Price v The Queen [No. 2] [2019] VSCA 44

1 This is an application for an extension of time for leave to appeal against a sentence in the County Court. The application was dealt with on the basis that, if an extension were granted, the application for leave, and if leave were granted, the appeal, would be determined forthwith.

2 The County Court judge sentenced the applicant for an offence of failure to comply with a supervision order in breach of s 160 of the Serious Sex Offenders (Detention and Supervision) Act 2009 ('the Act') on 2 November 2017. The 28 day period for filing an application for leave to appeal against that sentence expired on 30 November 2017. The applications before this Court were filed on 19 June 2018, more than 6 months out of time.

3 The applicant contravened the supervision order by committing an offence of rape, for which he was sentenced in the Trial Division of this Court by Lasry J on 18 March 2016.[1] On that date Lasry J also sentenced the applicant for offences of murder, robbery and attempted theft. The applicant pleaded guilty to all those offences and was sentenced to be imprisoned for life with a non-parole period of 38 years. The individual sentence imposed for the rape offence was 14 years.

4 The County Court judge sentenced the applicant to a sentence of 4 years and 11 months' imprisonment for the offence of breaching the supervision order. The maximum penalty for such a breach is 5 years' imprisonment. Her Honour directed that 3 years of the sentence be served cumulatively on the non-parole period imposed by Lasry J, making a global non-parole period of 41 years.[2]

5 On 19 June 2018, the applicant also filed an application for an extension of time for leave to appeal against the sentence of Lasry J. This Court dismissed that application. We published our reasons on 1 February 2019.[3] An overview of the relevant offending and the procedural background is set out in those reasons, which we will not repeat.

Extension of time application - explanation for delay

6 The application for an extension of time for leave to appeal against the County Court sentence was supported by an affidavit affirmed by Dr Michael FitzGerald, then solicitor for the applicant, on 15 June 2018.

7 Dr FitzGerald deposes that he represented the applicant in the proceedings in the County Court. Two business days after the sentence, he commenced a matter in the Geelong County Court. That was a complex criminal proceeding which concluded on 2 February 2018. During that time, he also ceased employment with the firm of solicitors which had had the conduct of the applicant's proceeding in the County Court. Dr FitzGerald deposes that he was unable to commence work on the proposed appeal for the applicant during that period. Importantly, Dr FitzGerald explains that he had agreed to assist the applicant 'pro bono'.

8 Dr FitzGerald's affidavit says that the applicant was unable to prepare his appeal himself, or engage other representation, due to his 'complex mental health presentation' and the unusually restrictive conditions of his detention at Barwon Prison. Dr FitzGerald refers to the fact that there was no realistic prospect of obtaining funding from Victoria Legal Aid for the proposed appeal. In reliance upon the indication by Dr FitzGerald that he would be prepared to provide pro bono assistance in relation to a possible appeal, the applicant did not seek to engage other representation.

9 Dr FitzGerald deposes that he resumed contact with the applicant in March 2018, and he then commenced work on the written case and the extension of time and leave to appeal applications. Because Dr FitzGerald was representing the applicant pro bono, the work needed to be undertaken outside of normal office hours. He delivered a written case concerning both sentences to the applicant by mail on 11 May 2018, and after further discussions, filed the notices of appeal and applications for extension of time on 19 June 2018.

10 In oral submissions before us, the applicant submitted that he was prevented from filing his application for leave to appeal earlier by his isolation in prison, and because of his mental illness.

11 The applicant seeks an extension of time to apply for leave to appeal on the following proposed grounds:

Ground 1 - the Learned Sentencing Judge erred in her discretion by misapplying the totality principle.

Ground 2 - the Learned Sentencing Judge erred in her discretion by imposing a sentence and a new non-parole period which were manifestly excessive.

PARTICULARS

a) Insufficient weight was given to:

i) the applicant's plea of guilty;

1. the onerous conditions under which the applicant is imprisoned;

b) excessive weight was given to:

iii) special deterrence and community protection.

The application for an extension of time - legal principles

12 We set out the legal principles governing applications for extension of time in criminal appeals in our earlier reasons concerning the proposed appeal from the sentence of Lasry J, as follows:

(1) The time limits prescribed by statute are intended to secure finality and compliance with them is required in the ordinary case.

