DPP & DPP (Cth) v Swingler [2017] VSCA 305

1 Both the Commonwealth and Victorian Directors of Public Prosecutions have appealed against sentences imposed upon the respondent for a mixture of Commonwealth and State offences. These appeals were heard together. They were argued by the Victorian Director on his own behalf and, so far as the Commonwealth offences are concerned, on behalf of his Commonwealth counterpart.

2 There are two separate notices of appeal. The Commonwealth notice contains one ground of appeal only, and is in the following terms:

The learned sentencing judge erred in failing to order any or proper accumulation between the Commonwealth offences and any or proper accumulation between the Commonwealth and State offences such that the total effective sentence is manifestly inadequate.

3 The State notice of appeal is expressed more elaborately. There were originally three grounds relied upon, as follows:

Ground 1 - The total effective sentence is manifestly inadequate in that in fixing sentence the learned sentencing judge -

(a) failed to make orders that would produce any cumulation between the State and federal sentences and thereby failed to reflect the gravity of the federal offences, and the gravity of the offending against 3 of the 5 victims, whose charges make no contribution to the global sentence.

(b) made a single, inadequate order for cumulation between two of the four serious State charges, and thereby failed to reflect the fact charges 6 and 12 involved serious offences against different victims, and charge 13 involved a moderately serious offence of a different nature to the other State charges.

(c) made orders for cumulation that fail to reflect the position that the respondent was to be sentenced as a 'serious sexual offender' on charges 6, 9, 12 and 13.

Ground 2 - The learned sentencing judge erred by imposing a sentence that was ultimately determined, not by the correct application of sentencing principle (in particular, the principles regarding cumulation and totality) but by the duration necessary to circumvent the limits created by s 11 and s 44 of the Sentencing Act 1991.

Ground 3 - The learned sentencing judge erred (a) by misidentifying the offences for which the respondent fell to be sentenced as a serious sexual offender; and (b) by failing to order cumulation on State charges 6, 9, 12 and 13 consistent with the requirements of s 6E of the Sentencing Act 1991.

4 At the commencement of the hearing of the appeal, Mr Champion SC made it clear that he would not be pursuing ground 2. In addition, he indicated that he would treat the complaint set out in ground 3 as a particular of manifest inadequacy, rather than as a stand-alone ground. That was, if we may say so, an entirely sensible approach, and has made our task in what is plainly a difficult matter considerably more manageable.

5 On 26 May 2016, the respondent pleaded guilty to the offences set out in the following table. He was sentenced, on 7 July 2016, as follows.[1]

Use carriage service to groom person under 16 for sexual activity

Use carriage service to transmit indecent communications to person under 16 years of age

Use carriage service to groom person under 16 for sexual activity

Use carriage service to procure person under 16 for sexual activity

Use carriage service to transmit indecent communications to person under 16 years of age

Crimes Act 1958

Use carriage service to transmit indecent communications to person under 16 years of age

Use carriage service to groom person under 16 for sexual activity

Crimes Act 1958

Use carriage service to transmit indecent communications to person under 16 years of age

Crimes Act 1958

Crimes Act 1958

s 73(1)

23 months' imprisonment and a community correction order for period of 3 years.

Supervision under 48E, treatment and rehabilitation under 48D(3), including drug and alcohol treatment, offender behaviour program, and any treatment required for any psychological or psychiatric issues.

On charges 1 ,3, 4, 8 and 11, release ordered under s 20(1)(b) of the Crimes Act 1914 (Cth) after serving 12 months' imprisonment and upon giving security by recognisance of $2000 to be of good behaviour for 4 years.

23 months' imprisonment followed by a CCO for a 3 year period (ending 7 June 2021), with (substantially overlapping) conditional release under the RRO for 3 years, 1 month, (ending 7 July 2021).[4]

Pre-sentence detention (s 18)

6AAA Statement: The Record of Orders states, but for the guilty plea: 'the Court would not have imposed a Recognisance Release Order' and 'the Court would not have imposed a combined sentence of imprisonment and a Community Correction Order.'

Other relevant orders: Pursuant to s 6F Sentencing Act 1991, the respondent was sentenced as a serious sexual offender in respect of Charges 12 and 13.

Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is life.

6 The Summary of Prosecution Opening was tendered as Exhibit A on the plea, and accepted as an agreed summary of facts.

7 Essentially, it recorded that the respondent, Ryan Alan Swingler, was born on 19 June 1988, and was therefore aged between 25 and 26 at the time of the offending. There were five young victims in this matter, all of them girls aged between 13 and 15 at the relevant times. None of the girls had had any prior dealings with the respondent. He engaged with each of them on social media, namely Facebook and Snapchat.

