O'Toole v The Queen [2019] VSCA 185

1 Bearii is a small town in northern Victoria. In April 2017, Neville Limbrick, then aged 73 years,[1] lived there in a house.

2 Jamie O'Toole, the appellant, aged 44 years,[2] met Mr Limbrick in February 2015, through a mutual friend. In late September of that year, they had a falling out over a white Holden utility - allegedly stolen by the appellant - which resulted in Mr Limbrick making a complaint to police. As a result, the appellant was arrested on 15 January 2016 (albeit criminal charges laid against him were later dismissed).

3 At about 2.30 am on Thursday 27 April 2017, Mr Limbrick was asleep in his bedroom of the house, and tenant, Barry Walden, was asleep on a couch in the lounge room, when the appellant and James Bowling ('Bowling') parked a stolen Ford Maverick wagon in the driveway. The appellant and Bowling were soon to embark upon a series of offences which ultimately resulted in the appellant being sentenced to 13 years' imprisonment, with a non-parole period of eight and a half years.[3]

4 Having parked the motor vehicle, the appellant and Bowling - armed with bars or baseball bats - entered the house through an unlocked door (charge 1 - aggravated burglary).

5 Mr Walden awoke to find a balaclava clad Bowling swinging a baseball bat at him. He was struck a number of times to the shoulders and hips.

6 Having entered Mr Limbrick's bedroom, the appellant tied his hands with gaffer tape. The appellant then dragged Mr Limbrick over the concrete to the other end of the house. Mr Walden could hear Mr Limbrick being dragged to the kitchen, and Bowling said to him, 'You're not meant to be here ... that's the cunt over there we're after'.

7 Mr Walden then saw the appellant slapping Mr Limbrick across the head, saying, 'where's the fucken money hidden'. Mr Limbrick screamed each time he was struck. The appellant then dragged Mr Limbrick and propped him up on a kitchen chair. He then struck Mr Limbrick with what looked like a bar or small baseball bat. All the while Mr Limbrick was screaming. By this time he was bleeding around both eyes and his mouth, and his jaw was swollen.

8 Mr Limbrick said to the appellant, 'Who the fuck are ya's. What do ya's want?'. The appellant said, 'White Commodore ute bring back any memories?'. Mr Limbrick asked, 'Is that you Jamie?', and the appellant replied, 'This is payback for making a statement that I stole the ute and power tools and taking away two years of my life'. Both the appellant and Bowling then ransacked the premises, stealing a quantity of cash and goods (charged 3 - armed robbery).

9 Bowling demanded Mr Walden's wallet and stole cash and his driver's licence. Mr Walden was then escorted out of the house by Bowling (being allowed to take his TV and DVD player). Bowling demanded Mr Walden's telephone number. Mr Walden was then escorted back inside to retrieve his telephone. He saw that Mr Limbrick was propped up against a kitchen cupboard, and looked like he had been 'bashed to the shithouse'. The appellant was demanding the keys to a Ford Ranger from Mr Limbrick.

10 Bowling then marched Mr Walden outside, and threatened, 'Go to the cops cunt and you're dead'. Mr Walden was then allowed to drive away. He noticed a black four-wheel drive in the driveway, covered in mud and without number plates. Notwithstanding Bowling's threat, Mr Walden drove towards Shepparton and telephoned Police on the '000' emergency number, initiating a police response.

11 At some point, Mr Limbrick had his hands tied up around his head and the appellant jumped on his head (part of charge 2 - intentionally causing serious injury), saying, 'I'll kill you, you bastard ... You cost me my ute and my dog you bastard' (charge 4 - making a threat to kill). The appellant also hit Mr Limbrick on the shins with a length of stainless steel or steel pipe. Once the rampage ended, and the appellant and Bowling left at 3.45 am, the hapless Mr Limbrick was left alone in his house, bound with rope and gagged (charge 5 - false imprisonment).

12 Mr Limbrick's Ford Ranger motor vehicle was stolen, together with a large number of items taken from the premises (charge 6 - theft of motor vehicle). When Mr Limbrick was released from hospital for a short time on 24 May 2017, he identified a large number of items recovered by police as belonging to him.

