Matheas v The Queen [2017] VSCA 330

1 I have had the advantage of reading in draft the reasons for judgment of Tate JA. I would make the orders which her Honour proposes, for the reasons which she gives.

2 The appellant, Christos Matheas ('Matheas'), appeals[1] against a sentence imposed by Judge Misso in the County Court on 7 October 2016[2] after he was found guilty by a jury on 20 July 2016 of one charge of rape contrary to s 38 of the Crimes Act 1958. That offence has a maximum penalty of 25 years' imprisonment. The judge sentenced Matheas as a serious sexual offender to be imprisoned for eight years, and declared that six years of that sentence were to be served cumulatively on a sentence already being served by him for three previous convictions for rape ('the first sentence'). Matheas was eligible to be treated as a 'serious sexual offender' because he had been convicted of two or more sexual offences for each of which he had been sentenced to a term of imprisonment.[3] The first sentence, imposed by Judge L Bourke in the County Court on 10 June 2016, also following conviction by a jury, was for a total effective term of ten years' imprisonment, with a non-parole period of eight years.[4] Matheas was sentenced by Judge Misso on 7 October 2016 to a total effective sentence of 16 years' imprisonment with a new non-parole period of 12 years. He became a registered sex offender under the Sex Offenders Registration Act 2004 with a reporting period for life:

Rape (Crimes Act s 38(1))

Registration pursuant to the Sex Offenders Registration Act - reporting period of life.

3 Priest JA granted Matheas leave to appeal against sentence on the following ground:

The individual sentence, order for cumulation, total effective sentence and non-parole period are each manifestly excessive.

Particulars:

(a) The judge gave manifestly insufficient weight to the principle of totality;

(b) The sentences imposed are inconsistent with current sentencing practices;

(c) The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.

4 Matheas also sought leave to appeal on the ground that Judge Misso had erred in finding that Matheas had set a 'trap' for the victim and that a high degree of planning and premeditation were present so as to aggravate the offence significantly. Priest JA refused leave on that proposed ground. There has been no election to renew the application for leave to appeal on that ground.

5 For the reasons below, I would dismiss the appeal.

The rape of SP in 'a terrifying episode of violence'

6 The offending the subject of this appeal occurred on 7 April 2014 in circumstances which Judge Misso described as 'a terrifying episode of violence'[5] against the complainant, SP. The judge described SP, who was 17 at the time Matheas raped her, as 'a naïve and impressionable girl. She was of small stature. She weighed just 42 kilograms.'[6]

7 Matheas had met SP only days beforehand, on 27 March 2014, when she was sitting outside a supermarket with a friend. Matheas offered to buy SP and her friend a new pair of trousers each because their clothing had been ruined by leaking meat from the supermarket. He then took them to lunch, where he spoke at length about motorbikes, told them he was the motorcycle stuntman called Ghost Rider who had appeared in a film of that name and on YouTube and asked them to call him 'Ghosty'. SP formed the belief that Matheas was a motorcyclist of some fame and that he was wealthy. Matheas exchanged telephone numbers with the two girls. The judge found that it was 'clear ... that [Matheas] wanted to maintain contact with SP and [he] wanted to maintain the façade that [he was] a motorcyclist of some fame and that [he was] wealthy'.[7]

8 During a telephone exchange with SP on 7 April 2014, Matheas told her he could obtain marijuana for her if she wanted some. Initially, she said she did not need any, but later at the urging of a friend, she contacted Matheas to ask for some. He picked her up approximately after 6:00 pm and drove her to a factory where they met some men, one of whom Matheas said was his dealer. However, they were not able to purchase any marijuana and left. SP asked Matheas to drive her home, but he persuaded her to go to his house, telling her that he had some girls coming over in half an hour and assuring her that if they did not arrive within five minutes he would take her home. This was false. The judge found that this 'representation was made by [Matheas], no doubt, to put her at ease that the two of [them] were to be in the company of others and to encourage her to go with [him] to [his] home'.[8]