(2) An extension of time is a matter for the discretion of the Court and the applicant must persuade the Court to exercise that discretion in favour of an extension.

(3) Rigid restrictions cannot be imposed on the exercise of the discretion to extend time but in general the Court will require special and substantial reasons for extending time.

(4) The longer the time which has elapsed, and the more changes which have taken place in the meantime, the more exceptional the circumstances will need to be before the Court will extend time.

(5) The Court will not grant any considerable extension of time unless satisfied that there are such merits in the proposed appeal that it would probably succeed.

(6) A reasonably satisfactory account of the failure to comply with the statutory time limit needs to be forthcoming.[4]

13 Applying these principles, and in light of our view as to the merits of the proposed appeal as set out below, the application for an extension of time to apply for leave to appeal should be granted. The circumstances of this application are different to those in the application concerning the proposed appeal from the sentence of Lasry J. The period of delay is much shorter, being just over six months rather than over two years; the prospects of success, which we address below, warrant an extension; and a satisfactory explanation for the delay has been provided.

14 We accept that the delay was not due to any action or inaction by the applicant. Dr FitzGerald held instructions to prepare an appeal from the time of sentence until the time the application was filed. There was delay in the period between sentence and March 2018 when the applicant and Dr FitzGerald 'resumed contact'. That delay is adequately explained in Dr FitzGerald's affidavit.

15 Dr FitzGerald has supplied a satisfactory account of his contribution to the delay, including his changed circumstances of employment, the competing demands on him, and the pro bono nature of his work for the applicant.

16 We will accordingly grant the extension of time sought.

17 In her sentencing reasons, the County Court judge referred to the relevant supervision order, which was made on 4 May 2012 for a period of 10 years; to the breaching conduct, which was the rape offence committed on 19 March 2015; and to the applicant's plea of guilty to that rape offence before Lasry J.

18 The judge addressed the issue of double punishment. She said that in sentencing for the offence before her, she was cognisant of the risk of double punishment and had taken care to avoid it:

My sentence of you today deals only with the failure to comply with the Supervision Order, which has a maximum sentence of 5 years' imprisonment ...

You are to be sentenced today solely for the offence of failing to comply with the Supervision Order; in other words, only for the separate criminality constituted by your disobedience of a court order, which warrants additional punishment.[5]

19 Her Honour summarised the offending which led to the making of the supervision order. There had been two offences of rape, one of attempted rape, and other offences, against six victims. The applicant had been convicted of those offences in October 2004. Her Honour referred to the core condition of the supervision order, that the appellant not commit another 'relevant offence', defined at that time to include a 'sexual offence'. Her Honour then stated:

What I must consider for my sentencing of you for failing to comply with the Supervision Order is what you did in committing the relevant offence of rape.[6]

20 Her Honour then described the commission of the rape offence. Whilst in a bookstore, the applicant had grabbed a female staff member ('BC') from behind and forced her to the ground. He then digitally penetrated her vagina and violently choked her. When disturbed by others who came to investigate BC's screams, the applicant had fled the scene. When interviewed by police, the applicant stated that his motivation in committing the rape had been to obtain sexual gratification in circumstances where he anticipated that he would be arrested imminently and imprisoned for the murder he had committed two days prior. The judge set out the impact of the offending upon BC as described in her victim impact statement.

21 Her Honour next addressed the applicant's criminal history. She noted that, save for two periods of nine and six months respectively, the applicant had been in prison without interruption since he was 19. She emphasised that the offending which had led to the supervision order was very similar to the rape offence which constituted the contravention of that order. She then stated:

That makes those convictions in October 2004 highly relevant to my sentence today.[7]

22 In relation to the applicant's personal circumstances and mental health, the sentencing judge referred to psychiatric and psychological reports which had been tendered, and to a diagnosis of paranoid schizophrenia and borderline personality disorder.

23 Her Honour next turned to the applicant's plea of guilty. Her Honour recognised the utilitarian value of the guilty plea. She said:[8]

The law is clear that it is only in a rare case that an offender will not get a sentencing discount for pleading guilty where there is a utilitarian benefit.[9] However, in my view, a rare case may be one that is 'so grave as to warrant the imposition of the maximum prescribed penalty', 'having regard to both the nature of the crime and the circumstances of the criminal'.[10]

24 Her Honour found that, notwithstanding the applicant's plea of guilty, he had no remorse. She was unable to say anything positive about his prospects of rehabilitation. She referred to the psychiatric evidence of the applicant's resistance to medication and the likelihood that his mental health would deteriorate further in custody.

