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[2014] VSCA 97
Court of Appeal (Vic)
2014-05-22
Mr P, Neave JA
Original judgment source is linked above.
DPP (Vic) v Pasinis (County Court of Victoria, Judge Gucciardo, 26 September 2013)
CRIMINAL LAW - Appeal against sentence - Two charges of intentionally causing serious injury to de facto wife on two separate occasions - Total effective sentence eight years, non-parole period six years - At time of sentencing appellant had already served full sentence of two years and six months for related offence of conspiracy to pervert the course of justice without being granted parole - Appellant remained in custody pending the hearing of the two charges of intentionally causing serious injury - Whether individual sentences of five years for each offence, cumulation of three years for the second offence and non-parole period manifestly excessive - Whether sentencing judge gave sufficient weight to the totality principle - Total effective sentence and non-parole period not unjust or inappropriate - Appeal dismissed.
1 On 8 December 2006, the appellant, Nicholas Pasinis, broke his de facto wife, D's left arm. On 7 March 2007, the appellant broke D's other arm. On 13 May 2013, he pleaded guilty to two charges of intentionally causing serious injury ('ICSI') and was sentenced to a total effective sentence of eight years with a non-parole period of six years.[1] This appeal concerns whether the individual sentences or total effective sentence should be set aside because the sentences were manifestly excessive or because of the failure by the sentencing judge to give appropriate consideration to the totality principle.
2 For the reasons that follow, the sentences were neither vitiated by any specific error nor manifestly excessive. Rather, they properly reflected the seriousness of the offences, the aggravating features of the offences and their devastating effects on D in the context of a violent domestic relationship. The sentencing judge properly considered and balanced these matters - and the mitigating circumstances upon which the appellant relied - and arrived at sentences which were not outside the range of sentencing options that were open to him.
3 The appellant and D were in a de facto relationship between July 2006 and December 2008. That relationship was characterised by abuse and violence by the appellant towards D.
4 On 8 December 2006 the appellant's mother passed away and so he and D attended a friend's house for drinks. While driving home, the appellant became angry at D and punched her on the thigh. He accused her of having earlier ignored him.
5 When they arrived home, the appellant continued to accuse D of having ignored him. He threw a cigarette lighter at D, hitting her on the nose. The appellant then threw punches at D and went to kick her in the face. As he did so, she put her left arm up to protect herself. The appellant's kick broke D's arm (Charge 1). After some delay, the appellant took D to hospital where the break was confirmed. D told medical staff that her injury was caused by a fall.
6 Only three months later, in the early morning of 7 March 2007, the appellant and D were arguing in the bathroom. The appellant punched D. D put her right arm up to defend herself and he broke her right arm (Charge 2). D could see her bone protruding just beneath the skin and she was in excruciating pain. The appellant did not take D to a doctor until the following day.
7 On 9 March 2007, the appellant and D attended hospital, where D was examined by a number of doctors. X-rays confirmed a fracture of her right arm, and showed the healing fracture in her left forearm.
8 One of the doctors who examined D observed a bruise over her left eye, a lump at the back of her scalp that appeared to be an older injury, a mild deformity of her left arm consistent with her earlier fracture and multiple old and new bruises on her lower limbs. When the appellant was present, D said that her broken right arm was caused by a fall. When the appellant left, D told the doctor that she had sustained the injury to her right arm trying to defend herself from the appellant who was attempting to hit her.
9 Another doctor sought to examine D and take her medical history in confidence but she refused to be treated without the appellant present. The doctor noted injuries to D's face, arms and legs. Some were partially healed and some were more recent. There was new bruising of the skin around the left eye. In relation to her right arm, D told the doctor that she had fallen in the bathroom.
10 D told a nurse that her injuries were caused by an assault from her partner two days earlier and that she had held her arm up to protect her face. D said that she was confined to the house and subjected to recurrent violence.
11 On 14 March 2007, D was discharged from hospital to a women's refuge but shortly afterwards she returned to live with the appellant.
12 On 16 July 2007, D met with a police officer and told her of multiple incidents of violence.
13 On 17 July 2007, police attended the appellant's home and found cannabis there. The appellant was arrested and was interviewed by police in respect of D's allegations. He told police that he had never hit D and that her accusations were untrue. He said that on both occasions when D broke her arm he had not been there. He had only taken her to hospital. The appellant was charged with the two ICSI offences and was remanded in custody.
