R v Black [2007] VSCA 82

2 The applicant, Steven John Black, applies for leave to appeal against conviction and sentence for offences arising out of incidents that occurred at a house at Jeparit on 4 October 2003. He was presented for trial with Darren Sexton and Jeffrey McGrath.

3 On 21 December 2005 the applicant and Sexton were convicted by a jury on one count of aggravated burglary (count 1), the circumstance of aggravation being that the offenders entered premises with intent to assault a person therein. The applicant and Sexton were also convicted on one count of recklessly causing injury to Phillip Stearman (count 3). They were found not guilty on count 2, which alleged they intentionally caused injury to Stearman. McGrath was found not guilty on all counts.

4 These offences, which occurred on 4 October 2003, were but one of three separate episodes of criminal behaviour which led to sentences of imprisonment being imposed on the applicant. To add to the complications that arose on appeal, sentencing for each episode was conducted by different judges of the County Court. To further complicate the situation, the order in which sentences were imposed by the three judges was not the same as the order in which the episodes occurred. That disconformity produced some problems for the sentencing judges, and also on appeal, not least for the calculation of pre-sentence detention.

5 The applicant was sentenced for the present offences by his Honour Judge Duckett, on 9 February 2006. In order to understand the trial and sentencing issues which arise in the present applications for leave to appeal it may be helpful to briefly summarise the three proceedings. All three proceedings resulted in applications for leave to appeal by the applicant Steven Black as to sentence and/or conviction. Other offenders also applied for leave to appeal with respect to convictions and sentences imposed with respect to the two other episodes. The same bench of the Court of Appeal heard all cases, but at present we are concerned only with the episode which arose on 4 October 2003. In this case, Steven Black is the sole applicant for leave to appeal.

6 The three episodes or incidents, and the sentences that resulted from them for the applicant, may be summarised as follows. For convenience I will deal with them in the order in which sentencing occurred, although that was not the order in which the offences occurred:

• First sentencing, and first incident: The offences occurred on 22 April 2003. The applicant, his brother Phillip Black and Phillip Watts were convicted by verdicts of a jury of burglary and intentionally causing injury (two counts). Sentence was imposed on 15 April 2005 by his Honour Judge Morgan-Payler. The applicant was sentenced to a total effective sentence of 12 months' imprisonment.[1]

• Second sentencing, but third incident: The episode which led to these convictions occurred on 1 February 2004. The applicant, his brother Phillip Black, and Phillip Watts were convicted by jury verdicts on multiple counts of aggravated burglary, armed robbery, causing injury intentionally and other serious offences. The applicant was sentenced by her Honour Judge Sexton on 22 November 2005. He was sentenced to a total effective sentence of 4 years and 6 months' imprisonment, to commence on 22 November 2005. Her Honour ordered that 12 months of this sentence be served concurrently with that imposed by Judge Morgan-Payler on 15 April 2005. A non-parole period of 2 years and 1 month's imprisonment was fixed, effective from 22 November 2005.[2]

• Third sentencing, but second incident: This episode occurred on 4 October 2003. The applicant was convicted by verdict of a jury on one count of aggravated burglary and one count of recklessly causing injury. He was sentenced by Judge Duckett on 9 February 2006, to a total effective sentence of 2 years and 6 months' imprisonment, to be served cumulatively upon his current sentences and his Honour fixed a new non-parole period of 3 years and 6 months' imprisonment.

7 The circumstances of the offences which were the subject of the present applications for leave to appeal against conviction and sentence were accurately summarised by his Honour Judge Duckett and I will gratefully adopt that summary.

8 On 4 October 2003 the applicant was at home in his father's residence, the side fence of which adjoined the rear fence line of the property of the victims in this case, Phillip Stearman and his partner Janet Kerrs. The applicant and a number of friends were repairing cars in their driveway and were drinking beer. There had been a history of bad relations between the residents of the respective properties. On a previous occasion, 22 April 2003, Steven Black, his brother Phillip and a third male, Phillip Watts, had broken into the victims' home and attacked Stearman and Kerrs, among others, with fists and weapons (including a tyre lever, and wooden and metal weapons). At the time of the present offences the applicant was on bail awaiting trial for offences arising out of the April 2003 incident.

9 On this occasion, 4 October 2003, Stearman and Kerrs arrived home from shopping at about 11.30 am. They told the jury that upon arrival home they saw five or six men in the adjoining property who were leaning over the fence abusing, insulting and threatening to kill Stearman and Kerrs. They said that during the afternoon bottles and missiles were thrown into their backyard and onto the roof of their house. One of the associates of the applicant climbed onto a shed roof at the adjoining property, exposed himself and shouted to Kerrs "suck this". Stearman shouted back insults and taunts at those in the adjoining house.