9 Matheas left SP sitting in the kitchen of his home. Her evidence was that as she was sitting on the kitchen table sending messages on her phone, she looked up to see a reflection of Matheas in the kitchen's glass door. He was naked and there was a condom on his erect penis. He grabbed her hair and pulled her backwards. He pulled her pants and underwear off and ripped her jumper and bra. There was a struggle during which SP tried to kick Matheas and run off. Matheas grabbed SP by the hair and dragged her into a bedroom, where he threw her onto the bed as she was kicking and screaming. She was saying, 'You don't have to do this'. Matheas told her that if she did not stop 'I will fucking kill you', or words to that effect. He grabbed her by the throat with his hands in a V-shape around her neck and strangled her for about five to ten seconds until he stopped when she said she could not breathe. She said she needed a drink, so Matheas took her into the kitchen where he collected a bottle of water. He took her back to the bedroom where he left her, to return with a tube of lubricant which she then knocked out of his hands. Matheas attempted to pull SP's legs apart and force his penis into her vagina. SP had ceased struggling by this stage because of the level of violence and the threats; she said she thought she was going to die. Matheas tried to kiss her on the mouth but she resisted that. He used saliva for lubrication to penetrate her, thrust twice before ejaculating and withdrew. Although SP said she saw Matheas was wearing a condom, subsequent swabs taken by a medical practitioner found his semen. He told her to have a shower, but she refused and got dressed. Matheas drove her initially to a shopping centre and then dropped her close to the house where she was staying.

10 Judge Misso noted that at trial counsel for Matheas made statements and conducted cross-examination on the basis that SP had consented to the sexual penetration and lied about being raped because she had expected Matheas to give her money and he had reneged on that promise. The judge concluded that it was plain that the jury rejected that defence, and accepted SP's evidence about being physically subdued and sexually penetrated. He found that the offending was in the 'moderate to high range of seriousness',[9] and said:

Firstly, this was no opportunistic rape. You set the trap that you created and you snapped it shut. Secondly, your victim was an easy target. She fell for all of your representations about who you said you were, demonstrating her naïvety and impressionability. Thirdly, you employed violence to subdue her by putting her at serious risk, by strangling her, and you threatened to kill her if she did not stop struggling. Fourthly, you introduced sperm into her which carried a risk of her becoming pregnant and suffering the possible transmission of a sexually communicable disease.[10]

11 At the time of sentencing by Judge Misso, Matheas was already serving a sentence following conviction by a jury for three rapes against a woman, XY, which he had committed over the course of a night on 10 to 11 June 2014, after the rape against SP. Judge Misso expressly referred to this offending when discussing the need for protection of the community, observing:

The legislature has recognised that the sentence must reflect protection of the community, and in your case, it is so very obvious why that must be the principal objective. I need say little more than referring back to your criminal history and the rape of [the other complainant] XY to demonstrate just how much of a risk you pose to the community.[11]

12 The protection of the community, to which Judge Misso referred, is enshrined in s 6D of the Sentencing Act as the principal purpose for which a sentence of imprisonment is imposed in the case of a serious offender:

6D Factors relevant to length of prison sentence

If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence -

(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

13 A 'relevant offence' is a sexual offence or a violent offence in the case of a serious sexual offender.[12] A 'serious sexual offender' is defined as follows:

Serious sexual offender means an offender (other than a young offender) -

(a) who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre.

14 Judge Misso had access to the reasons supporting the first sentence,[13] which indicated that Judge Bourke had found that Matheas had engaged in very serious offending, involving brutal, humiliating and demeaning treatment of XY, a young woman trapped and 'treated abysmally'[14] in her own home, who was subjected to three offences of rape over a number of hours.