14 On 20 July 2007, D was examined at the Victorian Institute of Forensic Medicine. The examining doctor observed numerous signs of recent injury, including bruises and swellings and a small subconjunctival haemorrhage in D's right eye.
15 On 24 July 2007, an interim intervention order was obtained by the police, on behalf of D, against the appellant.
16 In August 2007, as a result of the allegations made by D, police conducted checks on the appellant and found that another complainant 'C' had taken out an intervention order against him. The police took a statement from C and as a result the appellant was charged with offences involving domestic violence that occurred between December 1996 and December 1997.
17 In August 2007, while the appellant was incarcerated, he and D devised a false version of events to exonerate the appellant. D told the police that she wished to make a statement of no complaint. She varied the intervention order so that she and the appellant could have contact and produced letters supportive of the appellant at his bail application.
18 On 19 December 2007, after serving 155 days, the appellant was released from custody. Shortly after that time, the appellant and D reconciled.
19 In February 2008, the appellant was sentenced to 90 days imprisonment in relation to the cannabis that was found at his house on 17 July 2007. The judge declared that the appellant had served 90 days by way of pre-sentence detention.[2] Accordingly the appellant served no further term for the cannabis offence.
20 In December 2008, the appellant's relationship with D ended.
21 On 16 February 2009, the appellant was sentenced by Judge Douglas to a community based order and a 12 month wholly suspended sentence for the offences relating to C.
23 The appellant and D were charged with conspiracy to pervert the course of justice in relation to the matters referred to at [17] above. The appellant pleaded guilty to the offence. Following a trial D was found guilty of the offence.
24 On 5 March 2010, the appellant was sentenced by Judge Douglas to two years and six months' imprisonment with a non-parole period of 15 months for the conspiracy to pervert the course of justice. Pre-sentence detention of 65 days was declared.[3] Judge Douglas found that the appellant's moral culpability was higher than D's as the appellant was the person accused of serious offences and directly benefited from the conspiracy. D received a suspended sentence of two years.[4]
25 Pursuant to the sentence referred to at [24] above, the total effective sentence would be completed on 1 July 2012 and the appellant would be eligible for parole on 1 April 2011. The appellant was not granted parole and therefore, after 1 July 2012, he remained in custody pending the hearing of the two ICSI charges.
26 On 26 September 2013, the appellant was sentenced in relation to the two ICSI charges by Judge Gucciardo. At the time of sentencing, the appellant had been in custody since 5 March 2010, when he was sentenced by Judge Douglas. Accordingly he had been in custody for a period of three years, six months and 22 days.
27 The sentencing judge imposed the following sentences:
Intentionally causing serious injury (Crimes Act 1958 s 16)
Intentionally causing serious injury (Crimes Act 1958 s 16)
8 years 6 months with a non-parole period of 6 years and 6 months
Appellant's personal circumstances and prior convictions
28 The appellant was born on 1 April 1967 and was 46 years of age at the time of sentence. His adoptive parents raised him as an only child. The appellant's adoptive father was a strict disciplinarian and physically punished him. The appellant was told of his adoption when he was 16 years old. He reacted negatively but did not leave the family home. After leaving school in year nine, he had some labouring jobs but has not maintained any significant period of employment. He has been a long-term cannabis user since the age of 16 but that use has now abated.
29 In 2006, the appellant's then partner gave birth to a child. At the plea hearing, his counsel said that the appellant wrongly believed the child to be his.
31 Since 2008, the appellant has been keenly involved in the sport of surfcasting. He has assisted younger members of the Surfcasting Association.
32 In 2009, the appellant commenced a new relationship which continues, despite his incarceration.
33 The appellant received a disability pension for a back injury. In July 2012, he had a spinal laminectomy and continues to experience significant neck and back pain for which he takes analgesia and anti-inflammatory medication. The appellant has a painful lump on one of his testicles which may possibly be cancerous. A diagnosis has not been possible, as the appellant has refused to have the testicle removed. The possibility that he may have cancer has caused the appellant anxiety. The appellant also suffers from depression and takes anti-depressant medication.
34 The appellant was the subject of a number of psychological reports, including reports prepared in 2004, 2007 and 2009. The 2004 report states that the appellant was wary of relationships and suspicious of the motives of others, and that his dysfunctional family background had led him to believe that intimacy would inevitably bring hostility. The 2007 report states that the appellant was socially inept and had difficulty coping with the real world. The 2009 report states that the appellant presented with symptoms of depression and anxiety.
