Matovic v The Queen [2021] VSCA 212

1 On 19 February 2020, the applicant pleaded guilty to two summary charges and 13 charges on two indictments, as set out in the table below. On 2 April 2020, he was sentenced by a County Court judge as set out in that table:[1]

Prohibited person possess firearm [s 5(1) Firearms Act 1996]

Conduct endangering persons [s 23 Crimes Act 1958]

Threat to kill [s 20 Crimes Act]

Causing injury intentionally [s 18 Crimes Act]

Common law assault [s 320 Crimes Act]

Rape [s 38 Crimes Act]

Attempt to pervert the course of justice [s 320 Crimes Act]

Possess identification information [s 192C Crimes Act]

Prohibited person possess imitation firearm [s 5AB(2) Control of Weapons Act 1990]

Cruelty to an animal [s 9(1)(c) Prevention of Cruelty to Animals Act 1986]

Possess prohibited weapon [s 5AA Control of Weapons Act]

Sentence on second indictment and summary charges

Cumulation for sentence on second indictment and summary charges

Pursuant to s 6F of the Sentencing Act 1991, the applicant was sentenced as a serious offender in respect of charges 3 and 6 on the first indictment.

2 Charges 3, 4, 5 and 7 on the first indictment were rolled-up charges. The particulars of the rolled-up charges are described in the circumstances of the offending, below.

3 The applicant has sought leave to appeal against his sentence on the sole ground that the orders for cumulation and the total effective sentence are manifestly excessive. He has also sought an extension of time within which to file his notice of application for leave to appeal against sentence.

4 On 3 February 2021, a judge of appeal refused the application for an extension of time on the basis that the proposed ground of appeal is without merit. The applicant has elected to renew his applications for an extension of time and for leave to appeal pursuant to s 315(2) of the Criminal Procedure Act 2009.

5 The applicant's written case was prepared by counsel, not being the counsel who appeared for him on the plea. Before us, the applicant represented himself.

6 For the reasons that follow, the applications for an extension of time and for leave to appeal will be granted, the appeal will be allowed and the applicant will be resentenced as set out at [63] below.

7 The applicant had been in a relationship with the complainant for around two years prior to the offending. The relationship was marred by violence, controlling behaviour and mutual drug use.

8 The offending the subject of the first indictment was committed between 20 September 2016 and 20 July 2017. The physical offences against the complainant were committed from September 2016 until February 2017.

9 In September 2016, the applicant was released from prison, after completing a sentence for earlier offending, and returned to live with the complainant at a friend's house. The applicant became aggressive towards the complainant and appeared paranoid. He showed the complainant a Beretta shotgun which he kept hidden under the bed and shortened the barrel while she watched (charge 1 - prohibited person possessing a firearm).

10 The applicant accused the complainant of being unfaithful to him while he was in prison. Without provocation, he grabbed her by the throat, choking her until she lost consciousness (charge 2 - conduct endangering person). About a week later, in early October 2016, he pointed the shotgun (which was loaded) at the complainant and said that he would shoot her (charge 3, particular 1 - threat to kill). He then struck her with the barrel of the shotgun and split her head open (charge 4, particular 1 - causing injury intentionally).

11 At around the same time, on another occasion, having again accused the complainant of infidelity, the applicant forced her to undress at gunpoint. He played cruel games with her for two to three hours. At one point, he made her sit at the bottom of the stairs, while he spat on her from above for about 10 minutes (charge 5, particular 1 - common law assault). He then made her sit in the bath and urinated on her face (charge 5, particular 2 - common law assault).

12 Soon afterwards, on another occasion, the applicant used a taser on the complainant's leg (charge 5, particular 3 - common law assault), after which he tasered her dog (summary charge 15 - cruelty to an animal). He made the complainant lie on the ground and applied duct tape to her left leg and mouth. He struck her shin with a baseball bat four or five times (charge 5, particular 4 - common law assault). She was crying. He said that, if anyone heard her, he would break her leg. When the duct tape started to peel away because of sweat and tears, he put a gag ball in her mouth.

13 In late October 2016, when the complainant returned home from a dinner with her family, the applicant met her at the door holding the shotgun and demanded to know where she had been and with whom. He loaded the gun in front of her, held it to her forehead and threatened to shoot her (charge 3, particular 2 - threat to kill).

14 The complainant made up her mind to leave the applicant. He became upset, begged her to stay and told her that he loved her. Not long afterwards, she discovered that she was pregnant and told him. However, the applicant's behaviour did not change.

