DPP v Vucko [2008] VSCA 270

CUMULATION - Permissible purpose of grouping counts together - Discrete offences and victims - Transparency of aggregate sentence - Sentence manifestly inadequate and disproportionate to the number and seriousness of the offences - Violation of homeowner's privacy and security.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading in draft the reasons for judgment of Redlich JA. For the reasons which his Honour gives, I would allow the Director's appeal and re-sentence the respondent as his Honour proposes.

2 I have had the advantage of reading in draft the reasons for judgment of Redlich JA and I agree with his Honour, for the reasons that he gives, that the appeal should be allowed and the respondent re-sentenced as he proposes.

3 I take leave to add that s 9(1) of the Sentencing Act 1991 is drafted in terms which are beguilingly simple. Presumably, it was intended to make the process of aggregate sentencing relatively simple. But, as the decisions of this court in Felton[1] and Grossi[2] show, in effect it does not relieve a sentencing judge of the need to make any of the decisions as to individual sentences and cumulation otherwise required.

4 On the 5 November 2007 the respondent pleaded guilty in the County Court to 33 counts of burglary,[3] 32 counts of theft,[4] possession of a registered firearm whilst prohibited[5] and possession of a drug of dependence.[6] On the 19 November 2007 the sentencing judge fixed an aggregate sentence of 5 years' imprisonment pursuant to

s 9 of the Sentencing Act 1991 (the Act) and ordered that the respondent serve a minimum of 3 years' imprisonment before becoming eligible for parole.

5 The sentencing judge was 'satisfied that all of the offences were part of a 'series of offences of the same or similar character'. In his sentencing remarks his Honour stated that he considered 18 months to 2 years to be the appropriate notional range of sentences for each count of burglary and 6 to 12 months for each count of theft. By imposing an aggregate sentence rather than separate sentences of imprisonment in respect of each individual offence, and by indicating the range of sentences that he regarded as applicable for each type of offence, his Honour was complying with the directive given by this court in DPP v Felton[7] that the means by which the aggregate sentence was arrived at should be made transparent.[8]

6 The respondent had previously been sentenced to a term of imprisonment on 13 July 2005. He was released on parole on the 8 November 2006. Between 23 December 2006 and 28 March 2007, whilst on parole, the respondent committed the offences the subject of this appeal. On the 31 January 2007 the respondents parole was cancelled. He was subsequently arrested on 31 March 2007 and immediately commenced serving the balance of the 'parole sentence' owing to the Parole Board which at that time was 15 months. As the respondent was serving that parole sentence at the time of his sentence, and as no exceptional circumstances were found to exist, the sentencing judge further ordered, in accordance with s 16(3)(B) that the sentences he imposed be served 'cumulatively upon any period of imprisonment the respondent may be required to serve in custody in a prison on cancellation of the parole order'. The sentencing judge also made 63 compensation orders totalling $359,972 pursuant to s 86 of the Act and ordered that the respondent be disqualified from obtaining a drivers licence for a period of 4 years and 6 months pursuant to s 89(4)(B) of the Act..

7 The Director of Public Prosecutions appealed against the adequacy of that sentence on two grounds. By the first ground, he contended that the aggregate sentence included counts that could not form 'part of a series of offences of the same or similar character' as required by the s 9 of the Act. This ground was abandoned. The second ground was in these terms:

In fixing an aggregate sentence of 5 years imprisonment and a non parole period of 3 years imprisonment and in indicating a sentence range of 18 to 24 months imprisonment for the individual offences of burglary, a sentencing range of 6 to 12 months imprisonment for the individual offences of theft and a sentencing range of 12 months for the offence of possessing an unregistered firearm whilst prohibited (in conformity with the Court of Appeal decision in DPP v Felton [2007] VSCA 65) the sentencing judge-

(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances

(b) failed to sufficiently deter the offender or other persons from committing offences of the same or similar character,

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged

(d) failed to effectively protect the community from the offender

(e) failed to have sufficient regard to the maximum penalties prescribed for the offences

(f) failed to have sufficient regard to the current sentencing practices in respect of the offences

(g) failed to have sufficient regard to the to the nature and gravity of the offences

(h) failed to have sufficient regard to the offenders culpability and degree of responsibility for the offences

(i) failed to have sufficient regard to the impact of the offences on the victims of the offences

(j) failed to have sufficient regard to the loss and damage resulting directly from the offences;

(k) failed to have sufficient regard to the offenders previous character;

(l) failed to have sufficient regard to the aggravating factors concerning the offender, and in particular, the fact that the offences were committed whilst the offender was released under a parole order made in respect of another sentence of imprisonment; and

(m) gave too much weight to mitigating factors concerning the offender and in particular, the drug addiction of the offender.

