32 Whilst there is force in Mr Tehan's contention that the injuries suffered are not consistent with the victims having received the number and ferocity of blows that they recalled, his Honour's description of the savagery of the assault is close to the mark. Given the respondent's history of prior offending, and notwithstanding the mitigatory factors to which I will refer, it is really impossible to accept that a sentence of 12 months' imprisonment (with six months, only, to be served) was within range on count 2. Indeed, his Honour's sentence on count 1 and his remark that he had "tailored" the sentences to allow him to impose a CCTO is tacit recognition of that fact.
33 There were however, mitigatory factors which merited close consideration by his Honour and by this Court on re-sentencing. His Honour noted that the respondent's offending against the law commenced 31 years previously and he had been in custodial situations for 13 years altogether. He accepted that the respondent had lived a very dysfunctional life. His Honour was properly concerned that the respondent was close to being institutionalised.
34 The sentencing discretion having now been reopened Mr Tehan sought leave, which was granted, to supplement the material which was placed before the judge with additional evidence, filed by way of affidavit, concerning the progress of the respondent and his attempts to wean himself off alcohol since he was released on bail with respect of these offences. I will turn to that new material, shortly.
35 In his report tendered before the judge the respondent's medical practitioner, Dr Chris Daw, stated that the respondent was suffering chronic Hepatitis C and had suffered depression and asthma. He had sustained injuries in a motor cycle accident in 1992, suffering both back and neck injuries which led to pain in his legs, poor mobility and pain generally. He had a long history of alcoholism but Dr Daw described many occasions where he had attempted to abstain from alcohol. He had received psychological and psychiatric assistance from time to time. He experienced chronic pain and suffered mood swings and depression.
36 Dr Daw noted that when he saw the respondent on 3 May 2005 he was undertaking drug and alcohol counselling with the Salvation Army and was continuing to take anti-depressant medication. Dr Daw reported that the respondent had greatly reduced his alcohol intake and was actively seeking drug and alcohol counselling. He was in continuing pain and Dr Daw thought it unlikely that his various medical problems would be resolved in the foreseeable future.
37 A psychiatric report by Dr Allen Jager said of the respondent that he had a very unstable development history and had been the subject of violent assaults by his stepfather after his parents divorced when he was aged seven years. He had very limited schooling, and criminal conduct started at the age of eight. He had been educated only to year 9 and had been unemployed for 17 years. He had been on a disability pension for the last eight years. He had four children from three different partners, had abused alcohol from the age of nine and, later, drugs, including marijuana and amphetamines, and had abused prescription tablets from the age of 18. He had attempted suicide by various means. Dr Jager diagnosed him as having conduct disorder and anti-social personality disorder and as being poly-substance dependent.
38 In the report prepared for the Combined Custody and Treatment Order the author of the report, Sue Hill, proposed that if the court made such an order the respondent would be given semi-intensive drug and alcohol programmes in prison and would then be required to attend residential rehabilitation, upon release, for a period of three to six months and would also receive individual drug and alcohol counselling as soon as his residential treatment was completed. She opined that after 25 years of excessive alcohol consumption "a sustained period of remission could only be claimed if Mr Gray was able to abstain for at least 12 months or longer".
39 The material that was before the judge as to the prospects of rehabilitation of the respondent has been supplemented by a body of fresh evidence placed before this Court on the appeal. Given that it will be necessary to re-sentence the respondent the court has received that material.
40 Among the fresh material is the respondent's affidavit dated 2 November 2005 in which he deposes to the programs he has undertaken while in custody and the benefit he has derived from them, in particular the drug and alcohol and anger management courses. He has remained abstinent from alcohol or illicit drugs. He states that upon release he wishes to continue contact with the Salvation Army Bridge Program. The respondent's mother in her affidavit, deposed that after his arrest and release on bail he remained alcohol free, with noticeable benefits in his demeanour. She deposed to his determination to overcome his alcohol addiction and his keenness to participate in rehabilitation programs upon release.
41 Mr Gary Taylor the Senior Alcohol and Other Drugs counsellor at the Salvation Army Bridge Program at Bendigo swore two affidavits. He deposed that the respondent had been active and showed positive desire to overcome alcohol when he attended the program in prison. As to future programs, should the respondent be released on 13 December 2005, as his present sentence dictates, he would not be able to join any new group program until the last week of January 2006. He was making enquiries as to the respondent's possible participation in a residential rehabilitation program run over 16 weeks with The Basin Rehabilitation Centre in suburban Melbourne. In a second affidavit sworn 14 November 2005 he deposed that the intake worker at The Basin had informed him that the respondent could be admitted to that centre provided there was a request made from the Australian Community Support Organisation (ACSO). As to that prospect we have an affidavit from the respondent's solicitor Mr Timms and a Drug and Alcohol Assessment Report from Mr Mark Tatti of Community Offenders Advice and Treatment Service (COATS).
42 Mr Timms deposes that Jane Morton of Australian Community Support Organisation Community Offenders Advice and Treatment Service ("ACSO COATS") advised that the assessors at the Basin "will not assess or make plans to admit the Respondent into the centre until he is released". The tentative date at which he could enter the residential program, if approved, would be 28 December 2005.
