time when I find myself sentencing you.
As I understand the material produced to this court, you have now spent two years and nine months or very near in protective custody. That being the case, it must be conceded that serving time in custody in this circumstance is more onerous than serving any term of imprisonment in the general prison set up.
…
I further take into account the position you find yourself in in protective custody which continues, as I understand it, until this time.
Dr Sullivan opined, and he expressed in evidence that he gave before Judge Sexton, I accept all what he said, the veracity of his comments make common sense to a layman in the medical field.[20]
[20] R v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010), [56]–[57], [68]–[69].
As regards the applicant’s assertions about his conditions in prison, the Crown also relies on an affidavit of the Acting Deputy Commissioner (Operations), Corrections Victoria, the relevant part of which is as follows:
Out of cell hours: The applicant is guaranteed at least two hours out of cell per day. He is not obliged to be out of his cell for those two hours, but must be out of his cell for a minimum of one hour, and he may request to return to his cell after the first hour has passed. Due to the high number of long term management prisoners, who each need time out of cell, the opportunity for time out is restricted, but he also receives extra run outs a couple of times each week.
Exercise: Charlotte Unit has five long‑term yards for 25 prisoners, and all long‑term prisoners rotate to each yard when they are released from their cells. This ensures that security can be maintained by securing prisoners in different areas.
Visits: As a prisoner in a management unit, the applicant is entitled to one contact visit per month and two non‑contact or box visits per week. Due to him being convicted of sexual offences against a child, he is not permitted contact visits with children. The applicant does not necessarily use his full entitlement of visits.
Telephone calls: The applicant is entitled to a minimum of 25 personal telephone calls per week and unlimited legal calls, but can apply for more. All prisoners in Charlotte Unit have to book their telephone calls. From 1 January until 5 March 2012, the applicant has made 232 telephone calls, 215 personal and 17 legal calls.
Canteen privileges: All Charlotte Unit prisoners, including the applicant, are able to purchase from a canteen list, which has confectionery and fruit products (no fresh fruit is available for purchase by any prisoner at Port Phillip Prison). Razors are not available for purchase in Charlotte Unit. Prisoners are provided with disposable razors, as required.
…
Expenditures/income: All Victorian prisoners may receive a maximum of $140 per month from family or visitors. In addition, prisoners receive payments at various rates for work they may do in the prison. The applicant receives $43.75 per week as a billet or unit cleaner. He may spend $65.00 per week on canteen items, and he pays for regular newspapers. In addition to the canteen spend, he may buy certain special items, which are in addition to the $65.00 weekly limit.
Association with other prisoners:While the applicant is considered a prisoner who needs protection, he believes he is not. For his own safety, he is not permitted to run out (have time together in the exercise yard) with other management prisoners. He may apply to run out with other prisoners, and unit staff will provide him with a run out suitability sheet. To date he has never submitted such an application.
In relation to the applicant’s future, that affidavit states the following:
While the applicant’s present placement is appropriate, there is always a general aim to move a prisoner into a lesser security unit. The usual practice is for a prisoner to move out of a management unit, before being considered for placement in a lesser security prison. My staff have discussed the various placement options with the applicant on numerous occasions. While he qualifies as a protection prisoner, his refusal to enter protection means he needs to be accommodated in a management unit, where his safety Is protected by his restricted mixing with other prisoners.
…
Considering the placement of threatening prisoners, and his refusal to be in a protection unit, it is difficult to find a better placement than his current accommodation.
…
The applicant’s classification and placement will continue to be reviewed at least monthly. Should the applicant be open to protection placement and he actively participates in the process with the relevant safety issues explored satisfactorily, a suitable alternative placement may be possible in a relatively short period outside a management unit.
I consider the applicant’s current placement is appropriate, given his general vulnerability as a sex offender against children, the known threats against him, and his refusal to accept protection status.
Resentencing
The reduction in the first sentence — and in particular, in the non‑parole period fixed under that sentence — reopens the sentencing discretion with respect to the second sentence. No argument was advanced in relation to the head sentence imposed by Judge Pilgrim which, as noted earlier, was a total effective sentence of 12 years and eight months’ imprisonment. Having reviewed his Honour’s sentencing reasons and having regard to the seriousness and extent of the offending, the sentence was entirely appropriate, in our view.
