Tori v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0187

ELI TORI	Appellant
v
THE KING	Respondent

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JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2024
DATE OF JUDGMENT:	16 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 162
JUDGMENT APPEALED FROM:	DPP v Tori [2023] VCC 1696 (Judge Harper)

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CRIMINAL LAW – Appeal – Sentence – Sexual assault of a child under the age of 16 – Appellant sexually assaulted a five-year-old child left in his care by her parents – Sentence of 4 years and 2 months’ imprisonment, upon which the judge fixed a non-parole period of 2 years and 6 months – Appellant aged 18 years at time of offending – Delay of more than three years between offending and sentence – Early guilty plea – Whether sentence manifestly excessive in light of youth, delay and other factors – Appeal allowed – Resentenced to 2 years and 6 months’ imprisonment with 18 months non-parole.

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Counsel
Appellant:		Mr J Barreiro
Respondent:		Mr B Kissane KC
Solicitors
Appellant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

On 9 April 2019, the appellant, then aged 18 years,[1] sexually assaulted a five year old girl.
[1]His date of birth is 28 May 2000.
More than three years later, on 30 August 2023, the appellant pleaded guilty before a judge of the County Court to two charges of sexual assault of a child under 16[2] (charges 1 and 2).
[2]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49D(1). The maximum sentence is 10 years’ imprisonment, and the standard sentence is four years.
Following a plea in mitigation, on 18 September 2023 the judge sentenced the appellant to four years’ imprisonment on charge 2 (the base sentence), and to two years and six months’ imprisonment on charge 1. Two months of the sentence on charge 1 was ordered to be served cumulatively with the sentence on charge 2, leading to a total effective sentence of four years and two months’ imprisonment, upon which the judge fixed a non-parole period of two years and six months.[3]
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the appellant to five years and six months’ imprisonment, with a non-parole period of three years and five months. The appellant was also registered under s 34 of the Sex Offenders Registration Act 2004, with reporting for eight years.
The appellant now appeals against his sentence[4] on a ground that contends that individual sentences, total effective sentence and non-parole period are manifestly excessive having regard to the appellant’s youth, vulnerability in custody and prospects of rehabilitation; the delay between the offending and the appellant being charged; and the utilitarian value of the appellant’s plea of guilty.
[4]On 19 March 2024, a judge of this Court granted the appellant leave to appeal.
For the reasons that follow, we would allow the appeal and resentence the appellant in the manner set out below.[5]
[5]At [45].

The appellant’s offending

The appellant’s offending was undoubtedly serious. He had met the complainant’s parents through online gaming. Having finished school at the end of 2018, he moved from Queensland to Melbourne in March 2019 for a ‘fresh start’, and moved in with the complainant’s mother and stepfather, sleeping on a couch in their apartment.
At around 11 am on 9 April 2019, the five-year-old complainant’s mother and stepfather went shopping, leaving her in the appellant’s care. When they returned at around 1.30 pm, the child disclosed to them that the appellant had touched her private parts. The child’s mother and stepfather then took her to a general practitioner, who referred them to the Royal Children’s Hospital.
Later that evening, police conducted a VARE[6] interview with the child, in the course of which she described the appellant’s offending. Charge 1 on the indictment related to the appellant’s conduct in putting his hands inside the child’s underpants and ‘tickling’ her genitals externally; and charge 2 related to the appellant licking her vagina. Although not the subject of a charge, the appellant also exposed his penis to her.
[6]Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, ss 366 and 367.
The appellant was interviewed by police the next day and denied the allegations. He then returned to Queensland and heard nothing connected to the allegations for in excess of three years and eight months. Police arrested the appellant on 15 December 2022, and he was extradited to Victoria. It was his first time in custody. He did not apply for bail, and has been in custody since his arrest.
On 28 June 2023, two days before cross-examination of the mother, stepfather and a DNA scientist under s 198A of the Criminal Procedure Act 2009 was to take place in the County Court, the matter resolved, and resulted in the appellant’s subsequent pleas of guilty to the two charges of sexual assault of a child under 16.

