DPP v Wightley [2011] VSCA 74

1 The respondent, Bruce Albert Wightley, pleaded guilty to two counts each of indecent act with a child under 16 (counts 1 and 2) and indecent assault (counts 4 and 5), and one count of sexual penetration of a child under 16 (count 3). Those counts were contained in Presentment X02692858.1 and related to offences committed against RS.

2 He also pleaded guilty to two counts of indecent act with a child under 16 (counts 1 and 2). Those counts were contained in Presentment X02692858P and related to offences committed against RL. All counts, apart from counts 4 and 5, were representative counts. After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the respondent as follows:

Sexual penetration of a child under 16[2]

3 Pursuant to Part 2A of the Sentencing Act 1991, the respondent was sentenced on counts 1 to 5 on Presentment X02692858.1 as a serious sexual offender.[5] The judge directed that the 36 months' imprisonment to be served in respect of Presentment X02692858.1 and 15 months' imprisonment to be served in respect of Presentment X02692858P, be served cumulatively on each other. This amounted to a total effective sentence of 4 years and 3 months' imprisonment. The judge directed that the respondent serve a period of 2 years and 6 months before being eligible to be released on parole.

4 The Director now appeals against the sentences imposed, the orders for cumulation and the non-parole period on the ground that they are manifestly inadequate. The particulars to this ground were in the usual form. They were as follows:

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 a 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 have sufficient regard to the maximum penalty prescribed for the offences;

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

(f) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offences;

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

(h) failed to have sufficient regard to aggravating features of the offending and in particular -

• the extended and deliberate course of offending,
• that the majority of the offending was representative in nature,
• the abuse of trust involved in the offending,
• the number of victims and their age,
• that the offending took place in the victim's own home,
• the extreme vulnerability of the victims, and
• the disparity between the victims [sic] ages and that of the Respondent, and

(i) gave too much weight to mitigating factors concerning the offender, in particular

• the plea of guilty,
• the good prior work history,
• the support of his wife,
• the absence of prior convictions, and
• the prospects of rehabilitation.

5 The victims were sisters and the offences were committed by the respondent when he regularly stayed at their home. He was a friend of the victims' father and had known the victims since they were small children.

6 According to the Crown opening, the respondent sexually abused RS between 2002 and 2006, when the complainant was aged between 12 and 16. He walked around the house naked when RS's parents were asleep and would wait for her to go

to the toilet and approach her when she was returning to her bedroom. The offences committed against her became more serious over time.

7 Count 1 was a representative count, which occurred on at least four occasions. The first act was committed when RS was aged 12 and involved the respondent entering her bedroom, where she was reading in bed, hugging her and touching her breast beneath her clothing. He persisted although she pushed him away.

8 Count 2 and 3, also representative counts, involved an escalation of this conduct. The behaviour in count 2 was a preliminary to count 3. Some time between March 2005 and March 2006, when RS was 15, the respondent entered RS's bedroom when she and RL were play-fighting. After engaging the sisters in small talk, the respondent put his hand up RS's skirt, moved her underpants aside and touched her vagina (count 2). The respondent performed similar acts on another occasion before the complainant turned 16.[6] Count 3 occurred when he then inserted his fingers into her vagina, causing her pain. Again, this was repeated on another occasion before the victim turned 16.

9 Count 4 concerned an incident committed by the respondent when RS was 16. He entered her bedroom and tried to kiss her, but she moved away. He then put his hands under the doona and up the complainant's shirt and felt her breast and the top of her vagina.

10 Count 5 involved the respondent approaching the victim while she was on the computer in the spare room of the house, forcing her legs apart and while kneeling

down, pushing his face up through her clothing and against her vagina. Again she pushed him away.

11 The counts committed against RL were both representative counts. The respondent committed count 1 when RL, who was aged between 10 and 11, was wrestling with the respondent in her lounge room. Her father was present. The respondent pinned her to the ground and placed his hand on her vagina, on the outside her clothing. At first RL thought this was an accident but after realising it was intentional, she kicked him and got up. The count was representative of four similar instances, though it was said by the complainant that the respondent had touched her bottom and breasts on another 10 occasions.[7]

12 In 2003, when RL was aged between 10 and 11, the respondent entered her room wearing only underpants. He then hugged her, and while exposing his penis and masturbating, he asked her whether she was 'interested'. She replied 'no'. Similar incidents were said to have occurred on at least two occasions, though only one involved an allegation of masturbation.[8]

13 The respondent was aged between 44 and 49 years during the period of offending against RS, and between 45 and 46 during the period of offending against RL. He had no prior convictions.