15 Matheas was acquainted with XY, the daughter of a woman he knew. He was at XY's home where he ate, watched television, and went to bed in a spare bedroom. XY went to sleep in her own room but was awoken by Matheas asking to get into her bed. XY refused. Judge Bourke found that at no time did XY behave in any way suggestive of wishing to have sexual relations with Matheas. Matheas raped her three times in separate offending. First, he jumped on the top of XY's bed and when she struggled Matheas choked and abused her. She begged him to stop and resisted him but he penetrated her vagina with his penis. XY got up and showered. She returned to the bed and pretended to sleep. He said he was 'going to fuck her' and repeatedly said that her mother had told him to do this. Ultimately he raped her again, letting her go when she said she was going to vomit. She went to the toilet and was dry retching. Matheas followed her and committed the third rape, grabbing XY by the hair and dragging her back to the room and penetrating her. He later followed XY into the lounge room and made her send him a text message that said, 'Come into my room and fuck me'. Judge Bourke treated the text message as an aggravating feature of the offending. He also regarded the repetition of the offences as 'considerably aggravate[ing] the seriousness of [the] offending in its totality'.[15]

16 Judge Bourke further observed that Matheas had a significant criminal record, including for offences of violence and intimidation involving assaults, threats to injure and kill, breaches of intervention order, and stalking associated with which was a conviction for arson. Matheas had also failed to comply with community based orders. Judge Bourke found that Matheas was 'utterly without remorse',[16] and that he could not find that Matheas had good prospects for rehabilitation.

17 Judge Bourke recognised that Matheas had the status of a serious sexual offender on the third charge, but while he took into account community protection as the principal sentencing purpose, pursuant to s 6D of the Sentencing Act, he was not asked to impose, and did not impose, a longer than proportionate sentence to achieve that purpose. Judge Bourke referred to s 6E of the Sentencing Act which mandates, in respect of a serious offender, full cumulation on any uncompleted sentence unless the court 'otherwise directs'. Section 6E operates of its own force:

6E Sentences to be served cumulatively

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.

18 Judge Bourke determined that full cumulation was not appropriate, but, given the seriousness of the offending, he determined to 'otherwise direct', pursuant to s 6E, that there be significant partial cumulation. He said:

The choice is an aggregate sentence, reflecting such matters [as the repetition of the offending in XY's home where she was trapped], or some significant partial cumulation, reflecting them and the need for a just total sentence. I shall direct partial cumulation. That is otherwise than the prima facie position stated in s 6E of the Sentencing Act, given your status on Charge 3 as a serious offender.[17]

19 Importantly, Judge Bourke recognised that, while the prima facie position of s 6E is that a sentence of imprisonment imposed in respect of a relevant offence will be fully cumulated on other uncompleted sentences, it is open to a judge, pursuant to that section, to otherwise direct significant partial cumulation. The power to 'otherwise direct' is a discretionary power.

20 Judge Bourke sentenced Matheas to imprisonment for seven and a half years for each of the three charges, with 15 months of the sentences on charges 2 and 3 to be served cumulatively on the sentence for charge 1 and upon each other, giving a total effective sentence of ten years. A non-parole period of eight years was ordered, with a pre-sentence detention declaration of 485[18] days:

The offender must comply with the reporting obligations imposed by the Sex Offenders Registration Act for 15 years

21 There was no appeal against the sentence imposed by Judge Bourke.

22 It is also useful to note that Matheas had earlier sought leave to appeal in respect of his conviction for arson associated with the stalking offence. In 2001 he was sentenced to a total effective sentence of five years and five months' imprisonment following conviction by a jury for two charges of stalking, one charge of attempting to pervert the course of justice, one charge of threat to kill, one charge of obstructing justice and one charge of arson endangering life. The Court of Appeal, in dismissing applications for leave to appeal against conviction and sentence for the 2001 offences, noted the views expressed in a pre-sentence psychiatric report relied on by the sentencing judge, that:

[Matheas] was a man of 'borderline intelligence' with 'low self esteem and unresolved anger'. [Matheas] had apparently resorted to 'body building' which involved uninhibited use of anabolic steroids to improve his self image. His problem was one of 'easily losing self control'; no doubt contributed to by the excessive use of steroids. Her Honour regarded his present state as 'one of denial' which did not auger well for his rehabilitation.[19]

23 As noted, Judge Misso sentenced Matheas as a 'serious sexual offender' given the previous convictions for rape against XY.

