DPP v Felton [2007] VSCA 65

3 For the reasons given by Kellam AJA I agree that the appeal should be allowed and the respondent should be re-sentenced as his Honour proposes. I also endorse the helpful analysis of his Honour as to the circumstances in which it is appropriate to impose an aggregate sentence for indictable offences.

4 This is an appeal brought by the Director of Public Prosecutions pursuant to s 567A of the Crimes Act 1958. The appeal is brought against sentences imposed by the County Court at Melbourne on 15 September 2006 upon the respondent, Abbe Jane Felton.

5 On 4 September 2006 the respondent pleaded guilty to 15 counts of theft. On 15 September 2006 the respondent was sentenced to an aggregate sentence of nine months' imprisonment in respect of Counts 1, 3, 4, 5 and 7 appearing on the presentment, and it was ordered that she undertake a Community Based Order ("CBO") for a period of two years with special conditions in relation to Counts 2, 6, 8, 9, 10, 11, 12, 13, 14 and 15 appearing on the presentment. Furthermore, the learned sentencing judge ordered that the aggregate term of nine months' imprisonment be wholly suspended for a period of two years.

The factual background

6 The factual circumstances under which the respondent committed the offences to which she pleaded guilty are that from February of 2002 she was employed as a receptionist/administration officer by Ideation Pty Ltd. In the course of her employment the respondent came to be responsible for the payment of outstanding invoices to creditors of her employer at the direction of its directors. The company which employed the respondent operated two accounts with the ANZ Bank, both of which were linked to an internet banking facility which was password protected. Many suppliers requested that their invoices be paid via this internet banking facility and in order to facilitate the prompt payment of invoices the respondent was given access to the online banking facility, and advised of the passwords necessary to operate that facility. Between 14 July 2003 and 26 July 2004 the respondent used the internet banking facility to make a total of 102 unauthorised electronic transfers from the two bank accounts to one of nine accounts that were either in her name, or controlled by her. The total amount of those unauthorised transfers was $158,807. None of the 102 payments related to any invoices actually received by the legitimate business of the employer of the respondent. She resigned her position on 30 July 2004 and soon after her resignation her criminal activities were detected. The respondent made full and frank admissions as to the fact of her thefts when interviewed by police in February of 2005. However no adequate explanation was given as to the precise disposition of the monies stolen. In the course of her record of interview she told police that she had used the money to "help pay the bills". She told police that substantial funds of money were put into her partner's account without his knowledge.

The Grounds of Appeal

7 The Director of Public Prosecutions brings this appeal because he considers that the sentences imposed were inadequate and considers, as s 567A of the Crimes Act requires him to do, that an appeal should be brought in the public interest. The grounds of appeal on which the Director relies are:

1. The imposition of a community based order and the aggregate sentence of imprisonment are both manifestly inadequate and the suspension of the whole of that term for an operational period of two years has resulted in a sentence which is manifestly inadequate.

2. The learned sentencing judge erred in imposing an aggregate sentence, alternatively in imposing an aggregate sentence of nine months in the circumstances of this case.

The evidence upon the plea

8 The evidence put before the Court on the plea was that the respondent who was born on 29 September 1983 was aged between 19 and 20 years at the time of the commission of the offences. She had entered pleas of guilty at the committal in February 2006, at which time the matter proceeded by way of hand-up brief. Forensic psychologist, Jeffrey Cummins, gave evidence before the sentencing judge, in the course of which he stated that he had obtained a history from the respondent that she had had a dysfunctional upbringing, and had not "adequately inviduated" from her mother. In turn she had formed a dysfunctional and problematic relationship with her de facto partner when she was aged 17 years. The judge was informed that the respondent had not informed her mother as at the date of the plea of the fact that she had been charged with the offences. It was said that the de facto partner of the respondent was not in regular paid employment, was a heavy user of cannabis and was "extremely controlling". Mr Cummins expressed the opinion that the respondent suffered from "battered wife syndrome" as she had been physically and emotionally abused by her de facto partner. He contended that the reason for the offending by the respondent was that she wished to please her partner by providing for him. Mr Cummins stated that in psychological terms she was "under duress to re-offend".

9 The hearing of the plea was adjourned from 24 August 2006 to 4 September 2006 to enable the mother of the respondent to be informed of the offences and to give evidence. The mother of the respondent did give evidence on the adjourned date and stated that she had observed "the aftermath" of assaults of the respondent by her partner, being bruises on her arms and legs. She had also observed damage to the walls of the respondent's home caused by the respondent's partner and observed a knife and baseball bat on his side of their bed. She gave evidence that she had encouraged the respondent to leave her partner and take the children to live with her and that the respondent had done that, although the respondent's partner continued to attend her home every day to see the children.