The non‑parole period is in a different category, however. As noted earlier, Judge Pilgrim fixed a new single non‑parole period of eight years. His Honour directed that that period was to commence on the day of sentence.[21] As the Crown’s supplementary submission asserted, his Honour evidently intended that the applicant serve a further minimum term of eight years, commencing on 19 January 2010, in addition to the two years and seven months already served under the first sentence, before he would be eligible for parole. On this view, the effect of his Honour’s order was that the applicant would serve an overall non‑parole period of 10 years and seven months.
[21]See R v Stares (2002) 4 VR 314, 320 [19] (‘Stares’).
With respect, such a long non‑parole period could not have been justified, having regard to the onerous conditions in which the applicant had been held, throughout the two years and seven months of his incarceration under the first sentence. In our view, that consideration alone necessitated a material reduction in the non‑parole period below what would otherwise have been appropriate had the applicant been held in more conventional prison conditions.
That consideration is all the more powerful now. The conditions in which the applicant has now been held for five years — and seems likely to remain — are extremely onerous. The decision to keep the applicant in a management unit was expressly made for his protection. But the very great deprivations associated with being so held inevitably make the experience of imprisonment substantially more burdensome than it would otherwise be. That is a matter which must necessarily affect the sentencing decision.
The additional matter affecting this Court’s resentencing decision, of course, is the reduction of two years in the non-parole period under the first sentence, following the applicant’s success in the sentence appeal.[22] We must proceed on the basis that, as at the date of Judge Pilgrim’s sentencing (19 January 2010), the applicant was serving a minimum term of four years and six months fixed under the first sentence.
[22]See [3] above.
Fixing a new single non-parole period
In our view, the appropriate minimum term to be served by the applicant, taking all of these matters into account, is eight years. That is, he should be eligible for consideration for release on parole on the expiry of the period of eight years from the date of his first incarceration under the first sentence.
That is, in our view, the question of substance posed by s 14(1): having regard to the aggregate criminality constituted by the two sets of offences, what is the appropriate minimum term to be served? This is a question of totality, and it must necessarily take into account time already served under the first sentence. As s 14(2) makes clear, the ‘new single non-parole period’ supersedes — that is, stands in place of — any previous non-parole period fixed. The new non-parole period is fixed ‘in respect of all the sentences the offender is to serve or complete’.[23]
[23]R v Bortoli [2006] VSCA 62 [49] (‘Bortoli’).
How then, as a matter of form, should our conclusion be expressed? As we have said, the form of the order — and the declaration of pre-sentence detention under s 18(1) — must have the result that the applicant’s service of the eight year minimum is calculated as having commenced on the date of his first incarceration on the charges for which the first sentence was imposed.
We note that Judge Sexton declared, at the time of her sentence on 5 March 2009, that the applicant had already served 628 days under the sentence. For his part, Judge Pilgrim in sentencing on 19 January 2010 declared only two days of pre-sentence detention. His Honour was precluded by s 18(2)(d) of the Sentencing Act 1991 (Vic) from declaring again the period of 628 days already declared by Judge Sexton. As to the period of 320 days which had elapsed since Judge Sexton’s sentencing, the applicant was not then in custody in relation to the offences for which Judge Pilgrim was imposing sentence, but was serving the sentence imposed by Judge Sexton. Accordingly, Judge Pilgrim could not have declared that period as a period of PSD under the sentence he was imposing. The period had, nevertheless, to be taken into account.
In R v Stares,[24] where similar questions arose, there was a period of approximately two months between the first sentencing by judge A and the second sentencing (on different charges) by judge B, who fixed a new single non-parole period in purported compliance with s 14(1). This Court held that:
[24](2002) 4 VR 314.
(a) as stated in R v Rich (No 2),[25] judge B should have specified when the new single non-parole period was to commence;
[25](2002) 4 VR 155 (‘Rich (No 2)’).
