DPP v McCloy [2006] VSCA 99

1 I would allow the appeal substantially for the reasons of Ashley, J.A. that I have considered in draft form. I would also re-sentence the respondent as proposed by his Honour.

2 I agree, for the reasons stated by Ashley, J.A. that, the appeal should be allowed and the respondent re-sentenced as his Honour proposes.

Statement of the case

3 This is an appeal by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act 1958 against sentence passed on Jake McCloy in the County Court on 16 November 2005. The respondent, having been found guilty after trial, was convicted and sentenced as follows:

• Causing serious injury recklessly (Count 2) - 2 years' imprisonment.

• Threat to kill (Count 3) - 1 year's imprisonment.

• Attempted rape (Count 4) - 2 years' imprisonment.

• Indecent assault (Count 11) - 6 months' imprisonment.

4 The relevant provisions and maximum penalties fixed by the Crimes Act for the different offences are as follows:

• Causing serious injury recklessly - s.17 - 15 years' imprisonment.

• Threat to kill - s.20 - 10 years' imprisonment.

• Attempted rape - ss.321M and 321P - 20 years' imprisonment.

• Rape - s.38(1) - 25 years' imprisonment.

• Indecent assault - s.39 - 10 years' imprisonment.

5 The learned judge made orders for concurrency and cumulation, and thus arrived at a total effective sentence, as follows:

"The sentences imposed on Counts 3 and 14 are to be served concurrently with each other and concurrently with the sentence imposed on Count 2, that is, two years' imprisonment. Six months of that sentence so imposed on Counts 2, 3 and 14 is to be served cumulatively with the sentence imposed on Count 5, that is, four years and six months' imprisonment. The whole of the sentence on Count 4 is to be served concurrently with the sentence imposed in respect of Counts 2, 3, 5 and 14, that is, four years and six months' imprisonment. Nine months of the sentence on Count 6 is to be served cumulatively with the sentences so imposed on Counts 2, 3, 4, 5 and 14, that is, five years and three months' imprisonment. Six months of the sentence on Count 7 and six months of the sentence on Count 10 are each to be served cumulatively with the sentences so imposed on Counts 2, 3, 4, 5, 6 and 14, that is, six years and three months' imprisonment. Three months of the sentence imposed in respect of Count 9 is to be served cumulatively with the sentence imposed in respect of Counts 2, 3, 4, 5, 6, 7, 10 and 14, that is, six years and six months' imprisonment. The whole of the sentence on Count 11 is to be served concurrently with the sentences imposed in respect of Counts 2, 3, 4, 5, 6, 7, 9, 10 and 14, that is, a total of six years and six months' imprisonment."

Her Honour fixed a non-parole period of four years. She made a declaration that the plaintiff had already served 214 days by way of pre-sentence detention.

6 Now the Director appeals, on the ground that the individual sentences, the total effective sentence and the non-parole period were each manifestly inadequate. The particulars of the contention of manifest inadequacy are that the learned judge -

"(a) failed to adequately reflect the gravity of these offences generally and in this case in particular;

(b) failed to sufficiently take into account the aspect of general deterrence;

(c) failed to sufficiently take into account the aspect of specific deterrence;

(d) gave too much weight to factors going to mitigation, in particular the Respondent's age and lack of relevant prior convictions;

(e) in the absence of any explanation for the offending, gave too much weight to the Respondent's prospects of rehabilitation.

(f) gave insufficient weight to the maximum penalties applicable to these offences;

(g) gave insufficient weight to the effect of the offending upon the victim; and

(h) gave insufficient weight to the absence of remorse."

The course of events

7 All the offences were committed on 29 August 2004, against the one victim. The respondent was arrested the same day. At interview, he either denied that the offences had occurred, or maintained that the complainant had consented to the impugned conduct. Thereafter the respondent remained in custody until he was bailed on 15 February 2005 following a contested committal hearing. The trial began on 27 September 2005. On 7 October the jury found the respondent guilty of the offences which I have earlier catalogued. A plea hearing took place on 9 November. The respondent was remanded into custody, and was sentenced, as I noted earlier, on 16 November.