25 Her Honour next considered the weight in mitigation to be attributed to the applicant's arduous conditions of imprisonment and his severely disadvantaged background. She stated that those circumstances had to be balanced against the fact that the applicant's re-offending increased his moral culpability and his risk of further offending. Her Honour observed that the need to protect the community was the most prominent purpose in her sentencing task, and that the applicant's circumstances and background 'attract correspondingly less weight as mitigating factors'.[11]

26 The sentencing judge stated that 'the seriousness of the breach [of the supervision order] must be reflected in the sentence'.[12] Her Honour then proceeded to list a number of factors which, but for the applicant's plea of guilty, she considered would have justified the imposition of the maximum applicable sentence.[13] We will return to those factors. The sentence she then imposed of 4 years 11 months' imprisonment was very close to the 5 year maximum. She fixed a new global non-parole period of 41 years, adding 3 years to the non-parole period fixed by Lasry J.

27 Dr FitzGerald prepared the applicant's written case, but was given leave to withdraw prior to the hearing of the application. At the hearing the applicant represented himself.

28 In the written case the applicant submitted in relation to the proposed ground 1 (totality) that, given the 'extreme length' of the non-parole period fixed by Lasry J, any additional 'increment' should have been modest. This was said to be especially the case because the breaching conduct was the commission of an offence for which he had already received a sentence.

29 The applicant's written submissions pointed to the fact that the sentencing judge had cumulated 60 per cent of the new sentence on the existing non-parole period. It was submitted that cumulation in that degree was inappropriate in circumstances where the offender was serving a life sentence with a non-parole period of 38 years.

30 The applicant submitted in the written case that the order could not be justified on the basis that it was necessary to achieve the sentencing objectives of specific deterrence and protection of the community, as that had been already accomplished by the sentence imposed by Lasry J. Thus, it was submitted the sentencing judge's statement that the need to protect the community was the most prominent purpose in the sentence suggested that the applicant was double punished.

31 In relation to proposed ground 2 (manifest excess), the applicant submitted that the discount of one month from the maximum revealed a failure to give effect to the following matters, to which some mitigatory weight should have been given.

32 The first was the applicant's plea of guilty. Notwithstanding that the guilty plea had been entered late, and was not indicative of remorse, it was said that it still had utilitarian value in that it avoided the expenditure of public resources on a trial and, in particular, the requirement to empanel a jury. This would have been a significant undertaking as the publicity the matter had received had necessitated a large jury panel.

33 Second, the burden of the applicant's restrictive conditions in custody had been accepted by the sentencing judge as a matter entitled to some weight. The applicant was confined to a single cell for 23 hours each day, and was not permitted to interact with other prisoners. The applicant submitted that the psychiatric and psychological evidence indicated that these conditions would be unusually burdensome for him because of his underlying mental health issues. There was a risk that he would become increasingly agitated and disorganised and of a deterioration in his psychosis.

34 Finally, the applicant submitted that purposes of specific deterrence and community protection could not be given much weight in sentencing because the proper weight to be attributed to those purposes required an assessment of the risk that the applicant would pose in the community in more than 35 years' time.

35 The applicant submitted that the discount from the maximum of one month amounted to a mere 1.5 per cent of that maximum sentence, which was said to be the smallest available unit of measurement in which sentences of such length can be expressed.

36 The applicant submitted in the written case that the sentencing judge's emphasis on community protection, a matter already addressed by Lasry J, 'gave rise to a danger that the applicant would be punished doubly for a matter that had already been synthesised in his sentence for the substantive rape offence'.

37 At the hearing, two bundles of material that had been sent by the applicant to the Registry of the Court were relied upon. The material included correspondence from the Victorian Legal Services Commissioner and Dr FitzGerald, with handwritten annotations made by the applicant, and documents obtained by the applicant as a result of a freedom of information ('FOI') request. The FOI material related to an incident that occurred on 2 February 2016 at the Melbourne Remand Centre which resulted in the applicant suffering a radial fracture in a bone of his left wrist. The burden of the applicant's submissions based on this material was that the applicant's plea of guilty to the breach offence was coerced by Dr FitzGerald, in circumstances where the applicant was under pressure as a result of being assaulted by prison officers. The material also sets out complaints about the applicant's legal representation, which he repeated in his oral submissions.[14] In relation to this material, it is sufficient to note that it adds nothing of relevance to the issues properly raised on the application or to the submissions made in the applicant's written case.

