DPP v BAB [2002] VSCA 93

Court of Appeal (Vic)|2002-06-25|Before: CALLAWAY and VINCENT, JJ.A., and O'BRYAN, A.J.A.

Criminal law - Sentencing - Rape - Incest - Malicious wounding - Crown appeal - Victims aged between 11 and 15 - Offences committed between 1977 and 1981 - Respondent sentenced as serious sexual offender on all but three counts - Individual sentences inadequate to reflect gravity of offending - Cumulation inadequate to reflect numerous offences against two victims over lengthy period - Double jeopardy - Sentence of eight years' imprisonment with non-parole period of four-and-a-half years increased to sentence of 12 years' imprisonment with non-parole period of eight years - Sentencing Act 1991, s.6E.

The first is to emphasize that these were very bad examples of offences of their kind and that the sentences we are imposing are to be understood in that light. Had that not been so, or had there been deeper and earlier expressed remorse,[1] more weight might have been given to the reformation achieved by the respondent during the intervening period.

The second is to say that the concept of double jeopardy, which is reflected in the overall total effective sentence[2], does not require us to impose a sentence at or near the bottom of the range. All that it requires us to do is to give the respondent an adequate discount for having to stand for sentence twice at the instance of the Crown.[3] To give him more than that would be unwarranted and contrary to the public interest.

I agree for the reasons advanced by Callaway, J.A. and O'Bryan, A.J.A. that the appeal should be allowed and disposed of in the manner proposed by O'Bryan, A.J.A.

The respondent, who was born on 25 September 1944 and is now 57 years of age, pleaded guilty in the County Court to a presentment containing five counts of rape, one count of malicious wounding and nine counts of incest. The counts involved two female victims, twins, born on 27 September 1966 and the offences were committed at various times between 1 September 1977 and 31 December 1981 when the victims were aged between 11 and 15 years. At the time the offences were committed rape and incest carried a maximum penalty of 20 years' imprisonment and malicious wounding carried a maximum penalty of three years' imprisonment.

After hearing a plea for leniency, during which 10 witnesses were called on behalf of the respondent, including Dr Lester Walton, the sentencing judge on 6 February 2002 imposed the following sentences upon the respondent. Counts 1, 5, 6, 7, 9, 12, 13 and 15 related to the sister, J, counts 2, 3, 4, 8, 10, 11 and 14 related to the sister, L.

In relation to the sentences concerning J, it was ordered that the sentences imposed on counts 1, 5, 7, 9, 12, 13 and 15 be served concurrently with each other and with the sentence imposed on the sixth count, making a total effective sentence of six years' imprisonment.

In relation to the sentences concerning L, it was ordered that the sentences imposed on counts 3, 4, 8, 10, 11 and 14 be served concurrently with each other and with the sentence imposed on the second count, making a total effective sentence of five years' imprisonment.

The sentencing judge directed that two years of the total effective sentence of five years on counts 2, 3, 4, 8, 10, 11 and 14 be served cumulatively upon the total effective sentence of six years on counts 1, 5, 6, 7, 9, 12, 13 and 15, making a total effective sentence of eight years' imprisonment. A non-parole period of four years and six months was fixed. His Honour declared the respondent was a serious sexual offender in respect of counts 4 to 15 in accordance with s.6F of the Sentencing Act 1991 but omitted to record that fact on the quadruplicate.

When the sentence was imposed the respondent had spent 392 days in custody and the judge made a declaration pursuant to s.18(4) of the Sentencing Act 1991.

Subsequently, the Director of Public Prosecutions appealed against this sentence on the ground that the individual sentences, the total effective sentence and the non-parole period imposed were each manifestly inadequate. The following particulars were provided:

"The sentencing judge - (a) failed to adequately reflect the gravity of the offences generally and in this case in particular; (b) failed to take into account or sufficiently to take into account the aspect of general deterrence; (c) failed to take into account or sufficiently to take into account the breach of trust involved in the offence; (d) failed to take into account or sufficiently to take into account the length of time over which the offences were committed; (e) failed to take into account or sufficiently to take into account the threats and violence which accompanied the offences; and (f) gave too much weight to factors going to mitigation."