8 Charges 1 and 2 concerned a young girl given the pseudonym 'Kayla Fergusson' by the sentencing judge. Charge 1 alleged the use of a carriage service to groom a person under 16 for sexual activity, contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth) ('Code'). In essence, the respondent sent a number of highly sexualised messages to the girl, specifically requesting sex with her and, indeed, even offering payment. The maximum penalty for that offence is 12 years' imprisonment. Charge 2 alleged the use of a carriage service to transmit indecent communications to a person under the age of 16, contrary to s 474.27A(1) of the Code. On two or more occasions, the respondent sent naked photos of himself to the child. This offence carries a maximum penalty of seven years' imprisonment.

9 Charge 3 concerned a young girl given the pseudonym 'Ava Lee' by the sentencing judge. It alleged the use of a carriage service to groom for sexual activity, contrary to s 474.27(1) of the Code. The particulars alleged that, on numerous occasions between September 2013 and October 2014, the respondent sent Facebook messages and SMS texts to the girl, then aged 15. He falsely told her that he was 18. He engaged in 'flirtatious' conversations with her, asking her to have sex with him and detailing his salacious thoughts about her.

10 Charges 4, 5 and 6 concerned a young girl given the pseudonym 'Eliza Mazure' by the sentencing judge. Charges 4 and 5 alleged the use of a carriage service to procure a person under 16 for sexual activity, and the use of a carriage service to transmit indecent communications to a person under 16. These charges were laid under ss 474.26 and 474.27A(1) of the Code respectively.

11 Charge 4 involved a number of flirtatious and increasingly sexualised communications. Charge 5 was a course of conduct charge, comprising five occasions on which the respondent sent the child a photograph of his penis. These charges also encompassed the respondent having asked the young girl to send him a pornographic photograph of herself. A short time later, she sent him a photograph depicting herself wearing only a bra. He then asked for something 'better than that'.

12 Charge 6, a State charge, alleged the sexual penetration of a child under 16, contrary to s 45(1) of the Crimes Act 1958 ('Crimes Act (Vic)'). It should be noted that this charge was described as a representative charge, encompassing two separate acts of sexual penetration, each committed at a different time.

13 Charge 6 alleged that the respondent approached the child at a motor racing event and offered to take her for a ride in his car. She declined. Several days later, however, he arranged for them to meet, and collected her from an agreed location. He drove her to his home, and they slept together that night in his bedroom. It seems, however, they did not have sex on that occasion.

14 In the days that followed, the respondent continued to press the young girl to have sex with him. Finally, a month or two later, she agreed. He drove her once again to his home, and on this occasion, they had sexual intercourse. This was the act of sexual penetration for which the respondent was sentenced. However, it was agreed that there was a subsequent occasion when they had sexual intercourse at his home. For that reason, charge 6 was a representative charge.

15 Charge 7 concerned a young girl given the pseudonym 'Brooke Blacklow' by the sentencing judge. It alleged the use of a carriage service to transmit indecent communications to a person under 16 years of age, contrary to s 474.27A(1) of the Code. The offence consisted of a series of online chats in the course of which the respondent sent the child a naked photograph of himself. He then asked her to send him naked photographs of herself, which she did. Subsequently, he asked her to meet him in person, but she declined. She told a friend, 'Phoebe Hayden', about the respondent, but she herself ended all contact with him.

16 Charges 8, 9, 10, 11 and 12 concerned the friend of Brooke Blacklow, who was given the pseudonym 'Phoebe Hayden' by the sentencing judge. Charge 8 alleged the use of a carriage service for grooming. Charge 10 alleged the use of a carriage service to transmit indecent communications to a person under 16. Charge 11 alleged the use of a carriage service to solicit child pornography. These were all Commonwealth offences under the same provisions of the Code as previously discussed.

17 Charge 9 alleged an indecent act with a child under 16. Charge 12 alleged sexual penetration of a child under 16. These were both State offences under the Crimes Act (Vic).

18 Charges 8 and 10 involved the respondent's usual flirtatious and sexualised communications using Facebook and Snapchat, and the sending by him of a photograph of his genitalia. Charge 11 involved several requests by the respondent to the child to send him naked photographs of herself, which she did.

19 In March 2015, the respondent drove to a swimming pool in the Kilsyth area, where he met Phoebe Hayden and her friend. He kissed her during that meeting. This gave rise to charge 9, the charge of indecent act.

20 On the afternoon of 25 March 2015, the respondent met Phoebe Hayden. He drove her to his home and took her to his bedroom, where they engaged in sexual intercourse. This gave rise to charge 12.

21 This was an allegation of possession of child pornography, contrary to s 70(1) of the Crimes Act (Vic), a State offence. The maximum penalty at the time of the offending was five years' imprisonment. This has since been increased to ten years' imprisonment. None of the persons depicted in the 21 images in question were the victims of the preceding offences. They were described by his Honour as being 'at the lower end of depravity', though there were two of young girls engaging in fellatio. These were categorised as 'Level 4 images'.