The submissions of the Director as to Ground 1

10 In respect of ground one, that is the submission by the Director that the sentence was manifestly inadequate, it is submitted that the circumstances of the case mandated an immediate custodial sentence well in excess of the nine months that her Honour imposed and then wholly suspended. In support of this ground the Director contends that in fixing an aggregate sentence of imprisonment and in ordering that the sentence be wholly suspended for a period of two years, the sentence of the judge failed to reflect the gravity of the offence, failed to take into account issues of specific deterrence and failed to take into account the aspect of general deterrence. In addition, it is contended that her Honour gave too much weight to factors going to mitigation, failed to give sufficient weight to the number of offences, and to the length of the period of offending, and to the maximum penalties applicable to the offence of theft. Furthermore, it is contended that the sentencing judge gave insufficient weight to the breach of trust demonstrated by the respondent and failed to take into account sufficiently the effects of the offending upon the victim. It is further argued that the sentencing judge gave insufficient weight to the fact that Counts 1 to 8 and 10 to 15 were rolled up counts. In particular, the Director relies upon the gross breach of trust involved in the thefts and the fact that the total sum stolen ($158,807) was significant, and that the financial and emotional consequences to her then employers was also of significance. In addition, it is submitted by the Director that it is most relevant that the respondent cloaked many of her withdrawals with the appearance of legitimacy by using actual credit details, that she used nine separate bank accounts in which to deposit the stolen money and that the money has not been recovered, and furthermore that the circumstances in which the money has been spent are not known. It was argued that in this case general deterrence and denunciation, as well as specific deterrence, were of great relevance and required a significant term of imprisonment with an immediate custodial component.

The submissions of the Respondent as to Ground 1

11 The respondent, through her counsel, submits that in all the circumstances the sentences imposed cannot be characterised as being manifestly inadequate. The respondent relies upon the early plea of guilty, and upon the extensive admissions made by the respondent together with her remorse and lack of previous convictions. Her counsel points to her young age at the time of the offending and to the evidence before the learned sentencing judge that she was vulnerable and required both professional treatment and support, and the support of her mother. The respondent, through her counsel, submits that rehabilitation in the particular circumstances was of particular significance and in these circumstances it was open for the learned sentencing judge to impose a sentence which would maximise the respondent's prospects of leading a law abiding life.

The submissions of the Director as to Ground 2

12 The second ground upon which the Director relies is the fact that the learned sentencing judge imposed an aggregate sentence of nine months' imprisonment for Counts 1, 3, 4, 5 and 7. In doing so her Honour relied upon the recently amended s 9 of the Sentencing Act 1991 which now provides:

"(1) If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.

(1A) Despite sub-s (1), a court must not impose an aggregate sentence of imprisonment if

(a) the offender is a serious offender within the meaning of Part 2A and any of the offences of which the offender is convicted is a relevant offence within the meaning of that part; or

(b) the offences comprise at least one offence committed by the offender while released under a parole order and one offence committed at another time.

(2) The term of an aggregate sentence of imprisonment imposed in accordance with sub-s (1) must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences in accordance with this Act if the Court had imposed a separate sentence of imprisonment in respect to each of them.

(3) If a court proposes to impose an aggregate sentence of imprisonment, it must before doing so announce in open court, in language likely to be readily understood by the offender

(a) the decision to impose an aggregate sentence and the reasons for doing so; and

(b) the effect of the proposed aggregate sentence."

13 It is submitted by the Director that this ground of appeal raises an important issue for this Court's consideration. To his belief it is the first time that an aggregate sentence imposed by a judge of either the County Court or Supreme Court is to be considered by the Court of Appeal. The Director argues that on its face the amended section does not define clearly the nature and scope of the power to impose an aggregate sentence, nor does it define the manner in which a judge can properly exercise the discretion to use that power.

14 The Director submits that in the circumstance of this case it was not open to the sentencing judge in the sound exercise of her discretion to impose an aggregate sentence. It is conceded that as the counts on the presentment were "a series of offences of the same or a similar character" the judge had power to impose an aggregate sentence pursuant to s 9(1) of the Act, but that in doing so her discretion miscarried. In particular, it is submitted that by reason of the fact that the five counts for which the aggregate sentence were imposed were all "rolled up counts" of theft, incorporating as they did, 70 individual instances of theft involving $91,971.91 over a 12 month period, a degree of cumulation was required. Furthermore, it is submitted by the Director that the imposition of an aggregate sentence in the circumstances of this case, does not enable scrutiny of the sentence, and in particular of the means by which the sentencer has arrived at the ultimate sentences. For instance, it is argued, that it is not clear whether her Honour would have imposed total concurrency if individual sentences had been imposed, or alternatively whether or not the aggregate sentence imposed by her allowed for a degree of cumulation between the counts. Either way, it is submitted that the sentence is inadequate. The Director contends that total concurrency in the circumstances of this case was inappropriate, but if there were to be any cumulation, then inappropriately compressed sentences were imposed for the individual counts in order to reach a nine month aggregates sentence. It is submitted that either way, the objective gravity of the respondent's offending was undervalued by the sentencing judge.

Aggregate Sentences

15 In order to consider the submission made by the Director that in the circumstances of this case the imposition of an aggregate sentence was not open to the sentencing judge as a proper exercise of her discretion, it is necessary to examine the history and the nature of aggregate sentences. In 1997, the Sentencing and Other Acts (Amendment) Act gave power to magistrates to impose an aggregate sentence. The Second Reading Speech of the then Attorney-General stated that the amendment was being introduced "to restore the faith and confidence of the public in the criminal justice system".[3] In her Second Reading Speech and under the heading "Simplifying Sentencing" the Attorney-General made the following comments on the purposes of aggregate sentencing in the Magistrates' Court:

"There is currently no power to pass one general sentence of imprisonment covering several charges.