24 The judge observed that the fact that the three rapes against XY occurred after the rape against SP did not prevent Matheas satisfying the definition:

The definition does not relieve you of being characterised as a Serious Sexual Offender because the rapes of XY occurred after the rape of SP. All I must be satisfied of is that you have been 'convicted' of the rapes of XY before the time I sentence you.[20]

25 He went on to remark that the 'provisions relating to a serious sexual offender are draconian'.[21] He noted that providing he was satisfied that a sentence of imprisonment was justified for the rape of SP, 'and I certainly am',[22] then the protection of the community was the principal purpose governing the determination of the length of the sentence, pursuant to s 6D(a) of the Sentencing Act.[23] He also noted the provisions of s 6D(b) which provide a power to impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

26 He emphasised the proximity of the two sets of sexual offending, remarking that this indicated that the prospects of rehabilitation for Matheas were negligible, an unusually adverse assessment:

The prospects of rehabilitation become an important factor in the sentencing of any individual. I consider that your prospects of rehabilitation are negligible. I say that because of your criminal history, but more importantly, you raped SP and within three months you raped XY. You have learnt nothing from your previous court appearances and, indeed, you appear to be oblivious to prosecution, the imposition of penalty for offending and the likelihood that persistent offending will be met by more significant sentencing. That is where you were heading and that is where you have landed. I note that you have not shown an ounce of remorse.

I have paid due regard to the plea made on your behalf by your counsel. It has been a very difficult task for him to be able to assemble any material which demonstrates that the sentence I must impose on you should be moderated in any significant way.[24]

27 The judge took into account the principle of totality, that is, the need to ensure that the overall sentence was not excessive relative to the total criminality involved,[25] but considered that there was a need to moderate totality in the statutory context of s 6D, where, as mentioned, the protection of the community becomes the principal purpose of sentencing. He determined to impose a disproportionate sentence, in the exercise of the power under s 6D(b). In sentencing Matheas to eight years' imprisonment he said:

The principle of totality requires me to sentence you by having regard to the sentence you are presently undergoing to make sure that the totality of consecutive sentences is not excessive and is an appropriate sentence for all of your offending, but I think the principle of totality is to be given a different emphasis because of the factors that I have already referred to in s 6D.

I will impose a stern sentence on you, which I think is called for, because of the need to protect the community from you. I will impose a sentence longer than that which is proportionate to the gravity of the sentence in the light of the objective circumstances of its occurrence.[26]

28 With respect to the relationship between the sentence imposed for the rape of SP and the sentence previously imposed for the offending against XY, he referred to s 6E[27] but considered that full cumulation would not be appropriate, saying:

Additionally, s 6E provides that the sentence that I must impose on you, unless otherwise directed by me, must be served cumulatively on any uncompleted sentence imposed on you. The prosecution did not apply to have you sentenced in accordance with s 6E. In any event, I would not have done so, because I consider that the section is reserved for offending of a graver kind than yours.[28]

29 He nonetheless directed a significant partial cumulation of six years on the uncompleted sentence for the three rapes against XY. In my view, in making this order, Judge Misso was exercising the power to 'otherwise direct' a period of cumulation, pursuant to s 6E, to displace the prima facie rule that full cumulation applied. In doing this he acted in much the same way as Judge Bourke.[29]

30 Matheas, in his written case, submitted that the sentence does not comply with the principles of totality and parsimony. His argument was that he fell to be sentenced as someone who had no history of sex offences at the time he committed the subject offending, albeit that by the time he was being sentenced for the subject offending he had been convicted and sentenced for the three rapes which occurred later in time. This was a critical foundation of the challenge based on manifest excess because, as counsel for Matheas put it, the sentence imposed by Judge Bourke was unimpeachable and '[i]f the sentence imposed in the matter subject to an appeal was imposed as a subsequent matter, quite clearly it would also be unimpeachable but it was a first-in-time'.