15 Sometime in October 2016, while the complainant was lying in bed, the applicant punched her in the right eye, causing the eyebrow to split open. He hit her three or four more times (charge 4, particular 2 - causing injury intentionally). She was too scared to seek medical attention.

16 Sometime in November 2016, the applicant and the complainant were in the bedroom. He was sharpening a knife, with which he cut her on the thigh, between her hip and knee (charge 4, particular 3 - causing injury intentionally).

17 In early December 2016, the applicant and the complainant were asked to vacate the house in which they had been staying. They spent two nights in a hotel. On the first night, the applicant struck the complainant over the head with a bottle and singed her hair (charge 5, particular 5 - common law assault). Bleeding from the scalp, she got in the shower. He followed her and punched her to the face. She begged him to stop, saying that she was pregnant, but he again punched her to the face. She fell backwards onto a ceramic soap dish tiled into the shower wall, which broke and cut her back (charge 4, particular 4 - causing injury intentionally). Although he acknowledged that she needed stitches, he refused to let her see a doctor and simply applied band aids to her back.

18 During Christmas in 2016, the complainant stayed with family. After Christmas, she took one of the applicant's calls, during which he persuaded her to come back to him. The complainant's sister ('AB') reported her concerns to police. On 29 December 2016, AB received a call from the complainant and, in the background, AB could hear the applicant yelling that AB had better get out of the house because he was going to come and kill her (charge 6 - threat to kill).

19 Police attended the premises at which the applicant and the complainant were staying. The applicant became angry and he and the complainant went to live in the converted garage at a friend's house.

20 In February 2017, the applicant came home with an associate. The applicant went into the garage while his associate went inside the house. The applicant showed the complainant a .45 calibre semi-automatic handgun. He loaded a cartridge in front of her. He directed her to remove her clothes and lie on the bed. He removed his clothes and told her that he and his associate were going to 'fuck [her] at the same time'. She said she did not want to have sex with either of them. Although the applicant called out to his associate, the associate did not enter the garage.

21 While holding the handgun, the applicant inserted his penis into the complainant's vagina from behind (charge 7, particular 1 - rape). As the applicant was having sex with the complainant, he put the gun against her head, then in her mouth. The complainant feared for her life and that of her unborn child. She started crying. He told her to 'shut up' and inserted the gun into her vagina, moving it back and forward for about 30 seconds (charge 7, particular 2 - rape). He put the gun back in her mouth and his penis in her vagina (charge 7, particular 3 - rape). He said that he would 'fuck [her] up the arse' and, if she did not let him, he would shoot that 'fucking spawn' and then shoot her. He inserted his penis into her anus, causing her pain. This continued for about 10 minutes (charge 7, particular 4 - rape).

22 On 1 March 2017, the applicant was arrested after a police vehicle pursuit that ended in a collision. A handgun belonging to him was found nearby (charge 8 - prohibited person possessing a firearm). He was remanded in custody.

23 The applicant made telephone calls from prison which were automatically recorded using the Arunta call system. In some of the calls, he admitted certain conduct towards the complainant as well as possession of the handgun the subject of charge 8 on 1 March 2017. He called the complainant on 6, 7, 10 and 11 March 2017 and threatened her and her family in an attempt to have the allegations withdrawn (charge 9 - attempt to pervert the course of justice). He also called his new partner on 12 April 2017 and 16 July 2017 and told her to ask a mutual friend to try to persuade the complainant to withdraw her allegations (charge 10 - attempt to pervert the course of justice).

24 The applicant had leased a storage unit since August 2015. On 1 June 2017, based on the recordings of the applicant's telephone calls from prison, police executed a search warrant on the unit and located: 81 identification documents in the names of 44 different people (charge 1 - possessing identification information); a silver imitation shotgun (charge 2 - prohibited person possessing an imitation firearm); a silver imitation handgun (charge 3 - prohibited person possessing an imitation firearm); and an extendable baton (summary charge 38 - possessing a prohibited weapon).

25 The applicant was between 32 and 33 years of age at the time of the offending and 36 when he was sentenced.

26 The applicant's upbringing was unstable. He experienced physical abuse by his father from a very early age, as well as sexual abuse by a family friend from the age of 7. He now has a strong relationship with his mother and father. He has two sons, aged 9 and 5. The eldest son lives with the applicant's mother, who has facilitated contact with the applicant since he has been in custody.

27 The applicant attended school until part way through Year 7 and has no real work history. He has been on a disability support pension since he was 17 years old due to an intellectual disability. He attempted suicide at age 17.