8 It would be supererogation to recount the facts of each of the 67 offences committed by the respondent. The respondent's modus operandi was that he gained entry to a large number of residential premises by a variety of means which included forcing or smashing doors and windows of the premises. Once inside the premises the respondent generally ransacked the premises and stole items of property. On two occasions the occupants of the premises were present at the time of the burglary.

9 The items that the respondent stole during the burglaries included; jewellery, electrical and computer equipment, cameras, televisions, DVDs, sound systems, items of clothing, sunglasses, cash, keys, bags, wine and other items of personal value. In addition to the items stolen from properties, the respondent, on three separate occasions stole a motor vehicle and on one occasion stole a registered firearm. The value of the property stolen by the respondent was $359,972 and the amount of damage caused to the properties by the respondent was estimated at $45,000. On 30 March 2007 when the respondent was arrested he was in possession of a small quantity of methylamphetamine.

Order in which the aggregate sentence and the parole sentence are to be served

10 During oral argument on the appeal it became apparent that the sentencing judge had erred in his approach to the parole sentence that the respondent was serving at the time of sentence. In the course of the plea in mitigation, counsel for the respondent had stated that the term of imprisonment to be imposed by the court 'will commence, not when your Honour sentences, but will be cumulative upon cancelled parole'. Later he said that the respondent 'has already got one year and three months, but your Honour's got to look at an overall appropriate sentence...and we know that the sentence for this presentment won't start until the end of that one year three months'. The prosecutor and the sentencing judge did not demur from this view. It was not in issue on the appeal that the sentencing judge thus sentenced on the basis that the aggregate sentence he imposed would follow the completion of the parole sentence. This is reflected in the completed 'Return of Prisoners' form.

11 Section 16(3B) of the Act 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.

12 In the decision of R v Kennedy,[9] recently published, this Court dealt with the very same error made by another judge. I said:

Whilst s 16(3B) does not impinge upon the duty of the judge to have regard to the principle of totality, its purpose, as with s 16(3C), is to override the general presumption of concurrency set out in s 16(1).[10] These provisions displace the presumption but they do not direct that the sentencing judge take any particular course.[11]

The learned sentencing judges misconstrued the effect of s 16(3B) as dictating that, if he did not order that the sentences he was to impose were to be concurrent with the parole sentence, the sentences he imposed would be cumulative upon and have to be served after the parole sentence.[12]......

Section 17(1) Sentencing Act provides that a sentence of imprisonment commences on the day that it is imposed. By law the sentences which the judge imposed commenced on 20 November 2007, being the date of sentence, and not the future date which his Honour purported to fix.

In a case such as this, where an offender is subject to several terms of imprisonment some of which carry non-parole terms and others do not, the question of the order in which the sentences are to be served is determined by s 15(1) of the Sentencing Act. The effect of this provision is that the offender must first serve any non-parole period of any sentence before commencing to serve the balance of any other term or terms.[13] To ensure that sentences imposed by the court are served in the correct order, s 15(2) provides that if during the service of a sentence a further sentence is imposed, service of the first-mentioned sentence must, if necessary, be suspended in order that the sentences may be served in the correct order. Thus the earlier sentence is suspended until the respondent has completed the non-parole period of the new sentence.[14]

13 The Court may direct that an aggregate term of imprisonment- fixed in accordance with s 9 -be served concurrently or cumulatively upon other sentences.[15] Hence where an aggregate sentence is fixed and the offender is serving a parole sentence, s 16(3B) will apply. In this case, at the time the aggregate sentence was imposed, the respondent commenced to serve the non-parole period of 3 years. After completion of the non-parole period he would continue to serve the balance of the sentence imposed by the sentencing judge and the previous sentence still owing to the Parole Board, until released on parole.

14 Senior counsel for the respondent, whilst conceding that the sentencing judge had fallen into error in assuming that the parole sentence would be served first, submitted that it made no difference to the sentence fixed by his Honour as he was obliged to take it into account in applying the principle of totality. True it is that the totality principle required the sentencing judge to take account of the whole period of the parole sentence which the respondent may be required to serve as a consequence of the cancellation of his parole[16] but that a sentence fixed on the assumption by the sentencing judge that the entirety of the 'parole sentence' must be served before the sentence is to commence will not necessarily produce the same sentence as one that is fixed upon the assumption that an offender may have to serve the entirety of a 'parole sentence' after the non parole period of the sentence is completed. As I have concluded that the appeal must for other reasons be allowed, it is unnecessary to further consider whether this error contributed to the aggregate sentence that was fixed.