The Court must first set individual sentences for each charge and then determine an overall sentence to reflect the criminality of the whole conduct. The Court must then make orders for concurrency or cumulation of sentences to arrive at a total effective sentence of imprisonment. In cases where multiple charges are before the Court, this exercise can take on an air of artificiality and increase the potential for calculating errors.

The Bill gives magistrates the power to impose an aggregate sentence of imprisonment when sentencing for offences which are based on the same facts, or which are connected. The magistrate will be able to decide on a single appropriate sentence which reflects the criminality of the whole conduct before the Court ...

The aggregate sentence power is expected to be a useful additional sentencing tool in the Magistrates' Court which will simplify the sentencing task and reduce the risk of technical sentencing errors. To ensure that this power is exercised appropriately, the magistrate will be required to announce the reasons to impose this sort of sentence and the reasons for doing so."[4]

16 Accordingly, the introduction of the power of aggregate sentencing in the Magistrates' Court in 1997 empowered that court to impose a general sentence of imprisonment for two or more offences in certain circumstances. It is clear however that the power to impose a general sentence of imprisonment did not apply to either the County Court or the Supreme Court.[5] In R v Beaumont, Brooking JA gave detailed consideration to the issue of general sentences. He said:[6]

"The general sentence of imprisonment was formerly employed in Victoria[7] but that time has long since passed: it is well known that it has for many years been the practice in this State to pass individual, not general, sentences of imprisonment where there are more counts than one."

" ... It is clear that in Victoria, save perhaps in unusual circumstances of which I cannot for the moment conceive, a general custodial sentence, assuming it to be lawful, should not be passed, since to do so conflicts with the principles governing the way in which sentences for more offences than one should be arrived at and does not permit the proper consideration of sentences on appeal."[8]

18 However, the amendment of s 9 of the Sentencing Act referred to above, and which became operational insofar as the County Court and the Trial Division of the Supreme Court are concerned[9] on 16 August 2006, now clearly provides that a general sentence of imprisonment in certain circumstances is lawful. In the Second Reading Speech for the new s 9 the Attorney-General, the Hon Rob Hulls, stated that:

"The Bill provides the Supreme and County Courts with the option of imposing an aggregate sentence."[10]

"An aggregate sentence can be a more flexible and pragmatic option than imposing an individual sentence for each offence. It enables the Court to impose a sentence reflecting all of the offender's conduct. In some cases, this will enable the Court to more clearly explain to the community the total sentence that it is imposing on an offender."

20 If the intention of the legislation is to enable the Court to "more clearly explain to the community" the total sentence being imposed on an offender, the question arises as to whether such a sentence is intended to replace orders for cumulation of sentences, which may otherwise be made were it not for the power to impose an aggregate sentence. First, it should be observed that by reason of s 16 of the Sentencing Act ".....every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment ... imposed on that person, whether before or at the same time as that term." Section 9 of the Sentencing Act provides that an aggregate sentence must not be imposed in circumstances where the offender is a serious offender within the meaning of the Act, or where the offences comprise at least one offence committed by the offender while released under a parole order for one offence committed at another time. Clearly the reason for this is that the Sentencing Act provides that both serious offenders, and those who commit offences whilst released under a parole order, must have their terms of imprisonment served cumulatively "unless otherwise directed by the Court".[11] However, the amending legislation does not deal otherwise with the question of concurrency or cumulation.

21 Aggregate sentencing powers have been available in South Australia since 1992.[12] The power to impose an aggregate sentence has been the subject of a number of appellate judgments in South Australia. The first of these is R v Nixon,[13] a decision of the South Australian Court of Criminal Appeal. In that case the question arose in the course of the re-sentencing of the appellant as to whether the Court of Criminal Appeal should impose an aggregate sentence in respect of three armed robberies. Mathieson and Duggan JJ concluded that it was appropriate to do so. Matthieson J said as follows:[14]

"The task of structuring the penalties was a difficult one, and it is unfortunate that his Honour was not referred to s 18A of the Criminal Law (Sentencing) Act (South Australia). That provides:

'If a person is found guilty of a number of offences for which he or she was charged on the one complaint or information, the Court may sentence the person to the one penalty for all those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences'."

