37 No submission was made for the Crown below that the seriousness of the applicant's offending made this one of those exceptional cases where no mitigatory weight should be accorded to the utilitarian value of the applicant's plea of guilty; and the judge did not accord it no weight.

38 The question is then whether it accords with principle for a judge to accord less mitigatory weight than the judge would otherwise do to the utilitarian value of a plea of guilty because the applicant's offending was very grave, though not so grave as to obliterate any allowance for the utilitarian value of the plea.

39 It was recognised by Redlich JA and Curtain AJA in Phillips that the utilitarian value of a guilty plea could be minimised, though not obliterated, in particular circumstances.[11] But their Honours, having the opportunity to describe those circumstances, did not advert to the gravity of the offending - although that was the one circumstance which was identified as having the capacity to obliterate the giving of any weight to the utilitarian value of a guilty plea. This, I consider, should be regarded as a significant, and intended, omission.

40 I am concerned that sentencing should not become an impossible burden for sentencing judges. It will become so if every pronouncement by the High Court, or this Court, or a court of similar jurisdiction, is subjected to word by word analysis, first by counsel and then by judges, in an endless exercise of over-conceptualising the instinctive synthesis which results in sentence.

41 The mitigatory effect of a guilty plea - a matter to which, though not expressed by statute in the language of mitigation, a judge must have regard in sentencing an offender - is only one of a number of factors which must be brought to account in imposing sentence. Already, by authority, the utilitarian value of such a plea, and the value of subjective criteria,[12] if present, require separate consideration. Already, by authority, circumstances pertaining to the utilitarian aspects of a plea have been identified which may bear upon the presence of subjective criteria.[13] Already, by authority, rare circumstances have been identified in which the utilitarian value of such a plea may be obliterated. Against that already highly conceptualised background, I would reject the Crown's invitation to add yet another layer of learning with respect to the mitigatory impact of a plea of guilty. To do so would not be a logical extension of Phillips; and to do so is unnecessary. For to say that, with very rare exceptions, there will always be utilitarian value to a guilty plea, which goes in mitigation of sentence, is not to say that the value will be a constant from one case to another.

42 It may be that the judge was simply trying to convey the point which I have just made in the impugned passage in her remarks. But arguably she was in error. That said, I repeat my opinion that the assumed error does not persuade me that any different sentence should be imposed.

43 Counsel for the applicant argued Grounds 2 and 3 together. But I have dealt discretely with Ground 3.

44 Counsel readily conceded the 'extreme seriousness' of the offending. He conceded also that the judge had to 'significantly increase' the head sentence which had been imposed in November 2011 in order to reflect the instant offending and the victim. He accepted, also that the judge was 'alive to totality'. But he submitted that the judge had erred in two ways in the following passage in her Sentencing Remarks:

I take into the account the principle of totality in order to avoid a crushing sentence, applying to both the head sentence and the non-parole period, but I accept Ms Holmes' submission on behalf of the prosecution that the application of that principle should be tempered by the fact that you continued to offend in the same manner.

45 Counsel identified the two errors as follows: first, the judge said that she 'tempered' the principle of totality 'by the fact that you continued to offend in the same manner'. Second, the judge said that she took into account 'the principle of totality in order to avoid a crushing sentence'.

46 The second of the asserted errors only attracted attention in the course of oral argument. When raised by the Court, it was, correctly, common ground between counsel that totality and the need to avoid a crushing sentence are discrete, not associated, concepts. Once totality has been considered, a question which the judge will ask himself or herself, specifically where the head sentence proposed is very long, is whether the sentence is 'crushing'.[14]

47 In the event, the judge's remark was incorrect. It is noteworthy that the error did not find its way into either counsel's written or oral submissions. It was only identified as an error when Redlich JA drew attention to what the judge had said. Error it was. But it appears to me very clear that it could not have led to an increase in the total effective sentence beyond what it would otherwise have been; and the same observation applies to the new non-parole period which the judge fixed.