31 Counsel never challenged the fact that Matheas satisfied the definition of a 'serious sexual offender' in s 6B but in substance he challenged the approach of the judge on the basis that s 6D of the Sentencing Act was not enlivened because of the absence of any criminal history involving sexual offences. It was also submitted that, in any event, it was not necessary for the judge to impose a disproportionate sentence to achieve the purpose of community protection. This additional submission is considered further below.[30]

32 In the written case Matheas also submitted that the application of s 6E should have been moderated given the absence of any criminal history involving sexual offences. Given that Judge Misso expressly found that full cumulation was not appropriate, and thus that the prima facie operation of s 6E did not apply, the submission in the written case must be interpreted as meaning that the significant partial cumulation which Judge Misso 'otherwise directed' under s 6E should have been moderated, given the absence of any criminal history involving sexual offences at the time Matheas committed the rape against SP.

33 During the course of the appeal hearing, however, counsel for Matheas appeared to accept that it was unrealistic in the circumstances to regard his client as having no prior history of sexual offending. He accepted that the three rapes of XY, although occurring later in time than the rape of SP, would be 'deemed' prior criminal history for the purposes of the sentencing exercise given that Matheas was convicted of the rapes of XY before his conviction for the rape of SP. He accepted that it was incontestable that the rapes of XY were prior convictions and the definition of 'serious sexual offender' turned on there being earlier convictions for two or more sexual offences. It follows that Judge Misso was correct in looking at all the sexual offending against both SP and XY when applying the Sentencing Act provisions with respect to serious sexual offenders and in determining the appropriate sentence. The submissions on manifest excess must thus be seen against the background that there is no challenge to the status of Matheas as a serious sexual offender or to the propriety of Judge Misso taking into account all of the rapes of which Matheas was convicted, although the submission was maintained that some consideration should have been given to the fact that the rape of XY was the first-in-time sex offence committed by Matheas.

34 In assessing the severity of the individual sentence for rape, counsel recognised that in assessing the gravity of the offending there were two principal additional acts of violence: initially pulling SP to the ground by her hair and then trying to strangle her to make her yield. He accepted that SP had feared for her life and this meant the offending was grave. Counsel submitted, however, that the gravity of offending was not at the 'very high end' of the range given that no weapons were used, the violence was not over a prolonged period, there was no prolonged humiliation, and SP did not suffer any physical injury (although he acknowledged that psychologically the rape is likely to be an ongoing issue for her). By contrast with the offending against XY, the offending against SP did not take place in the complainant's home or in a protected space, and did not involve any home invasion. Although the judge referred to the risk of pregnancy and disease given the presence of semen, counsel pointed to the evidence of the complainant that she saw Matheas was wearing a condom from the outset, suggesting that at least Matheas had not intended to have unprotected sex with SP. Afterwards Matheas drove SP home, indicating there was no prolonged humiliation or attempts to degrade the complainant. Counsel for Matheas submitted that, in the light of these factors, a sentence of eight years for the rape of SP was manifestly excessive.

35 Moreover, it was submitted, the sentence of eight years' imprisonment was not consistent with current sentencing practices. Matheas relied upon the Sentencing Advisory Council statistics for rape between 2009-10 and 2013-14 which indicate that the median total effective imprisonment length was six years while the median principal imprisonment length was five years.[31]

36 In my view, however, Matheas' reliance upon the sentencing statistics was of limited utility. It is notorious that there are difficulties in relying upon sentencing statistics for the purpose of assessing whether a sentence is manifestly excessive.[32] There is a need for caution with respect to statistics where no distinction is drawn between the sentence imposed in respect of a guilty plea and those who contest the charge. Matheas chose to contest the charge and this necessitated the cross-examination of the victim at trial. Moreover, the circumstances of the offence of the rape of SP were characterised by the judge, as mentioned, as having a 'moderate to high range of seriousness'.[33] Those cases that attract a sentence of five years are unlikely to fall into this category. Matheas cited no examples of comparable cases of rape before this Court. On the plea, the prosecutor cited a number of relevant sentencing decisions in which the sentences imposed ranged from five years three months to nine years' imprisonment.