22 Mathieson J went on to say[15] that he did not consider that the Court of Criminal Appeal was prevented from "fixing one penalty for the three armed robbery offences, even if that will involve a longer term of imprisonment than was imposed for one of those offences". His Honour then proposed a substituted penalty of 17 years' imprisonment for the three armed robberies, instead of the three separate seven years' imprisonment ordered previously to be served cumulatively upon each other. It is apparent that he and Duggan J concluded that an aggregate sentence could be imposed in circumstances where there was some cumulation. On the other hand, and in a dissenting decision, Legoe J said, in referring to s 18A of the South Australian Sentencing Act:[16]

"This section came into operation on 30 September 1992. The section creates a statutory discretion whereby courts are provided with another alternative in formulating a multiple sentencing package. It is a discretion which is unfettered. At the same time, it is not a substitution for, nor does it replace, the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence. In my opinion it is a very useful power which should be used where the circumstances for using the section do not conflict with other well-established principles of sentencing practice. It seems to me that the section is one that can be used by a court of criminal appeal where the multiple sentences are properly concurrent in accordance with the above principles. For the purpose of reviewing the sentences afresh this Court can fix one sentence for all rather than allocating different periods for the concurrent sentences.

But in my opinion it would be wrong in principle to re-sentence this appellant on the basis that the orders for cumulative sentences should be set aside and a total all embracing sentence for the three armed robbery offences substituted."

23 The issue arose again before the Court of Criminal Appeal of the Supreme Court of South Australia in R v Major,[17] a court consisting of Doyle CJ, Olsson and Williams JJ. In that case the respondent had pleaded guilty to six counts of rape, two counts of indecent assault and two counts of burglary. Using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the sentencing judge imposed a sentence of 12 years with a non-parole period of eight years. The Director of Public Prosecutions appealed on the grounds of manifest inadequacy. Olsson J[18] gave consideration to the conceptual basis upon which s 18A of the South Australian Act should apply.

"Mr Rofe QC contended that, even given resort to the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the correct initial step was to assess each offence separately and attribute to it a notional proper sentence, due allowance being made, in each instance, for relevant factors of mitigation. Prima facie, in the course of that exercise, each sentence should be regarded as cumulative, because the offences could not be said to have arisen out of the one course of conduct, or to have been conducted with one another in any relevant sense. ... In my opinion this reasoning is correct.

As was pointed out by Legoe J in R v Nixon the decision as to whether or not to resort to the imposition of a single sentence for relevant multiple offences, as authorised by s 18A ... is unfettered. However, that section is not a substitution for, and does not replace, the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence.

The final step, when an aggregate, notional head sentence is arrived at by the above process, is to stand back and review the result in light of the totality principle. ... The question to be postulated is whether the total sentence is so disproportionate to the overall offending as to be unduly crushing."

24 Doyle CJ said in relation to the approach to sentencing:[19]

"I agree with Olsson J that if a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1988, the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.

If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not adequately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.

In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.

I also agree with Olsson J that when an appropriate single sentence has been arrived at, taking account of all relevant factors, both adverse and favourable, it is then appropriate for the sentencing judge to consider whether the sentence contemplated is so crushing as to call for some reduction as an act of mercy. Once again, in a case in which the principle of totality is called into play, it is necessary for the sentencing judge to give separate consideration to that factor."

25 In R v Symonds[20] the Court of Criminal Appeal of the Supreme Court of South Australia, the Court consisting of Doyle CJ, Prior and Mullighan JJ, gave further consideration to the issue of the imposition of a single sentence for multiple offences. The appellant in that case had committed offences of house breaking, larceny, breaking and entering with intent to commit an offence against a person, assault with attempt to rape, armed robbery and rape. The appellant appealed against the single sentence of 13 years with a non-parole period of 10 years which had been imposed by a District Court judge.[21]

26 In sentencing the appellant the District Court judge had said:

"The prosecution has urged me to impose notionally separate sentences for each of the ten counts as a starting point. Even the most cursory exercise shows that the total sentence so generated will exceed what, having regard to the principle of totality and the need to avoid an unnecessarily crushing sentence, is appropriate."

27 The Chief Justice in referring to this issue referred to R v Major.[22] He went on to say:

"In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.

In some cases the only safe course to follow will be to approach the sentencing process initially as one would do if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability as a general rule of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.

In the present case I have considered it desirable to follow the approach outlined in Major. Taking that approach, I arrived at a head sentence of about 18 years, as did the sentencing judge. I arrived at that sentence without reducing the sentence that would otherwise have been imposed by reference to the considerations usually referred to as the totality principle. I do not consider that the sentence I arrived at should be reduced on that account."

28 The Chief Justice then continued, in the following terms to indicate how he would have arrived at an aggregate sentence:

"For present purposes it suffices to indicate that, in my opinion, the three counts of rape would attract concurrent sentences resulting in an overall sentence of about eights years' imprisonment. The associated offence of burglary would attract a further sentence of about one year's imprisonment, cumulative upon the sentences for rape. The count of assault with intent to rape would attract a sentence of about five years' imprisonment, with a further year of imprisonment for the associated count of burglary. Each of these sentences should be cumulative upon the sentences for rape. The remaining counts of housebreaking and larceny and burglary would attract further sentences that could be made concurrent, although cumulative upon the other sentences amounting to about three years' imprisonment.

In that way I arrived at a starting point of about 18 years' imprisonment, and on that basis it cannot be said that the starting point taken by the District Court judge was excessive."

