Tripp (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0047

BRAYDEN TRIPP (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 178
JUDGMENT APPEALED FROM:	DPP v [Brayden Tripp (a pseudonym)], Judge Trapnell, 16 February 2024

---

CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated burglary – Combination gaol/community correction order (‘CCO’) imposed – Rape – Imprisonment imposed – Rape breaches CCO – Resentence to imprisonment on aggravated burglary – Whether judge presumed cumulation on resentence – Whether resentence on aggravated burglary manifestly excessive – Whether imprisonment on aggravated burglary and rape manifestly excessive and/or in breach of totality principle – Reasonably arguable that totality principle breached – Leave to appeal granted.

Sentencing Act 1991 ss 6E, 16(1), 83A(d)(1) & s 83AS(1)(c); Criminal Procedure Act 2009 s 280(1)(b).

---

Counsel
Applicant:		Mr M D Stanton
Respondent:		Mr J O’Connor
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Office of Public Prosecutions

BOYCE JA:

Background

On 2 November 2018, the applicant was sentenced by Judge Trapnell in respect of offences of damaging property[1] (charge 1), aggravated burglary[2] (charge 2) and four related summary offences. The related summary offences were three charges of unlawful assault[3] (charges 4, 5 and 9) and one charge of failing to answer bail[4] (charge 11). This offending occurred in 2017 and — hereafter — will be referred to as ‘the 2017 offending’. On all offences, apart from the offence of aggravated burglary, the applicant was sentenced to relatively brief individual terms of imprisonment which amounted, in total, to 32 days’ imprisonment. On the aggravated burglary offence the applicant was sentenced to 12 months’ imprisonment combined with a three–year Community Correction Order (‘CCO’). The applicant was ordered to perform 600 hours of community work in respect of the CCO. The total effective sentence imposed for the 2017 offending amounted, thus, to one year and 32 days’ imprisonment combined with a three–year CCO with 600 hours of community work to be performed.
[1]Contrary to s 197(1) of the Crimes Act 1958.
[2]Contrary to s 77 of the Crimes Act 1958.
[3]Contrary to s 23 of the Summary Offences Act 1996.
[4]Contrary to s 30(1) of the Bail Act 1977.
The applicant was released on 31 December 2019 after having served the custodial part of that sentence. He had also served a sentence of eight months’ imprisonment, subsequently imposed in the County Court on 2 April 2019 (on appeal from the Magistrates’ Court), two months of which was ordered to be served cumulatively upon the sentence imposed by Judge Trapnell on 2 November 2018. The CCO ordered by Judge Trapnell commenced on 31 December 2019.
On 26 October 2020, the applicant was sentenced in the Magistrates’ Court to a fine for the offence of possessing a drug of dependence.[5] The applicant had been charged with this offence in January of 2020.
[5]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
In early March 2020, the applicant’s performance on the CCO declined. This was at the time of the COVID–19 pandemic.
On 18 December 2023, the applicant was sentenced by Judge Carmody in the County Court in respect of one charge of rape,[6] one charge of making a threat to inflict serious injury[7] and one charge of intentionally causing injury.[8] Those offences had been committed on 2 and 3 December 2021. This offending will be referred to as ‘the December 2021 offending’. It is sufficient to record that Judge Carmody imposed a total effective sentence of 11 years and six months’ imprisonment, with a non-parole period of eight years and three months for this offending.
[6]Contrary to s 38 of the Crimes Act 1958.
[7]Contrary to s 21 of the Crimes Act 1958.
[8]Contrary to s 18 of the Crimes Act 1958.
The December 2021 offending breached the three–year CCO that had been imposed by Judge Trapnell in November 2018. Moreover, the applicant had also contravened that CCO by: (a) failing to perform unpaid community work as required on four occasions; (b) failing to undergo treatment and rehabilitation as required on four occasions; and (c) failing to be supervised, monitored and managed as directed on 13 occasions.
On 29 January 2024, the applicant pleaded guilty before Judge Trapnell to the offence of having contravened this CCO. In accordance with s 83AS(1)(c) of the Sentencing Act 1991,[9] Judge Trapnell resentenced the applicant in respect of the 2017 offending. On 16 February 2024, Judge Trapnell imposed a term of imprisonment of three years for the original offence of aggravated burglary. His Honour confirmed all other sentences that had been previously imposed by him back in November 2018.
[9](‘Sentencing Act’).
This resulted in the imposition upon the applicant of a total effective sentence of three years and 32 days’ imprisonment for the 2017 offending. Judge Trapnell ordered that two years and six months of this sentence be served cumulatively upon the sentence that had been imposed by Judge Carmody in December 2023. This resulted in a ‘global’ total effective sentence of 14 years’ imprisonment. Pursuant to s 14 of the Sentencing Act, a new non–parole period of 10 years was fixed.
The applicant seeks leave to appeal against his sentence on two proposed grounds:
Ground 1: The sentencing judge erred when applying the principle of totality.
Ground 2: The sentence on charge 2 and the order for cumulation on the sentence imposed on 18 December 2023 are each manifestly excessive.
For the reasons that follow, I consider that the application for leave to appeal should be refused on ground 1, but granted in respect of ground 2.