37 Furthermore, counsel for Matheas conceded that this was a serious instance of rape, involving Matheas deceiving SP into coming home with him, and that an assessment of moderate to high seriousness was open. There was no challenge to the finding that Matheas was a risk to the community, as was clearly apparent by reason of the offending against XY. The extensive and 'troubling'[34] criminal history involving violent offences also supported a significant sentence of imprisonment, as did the plea of not guilty, the lack of remorse, and the unchallenged assessment of Matheas's prospects of rehabilitation as 'negligible'.[35] As the Crown submitted, and I agree, all of these features support a sentence of eight years as being well within the

range open to the judge; that is, I do not consider that the sentence of eight years was, in the circumstances, beyond what was proportionate.

38 In my view, the occurrence of the rape of SP as first in point of time does not disturb the proportionate nature of the sentence, given the objective gravity of the offending, the personal features of Matheas's criminal history, and the risk of reoffending, all of which demanded a substantial sentence.

39 Furthermore, in the circumstances of the case, I consider that, in any event, it would have been open for the judge to impose a disproportionate sentence, pursuant to s 6D(b), given the status of Matheas as a serious sexual offender, the objective gravity of the offending and Matheas's personal circumstances, especially, the repeated acts of violence throughout his criminal history. In my view, s 6D(b) was clearly enlivened given the status of Matheas as a serious sexual offender and given that he was being sentenced for a relevant offence. The provisions of pt 2A of the Sentencing Act in effect do away with the technical consideration of 'prior convictions' and invite a sentencing judge to look at the collection of offences of which an offender has been convicted. In this context, the occurrence of an offence first in the chronology of an offender's life has no real import.

40 The judge said of Matheas, 'Your criminal history points to you being a violent man.'[36] The judge also remarked, as mentioned, that Matheas appeared to be 'oblivious to prosecution, the imposition of penalty for offending and the likelihood that persistent offending will be met by more significant sentencing'.[37]

41 The imposition of a disproportionate sentence is a rare occurrence. The exceptional nature of the jurisdiction was emphasised by Charles JA in R v Connell[38] (with whom Tadgell and Vincent JJA agreed) when he said of the predecessor to s 6D:

[T]he section requires the sentencing judge to regard the protection of the community, which was already 'one of the most important results that the criminal law is designed to secure' ... as the principal purpose. Proportionality remains, in my view, a very important consideration for the judge; but, where the judge is satisfied by acceptable evidence that a serious sexual offender is so likely to commit further crimes of violence (including sexual offences) that he constitutes a danger to the community, the judge may impose a sentence longer than that which would be justified by the principle of proportionality.[39]

42 A disproportionate sentence may involve an element of preventative detention and, if so, a total effective sentence of which it forms a part may reflect an element of preventative detention, authorised under statute. What is clear from the statute is that a disproportionate sentence is to be directed at achieving the purpose of the protection of the community from the offender. In my view, there was evidence before Judge Misso that Matheas is so likely to commit further crimes of violence, including sexual offences, that he is a danger to the community in the absence of a disproportionate sentence. However, as mentioned, I do not consider that the sentence of eight years was disproportionate.[40] Furthermore, I consider that it cannot be concluded that a sentence of eight years for the rape of SP, or the total effective sentence of 16 years with a non-parole period of 12 years, went beyond what was necessary, in all the circumstances, in order to achieve the protection of the community.