Circumstances

8 The circumstances of and surrounding the offences were as follows: The respondent was aged 19 at the time, his date of birth being 28 August 1985, and thus his birthday having fallen on the day of the party which preceded the commission of the offences. The complainant was aged 17, was the mother of a young child, and was receiving treatment for post natal depression.

9 On the evening of 28 August 2004 the complainant attended a birthday party at Clifton Springs. Early on, she was involved in an altercation with the father of her child, and he left the premises.

10 The respondent was also at the party. He was known to the complainant, but only in incidental fashion. There had not hitherto been any romantic attachment between them.

11 The complainant and the respondent spoke at the party. The complainant showed the respondent photos of her baby. There was some evidence that the two of them physically embraced whilst lying on a bed at the premises, and some evidence also of talk between them which had a sexual connotation. The complainant disputed that evidence.

12 The complainant left the party some time after 3.00am. It could have been after 4.00am. At the time, she was affected by alcohol to an extent, and was overtired. She set off on foot towards the premises where she was staying for the night.

13 The respondent left the party at the same time, and commenced walking in the same direction. That is not to say that he and the complainant left in company.

14 At a point in the complainant's journey she was attacked by the respondent. She found herself on the ground, with the respondent trying to strangle her. She resisted, and the respondent told her to "stop or I'll fucking kill you." (Count 3).

15 The complainant lost consciousness. When she regained consciousness she was naked but for a pair of boots. She was lying face down in the grass with her legs spread apart.

16 The respondent was by then also naked. He said that he was going to "fuck," or "rape," her. He made her get up onto her knees, and attempted to penetrate her anus with his penis (Count 4).

17 The respondent then rolled the complainant onto her back and lifted her legs. He penetrated her vagina. This went on for some time (Count 5). Meantime, he called her a "dirty slut."

18 The respondent then put the complainant into a somewhat different position, and again raped her (Count 6). He required her to say that she was a dirty slut.

19 At the time of this conduct, it is convenient here to note, the complainant was menstruating for the first time since the birth of her child. She had been wearing a sanitary pad, as well as nursing pads in her bra. She had not engaged in intercourse since the birth of her child. Penetration was painful.

20 After the second incident of penile - vaginal rape, the complainant lay on her side, resting. The respondent moved in front of her, and forced her to engage in oral sex (Count 7).

21 Sometime later, as the complainant lay on her back, the respondent penetrated her vagina with his tongue (Count 9).

22 A little later, the respondent again forced the complainant to engage in oral sex. On this occasion he ejaculated into her mouth (Count 10). Whilst engaging in oral sex, the respondent grabbed her breasts, hurting her (Count 11).

23 After these things had been done to the complainant, the respondent threatened her that if she said anything, or went to the police, he would hunt her down, slit her child's throat in her presence, and kill her (Count 14).

24 By the time that the complainant arrived at her brother's house it was about 5.30am.

25 The complainant was medically examined later on the 29 August 2004. Her injuries included:

• Haematoma and abrasions of the left cheek.

• Subconjunctival haemorrhage of the left eye and bruising of the adjacent area.

• Similar injuries to and in the vicinity of the right eye.

I pause to say that, at examination, the complainant's eyes were swollen shut.

• Bruising of the left ear.

• Bruising and bleeding of the right ear.

• Bruising and abrasion of the neck.

• Bruising, a piercing wound and deep abrasion of the chin.

• Bruising and swelling of the mucosa.

• Bruising of the right forearm.

• Abrasions of the abdomen.

• More than 100 superficial abrasions of the back.

• Superficial abrasions of the right buttock.

26 Further there was blood and foreign matter at the opening of the vagina, and grass on the surface of the labia minora and inside the vagina.

27 Further still, there was erythema of the vaginal lip, two superficial abrasions at the back part of the vaginal opening, and an abrasion on the anterior vaginal wall.