35 The appellant has 40 convictions from 15 court appearances. The offences committed by the appellant include:
1987: intentionally causing injury, assault by kicking, assault in company (suspended sentence after appeal).
1995: intentionally or recklessly causing injury (six months with two months suspended).
2001: recklessly causing injury (six months with three months concurrent with other sentences), assault (three months with one month to serve).
2002: assault (six months), reckless conduct endangering serious injury (12 months suspended for 24 months), unlawful assault (three months suspended).[7]
36 The appellant has also been convicted of assault to prevent lawful detention, possession of a drug of dependence, possession of amphetamines, trafficking of cannabis, thefts, going equipped to steal, 10 counts of driving whilst disqualified, unlicensed driving, exceeding 0.05 and driving in a manner dangerous to the public.[8]
37 Although the offences against C were committed between December 1996 and December 1997,[9] the appellant was convicted of those offences on 16 February 2009, after the commission of the two ICSI offences.[10] The offences against C comprised two counts of intentionally causing injury, three counts of assault and one count of recklessly causing injury.[11]
38 D's victim impact statement was read out at the appellant's plea hearing and the sentencing judge summarised it in his sentencing remarks. Relevant extracts from D's victim impact statement are set out at [55] below.
39 The sentencing judge took into account the following circumstances:
(a) The appellant's brutal treatment of D over the years leading up to the commission of the two ICSI offences allowed for a proper understanding of the background circumstances to the two ICSI offences and the appellant's moral culpability. It also removed any claim that the offences occurred in isolation and proved the existence of a relationship where 'control and violence' were a 'pervasive pattern'.[12]
(b) The commission of the first ICSI offence resulted in a painful break to D's left arm, after which the appellant delayed securing medical treatment for D.[13]
(c) The commission of the second ICSI offence also resulted in a bad break to D's right arm, this time causing her excruciating pain. The appellant again delayed receipt of medical assistance by D for an extended period.[14]
(d) The appellant was present and sat by while D misled the doctors as to the cause of the injury to her right arm.[15]
(e) The appellant lied to police as to the cause of D's injuries, saying that he was not responsible for them.[16]
(f) The effect that the offending had on D.[17]
(g) The significant differential in strength, power and size as between the appellant and the victim. The sentencing judge found that D was 'a relatively small female' who was 'vulnerable and helpless' whereas the appellant was 'a tall and powerfully built man'.[18]
(h) The appellant 'clearly understood the damage [that he] would [cause] to [D].'[19]
(i) The attacks upon D were unprovoked and without any reasonable motive.[20]
(j) The attacks upon D were 'cowardly' in view of their 'domestic' context which included the appellant's knowledge of D's 'movements, habits, reactions, fears and responses'.[21]
(k) The intentional delay in the provision of medical attention to D after the commission of the second offence.[22]
(l) The appellant's prospects of rehabilitation had to be considered cautiously and in a guarded manner having regard to his post-offence conduct and his prior convictions, including the offences of domestic violence committed against C.[23]
(m) The appellant's long history of offences of violence and the high degree of criminality and moral culpability involved in the two ICSI offences required 'significant weight' to be given to specific deterrence.[24]
(n) The appellant's lack of remorse also counted for weight being placed on specific deterrence.[25]
(o) The fact that the two ICSI offences occurred in a domestic relationship meant that general deterrence was 'particularly relevant.'[26]
(p) The appellant qualified as a serious violent offender for whom, pursuant to s 6D of the Sentencing Act 1991 ('Act'), protection of the community was the principal purpose of the sentence imposed.[27]
40 The sentencing judge also took into account the following mitigatory circumstances:
(a) The appellant's guilty plea. However, the offer to plead guilty was not made at the earliest opportunity.[28]
(b) The delay between the commission of the two ICSI offences and the sentence. This was attributable to the conduct of the appellant and D. The sentencing judge held that the delay was not mitigatory but he took it into account in the context of the totality principle.[29]
(c) The appellant's current stable and non-violent relationship, which commenced in 2009. This was a 'positive factor when assessing any prospects for [the appellant's] rehabilitation'.[30]
(d) The appellant's completion of a moderate intensity violence intervention program in prison.[31]
(e) The appellant's current abstinence from cannabis.[32]
(f) The appellant's medical conditions.[33]
41 It will be recalled from [24] above that, on 5 March 2010, Judge Douglas sentenced the appellant to two years and six months' imprisonment with a nonparole period of 15 months for the offence of conspiracy to pervert the course of justice. At the plea hearing for the two ICSI offences, the appellant's counsel drew attention to the fact that the appellant had been in custody since 5 March 2010 and that he had served the entire sentence imposed by Judge Douglas. The sentencing judge said the following about the totality principle:
Your recent imprisonment is largely not pre-sentence detention for [the] purposes of this sentence. I do take into account however, in the application of the principle of totality, mindful that I should consider the total effect stemming from your criminality and its consequence in terms of time spent in custody.