43 In this context, it should be noted that the judge asked the prosecutor whether the Crown sought a disproportionate sentence and the prosecutor replied that the Crown did not seek such a sentence. The discretionary power a judge has to impose a disproportionate sentence under s 6D(b) is not dependent upon the consent of the prosecutor. Nevertheless, it is important and consistent with procedural fairness for a judge who is considering imposing a disproportionate sentence regardless of the position of the Crown to give an appropriate warning to the parties of his or her inclination to do so. If relevant, the judge should provide an opportunity for detailed reports to be obtained on the prospects for rehabilitation and the like. This did not happen here. As the sentence imposed was a proportionate one, the lack of any warning, or any opportunity to adduce further evidence, is not material.

44 The challenge to the sentence on the basis that it failed to comply with the principle of totality was largely directed at the degree of cumulation ordered, pursuant to s 6E.

45 Counsel for Matheas submitted that the degree of cumulation was manifestly excessive and disproportionate, thereby offending the principle of totality. He submitted that the sentence should have been moderated further from total cumulation. He submitted that a sentencing judge must look at the totality of an offender's criminal behaviour and ask what is the appropriate sentence for all of the offences. He argued that while s 6E displaces the principle of totality to a certain extent, it does not remove it entirely. He identifies the error of Judge Misso as failing to give adequate consideration to the similar nature of the offending against SP and XY and the proximity in time between that offending (65 days) when making the orders for cumulation.

46 In sentencing a serious sexual offender the weight to be given to the principle of totality is to be moderated if that is necessary to avoid inconsistency with the policy underlying s 6E of the Sentencing Act. The issue was raised in R H McL v The Queen[41] where the predecessor of s 6E, namely s 16(3A), was considered by McHugh, Gummow and Hayne JJ, who remarked:

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 enliven 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.[42]

47 The relationship between the totality principle and s 6E was considered by Redlich JA in Gordon (a pseudonym) v The Queen.[43] His Honour observed that an increase in the objective gravity of total offending will lead to an increase in the degree of cumulation to be ordered and at least this circumstance will satisfy both the policy of s 6E and that underlying the totality principle. He said:

A sentencing judge must evaluate the overall criminality involved in all of the offences for which an 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. The tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. ... [I]t 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.[44]

48 In Director of Public Prosecutions (Vic) v Bales[45] this Court remarked that the legislative purpose of s 6E is to require specific denunciation of separate offences, especially where there are distinct victims:

It is plain that the purpose of s 6E is to require an approach to sentencing which marks specific denunciation of each offence to which the section applies. That is particularly the case when the offending involves ... a number of different victims. The legislative policy inherent in s 6E is that the offences committed against individual victims will be separate and distinct subjects of punishment. This will generally involve orders for cumulation, moderated to the extent necessary to give effect to the principle of totality so far as that can be done consistently with the policy of the section.[46]

49 In my view, the similar nature of the offending against SP and XY, and the arguable proximity in time of those offences, relied upon by Matheas, do not weaken the case for cumulation. Indeed, if anything, they strengthen the case for cumulation because neither the similarity of the offences nor any proximity in time can be permitted to allow the offending against SP and XY to 'merge' or be treated as overlapping or generic. Nor can the distinct victims be treated as interchangeable ciphers. The fact that the rapes occurred, accompanied by additional violence, to two distinct victims, SP and XY, requires, consistently with s 6E, that there be specific denunciation for each separate offence, as recognised in Bales. This can only be achieved by full cumulation, as s 6E prima facie directs, or, where the sentencing judge considers that full cumulation is not appropriate but where the offending is objectively grave, as here, by significant partial cumulation. In my view, the significant partial cumulation ordered by Judge Misso, pursuant to s 6E, achieved the legislative purpose of specifically denouncing both the offending against SP and that against XY.

50 In achieving the purpose at which s 6E is directed, the sentence did not, in my view, infringe the totality principle. This is because, first, when s 6E is enlivened, as here (it being conceded that the judge was correct to treat Matheas as a serious sexual offender and the rape of SP being a relevant offence), there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s 6E, that is, full effect is not to be given to the totality principle as though s 6E 'was not on the statute book'. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purpose, as conceded. Secondly, the total effective sentence of 16 years, arising from the cumulation of six years ordered on the sentences Matheas was already undergoing, did not, in my view, exceed the total criminality involved. As described above, there was considerable violence in respect of each set of offending, each reflected circumstances of deception and entrapment, and, while XY was denigrated, SP was terrified, including being afraid that she would die. In those circumstances, in my view, the total effective sentence of 16 years did not exceed the total criminality associated with the two sets of offending.