It is now necessary to set out in summary form the facts relating to the victims, the respondent and the offences.

The victims were born from a de facto relationship between the mother C and a father M in 1966. The twins spent about four years in a children's home. Subsequently, C met the respondent and a de facto relationship commenced in 1969. A male child was born of the relationship in October 1970 after which the twins came to live with C and the respondent at Carrum. In mid 1977 C, the respondent and the twins moved to a rented house in St Arnaud where the respondent established an electrical business.

The first rape offence involving J commenced in September 1977 and the first rape offence involving L commenced in December 1977, in St Arnaud.

In November 1978 C and the respondent married. It was assumed by the Crown for the purpose of counts 7 to 15 inclusive that following the marriage the twins became the step-children of the respondent. Accordingly, the acts of sexual penetration with each of the twins that took place after the marriage were incestuous and punishable pursuant to s.44 of the Crimes Act 1958. It is unnecessary to consider the actual relationship in law between the respondent and the twins for no point was taken in the County Court, or on appeal, as to the actual relationship.[4]

The twins continued to live at St Arnaud until April 1981 when C and the respondent separated. C took L with her and the respondent brought J to Melbourne. J was subjected to acts of sexual penetration of various kinds up to 31 December 1981 when she left the respondent and returned to her mother and L.

In 1989 to 1990 the twins, with a counsellor, approached police at Ballarat, but no investigation into their complaints was commenced. Investigations commenced in mid-July 1999, resulting in charges being laid by the police in January 2001.

The respondent was born in September 1944, the youngest child in a family of five. He left school at age 14 and worked as a mechanic for about 15 years, without formal training or qualifications. When the respondent commenced offending he was aged 33 and living in a de facto relationship with the mother of the twins. The relationship between the respondent and VB, his current common law wife, commenced in late 1983 and has continued. VB had a daughter, CB, aged about 12 when the respondent commenced to live with her.

The personal circumstances of the respondent relevant to mitigation of the sentence will be referred to subsequently.

At the outset, it is necessary to say that by reason of the tender age of the victims when the offences occurred and the lengthy period that passed before the offences became known to the police, over 20 years, precise details of the facts and circumstances relating to each count cannot be expected.

Count 1: Rape of J - September 1977, at St Arnaud

In September 1977, around the time of J's eleventh birthday, the respondent asked her if he could have sexual intercourse with her. A promise was made that, if she agreed, no similar request would be made of L. The following night the respondent took J into the lounge room and asked her to remove her pants and lie on the floor. The respondent said he loved her. When the respondent commenced to penetrate her vagina J cried in pain and asked him to stop. He completed the act of penetration and said: "Stop crying you stupid bitch and put your pants on. You will learn to like this after a while. If you tell anyone I will do the same thing to your sister." J was confused about what had happened and cried in her room.

On a Saturday morning in December 1977, L was in the house alone with the respondent watching television when the respondent came into the room and, taking hold of her, proceeded to pull down her shorts. Then he forced her to lean over a chair and had vaginal intercourse with her from behind. She suffered pain and asked him to stop, but he continued. During the act he verbally abused her, saying: "You're a slut, you're a whore and that's all you're good for." He threatened to kill J, C and C's son, S, if she told anyone what had happened.

Count 3: Malicious Wounding of L, December 1977 at St Arnaud

The evening after the chair rape, L and the respondent were in the kitchen together where L was peeling potatoes with a knife. He picked up the knife and said she was not to tell anyone what he had done to her. L said that she would not tell anyone, but the respondent proceeded to stab her on the right side of her breast. L was unable to obtain help from her mother. The respondent returned in a calmer attitude and gave her some first aid by wrapping a bandage around her chest to stop the bleeding.

Count 4: Rape of L at St Arnaud, between December 1977 and January 1978

On a date unknown, when L was 11 years old, the respondent entered her bedroom and shone a torch on her. He told her if she lay still it would not hurt; he removed her underpants as she lay crying. He told her to open her legs but she refused. He penetrated her vagina with his penis and continued until he ejaculated.

Count 5: Rape of J in September 1978, at St Arnaud

When J was almost 12 years of age C was in hospital giving birth to a male child. J and L were staying at the home of a neighbour until the respondent brought them home. J was made to sleep in his bed with him. On one occasion he drove J in his van to an unknown location in St Arnaud and had sexual intercourse with her without consent.