15 The appellant took issue with the range of notional individual sentences that his Honour said were appropriate in relation to burglary and theft, had he not imposed an aggregate sentence. The appellant submitted that in sentencing the respondent, the sentencing judge failed to have sufficient regard to the maximum penalties prescribed for the offences. Counsel further argued that the sentencing judge failed to give sufficient regard to the loss and damage resulting directly from the respondent's offending, to the impact of the offences on the victims and to the nature and gravity of the offences. Attention was drawn to the property that was stolen from some homes which had a special significance to the owner and the fact that the respondent, when questioned about these items, made no comment in his record of interview. The degree of co-operation and remorse shown by the respondent was thus said to be qualified.

16 Counsel for the Director submitted that the sentencing judge had attached insufficient weight to the respondent's extensive prior criminal history. The respondent was 28 years of age at the time of offending. Between December 1998 and July 2005 the respondent had been convicted 243 times arising from 14 court appearances. Those convictions included many convictions for burglary and theft, motor vehicle offences and drug offences. He had been sentenced to varying terms of imprisonment for those offences.

17 His Honour recognised that in view of the respondent's long criminal history and in particular the large number of burglary and theft convictions, specific deterrence was of particular significance. He specifically adverted to the importance of general deterrence to discourage such criminal conduct. Notwithstanding the reference to these matters in his reasons, the appellant contends that the sentencing judge must have failed to attach sufficient weight to the importance of deterring the respondent and other persons from committing offences of this character.

18 The respondent submitted that the appellant misconceived the significance of a criminal history by treating it as though it were an aggravating circumstance. It is true that there is no sentencing principle that requires a more severe sentence to be imposed because of an appalling criminal history. The sentence should never exceed what is proportionate to the gravity of the crime viewed objectively.[17] The explanation for this may lie in the view expressed by the New South Wales Court of Criminal Appeal in R v McNaughton that prior convictions are not part of the objective circumstances of a crime[18] so that they cannot inform the upper limits of the sentence. Be that as it may, the relevance of an extensive criminal history is not confined to denying an offender leniency as the respondent appeared to be suggesting.[19] An offender's antecedents provides an indication of moral culpability, prospects of rehabilitation, the existence of any dangerous propensity, the need for community protection, and the increased need for specific deterrence having regard to the failure of previous penalties to moderate his behaviour.[20]

19 In his sentencing remarks, his Honour referred to the aggravating circumstance that these offences were committed whilst the respondent was on parole. The appellant submits that despite specific reference being made to this fact, the sentencing judge must have failed to treat it as an aggravating circumstance.

20 There were a number of mitigating circumstances to which the sentencing judge made reference. The respondent pleaded guilty at an early stage in the proceedings. He was co-operative with police and made full admissions. The sentencing judge accepted that the respondent was genuinely remorseful. The appellant contends that the sentencing judge gave too much weight to these mitigating considerations.

The respondent's drug addiction - a mitigating circumstance?

21 The appellant also submitted, with some emphasis, that the sentencing judge was in error in treating the respondent's drug addiction as a mitigating factor. His Honour described the relevance of the respondent's drug addiction in these terms:

I accept that this criminal conduct, for which I now sentencing you, occurred in the context of you attempting to finance your rampant drug addiction. I accept that your extensive criminal history has arisen in the context of your longstanding drug addiction. I have taken into account your long term drug addiction as a factor in mitigation. I am satisfied there was a clear link between that addiction and the commission of these offences. Your drug addiction is relevant to your moral culpability, personal circumstances and prospects of rehabilitation, although it cannot be an excuse for the commission of these offences.

22 It appeared from a forensic psychologist's report tendered on the plea, that the respondent's addiction may have arisen as a consequence of a head injury when he was 14 which compromised his impulse control. The respondent's head injury was referred to by the sentencing judge but his Honour did not draw a link between the respondent's head injury and his drug addiction. The sentencing judge also referred to material tendered on the plea that suggested that the respondent was at risk of becoming institutionalised and required considerable support and treatment in order to ultimately reintegrate and succeed in the community. His Honour assessed the respondent's prospects of rehabilitation as being "cloudy".