38 In relation to proposed ground 1 (totality), the respondent submitted that the sentencing judge did not err. The respondent submitted that this was a seriously grave example of failing to comply with a supervision order for which the sentence imposed was appropriate. The respondent referred to the parts of the Reasons in which the judge had drawn attention to those aspects of the offending that made it such a serious case, including the elements of planning, violence, the purpose of sexual gratification, the applicant's lack of remorse, his serious relevant prior offending, his bleak prospects of rehabilitation and the fact that the applicant remained a significant danger to the community.

39 In response to the applicant's written submission addressing double punishment, the respondent submitted that the judge did not fail to take into account the life sentence imposed by Lasry J and the risk of double punishment. Counsel for the respondent submitted that the judge's references to the rape which constituted the breaching conduct were intended to draw attention to the similarity between the breaching conduct and the offences for which the supervision order had been imposed. The purpose of that comparison was to explain the gravity of the breach, which ultimately led to the sentence which was imposed. The respondent also submitted that the judge did not err in her attribution of weight to the sentencing purposes of community protection and deterrence, as their importance was not diminished by the fact that they were also reflected in the sentence passed by Lasry J.

40 In relation to the proposed ground 2 (manifest excess), the respondent submitted that the utilitarian value of the plea was limited, given the late stage that it was entered and the fact that BC was not going to be called to give evidence in any event.

41 During the hearing the Court raised the issue of the potential relevance of s 5(2BD) of the Sentencing Act 1991. Directions were made for the filing of written submissions on that issue. The respondent filed a submission. The applicant did not.

42 Section 5(2BD) relevantly provides:

In sentencing an offender, a court -

(a) must not have regard to the fact that the offender is subject to an order made under [the Act] but, if relevant to the conditions of any sentence imposed by it, may have regard to the conditions (if any) imposed on that order and the terms of any current directions or instructions ... ;

(b) must not have regard to any possibility or likelihood of an application being made under that Act for an order in respect of the offender.

43 The issue was raised because it seemed unclear how s 5(2BD) might affect the analysis of the interaction between the sentence for the breach of the order and the sentence for the offence which constituted the breach.

44 The respondent submitted, firstly, that a court dealing with an offence of breach of a supervision order must have regard to that order because its existence is an 'essential fact' in the offending. This Court's decision in Heath (a pseudonym) v The Queen,[15] was relied upon as authority for that proposition.

45 The respondent's submission noted that the explanatory memorandum to the legislation introducing s 5(2BD) did not expressly refer to the purpose of that provision, but that s 5(2BD) is in very similar terms to s 5(2BA) which deals with extended supervision orders. The relevant explanatory memorandum concerning s 5(2BA) states that the purpose of s 5(2BA) is to require that the court must not have regard to the fact that a person is subject to an extended supervision order, but may have regard to the conditions of that order and the terms of any current directions given by the Adult Parole Board under that order if this is relevant to the conditions of any sentence the court imposes.[16] The Second Reading Speech concerning s 5(2BA) stated that:

The bill will also amend the Sentencing Act 1991 to make it clear that when a court is sentencing a child-sex offender, the court cannot take into account the fact that an extended supervision order may be made under the scheme at the end of the sentence. [17]

46 The respondent submitted that the purpose of both ss 5(2BA) and 5(2BD) was to ensure that offenders do not obtain a sentencing discount by reason of the existence or possible imposition of the relevant order.

47 The respondent submitted that in sentencing for a breach of a supervision order, the existence of the supervision order is an essential element of the offence, and the order and its conditions are relevant to the court's assessment of the nature and gravity of the breach. In sentencing for an offence committed whilst on a supervision order, the respondent submitted, relying upon Loader v The Queen[18] and Lecornu v The Queen,[19] that a supervision order forms part of the relevant circumstances that inform the sentencing court's assessment of the nature and gravity of the offence, and may be an aggravating factor.