...
Intentionally cause serious injuries is a serious violent offence and you qualify as a serious violent offender and fall to be so sentenced on the imposition of prison sentences. Pursuant to s 6D of the Sentencing Act, I will regard the protection of the community as a principal purpose for which the sentence is imposed. I have not been asked to and will not impose a disproportionate sentence to achieve this purpose. I will direct that the sentence on [Charge] 2 be cumulative in part with Charge 1. In my view the totality principle, though relevant to my sentence as I have indicated, should not undermine these provisions and must therefore be limited somewhat once the sentence is regulated by these sections and the policy inherent in them.[34]
42 Pursuant to leave granted by Coghlan JA on 2 April 2014, the appellant relies on the following grounds of appeal:
(i) The individual sentences, the total effective sentence and the nonparole period are manifestly excessive.
(ii) The learned sentencing judge erred in failing to have due regard to the application of the principle of totality, particularly having regard to the fact that the appellant had served the whole of the sentence imposed upon him by Judge Douglas on 5 March 2010.
43 In order to succeed on the ground of manifest excess, the appellant must satisfy the Court that the sentences imposed fall wholly outside the range of sentences reasonably available to the sentencing judge according to the circumstances of the offending and the offender.[35] In the present case, the appellant must demonstrate that it was not reasonably open to the sentencing judge to impose the sentences he imposed if he had given appropriate weight to the circumstances relating to the offending and the circumstances relating to the appellant.[36] As Maxwell P observed in R v Abbott,[37] the requirement is stringent and difficult to satisfy, as it reflects the policy that sentencing is for judges and magistrates at first instance rather than appellate courts, except where clear error is shown.[38]
44 The appellant acknowledged that his offending was serious. However, he submitted that an overall head term of eight years was 'simply too great a penalty'. In his written submissions, the appellant argued that either the individual sentences or the order for cumulation were too high, or a combination of both. In oral argument, the appellant focused on the order for cumulation. He contended that, as the offences were related, cumulation of 60% was too high and inconsistent with the practice of making only moderate cumulation orders, even where the presumption of cumulation applied under s 6E of the Act.[39]
45 The appellant submitted that the sentencing judge must have failed to give due regard to the appellant's dysfunctional background, positive signs of rehabilitation - reflected in his current non-violent relationship and abstinence from cannabis - and the fact that the two ICSI offences occurred six to seven years before sentence.
46 The Crown submitted that the individual sentences, the total effective sentence and the non-parole period were within the range of sentencing options available to the sentencing judge. According to the Crown, the total effective sentence and the non-parole period were 'stern' and at the top of the range.
47 In our opinion, the individual sentences are broadly consistent with sentences imposed upon offenders for offences of a similar nature.[40] They reflect the fact that the aggravating circumstances were manifold and compelling and clearly outweighed the factors going to mitigation.
48 The three year order for cumulation was justified in the circumstances. Section 6E of the Act requires total cumulation, in the absence of an order to the contrary. As discussed at [50] below, there is no fixed percentage for cumulation above which the total effective sentence will be held to be manifestly excessive. The fact that the offences were committed three months apart in a domestic context upon the same victim and that each involved the breaking of an arm counted against moderation in the order for cumulation in the circumstances of the present case. The moral culpability of the appellant was aggravated by the fact that he delayed in seeking medical help for D on both occasions.
49 The aggravating features of the second offence were even greater than those relating to the first offence. The appellant broke D's right arm at a time when the fracture to her left arm had not properly healed; the appellant did not take D to see a doctor immediately even though she was in excruciating pain; and he stood by while she covered up for his brutal behaviour by falsely stating that the injury was caused by a fall. Whereas after the first offence D retained strength in one arm, the effect of the second offence was to deprive her of strength in both arms and to significantly diminish her enjoyment of life and capacity to work. The total effective sentence of eight years was entirely warranted in all the circumstances.