13 Due to Mr Walden's '000' call, police from Cobram and Numurkah responded, as did an Ambulance Paramedic unit from Numurkah. They rendezvoused at Strathmerton and moved off at 3.45 am.

14 As police approached the scene, they observed the two stolen vehicles pull out onto the Murray Valley Highway. Police attempted to intercept the appellant and Bowling, but they both drove away quickly in different directions, managing to evade police.

15 Police then discontinued their attempts to intercept the vehicles and continued to the scene, arriving at 3.55 am. They had to force entry to the house. Having done so, police found Mr Limbrick barely conscious, gagged and bound to the couch. Mr Limbrick was untied. He was assessed by paramedics, stabilised and transported to the Goulburn Valley Hospital in Shepparton for emergency treatment. At the house, and while being transported to hospital, Mr Limbrick a number of times identified the appellant as one of the offenders.

16 The injuries to Mr Limbrick - which included an uncontrolled bleed on the brain - were initially considered to be life-threatening. He was airlifted to the Royal Melbourne Hospital ('RMH'). Later, he was transferred back to Goulburn Valley Hospital for rehabilitation. He was subsequently returned to the RMH, however, for emergency surgery to treat a bleed that developed on the spine in the area of the neck. Prior to the attack he was an active pensioner. Medical practitioners would not release him to give evidence at committal proceedings. He still cannot walk or balance properly.

17 At approximately 7.30 am on the morning of the attack, Mr Limbrick's white Ford Ranger was found abandoned approximately ten kilometres from the scene of the offence. The appellant's DNA was found on the steering wheel. His DNA was also recovered on two sections of duct tape found in the area of the couch where Mr Limbrick had been placed.

18 When arrested on 2 May 2017, the appellant was found in possession of items belonging to Mr Limbrick. A roll of silver duct tape was also located. Police also found a pair of work boots that were an identical match for shoe impression left on the driveway of the Bearii house. The appellant was interviewed, denied all allegations and was remanded in custody.

19 Despite his denials, on 3 July 2018 the appellant pleaded guilty to an indictment filed in the County Court charging him with a number of offences arising out of the events on 27 April 2017. Following a plea, he was, as we have said, sentenced to 13 years' imprisonment, with a non-parole period of eight years and six months on 27 July 2018. It is convenient to set out the sentence in tabular form:

Committing an indictable offence whilst on bail[11]

17 years' imprisonment with an 11 year non-parole period

20 We pause to note that the judge did not explain how he arrived at the non-parole period of eight and a half years, which is a period a little over 65 percent - not quite two thirds - of the length of the total effective sentence. (He did not, for example, suggest that he was allowing for an extended parole period in recognition of co-operation, prospects of rehabilitation or any other factor.)

21 Importantly, when imposing sentence, the judge purported to impose a less severe sentence on the appellant as a result of his assistance to law enforcement authorities.[12]

22 A plea in mitigation was made on 3 July 2018. Contrary to the inveterate practice, the judge adjourned the matter until after the trial of the previously unidentified co-offender had taken place, rejecting the joint submissions of both the prosecutor and appellant's counsel that fairness dictated that the appellant should be sentenced before Bowling's forthcoming trial. He should not have done so.[13] In the event, however, the appellant did give evidence at Bowling's trial in accordance with his statement to police, made on 20 March 2018. The sentencing judge presided at that trial. As it transpired, Bowling was acquitted, despite the appellant having given evidence against him.[14] That, it must be said, was no doing of the appellant. Importantly, it was common ground that the appellant's statement, and the evidence which he gave in accordance with it, were of high value to the prosecution.

23 In sentencing the appellant, the judge purported to take his assistance into account. When dealing with the matters urged in mitigation on the appellant's behalf, the judge made the following observations in his sentencing remarks:

... The particular matter of course relied upon was his cooperation. He provided the undertaking to give evidence against Mr Bowling, and indeed did give that evidence.