22 This was a charge of possession of testosterone. There was no suggestion that the respondent engaged in any trafficking of this drug, but it is an offence to possess it, pursuant to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty is 12 months' imprisonment.

23 The sentencing judge was faced with the onerous task of having to sentence the respondent for a multitude of Commonwealth and State offences. That task was made all the more difficult by the technical problems associated with accommodating Commonwealth and State sentences, on a plea of guilty, within a single indictment, rather than two separate indictments, one Commonwealth and one State.

24 His Honour noted in relation to the Commonwealth offences, that, on each occasion, the respondent had used his own name and phone number when communicating with the young girls. He made no attempt at all to conceal his true identity, unlike others who typically engage in this type of behaviour. He observed that, although the communications were salacious and highly sexualised, they were not 'the most depraved or graphic' conversations that he had previously come across when sentencing for such offences.

25 Finally, the judge noted that the communications in question were but a small subset of a significantly greater number of messages passing between the respondent and the young girls. Many of those communications were seemingly innocuous. We interpolate to say that, with respect, this was not a factor which should have been viewed as mitigating the seriousness of the offending. It is notorious that innocent conversations of this kind can, and often do, form part of an overall process of grooming. That appears to be what occurred in this case.

26 The sentencing judge next gave detailed consideration to the respondent's personal background. He noted that the respondent had had particular difficulties as a child, having been diagnosed, early on, with Attention Deficit Hyperactivity Disorder ('ADHD'). Apparently, he was both a shy, and late, developer and had been bullied at school. He had engaged in various forms of self-harm. He had come before the Children's Court, and the Magistrates' Court, and had once been dealt with on a charge of recklessly causing injury. It was clear that he had been abusing drugs and alcohol, and had been forced to leave home for a time.

27 At one stage, the respondent had been in a relationship. However, that ended in 2013. At that time, he was unemployed, and suffering from low self-esteem. He used testosterone to try to build up his own body image. He appeared to be unable to enjoy complete physical relationships, probably by reason of his immaturity and personality defects.

28 A psychological report prepared by Pamela Matthews was tendered on the plea. The report was dated 23 May 2016. It gave a reasonably full medical history. It noted that the respondent was of high/average intelligence. Ms Matthews had diagnosed the respondent with hebephilia, with a particular sexual preference for young girls between the ages of 13 and 16.

29 Ms Matthews was of the opinion that, when she first saw the respondent, he had presented a moderate to high risk of reoffending. However, this risk had been ameliorated, to some degree, by the fact that he had been prepared to engage in treatment. Accordingly, she assessed the risk of his reoffending as being towards the moderate, rather than high, end.

30 Ms Matthews said that the respondent's 'constant need for attention, occupation, stimulation, poor impulse control ... are significant in his offending before the Court and are a direct product of his attention deficit disorder.'

31 The sentencing judge found that the respondent had a 'complex personality matrix with an associated ADHD diagnosis'. His immaturity, and reduced self-esteem, affected his ability to establish and maintain normal intimate relationships. This personality was a reason why the respondent had become involved in the criminal behaviour that he did. This attracted a degree of mitigation, but not to the extent that would allow the Verdins[5] principles to be invoked.

32 The sentencing judge accepted that the plea of guilty to these charges had particular utilitarian benefit. It had saved the five young victims from having to give evidence, and thereby relive their experiences. His Honour also accepted that the respondent was entitled to rely upon his youth and immaturity as mitigating factors. He had demonstrated remorse, and had taken steps towards rehabilitation. He had never previously been to gaol. He appeared to be developing some insight into his problems.

33 The sentencing judge next referred to the sentencing statistics for sexual penetration of a child under the age of 16. He noted that the median sentence for that offence was three years and nine months' imprisonment, with a non-parole period of two years and nine months. It was perhaps surprising, therefore, that he imposed individual sentences of only 22 months on charge 6 (which was, of course, a representative charge), and 20 months on charge 12. It was even more surprising that he ordered only one month's cumulation between them.

34 It was submitted, somewhat boldly, on behalf of the respondent, that he receive a wholly non-custodial sentence in respect of the totality of his offending. The sentencing judge properly rejected that submission as an unrealistic disposition. However, his Honour said that any custodial sentence that he might impose would be the minimum period that justice required. He indicated that he wanted to ensure that the respondent could continue along the path towards rehabilitation upon which he had embarked.

35 The sentencing judge then imposed the sentences that he thought would achieve this object. Given the extraordinary complexity associated with sentencing on a joint Commonwealth-State indictment, it was perhaps not surprising that his Honour made several technical errors in the course of imposing the sentences that he did. We shall explain in some detail later in these reasons for judgment what some of those errors were.