23 This court has repeatedly emphasised that where an addict is fully conscious of his criminality and continues to resolve his problems by the premeditated commission of serious crimes, the addiction will not ordinarily require any substantial reduction in moral culpability; general and specific deterrence assuming particular significance as sentencing considerations.[21] The respondent's drug addiction was not a factor which would warrant any substantial reduction in the severity of the sentence to be imposed.

24 Whilst conceding that such an approach is ordinarily required, counsel for the respondent submitted that the Crown had not sought to correct the impression conveyed on the plea by counsel for the respondent that the drug addiction was in this case an important mitigating circumstance. Although the submission was not amplified, the thrust of the contention was that it is not therefore open to the Crown to rely upon this error on the Director's appeal. As the Court did not hear full argument on this issue I would assume in the respondent's favour, that the appellant should not now be permitted to complain if the sentencing judge was on this ground encouraged to fall into error- a matter about which I express no conclusion.

25 The appellant submitted that the total effective sentence and minimum term were not 'just and appropriate', but were manifestly inadequate as a consequence of the failure of the sentencing judge to make appropriate orders for partial cumulation of sentence on some or all of the many discrete offence committed by the respondent.

26 An aggregate sentence fixed pursuant to s 9 of the Act, must be determined in accordance with well-established principles of sentencing practice.[22] The sentencing judge carefully detailed his method of determining the aggregate sentence. To further facilitate transparency, his Honour declared that he would have directed some degree of cumulation in accordance with DPP v Grabovac[23] to take account of what he considered to be 'various separate episodes of intense offending'.[24] His Honour did not have the benefit of the subsequent decision of this Court in R v Grossi[25] where some suggestions were made as to how a sentencing judge might in a convenient and relatively uncomplicated way, make sufficiently apparent how the aggregate sentence was determined. In Grossi I said:

An aggregate sentence of imprisonment should not be a lesser or a higher sentence than would otherwise be imposed if separate sentences were fixed in respect of each offence and orders for cumulation made. Thus the sentencing judge must make an assessment of the notional sentences that would have been imposed upon the individual offences and any orders for cumulation that would have been made in arriving at the total effective sentence which is converted into the aggregate sentence. Where the sentencing judge has concluded that the individual offences should all attract the same sentence and that concurrency is appropriate, no more than that need be stated. If it is concluded that some of the offences should attract different sentences or if some cumulation of the sentences should take place, that must be sufficiently exposed so that it can be understood how the end sentence was determined. That will normally be done by identifying a base sentence, any differences in the sentences for different counts and the extent of any cumulation between counts. This should be able to be done without dealing specifically with each count. Where the sentencing judge has concluded that the individual counts must be dealt with in groups reflecting 'separate events, episodes or transactions', those groups can be identified in a generic way and any difference between the notional sentences for the different groups of offences and any cumulation between counts explained. But however it is done, the components must be sufficiently exposed to enable an understanding of how the aggregate sentence was determined.[26]

27 As Kellam AJA, (with whom Buchanan JA and Eames JA agreed) , stated in DPP v Felton:

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.[27]

28 It is not possible to ascertain from either the reasons or a transcript of the plea, what counts his Honour regarded as appropriate to group together, what cumulation he allowed and how it was distributed between those groups. What then are the considerations which determine whether it was appropriate to group counts together for the purpose of cumulation ?

29 An order for cumulation will normally be ordered wherever the criminal conduct is a separate episode, transactions or event 'which ought to be recognised'.[28] Accordingly, violence, injury or other conduct causing some form of harm to separate victims and which is raised in discrete counts will ordinarily attract some measure of cumulation subject only to the principle of totality and the need to avoid a crushing sentence. Conversely, when a number of offence arises out of substantially the same act, circumstance or series of occurrences, the presumption at common law and under the Act applies that concurrency should run its course.[29] Thus it can be seen that grouping of offences is desirable where it is necessary to isolate the 'separate events, episodes or transactions' reflected by that group of counts to ensure that an appropriate order for cumulation is made for that group to avoid the appearance that an offender may commit a series of crimes after the first crime with impunity. [30]

30 On the appeal it was submitted that the grouping together of these discrete offences was tantamount to treating them as a rolled up count. Where the offences have been pleaded as 'rolled-up' counts, they cannot be the subject of an aggregate sentence[31] because that would impose 'an aggregation upon something that has already been aggregated by being the subject of the rolled up count'.[32] Here there were no 'rolled up ' counts. The sentencing judge could have grouped together such counts as arose substantially out of the same act, circumstance or series of occurrences. But counts should not generally be grouped together and treated as though they were one count when the individual counts reflect different events involving different victims. To do so defeats the purpose for grouping counts together as explained in Grabovic. Given the nature of the counts, there is a very real likelihood that his Honour grouped the offences together in this impermissible way. Hence the Crown submission that insufficient cumulation was allowed for all of the discrete offending conduct.