29 Further consideration was given to the application of s 18A of the South Australian Sentencing Act by the Court of Criminal Appeal in R v Sebo,[23] the Court consisting of Doyle CJ, Bleby and White JJ In that case the appellant had committed 35 offences over a 12 month period ranging from serious criminal trespass and theft, to illegal use of a motor car and creating risk of bodily harm. The offending came to an end in 2004 when the appellant collided with a lamp post after committing a series of road offences, including driving in a manner dangerous to the public. The Chief Justice in dealing with the approach under s 18A of the South Australian Sentencing Act said as follows:[24]

"This is a case in which it was convenient to make use of s 18A. There is no reason why the judge should not have imposed a single sentence under s 18A for all offences, provided that they were offences that attracted a sentence of imprisonment. But the proper approach was to indicate the sentences that would have been appropriate for individual offences if they were being dealt with individually, or as it has sometimes been said, to determine notional sentences, and in the course of doing so to decide whether, had s 18A not been utilised, it would have been appropriate for those indicative or notional sentences to operate concurrently with or cumulatively upon other indicative or notional sentences. In this manner the appropriate aggregate sentence, to be imposed under s 18A, could be determined. This would result in only one sentence of imprisonment being imposed in respect of all offences, that being done under s 18A, and being the aggregate of the indicative or notional sentences."

30 In R v Waugh,[25] White J (with Doyle CJ and Sulan J in agreement) said that even where the judge goes directly to a single sentence:

" ... Some explanation of how that single sentence is derived is still necessary. That might be given, for example by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers whether they should be served cumulatively or concurrently. Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary. This may be because the imposition of such sentences would be crushing or might lead to a sentence which did not reflect the overall seriousness of the criminality involved."[26]

31 The Northern Territory introduced aggregate sentencing in 1995. Section 52 of the Sentencing Act (NT) provides that where an offender is found guilty of two or more offences joined in the same indictment, the Court may impose one term of imprisonment in respect of both or all of those offences. However, the legislation provides that the section does not apply to any offence which is a violent or sexual offence. The Court of Criminal Appeal of the Northern Territory has approached its aggregate sentencing power in a manner similar to that taken in South Australia.

32 In Murray v. The Queen,[27] Martin CJ said:

"In the process of determining the total finite period, in my opinion it is of assistance to provisionally identify appropriate periods for each of the individual crimes. In this way, attention is drawn not only to the offending involved in each individual crime, but also to the gravity of the total criminal conduct. Relationships between the sentences appropriate for the individual crimes, the total criminal conduct and the total period achieved by the accumulation or concurrency of sentences is highlighted. This is the same process that can, but not necessarily must, be adopted when fixing a single aggregate sentence for multiple crimes pursuant to s 52 of the Sentencing Act."

33 Aggregate sentencing is allowed under s 4K of the Crimes Act 1914 (Cth) which provides that:

"(3) Charges against the same person for any number of offences against the same provision of the law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or a part of, a series of offences of the same or a similar character.

(4) If a person is convicted of two or more offences referred to in sub-section (3) the Court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence."

34 It may be observed that those provisions use words similar to those used in ss (1) and (2) of the Victorian Sentencing Act.

35 The Victorian Court of Appeal considered s 4K of the Commonwealth Crimes Act in R v Bibaoui,[28] and held that the Commonwealth legislation giving a court power to impose a single penalty does not apply to indictable offences, but is confined to summary offences.

36 In so concluding Ormiston JA said[29]:

"If what I have said be correct, subs (4) has no relevance to offences charged on indictment. Although such a conclusion may seem to depend upon relatively slight indications, I consider that in its favour is the desirability of the accused, upon conviction, being informed of the penalty for each offence of which he is convicted and the reasons for that penalty; and, moreover, the need, if there be any appeal brought on either side, for an appeal court fairly to understand not only the penalty imposed but the reasoning behind the imposition of each penalty. The desirability of there being separate dispositions of each count on an indictment has been discussed in such cases as Castro v R (1881) 6 App. Cas. 229 at 237-8 per Lord Selborne LC and in Ryan v R [1982] HCA 30; (1982) 149 CLR 1, although no concluded views were expressed in the latter case. In summary jurisdictions where the appeal process more often than not requires a re-hearing, the need for separate penalties may not be so great and convenience may dictate an overall head sentence for offences capable of being heard summarily, especially where fines are being imposed, but in my opinion convenience should not dictate what is the proper method which should be adopted upon the hearing and determination of prosecutions by indictment."

