Dhal v The Queen [2020] VSCA 90

1 I have had the benefit of reading in draft form the judgment of Croucher AJA. I agree for the reasons that his Honour gives that the sentences imposed for the 'lesser offences' committed by the applicant (possession of methamphetamine, theft of a bicycle, handling stolen goods, possession of a knife and trespass) are manifestly excessive, as are the amounts of cumulation of the sentences for those offences.

2 I am satisfied that the sentencing discretion has been re-opened and I agree with the resentencing proposed by Croucher AJA.

3 Like many Sudanese refugees, Barnabas Dhal did not get much of a start in life. He was orphaned from an early age, losing his father in the tribal wars and his mother to suspected suicide. Still a child, he spent several years enduring the horrors of a refugee camp in Uganda, including the murder of an uncle in his presence. He came to this country at the age of 13, sponsored by an older brother, but found it hard to fit in. He struggled at school and left during Year 10. After serving time in youth detention for committing serious sexual offences as a teenager, he was employed at a factory upon release. Unfortunately, this work ceased after a while. Thereafter, illicit drug use and petty crime became features of what appears to have been a chaotic and hedonistic existence. He was also a very troubled soul, as he attempted suicide twice in his early 20s - once in 2016 (by a drug overdose), and again in 2017 (by hanging).

4 On 28 September and 24 October 2017, at the age of 22,[1] Mr Dhal appeared in the Magistrates' Court on charges of possessing drugs of dependence, handling stolen goods, possessing prohibited weapons, assaults, failing to answer bail and driving offences, including speeding and driving whilst disqualified. He was placed on two separate, but concurrent, community correction orders ('CCOs').

5 Despite the opportunity afforded to him, within only a month, Mr Dhal returned to drug use and criminal offending. He was still only aged 22 to 23 at that time. Most of the offences were of the same type that gave rise to the CCOs, but two of them - a robbery with another, and then an armed robbery with two other men - represented a significant escalation in the gravity of his offending. These offences were committed on three separate days over a seven-week period from 24 November 2017 to 9 January 2018. He was arrested on the latter date and has remained in custody ever since.

6 On 1 March 2019, following pleas of guilty to charges for those offences, Mr Dhal was sentenced by a judge of the County Court to a total effective sentence of five years and nine months' imprisonment with a non-parole period of three-and-a-half years.

7 Despite pleading guilty, Mr Dhal now applies for leave to appeal against his conviction on an offence of possessing a drug of dependence, namely 'Mirtazapan'. At the hearing, the Director conceded that that conviction, and the sentence imposed thereon, must be set aside and that an acquittal must be directed instead. This is because, as it turns out, Mirtazapan is not in fact a 'drug of dependence' but an anti-depressant.

8 Mr Dhal also applies for leave to appeal against the remaining sentences, on two grounds. First, he complains that the individual sentences, the orders for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive. Second, he complains that his sentence on the armed robbery is manifestly disparate when compared with the sentences imposed on his co-offenders for the same offence.

9 In addition, Mr Dhal submits, in circumstances where the 'Mirtazapan offence' attracted a three-month prison sentence, one month of which was directed to be served cumulatively, and because the total effective sentence and non-parole period also 'took into account the sentence' for the Mirtazapan offence, which is now to be set aside, then, pursuant to s 277(3) of the Criminal Procedure Act 2009 (Vic) ('the CPA'), this Court is at large to resentence on the remaining offences. Alternatively, he submits that, because, whatever else happens, the total effective sentence must be reduced by one month once the conviction and sentence on the Mirtazapan offence are set aside, at least the non-parole period must be reconsidered afresh.

10 The Director submits that neither ground of appeal against sentence is made good. While it is also submitted that the sentencing discretion is not reopened generally by the setting aside of the conviction and sentence on the Mirtazapan offence, it is conceded that the non-parole period must be reconsidered.

11 In my view, some of the individual sentences and directions for cumulation are manifestly excessive. I would not, however, uphold the complaint of manifest disparity. Nevertheless, partial success of the complaint of manifest excess (coupled with the setting aside of the sentence on the Mirtazapan offence) is of itself sufficient to cause the sentencing discretion to be reopened on all aspects of the sentence. It therefore becomes unnecessary to determine the nice question concerning the operation of s 277(3) of the CPA in this case.

12 In the result, I would grant the application for leave to appeal (out of time) against the conviction for the Mirtazapan offence; allow the appeal; set aside the conviction and sentence thereon; and direct a verdict of acquittal instead.

13 Further, I would grant the application for leave to appeal against sentence, allow the appeal, set aside the remaining sentences imposed below and resentence Mr Dhal in a way that results in a total effective sentence of four years and eight months' imprisonment with a non-parole period of two-and-a-half years.

14 My more detailed reasons for those conclusions and proposed orders follow.

15 I turn first to a summary of the offending. Of the offences charged, seven were laid across two indictments and the remaining five were related summary offences.[2]

Robbery[3] (Charge 1, second indictment)

16 In the evening of 23 November 2017, Mr Dhal befriended 'SP' while the two men were gambling together at the Courthouse Hotel in Footscray.

17 In the early hours of the next morning, SP cashed in his winnings and left the hotel. Mr Dahl called out to SP on the street and approached him. He then confronted SP, and threatened to hurt him if he did not give him his money. He also called out to another man, who approached and blocked SP from leaving. Mr Dahl reached into SP's pocket and took $400 in $50 notes.

18 Before running away, and after SP said he had no money to get home, Mr Dhal threw a $50 note to him.

Driving whilst disqualified[4] (Summary Charge 3)

19 On 2 December 2017, Mr Dhal drove a Subaru sedan on the Princes Freeway at Laverton North. He had been suspended from driving for three months from 24 October 2017, when the second CCO was imposed.

Careless driving[5] (Summary Charge 4)

20 During that trip, Mr Dhal lost control of the car, which caused it to spin out across three lanes of traffic, colliding with another vehicle.