Summary of key facts

This application essentially centres upon the manner in which the sentences for two separate incidents have been combined together: the December 2021 offending dealt with by Judge Carmody, on the one hand, and the 2017 offending dealt with by Judge Trapnell in 2024, on the other. The essential question is whether it is reasonably arguable that Judge Trapnell erred in the manner pleaded when his Honour imposed sentence in 2024.
In order to determine this issue, it is necessary to have some basic understanding of the two categories of offending committed by the applicant.
In broad summary, the 2017 offending consisted in the applicant, in company with one other person, entering his former female partner’s home by forcing the front door open soon after midnight. The applicant’s former partner was present inside the dwelling with another person. Once inside, the applicant punched his former partner’s companion some six or seven times. The applicant then jumped on top of his former partner, pinned her to the bed, and commenced yelling at her.
The December 2021 offending comprised various offences of violence committed by the applicant upon a female complainant — the applicant’s former wife. The most serious offence was the applicant’s rape of the complainant. There were also rolled–up charges of threat to inflict serious injury and intentionally cause injury. The applicant had separated from the complainant in 2013. The applicant drove the complainant to his home but then refused to return to the complainant her car keys. The applicant grabbed the complainant, ripped her underpants from her and kept grabbing and fighting with her. The complainant protested that she did not want to have sex. Whilst holding her down, the applicant forced his penis into the complainant’s vagina. The applicant then committed various acts of violence upon the complainant causing her injury. He also, on numerous occasions, threatened the complainant with serious injury.