28 In respect of the anus, there was grass and dirt around the perianal area.

29 Investigations confirmed that the complainant had been menstruating at the time of the attack.

30 All of the injuries which I have catalogued, save for a few abrasions which the Crown conceded were not attributable to the respondent's assault upon the complainant, were caused by that attack.

31 The complainant required medication and rest. She suffered a lot of pain from her injuries.

32 The various injuries, evidently inflicted upon the complainant during the period of the attack, were the subject of count 2.

33 Not surprisingly, a victim impact statement made by the complainant showed that she had suffered, and continued to suffer, from very substantial emotional upset attributable to the attack.

34 What I have thus far said about the circumstances of the offending shows that the respondent, as counsel for the Director submitted before this Court,

• Subjected the complainant to a brutal and prolonged attack.

• Committed offences upon a victim who was subdued by force, who was unconscious for a period, and whose sight was affected by injuries inflicted upon her.

• Acted in a way calculated to instil fear into the complainant.

• Continued on with his lengthy attack although, as must have been apparent, the complainant was distressed and frightened.

• Engaged in acts which were of a gross and degrading nature, apt to humiliate the complainant - such as ejaculating into her mouth, and requiring her to describe herself as a dirty slut.

• Caused the complainant, by his acts, both physical and continuing mental injury.

• In all, treated the complainant with absolute contempt, as an object for his own sexual gratification.

Submissions on the plea. Sentencing remarks

35 The prosecutor submitted at the plea hearing that the respondent's offending was at "the highest end of the scale". Counsel for the respondent did not, as I read it, contend to the contrary. The prosecutor's submission, in my opinion, was well-justified, having regard to the circumstances of and attending the offences which I have described.

36 The learned sentencing judge found that the offences were "serious", that they had been committed "to a significant degree", that they "tend[ed] towards the higher end of offences of this kind", and that the respondent's "culpability was high". She said that weight was to be given to denunciation of the respondent's conduct, punishment, and general deterrence.

37 The learned judge heard evidence as to the respondent's antecedents. He came from a stable family background, his family being loyal, supportive and caring. He was described as gentle; a friendly, loving boy, who had never displayed violence over the years. Testimonials put in evidence described him as polite, courteous, well-mannered, honest, reliable, well-respected and with empathy for others. He had completed year 12 - although he had not passed - and had then embarked upon work as a kitchen hand, with an ambition of becoming a chef.

38 The learned judge also received into evidence two reports of a forensic psychologist, Mr Joblin.

39 In consultation with Mr Joblin, the respondent denied that he had used cannabis on the night of the offences, although he admitted use of cannabis in earlier years. He admitted to drinking alcohol on the afternoon of 28 August, and at the party.

40 It was not alleged against the respondent on the plea that he had any prior convictions. Mr Joblin noted, however, an incident - apparently described by the respondent as a "push and shove" - arising out of which he had been charged with assault. The learned sentencing judge was informed by counsel that the respondent had been found guilty of assault at a Magistrates' Court hearing in February 2004; and had been fined $450 without a conviction being recorded. There seems to have been no enquiry at the plea hearing as to how it was that an inconsequential push and shove, as the respondent would have it, led to police involvement, the laying of a charge and ultimately the imposition of a fairly substantial fine.

41 The respondent's account of the events the subject of the present appeal, when he was first seen by Mr Joblin, was entirely exculpatory. It could be reconciled neither with the injuries inflicted upon the complainant nor with the jury's verdict.

42 In substance, having interviewed and assessed the respondent, Mr Joblin was unable to offer any explanation for the offending conduct. In his first report, he said this:

"At the time of my interview with Mr McCloy he presented very well. There was no evidence of any psychological clinical abnormality with him at all. He is of good intellect and is certainly not psychotic. He has had no previous history of attention from mental health personnel. I note that he is seeing the regulatory doctors in custody. He is not on any medication. I note that he had an incident at the MAP where he was assaulted. He is now in protection.