31 While in the main it may have been appropriate to notionally treat each burglary and the associated theft count together, it is difficult to detect a basis upon which the separate burglaries could have been viewed as other than discrete and serious offences, each of which warranted some moderate cumulation. One is able to deduce that it was only a very modest allowance of cumulation that must have been made for each group, having regard to the aggregate sentence that was imposed. To only cumulate a period of imprisonment for each group that was plainly substantially less in length than the appropriate sentence for one offence within that group, inevitably resulted in a disproportionately low cumulation for that group of offences.

32 The respondent argues that when all relevant factors, both aggravating and mitigating are synthesised it cannot realistically be contended that the sentence (head sentence or non parole period) are outside the range of those properly open to the sentencing judge. He submits there is no incongruity between the range of sentences identified by the sentencing judge and the aggregate head sentence of 5 years, the range of sentences suggested being well within the judge's discretion. Counsel also referred to the decision of Doherty[33] where an appeal against a sentence of five and a half years' imprisonment with a minimum term of three years, for multiple counts of burglary, was dismissed as the sentence was not regarded as excessive. The nature of the offending and the personal circumstances of the offender were markedly different to the present circumstances, so that the comparison that was invited is of little assistance.[34] Finally, the respondent submitted that even if the sentences were considered to be on the low side (which the respondent did not concede), it certainly cannot be contended that the sentence were such as to shock the public conscience or reveal 'such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principal'.

33 It is unnecessary to repeat the principles which govern a Director's appeal which are set out in R v Clarke[35] and DPP (Vic) v Bright.[36].

34 The respondent's offending was described by the sentencing judge as 'deplorable'. The appellant was correct to characterise it as serial offending that was premeditated, deliberate, bold, calculated and systematic. The respondent stole the property to fuel what the sentencing judge found was a 'rampant drug addiction'. Some irreplaceable items were stolen. He caused substantial damage to the burgled properties. Many of the victims now felt violated and insecure as was amply demonstrated by the victim impact statements to which the sentencing judge drew attention. His extensive criminal history and the fact that these offences were committed shortly after the respondent was released on parole, called for a sentence that addressed the increased need for specific deterrence and gave adequate emphasis to protection of the community and general deterrence.

35 The contention of the appellant, that there was error in the notional range of sentences that his Honour specified for burglary and theft cannot be sustained. The matters relied upon do not warrant the conclusion that the sentence range selected by the sentencing judge was below that which was reasonably open. That said, in light of the objective gravity of the offences and the respondent's personal circumstances the upper end of the range could, with justification, have been considerably higher. However it is not the function of this Court to substitute its opinion for that of the sentencing judge unless the sentence is so manifestly inadequate as to demand appellate intervention on recognised grounds.[37]

36 While it cannot be found that the sentencing judge failed to give sufficient weight to any particular matters to which the appellant has referred, the aggregate sentence fixed is so disproportionate to the number and seriousness of the crimes committed by the respondent as itself to betoken error in principle requiring appellate intervention.[38] Moreover, the sentencing judge, in my view, erred in principle in his approach to cumulation in the fixing of the aggregate sentence in the way I have already identified.

37 It is incumbent upon this court to ensure the maintenance of appropriate sentencing standards in this State for crimes such as these which destroy people's domestic security and erode their capacity to feel safe in their own homes.[39] The effect on the victims, who include the very young and the elderly, should not be underestimated. The frequency and nature of the respondent's violation of the privacy and sanctity of each victim's home and the theft of their property constitutes very serious examples of these crimes requiring condign punishment.

38 I would allow the appeal. In so concluding and in calculating the aggregate sentence. I have been conscious of the constraints of double jeopardy. I have assumed a notional sentence of two years on each burglary count and a notional sentence of between six months and twelve months on each theft count depending upon the nature and the value of the items stolen are appropriate. I have considered it appropriate that the burglary and theft sentences be served concurrently with each other. Treating one of the burglary counts as the notional base sentence, I would have ordered approximately two months of each of the remaining burglary counts (32) be served cumulatively on each other and on the base sentence. I have taken into account the principle of totality in assessing the appropriate cumulation to be allowed between counts and the fact that this sentence is to be served cumulatively upon the parole sentence. I would re-sentence the respondent to an aggregate sentence of seven years and would fix a minimum period of five years before the respondent is eligible for parole.