Armed robbery[6] (Charge 1, first indictment)

21 In the early afternoon of the same day, Mr Dhal, Majur Magok and Gary Scown went into an IGA Supermarket in Sunshine West. Mr Dhal was wearing a ridiculous blue braided long-haired wig. Mr Magok had his face covered with cloth and his hoodie pulled down low over his brow. Mr Scown was sporting dark shorts, a swish Tommy Hilfiger jumper and something dark on his head.

22 Upon entry, Mr Dhal jumped over the counter. The attendant was about to begin serving a customer. The customer saw Mr Dhal remove (what turned out to be) an imitation gun from his clothing and point it at the attendant, asking him for money. Whilst holding the gun in one hand, he attempted to remove the cash register drawer from under the counter with the other. Mr Magok and Mr Scown each also jumped over the counter and opened the cigarette case, removing packets and putting them in Mr Magok's duffel bag. Using his teeth, Mr Dhal removed the cash register drawer and ran out of the store with it. As he ran, his wig fell off, which he managed skilfully to catch in his spare hand. The other two ran out as well, with Mr Magok carrying the duffel bag and Mr Scown taking the donation tin from the counter for good measure. This whole incident was captured on CCTV.

23 Two days later, in a car belonging to a friend of Mr Dhal, police found a blue braided wig and a Tommy Hilfiger jumper like those worn during the offence. The next day, police executed a search warrant at an address in Sunshine West. They found the cash register drawer, the donation tin and other clothing that resembled that worn by the three perpetrators of the armed robbery.

Handling stolen goods[7] (Charge 5, second indictment)

24 On 9 January 2019, Mr Dhal was observed by police at an address in Kings Park buying a second-hand car. (Police were involved in an unrelated investigation at that time.) In the course of that purchase, Mr Dhal produced a stolen driver's licence in the name of 'BT', whom he claimed (falsely) was his brother. Later, police discovered that the car was fitted with a registration plate that had been stolen recently from a car belonging to 'DK' while parked in Caroline Springs.

Driving whilst disqualified[8] (Summary Charge 7)

25 Mr Dhal then drove that car to a residence in Kingdom Avenue, Kings Park. He was still suspended from driving at that time.

Intentionally damaging property[9] (Charge 3, second indictment)

26 Police approached the address in an unmarked car. They parked out the front before entering the home. Upon seeing police, Mr Dhal ran to his car. While driving away, he collided with the unmarked police car, causing damage to it.

27 Later that day, police saw Mr Dhal riding a bicycle in Altona. They tried to speak to him, but he pedalled away. He ditched the bike and kept going on foot.

28 He ended up jumping a fence into the back yard of a private residence in Altona. The occupant 'PS' stood at the back door of her home, and told Mr Dhal to leave immediately. She led him through her home to the front door, as this was the only way out. Mr Dhal asked her to help him. She refused, after which he peeped through the blinds and left.

Theft[11] (Charge 4, second indictment)

29 Despite PS's protests, Mr Dhal took her black mountain bike from her front yard and rode away.

Possess controlled weapon[12] (Summary Charge 5)

30 Police caught and arrested Mr Dhal a short distance away. They found a flick-knife in his pocket.

Possess drug of dependence (methamphetamine)[13] (Charge 2, second indictment)

31 Inside a brown leather pouch tied to Mr Dhal's pants, police found a bag containing 22 grams of methamphetamine.

Possession of drug of dependence (Mirtazapan)[14] (Charge 6, second indictment)

32 Also inside the pouch, police found two tablets of Mirtazapan in a blister pack.

33 When interviewed by police, Mr Dhal admitted that he was present at the incident outside the Courthouse Hotel on 24 November 2017, but claimed that SP owed him money and had refused to pay.

34 He did not remember the careless driving incident on 2 December 2017. He said he was probably at home cooking, but denied driving. He also denied the armed robbery the same day, even after being shown still images from the CCTV footage depicting him at the IGA. He said he was at a friend's carwash at the time.

35 As for the offences committed on 9 January 2018, he said he ran from the premises because he believed police were chasing him and he was scared because he had been under the influence of drugs for a few weeks. He admitted to the possession of the weapon. He said he carried the knife for protection. He also admitted possessing the drugs. He said that he smoked the methamphetamine, and used the Mirtazapine tablets 'to come down'.

36 Mr Dhal was charged with various offences and remanded in custody, where he has remained ever since.

37 Mr Dhal accepted a committal to the County Court via a straight hand-up brief. He pleaded guilty first to the armed robbery charged on one indictment, and subsequently to the six offences charged on the second indictment and the five uplifted related summary charges.

38 A plea hearing was conducted in the County Court on 20 and 27 February 2019 and sentence was imposed on 1 March 2019. Mr Dhal was supported at the plea by members of his family and his girlfriend.

39 The judge began his reasons for sentence by identifying the offences to which Mr Dhal had pleaded guilty and then summarised the facts as alleged in the summary of prosecution opening.[15]

40 The judge turned to Mr Dhal's background, noting that he was born in Sudan on 1 January 1995. His childhood was particularly traumatic, in view of the tribal wars that were then occurring. After his father disappeared, Mr Dhal was taken by his mother to Uganda at the age of six, where he initially resided with five of his six siblings in a refugee camp. His education was substantially curtailed.[16]

41 Upon his mother's death, Mr Dhal became an orphan. Eventually, he and his siblings were assisted by an older brother to come to Australia. He settled with his siblings in the Shepparton region, and attended primary school for two years. He experienced difficulties at school and required the support of a teacher's aide. He left school during Year 10.[17]

42 At around that time, he was convicted of serious sexual offences as a juvenile and detained in a youth justice centre. Following his release, he obtained work at the SPC factory in Shepparton until the seasonal work concluded, when he found himself unemployed. He had at that stage met and commenced a relationship with his present girlfriend. He moved to Melbourne in 2014 to live with her. Sadly, he had become involved in illicit drugs and continued to be involved in criminal behaviour.[18]

43 The judge referred to Mr Dhal's 'extensive list' of prior convictions, noting that he has relevant prior convictions for violence, drug offences, dishonesty and weapons offences in addition to a number of driving and traffic offences.[19]

