DPP v Rongonui [2007] VSCA 274

Court of Appeal (Vic)|2007-12-07|Before: MAXWELL P, ASHLEY and KELLAM JJA

CRIMINAL LAW - Sentencing - Crown appeal - Aggravated burglary - Intentionally causing injury - Offences committed while offender on parole - Parole subsequently cancelled - Sentencing judge ordered partial concurrency with imprisonment consequent upon cancellation of parole - Absence of exceptional circumstances - Whether order for concurrency open - Whether sentence manifestly inadequate - Sentencing discretion re-opened - Relevance of subsequent violent offending to prospects of rehabilitation - Sentencing Act 1991, s 16(3B).

**2 On 28 July 2005, the victims (L and R) were asleep in an upstairs bedroom. At 1.20 am they were woken by the respondent, who was standing at the foot of their bed yelling 'Where's Michael?'. The respondent held a golf club over his shoulders ready to be swung. He said 'Get the fuck up' and said to L 'I am going to fucking kill you'. He swung the golf club and hit L in the bicep, L having raised his right arm to block the blow.

3 L jumped out of bed and started punching the respondent to the face, struggling to grab the golf club. R also got out of bed and the respondent said to her, 'Don't move, bitch, don't fucking move.' R managed to escape from the room, screaming. L then asked the respondent who he was and what he was doing. The respondent replied: 'You raped my mother. You raped my mother. My mum's dead.'

4 The wrestling between them continued inside the bedroom and then outside. The bedroom wall was damaged. They fell about half way down the stairs. L grabbed the stair handrail. The respondent ran down the stairs and out the front door. He then ran away. L then saw a second man in the doorway. That person (who has not been identified) ran at L and threw a piece of timber at him. The timber hit the door. Another resident of the house was woken by the altercation. Both he and L called police.

5 The respondent was arrested and interviewed on 15 December 2005. He was charged with one count of aggravated burglary, which alleged that he had entered the premises**

... as a trespasser ... with intent to commit an offence involving an assault to a person therein and at the time of entering the person was then so present and [the accused] knew a person was then so present or was reckless as to whether a person was then so present.

The respondent was also charged with one count of intentionally causing injury to L. The respondent was released on bail. On 2 February 2007 he pleaded guilty to both charges.

**6 He was sentenced to 10 months' imprisonment on the count of aggravated burglary and six months' imprisonment on the count of intentionally causing injury, of which two months was directed to be served cumulatively on the sentence for aggravated burglary. That made a total effective sentence of one year. The judge ordered, however, that all but two months of that sentence be served concurrently with the sentence he was already serving for breach of parole.

7 At the time of commission of these offences, the respondent was on parole, having been released from custody in February 2005. Prior to the hearing of the plea, on 29 November 2006, the Adult Parole Board cancelled that parole. At that time the sentence was due to expire on 27 November 2008.**

8 On the plea reliance was placed on a report from Bernard Healey, consultant clinical psychologist and honorary consultant to Corrections Victoria. The following extracts of Mr Healey's report are of particular relevance:

... [The respondent] said he had smoked cannabis between 14 and 16, ceasing because of what he described as marked paranoia, the view that others were 'out to get him'. He began consuming alcohol (beer, spirits, wine), a habit that continued to the time of his remand, apart from periods when he was deprived of his liberty. He began smoking amphetamine, then 'ice' a month after his release from custody in February 2005; he used on a 'social' basis, often in combination with alcohol. By July 2005 he had begun abusing prescription medication (essentially Xanax, at times Serepax) but this habit continued only for 4 weeks. In the context of such a potent 'cocktail' of substances he often became detached from events in his surrounds, seriously (if not dangerously) disinhibited - which he believed was the case in relation to the aggravated burglary/recklessly cause injury in July 2005, but about which he has no memory. Whilst he abandoned the abuse of pills, he continued to consume alcohol to excess, and occasionally used ecstasy; ultimately alcohol-affected conduct resulted in his remand on the 28th November 2006. He has given a great deal of thought to his erratic, irresponsible lifestyle, and realises that he must abstain from all harmful substances including alcohol.

... He began smoking cannabis at 14, a habit that ended 2 years later because of emergence of marked paranoia. By 16 alcohol abuse had become prominent, and which continued on an episodic basis until he was remanded on the 28th of November 2006. A month following his release in February 2005 he began smoking amphetamine and 'ice', often in combination with alcohol. After the breakdown of a relationship in the July he also abused benzodiazepines for some weeks, in which context offending occurred but about which he has no memory. During his current remand he has come to the realisation that he must abandon the use of all harmful substances, including alcohol.