In October 1978 the respondent was working as a security guard in the St Arnaud area. He drove a van equipped with a mattress and carried a shotgun. On one occasion J and L accompanied him on his round, sleeping in the back of the van. The respondent stopped the van and entered the rear portion saying that he wanted to have sexual intercourse with both J & L. J, being protective of L, said he could have sexual intercourse with her if he desisted from doing so with L. He picked up the shotgun and threatened the girls, who were frightened. He said he would kill J and dispose of her body. J again offered to allow him to have sex with her and not with L. He took J out of the van and had vaginal sexual intercourse with her until he ejaculated. He told her he was angry because she had prevented his having sex with L.

Count 7: Incest with J at St Arnaud, between September and December 1979

In late 1979, when C and L were staying in an hotel at Charlton and the respondent and J were together in the house in St Arnaud, J was required to occupy the double bed with the respondent. They were both naked. The respondent kissed her, rubbed her clitoris with his hand and then had penile sexual intercourse with her until he ejaculated inside her. On other occasions during the weekend sexual intercourse occurred in a similar manner, but the acts were not charged as separate counts.

Count 8: Incest with L at St Arnaud between September and December 1979

The incident involving L occurred on a weekend when C and J were in Charlton and L was in the home with the respondent. One evening when they were in bed together naked the respondent asked L to kneel and he then had vaginal sexual intercourse with her from behind. This conduct is representative of other occasions when L was in the house with the respondent and C and J were in Charlton.

Count 9: Incest with J between January and December 1980 at St Arnaud

When J was aged between 13 and 14 an incident occurred near Bendigo when J was in a motor vehicle with the respondent. He stopped the vehicle, put a blanket on the ground and required her to undress. She did so and the respondent performed cunnilingus upon her before having sexual intercourse with J astride his body. The penetration was painful and she screamed, but the respondent continued until he ejaculated inside her vagina. He threatened to harm the family if she told anyone about the incident.

Count 10: Incest with L at St Arnaud, between September and December 1980

Late in 1980 when L was aged 14, the respondent and C removed L from school so she could assist in the family electrical shop. On one occasion the respondent had sexual intercourse with her on the floor of the lounge room at the back of the shop. J came home from school unexpectedly and observed the incident. This conduct is representative of other occasions when L had sexual intercourse with the respondent or performed fellatio on him in the shop.

Count 11: Incest with L in April 1981 between St Arnaud and Warracknabeal

On the day the respondent and C separated the respondent drove the family to Warracknabeal with L in the front seat next to him and C in the front passenger seat. Whilst driving, the respondent unzipped his fly and exposed his penis. He put his hand on L's head and said that she knew what he wanted her to do. L then performed fellatio on him in the presence of C who did not object or act to protect her daughter. This conduct is representative of similar acts of sexual conduct between the respondent and L in the presence of C.

At the end of April 1981, after C and L moved to Warracknabeal, the respondent told J that her role was now to be his wife and they would sleep together permanently. They moved into a flat in Chelsea in May 1981. The respondent told J that he loved her and had sexual intercourse with her.

This conduct is representative of similar acts of intercourse which occurred in the Chelsea flat. They lived as man and wife in the flat and presented as father and daughter in public.

Count 13: Incest with J between May and July 1981 at Chelsea

On an occasion between May and July 1981, the respondent objected to J's attendance at a Young Talent Time School. After an argument the respondent behaved violently towards J, ripping off her pants and smacking her on the head. He forced her over a lounge chair and had sexual intercourse with her after which he called her worthless.

Count 14: Incest with L between May and July 1981 at Chelsea

A few days after the Young Talent Time School argument the respondent persuaded C to allow J to visit her at Warracknabeal and to allow L to visit him. When L came to Chelsea and when she was in bed the respondent forcefully penetrated her vagina with his penis until he ejaculated.

Count 15: Incest with J between July and December 1981 at Chelsea

An incident occurred at Chelsea when the respondent made J undress and he penetrated her vagina with a vibrator. The following day J left and returned to Warracknabeal.