50 The question of whether the order for cumulation was appropriate cannot be determined simply by looking at the proportion of the individual sentence that must be served. While the proportion of 60% may appear high, it must be remembered that there are no minimum or maximum proportions. The duty of the sentencing judge is to impose an appropriate total effective sentence. That duty can be discharged in a variety of ways. One way is to moderate the individual sentences. Another - and preferable - way is to moderate the orders for cumulation.[41] In the present case, the sentencing judge could have achieved the total effective sentence of eight years without error by imposing individual sentences of six years and cumulation of two years.
51 For the reasons discussed in detail under Ground 2 below, the non-parole period of six years was appropriate in the circumstances of this case.
52 Contrary to the appellant's submission, the sentencing judge carefully considered and balanced the aggravating and mitigating factors. He gave due regard to the appellant's personal circumstances, his prospects for rehabilitation and all the other relevant sentencing considerations. Those considerations included the need for specific deterrence as well as general deterrence and the appellant's status as a serious violent offender.[42]
53 Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.
54 The effects of family violence are now well documented. They are not confined to physical injury. Victims often feel responsible for the violence and ashamed that they were not able to prevent the perpetrator from offending. As occurred in this case, it is common for victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable. This phenomenon was reflected in the behaviour of D, which is described at [5] and [8] to [10] above. Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and longlasting psychological trauma. As in the present case, the physical effects of the violence and its erosion of the victim's confidence can also affect their ability to participate in paid work and have[43]ther serious financial effects.43
55 As stated at [38] above, D's victim impact statement was read out at the appellant's plea hearing. The devastating consequences of the appellant's callous behaviour towards D are best understood by reading her own words. D described those consequences as including the following:
I feel abandoned and abused by all those I trusted. I now trust no-one. I fear all.
I mostly have an inconsolable sadness and hopeless outlook for the nature of humanity. I cannot see kindness, altruism, empathy. ...
I am in a constant state of hyper vigilance.
I am too scared to make friends. I am too scared to leave the flat. I am too scared of everything. ... I have had to wrestle with severe agoraphobia and deal with frequent flashbacks relating to the relationship and the crime. These flashbacks have put me in real danger of self harm. ...
I feel that ... my chosen career path has been stolen. I simply would be unemployable for suitable work in my chosen field because of my reduced upper body strength. ...
[M]y long term life goals feel as broken as my arms have been. ...
The inability to return to work as easily as it should be has left me unable to sustain my comfortable standard of living. This is proving difficult to break the poverty cycle that I find myself subject to. I now have to survive on a disability pension. ...
To be the victim of this crime was not my choice and a violation of my essential humanity.
The violence was a continuous crime that has profoundly diminished my physical, psychological and emotional being.
Mr Pasinis showed no remorse with the violence. I was made to apologise to him for the violence he inflicted upon me. ...
Mr Pasinis fractured my left forearm requiring plaster for eight weeks. He removed my plaster at week two with a circular saw. I can still see this saw coming towards me and the feel of the saw on my arm as it cut through the plaster touching my skin.
My left arm received no follow up treatment. ... It has a noticeable bend. The bend in my arm is ugly; I often prefer to wear clothing that covers this deformity. Every time I look at this deformity I am reminded of the violence and trauma. ...
The fracture to my right arm brings back only memories of pain. There is an ugly scar and nerve damage and I can no longer feel my thumb.
While both my arms were in plaster I was totally dependent on Mr Pasinis from my personal hygiene and eating to looking after my teeth. I felt like I was at his mercy for everything, for his own purposes. ...
56 The effects of domestic violence on D are not unique to her. Rather, they exemplify the consequences of assault by an intimate partner.
57 General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.
58 In all the circumstances, the individual sentences and the order for cumulation properly reflected current sentencing practice and judicial attitudes to the offence of ICSI in a domestic environment. They were within the range of sentencing options available to the sentencing judge and were thus not manifestly excessive. The non-parole period is discussed under Ground 2 below.
59 For the above reasons, Ground 1 must be rejected.
60 It will be recalled from [25] above that, by the time the appellant was sentenced by Judge Gucciardo for the two ICSI offences on 26 September 2013, he had been in custody since 5 March 2010 and had completed the whole of the sentence imposed on him by Judge Douglas on that day for the offence of conspiracy to pervert the course of justice.