Consideration of s 5(2BD) and the issue of double punishment

48 Section 5(2BD) could not have the effect that a court dealing with a prosecution for breach of an order could not have regard to the order. The order is itself an essential element of the offence. This Court so held in Heath.[20]

49 As to the effect of s 5(2BD) in other respects, in Heath this Court said:

[W]e agree in part with counsel for the applicant that a likely purpose of the provision is to ensure that offenders do not obtain a sentencing discount as a result of the existence or possible imposition of a supervision order. Such a discount could be the result of, for instance, an amelioration of the importance of protection of the community in fixing a sentence as a result of a supervision order. But the section has a broader reach. The existence of a supervision order cannot affect the sentences to be imposed in any way. Thus, it also precludes the taking into account of the order to impose a more severe penalty than would otherwise have been the case. [21]

Though there is no definition of 'sentencing' in the Act, s 5(2BD) appears to be directed to a court's task where it is imposing a sentence. The apparent purpose of s 5(2BD) is to prevent a sentencing court imposing a lesser or greater sentence than it otherwise would because of the possibility that an order under [the Act] may be made at the conclusion of any custodial sentence. [22]

51 On one view, there may be said to be tension between those statements and this Court's decision in Lecornu.

52 In Lecornu, the offender had pleaded guilty to two charges of possessing child pornography (referred to in the judgment as 'CP' offences). At the time of the offending he was subject to an extended supervision order ('ESO') under the Serious Sex Offenders Monitoring Act 2005. He was therefore also charged and convicted on two counts of failing to comply with a condition of an ESO (referred to in the judgment as the 'breach' offences). The accused appealed against his conviction on the breach offences on the ground that the conduct which gave rise to those offences was the very conduct for which he was convicted on the CP offences, and that he had thereby been doubly punished.

53 Maxwell P, with whom Hollingworth and Cavanough AJJA agreed, emphasised that the breach offences involved 'separate and distinct criminality' from the substantive CP offences.[23] He then explained that the existence of the ESO was an aggravating feature of the CP offences. Maxwell P said:

The fact that L was subject to an ESO bore directly upon the gravity of the CP offence itself and, in particular, on the need for the sentence to ensure specific deterrence and protection of the community ...

There is, in my view, a direct analogy with the case where an offender commits an offence while on parole or on bail. Those circumstances are conventionally treated by the sentencing court as aggravating the seriousness of the substantive offence ...

What could not be taken into account in sentencing for the CP offence was the distinct criminality involved in breaching the ESO, that is, failing to comply with an order of the court made under the Monitoring Act. That separate element was not relevant to the CP offences. [24]

54 The Court in Lecornu did not address the legislative provisions to which we have referred. They do not appear to have been raised.

55 In our opinion, whilst there is tension in the language used, upon analysis the decisions are not inconsistent.

56 The terms used in s 5(2BD) are important. Sub-section (a) states that a court cannot have regard to the fact that an offender is subject to an order. Sub-section (b) provides that a court cannot take into account the 'possibility or likelihood' of an order. Section 5(2BD) therefore deals with the present and the future. The sentencing court cannot have regard to the fact the offender is at the time of sentence, or may be in the future, subject to an order. The section does not prohibit a sentencing court from taking into account the fact that an offender was subject to a supervision order at the time of the offending.

57 We agree with what was said by the Court in Lecornu in relation to the relevance of the fact that at the time of the offending the offender was subject to an order. Nothing in Heath or Carolan is inconsistent with that, once the subject matter of s 5(2BD) is properly identified.

58 Lecornu establishes that the existence of an order at the time an offence is committed bears directly upon the gravity of that offence. The judgment also emphasises the distinct criminality involved in the offence of breaching the order. The Court addressed the issue of double punishment in that context. Maxwell P referred to the High Court's decision in Pearce v The Queen. There, the High Court said:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[25]

59 The Court in Lecornu rejected the appellant's submission that conviction itself on the breach offences and the CP offences entailed double punishment. Maxwell P said:

The breach offence involves separate and distinct criminality from the substantive offence which constituted the breach of the order. To hold that [the appellant] should not have been charged with, or convicted of, the breach offence would be (in the language of Pearce) to 'preclude the laying of charges that, together, reflect the whole criminality of the accused'.[26]

60 The Court in Lecornu adopted what had been said in this Court's earlier decision in Loader.[27] There, the Court said:

[T]here is only a partial overlap between the [indecent assault offences] and [the breach offences].