Judge Trapnell’s 2024 reasons for sentence

The judge noted the original sentence that he had imposed on the applicant for the 2017 offending. His Honour observed that of the 600 hours of community work ordered, a significant amount was still outstanding.[10] The judge found the contravention charge proved.[11]
[10]DPP v [Brayden Tipp (a pseudonym)] 16 February 2024, 1 (‘Judge Trapnell’s Reasons’).
[11]Sentencing Act, s 83A(d)(1).
Having resolved to re-sentence the applicant, the judge considered that the only available sentencing disposition for the aggravated burglary offence was to impose a further term of imprisonment. The judge had regard to the effect upon the victim of the commission of this particular offending, and noted the maximum penalty of 25 years’ imprisonment. The judge considered that this was a serious example of aggravated burglary given that the conduct was ‘premeditated, committed at night’ and was committed ‘in the context of a relationship breakdown’. The judge considered that this offending on the applicant’s part could be placed into ‘the category of domestic violence’.[12]
[12]Judge Trapnell’s Reasons, 3.
The judge considered the applicant’s moral culpability to be ‘very high’. The judge had regard to the applicant’s ‘personal circumstances’ as they had been described in the original reasons for sentence, as well as currently. The judge took into account the applicant’s criminal history. He noted the offending committed by the applicant post the commission of the aggravated burglary but prior to the December 2021 offending. The judge took into account various other relevant documentary materials including a report by psychologist Gina Cidoni dated 13 December 2023.[13]
[13]Judge Trapnell’s Reasons, 3–4.
The judge considered that in light of the offending committed by the applicant after sentence had been imposed for the 2017 offending, the applicant’s prospects of rehabilitation were ‘quite bad’. The judge observed:
Moreover, greater weight now needs to be given to specific deterrence and protection of the community in sentencing you for the present offence. Importantly, the factors which motivated me on the previous occasion to impose a merciful sentence on you for this offence no longer apply.[14]
[14]Judge Trapnell’s Reasons, 5.
The judge considered that the applicant fell to be resentenced ‘today in the currently existing circumstances’. The ‘most significant’ of such circumstances was that in December 2023 Judge Carmody had sentenced the applicant for the offence of rape. Judge Trapnell noted that Judge Carmody had regarded the commission of the rape as a ‘very serious example of this offending’.[15] Judge Trapnell said that he agreed with Judge Carmody on this score. Judge Trapnell observed:
In particular, it is extremely concerning that your further offending was against a former, albeit different domestic partner from the victim of the present charge. The victim of the offending before His Honour Judge Carmody is the mother of your three children. As I stated in my reasons for sentence in 2018, domestic violence, perpetrated mostly by males against their current or former female domestic partners is an appalling blight on our society … your conduct in the present case must be denounced in the highest possible terms.[16]
[15]Judge Trapnell’s Reasons, 5.
[16]Judge Trapnell’s Reasons, 5–6.
The judge took into account various mitigating circumstances that were referred to when the applicant was originally sentenced. Yet, as the judge noted:
However, my opinion regarding elements of these mitigating circumstances must be modified in light of more recent circumstances.[17]
[17]Judge Trapnell’s Reasons, 6.
Judge Trapnell compared his current view of the applicant’s prospects of rehabilitation with what he had originally thought. The judge said:
On the earlier occasion the prosecutor and your counsel submitted you had displayed a significant degree of insight and that your prospects of rehabilitation can be described as good or favourable. In November 2018 I was prepared to assess your prospects as good depending on your willingness and efforts to reintegrate into the community as a law-abiding citizen.
At that time I was also of the view that your risk of re-offending was relatively low considering you had participated in a range of programs which treated your drug addiction, inappropriate behaviour and your grief. For those reasons as I said earlier, I imposed a merciful sentence in your case.
However because of your failure to comply with all of the conditions of the CCO and your very serious offending that led to the breach I no longer make that assessment. Your prospects of rehabilitation can only be regarded as poor.[18]
[18]Judge Trapnell’s Reasons, 6–7.
The judge said that he would re-apply relevant sentencing principles with any ‘necessary modifications’. The judge took into account the extent that the applicant had complied with the original CCO.[19]
[19]Judge Trapnell’s Reasons, 7.
When it came to the important question of totality, the judge expressed himself in the following terms:
The totality principle is highly relevant to my current sentencing exercise particularly in light of the length of the sentence you are presently undergoing. In applying the totality principle I have had regard to the principles adumbrated via the Victorian Court of Appeal in Queen v Mangelen and other cases. I have moderated what would have been a longer sentence in light of the fact you are serving His Honour Judge Carmody’s sentence.
Moreover, the totality principle has further application in your case because when I first remanded you in custody for the present offending on 29 January 2024, you were undergoing His Honour Judge Carmody’s sentence. Accordingly, the time you have spent in custody since then is time doubly warranted for which I cannot declare PSD because you were undergoing another sentence. Accordingly, I moderated the sentence I would otherwise have imposed on you to reflect this.[20]
[20]Judge Trapnell’s Reasons, 7–8.
The judge noted that it would be necessary for him to set a new single non-parole period.
The judge then imposed the sentence of three years’ imprisonment (referred to above) for the offence of aggravated burglary and seven days’ imprisonment on the offence of contravention of the CCO. The judge ordered that this seven days run concurrently with the three years. Having confirmed the sentences on the other offences, and the orders of cumulation previously ordered (32 days), the total effective sentence imposed was three years and 32 days.
The judge ordered that two years and six months of this sentence be cumulated on the 11 years and six months that had been imposed by Judge Carmody. This created the new total effective sentence of 14 years’ imprisonment. Judge Trapnell fixed a new global non-parole period of 10 years which was to start at ‘the commencement date of his Honour Judge Carmody’s non-parole period’.[21]
[21]Judge Trapnell’s Reasons, 9.
The judge gave clear expression to his intentions. His Honour said:
It is my intention by my orders to add 30 months to your current head sentence and 21 months to your existing non-parole period. If my orders do not have that effect I reserve liberty to apply to the parties to re-list the matter to apply for these orders to be amended.
I declare pre-sentence detention to be 397 days calculated as follows, 32 days PSD declared by me on 2 November 2018 which I have set aside so I can re-declare that, and the 12 months you served in prison in relation to the sentence I imposed on 2 November 2018.
I note I cannot declare as PSD the PSD previously declared by His Honour Judge Carmody on 18 December 2023 of 472 days. However that will also be deducted from the new single non-parole period I have just fixed in accordance with the decision of the Victorian Court of Appeal in the Queen v Stares.
Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty I would have sentenced you on the charges before me to a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and six months.
Now as I understand it the effect of my order is by adding 21 months to the non-parole period and declaring the 12 months, 32 days which is effectively 13 months PSD, I have added eight months to his earliest release date. That is my understanding, all right? So as I say if, and I have added 30 months to his end date. So if that is not how it is reflected by the Corrections people then you both have liberty to apply to come back and we will, I have got plenty of power obviously to make amending orders.[22]
[22]Judge Trapnell’s Reasons, 9–10.