48 That takes me to the first of the alleged errors. Applicant's counsel submitted that in arriving at the new total effective sentence, and in fixing the new non-parole period, the judge had not given sufficient account of totality. The applicant was elderly, had health problems, had already endured a difficult time in prison, and would find future imprisonment particularly burdensome. A head term of 19½ years' imprisonment should have been seen as an order dealing with a significant part of the applicant's remaining life. The applicant had pleaded guilty, and the judge had found remorse to be present. Further, the applicant had already been sentenced for the subsequent offending which was dealt with in November 2011, for which reason application of the totality principle should not have been 'tempered' by that offending. In all, 'the application of the totality principal [had] been tempered to an inappropriate degree.'

49 Counsel for the Crown submitted that the judge brought to account all the factors which could run in mitigation of sentence. No complaint could be legitimately made as to the cumulation of five years' imprisonment on the sentence imposed in November 2011. The applicant had in fact committed like offences subsequently. He fell to be sentenced as a serious sexual offender. The totality principle could only apply in limited fashion in such a case.[15]

50 I consider that it is relevant to note the way in which the prosecutor relied upon other offending of which the applicant had been convicted - that is, including the subsequent offending which was dealt with in November 2011. The prosecutor submitted that - (1) it bore on the applicant's prospects of rehabilitation, which he contended were 'non-existent'; (2) subsequent offending showed the applicant to be still a danger to the community - that being a relevant sentencing consideration; and (3) the offending dealt in 2011 was relevant to totality because the judge had to address the whole of the offending conduct the subject of sentence in 2011 and the subject of the sentence which her Honour was called upon to impose.

51 In submitting that the totality principle should be 'tempered somewhat by the fact that there has been continued offending over the years', the prosecutor referred to Johnson[16] and to RH McL. The latter authority, he said, 'summarise[d] the principles which [he] had been articulating.'

52 In my opinion, the judge's reference in her Sentencing Remarks to the totality principle being 'tempered' by the subsequent offending needs to be understood in context. It appears to me that her Honour was saying no more than the subsequent offending was relevant to totality for the three reasons to which the prosecutor had referred. There was nothing erroneous in saying that. There was such relevance.

53 That leaves only this question for consideration: did the sentence which her Honour imposed, absent error in approach, nonetheless impermissibly infringe the totality principle? In my opinion, the answer to that question - I put the new non-parole period to one side - is definitely 'no'.

54 The applicant fell to be sentenced, on all three changes, as a serious sexual offender. That had two significant aspects.

55 First, the principal purpose for which sentence was to be imposed was protection of the community.[17]

56 That consideration, despite the applicant's age, was understandably thought by the judge to be of significance. She observed that:

... your offending history together with Dr King's report indicates you would still be a danger to the community if released.

57 The applicant, having sought to rely on the psychologist's report, could hardly complain that the judge relied upon it in that way.

58 Second, by s 6E of the Sentencing Act 1991(the Act)

Every term of imprisonment imposed by a court on a serious offender for a

relevant offence must, unless otherwise directed by the court, be served

cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

59 Section 6E inverts the presumption of concurrence established by s 16(1) of the Act. It is the exception set out in s 16(1A)(c).

60 Section 6E is not, however, expressed in the same language as the exceptions dealt with by s 16(1A)(b) and (d); as to which, respectively, see s16 (3) and (3B). In those situations, a sentence must be served cumulatively 'unless otherwise directed by the Court because of the existence of exceptional circumstances'. That terminology surely underscores the force of the reversal of the presumption of concurrence in the circumstances to which it applies. By contrast, the language of s 6E - like its legislative predecessor, the now-repealed s 16(3A) - requires the judge to take a starting point in favour of cumulation, but otherwise preserves the judge's discretion. The judge may 'otherwise direct.' It is precisely the same situation, in reverse, that empowers a judge to 'direct otherwise' in a case in which the presumption of concurrence applies.

61 Both counsel referred the Court to a passage in the judgment of McHugh, Gummow and Hayne JJ in RH McL. In that case, an appeal against conviction on some counts only succeeded. The Court of Appeal quashed the convictions on those counts and ordered a retrial. In reliance on s 569(1) of the Crimes Act 1958, it re-sentenced the appellant to higher sentences on the remaining counts. In the result, the total effective sentence remained the same. The question in the High Court was whether s 569(1) had authorised the Court of Appeal to resentence the applicant so as to impose a new head sentence. By majority, the High Court answered that question 'yes'.