44 His Honour was told that Mr Dhal is not an Australian citizen and that he resides in Australia in accordance with the terms of a permanent residency visa. He accepted that it was appropriate to take into account the risk of Mr Dhal's deportation as a matter going to the burden of his imprisonment, and as a form of additional punishment should that risk materialise, because his chances of staying here longer term would be dashed.[20]

45 The judge had regard to Mr Dhal's pleas of guilty, but did not find significant evidence of remorse or insight into his offending.[21]

46 His Honour quoted from a report of forensic psychologist Pamela Matthews and her opinion that Mr Dhal has post-traumatic stress disorder as a result of the extreme violence and loss of family members experienced during his formative years. In particular, the judge extracted the following passage from the report:[22]

[M]any of the behaviours of concern evident in his offending such as possessing weapons, preying on others, violence towards others, anti-social and violent ideation, and the emotional indifference with which these behaviours are carried out, are in [my view] intimately linked to his childhood exposure to similar behaviours and form part of his Post Trauma symptomology in that these behaviours are largely acted out without thought or insight.

47 The judge also noted that Ms Matthews regarded Mr Dhal as a high risk of offending in a similar manner while his mental health issues remain unaddressed.[23]

48 On a more positive note, said the judge, the report from Prisoner Education, the reference from Mr Dhal's girlfriend, his family support and his relative youth enabled him to conclude that there were 'at least some prospects favourable for [his] rehabilitation in the future'.[24]

49 The judge referred to the sentencing reasons of the judge who had sentenced Mr Scown and Mr Magok. His Honour also made findings relevant to the question of parity as it related to the armed robbery sentence.[25] (I shall refer to this aspect of his Honour's reasons under cover of Ground 2.)

50 The judge considered defence counsel's submission that a combined prison sentence and community correction order ('CCO') should be imposed, but said that he was not satisfied that the nature of the offending was such that he could reasonably impose such a sentence in this case.[26]

51 His Honour concluded that the nature and gravity of the offending, particularly the armed robbery, required 'considerable weight' to be given to the sentencing purposes of just punishment, specific and general deterrence, denunciation and community protection.[27]

52 Finally, he referred again to Mr Dhal's pleas of guilty, the circumstances of his early life, the positive comments made by his girlfriend, together with the family support and 'the steps [he has] taken since incarceration to participate in educational programmes'. These factors, he said, 'must to some extent moderate the severity of ... sentence'.[28]

53 The sentences the judge then imposed are detailed in the following table:

Charge on Indictment J10098036 ('first indictment')

Charges on Indictment J10098036.1 ('second indictment')

6AAA statement: TES of 7 years' imprisonment with NPP of 4 years and 9 months

Other relevant orders: Disposal and 464ZF forensic sample orders

54 I turn first, and briefly, to the conviction application.

55 This application was raised on the morning of the hearing in this Court. Mr Carr, who appeared in this Court (but not below) with Mr Sturges for Mr Dhal, explained that the difficulty with the conviction on the possession of Mirtazapan charge had been noticed only at the last minute. He raised the point immediately with Ms Harper, who appeared in this Court for the Director (but not below).

56 Ms Harper took instructions and advised the Court that it is conceded that Mirtazapan is not a 'drug of dependence' prescribed in Schedule 11 of the DPCS Act. Instead, it is merely an anti-depressant, perhaps better known as Mirtazapine. Thus, on the admitted facts, there could be no offence of possessing a drug of dependence. Necessarily, then, there has been a substantial miscarriage of justice.[29]

57 The Director also conceded that, in consequence, Mr Dhal's application for leave to appeal against conviction should be granted out of time, the appeal should be allowed, the conviction and sentence must be set aside, and an acquittal should be directed instead.[30]

58 I accept those submissions and concessions. Plainly, they are correct. There is no need to expand upon the point. I would make those proposed orders.

59 I turn now to the sentence application, beginning with the complaint of manifest excess.

60 Mr Carr began his submissions on this ground by focussing on some of the lesser offences and their individual sentences and the levels of cumulation those sentences attracted.

61 First, the offence of possessing methamphetamine attracted a sentence of three months' imprisonment, with one month's cumulation. Yet it was conceded that the possession was for personal use and that Mr Dhal has a history of using drugs. In Mr Carr's submission, a prison sentence was not warranted, let alone one of this length.

62 Second, the handling offence involved no more than a licence and a number plate, yet it attracted a sentence of six months' imprisonment, two months of which were made cumulative. Importantly, submitted Mr Carr, Mr Dhal was not to be sentenced for using the licence in some sort of fraudulent way to obtain the car.

63 Third, the theft of the mountain bike received a sentence of six months' imprisonment, with two months' cumulation, on top of two months' imprisonment, with a month's cumulation, for the related trespass. In Mr Carr's submission, both were entirely opportunistic offences. While the theft could attract gaol, six months was far too much, especially when two months' imprisonment had already been imposed on the trespass, which itself did not warrant a prison sentence.

64 Mr Carr then turned to the more serious offences, the total effective sentence and the non-parole period. He submitted that, when regard is had to the horrors to which Mr Dhal was exposed as a child, and the impact that that has had on him and his development, and the link between that experience and his offending and illicit drug use, as well as the hardship concerning the risk of deportation, all of which the judge accepted, it is clear that his Honour cannot have reflected those matters in recognising a lower level of moral culpability, particularly for the armed robbery, robbery and possession of a weapon. For, had his Honour done so, he would have imposed much lower sentences for those offences, and a commensurately lower total effective sentence and non-parole period.

65 Mr Carr also submitted that, even if the sentence on the armed robbery was not manifestly excessive or manifestly disparate, it was still very heavy. In those circumstances, the judge had to be particularly careful to ensure that his cumulation of sentences for other offences was not excessive, as otherwise the total effective sentence would be manifestly excessive. Yet that is precisely the result, in his submission.