The charges for which he is before this court are obviously very serious. From my experience in dealing with such charges it is in most cases possible to locate a source of disquiet relevant to the offending. That source of disquiet can involve inadequacy, anger or rage. It can involve a psychosexual disorder relating to sexual gratification only available from aggressive sexual offending. It is often possible to locate reasons why an offender would want to demean and violently humiliate the victim by means of an aggressive act. Further it is often possible to determine premeditation and intent. In some cases it is possible to review issues such as age or ethnic background as providing some basis for the attack. There may be accompanying fantasies relating to aggression.

Having reviewed those issues with Mr McCloy he denied that there was any basis for hostility. He reported that there was no reason for him to be angry. He had had no difficulty with the complainant over the years he has known her. He was not angry with anyone else and was not, therefore, taking that anger out on her. He reported there were no other stressors impinging on him that may have surfaced to cause this particular violent attack. He denied that he is sexually gratified by violent sexual encounters. He denied that he has any difficulty with the victim's age or that girls of that age are his preferred sexual partner.

It is, therefore, extremely difficult to indicate in this report that there were inherent psychological issues relating to the charges that not only cause some concern but also may need addressing.

It is also quite obvious, however, that this is Mr McCloy's subjective report to me. Under the circumstances, however, in my opinion that report seems to be genuine."

43 On the occasion of his second interview with Mr Joblin, the respondent told the witness that he seriously disagreed with the decisions of the jury; and that he had gone to trial in the firm belief that he was innocent.

44 Again, Mr Joblin was unable to offer any explanation for the offending conduct. He said this:

"He does not present with symptoms of any psychological abnormality and it is difficult, therefore, to report that the offences for which he is now convicted represent symptoms of any psychological abnormality. There is no doubt from perusal of the victim's statement that there was serious aggression, verbal and physical. There is further no doubt that that represented a serious disturbance in psychological functioning in itself."

He did not find an explanation for the respondent's conduct in his consumption of alcohol on the day and evening in question. Further, as I have earlier noted, the respondent had denied drug use which might have given some explanation for what he had done.

45 The personal testimonials and Mr Joblin's reports aside, at the plea hearing counsel relied upon his client's youth, the absence - subject to the matter which I noted earlier - of prior offending, and to assaults which the respondent had experienced whilst on remand. The assaults had resulted in the respondent being placed under protection, this adding, as counsel put it, to the burden of imprisonment.

46 The learned judge sentenced the respondent on the basis that -

• He was a young offender, but that nonetheless he was before the court for serious offences.

• He had not been in custody other than in respect of such offences.

• By reason of his age he might well be vulnerable in the prison population.

• He had "many worthwhile values", and had the continued support of his family.

• He was otherwise a person of good character, well regarded in the community in which he lived.

• He had previously been in (stable) employment.

• With the support of his family and friends, and being of otherwise good character, his prospects for rehabilitation were favourable, and should be achieved.

• The sentencing principle of specific deterrence "may be of less importance" having regard to the respondent's lack of prior convictions and otherwise good character.

• The sentence must reflect the nature and gravity of the respondent's offending conduct.

• The sentence must reflect denunciation of the respondent's conduct, and punish him.

• General deterrence was a relevant sentencing consideration.

• The non-parole period should have regard to the respondent's prospects for rehabilitation, not impose a sentence which was crushing, and have due regard to the principles of totality and proportionality.

Submissions

47 Counsel for the Director and for the respondent agreed upon one thing: The offences committed by the respondent were extremely serious.

48 Against that background, counsel for the Director submitted, having regard to aspects of his submissions which I have noted earlier, that denunciation, general deterrence, retribution and punishment assumed a real significance and must have been given weight in the exercise of the sentencing discretion. But they had not been given importance, or at least not sufficiently so. The respondent's youth had been relied upon, but that did not oblige a sentence which was, all things considered, entirely inadequate. The individual sentences were plainly inadequate, and the directions for partial cumulation evidenced a failure to recognise that each offence constituted an additional and real violation of the complainant, and substantially contributed to the aggregate of her humiliation and suffering.[1] The proper course here had been to "add a little" for the discrete offences, but not so as to impose a total effective sentence that was crushing, or which offended against the principle of totality.[2] In fact, there had been little cumulation, even in the case of very serious offences. A proper approach had mandated imposition of a much heavier total effective sentence, and a considerably longer non-parole period.