28 The applicant began using drugs and alcohol from the age of 14, which developed into a daily amphetamine habit.

29 The applicant has an extensive criminal history commencing in 2004. His criminal record includes assault, assault with a weapon, recklessly causing injury, intentionally causing injury, intentionally threatening serious injury, unlawful imprisonment, armed robbery, trafficking methylamphetamine, fraudulently altering or using identification, as well as theft, bail, property damage, weapons and driving offences. His weapons offences comprise possessing a controlled weapon without excuse, possessing a prohibited weapon without approval, being a prohibited person in possession of an unregistered firearm, shortening the barrel of a longarm and possessing cartridge ammunition without a licence. He has received short prison sentences previously, some of which were suspended.

30 The applicant also has convictions which post-date the current offending, and which are relevant to his prospects of rehabilitation. In August 2017, while the applicant was on remand for the current offending, he was sentenced to 2 years' imprisonment with a non‑parole period of 14 months for reckless conduct endangering serious injury, being a prohibited person in possession of a firearm, possessing an unregistered general category handgun, and driving offences.

31 The judge described the facts in this case as 'extremely serious and disturbing' and the offending the subject of the first indictment as 'very serious indeed'.[2] She found the applicant's moral culpability to be very high.[3]

32 The judge stated that the applicant's guilty plea had utilitarian value because it saved the time and cost of a trial and the complainant was not required to give evidence at trial. However, she noted that the complainant was cross-examined at a contested committal. She held that the guilty plea was very late and reflected limited remorse, insight and empathy.[4]

33 The judge described the applicant's prior convictions for violent and firearm offences as concerning, but noted that he did not have a history of sexual offending. She stated that the applicant fell to be sentenced as a serious offender on charges 3 and 6 (threat to kill) because he was convicted and sentenced to a term of imprisonment in April 2005 for intentionally threatening serious injury. Accordingly, she said that protection of the community was the principal sentencing purpose for those charges pursuant to s 6D of the Sentencing Act.[5]

34 The judge found that general deterrence, specific deterrence and denunciation were important sentencing considerations given that this case involved repeated violent offending in the context of a domestic relationship.[6]

35 The judge noted that defence counsel did not rely upon the principles in Verdins.[7] She said that, consistent with general sentencing principles, she took into account that the applicant would find his time in custody more difficult than a mentally‑able prisoner. Nonetheless, she held that his mental health issues did not warrant a reduction in the importance to be placed on general deterrence or of his very high moral culpability.[8]

36 The judge found that the applicant's prospects of rehabilitation were, at best, guarded unless he addressed his drug and mental health issues.

37 In relation to the principle of totality, the judge stated as follow:

Whilst a number of authorities refer to s 6D and s 6E [of the Sentencing Act] involving sexual offending, the principles stated in those cases referable to the totality principle apply to [the applicant] also. See R H McL v The Queen, Gordon v The Queen, and Matheas v The Queen.

...

In sentencing [the applicant], I take into account the principles of totality, as referred to in these sentencing remarks, including [ss 6D and 6E of the] Sentencing Act 1991, also the 'one incident' rule where applicable 'rolled up charges' ... and proportionality. I also note [the applicant has] spent two years in custody over and beyond the pre-sentence detention for these offences before me. By necessity the orders for cumulation are, in my opinion, somewhat compressed.[9]

38 The judge said that the principle of double jeopardy was relevant to charge 8 (prohibited person possessing a firearm) and charge 7, particular 2 (rape).[10]

39 In his written case, the applicant took no issue with the judge's assessment of the gravity of his offending or the individual sentences she imposed. However, he submitted that, as recognised in Mill v The Queen, the principle of totality may require an 'undue degree of leniency' so as to achieve a total effective sentence that was just and appropriate in all the circumstances.[11] He contended that the total effective sentence of 20 years and 6 months' imprisonment was comparable to a sentence for murder and created a justifiable sense of grievance that justice had not been done.

40 The applicant argued that, although the judge expressly stated that she had taken totality and the 'one incident' rule into account, she did not provide a path of reasoning in this respect. It was said that it was not apparent on the face of the orders for cumulation that she had 'somewhat compressed' the sentences.

41 The applicant submitted that, without any order for cumulation, his total effective sentence would have been 32 years and 11 months' imprisonment. He contended that the adjustment for totality that was made to this gross figure was around one third, as the orders for cumulation required him to serve around two thirds of the gross figure.

42 According to the applicant, it was not apparent why 2 years' cumulation was ordered on charge 4, when only 12 months was ordered on charge 3.