10 At 1.50 pm, and also 3.45 pm, Kerrs rang D24 and requested police assistance. At 4.50 pm three police officers arrived and they heard an exchange of abuse taking place between the occupants of the two properties. They spoke to the applicant, who had walked to the front of the Stearman/Kerrs property. The police "walked" him, and others who were also present, back to the Black residence.

11 In the late afternoon a barbecue was held at the applicant's home. Darren Sexton arrived later in the day and between 6pm and 7pm a stubby bottle was thrown over the fence from the Kerrs' property and into the applicant's property. It smashed within a few feet of Sexton's young daughter. She was not injured but Sexton became enraged and walked to the front of the victims' property and then down the driveway to the rear of the house. He was there joined by four persons (including the applicant) and Sexton and members of the group forcibly broke down the locked back door. The group entered the house, shouting threats that they would kill those in the house and burn down the house. One of the group was carrying a knife.

12 Stearman was punched and forced into the toilet cubicle by Sexton, where he was knocked unconscious, to the ground. Sexton then kicked him. Kerrs was on the phone to the police whilst this was happening, and told them she was in fear. She then returned to the toilet area where Stearman was being attacked. She took a knife and stabbed McGrath, who then left. Sexton remained and continued to attack Stearman, who was on the floor, whereupon Kerrs stabbed Sexton several times. The applicant, who had been present to this point, then left the property. Shortly afterwards police arrived.

13 The Crown case was that the applicant was acting in concert with the other accused so as to attack and injure the occupants of the house.

14 During the hearing before us counsel for the applicant advised the Court that a number of the grounds of appeal were abandoned and the application for leave to appeal against conviction proceeded on two substantive grounds, only, grounds 1 and 5. Ground 6, although not argued, was not formally abandoned.

Conviction application: Ground 1

15 Ground 1 reads as follows:

"1. The learned trial judge erred by admitting as complaint evidence, evidence of complaints made by Kerrs and Stearman to police about the applicant and others having made threats or insults prior to the commission of the alleged offences.

16 The prosecutor called Senior Constable Damian Walsh and questioned him about receiving telephone calls from D24. He was based at Dimboola, which was close to Jeparit. He said he was advised by D24 that a complaint had been received from Ms Kerrs, and the D24 operator gave him Kerrs's phone number. He then telephoned Kerrs and he gave evidence that "she advised that she had been receiving verbal abuse from her neighbours, like her rear neighbours - which were the Blacks - over the fence. She stated that they were saying things such as ...". At this point objection was taken on the basis that the evidence was hearsay.

17 Counsel for the applicant submitted that the evidence was doing no more than bolstering the credit of Stearman and Kerrs by way of self-serving statements. The prosecutor said he was leading the evidence as prior consistent statements and it was relevant and admissible because allegations had been put to witnesses that they were inventing their allegations that there had been abuse and yelling over the back fence emanating from the applicant's house. His Honour ruled that the evidence was admissible. The prosecutor thereupon led further evidence not only as to what was said by Ms Kerrs but also as to her allegation to Walsh that it was Stearman and Steven Black who were doing most of the abusing, one to the other.

18 Walsh said that he received a further phone call at 3.45 pm (having done nothing about the concerns expressed in the first phone call) which was again relayed to him by D24 and on this occasion when he phoned Kerrs she told him that there was a man on the roof next door who had something in his hands. In the background he could hear a voice that he assumed to be Phillip Stearman's saying to Kerrs - and then repeating to Walsh on the telephone - "They have got a shotgun, he's got a shotgun in his hands". Walsh then decided to travel to Jeparit.

19 Mr Boyce submitted that the evidence was not properly admitted, because it was hearsay.

20 Mr Holdenson, senior counsel for the Director of Public Prosecutions, submitted that the evidence was admissible to rebut an allegation of recent invention. Prosecution witnesses had been cross-examined to that effect, he submitted. In particular, it had been put to Phillip Stearman that "the whole of his evidence" was engineered in order to set up a claim for crimes compensation. Furthermore, when Janet Kerrs gave evidence it was put to her that "Everything you're telling this Court is arrant nonsense isn't it?" She denied that, and was then asked "You make it up as you go along ... it's imaginary" to which she responded "In your mind it's imaginary. I'm the one in counselling over it."

21 Although there was no ground of appeal relating to directions on this topic, Mr Boyce contended that the direction given to the jury did not overcome the danger of the misuse of evidence which accompanied its admission. The Court allowed that argument to be advanced, despite the failure of the grounds of appeal to expressly raise it.