49 As to the significance of the respondent's youth, counsel submitted that the approach adopted by Batt, JA in R v Mills,[3] in a passage which has often been cited, does not apply where a person is to be sentenced for very serious offences. He referred to R v Tran[4] and DPP v SJK & GAS[5]. Later in argument, he referred also to R v PDJ[6].

50 In response to my question, counsel for the Director agreed that had the respondent engaged in certain of the offending conduct whilst knowing that the complainant was menstruating, it would have been a circumstance of aggravation. But the respondent had denied knowledge of that matter in his record of interview, the learned judge had made no finding about the matter, and it would be unsafe, counsel accepted, to now make a finding adverse to the respondent.

51 Counsel for the respondent submitted that the apparent leniency of the sentences was explained by his client being a young offender, without prior convictions, whose offending conduct was quite out of character and probably alcohol-fuelled, and whose prospects of rehabilitation must be accounted good. Counsel added that his client's current imprisonment was made the more burdensome because he remained under protection, at Ararat.

52 Expanding upon the submission just noted, counsel for the respondent argued that the general approach to sentencing young offenders described by Batt, JA in the oft-cited passage in Mills was in point. He accepted that in some cases the fact that the convicted person is a young offender will not prevent other sentencing considerations being placed at the forefront. He appeared to submit that this would only be where the offender had a history of prior offending, this bearing upon prospects for rehabilitation. In that connection, he cited R v Huynh,[7] and Tran[8].

53 It was part of counsel's submission, in reliance upon Mills, that youth goes not simply to the type of sentence which is imposed, but also to the length of sentence. Here, the relevant context was that of a young first offender being sent straight into an adult gaol.

54 Counsel built upon the case law pertaining to young offenders by referring to certain provisions of the Sentencing Act 1991. In particular, he pointed out that the effect of the definition of "serious sexual offender" in s.6B is that a young person who has committed sexual offences is specifically not subject to the sentencing consideration set out in s.6D, or to the presumption of cumulation effected by s.6E. Thus, counsel submitted, there is statutory recognition of the special position of young people in a sentencing context.

55 Somewhat paradoxically, the thrust of his primary submission having been that a sentence of apparently great leniency was explicable by the youth of his client, counsel submitted that in fact the total effective sentence and non-parole period were not manifestly inadequate even if the respondent had been a mature offender. He referred to the sentence which had been imposed, an appeal, in DPP v Daly[9]; and to the sentence affirmed on appeal in R v Fidler[10].

Sentencing young offenders

56 In the main, as will be apparent from what I have thus far said about counsel's submissions, the respondent resisted the Director's complaint that the sentence was manifestly inadequate by calling in aid the sentencing considerations mentioned in Mills. Nothing in the present case, counsel for the respondent submitted, rendered those considerations inapplicable.

57 Counsel for the Director and the respondent were not as far apart, concerning the correct approach to sentencing young offenders, as might appear from what I have thus far said about their submissions. Counsel for the Director did not submit that the sentencing considerations mentioned in Mills ceased to be of any relevance in the case of an offender who had committed serious crimes; but rather that those considerations ceased to be of decisive importance in the sentencing process in such cases. Counsel for the respondent did not submit that ordinary sentencing principles had no part to play in the sentencing of young offenders; but rather that primacy should be given to the prospect of rehabilitation of such offenders, save where a history of prior offending denied good prospect of rehabilitation.

58 That said, there was a divergence in the submissions; counsel for the respondent would only accept that the importance of the Mills considerations were diluted when an offender's prior criminal history showed that the offender was a doubtful prospect for rehabilitation. But counsel for the Director submitted that an offence might be intrinsically so serious as to dilute the importance of those considerations regardless whether the offender was shown to be a doubtful prospect for rehabilitation.