62 It was in that context that McHugh, Gummow and Hayne JJ said this:

[74] It follows in our opinion that the appellant suffered no injustice when the Court of Appeal thought that it was necessary to increase the various sentences in the way that it did. The sentences in respect of those convictions were appropriate given the criminality involved. That was because Judge Harbison had reduced the sentences that were appropriate to each conviction in order to ensure that the totality of the appellant's sentences did not exceed what was appropriate having regard to his total criminality.

[75] In modern times, s 569(1) of the Act is likely to have its most frequent operation in circumstances where the sentencing judge has compressed sentences by reason of the totality principle. There would be less occasion for the Court of Appeal to exercise its powers under that sub-section if sentencing judges imposed the sentence appropriate in respect of each conviction and then gave effect to the totality principle, where that principle did require a reduction of the cumulative effect of the sentences, by making concurrent any sentence or sentences that conflicted with the totality principle.

[76] 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.

63 No doubt because, as their Honours said, the interrelationship between s 16(3)(A) of the Act and the totality principle did not arise in that appeal, they did not explain what they meant when they said that '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.'[18] No subsequent case in the High Court has illuminated what was meant. In the meantime, more than a decade has passed, and the interaction between s 6E of the Act (as it now is) and the totality principle has been dealt with pragmatically by sentencing judges, and by this Court, case by case.

64 Counsel referred us to a number of instances where RH McL has been cited in this Court - often, but not always, in the context of an appellant complaining that the extent of cumulation was too great.[19] In only one of those cases had the sentencing judge ordered total cumulation; and in that case, this Court did not interfere with the head sentence.[20] In the other cases, by and large, it was enough for the Court to say that the presumption in favour of cumulation, and a modified role of the totality principle, sufficiently explained and justified what the sentencing judge had done.

65 In my view there is no occasion, in this case, to investigate the question left open by the High Court in RH McL in the passage noted at [63] above.[21] That is so for two reasons.

66 First, in my view the individual sentences which the judge imposed on the applicant and the orders for cumulation, were modest. A nine year head sentence, in all the circumstances of the offending and the offender, was merciful. Then, as to cumulation of five years of the head sentence on the sentence which the applicant

was already serving, anything less would have been derisory. There had to be substantial cumulation, even assuming that s 6E of the Act had not existed and that totality fell for consideration in the context of a presumption of concurrence. Thus, s 6E apart, I would not regard the cumulation now under discussion as infringing totality.

67 Second, in those circumstances, the applicability of s 6E simply underlines the modest nature of the order for cumulation of five years of the head sentence on the sentence which the applicant was then serving.

68 I agree with Ashley JA that leave should be granted on ground 3, the appeal allowed and the new non-parole period fixed which his Honour proposes. I also would refuse leave to appeal on the other grounds. I agree with Ashley JA that despite such errors as have been made out there are no reasonable prospects that different sentences would be imposed.

Whether the discount for a plea of guilty is to be reduced as the objective gravity of the offence increases?

70 As to ground 1, what was said at [36] of the joint reasons in Phillips v The Queen,[22] in which I participated, to the effect that in an exceptional case the gravity of the offending conduct may be of such an order of seriousness that no

discount from the maximum sentence is appropriate, does not support the submission that the extent of the discount to be afforded an offender for the utilitarian benefits of a plea of guilty, will vary according to the objective gravity of the offence. The exceptional case of which we spoke, of which there are but a few instances over many years, was one where no mitigating factors would reduce the sentence, the conduct being so grave.

71 I agree with Ashley JA that the suggestion by the Crown that the sentencing judge should vary the discount to be allowed for a plea of guilty, according to some sliding scale of the objective gravity of the conduct has no place in the instinctive synthesis. Quite apart from the further complexity which such an approach would add to the sentencing process, it would be contrary to the underlying rationale of the principle which is intended to encourage guilty offenders to acknowledge their guilt, whatever their degree of criminality. Its effectiveness would be undermined were it the case that the more serious the conduct, the smaller the reduction in the sentence for the utilitarian benefits of the plea.