36 It was submitted that both the total effective sentence on the State charges[6] and the total effective sentence on the Commonwealth charges,[7] effectively all to be served concurrently, were manifestly inadequate. It was further submitted that the sentencing judge's failure to cumulate adequately had led to that outcome. Importantly for present purposes, it was not submitted that any individual sentence was itself inadequate. Nor was it suggested that, were this Court to allow these appeals, any of those sentences should be increased.

37 In support of the Crown's primary submission regarding absence of adequate cumulation, it was noted that there were five victims in this case. Four of the young girls had been the subject of offences that resulted in individual terms of 18 months' imprisonment. Yet the total effective sentence across all 14 charges, State and Commonwealth, came to only 23 months' imprisonment.[8]

38 It was submitted that if the State offences, in total, warranted 23 months' imprisonment (together with a three year CCO), it was impossible to see how the 20 month term of imprisonment imposed for the multitude of Commonwealth offences could reasonably be regarded as adding nothing to the respondent's overall sentence. In one sense, it might appear that the respondent had received no punishment at all for these various Commonwealth offences.[9]

39 It was further submitted that the inadequacy of the total effective sentence was further demonstrated by the fact that, in respect of State charges 6, 9, 12 and 13, his Honour was bound to sentence in accordance with s 6E of the Sentencing Act 1991 ('Sentencing Act').[10] That section provides that every term of imprisonment imposed on a serious offender[11] for a relevant offence must, unless otherwise directed by the Court, be served cumulatively on any other sentence of imprisonment imposed on that offender. As can be seen from the sentencing table set out above, the sentencing judge ordered no cumulation at all in respect of the sentences imposed on charges 9 and 13, and only one month's cumulation in respect of the sentence imposed on charge 12. Yet charge 12 concerned an entirely separate act of sexual penetration, committed upon a different victim, and surely warranted a significant degree of cumulation.

40 It was also pointed out that the respondent's offending took place over a period of more than two years, from January 2013 to March 2015. Although the sentencing judge referred to the question of cumulation under s 6E of the Sentencing Act,[12] he gave no discernible effect to that statutory requirement. Nor did he provide any explanation for failing to make orders for cumulation, in circumstances that would ordinarily call for such orders to be made.

41 In his written submissions, Mr Champion SC argued that the sentencing judge may have been influenced in his approach to questions of cumulation by his desire to fashion a sentence, at least on the State charges, that would permit a combined term of imprisonment with a CCO. As the law then stood, in order to do so his Honour had to impose a State sentence that fell below two years' imprisonment.[13] It was submitted that that might explain, but not justify, his Honour's failure to make appropriate orders for cumulation.

42 As previously indicated, the suggestion that the sentencing judge had structured his sentence in such a way as to enable a CCO to be imposed formed the basis of ground 2 of the State Director's notice of appeal. However, the sentencing judge provided a report to the Court denying that he had tailored his sentence to achieve that object.[14] As we have said, the Director did not pursue ground 2 and, accordingly, nothing more need be said about it.

43 On behalf of the Commonwealth Director, Mr Champion argued that his Honour had erred not only by failing to order adequate cumulation between the Commonwealth and State offences, but also by failing to order appropriate cumulation with regard to the Commonwealth offences themselves. It was submitted that such cumulation as his Honour ordered among these offences was derisory, failing to reflect the existence of several discrete forms of offending, involving separate acts of serious criminality committed against a number of different victims.

44 Moreover, it was submitted that each of charges 5 and 10 represented a course of conduct involving more than a single transmission of an indecent communication. It was submitted that the overall sentence imposed for the Commonwealth offences failed to reflect that fact.

45 Mr Holdenson QC, on behalf of the respondent, submitted that it was quite wrong to view this global sentence for Commonwealth and State offences as being merely one of 23 months' imprisonment. Rather, when proper account was taken of the three year CCO that attached to the 23 month State sentence, and of the recognisance release order attached to the 20 month Commonwealth sentence, the respondent should be regarded as having been sentenced to something just under five years' loss of liberty.

46 Mr Holdenson noted that the respondent had pleaded guilty to these charges at a very early stage. His plea clearly had a substantial utilitarian benefit. Moreover, he was genuinely remorseful. He was a young and immature offender with no relevant prior convictions. Although the principles set out in Verdins did not apply, the respondent should be regarded as being of reduced moral culpability. In addition, he had made significant progress towards his rehabilitation, and any custodial term would be particularly burdensome for him.

47 Additionally, Mr Holdenson submitted that the individual sentence of two months' imprisonment imposed on charge 9 (for what was said to be merely consensual kissing and holding hands), and the individual sentence of three months' imprisonment imposed on charge 14 (for possession of three glass vials of testosterone), were both extremely severe. He further submitted that the sentence of 18 months' imprisonment on charge 3 (grooming), and the like sentence of 18 months' imprisonment on charge 4 (procuring) were 'very stern'. Finally, he submitted that the nature of the pornographic material the subject of charge 13 (18 months' imprisonment) was at the lower end of depravity.