Applicant’s submissions

In support of ground 1, the applicant focussed upon various observations made by Judge Trapnell during the plea. These observations were to the effect that but for totality there would be no argument or basis for concurrency. The particular alleged error under this ground — as recorded in the written submissions — was that when these observations were examined against a context that resulted in two years and six months of the total effective sentence for the 2017 offending being cumulated upon the Judge Carmody sentence, it became apparent that Judge Trapnell must have operated — erroneously — by reference to a presumption of cumulation rather than concurrency. So much was, as it was argued, in breach of s 16(1) of the Sentencing Act which mandates a presumption of concurrency in the circumstances.
Under ground 2, it was submitted that, in all the circumstances, it was reasonably arguable that the individual sentence imposed for the aggravated burglary was manifestly excessive. It was submitted, also, that it was reasonably arguable that the level of cumulation ordered by Judge Trapnell upon the Judge Carmody sentence (two years and six months) was manifestly excessive and breached the totality principle.

Respondent’s submissions

In response, in respect of ground 1, the respondent submitted that there was no basis to infer that Judge Trapnell had operated from a presumption of cumulation. As to ground 2, the respondent submitted that in view of the fact that both sets of offending satisfied the definition of ‘domestic violence’ and that the applicant’s prospects for rehabilitation were so much reduced when he came to be re-sentenced for the 2017 offending it could not be successfully contended that it was reasonably arguable that the individual sentence on the aggravated burglary charge was manifestly excessive; nor could it be said that it was reasonably arguable that totality had been infringed in virtue of the level of cumulation that had been imposed in respect of the sentences for the 2017 offending.

Consideration

I would refuse leave on ground 1. I do not consider it reasonably arguable that the sentencing judge sentenced for the 2017 offending on the basis of presumed cumulation when it came to the interrelationship between the sentence to be imposed for this offending and the sentences that were imposed by Judge Carmody. The sentencing judge’s observations on the plea that ‘there would be no argument for concurrency but for totality’ or that ‘there’s not much argument for concurrency other than totality’ do not signify — to me at least — that his Honour was approaching the sentencing task as if, for instance, the applicant was a ‘serious offender’ for the purposes of Part 2A of the Sentencing Act.[23] The better interpretation of what his Honour said is simply that his Honour was minded to draw attention to the fact that each category of offending was quite distinct, or separate, in terms of its commission and that — therefore — some cumulation would be expected.
[23]In respect of which cumulation is presumed by operation of section 6E.