66 Finally, Mr Carr submitted that Mr Dhal was a damaged individual needing intensive treatment and support, which in turn suggested that the non-parole period should have been a good deal shorter than the one imposed by the judge. Also supporting that outcome, in his submission, were Mr Dhal's nascent rehabilitation and his positive progress and attitude towards reform whilst in gaol.

67 Ms Harper began her submission on this topic by pointing out that the sentence on the armed robbery represents only about 16 percent of the maximum penalty. While only an imitation firearm was used, it would have been no less frightening for the victims. This offence, which was committed in company, also represented an escalation of his prior offending.

68 The robbery was also serious, because it too was committed in company (with an unknown person) and involved a breach of trust of sorts, as Mr Dhal had befriended the victim.

69 As for the other offences, each represented separate criminality warranting a separate sentence and a direction for partial cumulation.

70 Ms Harper also reminded the Court that Mr Dhal was serving two CCOs at the time of this offending, which suggested a greater need for specific deterrence and did not bode so well for his prospects of rehabilitation.

71 In Ms Harper's submission, the judge laid out and accepted Mr Dhal's childhood trauma. That he did not refer to the leading authority on the point does not mean he failed to give the matter appropriate weight.

72 Ms Harper also submitted that these offences warranted weight to be given to the sentencing purposes of general and specific deterrence and protection of the community.

73 The judge, in her submission, also referred to and properly took into account the risk of deportation, which is not a controlling factor in any event.

74 Finally, Ms Harper submitted that the individual sentences, the level of cumulation, the resulting total effective sentence and the non-parole period were all open to the judge in the sound exercise of the sentencing discretion.

75 In addition to the circumstances, nature and gravity and victim impact of the different offences, and the importance of sentencing purposes such as general and specific deterrence, denunciation, just punishment and protection of the community, it must be remembered that rehabilitation is also an important purpose in sentencing a person as young and afflicted as Mr Dhal. And while he may have lacked insight, he still pleaded guilty to these offences, which was a very important mitigating factor.

76 Further, while he had received a sentence in youth detention for serious sexual offences as a child, his prior convictions as an adult involved mostly drug possession, minor dishonesty, a few assaults and driving offences. He had received only fines and CCOs in the past. Mr Dhal had never been imprisoned and was still only 22 to 23 at the time of the offending.

77 Moreover, his offending had to be understood against the background of his exposure in childhood to a combination of extreme disadvantage and shocking horrors that, happily, simply are not known in this country. The judge appeared to accept the psychological opinion that these experiences were 'intimately linked' to Mr Dhal's violent and anti-social offending and drug use.

78 His Honour also referred to recent authority[31] concerning the risk of deportation. He accepted that that risk renders imprisonment more onerous and involves an additional punishment inherent in destroying the opportunity to stay in this country should deportation occur.

79 But, in my opinion, the judge cannot have given these factors the weight they deserved, given some of the sentences fixed and directions for cumulation made.

80 In short, I accept Mr Carr's submission that the sentences on the offences of possession of methamphetamine, theft of the bike, handling stolen goods, possession of the knife and the trespass are all manifestly excessive.

81 I am satisfied that the offence of possessing methamphetamine, being for personal use by a person with Mr Dahl's drug problem at the time, did not warrant imprisonment.

82 Nor did the trespass. It was a very low level offence. Mr Dhal (albeit while evading police) simply jumped a fence into another person's back yard. He cannot be punished for going through the house, because he was invited to do so by the occupant. The real criminality in that part of the escapade was stealing the bike, which itself attracted a sentence that was, in all the circumstances, manifestly excessive.

83 The handling offence involved merely a number plate and a licence. Six months' imprisonment is simply too much for offending of that type, even allowing for a lessening of leniency as a result of his dishonesty priors.

84 And while a flick-knife can be a dangerous item, I am satisfied that two months' imprisonment is manifestly too heavy a sentence for a young man with Mr Dhal's damaged background and its relevance to his moral culpability.

85 On the other hand, I accept Ms Harper's submissions concerning the individual sentences on the armed robbery and the robbery. While the armed robbery sentence, in particular, is stern, given Mr Dhal's tragic personal experiences and resulting reduced moral culpability, it is not manifestly excessive. The victims would have assumed they faced a real gun - or at least they could not have been sure that the gun was not real - which would be terrifying. As Ms Harper pointed out, the offence carries a high maximum penalty, of which this sentence represented merely a fraction.

86 The robbery, while much less serious, was still a very low act by Mr Dhal, particularly towards someone he had only just befriended. The only redeeming feature was that he had enough decency to return $50 to his victim so that he could make his way home. A sentence of 18 months' imprisonment was well open to the judge.

87 I also accept Ms Harper's submissions about the individual sentences on the two offences of driving whilst suspended.

88 All of these offences (except the armed robbery) could have been dealt with comfortably in the Magistrates' Court, as offences of this kind often are. The process by which summary matters are tacked on to indictable matters heard in the County Court may well promote a form of efficiency, but it also makes sentencing for far more serious matters (such as armed robbery) more complex for busy judges than it ought to be. There is also a related risk that judges will direct cumulation unnecessarily or excessively, without proper regard to totality, just because the summary offences (or the lesser indictable offences triable summarily) are numerous.

89 Indeed, in this case, there was, in my opinion, a manifestly excessive amount of cumulation of the sentences for the lesser offences. While it is true that each offence had its own discrete criminality, the fact that several of these offences were committed at the same time, coupled with the limitation imposed by totality and their gravity being dwarfed by the more serious offences, demanded a much lesser level of cumulation.

90 Thus, while, as I have said, I am not satisfied that the individual sentences for driving whilst suspended are outside the available range, I do think it was manifestly excessive and in breach of totality to order partial cumulation of both sentences for those offences.

91 Similarly, I consider that the levels of cumulation of the sentences for the offences of robbery, theft of the bike and handling stolen goods were manifestly excessive and in breach of totality. Given my conclusions about prison not being warranted for the offences of possessing methamphetamine and trespass, it follows that any cumulation of those sentences necessarily was in error as well.