48 Mr Holdenson next submitted that, because of the difficulties involved in sentencing this respondent, a broad and common sense view should be taken of the overall outcome achieved below. He submitted that it was important to recognise the breadth of the discretion conferred upon sentencing judges, and to grant appropriate deference to this experienced sentencing judge's conclusion. He contended that mere structural errors, in the context of a sentence of this complexity, should not vitiate an otherwise reasonable exercise of the sentencing discretion.

49 Finally, Mr Holdenson submitted that, even if the Crown were to establish error on the part of the sentencing judge, this Court should exercise its residual discretion to order that the appeal be dismissed. Of course, as Mr Holdenson correctly observed, if there was a proper basis for the exercise of that discretion, the Crown would bear the onus of persuading this Court that it should not be exercised.[15]

50 In support of that last contention, Mr Holdenson pointed to the respondent's progress towards his rehabilitation. He also reminded the Court that there was no challenge to the adequacy of any of the individual sentences imposed. The only point taken by the Crown related to the orders made for cumulation. An error of that kind would not give rise to any question of general principle that might warrant appellate intervention.

51 It seems to us that the overall sentence of, effectively, 23 months' imprisonment, combined with a three year CCO, was manifestly inadequate and cannot be permitted to stand.

52 Of course, we accept Mr Holdenson's submission that a CCO is itself punitive. It plainly involves some restriction upon liberty.[16] We recognise that a CCO can promote rehabilitation, and therefore achieve positive, as well as, punitive effects.[17]

53 Even if the respondent had been sentenced only on the State offences, and not those involving grooming, a total effective sentence of 23 months, combined with a three year CCO, would have been extraordinarily lenient. It must be remembered that he was sentenced to 22 months' imprisonment on charge 6 alone. The remaining four State charges, two of which (charges 12 and 13) involved conduct that was itself highly culpable, added only one month in total to that 22 month sentence on charge 6. That degree of cumulation does not adequately reflect the gravity of the separate criminality involved in those charges.

54 It is difficult to see how a sentence so structured complies with the requirement in s 6E of the Sentencing Act regarding presumptive cumulation. The sexual penetration of a young girl by an older predator, who has 'groomed' her leading up to that act, is an offence of the utmost seriousness. That is so even where that predator can be said to have lacked maturity.

55 It is also a matter of great seriousness to possess child pornography. We were told that several of the images were particularly degrading. Yet that offending, which was entirely distinct from the sexual penetration charges, led to no order for cumulation at all. For similar reasons, that outcome cannot be accepted.

56 When these serious State offences are combined with the litany of Commonwealth offending that took place in this case, and it is seen that the respondent effectively received no additional punishment whatever, it becomes quite apparent that this sentence cannot be permitted to stand.

57 Our conclusion in that regard is reinforced by a consideration of the victim impact statements, filed by four of the respondent's victims and by the mother of one of them. These statements demonstrate that the offending has had a deeply destructive impact on each of the girls, and on their families. They are replete with references to self-harm, social isolation, mental anguish and even suicide attempts.

58 The internet offences have been just as harmful as the offences involving sexual contact. The content of all of the statements was entirely consistent with the accepted understanding of the profound harm caused by sexual offending against children.[18] The statements were an important consideration in the sentencing task.

59 As we have explained, there was no challenge to any of the individual sentences. Submissions were directed, ultimately, at the need for the overall sentence to reflect the objective gravity of the offending and the separate criminality of the offences against individual victims. We have concluded that the objective gravity of the respondent's overall offending, coupled with such mitigating factors as he can call in aid, warranted a combined State and Commonwealth sentence of the order of between six and seven years' imprisonment. The State offences, taken alone, warranted a total effective sentence of between five and six years' imprisonment. An appropriate non-parole period will have to be fixed in respect of both the State and Commonwealth sentences.

60 The resentencing in those circumstances is a task of very real complexity, and necessarily involves some artificiality. The difficulties associated with resentencing on a Commonwealth-State indictment, discussed below, include the need to ensure that there is no gap between the end of a relevant non-parole period and the commencement of a Commonwealth sentence. In addition, we will increase the sentences on the State offences of sexual penetration of a child under 16 (charges 6 and 12) to take account of the fact that the sentences imposed at first instance were lower than they would have been had the judge not combined them with a three year CCO. We have also increased the sentences imposed below for the grooming offences which we regard as very serious.