"A person who is convicted of more than one indictable offence, not tried summarily, is entitled to know, when sentenced, what penalty is imposed in respect of each individual offence. The matter is somewhat analogous, for practical purposes, to the position in the civil sphere where a single verdict is taken for a plaintiff who sues upon two or more separate causes of action. The verdict is applicable to all causes of action and, if one be later found to be unsustainable, the verdict cannot stand at all: Cutts v Buckley (1933) CLR 189 at 198-9. By parity of reasoning it is, generally speaking, or may be, material also to the Court of Appeal considering an appeal against conviction or sentence to know what penalty was imposed in respect of each offence if there was a conviction for more than one. If there were an appeal against conviction alone, and, for example, the conviction on one of several counts were set aside and a new trial ordered, the whole of a single undivided sentence would necessarily fall: cf. Bartlett v R (1990) 100 ALR 177 at 185. It would presumably be necessary for the Court of Appeal to impose sentence anew in respect of those of the convictions which were not set aside, the total sentence having fallen, yet such a task might very well be frustrated by the pendency of the new trial because the Court of Appeal could not know what kind of a sentence might be imposed for a conviction upon a new trial. For reasons such as that - and there are no doubt others - the practice in this State has long been not to impose an undivided sentence where there has been a conviction on two or more counts joined in the one presentment or indictment. The position was, if I may say so, succinctly summed up by Brennan J, in Ryan v R [1982] HCA 30; (1982) 149 CLR 1 at 22-3. Moreover, at 25, his Honour said: 'A global sentence is not usually passed in Victoria; indeed, it may be illegal'. His Honour was there referring to the passing of a single sentence in respect of two or more convictions upon the same indictment.

The position upon an appeal following conviction and sentence for an offence tried summarily is very different, at least in Victoria. An appeal to the County Court under either s 83 or s 84 of the Magistrates' Court Act 1989 following summary conviction, whether for a summary offence or an indictable offence tried summarily, necessitates the setting aside of the order of the Magistrates' Court and the County Court conducts a re-hearing. The appeal to the County Court cannot be embarrassed by any failure of the Magistrates' Court to impose a separate sentence in respect of each offence of which the appellant was convicted in the Magistrates' Court.

An interpretation of sub-ss (3) and (4) of s 4K such as the learned judge accorded to them is not necessitated by the language they use and is capable of producing mischievous or inconvenient results. No violence to the language is done by confining the application of the provisions to cases tried summarily. If that is done any potential mischief and inconvenience is avoided."

38 However, in Putland v The Queen,[31] the High Court gave consideration to the power to impose an aggregate sentence given to Northern Territory courts by s 52(1) of the Sentencing Act (NT). The appellant had been charged in the Supreme Court of the Northern Territory of offences against the Commonwealth Crimes Act and the Commonwealth Bankruptcy Act. The offences were indictable offences and the Supreme Court was exercising Federal jurisdiction. The appellant pleaded guilty and was sentenced to a single aggregate sentence of four years' imprisonment. He appealed the sentence to the Court of Criminal Appeal which dismissed the appeal and he was then granted special leave to appeal to the High Court. His argument was that at common law there was no power to impose an aggregate sentence, and that there was no power under Commonwealth legislation for a court to impose an aggregate sentence where the Crown had proceeded by way of indictment. The Court by majority dismissed the appeal. However, Kirby J (in dissent) gave consideration to the issues of policy which arose in relation to the matter of aggregate sentencing. He said:[32]

"Only if specific sentences are identified for federal indictable offences, such as those of which the appellant was convicted, will the transparency of the sentencing process be fully upheld. Taking into account considerations of totality and of sentences for connected offences in relation to each other is clearly desirable and permissible. However, the submergence of sentences for major crimes in a single undifferentiated aggregate sentence carries a risk of injustice to the offender. In practical terms, it makes the offender's task of challenging the unidentified components of the aggregate sentence much more difficult. It risks depriving the offender of adequate reasons for the components of the sentence. It undermines the objective of identifying differential sentences for specific federal crimes so that their content might be known and compared throughout the Commonwealth by all concerned. It diminishes the effectiveness of the deterrent value of particularised sentences. It reduces the utility and availability of effective appellant review addressed to consistency throughout Australia in the sentencing of federal offenders for particular offences. In some cases, it will 'mask error' in the judicial approach to sentencing. As Professor Warner stated:

'A general sentence has the advantage of simplicity and convenience but may sacrifice considerations of uniformity and predictability at a time when such issues are considered particularly desirable'."

"Sentences for summary offences may be aggregated; but not sentences for the typically more serious indictable offences. In the case of indictable offences, specificity in sentencing is at a premium. That is so because the punishment (including, as in the appellant's case, loss of liberty) is typically greater and more onerous. It should therefore be identified and identifiable."

40 It should be observed that the South Australian legislation permitting an aggregate sentence to be imposed differs considerably from s 9 of the Victorian Sentencing Act. In particular the offences which are the subject of an aggregate sentence need not be "founded on the same facts, or form, or (be) part of, a series of offences of the same or a similar character" as in Victoria. On the other hand, the Victorian legislation is similar to s 4K of the Commonwealth Crimes Act. However, notwithstanding the differences, the consideration of the issue of aggregate sentencing by the Court of Criminal Appeal of South Australia does assist in the consideration of the issues now before us.

41 It appears to me that the first issue which arises is whether an aggregate sentence should be imposed in respect of "rolled up" counts. The Victorian practice of filing a presentment with "rolled up counts" where a number of offences may be the subject of one count, is a practice which is followed only in circumstances whereby the accused proposes to plead guilty and furthermore, with the agreement of the defence. Otherwise, the count would be vitiated for duplicity. In R v Jones[34] Charles JA with whom Phillips JA and Bongiorno AJA agreed, explained the differences between a representative count and a rolled up count as follows:[35]

"I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative count the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In Mr Silbert's written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. Mr Silbert argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return."