14 Soon after his birth in Mooroopna in 1957, he and his family moved to Carlton. He completed Year 10 and then did a fitting and turning apprenticeship. He had odd jobs for a couple of years before obtaining employment in maintenance roles. He worked at the St Nicholas hospital in Carlton from 1980, Larundel

Psychiatric Hospital from 1985, Medina Apartments from 2002 and finally at the University of Melbourne from 2002.

15 In 1978 the respondent married and his wife attended the plea hearing to support him. Together, they raised two sons.

16 Three references were tendered on his behalf, all of which spoke of his reliability, trustworthiness, generosity and professionalism.

17 The Director submitted that the victims had been subjected to numerous separate acts of molestation by the respondent. Although the learned sentencing judge had acknowledged that the respondent's 'moral and criminal culpability were 'very high',[9] his Honour's assessment of the gravity of the offending was not reflected in the individual sentences or in the orders for cumulation which he made.

18 The sentences imposed did not adequately reflect aggravating features of the offending which included:

(a) the fact that five of the seven counts were representative counts, which made it appropriate to impose higher sentences than would be imposed on non-representative counts;[10]

(b) the persistence of the offending, which occurred over four years in the case of RS and 13 months in the case of RL;

(d) the disparity between the age of the respondent and the complainants;

(e) the youth of the complainants when the offending began;

(e) the commission of the offences within the victims' home, where they were entitled to feel safe;

(f) the premeditated nature of the respondent's behaviour, which involved 'grooming' the complainants to accustom them to sexual activity;[11] and

(g) the serious impact of the offences on the victims, including their adverse effect on the victims' relationship with their parents.

19 The individual sentences did not give sufficient weight to the maximum penalty of 10 years' imprisonment which was applicable to all the offences. Nor did the orders for cumulation reflect the fact that the respondent fell to be sentenced as a serious sexual offender on all counts except counts 1 and 2 on Presentment X02692858P.

20 The Director also relied on the Sentencing Snapshots compiled by the Sentencing Advisory Council. The respondent had received sentences of 6 months and 12 months respectively for counts 1 and 2 on Presentment X02692858.1. These sentences were significantly lower than the median term of 1 year and 6 months for those sentenced to imprisonment between 2003-2004 and 2007-2008, for the offence of indecent act with a child under 16,[12] despite the fact that these were representative counts committed in the aggravating circumstances described above.

21 Although the sentence of 24 months imposed on count 3 of that presentment was equivalent to the median sentence imposed for the offence of sexual penetration of a child under 16,[13] the Director submitted that the aggravating features of the offending required the respondent to be sentenced to a term of imprisonment which was considerably higher than the median.

22 A similar submission was made in relation to the sentences imposed on the indecent assault counts (counts 4 and 5), which occurred at the end of a lengthy period during which the respondent had been sexually offending against RS. These sentences were below the median of one year and six months imposed on those imprisoned for that offence between 2003-2004 and 2007-2008.[14]

23 In addition, the Director submitted that the non-parole period was too short to represent the minimum time required to reflect the principles of general deterrence and specific deterrence, and to protect children in the community from sexual abuse.

24 Reference was also made by the Director to sentences imposed in cases which were said to be comparable and to offer the court guidance as to the applicable sentencing range, including R v RGG,[15] and R v XA.[16]

25 In reply, counsel for the respondent sought to distinguish the cases relied upon by the Director. He submitted that the Director's appeal could not be allowed unless there was a clear and egregious inadequacy in the sentences imposed. The sentences imposed for the particular offences in this case were said to be entirely unremarkable. Although sentencing statistics could only ever be a guide in determining the appropriate sentence in an individual case, the statistics relied upon by the Director demonstrated that the individual sentences imposed were well within the range of sentences imposed for those offences and in the case of count 3, accorded with the median for that offence. The highest sentence imposed for the offence of indecent act with a child under 16 between 2003-2004 and 2007-2008 was four years and the lowest sentence imposed was two months.[17] The sentences imposed in relation to the indecent acts with RS and RL fell well within this range. Further, the judge had taken all relevant aggravating and mitigating factors into account and given them appropriate weight. The mitigating factors were powerful and included the respondent's guilty plea, his remorse, his lack of prior convictions, his solid work history and character references, and his good prospects of rehabilitation.

26 The orders for cumulation and the non-parole period all fell within the range of sentences properly open and none could properly be characterised as manifestly inadequate.