59 In my opinion, the true position is not that contended for by either party. Rather, in the usual case, for reasons explained in Mills, the considerations there mentioned will be at the forefront when a young offender is to be sentenced. But any one of a series of circumstances may dictate a different approach in a particular case. I should give some examples.

60 In respect of a particular offence, general deterrence may ordinarily be a predominant sentencing consideration. Thus, the offence of culpable driving, as to which see R v Sherpa,[11] cited in R v Toombs[12] and in Tran[13]. But there can be no inflexible rule. There may still be cases of culpable driving involving a young offender where prospect of rehabilitation is at the forefront of sentencing considerations.

61 Again by way of example, in a particular case the circumstances of the offence, coupled with the offender's past criminal history, may operate to deny the application of a sentencing regime which has rehabilitation as a consideration of first importance. Huynh was such a case.[14]

62 Further again, in a particular case the circumstances of the offence, regardless that the offender does not have a past criminal history, may be so serious as to make considerations such as punishment, denunciation and deterrence - general and special - of prime importance. SJK and GAS was such a matter. Neither offender had prior convictions, but each had participated in a very grave instance of the crime of manslaughter. There, counsel for the Director successfully contended that the sentencing judge, in all the circumstances, had given too little weight to the gravity of the offences, and too much importance to the aspect of rehabilitation of the respondents.[15] PDJ was also a matter falling into that category. The offence was murder. The appellant was a young man who had no prior convictions. The head sentence of 16 years and the non-parole period of 12 years were not disturbed on appeal. O'Bryan, AJA, with whose reasons Chernov and Eames, JJA relevantly agreed, said that[16] -

"The age of the applicant was considered carefully in terms of a long period of incarceration. His Honour said, in effect, that had the offender been older the sentence would have been higher. There can be no doubt in my mind that conduct of the kind indulged in by the applicant cannot be significantly reduced because he is a youthful offender in the sense in which that expression is used in R v Mills. A youth who roams the streets at night, drinking alcohol, planning and participating in serious criminal activities, cannot rely upon his immaturity or lack of years when he is caught.

Sadly, with very serious offences such as murder, armed robbery and rape, the age of the offender is reducing to an alarming level. The youthful offender can no longer expect to trade on his or her youth in such cases for the elements of deterrence, condemnation and just punishment are significant matters."

The apparent breadth of his Honour's observations does not require analysis in the present case. It is enough to say that those observations recognize the importance, in particular circumstances, of sentencing considerations other than those highlighted in Mills.

Sentence

63 In my opinion, even allowing for the youth of the respondent, for the importance of the testimonials tendered on his behalf on the plea, for the fact that he had spent time under protection whilst on remand, and for the fact that, as it appeared, he was imprisoned under protection at time of appeal, the sentence imposed at trial - by which I refer to most of the individual sentences, the order for cumulation which yielded the total effective sentence, and the non-parole period which was fixed - was manifestly inadequate. The following considerations are pertinent.

64 First, it is the certain fact that the respondent subjected the complainant to a brutal and prolonged assault, which took place after she had left the party unescorted late at night. The physical attack, its sexual content apart, was gross and prolonged. Photographs which went into evidence make the point very clearly. The sexual offences involved discrete acts, distinctly separated in time, in the course of which the complainant was forced into a series of positions and then entered in different ways. The oral sex with the respondent in which the complainant was forced to participate culminated in the respondent ejaculating into her mouth. That was followed by a further threat to kill, on this occasion directed not only to the complainant, but to her baby. In all, as I said earlier, the submissions for the Director concerning the nature, duration and extent of the offences were well-merited.

65 Second, almost all the offences, discrete in point of time, and each involving humiliation and degradation of the respondent, called for a measure of individual cumulation. To my mind, the orders for cumulation made below were at least too few.

66 Third, the respondent could not call remorse in aid. His conduct from 29 August 2004 until conviction - and, for that matter, after sentence - bespoke absence of remorse. There was a contested committal hearing, and then a trial. The respondent's assertions, in the face of the photographs of the complainant[17] taken after the incident, and in the face of the examination findings, that this had been a case of consensual sexual activity, were next to absurd. The respondent's attitude could only have sharpened the complainant's mental anguish.