... Intellectual testing revealed average capacity, with a full scale IQ of 99, placing him at the 47th percentile, where 53% of his peers would do better. Verbal IQ was 98, non-verbal (performance) IQ 99, verbal comprehension index 89, perceptual organization index 109, and powers for delayed recall were reasonably sound. Personality testing was indicative of settling in his emotional state, certainly in the absence of alcohol and drugs since his remand in November 2006, however there was evidence of anxiety and vulnerability to substance abuse.

Anxiety was reflected in variable concentration and drive, indecisiveness, the feeling that he is about to go to pieces, experience of life as a strain most of the time, plans so full of difficulties he feels like abandoning them, problems piling up so high he believes he will never overcome them, interpersonal relationship difficulties (when in a group having trouble thinking of the right things to talk about, the view that others look at him critically, even when he is with people, feeling lonely most of the time, ready embarrassment, frequent disappointment in others, inability to tell anyone all about himself.)

9 On the plea the respondent's counsel disavowed any argument of mental impairment or temporary psychosis.[1] On the material, that concession was clearly correct. At the same time, counsel argued that the respondent's behaviour was 'not inconsistent with drug intoxication', describing it as 'bizarre'. The judge accepted[2] that the offending was probably explained, though not excused, by the respondent's intake of drugs and alcohol.

10 Section 16(3B) of the Sentencing Act 1991 provides:

Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.[3]

**11 The sentencing judge found that no exceptional circumstances existed.[4] The sentencing judge purported to give effect to the totality principle in two distinct ways - first, by reducing the sentences otherwise to be imposed on the new offences; and secondly, by ordering that only two months of those sentences be served cumulatively with the parole sentence.

12 The Director of Public Prosecutions submits that the second element of this approach constituted specific error because:**

(a) the approach adopted was specifically precluded by s 16(3B); and

(b) her Honour had already given effect to the totality principle by moderating the new sentences to be imposed.

For their part, counsel for the respondent submit that, once it is accepted that s 16(3B) does not deny the operation of the totality principle, sentencing judges may exercise the sentencing discretion to give effect to that principle as they see fit.

13 The Director's submission is clearly correct. Once the sentencing judge had found that there were no exceptional circumstances, the order for concurrency was expressly precluded by s 16(3B). As stated in R v Hunter,[5] the subsection

... was intended simply to abrogate, in the case of an offence committed during a period of parole, the general rule otherwise applying by virtue of s 16(1) that sentences are to be served concurrently. The prima facie rule of cumulation which s 16(3B) creates is capable of being displaced should the court so direct on the ground of exceptional circumstances.

... To comply with s 16(3B), the sentencing court must first consider whether exceptional circumstances exist. If such circumstances do exist, the court has power to order concurrency, in whole or part; if it does not, the court is bound to order that the parole sentence be served cumulatively on any period of imprisonment which may flow from the cancellation of the parole order.[6]

14 It follows that her Honour erred in the exercise of her sentencing discretion and the sentencing discretion is re-opened.

Totality and s 16(3B)

1"> **15 The applicability of s 16(3B) does not, however, exclude the operation of the totality principle. In R v Piacentino; R v Ahmad,[7] the Crown argued that s 16(3B) would have no work to do unless totality was excluded. Otherwise, it was argued, in a case where no exceptional circumstances were found the sentencing court could simply reduce the sentences imposed, in order to reduce the total period in custody and achieve the same result as if s 16(3B) did not exist.

16 Eames JA, in obiter, rejected the Crown submission. With the concurrence of Buchanan and Vincent JJA, his Honour said:**

Nothing in the language of s 16(3B) suggests, in terms, that it is intended to diminish the totality principle. By taking the principle of totality into account in fixing a final sentence for the new offence or offences, the sentencing judge would in no way be interfering with the operation of s 16(3B) with respect to cumulation of the sentences with the period claimed by the Parole Board for breach of parole. The principle of cumulation is preserved but the new sentence imposed might be moderated by virtue of the totality principle and might in fact lead to a not dissimilar reduction in time in prison to that which might have been achieved upon findings of exceptional circumstances and orders for concurrency.[8]

17 More recently, in Alashkar & Tayar,[9] the Court noted that sentencing courts need to give appropriate weight to the fact that the new offences were committed in breach of parole. The totality principle needs to be applied with due regard to the legislative intention underlying s 16(3B):