92 It must also be acknowledged that Mr Dhal served two sentences totalling four months' imprisonment for other matters during his remand in custody after his arrest on the present charges. This means that he lost four months' worth of pre-sentence detention that otherwise would have applied to the sentences the subject of this application. While it may be accepted (subject to a point I shall mention shortly) that that period of pre-sentence detention was applied correctly to those other sentences for offences that have their own separate criminality, it is still information relevant to totality vis-à-vis the current sentence, for it is as if those four months have been directed to be served cumulatively upon the total effective sentence and non-parole period fixed by the judge. Thus, it will be a total of about six years and one month from his arrest on 9 January 2018 (not five years and nine months) before his total sentence expires, and about three years and ten months (not three-and-a-half years) from that date before he is eligible for parole.

93 As Redlich JA (with whom Ashley JA agreed) explained in R v Mangelen,[32] the totality principle applies additionally:

where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence.[33] In both of these situations the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence.[34] The court must evaluate the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an unjust or inappropriate measure of the total criminality involved, the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle.[35] The principle is to be applied to both the fixing of the head sentence and the non-parole period.

94 While counsel mentioned totality on the plea, as did the judge, I cannot detect in counsel's submissions anywhere where this particular aspect of totality was identified for his Honour. Nor can I find anywhere in the reasons for sentence where it was addressed by the judge.

95 At most, the following things relevant to that issue were raised by counsel. In his written submissions filed on the plea, defence counsel's chronology records that, in April 2018, Mr Dhal was sentenced to six months' imprisonment in the Magistrates' Court. In the next line, it is said that, in June 2018, on an appeal against sentence to the County Court, Mr Dhal was resentenced to four months' imprisonment, with 101 days reckoned as served. On the first day of the plea, the judge was informed by the prosecutor that pre-sentence detention in the amount of 227 days had been agreed, which was affected by the fact that he served two sentences since his arrest and remand on 9 January 2018. Similarly, on the second day of the plea, his Honour was told by defence counsel that he believed Mr Dhal had spent 430 days in custody since arrest (which was not quite right - it was 423 days at that point), only 234 of which were attributable to the current charges because of the service of the other sentences.

96 In fact, the period from Mr Dhal's arrest on 9 January 2018 until the plea on 20 February 2019 was 417 days (excluding 20 February 2019). If the 227 days of pre-sentence detention agreed by the parties at the time is removed, that leaves 180 days, or about six months, during which, it might have been inferred, that Mr Dhal served other sentences. Thus, if nothing else, Mr Dhal's pre-sentence detention applicable to the sentence under challenge in this Court was understated by 60 days (or two months).

97 Following the oral hearing, the Court posed a series of questions relevant to this topic, in response to which the parties agreed that the correct period during which Mr Dhal had served other sentences was in fact 120 days (or about four months), which was also therefore the correct amount by which his pre-sentence detention from the date of arrest until sentence on the current matters ought to have been reduced (instead of 180 days). On 24 April 2018, Mr Dhal received a sentence of two months' imprisonment for driving whilst disqualified. The same day, he was sentenced to six months' imprisonment for various petty offences of the same type as he had committed previously (and which were referred to in his criminal history before the judge on the plea), but that sentence was reduced to four months' imprisonment on an appeal to the County Court. Thus, in the result, he served a total sentence of four months' imprisonment from 24 April 2018 for all of those offences.

98 It might have been argued, but was not, that the failure fully to address these other offences and sentences deprived the judge of information relevant to assessing, for example, Mr Dhal's prospects of rehabilitation. Counsel for each party, however, accepted that there was no concern in this regard, as his Honour was at least aware of the offences (except for the additional driving whilst suspended, which was minor in the grander scheme of things). I agree with counsel on that point.

99 The judge's failure to advert to the relevance of these other sentences to totality, however, is a different matter, and may well be regarded as a specific error capable of vitiating the sentencing discretion in and of itself. That said, I think it is unnecessary to decide whether that is in fact so in the particular circumstances that obtain here. This is because, whatever else may have been the cause, I am satisfied that insufficient weight was given to totality in this case, because the amounts of cumulation are manifestly excessive.

100 Mr Dhal's need for supervision, his steps towards rehabilitation and the hardship associated with the risk of deportation, when combined with all other matters, including totality, compel the view that the non-parole period fixed should have been shorter than otherwise. On the plea, the judge spoke of intending to achieve just that, but he did not repeat those remarks in his reasons for sentence. That said, the gap of two years and three months that the judge left between the total effective sentence and the non-parole period suggests that he did seek to give effect to, and achieved, that intention.

101 However, in circumstances where the manifestly excessive level of cumulation has resulted in a heavier total effective sentence than ought to have been produced, the non-parole period has in turn been affected by that error, because general principle demands that a non-parole period is fixed after and in relation to the total effective sentence.

102 Accordingly, I am satisfied that this ground is made good, in part.

Sentencing discretion reopened on all aspects of sentence

103 In my view, given the number of individual sentences and orders for cumulation that I have found to be manifestly excessive, the contribution of those sentences and orders to the total effective sentence and their interaction with all other aspects of the sentence, coupled with the effect of the setting aside of the conviction and sentence on the Mirtazapan offence, the sentencing discretion must be regarded as being reopened on all aspects of the total sentence.

104 In view of Mr Dhal's success on Ground 1 and the consequent need for resentencing, it is strictly unnecessary to deal with Ground 2. The factors that inform Ground 2 could be taken into account in resentencing to the extent that they are applicable.

105 That said, in the circumstances of this case, discussion of this ground helps explain why I would reject both grounds of appeal in respect of the armed robbery but would impose a lesser sentence for that offence on resentencing.

106 On 9 August 2018, another judge of the County Court sentenced Mr Scown (aged 30) on the same armed robbery to three years and six months' imprisonment with a non-parole period of two years. His Honour declared, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Scown's plea of guilty, he would have imposed a sentence of five years' imprisonment with a non-parole period of three-and-a-half years.