That undertaking and that evidence was classified, and I agree with the classification, as being very important to the prosecution. As I said, [the appellant] took the opportunity in open court at the time to express his sorrow for the injuries that he inflicted upon Mr Limbrick.

There is of course a most important aspect of encouraging criminals to give evidence against their fellow perpetrators. The important principles relate to trying to solve crimes and having people convicted of crimes. That is why the undertaking in this case was valuable, and that is why upon legal principle [the appellant] is entitled to a considerable discount in regard to the sentence that would otherwise be given to him, and I do in fact give him that discount.

... As I say, the undertaking was honoured. [The appellant is] therefore entitled to, as was submitted by [defence counsel], the appropriate discount for that, and a discount for [his] plea of guilty.

24 On 30 November 2018, Ashley JA granted the appellant leave to appeal against his sentence on a single ground,[15] formulated as follows:

The individual sentences, the total effective sentence and non-parole period fixed are each manifestly excessive.

(a) The learned sentencing judge gave manifestly insufficient weight to the [appellant's] undertaking to give evidence in the trial of the co-offender.

(b) The learned sentencing judge gave manifestly insufficient weight to the evidence given by the [appellant] in the trial of the co-offender.

(c) The learned sentencing judge gave manifestly insufficient weight to the hardship that would be suffered by the [appellant] by giving the undertaking and giving evidence in the trial of the co-offender.

25 Counsel for the appellant submitted on the appeal that the sentence imposed 'is manifestly too long and serves to discourage co-operation with the authorities'. The appellant provided an undertaking and gave evidence against Bowling. He therefore was entitled to a sentencing 'discount', but the sentence imposed does not adequately reflect any discount. The judge, it was submitted, gave manifestly insufficient weight to the appellant's co-operation with the authorities including the making of a statement, the provision of an undertaking, and the giving of evidence.

26 Additionally, the appellant's counsel submitted, the appellant will serve his term of imprisonment in protective custody as a result of his co-operation with the authorities, but the sentencing judge failed to give consideration to the hardship that will be suffered as a result. Counsel submitted that the appellant's term of imprisonment will be more burdensome for him than an ordinary prisoner, since he is at risk of reprisals throughout his term of imprisonment and into the future.

27 Finally, counsel for the appellant submitted that the process of requiring the appellant to give evidence in accordance with his undertaking before being sentenced was unfair, since he was required to give evidence with the pending sentence 'hanging over his head'. Thus, the appellant was required to give evidence while 'fearful of failing to satisfy' the sentencing judge and 'suffer his disapproval in the form of an increased term of imprisonment'. He gave evidence 'without knowing the benefit that resulted from his undertaking'.

28 The respondent's counsel submitted that this Court's task was not to attempt to apportion or quantify the extent to which an appellant's assistance to authorities was reflected in the ultimate sentence imposed by the judge, but to determine whether the appellant has established, having regard to all the material, that the sentence imposed fell wholly outside the range of available sentences.[16] Orally, counsel submitted that the sentence 'is high in the range, but not wholly outside it'.

29 It was submitted that the offending was very serious, and involved a prolonged armed attack in company - motivated by revenge - perpetrated on an elderly man in his own home in the early hours of the morning. The victim was left tied up and with life-threatening injuries. As a result of the injuries sustained, the victim can no longer live independently. The community, it was submitted orally, would be 'outraged' by the offending.

30 Apart from his assistance to authorities, counsel submitted, there was little to mitigate the appellant's offending. And while the undertaking was important and valuable, it must be assessed in its proper context. Thus, the appellant was the principal offender who offered and then gave evidence against his alleged co-accused. His evidence did not identify his co-offender but gave details of his co-offender's alleged involvement.

31 Ultimately, counsel for the respondent contended that the sentence imposed properly reflects the gravity of the individual offences and the overall gravity of the offending as a whole, and gives proper expression to the applicable sentencing principles. The sentence adequately reflects the matters put in mitigation, including the appellant's plea of guilty and his assistance to prosecuting authorities.