22 In his directions to the jury his Honour described this evidence from Walsh as evidence of complaints by Ms Kerrs and Mr Stearman which had been admitted because it had been alleged by the defence that there were no threats or insults from the Black household to the Stearman/Kerrs household. He told the jury that the prosecution relied on the evidence of the complaints to answer the suggestion that the evidence about the behaviour of occupants of the Black household had been fabricated by Stearman and Kerrs. His Honour added:

"But the evidence of the complaints of Ms Kerrs and Mr Stearman do not directly support the victims' evidence. In fact they do not support the victims' evidence, because they come from the same source as the allegations. It is still Ms Kerrs and Mr Stearman who spoke to the police and made these allegations. And so that evidence is not independent of them. It is not outside evidence. It is simply a reiteration or it is simply evidence of complaints that were made which the Crown says is consistent with the allegations they make about the insults and other matters that were being said to them across the back fence. The evidence is before you to refute the suggestion that there were no incidents of swearing or other antagonistic behaviour that afternoon from the persons who were at the Black residence towards Ms Kerrs and Mr Stearman. It is important that you understand the basis upon which that evidence is before you, particularly in the light of the submission that [the prosecutor] accepts was incorrectly made when he said that it was evidence that supported the evidence of the two alleged victims."

23 Mr Boyce submitted that by telling the jury that the complaint evidence was a "reiteration", and that it was consistent with the evidence given by the witnesses his Honour gave the evidence a probative value other than merely as a matter of going to credit.

24 In my view, the evidence was properly admitted for the limited purpose which the judge allowed it.

25 A great deal of evidence was led by the prosecutor from Stearman and Kerrs, without defence objection, as to the complaints which they made to police. Furthermore, in cross-examination Kerrs was questioned by defence counsel about what she told the police when she made her telephone calls, and at the conclusion of his cross-examination of Ms Kerrs defence counsel tendered her statement to the police. In that statement Kerrs detailed the taunts and abuse which she said had occurred throughout the day and specified that she had telephoned police to complain. In addition to Kerrs giving evidence of her telephone conversations with Walsh, Walsh himself gave evidence not only of those conversations but also of his own observations that when he attended at the scene he heard voices yelling from the back fence.

26 Stearman, too, was cross-examined by defence counsel about the telephone calls made by Kerrs in his presence, and it was suggested to him that what Kerrs was then saying to the police as to events then occurring amounted to a false report to police as to those events. In addition to Senior Constable Walsh his partner, Constable Bastow, also gave evidence of his attendance at the scene and of hearing people yelling out from the two properties.

27 In my opinion, the evidence was properly admitted to rebut the allegation of recent invention implicit in some of the questions to the prosecution witnesses, and the directions by the judge appropriately warned the jury as to the limited use that could be made of that evidence given by Walsh.

28 However, were the Court to conclude that the evidence had been wrongly admitted then, having regard to the limited use which the judge told the jury they could make of it, and having regard to its limited importance in the conduct of the trial, I do not consider that its admission could have constituted a miscarriage of justice. Whatever might or might not have been said by occupants of the Black household or, in turn, by those in the Stearman/Kerrs household, there seemed to be no dispute that whilst there had been antagonistic behaviour between the occupants of both households it was the applicant and his supporters who had forced their way into the Stearman/Kerrs household. In that context, even if it was the fact that some self-serving evidence may have been led as to the telephone reports made to police by Kerrs and Stearman (and I do not consider that the evidence was inadmissible), that evidence could not have caused a miscarriage of justice.

29 This ground of appeal is not made out.

Conviction application: Ground 5

30 Ground 5 reads as follows:

"5. The learned trial judge erred by inviting/leaving it open to the jury to convict the applicant of count 3 on a basis of accessorial liability that was not relied upon by the prosecution, namely, by assaulting the victim in 'taking part in the assault with another' while not acting in concert."

31 The Crown case was that Steven Black acted in concert with Sexton and McGrath in the assault on Stearman. The learned trial judge directed the jury on the law relating to acting in concert and it is not contended that those directions were wrong. The complaint made under this ground relates to a response by the judge to a jury question.

32 The jury retired to consider its verdict at 1.04 pm on 15 December 2005. Later that day the jury delivered two written questions to his Honour and at 4.26 pm the jury entered the court room and his Honour read out the questions and told the jury that he would provide an answer to them the following morning, which he did. The first question does not concern us. The second question was this:

"If a defendant is found not guilty on charge 1, can charges 2 and 3 still proceed?"