107 On 17 August 2018, the same judge sentenced Mr Magok (aged 18) for his part in the armed robbery to 12 months' imprisonment combined with a CCO for two years. On 24 September 2018, when dealing with the finer details of the CCO, his Honour declared, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Magok's plea of guilty, he would have imposed a sentence of four years' imprisonment with a non-parole period of two years.

108 While Mr Carr conceded that Mr Dhal held the imitation firearm and was the first to jump the counter, he submitted that all three offenders were jointly responsible for the offence and that their roles were little different. So much is apparent, he submitted, when regard is had to the remarks of the judge who sentenced Mr Scown and Mr Magok, for his Honour said that their lack of knowledge of the gun until it was produced did 'not much reduce the criminality of [their] offence[s]'.

109 Next, Mr Carr pointed out that Mr Scown, at nearly 30, was older than Mr Dhal (who was 22 at the time of the offence), lacked Mr Dhal's background of trauma as a child and did not have the same deportation concerns. While Mr Scown's prior convictions ceased in 2013, they included not only dishonesty offences but also robbery and intentionally causing injury. This was to be contrasted with Mr Dhal, who had no robbery or injury priors. Mr Scown, like Mr Dhal, had a drug problem of long standing. Mr Carr accepted that Mr Scown pleaded guilty earlier than Mr Dhal, that he was found to be remorseful and that Mr Scown had not committed this offence in breach of CCOs. In his submission, however, when all of these things were balanced, the judge was compelled to impose a sentence on the armed robbery on Mr Dhal that was no heavier than the three-and-a-half years' imprisonment imposed on Mr Scown.

110 Turning to Mr Magok, Mr Carr also noted that his criminal history included, relevantly, a sentence of detention in a youth justice centre for offences including robbery, attempted robbery and affray. He submitted that, in those circumstances, Mr Magok's sentence (of 12 months' imprisonment combined with a CCO) only made the foregoing submission all the stronger. And while he conceded that Mr Magok's tender age (at 18), his earlier plea of guilty and remorse, his low IQ, his assistance to the authorities in an unrelated matter and the difficult time that it had caused him compelled a lower sentence for Mr Magok than for Mr Dhal, the difference between their sentences is so great as to be manifestly disparate.

111 Ms Harper submitted that Mr Magok's lesser role, his youth, his low IQ and the hardship he had suffered relating to his assistance to the authorities in another matter well justified the extent of the difference between his sentence and Mr Dhal's.

112 As for Mr Scown, in Ms Harper's submission, his lesser role, his earlier plea of guilty and his remorse justified the six-month difference between his sentence and Mr Dahl's sentence.

113 In his reasons for sentence, the judge addressed the same points as raised by Ms Harper as differentiating Mr Magok's position from Mr Dhal's.[36] In my view, that reasoning was sound and the resulting difference between the two sentences was open. I do not accept that Mr Dhal could have a justifiable sense of grievance about his sentence when compared with the sentence imposed on Mr Magok.

114 When considering Mr Scown's sentence, the judge said this:[37]

[32] Mr Scown, although older than [Mr Dhal], and having a similar criminal history, was clearly not the person holding the imitation firearm, nor was he the first person into the IGA store. [Mr Dhal was] the first one to leap to the counter. In my view, [his] role in this offending was considerably greater than that of Mr Scown and this must be reflected in the sentence that I impose on [him].

115 While his Honour's description of the differences in the behaviour of the two offenders is accurate, I disagree that Mr Dhal's role was 'considerably greater than that of Mr Scown'. In my view, while it was open to say that Mr Dhal had a greater role, it was not open to say it was considerably greater.

116 That said, while I would have fixed Mr Dhal's sentence for the armed robbery closer to Mr Scown's than the judge did, it was, I think, open to him to impose a sentence of four years' imprisonment (and therefore a six-month difference) in circumstances where their roles differed and Mr Scown had pleaded guilty earlier and was remorseful, notwithstanding Mr Dhal's relative youth, his tragic personal background and its link with his offending and his deportation concerns.

117 While I have disagreed about the judge's classification of the relative gravity of their respective roles, I am not satisfied that it would be proper to uphold this ground on that basis in circumstances where, as I have said, other relevant considerations combined with such differences as there were in their roles left it open to the judge to weigh things in a way that resulted in the four-year sentence he imposed on Mr Dhal.

118 I should add, however, that nothing I have said should be taken as endorsing the view that the principles of parity among co-offenders compel a sentence to be heavier than it might be otherwise by reference to the sentence or sentences of a co-offender or co-offenders. Instead, in my view, the proper approach is to consider the appropriate sentence for the offender being sentenced and then to ask whether that sentence might have to be reduced by reference to the existing sentence or sentences of a co-offender or co-offenders on account of the principles concerning parity among co-offenders.

120 As I indicated earlier, Mr Carr submits that, once the orders setting aside the conviction and sentence for the Mirtazapan offence were made, this Court would be at large to resentence on all aspects of the total sentence, irrespective of the fate of the grounds of appeal against sentence.

121 But, as I have said, it has become unnecessary to deal with this submission in light of Mr Dhal's partial success on the complaint of manifest excess. Nevertheless, I think I should record counsel's submissions on the point.[38]

122 Mr Carr submits that, given that one month of the three-month prison sentence for the Mirtazapan offence was directed to be served cumulatively, it is plain that all other aspects of the sentence 'took into account the sentence for [the Mirtazapan offence]' within the meaning of s 277(3)(b) of the CPA. There are two reasons. First, the proper application of the instinctive synthesis and the principle of totality causes the sentencing judge to consider each individual sentence and direction for cumulation vis-à-vis the others that make up the total effective sentence. Secondly, that the Mirtazapan sentence was taken into account in that way is even more pronounced when the individual sentence is one that was directed to be served partly cumulatively.

123 Now that the conviction and sentence (and associated direction for cumulation) are to be set aside, the submission continues, then this Court, to use the words of the preamble to s 277(3), 'may vary the sentence' - i.e. the remaining total effective sentence and all its component parts, including the individual sentences, the directions for cumulation and the non-parole period. Further, it is submitted that the power to vary any aspect of the sentence is limited only by whether the Court is satisfied that a different sentence should be passed.