27 In the alternative, counsel for the respondent submitted that, even if the Court found the individual sentences and/or the total effective sentence to be manifestly inadequate, the Court should exercise its residual discretion to decline to re-sentence the respondent, because any sentences imposed would not be significantly greater than the sentences against which the Director appealed.

28 The respondent was sentenced before the commencement of ss 289(2) and 290(3) of the Criminal Procedure Act 2009, which precludes the Court taking double jeopardy into account in deciding whether a Crown appeal should be allowed or in re-sentencing a respondent to a Crown appeal. Thus, this appeal is governed by the

principles in Everett v The Queen,[18] R v Clarke[19] and Director of Public Prosecutions v Bright.[20]

29 I have examined the sentencing decisions relied upon by the Director and taken account of counsel for the respondent's submissions regarding their differences from the present case. It is not necessary to undertake a detailed examination of each of these cases. In my opinion, the sentences imposed on counts 1 and 2 on Presentment X02692858.1 and count 2 on the other presentment did not adequately recognise the effects of the offending on the victims, or give sufficient weight to the important principles of denunciation and specific and general deterrence. The sexual offending was not a single lapse of the kind which might attract a relatively lenient sentence. The respondent engaged in predatory and sustained offending over a significant period of time. He breached the trust which the girls' parents reposed in him.

30 Because of the repetitive nature of the offending, the girls must have faced the visits of the offender, a trusted family friend, with fear and dread. The offender had known the victims since they were small children. He closed his mind to the fact that the complainants were very young when he began to abuse them and that they actively resisted his sexual acts. He ignored the likely effects that his abuse would have on them.

31 Sadly, as is often the case, the offending has had a disastrous effect on the girls and on the relationships within their family. In her victim impact statement, the girls' mother said that she had previously regarded the respondent as one of the family. As a consequence of the respondent's behaviour, she has become distrustful of others. Her close family had been 'shattered' because RL had blamed her mother and father for not protecting her. The girls' father said that the couple had separated for a time because he had become angry and drank more as a result of the respondent's betrayal of trust. Although he and his wife were now back together, it would take a long time to repair family relationships.

32 Both girls spoke of the very serious emotional impact of the offending on them and of the way it had damaged their relationship with their parents. As this Court has said on a number of occasions, sexual abuse of children has serious effects on individual victims, and creates distrust among adults which is damaging to the community as a whole.[21]

33 Vincent JA's remarks in Director of Public Prosecutions v Toomey[22] are apposite:

On occasions, when imposing sentence I have made mention of the notion of social rehabilitation. In DPP v DJK,[23] for example, I remarked:

'This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation'.

It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.

Although much has been done in recent years to encourage young persons who have been subjected to inappropriate behaviours to report what has happened, by reason of the presence of a variety of factors it must be anticipated that often the commission of such offences will not be revealed for years and that their eventual disclosure will be both extremely difficult and painful for those offended against, their families and others associated with them.

If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences. In my view, this cannot be permitted to occur.[24]

34 In addition to concluding that at least these individual sentences were manifestly inadequate, I also consider that the orders for cumulation gave insufficient weight to the presumption of cumulation which applied in sentencing the respondent as a serious sexual offender on all counts except counts 1 and 2 on Presentment X02692858P.[25] In R H McL v The Queen,[26] the High Court said that:

The need for judges not to compress sentences is especially important where the accused person is a 'serious sexual offender' within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in

s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[27]

In my view, the orders for cumulation gave insufficient weight to this legislative policy.

35 Counsel for the respondent submitted that if the respondent were re-sentenced the Court should have regard to the fact that, after sentence was passed, RS sought an order for compensation under s 85B of the Sentencing Act 1991, which was compromised by the respondent in August 2010, on a confidential basis. It was submitted that the compromise was indicative of the respondent's remorse and his good prospects of rehabilitation and therefore relevant to re-sentencing.

36 The Director conceded that, in some circumstances, the payment of compensation by an offender might be relevant to sentencing, but submitted that this did not apply in the present case.[28]

37 He cited the decision of Bleby J in Brooks v Police,[29] in which his Honour held that 'it is not the payment of compensation itself which is a relevant matter in determining the sentence ... [but] the degree to which the defendant has shown contrition for the offence by taking the action to make reparation'.[30]

38 In R v Ross,[31] the issue was whether the sentencing judge should have taken account of the making of a compensation order under s 85B of the Sentencing Act 1991, because the financial burden which it imposed on the offender adversely affected his prospects of rehabilitation. The Court rejected the argument that the order subjected the offender to additional punishment. Vincent JA noted that the

objectives to be obtained through the sentencing process were different to those of the 'substantive and adjectival law relating to civil liability'.[32] He said that:

There is no reason in principle, or arising from the terms of the provisions, why the making of an order for compensation should operate as a mitigatory factor in the determination of penalty to be handed down by a sentencing judge.[33]

39 The respondent's counsel submitted that Ross was distinguishable, because it related to the making of an order for compensation, rather than to a settlement of a s 85B claim. He relied on the comments made by Redlich J (as he then was) in R v Sypott,[34] where an offender who had pleaded guilty to manslaughter had indicated that he was willing to pay compensation to the children and other family members of the victim. His Honour said that it was appropriate to take account of the fact that the offender was prepared to pay compensation and had agreed to payment of substantial compensation, because it was indicative of his remorse. Counsel for the respondent also cited R v Mickelberg,[35] in which Brinsden J observed that '[t]he courts ought to encourage restitution and obviously one way for them to do that is to offer some inducement in the form of a lesser penalty'.[36]

40 I have some doubts about the correctness of the view that the settlement of an application for a compensation under s 85B of the Sentencing Act 1991 should be taken into account in sentencing an offender. Giving weight to the fact that an offender has settled a claim arising out of events which gave rise to criminal prosecution would favour an offender in a strong financial position. As Bleby J said in Brooks, the consequence is that 'there might be one penalty for the defendant who has means and another for the defendant who plainly cannot pay compensation. Lower sentences are not to be bought by those who can afford them'.[37]

41 Further, there is no indication in either ss 5 or 85B of the Sentencing Act 1991 that the settlement of a claim under s 85B is a relevant sentencing consideration. Section 5(2C) of the Act provides that: 'In sentencing an offender a court may have regard to the conduct of the offender on or in connection with the trial or hearing as an indication of remorse or lack of remorse on his or her part'.

42 The reference to 'conduct ... on or in connection with the trial or hearing' suggests that a compromise of a claim made outside the trial process is not to be treated as a relevant sentencing consideration.

43 However, even if such a compromise can be taken into account as indicative of remorse or the offender's prospects of rehabilitation, I do not consider that it makes much difference to the sentences to be imposed in this case. In R v Barcham,[38] the appellant did not oppose the making of a compensation order. On appeal it was argued that this was further evidence of the appellant's remorse for offending. As in that case, there is no direct evidence that this was the motivation for the respondent settling the claim made against him. It may be that the respondent was simply bowing to the inevitable. In any case, the sentencing judge found that the respondent's guilty plea was motivated by both pragmatic considerations and because the respondent had accepted responsibility for his offending and was remorseful. That finding must, of course, be taken into account in re-sentencing the respondent. The settlement of the compensation claim adds little more.

44 Having regard to all relevant aggravating and mitigating factors, and to double jeopardy, I would re-sentence the respondent as follows:

45 The total effective sentence imposed on the counts in Presentment X02692858.1 is to be served cumulatively with the total effective sentence imposed on the counts in Presentment X02692858P. This amounts to a total effective sentence of 5 years and 9 months' imprisonment. I would fix a non-parole period of 3 years.

46 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for the respondent's guilty pleas, I would have re-sentenced him as follows:

I would have ordered that the total effective sentences imposed on the counts contained in both presentments be served cumulatively. This would amount to a total effective sentence of 7 years and 9 months' imprisonment. I would have imposed a non-parole period of 5 years and 4 months.

[1] Contrary to Crimes Act 1958, s 47(1).

[2] Contrary to Crimes Act 1958, s 45(1).

[3] Contrary to Crimes Act 1958, s 39(1).

[4] Contrary to Crimes Act 1958, s 47(1).

[5] Although his Honour referred to the fact that the respondent was to be sentenced as a serious sexual offender, he did not mention the offences to which this applied. The Director indicated that the two offences against RL were treated as the offences which required the sentencing of the respondent as a serious sexual offender; see Sentencing Act 1981, s 6B (definition of serious sexual offender) and sch 1, cl 1 (vii). At the plea hearing, both counsel accepted that, if the appellant were sentenced to imprisonment on counts 1 and 2 against RL, he would be liable to be sentenced as a serious sexual offender on the other counts against RS.

[6] The judge's finding (at Reasons, [5]) that 'I was told [these acts] happened on at least two other occasions' appears to be a misinterpretation of an ambiguous answer given by the prosecutor when he seemed to agree that counts 2 and 3 were bundled together as representative counts for 'at least two other occasions'. Before giving that answer, the prosecutor had said that 'Counts 2 and 3 are effectively paired and they are representative of conduct which occurred on at least two occasions'. That there were 'at least two occasions' and not 'two other occasions' is borne out by the presentment, which refers to the act occurring between the dates mentioned above and 'on an occasion other than that referred to in Count 1'. Nothing turns on this.