[C]onsideration of [the totality] principle must take into account the obvious intention of s 16(3B) of the Sentencing Act that where an offender commits a crime whilst released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed.[10]

18 In R v Hunter,[11] the Court acknowledged the imperative of cumulation under s 16(3B) in the absence of exceptional circumstances, and added the following caution:

[V]iewed as a whole the aggregate sentences imposed by reason of cumulation cannot be greater than any sentence required to fulfil the totality principle and all the appropriate aims of sentencing in the case. There must be relativity between the totality of the criminality and the totality of sentences, not only for the offences for which the person is being sentenced, but for the sentence which the person is currently serving.[12]

19 In R v Sullivan,[13] Eames JA (with the concurrence of Charles and Buchanan JJA) referred to the need to

evaluate the overall criminality involved in all the offences and adjust the sentence downwards, where appropriate, to ensure there is an appropriate relativity between the totality of the criminality and the totality of the length of sentence imposed.[14]

The court which imposes sentence for the later (parole-breaching) offence may, as a result, be constrained to adopt a head sentence which 'will fail to reflect adequately the seriousness of the crime in respect of which it is imposed'.[15]

20 The trial judge said that the facts of the case were 'not only serious but most disturbing'. Noting that there was no basis whatever for the respondent's suggestion that L had raped his mother, the judge said the respondent's behaviour was

particularly troubling because you were able to negotiate successfully your way into the property through a garage and through a door leading from the garage into the house and then able to once in that property locate in a cupboard two clubs, one which ultimately remained downstairs with your fingerprints on it, and the second being taken by you to the upstairs area where you confronted [L].

The experience for both [L] and [R] must have been terrifying ... [T]he experience was an extremely frightening one for them, being woken from their sleep at 1.20 am by you with a T-shirt around your head and wielding a golf club which you then used to assault L for, it seems, absolutely no apparent reason other than the bizarre allegation you made at that stage ...[16]

21 Her Honour referred to the victim impact statement of L, in which he referred to

the bruising to both his chest and bicep as a result of the use of the golf club. His ribs, he said, were sore for almost two months. He says he had a little trouble sleeping as the attack happened when he was in bed.[17]

difficulties going to sleep and staying asleep for approximately one year after this event. She is now a light and uneasy sleeper. She is anxious and uneasy at night and does not feel safe in her own home.[18]

**22 Aggravated burglary is an offence carrying a maximum penalty of 25 years' imprisonment. This is the highest maximum penalty, short of life imprisonment, for any offence in the criminal law. It is the same maximum as applies for rape, armed robbery, and trafficking in a commercial quantity of a drug of dependence. By setting such a high maximum, Parliament has clearly signified its intention that aggravated burglary be treated very seriously. There is, of course, a wide range of circumstances capable of constituting aggravated burglary, some much more serious than others. In my view, this was a very serious instance of the offence, because it involved burglary with intent to carry out an assault which, in the event, was violently carried out.

23 This is the second time the respondent has appeared before the Court of Appeal. On the first occasion, he was the appellant. He had pleaded guilty to two counts of intentionally causing serious injury; two counts of affray; three counts of attempted armed robbery; and one count of recklessly causing injury. As with the present offending, the conduct giving rise to those charges was characterised by unprovoked violence, and threats of violence, against innocent people. In one instance, the respondent had punched the victim, and then stamped on his head. The attempted armed robbery counts involved the use of a pistol, accompanied by threats to shoot. In one case, the victim of the robbery was hit with a pistol. Worse still, the respondent had committed some of those offences while on parole for even earlier offences. Others of those offences had been committed while he was on bail.

24 The Court of Appeal upheld the appeal on the ground that the trial judge had made an error in cumulation. On re-sentencing, the respondent was sentenced to a total effective sentence of four years with a non-parole period of two years. He was released on parole following the completion of that non-parole period and it was while he was on parole that he committed the offences the subject of the present appeal.**

25 One of the arguments advanced before this court on the previous appeal, and again on this appeal, concerned the respondent's age. He was 17 at the time of the earlier offences and 20 by the time he committed the present offences. He is now 22. In my view, what the Court said on the last occasion applies equally to the present:

The importance of rehabilitation in a youthful offender cannot be gainsaid but the principles enunciated in R v Mills[19] are not immutable. Indeed, as Callaway JA remarked in R v Tran:[20]

The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.