32 Factually, the present case bears a number of similarities to Cooper[17] (albeit that the victim in the present case was fortunate that he did not die). Thus, a vulnerable, elderly victim was attacked in his own home, savagely beaten and hog-tied. And as was the case in Cooper, the main perpetrator of the unlawful violence undertook to give evidence against his co-offender. Further, as in Cooper, the appellant is not a 'true informer', in that he initially denied any involvement in the crimes, and only provided information to law enforcement authorities and undertook to give evidence when facing a substantial term of imprisonment. It is therefore useful to repeat what the Court said in that case about sentencing offenders in the present appellant's position:[18]

The present is not, however, a 'true informer' case, where a discount anywhere near the order of fifty per cent - let alone two thirds - could have been considered appropriate. As Weinberg JA observed in Cottee:[19]

The extent of any sentencing discount given to an informer will, of course, vary from case to case.[20] Discounts of up to two thirds have been given for the highest level of cooperation,[21] the so-called 'true informers'.[22] Recently, this Court regarded a discount of 50 per cent as being appropriate for an applicant who had pleaded guilty to murder, kidnapping and trafficking in large commercial quantities of drugs in circumstances where that offender made a statement implicating his co-offenders, and undertook to give evidence against them.[23]

Johnston[24] was a case in which the Crown conceded that the applicant's cooperation was such that he was 'entitled to the maximum discount on sentence which proper sentencing practice is able to afford him'. Nettle JA (with whom Buchanan and Ashley JJA agreed) said:[25]

... Although, recognising that the quantification of informer discount involves a degree of arbitrariness which adherents to the shibboleth of intuitive synthesis may prefer to avoid, in the circumstances of this case I would set the discount at 50%.

So to say is not to suggest that the level of discount could not be less or more in another case involving drug-related offences. Each case is unique.[26] Nor is it to say that it is necessarily the only figure to which one could properly come in the circumstances of this case. It goes without saying that, within a given range of acceptability, views may reasonably differ. But, in my view, less than 50% would be an inadequate recognition of the quality of the information which the applicant has provided to authorities in this case, and the risks to which he has subjected himself by agreeing to do so; and more would tend to undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale here involved. I am strengthened in that conclusion by the analysis undertaken by Wells J in R v Golding.[27]

A discount of fifty per cent on sentence was thought to be justified in Johnston because of the very high level of assistance provided to authorities. It should not be thought, however, that there is a 'tariff' or standard discount, or that the assessment of the discount that should be given can generally be approached in a mechanical or mathematical way.[28] The amelioration of sentence to be afforded for cooperation in every case must be determined according to a range of factors, including - but not limited to - the nature and extent of the cooperation; any willingness to give evidence against co-offenders; and any danger flowing from the cooperation. As was said in Freeman, however:[29]

... it is the genuine co-operation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective. The information must be such as could significantly assist the authorities. Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.

33 In the present case, the appellant's co-operation - in particular, in providing a statement and giving evidence against Bowling - entitled him to some amelioration of his sentence (albeit a discount in the order of fifty percent was unwarranted). It is fair to say, however, that beyond the appellant's co-operation there was not much that went in mitigation.

34 At the time of offending, the appellant was aged 44 years. He is the youngest of eight children and grew up in Scottsdale, Tasmania. His counsel told the sentencing judge that his upbringing was 'extremely difficult', in that the family lived in public housing and struggled financially. The appellant has little contact with his three children, who live in Launceston (as does his mother). He completed Year 9 at school, where he was regularly bullied. After leaving school he worked as a farm labourer and in an abattoir for three years, but has had no further education. Chasing seasonal farm work, he moved to Victoria in 1992 (where he has since spent most of his time, occasionally visiting Tasmania), and moves around north-east Victoria performing farm and handyman work. On the plea, his counsel told the judge that he has a minor hearing condition and suffers from anxiety and depression (although no expert reports were tendered on his behalf). His counsel submitted on the plea that his plea of guilty demonstrates genuine remorse, and that he has reasonable prospects of rehabilitation.