61 As we understand the position, the respondent will not be granted parole on the State matters if he still has a term of imprisonment to serve in respect of the Commonwealth sentences. That does not prevent this Court from directing that the Commonwealth sentences should commence from the expiration of the State non-parole period.[19]

62 This raises for consideration how precisely sentencing judges should go about the task of sentencing on a joint Commonwealth-State indictment, and how this Court should go about that task when resentencing after a successful appeal.

63 It should be said at once that there are very real difficulties in reconciling the principles that govern orders for cumulation and concurrency in relation to State and Commonwealth sentences.

64 When sentencing for multiple State offences, a judge is required to order cumulation or concurrency, where appropriate. The practice is to make all orders for cumulation operate by reference to what is known, in this State, as a 'base sentence'. Ordinarily, though not invariably, that base sentence will be the most severe individual sentence imposed.[20]

65 Under s 16(1) of the Sentencing Act, all State sentences of imprisonment are to be made concurrent unless otherwise directed. Thus, any cumulation must be specifically ordered. There are, however, some circumstances where State sentences must be made cumulative, unless otherwise ordered.[21]

66 Of course there are well-established rules, in relation to State offences, that govern cumulation or concurrency of sentences, both in respect of multiple victims and in respect of multiple offences. It is by no means clear how, if at all, these rules apply when it comes to sentencing for Commonwealth offences.

67 Statutory provisions in pt 2A of the Sentencing Act, such as those dealing with serious sexual offenders and serious violent offenders, do not have any direct application to the sentencing of Commonwealth offenders. These provisions are part of a State sentencing regime, and will not ordinarily have any relevance to the sentencing of an offender on Commonwealth charges. Accordingly, s 6E of the Sentencing Act will not normally be applicable to the sentencing of someone such as the respondent with regard to the Commonwealth charges. There is one qualification to that proposition. Where the conviction for the particular Commonwealth offence is, pursuant to s 6C(3), 'substantially similar to' the relevant State offence, the Sentencing Act provides that this does trigger the operation of s 6E.

68 Under State law, courts have traditionally used two different approaches in order to give effect to the requirements of totality. The first, and more orthodox, approach is to impose individually appropriate sentences, and reduce the orders for cumulation, thereby ensuring that the total effective sentence gives proper effect to the principle of totality.[22] The alternative approach is to accommodate that principle by reducing the individual sentences imposed, but ordering a greater measure of cumulation. This is generally termed the 'moderate and cumulate' approach.

69 Although both these techniques have been recognised as legitimate, this Court in DPP v KMD confirmed that the first approach 'should be clearly understood to be the orthodox approach [which] should be departed from only when some special feature of the case ... requires such a departure.'[23]

70 Section 19 of the Crimes Act 1914 (Cth) ('Crimes Act (Cth)') deals specifically with cumulative, partly cumulative and concurrent sentences. In relation to a joint Commonwealth-State indictment, ss 19(3) and (4) relevantly provide as follows:

(3) Where:

(a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and

(b) the person is sentenced to imprisonment for more than one of the offences;

the court must, by order, direct when each federal sentence commences but so that:

(c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

(d) if a non-parole period applies in respect of any State or Territory sentences--the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.

(4) For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first-mentioned sentence.

71 It appears that, when dealing with sentencing for multiple Commonwealth offences, while the Court may describe the overall intended effect of its orders by reference to terms such as concurrency or cumulation, as is the practice in State law, the Court is required to translate any such statement of intent into appropriate statements of commencement dates.[24]

72 In directing when each Commonwealth sentence is to commence, in accordance with s 19(3) of the Crimes Act (Cth), a court may adopt any one of the following techniques:

• fixing a particular date (for example, '16 April 2019');
• describing a period (for example, '12 months after the commencement of the sentence on charge 1', or 'nine months before the expiry of the sentence on charge 2'); or
• identifying a triggering event (for example, 'at the completion of the sentence imposed on charge 1').[25]

73 Where sentences for Commonwealth offences are imposed by reference to fixed commencement dates, a judge must be careful to ensure that there is no gap between sentences.

74 It seems that it is permissible, when sentencing for multiple Commonwealth offences, to select a 'base sentence', which will normally be the longest of the individual sentences imposed.[26]

75 The upshot of all this is to recognise that there are extraordinary difficulties associated with sentencing for multiple offences on a joint Commonwealth-State indictment. This is not the first time that these difficulties have been the subject of comment by intermediate appellate courts. In R v Carroll[27] the Court of Criminal Appeal, when dealing with the need to resentence a respondent on an appeal against sentence by the Commonwealth Director of Public Prosecutions, described the Commonwealth and State sentencing regimes as a 'legislative jungle in which any court sentencing a federal offender must now spend a considerable time'.[28]

The cost to the community of that time is enormous. The cost to the States which are obliged to administer these labyrinthine laws must be very great. Hunt J, in the Supreme Court of New South Wales in R v Paull (1990) 49 A Crim R 142 drew attention to the difficulties created by the new legislation and in a colourful passage observed that the question of sentence will take longer to deal with in the average trial than the question of guilt. The Court of Criminal Appeal of New South Wales in Karhani's Case endorsed Hunt J's sentiments. So, with respect, do we. We merely add that the situation is likely to be even more difficult where an offender has to be sentenced at the same time for State and federal offences. Judges, lawyers, court officials, corrections officers, police and many others must now devote many hours to threading their ways through the jungle. To what end?