The brief description of the conduct involved in the 15 counts reveals depravity, violence, threats of violence and abuse of trust on a scale of heinousness seldom seen in court. The trauma, physical and emotional, suffered by the victims from time to time over about four years and remembered by them over the past 20 years or so, was revealed in the court below when Victim Impact Statements were read aloud in court by the prosecutor without objection. L is now married, but stated that she cannot enjoy a normal loving sex life with her husband. She said she experienced violence, rapes and name-calling over the years and pleaded for help from her mother which was withheld.[5] For 20 years she has remembered her horrific treatment and wanted justice. Graphically she said:

"This man [the respondent], raped me, he bashed me, he threatened me with a gun and he stabbed me because I told my mother he was raping me. He degraded me."

J described in her statement her lost years of innocence as a child. She described her circumstances in these words:

"[The respondent] showed me how cruel and harsh this world could be. He took my innocence and showed no mercy, a man with no goodness in his soul. He touched me and hurt me and took my faith in human beings, made me believe that no-one cared, used me like a personal possession, raped me violently, bashed me, took all my dignity and made me feel worthless. The two people in my life that should have nurtured me showed me no love, only hatred and pain."[6]

I have detailed but a small portion of the Victim Impact Statements. His Honour accepted them, observing:

"I accept that both victims suffered very considerably and in the manner described in those statements as a result of your actions. I found those statements, I should add, both moving and compelling."

When the respondent was arrested and interviewed by the police on 11 January 2001 he denied the offences. Indeed, he verbally attacked the victims and suggested that they were motivated by hatred of him. He continued to deny the allegations when he was first seen by Dr Lester Walton on 23 February 2001. It was not until June or July 2001 that negotiations began between the Crown and the respondent's lawyers as to pleas of guilty. On 9 September 2001 at the Melbourne Magistrates' Court the respondent pleaded guilty to the 15 offences now in the presentment.

The sentencing judge was informed by the prosecutor that the respondent was to be dealt with as a "serious sexual offender" for each sexual offence beginning with count 4, and was provided a chronology and a summary of the facts. Counsel for the respondent informed the judge that the evidence he would call would show not a promise of rehabilitation in the future but a demonstration of rehabilitation over the past 20 years.

Dr Walton prepared a report on 25 January 2002. He took a history from the respondent which revealed that he was illiterate and substantially innumerate, but had overcome these deficiencies to develop advanced mechanical and electronic skills. The respondent informed Dr Walton that his former wife, C, had been an alcoholic and that their sexual relationship had been substantially defunct for several years before he sexually abused his step-children. Dr Walton said in court that when he first saw the respondent he was in a state of denial and not remorseful, but when he saw him again, a year later, reality had set in and he appeared genuinely sorry. Dr Walton opined that on the basis of the past history the respondent posed some risk to the community but, having regard to the lengthy period of time during which he had not reoffended, he considered the risk was now minimal.

Evidence given by the respondent's current common law wife, VB, and VB's daughter CB, born in 1971, revealed that the respondent established a new relationship with VB in about January 1983 and no offending occurred thereafter. This was of significance since CB was aged 11 years when the new relationship began and was always treated properly by the respondent.

A body of evidence called for the respondent described him as a hard-working and responsible person who engaged in a number of activities and interests. The witnesses all considered the respondent's offences as out of character.

Counsel relied upon remorse evidenced by the early plea of guilty and rehabilitation over two decades as matters lessening the need to give much weight to specific deterrence. Reliance was also placed upon the circumstance that imprisonment would be difficult for the respondent because he would require protective custody.

The sentencing judge recognised that the facts were very serious and unpleasant and that the victims suffered very considerably. The judge, an experienced criminal judge, noted: "I do not recall more serious examples of these sorts of crimes coming before me." He considered the aggravating aspects included gross breach of trust, pre-planning, aggression and force and that offending took place over a considerable period of time, four years and upwards.[7]

In imposing sentences on counts 4-15 his Honour remarked that he had to pay regard to the provisions of Part 2A of the Sentencing Act 1991 relating to the sentencing of serious sexual offenders, but made no specific reference to s.6E. His Honour imposed on each count the sentences set out in paragraph [6] and made the cumulation orders set out in paragraphs [7], [8] and [9].