The plea hearing

Counsel for the appellant submitted on the plea that the judge should impose a ‘combination sentence’, involving a period of imprisonment coupled with a community correction order (‘CCO’).
To a large extent, the appellant’s counsel relied on delay, in circumstances where the appellant was first interviewed in April 2019, but was not charged until late 2022. Counsel relied on the delay in three ways: first, had the matter been dealt with in 2019, the appellant may have been eligible for confinement in a Youth Justice Centre rather than an adult prison; secondly, the appellant had endured the stress of having the matter hanging over his head for a long period; and, thirdly, the appellant did not commit another sexual offence during the period of delay. Counsel for the appellant submitted that the uncertainty associated with the delay had adversely affected his family relationships and had been a mental barrier to seeking employment.
As to remorse, counsel for the appellant submitted that, notwithstanding his initial denials, the appellant had gradually developed insight. The appellant ultimately took full responsibility for his offending and demonstrated preparedness to engage in ongoing treatment. He had also entered an ‘early plea’ of guilty, which occurred at the first opportunity that the appellant had to resolve the matter ‘on the current basis’. The appellant had made an offer to plead guilty after the first directions hearing in the County Court, and prior to the scheduled s 198A examinations.
Counsel for the appellant also relied on a report by a forensic psychologist, Marlese Bovenkerk, dated 22 August 2023. Having conducted relevant psychological testing, Ms Bovenkerk expressed the following opinion (amongst others):
[129]On balance, Mr Tori is considered to pose a moderate risk of sexual recidivism, based on the available information. In other words, Mr Tori is in a category that poses a risk that is comparable to that of the average sexual offender. Consequently, Mr Tori will require a moderate level of supervision and resources to address his risk of sexual violence.
[130]Encouragingly, the manageability domains suggest that Mr Tori has positive prospects for rehabilitation and that he would be able to derive benefit from offence-specific treatment.
The prosecutor submitted on the plea that, given the appellant’s age at the time of offending, either a term of imprisonment with a non-parole period, or a term of imprisonment combined with a CCO to promote rehabilitation, would satisfy the relevant sentencing considerations (which the prosecutor identified as general deterrence, specific deterrence and denunciation, good character and prospects for rehabilitation generally being given less weight in such cases). There should be substantial concurrency between the sentences imposed on the two charges ‘as they both arose out of the same incident’.
Prosecuting counsel submitted that the offending objectively was grave, since the complainant was very young; there was a significant disparity in age between the appellant and the complainant; the offending occurred in the complainant’s home, where she was entitled to feel safe; and the offending involved a breach of trust. A victim impact statement provided by the complainant’s mother indicated that, since the offending, the complainant has become anxious around other adults, lashing out in anger, and she has started bed-wetting.
Very fairly, the prosecution accepted that, given the appellant’s own young age, ‘promoting the offender’s rehabilitation has greater weight than it otherwise would in the sentencing exercise’. Counsel for the prosecution acknowledged that the appellant had no prior criminal history and was 18 years old at the time of offending. As such he was a ‘young offender’. He is currently 23 years of age, ‘so still youthful’. Further, the prosecutor noted that, when assessed by the psychologist Ms Bovenkerk, the appellant did not seek to deny or minimise the offending, instead expressing remorse and shame (and indicating that he was motivated to engage in programs to ensure the conduct is not repeated).
Finally, the prosecutor submitted that there had been a delay in finalising the prosecution. The appellant was first interviewed by police in April 2019, and has had the matter ‘hanging over his head’ for some four years. In that period there has been no further criminal offending, so the appellant ‘can call on the delay as demonstrating positive steps towards his rehabilitation’.