It is perhaps trite to observe that the law is not, and cannot be, that regardless of the seriousness of the specific offences or the number and nature of the previous criminal convictions, a youthful offender cannot be sent to an adult prison.[21]

26 The trial judge described as 'extremely concerning' the respondent's prior history of convictions for violent offending, which she set out as follows:

You have 14 appearances in the courts from 14 May 1998 through to 2 April 2003. You have been dealt with for a total of 107 charges, 44 without conviction and 63 with conviction. You have an extensive criminal history and an extensive involvement with the court system. In the past, you have been sentenced to the following dispositions: without conviction undertakings; without conviction probation; without conviction Youth Supervision Order; Youth Attendance Order; multiple terms of detention in Youth Training Centres and a term of imprisonment imposed on 14 March 2003 of which you are currently undergoing a period of parole that you owe to the Parole Board in relation to that sentence.

As I say, your entire criminal history is troubling but in particular the following:

On 1 September 2000 you were dealt with for robbery and unlawful assault;

On 6 July 2001 for assault by kicking, three charges of unlawful assault and assault with an instrument;

On 23 November 2001 for causing injury intentionally;

On 20 March 2002 for affray and causing serious injury intentionally;

On 9 January 2003 for causing injury intentionally;

On 14 March 2003 for causing serious injury intentionally (two counts), affray (two counts) and causing injury recklessly.[22]

Her Honour was right to describe this as 'a very disturbing prior criminal history in relation to matters of violence'.

27 As noted earlier, it was accepted by the sentencing judge that a combination of drugs and alcohol had played a significant part in the offences the subject of this appeal. Her Honour recorded the submission of defence counsel that

the experience of [the respondent's] violent, alcoholic father up until the age of 11 had a lot to do with explaining [his] abuse of drugs and medication, and [his] lack of coping skills. He submitted, consistent with his instructions from [the respondent's] mother, that [the respondent] had no other difficulties in [his] background, other than the family setting of domestic violence.[23]

28 The focus on the plea was on the respondent's rehabilitation prospects. Her Honour accepted that the respondent had come to the realisation that he must 'abandon the use of all harmful substances including alcohol.' Her Honour expressed concern, however, that following release on parole in February 2005:

it appears that even having spent time in custody for matters involving violence you did not embrace the opportunities given to you by the Parole Board, but rather within one month of release were using illegal substances and then prescription medication and alcohol again. This does not give me a lot of confidence in relation to your rehabilitation prospects. Nor did you learn from the drug and alcohol courses completed by you at Youth Training Centres.[24]

**29 Recognising the importance of rehabilitation when sentencing youthful offenders, her Honour said that she had 'at best ... only guarded optimism regarding your rehabilitation prospects.' Her Honour also took into account the respondent's early intimation of his intention to plead guilty, and the plea of guilty. Her Honour accepted that the plea of guilty indicated remorse.

30 There were, accordingly, mitigating factors which were properly taken into account in sentencing the respondent. But, with great respect to the sentencing judge, I am unable to see how those factors, or the application of the principle of totality, could reasonably justify a sentence of 10 months' imprisonment on the count of aggravated burglary or a sentence of six months' imprisonment on the count of intentionally causing injury. Given the seriousness of the offending and the respondent's criminal history, I consider that the sentence imposed fell well below the lower end of the range reasonably open in the proper exercise of the sentencing discretion.**

31 At the conclusion of argument on the appeal, Kellam JA drew attention to the following passage in the sentencing reasons:

For completeness, I note that there is an outstanding matter due to go to contest mention on 29 May 2007 for an alleged assault that occurred at a 7-Eleven store in St Kilda. That matter is yet to be completed and I have not taken that into account in relation to sentencing you for these matters.[25]

As neither counsel was able to provide any further information about the charge there referred to, the appeal hearing was adjourned to give the parties the opportunity to make appropriate investigations and file supplementary submissions. That has since occurred.

**32 The position appears to be as follows. On 29 May 2007 - a matter of weeks after the passing of sentence for the present offences - the respondent appeared at the Melbourne Magistrates' Court and pleaded guilty to 10 offences committed on six separate dates over a 10 month period between 10 January and 23 November 2006. For those offences, the respondent was sentenced to an aggregate term of six months' imprisonment. This sentence was ordered to be served concurrently with the sentence imposed on 4 May 2007 and with the unexpired portion of the sentence in respect of which the respondent's parole was cancelled.