"The crimes committed in respect of each victim were committed in the one course, albeit an extended course of criminal conduct in respect of each, and save for some accumulation in respect of the two victims, I see no reason to make any order altering that which follows according to law, namely that the sentences I pass be served concurrently."

Section 6E provides:

"Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term."

Two serious errors infected the exercise of the sentencing discretion, in my opinion. First, his Honour treated the crimes in respect of each victim as committed in the one course of criminal conduct over an extended course of criminal conduct. In my view the correct course required the judge to treat the crimes committed in respect of each victim as separate criminal conduct. In merging all the crimes into one course of conduct there was considerable risk that the total criminality would be undervalued. Second, his Honour did not give sufficient effect to s.6E which required that sentences of imprisonment imposed on a serious offender are to be served cumulatively unless otherwise directed by the Court.[9] The judge's approach inverted the provisions of the Sentencing Act with respect to cumulation in serious offender cases.

Mr Coghlan submitted that the individual sentences, the total sentence and the non-parole period are so manifestly inadequate as to constitute error in principle.[10] He submitted that the conduct in respect of each victim amounts to rape in six instances and incest in nine instances, often accompanied by violence or threats. Mr Coghlan's argument was that the total sentence for the various sentences was manifestly inadequate, falling below 50% of the maximum sentence for a single count of rape. He argued further that the sentences for the offences other than rape were extremely lenient and also that there was no cumulation of sentences in the case of each victim, notwithstanding the long period of time over which the offending took place and the separate offending involved.

The submission highlighted the serious character of the offending involving young children in the care of the respondent as a father figure, the violence, including wounding in the case of L, and the threats made to J of physical harm, if the victim did not submit to the respondent's sexual demands. Given the degree of seriousness of the offending, Mr Coghlan submitted that sentencing error so infected the sentences that higher sentences should be imposed by this Court, that greater cumulation was required and a higher non-parole period fixed if a new head sentence is imposed.

Finally, Mr Coghlan submitted that whilst some regard should be given to the 20 year delay since the offending ceased and the fact that the respondent had embarked upon a new and reformed lifestyle, it should also be borne in mind that the victims were too frightened and embarrassed to speak to anyone about the offences for many years.

Mr Holdenson, Q.C. relied very strongly upon the pleas of guilty, arguing that they were significant because they were made early and saved much time and inconvenience to witnesses, particularly to the victims, who were saved from the trauma and distress of giving evidence. There can be no doubt that the sentencing judge gave weight to the pleas of guilty and to the evidence showing remorse, for he said so in his sentencing remarks.

Mr Holdenson also relied upon the evidence showing that the respondent had rebuilt his life when he commenced his relationship with VB and became a law-abiding and hard-working member of the community. That the respondent was of good character, save for the four year period of offending, was relied upon by Mr Holdenson.

Counsel submitted that since the respondent had rehabilitated himself and was unlikely to reoffend less weight had to be given to the sentencing principle of specific deterrence. Accordingly, he said, it was important that the overall sentence did not undermine the respondent's rehabilitation.

Mr Holdenson submitted that counsel for the Crown did not seek aggregation of sentence in the court below and his attitude probably influenced the judge. I do not consider the Crown submitted it did not want any aggregation. The words used by counsel simply pointed out the obvious, that total aggregation would produce a totally inappropriate overall sentence.

Mr Holdenson submitted that the sentencing discretion did not miscarry in terms of the total effective sentence and the non-parole period. Hence, the appeal by the Director did not fall within the class of case in which it is appropriate for the Director to appeal.[11] Counsel further submitted that, if the Court were to interfere with the sentence, the principle of double jeopardy would require the Court to reduce the sentence below that which otherwise should have been imposed.

I am firmly of the view that the sentencing discretion miscarried in the court below and the discretion must be re-exercised in this Court. In my opinion the sentencing judge erred in two ways. First, he imposed individual terms of imprisonment which did not adequately reflect the gravity of the offence; particularly was this so with regard to all the rape counts. Each sentence imposed for rape was manifestly inadequate in all the circumstances. Second, he failed to make orders for cumulation to produce a total effective sentence reflecting the overall seriousness of the offending.[12] Save for the order that two years of the total sentence imposed on the seven counts relating to L should be cumulative with the total sentence imposed with regards the eight counts relating to J, all fifteen sentences were to be served concurrently. In addition, and by way of example, the seriousness of the malicious wounding to L called for a cumulation order.