35 The appellant has a significant criminal history. Thus, on 15 November 2016, in the Magistrates' Court at Shepparton, he was placed on a community correction order ('CCO') for 12 months (with a condition that he perform 100 hours' community work), on charges of unlawful assault; threatening to cause serious injury; theft; failing to answer bail; and unlicensed driving. The instant offending was aggravated by the fact that the appellant was on this CCO at the time of its commission.[30]

36 Between 1991 and 2013, the appellant also amassed a significant number of prior convictions in Tasmanian courts. Putting aside his many driving offences (which include unlicensed driving, driving whilst disqualified and exceeding the prescribed alcohol limit), the appellant has prior convictions for assault (1991 and 1992), assaulting police (2001) and common assault (2013); stealing (1995, 1996, 1998 and 2004), motor vehicle stealing (2004) and receiving (1998); burglary (1996, 1998 and 2004) and aggravated burglary (2004); injuring or destroying property (1991 and 1992); and a host of other offences (including breaching bail; threatening and abusive language; possessing prohibited plants; and others). He has had sentences of imprisonment imposed on at least four prior occasions (for terms between three months and 18 months), and has had suspended sentences of imprisonment imposed (some of which he has breached).

37 Although the appellant is not to be again punished for his prior offences, his significant criminal antecedent are far from irrelevant. As Charles JA (with whom Winneke P and Southwell AJA agreed) observed in O'Brien and Gloster:[31]

It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender's moral culpability, his prospects of rehabilitation, his dangerous propensity and the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence. ...

38 Charles JA then set out the following well-known passage from Veen:[32]

... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [[1970] AC 642, at p 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

39 It is also important to recognise the impact of the appellant's offending on the victim. As to that, the victim's medical condition, and the manner in which the sentencing judge dealt with it, were described by Ashley JA as follows:[33]

The injuries sustained by the victim were indeed serious, but a causation issue intruded.

When police arrived at the premises, in response to a call made by Mr Walden, Mr Limbrick was found barely conscious, gagged and bound. He was transported to the Goulburn Valley Hospital for emergency treatment.

On the evening of 27 April, he was transferred to the Royal Melbourne Hospital. According to a statement made by a Dr Dimou on 14 March 2018, examination showed that Mr Limbrick had sustained a small right-sided acute subdural haemorrhage, superficial grazes, and mild neuro cognitive sequelae of mild traumatic brain injury. He was treated conservatively.

Next, according to Dr Dimou's statement, on 2 May 2017 the victim was transferred back to Goulburn Valley Health for rehabilitation. But he was re-referred to the Royal Melbourne Hospital on 13 June 2017 for cervical myelopathy. On 17 June, he underwent an anterior cervical discectomy and fusion procedure at C4/5 and C5/6. A second cervical laminectomy was performed on 3 July. Dr Dimou expressed doubt whether the cervical spinal injury was contributed to by the attack on 27 April 2017.

The report of Dr Jo Ann Parkin of the Department of Clinical Forensic Medicine, dated 5 July 2018, based upon hospital records, including imaging results, and doctors' reports, was placed before the sentencing Judge on 27 July - that is, the day on which his Honour sentenced the applicant. Dr Parkin opined that the victim had suffered traumatic brain injury consisting of three areas of subdural haematoma and also subarachnoid haemorrhage, post-traumatic amnesia, a significant decline in memory and also decline in insight and abstract thinking, widespread abrasions and bruising, and cervical myelopathy.

Further according to Dr Parkin:

Given that Mr Limbrick was functioning independently with this pre-existing degenerative condition prior to the incident, it is likely that the cervical myelopathy and his subsequent decline in mobility were recent developments and could have been caused by blunt trauma.

On 3 July 2018, that being the day on which the plea was part heard, the prosecutor had agreed with the Judge that his Honour could not be satisfied to the requisite standard that the cervical myelopathy - by which was meant the development of symptoms and the need for surgery - could be attributed to the applicant's attack on Mr Limbrick. After Dr Parkin's report was tendered, no different submission was made for the prosecution. The Judge then sentenced the applicant on the basis that a relationship had not been sufficiently established.