43 In his report, Mr Tatti, the Senior Clinician, recommended that upon his release the respondent attend for individual counselling at the Salvation Army centre in Bendigo under Gary Taylor. As to residential programs, he said "It is further advised that Mr Gray may be considered suitable for a residential Rehabilitation Program by his drug and alcohol counsellor if this regime is considered appropriate at a later stage".
44 Although the report of Mr Tatti notes the willingness of the respondent to continue counselling with Mr Taylor and notes too his remorse for these offences, the report falls short of advising that the respondent will be accepted into the residential rehabilitation program and that upon release his rehabilitation would depend on his participation in ongoing counselling with Mr Taylor.
45 The new material tendered on behalf of the respondent lends support for Mr Tehan's submission that the respondent is making particular effort to seize the opportunity given to him by the judge to deal with his alcohol and drug problems. His efforts merit praise and encouragement, but the fresh material does not persuade me that this is an appropriate case to take the exceptional course of not intervening with a six month's sentence which is manifestly inadequate, having regard to the offences committed.
46 Mr Tehan submitted that even if we concluded that the sentences imposed below were manifestly inadequate this would have been an appropriate case for the Court to exercise the residual discretion it undoubtedly has on a Director's appeal[5] not to intervene notwithstanding that sentencing error had been established. Similar considerations should guide the court when re-sentencing, he submitted. Counsel submitted that the efforts made by the respondent in undertaking counselling and alcohol treatment programs and his abstinence from alcohol pursuant to what he believed to be his sentence should not be undermined by a heavier sentence. He submitted, too, that the prosecutor in the court below failed to argue that the judge had no power to impose a CCTO and failed to contend that in any event a sentence of 12 months' imprisonment would be manifestly inadequate for the case.
47 Mr Tehan referred to R. v. Casey and Wells[6]. It is relevant to the question whether to allow a Director's appeal that the prosecutor failed to make appropriate submissions which would have avoided sentencing error. In this case, however, I doubt that the judge would have been dissuaded from his course had counsel made such submissions. It was very much at the judge's initiative that a CCTO was under consideration, at all, and his Honour was obviously convinced that his interpretation of s.18Q was correct. Neither before nor after receiving the report did he invite the prosecutor to make any submissions as to the appropriateness of such an order, and commenced his sentencing remarks on the resumed hearing without any discussion about the report. Whilst it would certainly have been better had counsel sought to disabuse the judge of the correctness his interpretation of the section or the appropriateness of his proposed order (assuming that counsel was aware of the terms of s.18Q(5)), I am not persuaded that his efforts would have avoided the course that was taken.
48 Full weight must be given to the efforts at rehabilitation being undertaken by the respondent. Furthermore, although we are strictly not concerned with the question of manifest disparity between the sentences on the two counts (since the failure to comply with s.18Q requires that the sentences be set aside and the respondent be re-sentenced) full weight must also be given to the factor of double jeopardy on a Director's appeal. Even so, the disparity between the two sentences simply cannot be allowed to stand. In so concluding, I accept that the conduct in count 2 did not continue as long as that embraced by count 1, and the vulnerability of the victim was also not as great as in count 1, but in my view there was otherwise little difference between the seriousness of the conduct under each count.
49 It is also not appropriate that having regard to his prior convictions the period actually served in custody by the respondent for this offending conduct, on two counts carrying a 20 year maximum sentence of imprisonment, be only six months' imprisonment.
50 It is unfortunate that the treatment regime under s.18Q is limited to cases where a total effective sentence of no more than 12 months' imprisonment is imposed. His Honour was undoubtedly correct in concluding that it would be in the interests both of the respondent and, in the long term, of the community, that powerful encouragement be provided for the respondent to overcome his addictions. The power of a sentencing court is, however, very limited in seeking to attain that objective, in circumstances such as these where the offences are of such seriousness. In proposing that the respondent be re-sentenced to a longer term of actual imprisonment I recognise that it involves the removal of an order that compelled the respondent to continue a treatment and counselling regime after his release from prison, whereas the order I will propose does not entail any similar element. Hopefully, there will be continuing programs available to the respondent as part of the correctional regime.
51 In proposing that a parole period be fixed, and that it be an unusually lengthy one - having regard to the seriousness of the offences and the antecedents of the respondent - the Court can give emphasis to rehabilitation under the supervision and support of the Parole Board.
52 I have concluded that, having regard to the fact that the Director's grounds of appeal did not expressly complain about its absence, an order for cumulation should not be made. It otherwise would have been appropriate to order some degree of cumulation[7]. The sentence that I propose gives particular weight to the factor of double jeopardy, in that respect.
53 I propose that on count 1 the respondent be re-sentenced to 3 years' imprisonment and on count 2 to two years and six months' imprisonment, thus producing a total effective sentence of three years' imprisonment. I would direct that the respondent not be eligible for parole until he has served 12 months of that sentence of imprisonment.