33 The offences to which the respondent pleaded guilty on 29 May (and the dates on which they occurred) were as follows:**

criminal damage (10 January 2006);
recklessly cause injury (10 January 2006);
handle stolen goods (27 June 2006);
possess controlled weapon without excuse (9 July 2006);
use unregistered motor vehicle (9 July 2006);
as a learner driver, failing to be accompanied by a qualified driver (9 July 2006);
fail to answer bail (22 August 2006);
intentionally damage property (18 October 2006);
intentionally cause injury (23 November 2006);
shoplifting (23 November 2006).

**34 Of most significance, in my view, are the subsequent offences of violence. On 10 January 2006, the respondent, in company, led an unprovoked assault on a member of staff at a restaurant. This followed his having kicked in the front window of the restaurant. He was arrested soon afterwards and denied the allegation. On 23 November 2006, acting alone, he punched a store attendant in the face after the attendant asked him to pay for items which he had stolen from the store. The count of possessing a controlled weapon concerned the respondent having been found in possession of a large kitchen knife. When interviewed, he told police that he had the knife for 'self-defence'. The only submission now made on his behalf with respect to this charge is that it did not involve actual violence.

35 It is also significant, in my view, that these offences of violence were committed while the respondent was both on parole for the offences previously dealt with by this Court and on bail for the offences the subject of this appeal.

36 The Crown submits that the violent offending by the respondent subsequent to the commission of the offences the subject of this appeal**

demonstrates even more starkly than do his prior convictions his complete disdain for the law and his dangerous propensity for engaging in serious unprovoked violence. Furthermore, such offending also reveals the respondent's continued contempt for the attempts by the community, through the parole board, to assist him to rehabilitate. The respondent's repeat offending whilst on bail suggests very strongly that he is not motivated to change his lawless lifestyle.

37 The Crown relies on what was said by the Full Court of the Supreme Court in R v Rumpf,[26] as follows:

In this case the Court in considering a minimum term is to have regard to the respondent's past history as it exists at the time sentence is imposed, whether at first instance or on appeal. The Court is to have regard to the whole of the offender's past history, not merely to his history up to the time of offending.

While the Court has regard to the whole of the offender's antecedents in making decisions in respect of a minimum term it is not entitled to use convictions occurring later than the relevant offence, for the purpose of increasing the length of the head sentence which would otherwise be imposed (cases and citations omitted) ... While convictions later than the offence cannot be used positively to increase the head sentence which would, in the absence of considerations personal to the offender, otherwise be imposed, they may be used, in my opinion, to negate, reduce, or qualify an inference as to the offender's later conduct which would otherwise arise and operate in mitigation of sentence. In this way they may prevent a reduction of the sentence which would be imposed in the absence of the mitigating inference.[27]

It is accepted that the relevance of subsequent convictions is not confined to the fixing of the non-parole period.[28] The Crown also draws attention to s 5(2)(f) and s 6 of the Sentencing Act 1991, which require the sentencing court to have regard to the offender's 'previous character'.

38 Accordingly, the Crown submits, the respondent's subsequent offending is relevant to re-sentencing in the following ways:

the weight to be given to the sentencing principles of specific deterrence and community protection is increased;
the weight to be accorded to matters in mitigation, in particular to the respondent's youth and prospects for rehabilitation, is reduced;
it is now questionable whether the respondent's plea of guilty is reflective of remorse; and
the respondent is not entitled to be treated with the same degree of leniency as was previously warranted.

**39 In response, counsel for the respondent argue that the subsequent offences have no relevance to the issue of whether the plea of guilty for the present offences was indicative of remorse. They argue, moreover, that the leniency to be afforded to the respondent should not be greatly reduced by reason of the subsequent offending. Counsel point out that the subsequent offences occurred before the respondent was arrested in November 2006. That being so, it was contended, the subsequent offending did not detract from the submission made on the plea, that the November 2006 arrest was 'a learning lesson for the respondent, in the sense that it clearly brought home to him the consequence of lack of compliance with parole.'

40 Counsel for the respondent urge that the subsequent offending should not assume too great a significance in the re-sentencing. They draw attention to what was said by Vincent JA in R v Pham,[29] as follows:**

It is difficult to avoid the impression that his later history assumed inappropriate significance in his Honour's assessment of the sentence to be imposed for these offences and resulted in the imposition of a sentence that was outside the available range. It seems to me distinctly possible that he took those matters into account for reasons other than the proper manner in which they could be so regarded, that is, when making an assessment of the appellant's prospects of rehabilitation.