Certainly, to the extent of the overlap, the sentences imposed on the [breach offences] must be moderated in accordance with Pearce. But the offences of failing to comply with the conditions of the orders involved the added criminality of failing to comply with orders of the court. That warrants additional punishment.[28]

61 As indicated above, the sentencing judge set out the factors which, but for the guilty plea, would have led her to impose the maximum sentence in this case. She said:

Without your plea of guilty, I would have imposed the maximum prescribed sentence of 5 years' imprisonment. I would have done so for the following reasons, adopting those that are applicable, and with which I agree, from the Sentencing Remarks of Justice Lasry:

(a) You have a significant and violent criminal history from which you have not progressed;

(b) You planned to commit the breaching offence of rape and continued to pursue that plan when at first thwarted;

(c) The breaching offence of raping BC was committed as a consequence of murdering Masa Vukotic, when you knew you would be in prison for a lengthy period, and was committed purely for your sexual gratification in the hope that it would sustain you over that period;

(d) The breaching offence of raping BC was violent and callous. It emulated offences you had committed 10 years earlier and demonstrates that you have made no progress in that time;

(e) You are without any form of remorse;

(f) Your immediate prospects for any form of rehabilitation are bleak at best, if not non-existent; and

(g) In the absence of appropriate treatment, you are now and will remain a significant danger to the community for the immediate future. I cannot predict what will be the situation in the future.[29]

62 The aspects of the rape offence, to which her Honour referred and upon which she relied, had been taken into account by Lasry J in sentencing for that offence, as her Honour expressly acknowledged. An examination of the relevant section of the reasons of Lasry J reveals the extent of the overlap:

Some crimes alarm the community to such an extent that they must be reassured that such conduct will not be tolerated or afforded any latitude and that a Court such as this will be rigorous in the way it examines whether there are any genuine prospects of a real and effective rehabilitation capable of rendering the protection of the community a countervailing consideration. General deterrence and specific deterrence are of substantial significance in a case such as this. Notwithstanding your plea of guilty, your crimes fall into the worst category of offending for a number of reasons:

(a) You have a significant and violent criminal history from which, in my opinion, you have not progressed;

(b) The crimes you committed were planned with some care and you ruminated on the prospect of murdering a person to be chosen at random for some days;

(c) The victim you chose was entirely innocent and chosen at random by you in pursuit of some narcissistic cause relating to your own grievances;

(d) The victim you chose was young at age 17 with a positive, productive and happy life in front of her;

(e) Your act of killing her was at the extremity of brutality;

(f) You have no appreciable remorse or regret for your act of murder and the enthusiasm with which you described the killing of Masa Vukotic highlights the need for community protection;

(g) The only consequence of the murder of Masa Vukotic you considered was the consequence for yourself, as a result of which you committed other offences, including the rape of BC.

(h) You then committed two other offences which are charges 2 and 3 involving violence. Whilst less serious than the conduct for charges 1 and 4, they also were committed at random because you wanted money and you wanted a motor vehicle. The victims were put in fear but both had the courage to resist you.

(i) The rape of BC was a very serious offence - violent and callous. It emulated offences you had committed 10 years earlier and demonstrates that you have made no progress in that time;

(j) You are without any form of remorse for any of these crimes;

(k) Your immediate prospects for any form of rehabilitation are bleak at best if not non-existent;

(l) In the absence of appropriate treatment, you are now and will remain a significant danger to the community for the immediate future. [30]

63 It will be seen that sub-paras (a), (b), (d), (e), (f) and (g) of the judge's reasons substantially reproduce the factors listed by Lasry J in sub-paras (a), (b), (i), (j), (k) and (l). As for the judge's sub-para (c), Lasry J had earlier set out the applicant's motivation in relevantly similar terms.[31]

64 It seems to us that one must inevitably conclude that the applicant's sentence has not been moderated to the extent of the overlap in the offending conduct, as required by Pearce, Lecornu and Loader. The overlapping conduct, for which he had already been sentenced, has been relied upon so as to aggravate the offence of breaching the order. In terms of Pearce, he has been punished twice for the commission of the elements that are common.