The respondent made the lives of the two young girls, for whose care he was largely responsible when C became incapable of caring for them due to alcohol and general neglect, miserable in the extreme. He exploited for his own sexual purposes persons who were vulnerable by reason of their tender years and deprived of a caring mother. The offences were of a continuing nature for four years and very serious breaches of the criminal law. The many offences were very bad examples of their type calling for condign punishment.

The offending had grave consequences for the victims. In the 20 year period during which the respondent was able to re-establish his life and probably put out of his mind his misconduct, the victims had to live with their memories of defilement, disgust and fear. Their innocence and their childhood were betrayed and they were in a position of entrapment.

The mitigating circumstances were important but were not such as to justify the leniency extended to the offender. No two cases are the same, but it can be said that this case is one of the worst to come before this Court. Perhaps the offending in The Queen v. MWH[13] bears similarity to the circumstances in the present case. That case was an appeal by the offender who had received a sentence of 12 years' imprisonment with a non-parole period of nine years. The presiding judge, Callaway, J.A., considered the effects of delay and rehabilitation on sentencing when offences were committed between 28 and 38 years before the Court imposed punishment.[14] He also considered two areas of principle - the non-parole period and appellate intervention.[15] His Honour's observations also apply to the present case without the need for elaboration.

It is necessary for the Court to re-sentence the respondent, in my opinion, by fixing new sentences, ordering different cumulation, discounting the total effective sentence for the principle of double jeopardy and fixing a new non-parole period. Before I indicate the sentences I propose on each count, I need to say that I have had regard to the stage in the proceedings at which the respondent indicated an intention to plead guilty to the offences.

For the reasons I have given I would propose that the appeal of the Director of Public Prosecutions be allowed. I would propose that the sentences passed below should be quashed and that the respondent should be resentenced, upon the basis that the sentencing discretion miscarried in the Court below in two ways: first, in imposing individual sentences on some counts which were manifestly inadequate; and, second, in failing to direct that some sentences of imprisonment be served cumulatively on other sentences of imprisonment imposed by the Court. Mr Coghlan invited the Court to resentence on the individual counts at the level appropriate had the sentencing judge imposed adequate sentences, but to reduce the overall sentence "[h]aving regard to the element of double jeopardy and the principle that a sentence somewhat less than might otherwise have been imposed should now be set."[16] This is an appropriate course to take to reflect the gravity of the offending.

It is convenient to consider individually all the counts which related to J (1, 5, 6, 7, 9, 12, 13 and 15). I would single out counts 1 and 6 - rape, when the victim was 11 and 12 years of age, accompanied by verbal threats and, in the case of count 6, the threatening presence of a shotgun as the most serious rape offences. I would propose that a sentence of seven years and six months' imprisonment be imposed on each of counts 1 and 6. On count 5 - rape when the victim was aged 12 years a sentence of six years should be imposed, in my opinion. I would propose that on the incest counts, 7, 9, 13 and 15 a sentence of five years' imprisonment on each count will be appropriate. Count 12 is a representative count of incest when the victim was aged 14 years. She became the sexual plaything of the respondent for a month when they were living in the same house and the respondent used her for sexual purposes as he would have done had she been his wife. I would propose a sentence of imprisonment of five years.

I consider it is appropriate to order that one year of the sentence imposed on count 1, one year of the sentence imposed on count 5 and six months of the sentence imposed on count 7 be served cumulatively upon the sentence of seven years and six months imposed on count 6. Otherwise, every term of imprisonment is to be served concurrently. The total sentence in respect of J will be 10 years.