42 In my view, to aggregate a series of "rolled up counts" into an aggregate sentence, is to impose an aggregation upon something that has already been aggregated by being the subject of a rolled up count. In particular, if the intention of the s 9 of the Sentencing Act is, as stated in the second reading speech to more "clearly explain to the community" the total sentence, the aggregation of rolled up counts, not only fails to so explain, but in fact makes the sentence imposed more opaque. The case now before this Court involved an aggregate sentence relating to five rolled up counts involving 70 individual thefts over a 12 month period totalling a sum of $91,971.91, for which an aggregate sentence of nine months' imprisonment, which was then fully suspended, was imposed.

43 The second issue which arises is the question of whether an aggregate sentence should be imposed only in circumstances where the sentences the subject of the aggregate sentence are to be served concurrently with each other, or whether an aggregate sentence may be imposed in circumstances where it is intended there be some cumulation of sentences to be served.

44 In my respectful opinion Legoe J was correct in stating in R v Nixon that, although s 18A of the South Australian Sentencing Act provided an alternative sentencing discretion " ... it is not a substitution for, nor does it replace the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence". His Honour expressed the view that the discretion should be exercised only in circumstances which "do not conflict with other well-established principles of sentencing practice".

45 The relevant principles of sentencing practice are set out clearly in DPP v. Grabovic[36] and in particular in the judgment of Ormiston JA:[37]

"This case again raises the proper process to be adopted in sentencing persons who have pleaded guilty to or have been found guilty of multiple offences having regard to accepted principles as to totality, proportionality and the like. I concede that difficulties are posed for judges in sentencing for such offences. Those difficulties arise not so much out of the requirements, statutory and otherwise, as to concurrency (see especially s 16 of the Sentencing Act), but, rather, in the application of principles relating to cumulation which in some cases may be exacerbated by specific statutory requirements for cumulation which fortunately do not arise in the present case. The ordinary principles as to cumulation require that the sentencing judge should as far as practicable identify separate events, 'episodes' or 'transactions' giving rise to specific counts or groups of counts and to recognise them by ordering at least a degree of cumulation. This is to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity, if all sentences for a series of unconnected offences were to be served concurrently. Difficulty arises not so much in providing for a degree of cumulation but in having proper regard to the principle of totality and in avoiding the imposition of an inappropriately crushing sentence."

46 Accordingly, if an aggregate sentence is under consideration it is necessary for the sentencing judge to identify, in accordance with the above principles, separate events giving rise to specific counts, or groups of counts and to order appropriate accumulation if appropriate, or alternatively to state specifically, as part of the reasons which are required by s 9(3) of the Sentencing Act for imposing an aggregate sentence, that all counts the subject of such a sentence are being treated as concurrent. To fail to do so would substitute aggregate sentencing for the existing law and practice relating to the structure of multiple sentences, an intention which was clearly not intended by the amended s 9 of the Sentencing Act introduced last year.

47 In my view, to include an unstated element of cumulation in an aggregate sentence does not provide for the transparency required in the sentencing process. It does not enable proper analysis by the community, the offender, or an appellate court of the sentence and in particular of the unidentified components of the aggregate sentence. On the other hand, if the aggregate sentence is to comprise partially, or wholly, appropriate cumulation it will be necessary for the sentencing judge to identify the basis and nature of that. In effect the only safe course will be to approach the sentencing process in accordance with the general principles set out in Grabovic, and as one would do if the discretion provided for by s 9 of the Sentencing Act did not exist. It is necessary that the approach be similar to that suggested by Doyle CJ in R v Major.[38] That is that if an aggregate sentence is imposed, using s 9 of the Sentencing Act then the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process consideration must be given to whether the sentences imposed should be concurrent or should have some degree of cumulation. As Olsson J said in R v Major, when an appropriate aggregate sentence has been arrived at it is necessary to "stand back and review the result in light of the totality principle".

48 It must be recognised that the imposition of aggregate sentences has been commonplace in the Magistrates' Court since the amendments gave that Court power to impose such sentences more than a decade ago. In my view there is a sound basis to distinguish between what is necessary in imposing an aggregate sentence in relation to indictable offences being heard in the County and Supreme Courts, and what is necessary in relation to matters heard summarily in the Magistrates' Court. As both Ormiston and Tadgell JJA observed in R v Bibaoui, it is necessary for an appeal court to understand not only the penalty imposed, but the reasoning behind the imposition of each penalty. As pointed out by Tadgell JA the position upon an appeal following conviction and sentence for an offence tried summarily, is very different from an offence not tried summarily, in that an appeal to the County Court involves a re-hearing of the proceeding. This, together with the fact that in the Magistrates' Court reasons for sentence are usually given orally and in summary form is a proper basis for distinguishing what is the necessary approach to aggregate sentencing in the superior courts.