The reasons for sentence

In her reasons for sentence, the judge agreed with a submission by the appellant’s counsel that the offending ‘falls in the mid-range’. She remarked that ‘there was no physical coercion, the offences occurred as part of a single incident, and while there was a breach of trust [the appellant was] a babysitter and not a family member’. Nevertheless, the complainant was in the appellant’s care and he ‘gravely breached that position of responsibility’. The offending was ‘inexplicable’, and the appellant’s moral culpability was ‘high’.
The judge noted that both parties submitted the appellant’s ‘was a relatively early plea and has significant utilitarian benefit in the circumstances’. The community was saved the time and expense of a trial and had spared the complainant and her parents the ordeal of giving evidence. As such, the appellant had facilitated the administration of justice and was entitled to a benefit for that. Further, the utilitarian benefit of the plea was enhanced by Worboyes[7] considerations, so that the plea had a more pronounced amelioration of sentence than at other times. The judge accepted that there was ‘some degree of genuine remorse’ in the appellant’s plea and in his discussions with Ms Bovenkerk, so that she would ‘moderate the sentence accordingly’.
[7]Worboyes v The Queen (2021) 96 MVR 344.
Having discussed the appellant’s personal circumstances, the judge turned to the factors relevant to sentence. Referring to Azzopardi,[8] the judge said that, given that the appellant was aged 18 when he offended, ‘rehabilitation is to be given primacy in the sentencing exercise’. It was in the community’s interest that the appellant was ‘given the supports necessary to achieve this’.
[8]Azzopardi v The Queen (2011) 35 VR 43 (‘Azzorpardi’).
The judge had the appellant assessed for suitability for a CCO. She noted in her sentencing remarks that during the assessment the appellant expressed remorse for his offending, referring to his poor mental health and daily cannabis use at the time. The judge noted that the appellant had also been assessed by the Mental Health Advice and Response Service (‘MHARS’).[9] He ‘engaged well’ and was ‘found to have a mild mental health problem or difficulty’.
[9]MHARS is an initiative of Forensicare (Victorian Institute of Forensic Mental Health).
With respect to delay, the judge noted that the appellant ‘lost the opportunity to be sentenced to detention in a Youth Justice Centre’ and remains ‘somewhat vulnerable in adult custody’. The delay had also allowed the appellant to demonstrate that he ‘can go a sustained period without reoffending’. It had ‘thus been of some benefit’ to him and the judge took ‘this positive reflection of [his] conduct into account’.
The judge said that just punishment and denunciation were ‘relevant considerations’, as are general and specific deterrence, ‘although moderated’. Community protection had relevance, and, given the appellant’s risk assessment, ‘other children in the community must be protected from [the appellant] on [his] release’. Further, the judge took the standard sentence into account as one of the factors to consider in her ‘instinctive synthesis of all the relevant factors in [the appellant’s] case’.
Significantly, the judge said:
While both your counsel and the prosecutor submitted that a combination sentence would be within range, I do not agree. This is grave offending, perpetrated against a particularly young child, in circumstances where you were responsible for her care for a matter of only hours.
General deterrence is particularly relevant however, it gives way to rehabilitation. I consider that specific deterrence is also relevant given your risk assessment, although your four years without reoffending bodes well for you.
Community protection does loom large. You were looking after your victim for the first time, for a short period, when you took the opportunity to offend against her. Other children must be protected from you on your release.

Submissions in this Court

In this Court, counsel for the appellant submitted that the total effective sentence and non-parole period were unreasonable in light of the circumstances of the case. Counsel submitted that the appellant was aged 18 at the time of the offending, and, despite the delay, was still only 23 years old at the time of sentence. He had no prior convictions; had demonstrated remorse; had shown a capacity to rehabilitate; and was disadvantaged by the considerable delay. For someone so young, counsel submitted, four years and two months’ imprisonment ‘is an extraordinarily long period of time’. Although the judge had mentioned the appellant’s youth — so that rehabilitation was to be given primacy in the sentencing exercise — and his vulnerability in custody, the sentence that was imposed indicates that these matters could not have been given the primacy they deserved.
The appellant’s counsel submitted that there was a substantial delay in charging the appellant. During that time, the availability of a Youth Justice Centre order, a sentencing option that would have properly taken into account the appellant’s status as a young offender, had evaporated. As the prosecution acknowledged, the matter had also hung over the appellant’s head for some four years. Counsel acknowledged that just punishment, denunciation and deterrence had to be taken into account, but submitted that these factors must have overwhelmed the sentencing synthesis.
Counsel for the respondent submitted that the appellant committed grave offending against a vulnerable five-year-old girl shortly after she had been left in his care. His moral culpability was high. It was reasonably open to the sentencing judge to impose the sentence that she did, notwithstanding the mitigating factors that the appellant could rely upon. Counsel for the respondent submitted that the judge had properly taken into account mitigating features, including the appellant’s youth, prospects of rehabilitation, remorse and vulnerability in custody. The judge had also taken into account the delay and the relatively early plea of guilty. Even given the appellant’s youth and prospects of rehabilitation, counsel submitted, the sentencing judge was required to balance the important considerations of general deterrence, denunciation and just punishment. Importantly, the sentencing judge considered that community protection remained relevant, as did specific deterrence.

Discussion

The principles that guide the Court when considering a contention that a sentence is manifestly excessive were summarised in Leimonitis:[10]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[11] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[12] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[13] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[14]
[10]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weiberg JA agreeing) (footnotes as in original).
[11]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]–[52].
[12]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[13]Ibid.
[14]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
In our view, when proper regard is had to the appellant’s youth at the time of offending; the inordinate delay in charging him (and the charges being finalised); that he had not committed any further offences during that time; his vulnerability in custody; his previous good character; and his early plea of guilty; it is plain that the individual sentences imposed upon him, the total effective sentence and non-parole period are wholly outside the range of those open to the judge in the sound exercise of the sentencing discretion.
On the plea, both parties had submitted — and the judge appeared to accept — that the appellant’s was a relatively early plea of guilty. The plea had significant utilitarian benefit, and, as the judge accepted, was accompanied by ‘some degree of genuine remorse’. Indeed, when particular attention is given to the difficulties associated with the complainant’s narrative in the VARE — those difficulties having been acknowledged by the prosecution and the judge — the plea should, in our view, have been given significant weight.
Further, we consider that the delay in this case — which was marked — was highly relevant. As to that, this Court in Arthars[15] made clear that the justification for taking delay into account as a mitigating factor in sentencing involved
the twin considerations of rehabilitation and fairness. Chernov JA in R v Cockerell,[16] in a statement subsequently affirmed in R v Tiburcy,[17] expresses these principles thus:
First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent AJA has pointed out in Schwabegger, there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender.[18]
[15]Arthars v The Queen (2013) 39 VR 613, 620–1 [25] (citations in original).
[16](2001) 126 A Crim R 444.
[17](2006) 166 A Crim R 291.
[18](2001) 126 A Crim R 444, 447 [10].