77 As is generally understood, State sentences ordinarily run from the date on which those sentences are imposed. They can, however, be made to operate in the future, by means of orders as to cumulation as between those State sentences. Commonwealth sentences operate quite differently. They can be ordered to commence at any time in the future, provided there is no gap between the expiration of one sentence, and the commencement of another. One way or another, a commencement date must be stipulated.[29]

78 How then should a judge, faced with a joint Commonwealth-State indictment of the kind filed in this case, go about sentencing an offender such as the respondent? Logically, there seem to be three possibilities, as follows:

1. The judge can simply sentence for each offence on the indictment, in the order in which each offence is listed. He or she can then differentiate between them by making orders as to cumulation or concurrency with regard to the State offences and orders as to commencement with regard to the Commonwealth offences. The sentencing judge adopted that approach in the present case but, as can be seen, it was not an unqualified success.

2. The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term,[30] and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.

3. The judge can group all the Commonwealth offences together, and deal with them first. This potentially gives rise to the difficulty that State offences ordinarily operate from the date of sentence, as per s 17(1) of the Sentencing Act.[31] They cannot, as a general proposition, be made to commence at the expiration of a Commonwealth sentence, subject only to s 16(4). That subsection is in the following terms:

A court that imposes a term of imprisonment for an offence against the law of Victoria on a person already undergoing a sentence or sentences of imprisonment for an offence against the law of the Commonwealth must direct when the new term commences which must be no later than immediately after -

(a) the completion of that sentence or those sentences if a non-parole period or prerelease period (as defined in Part 1B of the Crimes Act 1914 of the Commonwealth) was not fixed in respect of it or them; or

(b) the end of that period if one was fixed.

79 One issue in relation to this third possible approach is whether an offender who has been sentenced to a term of imprisonment for a Commonwealth offence, on a joint Commonwealth-State indictment, is relevantly 'already undergoing a sentence of imprisonment', within the meaning of that expression, at the very moment, perhaps a few seconds later, when the sentence on a State charge is imposed.

80 That interpretation of s 16(4) seems somewhat problematic. For one thing, it might be thought that the process of sentencing is not, at that stage, complete. There will still have to be pronounced orders for cumulation and commencement dates, giving rise to a total effective sentence in respect of all charges, and a non-parole period, applying again to all charges, will remain to be fixed.

81 There is also an issue as to whether merely pronouncing a sentence on a single charge, before any step is taken to have that sentence entered into the records of the court, means that the offender is there and then 'undergoing' the sentence so pronounced.

82 This entire area is fraught with unnecessary complexity, and is full of hidden traps for the unwary. In R v O'Brien,[32] the Court of Criminal Appeal was confronted with an application for leave to appeal against sentence in respect of a joint Commonwealth-State indictment. Count 1 involved a charge of obtaining property by deception contrary to s 81 of the Crimes Act (Vic). Count 2 concerned a charge of obtaining a bank loan by deception contrary to s 29A of the Crimes Act (Cth). The applicant was sentenced to two years and six months' imprisonment on count 1, with a non-parole period of eight months, taking into account remissions. On count 2, the sentence was one year and six months' imprisonment, with a recognisance release order after nine months. It was directed that six months of the Commonwealth sentence be served cumulatively on the State sentence, and commence immediately at the end of the non-parole period of the State sentence. The total non-parole period would be 14 months.

83 It was said that the effective head sentence had been intended to be three years' imprisonment (two years and six months on count 1 and a further six months in respect of count 2), with a minimum term of 14 months. However, by reason of complexities introduced by various amendments to the Crimes Act (Cth), the sentencing judge failed to achieve the result that he considered appropriate. The unintended outcome was an effective sentence of two years and six months' imprisonment, with a minimum term of 17 months.

84 In (initially) allowing the appeal, the Court of Criminal Appeal held that the sentencing judge had erred in directing that six months of the Commonwealth sentence be served cumulatively upon the State sentence. It was said that, under the Commonwealth Act, as amended, there was then no power to make such a direction. The Court went on to say that, as the law then stood, there was no reason why a Commonwealth sentence could not commence as at the date of sentencing, and the State sentence commence six months later. It was further said that this form of sentence was not inconsistent with s 19(3) of the Crimes Act (Cth). Finally, it was said that s 15 of the then Penalties and Sentences Act 1985 (Vic) enabled the Court to direct that the State sentence would commence at a point six months after the imposition of the two sentences in question.