67 Fourth, although the respondent was sentenced as a person without prior convictions, he had been before the Magistrates' Court in February of the year of the presently relevant offences, charged with assault. The charge had been found proven. What the respondent did on 29 August was evidently of a different order of magnitude. But it may be doubted whether the earlier incident was as inconsequential as it was painted on the plea, and again before this Court.

68 Fifth, the fact that no reason had been discovered why the respondent had acted as he did was in itself a worrying matter. It bore upon the issue of rehabilitation. It was right for the judge to take account of the testimonials tendered on the respondent's behalf. They suggested that there was good prospect of rehabilitation. But, as against that, the respondent's very serious criminal conduct remained unexplained. In my opinion it was at least speculative whether the respondent was as good a prospect for rehabilitation as other material suggested.

69 I do not suggest, in the circumstances just described, or having regard to the various matters which I have catalogued, that the prospect of the respondent's rehabilitation was to be disregarded in the sentencing process. But the offending was of such a nature as to render the prospect of rehabilitation - assuming that any confident prediction could be made in that connection - less significant in the sentencing mix. Punishment, denunciation, and general deterrence were, in my opinion, of much significance. That was so despite the respondent's youth, despite the circumstances of his imprisonment, and despite what might be said to be the uncertainty that any sentence would operate as an effective special deterrent - that is, if one does not have an explanation why a person offended in a particular way, how can it be said that a sentence will act as a personal deterrent?

70 I would allow the appeal. I would impose heavier sentences on each of counts 2, 4, 5, 6, 7, 10 and 14. Using the sentence on count 5 as the base sentence, I would order cumulation of modest extent in respect of each other sentence except that imposed on count 11, so as to reflect the quite discrete nature of the offending. The total effective sentence at which I would arrive is eight years. I would fix a non-parole period of five years, so as to give the respondent an extended opportunity to demonstrate an ability to rehabilitate himself whilst remaining under a degree of supervision. I emphasize that in proposing that the respondent be re-sentenced in such a way I have accorded such importance as I consider is possible to the circumstance that the respondent is a young offender; and I have taken account of the double jeopardy aspect inherent in a Director's appeal.

71 I would re-sentence the respondent as upon the individual counts as follows:

72 I would make the following orders in respect of concurrency and cumulation, this producing the total effective sentence to which I referred a moment ago:

That the sentence on count 11 be concurrent with the sentence on count 10. That six months of the sentence on count 2, two months of the sentence on Count 3, three months of the sentence on count 4, five months of the sentence on count 6, five months of the sentence on count 7, four months of the sentence on count 9, seven months of the sentence on count 10 and four months of the sentence imposed on count 14 be cumulated on each other and on the sentence imposed on count 5, the total effective sentence being eight years imprisonment.

73 I would fix, as I said a few moments ago, a non-parole period of five years; and I would also make such declaration as to pre-sentence detention, and such ancillary orders, as might be required.

[1] Counsel referred to R v O'Rourke [1997] 1 VR 246 at 252 per Winneke P, Brooking and Callaway, JJA.

[2] See O'Rourke at 253.

[3] (1998) 4 VR 235 at 241.

[4] [2002] VSCA 52; (2002) 4 VR 457 at 461-462, [11]- [14].

[5] [2002] VSCA 131 at [60]- [66].

[6] [2002] VSCA 211; (2002) 7 VR 612 at 629, [82] and [83].

[7] [2004] VSCA 156, particularly at [15], [17] and [18] per Nettle, JA.

[8] At 464, [14] per Callaway, JA.

[9] [2004] VSCA 63.

[10] [2006] VSCA 17.

[11] [2001] VSCA 145; (2001) 34 MVR 345 at [11] per Callaway, JA.

[12] [2001] VSCA 144; (2001) 34 MVR 509.

[13] At 401, [12] per Callaway, JA.

[14] See at [15], [17], [18].

[15] See at [60]-[66].

[16] At 629, [82]-[83].

[17] And, for that matter, of himself.