72 Thus, although these sexual offences involved penile anal penetration of a relatively young child and were thus of a very grave order, the sentencing judge was in error to reduce the mitigatory weight of the plea because of the seriousness of the offence.

Whether the sentence produced was 'crushing'?

73 As to ground 2, although the concept of a 'crushing' sentence is often discussed in the same context as the principle of totality, they are discrete questions.[23] A sentence may be crushing though it not necessarily infringe the principle of totality. I agree with Ashley JA that the sentences cannot be characterised as crushing.

The principle of totality and s 6E of the Sentencing Act

74 A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.

75 The Crown, quite understandably, did not submit that the sentencing judge was in error in ordering only partial cumulation of these offences, as to significantly increase the orders for cumulation may have produced a crushing sentence. That said, when regard is had to the very serious nature of the applicant's conduct, the orders for cumulation were, as Ashley JA has observed, of a modest order, reflecting a considerable level of leniency in the application of s 6E and the principle of totality. The complaint as to the orders for cumulation was without merit.

76 I have had the benefit of reading in draft, the reasons of Ashley JA. I agree with his Honour that leave to appeal should be granted, on ground 3, and the appeal should be allowed with a different non-parole period to be fixed as his Honour proposes. I also agree the appeal should otherwise be dismissed.

[2] That is the date of birth recorded by the judge on the Court Record in December 2012. But the Victoria Police Criminal History Report records his date of birth variously as 22 June 1950 and 22 June 1951.

[3] Romero v The Queen (2011) 32 VR 486.

[4] RSJ v The Queen [2012] VSCA 148 [3] (Redlich JA), referring to RLP v The Queen [2009] VSCA 271 [39].

[5] Counsel cited Phillips v The Queen (2012) 222 A Crim R 149, 159-160 [38]-[39] and R v Duncan [1998] 3 VR 208, 215.

[6] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[7] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 275 [26], 276 [32].

[8] Phillips v The Queen (2012) 222 A Crim R 149, 159-160 [38]-[39].

[9] [1998] 3 VR 208, 215.

[10] Chalmers v The Queen [2011] VSCA 436, [51].

[11] Phillips v The Queen (2012) 222 A Crim R 149, 167 [64].

[12] The presence of remorse, acceptance of responsibility, and willingness to facilitate the course of justice.

[13] Phillips v The Queen (2012) 222 A Crim R 149, 167 [64] (Redlich JA and Curtain AJA).

[14] See the discussion of totality and a crushing sentence by Redlich JA in Azzopoardi v The Queen (2011) 35 VR 43, 63 [69].

[15] Counsel cited RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 476-477 [74]-[76] (McHugh, Gummow and Hayne JJ).

[16] Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346.

[17] Sentencing Act 1991, s 6D(1)(a).

[19] R v Jongsma (2004) A Crim R 386, 397 [20] (Batt JA); DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 195 [27] (Nettle JA); Davy v The Queen [2011] VSCA 98; (2011) 207 A Crim R 266, 278-9 [45]-[47] (Bongiorno JA); Beyer v The Queen [2011] VSCA 15, [13]-[15] (Harper JA); RSJ v The Queen [2012] VSCA 148 [47] (Hansen JA); El-Waly v The Queen [2012] VSCA 184 [88]-[93]; Stevens v The Queen [2012] VSCA 192 [12]-[16] (Bongiorno JA); SJ v The Queen [2012] VSCA 237 [88]-[89] (Osborn JA); DPP v CJA [2013] VSCA 18 [37]-[40]; NR v The Queen [2013] VSCA 166 [36]-[39] (Tate JA).

[20] R v Brown [2009] VSCA 23, [20]-[27], [35]-[39].

[21] Redlich JA considerably explored the question, in the context of s16(3B) of the Act, in DPP v Johnson (2011) 35 VR 25, 38-41 [59]-73].

[22] Phillips v The Queen (2012) 222 A Crim R 149, 158-9.

[23] Azzopardi and Ors v The Queen (2011) 35 VR 43.