43 The applicant argued that there were only seven cases since 2006 in which rape was the principal offence and a head sentence was imposed that was longer than the one imposed on him. According to him, only two of those cases - Director of Public Prosecutions v Granata[12] and Bolton v The Queen[13] - were truly comparable. He contended that both cases involved offending that was worse than his offending.

44 In Granata, the offender effectively confined the complainant for six weeks in a hotel room and continually raped, assaulted and tortured her. He pleaded guilty and, on a successful appeal by the Director of Public Prosecutions to this Court, he was resentenced to 23 years' imprisonment with a non-parole period of 17 years. In Bolton, the offender had served a term of imprisonment for recklessly causing injury to his domestic partner and conduct endangering serious injury to her. Upon his release from prison, he raped her twice on the same day as 'revenge' for her reporting of the previous offences to the police. He was found guilty at trial of two charges of rape, a charge of common assault, a charge of making a threat to kill and a charge of intentionally causing injury. He had three prior convictions for rape. He was sentenced to a total effective sentence of 21 years' imprisonment with a non‑parole period of 17 years. This Court held that the sentence was not manifestly excessive.

45 The applicant acknowledged that his criminality warranted a severe sentence. However, he submitted that the sentence imposed by the judge bordered on crushing and was not reasonably open to her.

46 In oral submissions, the applicant argued that the total effective sentence was excessive because it meant there was no 'light at the end of the tunnel' for him. He submitted that his life would be 'over' by the time he was released from custody. He said that he wished to spend time with his son before he was an adult. He emphasised that he was now drug free, had completed a parenting course and a drug and alcohol course, had 'worked on [his] social skills' and had a job in prison. He said that he wanted to put these matters 'into action' when he was released from custody.

47 The Crown submitted that the amount of cumulation and the total effective sentence were both within range. It contended that neither the orders for cumulation, nor the total effective sentence, were manifestly excessive because the applicant's offending involved the following factors:

(a) He committed many offences, mainly against one victim, across nine episodes.

(b) His offending constituted very serious examples of the offences.

(c) Many charges involved more than one incident of the relevant offence.

(d) His offending commenced very shortly after he was released from prison.

(e) He had a lengthy criminal history, including for violent offending.

(g) His offending had a far-reaching adverse impact on his victims.

(h) His guilty plea had utilitarian value, but was very late.

(k) His prospects for rehabilitation were guarded at best.

(l) General deterrence, specific deterrence and community protection were all relevant sentencing considerations.

48 According to the Crown, the applicant's reliance upon Mill - that the principle of totality might require an 'undue degree of leniency' - was misplaced. That was said to be because that case was concerned with the loss of the opportunity for concurrency in the context of cross-border offending: the offender in that case had committed a series of offences in two different states and had completely served his sentence in one state before being sentenced in the second state. The Crown submitted that, in cases that did not involve cross-border offending, the application of the totality principle has nothing to do with exercising leniency, but is concerned with the imposition of a proportionate overall sentence for the overall offending.

49 The Crown contended that the rape committed by the applicant was an extremely grave example of that crime and the sentence of 12 years' imprisonment was fully merited. It argued that, just because the applicant was adequately punished for this crime, it did not follow that he should not be adequately punished for his other very serious crimes.

50 The Crown agreed that Granata and Bolton were relevant comparable cases. It submitted that, whilst those cases involved features which were worse than the present offending, there were also features of the applicant's offending which were worse than in those cases. It was said that these comparisons led to the conclusion that the sentence imposed in this case fell squarely within the range of recent comparable sentences.

51 The judge was clearly correct in describing the applicant's offending as 'very serious indeed' and his moral culpability as 'very high'. His offending against the complainant was persistent, sadistic, depraved and dehumanising.

52 The other offences the applicant committed, including the threat to kill the complainant's sister (AB) and his attempts to pervert the course of justice, are also serious offences with substantial maximum penalties. The firearms offences are also serious, particularly having regard to the applicant's criminal history in relation to firearms offences.

53 There is no doubt that, in view of the separate and distinct criminality constituted by each of the applicant's offences, an appropriate level of cumulation was required. That was particularly so in relation to the rolled-up charges (charges 3, 4, 5 and 7) and the charges for which the applicant was being sentenced as a serious offender (charges 3 and 6).

54 In the light of the gravity of the offending, the applicant's high moral culpability, the need for appropriate cumulation and the importance of the sentencing purposes of general deterrence, specific deterrence, denunciation and protection of the community, it was inevitable that the applicant's overall sentence would be very substantial.