[1] [2007] VSCA 65.

[2] [2008] VSCA 51.

[3] Counts 1, 4, 6, 7, 8, 10, 13, 15, 17, 19, 21, 23, 24, 26, 28, 30, 32, 35, 37, 39, 42, 44, 46, 48, 50, 52, 54, 56,58,59,61,63,65 being offences contrary to section 76(1) Crimes Act- maximum penalty of 10 years' imprisonment.

[4] Counts 2, 3, 5,9, 11, 12, 14, 16, 18, 20, 22, 25, 27, 29, 31, 33, 36, 38, 40, 41, 43, 45, 47, 49, 51, 53, 55, 57, 60, 62, 64, 66 being offences contrary to section 74 (1) Crimes Act- maximum penalty of 10 years' imprisonment.

[5] Count 34 being an offence contrary to section 5(1) Firearms Act - maximum penalty 10 years' imprisonment.

[6] Count 67 being an offence contrary to section 73(1) Drugs, Poisons & Controlled Substances Act - maximum penalty 10 years imprisonment.

[7] [2007] VSCA 65.

[8] See R v Grossi [2008] VSCA 51 as to how that objective might be achieved.

[9] [2008] VSCA 263

[10] R v Alashkar [2007] VSCA 182; (2007) 17 VR 65 [15]-[16].

[11] R v Hennen (2004) VSCA 42; R v Sebborn (2008) VSCA 200 [27].

[12] The 'parole sentence' was being served following the respondent's arrest on the present offences

[14] R v Piacentino [2007] VSCA 49, 54.

[15] R v Grossi [2008] VSCA 51, [42].

[16] R v Hunter 14 VR 336, [28] citing R v Masterson (Unreported, Victorian Court of Criminal Appeal, Young CJ, McInerney and Southwell JJ , 31 August 1982); R v Youil (1995) 80 A Crim R 1; R v Cutajar (Unreported, Court of Appeal, Winneke P, Charles JA and Crockett AJA, 20 July 1995); R v Brock (Unreported, Court of Appeal, Tadgell, Charles JJA and Southwell AJA, 22 February 1996); R v Gorman (Unreported, Court of Appeal, Hayne, Charles, Crockett JJ, 10 August 1995); R v Ulla [2004] VSCA 130; (2004) 148 A Crim R 356, [37] (Eames JA); R v Berkelaar [2001] VSCA 143.

[17] Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348, 354; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477-8.

[18] R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566, [24]-[25] (Spigelman CJ) [60] (McLellan CJ) at CL, [76] (Grove J),[81] (Barr, Bell JJ).

[20] R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).

[21] See for example R v Katelis [2008] VSCA [12].

[23] [1998] 1 VR 664.

[25] [2008] VSCA 51.

[28] R v Arvanitidis [2008] VSCA 189 [48] (Redlich JA); DPP (Vic) v Grabovac [1998] 1 VR 664, 680 (Ormiston JA); R v O'Rourke [1997] 1 VR 246, 252 (Winneke P, Brooking and Callaway JJA); R v Mantini (1998) 3 VR 340, 349-350 (Callaway JA); R v Musson [1997] 1 VR 656, 660-61 (Hedigan AJA). See also R v Adam Clarke [2007] VSCA 254, 11 (Neave JA).

[29] R v VN [2006] VSCA 111, [144].

1. [31] DPP v Felton [2007] VSCA 65 [42] (Kellam AJA); R v Galleta [2007] VSCA 177 [10], (Redlich JA). R v Grossi [2008] VSCA [37] (Redlich JA).

[33] [2001] VSCA 20; (2001) 121 A Crim R 212.

[34] Doherty, who was aged 23, was a heroin addict, had pleaded guilty to all counts on a 34 count presentment which included 8 counts of burglary**,** 2 counts of aggravated burglary, 14 counts of theft and 7 counts of causing damage to property intentionally. He had 130 prior convictions from 15 court appearances although most of them were in the Children's Court resulting in detention in a Youth training Centre. The premises burgled were commercial premises and there were no victim impact statements.

[35] [1996] VICSC 30; [1996] 2 VR 520

[36] [2006] VSCA 147; (2006) 163 A Crim R 538

[37] DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542.

[39] DPP v Jovicic [2001] VSCA 43; (2001) 121 A Crim R 497, [32] (Winneke P).