40 As we have said, the judge said that, based on his co-operation (including his undertaking to give evidence), the appellant was 'entitled to a considerable discount in regard to the sentence that [scil., than] would otherwise be given to him' , and that he did 'in fact give him that discount'. With due respect to the experienced judge, however, it is difficult to see that the appellant's co-operation is adequately reflected in the individual sentences for intentionally causing injury, aggravated burglary and armed robbery, or in the total effective sentence imposed following the orders for cumulation.

41 It has been common for some time to speak of a sentencing 'discount' for pleas of guilty and for aspects such as co-operation. Although strictly incorrect - since it is apt to insinuate that resort to a two tier sentencing method is legitimate - use of the term 'discount' in this area of discourse remains a handy shorthand way of expressing the notion that assistance to law enforcement and prosecuting authorities should ordinarily result in amelioration of sentence.[34] In the end, however, the essential task of a sentencing judge involves arriving at an appropriate sentence through instinctive synthesis. It does not involve the application of mechanical or arithmetical 'discounts' upon a nominal or predetermined sentence. As was said in Ooi, 'it would be wrong to see the recognition of a guilty plea or assistance given to authorities as other than a moderating factor to be taken into account by a sentencing judge in the course of considering all relevant factors'.[35]

42 There was a meanness and viciousness permeating the appellant's offending which almost beggars belief. The violence visited upon the victim has had a significant and permanent adverse effect upon him. There thus can be no doubt that general and specific deterrence, denunciation, just punishment and community protection all had to be given prominence in the sentencing synthesis. (And insofar as prospects of rehabilitation are concerned, although the sentencing judge was 'guarded' as to the appellant's prospects, we would assess them as poor.)

43 There is a public interest, however, in encouraging offenders to provide assistance to law enforcement authorities, including (as in the case of the appellant) providing evidence against co-offenders. That encouragement must be reflected in a meaningful moderation of sentence. Although it might be argued that a 'discount' may be detected in the non-parole period fixed by the sentencing judge - albeit that the judge did not distinctly articulate his reasons for imposing a non-parole of the length that he did - it is difficult to see an adequate discount reflected in three of the individual sentences imposed, or in the total effective sentence. It is, of course, important that assistance to law enforcement authorities be reflected by an appropriate moderation of more than just the non-parole period, since - given that a sentencing judge is not entitled to predict whether a prisoner will (or will not) be granted parole[36] - it cannot be assumed that the prisoner will not be required to serve every day of the total effective sentence.

44 Notwithstanding the gravity of the appellant's offending, in the present case we have been driven to conclude that the judge did not adequately reflect the appellant's co-operation - including that he gave evidence against the co-offender - in the sentence imposed. We consider that the individual sentences on charges 1, 2 and 3 - aggravated burglary, intentionally causing serious injury and armed robbery - are manifestly excessive, and do not adequately take into account the appellant's assistance.

45 In a case of aggravated burglary that did not involve the offender having provided co-operation to law enforcement authorities, a sentence in the order of seven years' imprisonment following a plea of guilty might be considered unremarkable.[37] In the present case, it is not possible to see any discount for the appellant's assistance adequately reflected in the sentence of eight years' imprisonment imposed on charge 1, aggravated burglary. The same can justifiably be said of the sentence of five years' imprisonment imposed on charge 3, armed robbery.[38]

46 Furthermore, having regard to the nature of the serious injuries caused and the circumstances in which they were inflicted, although the sentence of 10 years imprisonment imposed on charge 2, intentionally causing serious injury - half the available statutory maximum - might (all other things being equal) have been within the available range, when the appellant's assistance to authorities is factored into the sentencing synthesis, it is plain that the sentence falls outside the available range. Although one cannot be overly prescriptive, individual sentences of imprisonment in excess of 10 years are usually reserved for those cases of intentionally causing serious injury that involve life-threatening or catastrophic injuries, or ongoing serious physical or mental disablement.[39] The injuries suffered by the victim in this case are no doubt serious, but they fall short of the kinds of serious injuries which ordinarily would attract a sentence representing half the available maximum (particularly when the cervical myelopathy and the associated impairment to his mobility - as they have to be - are excluded). That said, absent the 'considerable' discount to which the appellant was entitled, a sentence of 10 years' imprisonment or more - all other things being equal - would have been unexceptionable.