65 The mitigating effect of the guilty plea was confined to its utility, and that utility was limited here by the fact that the trial would not have been a long one and the victim of the rape, BC, would not have been required to give evidence. Nevertheless, given the guilty plea, the sentence itself, which is so close to the maximum, seems explicable only by the deplorable conduct of the applicant in the commission of the rape for which he had already been punished by Lasry J's sentence.

66 The sentencing judge was clearly conscious of the need to avoid double punishment. She expressly addressed that possibility.[32] Her Honour cited and correctly stated the principles in Lecornu.[33] Nevertheless, for the reasons given, we are driven to the conclusion that the sentence she imposed did contain an impermissible element of double punishment.

67 We were not told why the offence of breach of the suppression order was not dealt with by Lasry J. If Lasry J had dealt with all the offences it is unlikely this issue would have arisen. It would seem desirable not to follow the course adopted here in future.

68 The proposed grounds do not refer to double punishment, but the submissions addressed the issue in the context of the proposed grounds. The applicant is now representing himself. He has mental health issues. In the circumstances, rather than requiring an amended or additional proposed ground, we will grant leave to appeal on the ground that the sentence on the offence of breaching the supervision order impermissibly punished the applicant for conduct already punished in the sentence for the rape offence, and allow the appeal on that ground.

69 Pursuant to s 282 of the Criminal Procedure Act 2009, having allowed the appeal, we will set aside the sentence imposed by the court below and impose the sentence that this Court considers appropriate.

70 In re-sentencing the offender, we bear in mind the seriousness with which a breach of a supervision order should be regarded. This Court in Heath stated:

Persons subject to supervision orders must be aware of the significance of those orders and of the seriousness with which sentencing courts will view a breach.[34]

71 The sentence to be imposed must reflect only the separate and distinct criminality that the breach of the supervision order represents. The breaching conduct is a relevant matter, but where the offender has already been sentenced for that conduct, double punishment must be avoided. On the other hand, it is a relevant consideration, as the respondent submitted, that the breach in this case was more serious by virtue of the fact that the order had been breached by conduct similar to that which had led to its imposition.

72 We accept the applicant's submissions that some weight in mitigation must be attached to his guilty plea, his restrictive conditions in custody, his mental health issues, and his disadvantaged background.

73 In the circumstances the sentence we will impose is a sentence of 3 years' imprisonment. We will fix a new global non-parole period of 40 years.

74 We appreciate that this outcome makes little practical difference to the overall sentence, but the re-enforcement of sentencing principles, especially those concerning double punishment, is important.

[1] [2016] VSC 105 ('Lasry J Reasons').

[2] [2017] VCC 1766 ('Reasons').

[3] [2019] VSCA 8.

[4] [2019] VSCA 8 [17], citing R v Darby (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Gowans J, 2 May 1975), R v O'Keefe [1979] VicRp 1; [1979] VR 1, 5 and Efandis v The Queen [2014] VSCA 42; (2014) 41 VR 456 [35].

[9] Phillips v The Queen [2012] VSCA 140.

[10] R v Kilic [2016] HCA 48; (2016) 259 CLR 256.

[14] See Price v The Queen [2019] VSCA 8 [65].

[15] [2014] VSCA 319; (2014) 45 VR 154 ('Heath').

[16] Explanatory Memorandum, Serious Sex Offenders Monitoring Bill 2005 (Vic), cl 48.

[17] Victoria, Parliamentary Debates, Legislative Assembly, 22 February 2005, 12 (Tim Holding, Minister for Corrections).

[18] [2011] VSCA 292; (2011) 33 VR 86 ('Loader').

[19] [2012] VSCA 137; (2012) 36 VR 382 ('Lecornu').

[20] [2014] VSCA 319; (2014) 45 VR 154, 162 [23].

[22] [2015] VSCA 167; (2015) 48 VR 87, 102 [42] ('Carolan').

[24] Ibid 390-1 [30]-[32] (citations omitted).

[25] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623 [40] (McHugh, Hayne and Callinan JJ) ('Pearce').

[26] Lecornu [2012] VSCA 137; (2012) 36 VR 382, 388 [19].

[28] [2011] VSCA 292; (2011) 33 VR 86, 97.

[34] Heath [2014] VSCA 319; (2014) 45 VR 154, 162 [25].