[7] Reasons, [8]. The judge (at Reasons, [8]) said that '[the complainant's] statements disclose four other alike events' (emphasis added) and may have been led into this by defence counsel, who referred to 'four other occasions'. Defence counsel appears to have used the word 'other' to distinguish the occasions covered by count 1 from other occasions, rather than to indicate that there were four more occasions. Again, nothing turns on this.

[8] Reasons, [9]. The other occasion, to use the words of the prosecutor, alleged a 'more simple exposure'.

[10] DPP (Vic) v EB [2008] VSCA 127; (2000) 186 A Crim R 314, 318 (Nettle JA, Buchanan and Redlich JJA agreeing).

[11] See PDA v The Queen [2010] VSCA 94, [8] (Maxwell P, Buchanan JA agreeing).

[12] Sentencing Advisory Council, Sentencing Snapshot No 81: Indecent Act with a Child under 16 (June 2009), 5.

[13] Sentencing Advisory Council, Sentencing Snapshot No 88: Sexual Penetration of a Child Aged Between 10 and 16 (June 2009), 5

[14] Sentencing Advisory Council, Sentencing Snapshot No 80: Indecent Assault (June 2009), 5

[15] [2008] VSCA 94 ('RGG') (appellant 73 aged years, period of offending commenced when aged 61 years, plea of guilty to two representative counts of sexual penetration of a child under 16 and counts of indecent assault and attempted sexual penetration of a child under 16, total effective sentence of 11 years and 2 months' imprisonment with non-parole period of 8 years manifestly excessive, appellant re-sentenced to total effective sentence of 8 years and 3 months' imprisonment with non-parole period of 5 years).

[16] [2009] VSCA 52 ('XA') (plea of guilty to three counts of indecent act with a child between 10 and 16, two representative counts of the same offence and counts of attempted sexual penetration of a child under 16 and indecent assault, total effective sentence of 6 years and 6 months' imprisonment with a non-parole period of 5 years not manifestly excessive). At the hearing of the appeal, counsel for the Director placed reliance on a number of cases in support of his submission that the sentences were manifestly inadequate. The cases he referred to included: DPP v CP [2008] VSCA 215 (plea of guilty to six counts of indecent assault, total effective term of 27 months suspended for three years manifestly inadequate, re-sentenced to same term, with all but 12 months of the 27 month sentence suspended); PDA v The Queen [2010] VSCA 94 (plea of guilty to two rolled up counts of indecent act with a child under 16 and four rolled up counts of sexual penetration of a child under 16, total effective sentence of 7 years and 3 months' imprisonment with 3 year and 6 month non-parole period not manifestly excessive); WCB v The Queen [2010] VSCA 230 (plea of guilty to two counts of indecent act with a child under 16 and a count of sexual penetration of a child under 16, total effective sentence of 9 years and 3 months' imprisonment with a non-parole period of 6 years and 6 months manifestly excessive, appellant re-sentenced to total effective sentence of 6 years and 9 months' imprisonment with non-parole period of 4 years and 3 months).

[17] Sentencing Advisory Council, Snapshot No 81: Indecent Act with a Child under 16 (June 2009), 5.

[18] [1994] HCA 49; (1994) 181 CLR 295.

[19] [1996] VICSC 30; [1996] 2 VR 520.

[20] [2006] VSCA 147; (2006) 163 A Crim R 538.

[21] DPP v Toomey [2006] VSCA 90.

[23] [2003] VSCA 109, [18].

[24] [2006] VSCA 90, [21]-[24].

[25] Sentencing Act 1991, s 6E.

[26] [2000] HCA 46; (2003) 203 CLR 452.

[28] Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [3.809].

[29] [2000] SASC 66; (2000) 112 A Crim R 450 ('Brooks').

[31] [2007] VSCA 213; (2007) 17 VR 80 ('Ross').

[32] Ibid 83 (Chernov JA and Whelan AJA agreeing).

[34] [2003] VSC 327.

[35] (1984) 13 A Crim R 365.

[37] [2000] SASC 66; (2000) 112 A Crim R 450, 456.

[38] [2001] VSCA 215, [19] (Brooking JA, with whom Phillips and Vincent JJA agreed).

[39] Because of double jeopardy the individual sentence on this count has not been increased but the order for cumulation has been altered.