On the plea, the prosecutor told the judge that the delay had arisen in the following way. After the initial interview with police, the appellant returned to Queensland on 10 April 2019. There was then a delay waiting for the results of DNA testing. On 20 September 2021 — almost two and a half years after the offending — charges were laid and a warrant was issued. Extensive delays in extraditing the appellant followed due to the COVID-19 pandemic preventing interstate travel. Then, upon the appellant’s return, further DNA testing was requested. Thereafter, the appellant indicated a plea of guilty to the charges on the indictment after the initial directions hearing in the County Court on 28 June 2023, and was arraigned and pleaded guilty on 30 June 2023.
Given the delay of almost 30 months between the interview and charges being laid, it could not be said that the progress of the prosecution against the appellant was other than ‘leisurely’. The appellant was therefore justified in feeling a sense of unfairness. Clearly, had charges been laid in a more timely manner, and the appellant brought before the court as a ‘young offender’,[19] he would have been a candidate for a sentence of detention in a youth justice centre, as opposed to a custodial sentence in an adult prison.[20] Undeniably, the opportunity of serving custody in an environment designed for young offenders was denied to him because of the pace at which the prosecution proceeded.
[19]A ‘young offender’ is defined in s 3(1) of the Sentencing Act 1991 as ‘an offender who at the time of being sentenced is under the age of 21 years’.
[20]See Sentencing Act 1991, s 32.
The delay also meant that the appellant had, over several years, endured the stress and anxiety associated with having a Damocletian sword hung over his head. Fairness dictated that this ‘powerful mitigating factor’ be given proper weight in the sentencing synthesis.[21] Further, in what we take to be a positive reflection on the appellant’s prospects of rehabilitation, the judge observed that the appellant had also demonstrated that he ‘can go a sustained period without reoffending’. That factor should also have been given significant weight.
[21]R v Liang and Li (1995) 124 FLR 350, 356; R v Schwabegger [1998] 4 VR 649, 659; R v Merrett (2007) 14 VR 392, 400 [35].
Another consequence of the delay was that, by the time he was sentenced, aged 23 years, the appellant was almost at a point where he could no longer be considered youthful. It might have been expected that, had the police been more expeditious in conducting their investigation charging the appellant, so that the appellant was still aged 18 or thereabouts when he came before the sentencing judge, the principles guiding the exercise of the sentencing discretion in the case of youthful offenders would have been in sharper focus.
Among other things, those guiding principles recognise that, as a result of immaturity, youthful offenders are generally more prone to ill-considered or rash decisions;[22] may lack the degree of insight, judgment and self-control that is possessed by an adult;[23] and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.[24] Furthermore, because youthful offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour, rehabilitation is generally considered to be a primary consideration in the imposition of sentence.[25] Allied to that consideration, it is generally recognised that consigning a youthful offender to an adult prison will more likely impair, rather than enhance, his or her prospects of rehabilitation.[26] Indeed, the likely detrimental effect of an adult prison on a youthful offender will have adverse ramifications for the safety of the community.[27] As Batt JA said in Mills:[28]
1. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)
[22]R v McGaffin (2010) 206 A Crim R 188, 210 [69] (‘McGaffin’); Azzopardi, 53 [34].
[23]Director of Public Prosecutions v TY (No 3) (2007) 18 VR 241, 242, [43]; Azzopardi, 53 [34].
[24]DPP v SJK and GAS [2002] VSCA 131, [61]; Azzopardi, 53–4 [34].
[25]McGaffin, 210 [69]; Azzopardi, 54 [35].
[26]McGaffin, 210 [69]; Azzopardi, 54 [36].
[27]R v Hatfield [2004] VSCA 195, [10]; Azzopardi, 54 [36].
[28]R v Mills [1998] 4 VR 235, 241.
In this case, having regard to the well-recognised adverse influence that an adult prison will likely have on a youthful offender, it is important to bear in mind that the judge accepted that the appellant remained ‘somewhat vulnerable in adult custody’. That consideration was yet another factor that required adequate recognition in the sentence imposed.
The judge also noted that the appellant ‘come[s] before the court of prior good character and [has] no previous convictions (albeit that in her reasons for sentence she did not distinctly articulate how that good character bore on the imposition of sentence). With respect to the relevance of good character to sentence, McHugh J observed in Ryan:[29]
In considering a prisoner’s good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances of the case.