(b) in accordance with s 18(2)(d), the period of PSD declared by judge A could not be declared again by judge B, but that previous declaration ‘remains effective’, both as to the head sentence and the non-parole period;[26]
[26]Stares (2002) 4 VR 314, 322 [24].
(c) (semble) judge B could not make a declaration of PSD in respect of the period of two months which had been served since judge A imposed the first sentence; and
(d) accordingly, if judge B intended that the new single non-parole period commence on the date of his sentence, then he needed to ‘[take] into account in sentencing that a further period of nearly two months had already been served, by an appropriate reduction in the [period]’.[27]
[27]Ibid 325 [33].
A sentence of imprisonment commences on the day on which it is imposed.[28] So too – in the case of an offender sentenced on a single occasion – does the non-parole period. That must be so, since it is that part of the term of imprisonment ‘during which the offender is not eligible to be released on parole’.[29]
[28]Sentencing Act 1991 (Vic) s 17(1).
[29]Ibid s 11(1).
The purpose of s 18(1), accordingly, is to ensure that time spent in custody before the commencement date of the sentence is deemed to be — ‘reckoned as’ — a period of imprisonment already served under the sentence. As a result of this legislative fiction, the true commencement date of a sentence is the date on which the offender was first held in pre-sentence detention on the relevant charges. Put another way, the formal commencement date fixed by s 17(1) is relevant only as the end of the period of pre-sentence detention.
As at the date of Judge Pilgrim’s sentence, the applicant already had the benefit of the PSD declaration of 628 days made on the previous occasion by Judge Sexton. Circumstances have changed since then, however, on account of the successful appeal against the sentence imposed by Judge Sexton. On that occasion, this Court when resentencing the applicant made a fresh PSD declaration, in lieu of the declaration made by her Honour.[30] The Court declared a period of 1404 days, which comprised the 628 days declared by her Honour as at 5 March 2009 and the 776 days between 6 March 2009 and 20 April 2011, being the date of the resentencing. Consistently with s 18(2)(d), the period of 1404 days cannot be declared again. The applicant continues to have the benefit of that declaration — but only in relation to the first sentence.
[30]In accordance with R v Jennings [1999] 1 VR 352, 369 [67] (‘Jennings’).
That being so, the intention of this Court that the applicant serve an overall minimum term of eight years could be effected in one of two ways, as follows:
(a) follow the course taken by Judge Pilgrim and state that the non-parole period commences on the date of his Honour’s sentence[31] but, in accordance with Stares, reduce the non-parole period to take account of the fact that none of the pre-sentence detention served up to that date can count as time served under the new non-parole period; or
(b) state that the non-parole period commences on the date of Judge Sexton’s sentence, in which case the full pre-sentence detention period of 1404 days will count towards service of the new single non-parole period (which is fixed in respect of both sentences). An appropriate declaration under s 18(1) would need to be made in respect of the period between 20 April 2011 and the date of this Court’s order, as it is a period of custody ‘pending the determination of an appeal.’[32]
(The decision in Rich(No 2) makes clear that the sentencing court can specify either commencement date. This was described in Stares[33] as a matter of form, not substance.)
[31]Jennings [1999] 1 VR 352.
[32]Ibid 369 [67].
[33](2002) 4 VR 314, 320 [19].
The second of these alternatives avoids any artificial adjustment of the non-parole period. Given the complexity of this case, and for the avoidance of doubt, we think it preferable to adopt that course.
Accordingly, the order of the Court will state that the new single non-parole period of eight years is to be taken as having commenced on 5 March 2009, the date of Judge Sexton’s sentence. The head sentence commences on the date of Judge Pilgrim’s sentence.
As to PSD, we have already pointed out that the period of 1404 days up to 20 April 2011 cannot be declared again. The applicant continues to have the benefit of that declaration nevertheless. We will declare as PSD the period of 606 days, comprising the 604 days since the date of this Court’s previous declaration, and the two days previously declared by Judge Pilgrim.
We conclude by acknowledging the considerable assistance provided to us by senior counsel for the Director, Mr Holdenson QC, in dealing with the complexities of the sentencing machinery.
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