51 Matheas relied upon a further submission with respect to the judge's approach to s 6E. He argued that there was a lack of clarity in Judge Misso's reasons and it was open to construe what he said as indicating that he was authorised under s 6E to impose an order for disproportionate cumulation, or orders for cumulation that resulted in a disproportionate total effective sentence, whereas there is nothing in the words of s 6E which speaks of proportionality or otherwise. For the reasons I have given, I do not view the total effective sentence resulting from the orders for cumulation as exceeding the total criminality involved and nor, for those reasons, do I view the orders for cumulation, or the total effective sentence, as disproportionate. In any event, I consider that when Judge Misso described himself as imposing a 'stern' sentence, longer than would be proportionate to the gravity of the objective circumstances of the offending,[47] he was referring to the sentence he imposed solely with respect to the rape of SP, namely, eight years. This sentence was authorised pursuant to the power he exercised under s 6D which, as noted, expressly allows for such sentences for the offending before the court. (In any event, as discussed above,[48] I do not consider that the sentence of eight years was, in the circumstances, beyond the permissible range.) I do not interpret Judge Misso's reasons as suggesting that he was imposing a disproportionate degree of cumulation or that he was relying on s 6E to do so. There would be no occasion for him to do so given that s 6E directs, as a starting point, full cumulation. Given that statutory context, any departure from that starting point reduces, rather than expands, the cumulation a serious offender is entitled to expect.

52 In my view, the ground of manifest excess is not made out and I reject it. I would dismiss the appeal.

53 I agree with Tate JA. The appeal should be dismissed.

[1] Matheas was given leave to appeal against sentence by Priest JA on 20 February 2017.

[2] DPP v Matheas [2016] VCC 1521 ('Reasons').

[3] Sentencing Act 1991 s 6B. See [13] below.

[4] Matheas was also sentenced as a serious sexual offender by Judge Bourke with respect to the third conviction for rape against the complainant in that matter, XY.

[12] Sentencing Act s 6B(3)(c).

[13] DPP v Matheas (Unreported, County Court of Victoria, Judge L Bourke, 10 June 2016) ('Earlier Reasons').

[18] Judge Bourke's sentencing remarks made on 10 June 2016 note pre-sentence detention of 727 days (Earlier Reasons [43]), but it would seem this was later corrected to 485 days (Reasons [52]).

[19] R v Matheas [2003] VSCA 221 [5] (Winneke P with whom Vincent JA and Harper AJA agreed).

[23] See [12] above. Reasons [40].

[25] R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 476 [74].

[27] See [17] above.

[28] Reasons [24]. As mentioned at [17] above, s 6E applies of its own force. It is not clear whether Judge Misso is suggesting that the operation of s 6E is dependent upon an application by the prosecution (which it is not) or simply that no application was made to the effect that he should not 'otherwise direct'.

[29] See [18] above.

[30] See [39]-[42] below.

[31] Sentencing Advisory Council, Sentencing Snapshot: sentencing trends in the higher courts of Victoria 2009-10 to 2013-14 (Rape), No 176 (June 2015) 5.

[32] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, and Hudson v The Queen (2010) 30 VR 610, 616-19 [27]-[37].

[33] Reasons [39]. See [10] above.

[37] Ibid [43]. See [26] above.

[38] [1996] VicRp 30; [1996] 1 VR 436.

[40] See [37] above.

[41] [2000] HCA 46; (2000) 203 CLR 452.

[43] [2013] VSCA 343.

[45] [2015] VSCA 261 ('Bales').

[46] Ibid [44] (Osborn, Kaye and McLeish JJA).

[47] Reasons [47]. See [27] above.

[48] See [37] above.