47 Finally, we would observe that a total effective sentence of 13 years' imprisonment suggests that, absent the considerable discount for cooperation, the appellant's sentence would have approached the kinds of sentences generally reserved for murder. So much tends to reveal that the appellant's assistance must have been devalued in the exercise of the judge's sentencing discretion.

48 For these reasons, there is an error in the sentence first imposed and a different sentence should be imposed.[40]

49 In resentencing the appellant, the sentence on the objectively most serious charge, intentionally causing serious injury (charge 2), should be the base sentence. Each of the offences of aggravated burglary (charge 1), armed robbery (charge 3) and false imprisonment (charge 5) need to be given separate recognition by appropriate orders for cumulation (albeit that none of the sentence for false imprisonment first imposed was cumulated on the base sentence). Notwithstanding that the appellant is to be sentenced as a serious violent offender on the threat to kill charge (charge 4) - so that there is a presumption in favour of cumulation - it is nonetheless appropriate to order that the whole of the sentence on that charge be served concurrently with the other sentences, since it might be seen as being part and parcel of the circumstances attending the commission of charge 2. It is also appropriate to permit the sentence on the charge of theft (charge 6) to be served concurrently with other sentences. The non-parole period that we propose will also be fixed in recognition of the appellant's plea of guilty and his assistance to authorities. All other orders made by the sentencing judge will be confirmed.

50 The sentences that we propose are set out in the following table:

51 Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the appellant's plea of guilty, we would have sentenced him to a total effective sentence of 15 years' imprisonment, with a non-parole period of 11 years and six months.

[1] His date of birth is 7 January 1944.

[2] His date of birth is 9 February 1973.

[4] Crimes Act 1958, s 77(1). The maximum penalty is 25 years' imprisonment.

[5] Crimes Act 1958, s 16. The maximum penalty is 20 years' imprisonment.

[6] Crimes Act 1958, s 75A. The maximum penalty is 25 years' imprisonment.

[7] Crimes Act 1958, s 20. The maximum penalty is 10 years' imprisonment.

[8] Pursuant to s 6F of the Sentencing Act 1991, the appellant was sentenced as a serious violent offender on this charge.

[9] False imprisonment is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years' imprisonment.

[10] Crimes Act 1958, s 74. The maximum penalty is 10 years' imprisonment.

[11] Bail Act 1977, s 30B. The maximum penalty is three months' imprisonment or 30 penalty units.

[12] Section 5(2AB) of the Sentencing Act 1991 provides:

(2AB) If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details.

[13] The judge did not provide any reason for departing from the time-honoured and invariable practice which requires a witness in the appellant's position to be first dealt with by a court (or any charges otherwise disposed of) before being called for the prosecution. See R v Payne [1950] 1 All ER 102, 103 (Lord Goddard CJ); R v Collins [1957] NZPoliceLawRp 11; [1957] NZLR 1176, 1176 (Henry J); R v Booth [1982] 2 NSWLR 847, 849-50 (Street CJ); R v McLean and Funk ex parte Attorney-General [1991] 1 Qd R 231, 258 (Carter J); R v Ambrosi [2004] NSWCCA 23; (2004) 144 A Crim R 67, 71 [16] (Whealy J).

[14] He pleaded guilty to handling stolen goods, with respect the stolen Ford Maverick wagon, and to committing an indictable offence whilst on bail, and was sentenced to six months' imprisonment.

[15] O'Toole v The Queen (Unreported, Court of Appeal, 30 November 2018, Ashley JA) ('Reasons').

[16] Counsel cited Ooi v The Queen [2018] VSCA 78, [44], [45] and [49] (Tate, Beach and Niall JJA) ('Ooi').

[17] DPP v Cooper [2018] VSCA 21 (Weinberg, Priest and Beach JJA).

[18] Ibid [43]-[45] (citations as in the original).