85 So complex was the problem of resentencing that the Court indicated that its judgment would not pass into record until seven days after delivery, to enable the parties to contend for a different view of the relevant sentencing regimes.

86 Ultimately, the Court held that the precursor to s 16(1) of the Sentencing Act (enabling a sentencing judge to direct that a sentence imposed upon an offender could be ordered to be served cumulatively, rather than concurrently) applied as well to State sentences that would operate in conjunction with Commonwealth sentences, so that a State sentence could commence at some stage in the future. The Court observed:

In the result, we consider that a court may direct that a sentence for a State offence and one for a federal offence be served in the order which is most practical and appropriate. It may direct that the federal sentence commence on the date of its imposition and give directions for the State sentence to be served in whole or in part cumulatively upon the federal sentence, as considered appropriate. One way of doing this involves fixing a later date for the commencement of the State sentence ... Of course, practical considerations dictate that the State sentence, if delayed in its commencement, should not be delayed beyond the end of the minimum term imposed as part of the federal sentence (whether a non-parole period or a pre-release period) ...[33]

87 It seems to us that these issues require urgent legislative attention.[34] As we have said, this is not the first occasion upon which this Court has commented upon the difficulties associated with sentencing on Commonwealth-State indictments.[35] Nor is it a matter that has gone unnoticed in other circles.[36]

88 At present, as ss 16 and 17 of the Sentencing Act and s 19 of the Crimes Act (Cth) stand, the simplest approach in a case such as this appears to be the second of the three set out above, namely, dealing with the State sentences first, and then the Commonwealth ones. That is the approach that we propose to adopt.

89 Finally, we would note that, on a joint Commonwealth-State indictment, a court must impose separate non-parole periods for State and Commonwealth offences. It is not possible to fix a single non-parole period, or make a recognisance release order, which is to cover both sets of offences.[37]

90 We would resentence the respondent as follows dealing, as we have said, with State matters first:

s 45(1)

Crimes Act 1958

s 47(1)

Crimes Act 1958

s 45(1)

Crimes Act 1958

Crimes Act 1958

s 73(1)

Use carriage service to groom person under 16 for sexual activity

Commences at the expiration of the State non-parole period

(At this stage total global sentence is 78m and 1 hour)

Use carriage service to transmit indecent communications to person under 16 years of age

Commences at expiration of the State non-parole period

Use carriage service to groom person under 16 for sexual activity

Commences at expiration of the State non-parole period

Use carriage service to procure person under 16 for sexual activity

Commences at the expiration of the State non-parole period

Use carriage service to transmit indecent communications to person under 16 years of age

Commences at the expiration of the State non-parole period

Use carriage service to transmit indecent communications to person under 16 years of age

Commences at the expiration of the State non-parole period

Use carriage service to groom person under 16 for sexual activity

Commences at the expiration of the State non-parole period

Use carriage service to transmit indecent communications to person under 16 years of age

Commences at the expiration of the State non-parole period

Commences at the expiration of the State non-parole period

Total effective sentence for State and Commonwealth offences combined:

78 months and one hour (being 36 months and one hour, cumulative upon State non-parole period of 42 months), with non-parole period of 54 months (being 12 months Commonwealth non-parole period cumulative upon State non-parole period of 42 months)

6AAA Statement: Total effective sentence for State and Commonwealth offences - 9 years with non-parole period of 6 years 6 months.

Other relevant orders: Pursuant to s 6F Sentencing Act 1991, the respondent is sentenced as a serious sexual offender in respect of Charges 6, 9, 12 and 13.

Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is life.

91 As we have explained, there is an element of artificiality in the manner in which we have gone about the resentencing process above. That is the result of our having to work, to some degree, within the limitations created by the respective Directors' decisions not to challenge any of the individual sentences imposed below. As a matter of ordinary fairness those decisions tend to constrain the resentencing exercise somewhat. It means that we have had to structure the sentence that we now impose so that it does not always provide a measure of cumulation for offences against each individual victim, even where, left to our own devices, we would have ordered such cumulation.

92 We have largely confined ourselves to ensuring, as best we can, that overall there is some greater cumulation among the various charges than originally ordered below, and some adjustments to individual sentences that are both warranted, and necessary in order to bring about a new total effective sentence that is technically efficacious. We have not sought to recommence the entire sentencing process. It should not therefore be assumed that we regard each of the individual sentences imposed below, that have been affirmed, as appropriate. Nor should it be assumed, as we have said, that the orders for cumulation that we will now make are those that we would have made, had we ourselves been sentencing the respondent.

[1] State and Commonwealth charges are distinguished by shading.