Nor do I think that that the final result arrived at is indicative of his Honour having approached the matter of totality by utilisation of some principle of presumed cumulation. In the absence of something like, say, Part 2A of the Sentencing Act it would have been a radical step for his Honour to have departed from the presumption of concurrency as mandated by section 16(1) of that Act. Whilst arguments might be made (and, indeed, are made[24]) about the extent of the cumulation ordered, I find it unconvincing to suggest that those same arguments reveal that the judge did in fact take such a radical step.
[24]See proposed ground 2.
As to proposed ground 2, the issues are whether it is reasonably arguable (a) that the sentence imposed on the aggravated burglary offence (which formed part of the 2017 offending) was manifestly excessive, and (b) that the level of cumulation ordered by Judge Trapnell in respect of the 2017 offending was manifestly excessive on account of a breach of the totality principle. In one sense, it is only the latter of these issues that is of importance assuming that leave may be refused if there was ‘no reasonable prospect that the Court of Appeal would reduce the total effective sentence’ despite the existence of error in the form of manifest excess related to the sentence on the aggravated burglary charge.[25]
[25]Criminal Procedure Act 2009, s 280(1)(b).
As related in the judge’s reasons, it was his Honour’s intention to extend the operation of Judge Carmody’s sentence by 30 months and to extend the applicant’s then non-parole period by 21 months. It is apparent that, unlike when the judge first imposed sentence for the 2017 offending, his Honour was no longer impressed with the applicant’s prospects of rehabilitation; nor was he prepared to exercise mercy.
The 2017 offending — obviously enough — pre-dated the December 2021 offending. The 2017 offending was, at least initially, thought apt to attract a combination gaol/CCO disposition. By the time of Judge Trapnell’s 2024 reasons for sentence, the sentence for the 2017 offending had to be combined with the lengthy term of imprisonment that had already been imposed by Judge Carmody for the December 2021 offending. In these circumstances it seems to me — with great respect to Judge Trapnell — that the decision to cumulate two years and six months of the three years and 32 days imposed for the 2017 offending on top of the 11 years and six months imposed by Judge Carmody at least invites scrutiny when it comes to totality.
It seems to me that — objectively speaking — there exists somewhat of a tension between an albeit quite punitive combination gaol/CCO disposition, on the one hand, and a term of imprisonment of some length (the vast bulk of which is ordered to be cumulative), on the other; and that such tension may not be readily explicable simply on account of a change in the applicant’s prospects of rehabilitation and the withdrawal of mercy. Then again, with the benefit of full argument it may turn out that the decision to cumulate, as described, is perfectly explicable.
Nevertheless, at this stage I am persuaded that it is at least reasonably arguable that totality has been infringed by the decision to cumulate two years and six months of the ultimate sentence imposed for the 2017 offending upon the Judge Carmody sentence.
As the Court of Appeal observed in DPP v Bowen:[26]
The principle of totality is, essentially, a principle of proportionality. Put another way, totality is a particular expression of the foundational sentencing principle that a sentence should be proportionate to the criminal conduct for which it is imposed. In the ordinary case where sentence is to be imposed for multiple offences, the principle of totality requires the court to ask itself whether the proposed total effective sentence is proportionate to the aggregate criminality involved in all of the offending.[27]
[26](2021) 65 VR 385; [2021] VSCA 355.
[27]Ibid, 387 [7] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA) (citations omitted).
On this basis I would be prepared to grant leave in respect of ground 2.

Conclusion

Leave to appeal is refused on ground 1. Leave to appeal is granted on ground 2.
---

[2024] VSCA 178

12 August 2024