55 In cases such as the present, which involve a large number of offences, the principle of totality serves as an important safety valve to ensure that the overall sentence does not become disproportionate to the overall offending. A useful summary of the rationale of the principle and how it is to be applied was provided by Redlich JA (with whom Coghlan and Macaulay AJJA agreed) in Azzopardi v The Queen, as follows:

The rationale underlying the principle is that a 'just measure' of an offender's total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct. Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. Considerations of mercy may further influence the sentencing judge to increase any downward adjustment. ...

[T]he severity of a term of imprisonment is an exponential, not a linear function. The severity of the sentence increases exponentially as it increases in length. Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender's overall conduct, the sentence is then proportionate to the offender's criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.[14]

56 What is required to give effect to the principle of totality is that, after deciding individual sentences and orders for cumulation, the sentencing judge should stand back and review the overall sentence to ensure that it properly reflects the degree of criminality involved and that it is just, appropriate and not excessive.[15]

57 The judge's sentencing remarks indicate that she was aware of the importance of the principle of totality in the present case. Indeed, the judge stated that the orders for cumulation she made were 'somewhat compressed' in order to give effect to the principle.

58 Regrettably, we are unable to agree that the judge's orders for cumulation are compressed. In our opinion, the orders for cumulation exceed the level that was reasonably required to satisfy the punitive and mitigatory sentencing objectives for the applicant's overall conduct. That is particularly so for the firearms offences and the offences that did not involve physical violence against the complainant. Further, the orders for cumulation did not make sufficient allowance for the fact that some of the offences were committed as part of the same incident. In the circumstances, and notwithstanding the need to punish and denounce the egregious offending in this case, the total effective sentence imposed was outside the range of sentencing options reasonably open.

59 We have not been assisted by the cases of Granata or Bolton, to which the parties referred. The nature and breadth of the offending in those cases were different to the offending in the present case. More particularly, neither of those cases involved a multitude of diverse offences - some of which were unconnected or of a summary nature - which gave rise, in a direct and stark manner, to the need to moderate cumulation for the purpose of giving effect to the principle of totality.

60 For the above reasons, we are persuaded that the orders for cumulation and the overall total effective sentence are manifestly excessive.

61 In its written case, the Crown opposed the applicant's application for an extension of time within which to file his application for leave to appeal against sentence. However, in oral submissions, the Crown conceded that if we formed the view that the ground of appeal is capable of being made out, the Crown would not oppose an extension of time.

62 Accordingly, the application for an extension of time will be granted, the application for leave to appeal against sentence will be granted and the appeal will be allowed.

63 In all the circumstances, the applicant will be resentenced to a total effective sentence of 18 years' imprisonment and a non-parole period of 14 years will be fixed, in accordance with the following table:

Sentence on second indictment and summary charges

Cumulation for sentence on second indictment and summary charges

64 It will be noted in the records of the Court that, in relation to charges 3 and 6 on the first indictment, the applicant has been sentenced as a serious offender. In accordance with s 6D of the Sentencing Act 1991, we have had regard to protection of the community from the applicant as the principal purpose of sentencing him but have not imposed a disproportionate sentence. We have 'otherwise directed' for the purposes of s 6E of the Sentencing Act, that is, we have not directed that the entirety of the sentences for those offences be served cumulatively.

65 Pursuant to s 6AAA of the Sentencing Act a declaration will be made that, but for the applicant's plea of guilty, we would have sentenced him to a total effective sentence of 24 years' imprisonment with a non-parole period of 18 years and six months.

[1] DPP v Matovic [2020] VCC 371 ('sentencing remarks').

[3] Sentencing remarks [6], [70], [192].

[4] Sentencing remarks [76]-[77], [105], [186].

[6] Sentencing remarks [190]-[191], [193]-[194], [196]-[208].

[7] R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[8] Sentencing remarks [145]-[146], [192].

[9] Sentencing remarks [79], [212] (citations omitted).

[11] [1988] HCA 70; (1988) 166 CLR 59, 64; [1988] HCA 70 ('Mill'), citing R v Todd [1982] 2 NSWLR 517, 520.

[12] [2016] VSCA 190 ('Granata').

[13] [2019] VSCA 21 ('Bolton').

[14] [2011] VSCA 372; (2011) 35 VR 43, 61 [61]-[62]; [2011] VSCA 372 (citations omitted).

[15] Osman v The Queen [2021] VSCA 176, [102].