Conclusion as to Ground 1

49 The offences committed by the respondent were serious indeed. They involved a gross breach of trust. The thefts were repetitive, being committed on average every week over a 121/2 month period. The total sum of $158,807 stolen from the respondent's employers was substantial and caused them significant financial and emotional damage. The thefts were conducted in a devious fashion, many withdrawals being cloaked by an appearance of legitimacy by use of the names of actual creditors of the business and by the stolen money being deposited in nine separate bank accounts by the respondent. The stolen money has not been recovered nor was any adequate explanation provided to the sentencing judge as to how the sum stolen was spent or otherwise disposed of by the respondent.

50 True it was that the matters in mitigation put before her Honour were of significant weight, and that she regarded rehabilitation as being at the "forefront" of sentencing consideration.

51 In my view, nevertheless, a sentence of nine months' imprisonment wholly suspended for two years in relation to five counts involving 70 individual thefts totalling $91,971.19 over a 12 month period and a sentence of a CBO as an aggregate sentence on the remaining ten counts of theft involving $66,836 over a similar period is, in all of the circumstances of this case, manifestly inadequate. This is all the more so when the sentencing judge did not accept the respondent's explanation to police that the money stolen had been spent on "ordinary living expenses" and where the judge considered that there did not appear to be any adequate explanation for where the sum of almost $160,000 had "disappeared" to in a period of a year. In my view, the gravity of the criminal conduct involving as it did a large number of separate criminal acts required the making of multiple separate decisions. Furthermore, in my view the sentencing judge fell into error in the use of an aggregate sentence to combine for sentencing purposes a series of counts which were the subject of a "rolled up" plea, and by failing to give adequate reasons as to whether the sentences imposed were wholly concurrent or on the other hand involved elements of cumulation. On this basis I would allow the appeal.

52 Having come to this conclusion, it is necessary in my view for this Court to resentence the respondent, taking into account the principle of double jeopardy.

53 I would re-sentence as follows:

54 On Counts 2, (a rolled up count of theft of $755) 8, (a rolled up count of theft of $2,204) 9, (a count of theft of $1,125) and Count 11 (a rolled up count of theft of $2,703) I would order that the respondent undertake a Community Based Order for a period of two years, on the same conditions as that ordered previously by the sentencing judge, such order to be declared to have commenced on 15 September 2006.

55 I would direct that one month of the sentences imposed on each of Counts 10, 13 and 14, and two months of the sentences imposed on Counts 1, 4, 5, 7 and 12 be served cumulatively upon each other and upon the sentence imposed on Count 3 making a total effective sentence of 21 months' imprisonment.

56 The Director has conceded that in the event that the appeal is allowed and the respondent resentenced, then it would be open to impose a wholly suspended sentence of imprisonment. Taking into account the issues of mitigation established by the evidence and the principle of double jeopardy this concession is in my view a proper one. I would wholly suspend the sentence of 21 month's imprisonment for a period of 2 years.

[1] See DPP v Grabovac [1998] 1 VR 664 at 676.7 per Ormiston JA. By limiting the application of s 9 of the Sentencing Act 1991 to offences founded on the same facts or forming or being part of a series of offences of a similar character, the legislature appears to have contemplated the use of the section in cases where there would ordinarily be a significant degree of concurrency.

[2] R v Symonds [1999] SASR 217 at [21]-[22], [24] per Doyle CJ; R v Waugh [2005] SASC 470; (2005) 93 SASR 274 at 284 per White J.

[3] Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, p.872 (The Hon Jan Wade).

[4] Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, p.875 (The Hon Jan Wade).

[5] R v Christie [2000] VSCA 183 and R v Beaumont [2000] VSCA 214.

[6] At p.40.

[7] There is a contemporaneous record in the Supreme Court library of sentences passed by the Supreme Court between 15 February 1877 and 20 December 1883. This shows that both general and individual sentences of imprisonment were common at that time.

[8] At p.41.

[9] The Court of Appeal has had power to impose an aggregate sentence since 1 November 2006.

[10] Parliamentary Debates, 7 June 2006 (Legislative Assembly, Courts Legislation (Jurisdiction Bill)) (Second Reading), p.1776 (The Hon Rob Hulls).

[11] See Sentencing Act ss 6E and 16(3)B.

[12] Criminal Law (Sentencing Act) 1988 (SA) s 18A.

[13] (1993) 66 A Crim R 83.

[14] At p.90.

[15] At p.91.

[16] At 85-6.

[17] [1998] SASC 7089; (1998) 70 SASR 488.

[18] At p.497.

[19] At p.490.

[20] [1999] SASC 217.

[21] It should be observed that an aggregate sentence would not be available for such offences in Victoria as it would be difficult to say that they were "a series of offences of the same or a similar character".

[22] Above.

[23] [2006] SASC 124; (2006) 94 SASR 403.

[24] At 406.

[25] [2005] SASC 470; (2005) 93 SASR 274.

[26] At 284.

[27] (2006) 200 FLR 89.

[28] [1997] 2 VR 600.

[29] At 603-604.

[30] At 607.

[31] [2004] HCA 8; (2003) 218 CLR 174.

[32] At p.213.

[33] At 214.

[34] [2004] VSCA 68.

[35] At [13].

[36] [1998] 1 VR 664.

[37] At 676.

[38] See para 24 above.