61 If the sentence imposed upon the appellant by Judge Douglas is taken together with the sentence imposed by Judge Gucciardo, then:
(a) the notional total effective sentence for the three offences is 10 years and six months; and
(b) the notional total effective non-parole period for the three offences is eight years and six months or 80% of the notional total effective sentence.[44]
62 It is this consequence of the appellant's continuous incarceration since 5 March 2010 that has given rise to Ground 2, namely, that Judge Gucciardo failed to properly give effect to the totality principle.
63 The totality principle requires that where an offender is being sentenced to multiple terms of imprisonment, or is otherwise to serve multiple sentences, the sentencing judge should ensure that the total sentence remains 'just and appropriate' for the whole of the offending. The principle applies to the fixing of both the head sentence and the non-parole period.
64 The following observations on the totality principle by Ashley and Weinberg JJA in Bogdanovich v The Queen[45] are apposite to the present case:
The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a 'just and appropriate measure of the total criminality involved'. The totality principle is said to 'defy precision either of description or implementation'. Sometimes it is described as a requirement of 'just desserts', and whether the total effective sentence offends that principle is often a 'matter of impression'. A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.
Where a number of technically separate offences have been committed, but they can fairly be described as 'parts of a multi-faceted course of criminal conduct', it will often be appropriate to order substantial concurrency.
Closely related to the totality principle is the requirement that the sentencing judge avoid the imposition of a crushing sentence. In R v MK, Chernov and Nettle JJA said:
Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released or whether it connotes the destruction of any reasonable expectation of useful life after release. But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive. In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it.
The problem is exacerbated, however, when the sentencing judge must have regard not merely to totality in relation to the offences for which the offender is being sentenced, but also other periods of incarceration in respect of earlier and unrelated offending.
In Director of Public Prosecutions (Vic) v Grabovac, Ormiston JA noted that a sentencing judge has a discretion as to the combination of cumulation and concurrency adopted to achieve both appropriate individual sentences in respect of each offence, and an appropriate total effective sentence, having regard to proportionality and totality. His Honour expressed a preference, however, for achieving these objects by imposing appropriate individual sentences, each reflecting the gravity of the offence, and making them largely concurrent, rather than imposing lower sentences that are individually inappropriate and making numerous orders for cumulation.[46]
65 In the case of a serious violent offender, the totality principle is affected by ss 6D and 6E of the Act, which provide as follows:
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.
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.
66 In R H McL v The Queen,[47] McHugh, Gummow and Hayne JJ said the following about s 16(3A) of the Act, which is the predecessor of s 6E:
Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[48]
A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[51]
68 The appellant's submission that the sentencing judge failed to give proper effect to the totality principle was based on the following propositions: that the conspiracy to pervert the course of justice offence was directly related to the two ICSI offences; that it was appropriate to have regard to the total incarceration of 10 years and six months for the three offences; and that, when the sentences were viewed in that light, the sentences for the ICSI offences were excessive.
69 The appellant did not submit that the sentences for the ICSI offences were crushing. The appellant did, however, submit that if the sentencing judge had been required to sentence the appellant for the three offences, his Honour would not have sentenced the appellant to 10 years and six months' imprisonment with a non-parole period of eight years and six months. Such a sentence would have effectively meant 100% cumulation for the conspiracy to pervert the course of justice offence and 60% cumulation for the second ICSI offence.
70 The appellant submitted that McL does not have the effect that the totality principle is excluded in the case of a serious violent offender. Rather, the effect of that authority is that, in the case of such an offender, the totality principle has less impact. The appellant relied on Gordon for this proposition.
71 The Crown submitted that the total effective sentence was within the range of sentencing options available to the sentencing judge but conceded that the nonparole period should have been lower to properly reflect the totality principle. This was because:
(a) the appellant had been in custody since 5 March 2010;
(b) the appellant had served the entirety of the sentence imposed on him by Judge Douglas for the offence of conspiracy to pervert the course of justice, and missed out on the opportunity of being granted parole for that offence;
(c) had it not been for the sequence of events that occurred, the appellant would have had the opportunity to live in the community from 1 April 2011 until he was sentenced for the two ICSI offences on 26 September 2013, which constitutes a period of 'dead time' in the sense that it represents a deprivation of liberty that cannot be regained; and
(d) a differential of 80% between the notional total effective sentence of 10 years and six months and the notional total effective non-parole period of eight years and six months is excessive.