124 Ms Harper submits that, in the circumstances of this case, any reopening of the discretion should not extend to the individual sentences, the directions for cumulation or the total effective sentence. This is because the Mirtazapan sentence added such a small component to the total effective sentence. In this regard, she referred to Lim v The Queen.[39] Immediately, however, Ms Harper properly acknowledged that Lim was not a case involving the setting aside of a conviction - and therefore s 277(3) was inapplicable - but instead was a sentence appeal concerning an individual sentence exceeding the maximum penalty. She also acknowledged that there was no contradictor in that case, because counsel for Mr Lim conceded that the discretion would not be reopened, and that the remarks of the Court were only dicta. But her basic point, which seemed to me to be a reasonable one, was that the trend in sentence appeals in this Court was towards regarding the discretion as not being reopened when the sentence set aside contributed only a relatively minor component to the total effective sentence.[40]

125 As indicated earlier, Ms Harper conceded that the discretion should be regarded as reopened, but only in relation to the non-parole period. This was because the total effective sentence must be altered by the setting aside of the Mirtazapan sentence, albeit by only one month, and a non-parole period must be fixed by reference to the total effective (or head) sentence.[41]

126 Despite the different wording of s 277(3) of the CPA on the one hand and ss 281(1) and 282(1) on the other, I should have thought that there would be a reasonable argument for having identical tests, to the extent that it is possible to do so, for determining whether the setting aside of an individual sentence that forms only a relatively small part of a total effective sentence reopens the sentencing discretion on all aspects of the remaining total sentence. It should make no difference whether that order setting aside the individual sentence has come about as a result of a successful conviction appeal or a successful sentence appeal. And just what level of impact the setting aside of such an individual sentence must have before reopening the discretion more broadly would then be the crucial question in each case. But, of course, working out a universal rule for the level of impact may well be impossible, given the many and varied nature of sentencing tasks that confront judges on appeal.

127 Given the importance of the point, I think it is preferable that consideration of the scope of s 277(3) should await a case in which it is thought to be determinative, or at least a case which involves a hearing before a Court of three judges.

128 In those circumstances, I turn to the question of resentencing.

129 As I indicated earlier, as objectively serious as the armed robbery and the robbery were, that gravity was offset to some extent by the link between the damaging experiences of Mr Dhal's early life and his offending and illicit drug use, and the reduction in moral culpability entailed therein. That said, I am conscious of the requirement, where necessary, to balance any reduction in moral culpability on account of such formative experiences with the possible increase in the importance of community protection as a sentencing purpose. As Redlich and Tate JJA said in Marrah v the Queen:[42]

[16] Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender's conduct that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community's disapproval of the offending.

130 The escalation in Mr Dhal's offending (as an adult) from petty street offending to robbery and armed robbery, albeit rather unsophisticated examples of those crimes, does, I think, call for added importance to be given to the protection of the community in the sentencing mix.

131 That said, Mr Dhal was only 22 at the time of those two offences, and 23 when he committed the lesser offences on the day of his arrest. He is still only 25 now. Thus, to my way of thinking, he was and is still young enough, and his criminal history would not yet deny this, to give prominence to rehabilitation in the sentencing mix.

132 Now, while incapacitation can ensure protection of the community as long as the sentence lasts, the reality is that the sentence to be imposed upon Mr Dhal for this collection of offences is one that must see his release sooner or later. Thus, while it is appropriate to give weight to sentencing purposes such as general and specific deterrence, just punishment, denunciation and protection of the community, which will lead to a substantial term of imprisonment, it is just as important to recognise that protection of the community in the longer run, in a case like the present, is best achieved by maximising the offender's chances of rehabilitation and reintegration into the community upon his eventual release.

133 In addition to the foregoing, in considering resentencing, I have also borne in mind all other relevant factors, including:

(d) Mr Dhal's culpability and degree of responsibility for the offences;

(e) the fact that he committed these offences while undergoing two CCOs;

(f) the impact upon the victims of the offences, including any injury, loss or damage caused;

(i) the impact upon him and the hardship of his incarceration resulting from the risk of deportation;

(k) the support he enjoys from his family and his girlfriend;

(o) the two other sentences served since his arrest in January 2018 and the related loss of four months' pre-sentence detention on the present charges, and the additional relevance of totality in those circumstances; and

(p) parity vis-à-vis the sentences imposed upon his co-offenders in the armed robbery.

134 On the armed robbery, I would impose a sentence of three years and nine months' imprisonment. This would be the base sentence. When compared with the original sentence, this sentence, I think, reflects my view that the differences between Mr Dhal's role and Mr Scown's were not as significant as the judge considered, as well as my weighting of other factors to and fro concerning all three offenders. Equally, but for the constraining effect of parity, I would have imposed a heavier sentence.

135 I would leave the robbery sentence as it is, i.e. at 18 months' imprisonment. But I would direct six (not nine) months of that sentence to be served cumulatively.

136 On the possession of methamphetamine, I would convict and discharge Mr Dhal. Imprisonment is not warranted. The offence was committed for personal use by a young person with a drug problem.

137 On the criminal damage to the unmarked police car, I would impose a sentence of four months' imprisonment, but with two months still cumulative.

138 On the theft of the mountain bike, I would impose two months' imprisonment, with one month (not two) cumulative.

139 On the handling offence, I would impose three months' imprisonment, with one month (not two) cumulative.

140 On the two summary offences of driving whilst suspended, I would impose an aggregate sentence[43] of two months' imprisonment, with one month cumulative.

141 On the careless driving, I would reimpose the fine his Honour imposed.

142 On the possession of the knife, I would impose one month's imprisonment, concurrent.

143 On the trespass in the back yard, I would convict and discharge Mr Dhal. In the circumstances of this case, this offence does not warrant imprisonment.

144 That makes a total effective sentence of four years and eight months' imprisonment.

145 I would fix a non-parole period of two-and-a-half years. Like the judge, I consider that Mr Dhal should be given the opportunity to benefit from a longer period of supervision in the community, should he be granted parole at or soon after eligibility. If this occurs, it is more likely to redound to the benefit of both Mr Dhal and the community - because I expect it would assist in his rehabilitation in the longer term and thereby promote long-term protection of the community - than will mere incapacitation.