[19] Cottee v The Queen [2010] VSCA 285, [23].

[20] In R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717, McGarvie J, with whom Murphy J agreed, posited that a discount of the order of two thirds would be appropriate for a drug courier who cooperated fully with the police, informed upon his principal and offered to give evidence against him. Brooking J dissented, expressing the view that such a discount would be excessive.

[21] See, for example, R v Nagy [1992] VicRp 45; [1992] 1 VR 637.

[22] Judicial College of Victoria, Victorian Sentencing Manual (2010) [11.4].

[23] See R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345 ('Johnston').

[24] R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345.

[26] R v Schioparlan (1991) 54 A Crim R 294 at 299, 305 (Young CJ, Marks and Brooking JJ).

[27] R v Golding (1980) 24 SASR 161 at 173-174; 3 A Crim R 26 at 37-38.

[28] R v Kohunui [2009] VSCA 31, [25], citing Vincent AJA in R v Cuthbertson (Unreported, Court of Appeal Victoria, 13 November 1995).

[29] R v Freeman [2001] VSCA 37; (2001) 120 A Crim R 398, 405 [37] (Coldrey AJA, with whom Brooking and Tadgell JJA agreed), citing R v Su [1997] 1 VR 1, 78-9. See also Scerri v The Queen (2010) 206 A Crim R 1, 9 [35] (Maxwell P and Buchanan JA); R v Cartwright (1989) 17 NSWLR 243, 252-3 (Hunt and Badgery-Parker JJ; Mahoney JA agreeing).

[30] Bieljok v The Queen [2018] VSCA 99, [68] (Weinberg, Beach and Hargrave JJA); DPP v Basic [2017] VSCA 376, [70] (Weinberg, Osborn and Priest JJA); DPP v Milson [2019] VSCA 55, [66] (Priest and Weinberg JJA).

[31] R v O'Brien and Gloster [1997] 2 VR 714, 718.

[32] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477-8 (Mason CJ, Brennan, Dawson and Toohey JJ).

[33] Reasons, [7]-[13] (emphasis added).

[34] See R v Duncan [1998] 3 VR 208, 214-5 (Callaway JA).

[35] Ooi, [55]. See also Giordano v The Queen [2010] VSCA 101, [43].

[36] R v Bruce [1971] VicRp 80; [1971] VR 656, 657. See also R v Douglas [1959] VicRp 28; [1959] VR 182; R v Governor of Her Majesty's Gaol at Pentridge; Ex parte Cusmano [1966] VicRp 78; [1966] VR 583, 587; R v Yates [1985] VicRp 3; [1985] VR 41, 44; R v Schneider [2016] VSCA 76, [23]. See further Sentencing Act 1991, s 5(2AA)(a).

[37] See, for example, Whelan v The Queen [2018] VSCA 279; Ah-Kau v The Queen [2018] VSCA 296. See also Bux v The Queen [2017] VSCA 70, Hi v The Queen [2017] VSCA 315 and Till v The Queen [2018] VSCA 122, where individual sentences of six, seven and eight years' imprisonment were imposed for aggravated burglaries on the homes of vulnerable, elderly victims, where no discount for co-operation applied.

[38] When consideration is given to the length of the armed robbery sentence which notionally would have been imposed absent a 'considerable' discount for cooperation, it may be concluded that it would have approached the kind of sentence ordinarily imposed for a high-range armed robbery (involving firearms or other deadly weapons, and targets attracting high rewards).

[39] For example, see DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457 (11y 6m - catastrophic injuries); Ali v The Queen [2010] VSCA 182 (15y - catastrophic injuries); Hudson v The Queen [2013] VSCA 218 (10y 6m - life-threatening injuries; residual scarring); R v Kilic [2016] HCA 48; (2016) 259 CLR 256 (14 y - life-threatening, 'horrendous' injuries; serious residual scarring).

[40] Criminal Procedure Act 2009, s 282(1).

[41] Pursuant to s 6F of the Sentencing Act 1991, the appellant will be sentenced as a serious violent offender on this charge.