It is now necessary to consider individually all the counts which relate to L (2, 3, 4, 8, 10, 11 and 14). I would single out count 2 - rape, when the victim was aged 11 as the most serious rape offence for the rape was accompanied by violence and abuse. I would propose a sentence of seven years and six months' imprisonment be imposed. On count 4 - rape, when the victim was aged 11, I would propose a sentence of six years. On count 3 - malicious wounding, I would propose a sentence of 12 months. On counts 8, 10 and 14 - incest, I would propose five years' imprisonment on each count. On count 11 - incest, when the victim was 14 or 15 years of age, I would propose a sentence of imprisonment of six years. This offence was committed in circumstances of depravity in a motor vehicle in the presence of her mother. This conduct was representative of similar acts of sexual conduct between the respondent and L in the presence of her mother.

It is appropriate, in my view, to order that six months of the sentence imposed on count 3 be served cumulatively upon the sentence of seven years and six months imposed on count 2. I would propose that one year of the sentence imposed on count 4 and one year of the sentence imposed on count 11 be served cumulatively on count 2. Otherwise, every term of imprisonment is to be served concurrently. The total sentence in respect of L will be 10 years.

The counts chosen for cumulation, in the case of J, counts 1, 5 and 7, and in the case of L, counts 3, 4 and 11, disclosed grave offences appropriate in the circumstances for additional punishment. I have not ordered cumulation in respect of the sentences on other counts to avoid a sentence that would infringe the principle of totality.

It is also appropriate, I consider, that part of the total effective 10 year sentence imposed in respect of L should be served cumulatively upon the total effective 10 year sentence imposed in respect of J. I propose that two years of the former be served cumulatively upon the latter making a total effective sentence of 12 years. Had it not been for the principles of double jeopardy and totality to which I have already adverted, I should have proposed a greater measure of cumulation at this stage.

It remains to fix the minimum period to be served before the respondent will become eligible for parole. The courts have said that a non-parole period should not be fixed according to a mathematical formula. It is a discretionary decision taking into account relevant factors, such as the age of the offender, prospects of rehabilitation, specific deterrence, the likelihood of reoffending etc. I propose that a non-parole period of eight years be fixed by the Court, a wider gap than is usual to reflect those factors peculiar to this case. The Court will declare that the period of time the respondent has already spent in custody is to be reckoned as time already served.

For these reasons I would allow the Director's appeal and make orders accordingly.

[1] The sentencing judge said only that he was "prepared to accept on balance" that the respondent was "to some extent at least, remorseful". See also [40] below.

[2] The individual sentences, and the total effective sentences in respect of each victim, have not been discounted: see [63] and [69] below and compare Director of Public Prosecutions v. Glazner [2001] VSCA 204 at [11].

[3] R. v. Boxtel [1994] VicRp 54; [1994] 2 V.R. 98 at 104-05; R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522 (point 4); and Lowndes v. R. [1999] HCA 29; (1999) 195 C.L.R. 665 at [15]. I do not think that Kirby, J. intended anything different by his observation in Dinsdale v. R. [2000] HCA 54; (2000) 202 C.L.R. 321 at [62] (second last sentence): see and compare R. v. Leucus (1995) 78 A.Crim.R 40 at 52 (especially the sentence beginning "In choosing the sentence to be substituted ...").

[4] Compare R. v. Frith and Stewart [1914] VicLawRp 97; [1914] V.L.R. 658.

[7] Strictly speaking, it may have been less, because the first and last counts charged offences committed between dates. Nothing turns on the point having regard to the way the plea was conducted.

[8] Plea and sentence transcript at p.177.

[9] The effect of a provision like s.6E was explained in R. v. Mantini [1998] 3 V.R. 340.

[11] Dinsdale v. The Queen [2000] HCA 54; [2000] 202 C.L.R. 321; R. v. Clarke (supra).

[12] Quite apart from s.6E, a greater measure of cumulation was called for on ordinary principles: see, for example, R. v. O'Rourke [1997] 1 V.R. 246 at 253-254 and 256 and R. v. Natoli [2001] VSCA 243 at [15].

[14] Callaway, J.A. at paras.[17]-[19].

[15] Callaway, J.A. at paras.[22]-[26].

[16] R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522. See also R. v. Boxtel [1994] VicRp 54; [1994] 2 V.R. 98 at 104 and R. v. Allpass (1994) 72 A.Crim.R. 561 at 562.

At a glance

Court

Decision date

Before

Source

Judgment (104 paragraphs)

Parties