**41 This is a very troubling case. The respondent is still a relatively young man, but he already has a long, and quite shocking, record of unprovoked violence against innocent people. He has shown himself wholly undeterred by the punishments previously imposed on him, and wholly unable to take advantage of the opportunities which he has been given, whether in the form of drug and alcohol education while in custody or in the form of supervised release from custody.

42 The issue of rehabilitation becomes quite vexed in a case like the present, where the offender seems bent on self-destruction. The offences the subject of this appeal were - as the respondent must eventually have recognised - a breach of his parole. He was released on bail in December 2005 and he must then have recognised that, if he was ever to turn away from violent behaviour, that had to occur during the period of his bail. For him instead to have committed an unprovoked assault as early as 10 January 2006, and another on 23 November 2006, shows that he is either unwilling or unable to participate in his own rehabilitation. It is, in my view, no overstatement for the Crown to have submitted that the respondent's prospects of rehabilitation are bleak.

43 I have already expressed my view that the present is a very serious instance of aggravated burglary. The fact that the offence was committed while the respondent was affected by drugs and alcohol in no way reduces his culpability. It merely underlines just how dangerous the respondent is when - as has so often been the case - his propensity for violence is primed by intoxication. That factor makes the protection of the community a more than usually significant sentencing factor in this case, in my view.[30]

44 The statistics provided to the Court show that over the past five years custodial sentences for aggravated burglary have ranged from three to six months at the bottom end of the range to six to seven years at the top. The median sentence is around two years. In DPP v Mann,[31] this Court imposed a sentence of seven years for aggravated burglary and seven years for armed robbery, for 'a violent home invasion, where a victim was restrained and hooded, all perpetrated with the aggravating presence of a loaded gun.'[32] Although the present case involved no gun, it nonetheless involved the use of a weapon and a threat to kill, and would have been no less terrifying for the victims. There, as here, the offender had a long criminal record, but his prior convictions were for dishonesty, not violence. There**

**the offender was on bail when the aggravated burglary took place; here the offender was on parole.

45 No two cases are identical. The offender in DPP v Mann was twice the respondent's age. But the decision in DPP v Mann does, in my view, point to the kind of sentence which should be imposed for a serious aggravated burglary such as this, when committed by a person with the respondent's history of violent offending.[33] I am mindful, of course, of the discount to which the respondent is entitled by reason of the double jeopardy in which the Crown's appeal places him. I also take into account that, his parole having been cancelled, the respondent may be required to serve the whole of the unexpired period of that earlier sentence, and to do so cumulatively with the sentence imposed for these offences. I take account of the principle of totality, as discussed earlier.

46 In all the circumstances, I consider that the respondent should be re-sentenced as follows:

• on the count of aggravated burglary, five years' imprisonment;

• on the count of intentionally causing injury, two years' imprisonment.**

I would order that nine months of the sentence on the second count be served cumulatively on the sentence on the first count, giving a total effective sentence of five years and nine months. I would fix a non-parole period of three years and nine months.

47 I have had the advantage of reading in draft the reasons for judgment of Maxwell P. I agree, for the reasons which his Honour gives, that the appeal should be disposed of as his Honour proposes.

**48 For the reasons stated by Maxwell P, I agree with the course he proposes.

[1] Cf R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 169 A Crim R 581.

[2] Reasons for sentence [13], [25].

[8]Ibid [63] (emphasis added). Nettle and Redlich JJA agreed that the totality principle was to be applied where an offender is serving the parole sentence at the time of sentencing for breach offences, as stated in R v Hunter, and stated that the parole sentence was to be taken into account in the exercise of the sentencing discretion.

[15] See Mill v The Queen (1988) 166 CLR 59, 67.

[16] Reasons for sentence [10]-[11].

[21] R v Rongonui-Chase [2004] VSCA 25; (2004) 144 A Crim R 242, 250 [42]-[43] (Coldrey AJA, with whom Winneke P and Bongiorno AJA agreed).

[22] Reasons for sentence [36] - [37].

[27] Ibid 475 (McGarvie J, with whom Young CJ and Murray J agreed).

[28] Alexandros v Birchell [2000] VSC 306; (2000) 31 MVR 307, [18]-[20] (Smith J).

[33] See also, whilst again the circumstances differ, R v Norris [2007] VSCA 241, particularly [47].

At a glance

Court

Decision date

Before

Source

Judgment (120 paragraphs)

Parties

Cases Cited (5)