72 In our opinion, for the reasons set out in relation to Ground 1, there is no substance to Ground 2. In her closing submissions at the plea hearing, counsel for the appellant referred to the fact that the appellant had been in custody since 5 March 2010 and that he had served the whole of the sentence imposed by Judge Douglas. In his sentencing remarks, the sentencing judge expressly stated that he had taken into account the totality principle.[52] Accordingly, it cannot be said that the judge overlooked the principle. At its highest, the appellant's submission is to the effect that the judge gave insufficient weight to the totality principle.
73 We agree that, in the circumstances of the present case, the totality principle required the sentencing judge to have regard to the matters set out at [61] and [71] above in determining the total effective sentences and the non-parole period. However, we do not agree that those matters have the effect of rendering either the total effective sentence or the non-parole period unjust or inappropriate. On the contrary, the aggravating circumstances set out at [39] above required a lengthy total effective sentence and a lengthy period of imprisonment before the appellant was eligible for parole.
(a) The appellant engaged in two vicious attacks upon D which caused her life-altering physical and psychological injuries. Previous sentences for violent offences did not deter him from committing the two ICSI offences. He stood to be sentenced as a serious violent offender where specific deterrence and protection of the community were powerful sentencing considerations. For the reasons discussed at [49] above, the second ICSI offence involved greater aggravation than the first ICSI offence.
(b) There was an interval of three months between the two ICSI offences. They did not take place as part of a single incident.
(c) Each of the ICSI offences was a serious example of offending of that kind and it is no exaggeration to describe them as 'shocking' and 'outrageous'. Rather than showing remorse and insight into his offending following his arrest on 17 July 2007, the appellant conspired with D to pervert the course of justice in order to escape punishment for his crimes. That offence was, in the circumstances, most egregious. In combination, the three offences required a lengthy term of imprisonment and a lengthy non-parole period in order to protect the community.
(d) The conspiracy to pervert the course of justice offence was committed five months after the second ICSI offence. The former offence took place after D had reported the appellant to the police and after an interim intervention order was obtained against him. The commission of that offence meant that, instead of the appellant remaining in custody pending the hearing of the ICSI offences, he was released and was able to resume his relationship with D. It was only after the relationship broke down and D cooperated with the police that the ICSI charges proceeded.
(e) Having regard to the matters in (d) above, the appellant is largely responsible for the delay in the ICSI charges proceeding and his lengthy incarceration prior to sentencing.
(f) The appellant has an appalling history of committing violent offences, which requires considerable emphasis to be placed on specific deterrence.
75 In the light of the matters set out at [74] above and all the sentencing considerations that were relevant to this case, if the appellant had been sentenced for the offence of conspiracy to pervert the course of justice and the two ICSI offences at the same time, a total effective sentence of 10 years and six months' imprisonment and a non-parole period of eight years and six months would have been stern but not excessive. The fact that the notional total effective non-parole period is 80% of the notional total effective sentence does not mean that it is unjust or inappropriate. This is because the fixing of a non-parole period is not governed by any formulas or predetermined ratios but by the duty of the sentencing judge to fix a period that is appropriate in all the circumstances having regard to the applicable sentencing cons[53]erations.53
76 When viewed in the above context, it cannot be said that a total effective sentence of 10 years and six months' imprisonment and a non-parole period of eight years and six months for the three offences are excessive. The loss of the opportunity for the appellant to be released on parole in relation to the conspiracy to pervert the course of justice was a by-product of his offending. However, even if that were not the case, the answer to the question of whether a total effective sentence of 10 years and six months' imprisonment and a non-parole period of eight years and six months are unjust and inappropriate would remain the same.
77 In our opinion, the approach adopted by the sentencing judge to ss 6D and 6E of the Act and to the totality principle was broadly consistent with the observations made by the High Court in McL and by this Court in Gordon.
78 In the light of the above discussion, the Crown's concession set out at [71] above was surprising. In our opinion, the concession was not properly made.
[1] DPP (Vic) v Pasinis (Unreported, County Court of Victoria, Judge Gucciardo, 26 September 2013) ('Sentencing Remarks').
[2] The declaration was made by reference to the 155 days that the appellant had already spent in custody.
# Pasinis
The Queen \[2014\] VSCA 97