[29]Ryan v The Queen (2001) 206 CLR 267, 279 [36].
And as this Court said in SD:[30]
As is made clear in Ryan, a sentencing judge is always bound to consider the ‘otherwise good character’ of the person to be sentenced. In so doing the judge does not take into account the offences for which he or she is being sentenced. If a person is of good character that fact must always be taken into account. However, the weight to be given to a person’s good character will vary according to the particular circumstances of the case. …
[30]SD v The Queen (2013) 39 VR 487, 494 [30].
Here, of course, the circumstances of the case included not only the very serious nature of the offending, but also the fact that the offending appeared to be isolated, committed by a youthful offender whose prospects of rehabilitation were positive. The appellant’s previous good character was a matter of not insignificant relevance.
As may be gleaned from the judge’s sentencing remarks, the judge appears to have considered that community protection was highly significant to the imposition of sentence. Thus, she observed that community protection ‘looms large’, so that other children had to be protected from the appellant upon his release.[31] If the judge is to be understood as saying that community protection of the community in the present case could only be promoted by a lengthy sentence of imprisonment, we cannot agree. It should not be thought that the protection of the community will in all cases only be advanced by a lengthy, punitive sentence of imprisonment. We would repeat what was said in Reynolds:[32]
On one level, the underlying purpose of all criminal law — and, as an aspect of it, sentencing — is the protection of the community.[33] As to that, one often sees it suggested (at least by implication) that community protection is promoted only by lengthy, punitive sentences of imprisonment. With respect, however, the views expressed by Starke J have much to commend them.^[[34]] Leniency extended to an individual in sentencing to promote his or her rehabilitation may often be of greater benefit to the community — and offer greater protection to the public at large — than a sentence that has a largely retributive component. Indeed, those experienced in the criminal law know that leniency extended at a particular stage of an offender’s life may pave the path to reform.[35]
[31]See [25] above.
[32]DPP v Reynolds (a pseudonym) [2022] VSCA 263, [4].
[33]Williscroft, 300 (Adam and Crockett JJ).
[34]See R v Williscroft [1975] VR 292, 303–4.
[35]See, eg, R v Osenkowski (1982) 30 SASR 212, 212–3 (King CJ) (‘Osenkowski’).
It cannot be denied that the appellant’s offending was very serious. All other things being equal, had it been committed by an adult, unaccompanied by the mitigating features that the appellant was able to call in aid, a sentence of the order of that imposed upon the appellant might well have been deemed appropriate.
When all of the relevant mitigating features in this case are properly weighed in the balance, however, we consider it to be plain that the sentence imposed at first instance is manifestly excessive. In our opinion, the submission advanced to — but rejected by — the sentencing judge, that a period of custody followed by a CCO was a suitable disposition, should have been adopted by the judge. Such a sentence would have contained an appropriate punitive element, expressed the court’s denunciation, and afforded a measure of both general and specific deterrence, whilst at the same time promoting community protection by fostering the appellant’s rehabilitation. Given the length of time that the appellant has now been in custody, however, an option of that kind is no longer realistic.
For these reasons, the appeal should be allowed. It is impossible to replicate the circumstances that were applicable when the appellant was first sentenced. Endeavouring, however, to take all presently relevant matters into account — including the maximum and standard sentences; the aggravating and mitigating features of the offending; and the factors discussed above going in mitigation of sentence — we would sentence the appellant to 15 months’ imprisonment on charge 1, and to two years and four months’ imprisonment on charge 2. We would order that two months of the sentence on charge 1 be served cumulatively upon the sentence on charge 2, leading to a total effective sentence of two years and six months’ imprisonment, and we would fix a non-parole period of 18 months.
Pursuant to s 6AAA of the Sentencing Act 1991, we would declare that, but for the plea of guilty, we would have sentenced the appellant to four years and two months’ imprisonment, with a non-parole period of two years and six months. We would confirm all other orders of the County Court, and make an appropriate declaration as to the period of imprisonment already served under the sentence.
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[2024] VSCA 162

16 July 2024