146 I mentioned earlier that the judge accepted Ms Matthews' opinion to the effect that there was a link between Mr Dhal's experiences in his formative years and his offending and drug use; and that she regarded him as a high risk of offending in a similar manner while his mental health issues remain unaddressed.[44] At this point, I think I should add that Ms Matthews went on to say that some, but not all, of the treatment required could be delivered by correctional programmes. As I understood her report, Ms Matthews was also of the view that treatment of Mr Dhal's past experiences in Sudan and Uganda ought to be left to a treating psychologist.

147 It is to be hoped that Corrections would ensure that Mr Dhal gets the type of treatment recommended by Ms Matthews when in custody and also when released on parole, if and when the Adult Parole Board considers it appropriate to order his release.

148 Pursuant to s 18 of the Sentencing Act, I would make a fresh declaration as to pre-sentence detention served under this sentence up until, and including the date of, these proposed orders. That amount is 713 days.[45]

149 I also declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Dhal's pleas of guilty, I would have proposed a total effective sentence in the order of six years and nine months' imprisonment with a non-parole period of four-and-a-half years.

150 The sentences I have proposed are set out in the following table:

Charge on Indictment J10098036 ('first indictment')

Charges on Indictment J10098036.1 ('second indictment')

6AAA statement: TES of 6 years and 9 months' imprisonment; NPP of 4 years and 6 months

151 I would confirm all ancillary orders made by the judge.

[1] Mr Dhal's birthday, like many of those who come from war-torn parts of Africa as refugees, is estimated to be 1 January (in 1995, in his particular case).

[2] Such offences may be dealt with by the County Court (or the Supreme Court) pursuant to s 242 of the Criminal Procedure Act 2009 (Vic).

[3] Crimes Act 1958 (Vic) ('Crimes Act'), s 75 (maximum penalty: 15 years' imprisonment).

[4] Road Safety Act 1986 (Vic) ('RSA'), s 30 (maximum penalty: two years' imprisonment).

[5] Road Safety Act 1986 (Vic), s 65 (maximum penalty: 12 penalty units).

[6] Crimes Act 1958 (Vic), s 75A (maximum penalty: 25 years' imprisonment).

[7] Crimes Act 1958 (Vic), s 88 (maximum penalty: 15 years' imprisonment).

[8] Road Safety Act 1986 (Vic), s 30 (maximum penalty: two years' imprisonment).

[9] Crimes Act 1958 (Vic), s 197(1) (maximum penalty: ten years' imprisonment).

[10] Summary Offences Act 1966 (Vic) ('SOA'), s 9 (maximum penalty: six months' imprisonment).

[11] Crimes Act 1958 (Vic), s 74 (maximum penalty: ten years' imprisonment).

[12] Controlled Weapons Act 1990 (Vic) ('CWA'), s 6 (maximum penalty: one year's imprisonment).

[13] Drugs, Poisons and Controlled Substances Act 1981 (Vic) ('DPCS Act'), s 73 (maximum penalty: one year's imprisonment).

[14] Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73 (maximum penalty: one year's imprisonment).

[15] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [1]-[18].

[16] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [19]-[20].

[17] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [20].

[18] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [21].

[19] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [22].

[20] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [23] & [40]-[41].

[21] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [33].

[22] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [34]-[35]; see also [44].

[23] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [36]. Ms Matthews also said that some, but not all, of the treatment required could be delivered by correctional programmes and, as I understood her, that treatment of Mr Dhal's past experiences in Sudan and Uganda ought to be left to a treating psychologist. See below.

[24] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [36].

[25] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [25]-[28] & [31]-[32].

[26] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [39] & [43].

[27] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [43].

[28] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [44].

[29] See s 276(1)(b) and/or (c) of the Criminal Procedure Act 2009 (Vic).

[30] See s 277(1)(b) of the Criminal Procedure Act 2009 (Vic).

[31] Loftus v The Queen [2019] VSCA 24.

[32] R v Mangelen [2009] VSCA 63; (2009) 23 VR 692 at 697[28].

[33] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

[34] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 308 (per McHugh J); R v Berkelaar [2001] VSCA 143 at [22].

[35] R v Hunter [2006] VSCA 129; (2006) 14 VR 336 at 341[30].

[36] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [31].

[37] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [32].

[38] Mr Carr relied on what he accepted were dicta in the reasons for judgment of Warren CJ in CMG v The Queen [2013] VSCA 243; (2013) 46 VR 728 as supporting his submissions.

[39] Lim v The Queen [2019] VSCA 182 at [22]- [25] (per Croucher AJA, with whom T Forrest JA agreed).

[40] See, for example, Smith & Ors v The Queen [2012] VSCA 5 at [47]- [48]; Young & Ors v The Queen [2015] VSCA 265 at [82]; and Cox v The Queen [2016] VSCA 124 at [28] & [32].

[41] It should be noted that it has been said that a conclusion that a non-parole period is manifestly excessive 'means that the discretion is re-opened and it falls to this Court to re-sentence the applicant' (R v VZ [1998] VSCA 32; (1998) 7 VR 693 at 697[15]-698[16] (per Callaway JA)).

[42] Marrah v The Queen [2014] VSCA 119 at [16] (footnotes omitted).

[43] See s 242(6) of the Criminal Procedure Act 2009 (Vic) and s 9 of the Sentencing Act 1991 (Vic).

[44] DPP v Dhal (Unreported, County Court of Victoria, Judge Dyer, 1 March 2019) at [34]-[36].

[45] While reasons are being published today (17 April 2020), orders will not be made until 20 April 2020, to allow the parties time to make any submissions on the form and detail of the orders. From 9 January 2018 to 20 April 2020 inclusive is 833 days. After deducting the 120 days on account of service of other sentences during that period, the amount to be declared under s 18 of the Sentencing Act 1991 (Vic) is 713 days.