In the course of discussing the question with his Honour counsel then appearing for Steven Black conceded that it would be open to a jury to find the applicant not guilty on count 1, on the basis that he had not entered with the necessary intention at that time, but to then conclude that once he got inside the house he subsequently formed an intention to assault the occupants. In the course of discussion with the prosecutor his Honour noted that, insofar as joint liability was concerned, the case had not been run on the basis of aiding and abetting but solely on the basis of acting in concert. His Honour told counsel that he would direct the jury, in terms, that an accused who had not been acting in concert when he entered the house as a trespasser, could become liable to conviction on counts 2 and 3 if "once inside the house, that accused forms the necessary intent to commit either counts 2 or 3 offences, and actively takes part in an assault on Mr Stearman".

33 On the following day, and prior to delivering the further directions, counsel and his Honour further discussed the terms of the proposed directions. Counsel for Sexton expressed some concern as to whether his Honour ought use the words "actively assisting another". He submitted that the jury should simply be directed that Sexton would be guilty if they found he was "taking part in the assault so he, in fact, did so alone, or by taking part in the assault with another". His Honour then, at the request of the prosecutor, read out the terms of the proposed direction as he had amended it in response to submissions. The relevant passage now read: "In fact, did so alone, or by taking part in the assault with another." After some brief discussion, there was no further complaint by any counsel as to the terms of the proposed direction.

34 Upon the jury returning to the court room his Honour gave them the following direction:

"Your second question was: 'If a defendant is found not guilty on charge 1, can charges 2 and 3 still proceed?'

My direction to you, in answer to that question, if you're not satisfied that an accused physically entered the Kerrs' house, then if you find that accused not guilty on that basis, that accused cannot be found guilty of the remaining two counts. The prosecution case is that the assault on Mr Stearman took place in the house. If you are not satisfied that that an accused was a party to an agreement to go to Kerrs' house and assault Mr Stearman, that is if you are not satisfied that he formed a common intent to enter the house and then assault Mr Stearman, you cannot convict that accused on the remaining two counts on the basis of that doctrine, a doctrine of common intent. However, if you are satisfied beyond reasonable doubt that an accused entered the house and while he was there he formed an intent to assault Mr Stearman and, in fact, did so alone or by taking part in the assault with another, then you could on that basis find that accused guilty on counts 2 or 3."

35 Mr Boyce conceded that quite apart from being found guilty by virtue of complicity in the offences of others, it was open on the evidence for the applicant to have been convicted on the basis that he committed an assault himself, that assault comprising the elements, including the relevant intention, constituting an offence under either count 2 or count 3. That possibility had also been accepted by counsel appearing at the trial. The error which Mr Boyce nonetheless contended had been contained in the redirections was that by its terms it created a risk that the jury would understand that they were permitted to convict the applicant on the basis that he had aided and abetted one of the other offenders in their own commission of an assault, even though he himself had not physically assaulted Stearman in any way. Mr Boyce submitted that since the Crown had not conducted its case on a basis of accessorial liability by way of aiding and abetting it was not proper for such a basis to be left to the jury in the redirections.

36 Mr Boyce submitted that the expression "taking part in the assault with another" was open to the interpretation that the applicant would be guilty simply by lending support by way of encouragement or by way of assisting one of the other offenders to assault Stearman, although not himself committing an assault. For a person to be guilty of aiding and abetting it is not necessary that he personally assaulted the victim: See R v Lowery and King (No 2),[3] but the trial was not conducted on the basis of aiding and abetting, and therefore, he submitted, it would be unfair for the applicant to be at risk of conviction on a basis of complicity that was not relied on by the Crown.

37 In my opinion, given the way the trial was conducted and the clear directions given by his Honour on the question of concert, there is no prospect that the jury would have understood the redirection as applying in circumstances where the accused, having not formed an intention in common with other offenders to assault the victim at the time of entering the premises, then formed an intention to assault Stearman but did not himself assault Stearman, but was merely present, encouraging Sexton to do so. His Honour did not give the jury directions in the terms of aiding and abetting, and that expression was never used to the jury. The concept would not have arisen in the minds of the jury, in my opinion.

38 In my view, therefore, there was no error in the direction that was given. It is notable that no exception was taken to the direction given to the jury on this topic. That strongly suggests that counsel at the trial did not themselves perceive the risk that it is now suggested may have arisen.[4]

39 In any event, as Mr Holdenson pointed out, the jury's question was predicated on there being an acquittal on count 1, whereas they did not so conclude. Once the jury decided, as they must have, that the applicant entered with the intention of Stearman being assaulted, then the applicant's continuing presence during the assault that took place meant that there was no prospect that he might have ceased to act in concert for that assault.

40 Ground 6 complained that the verdicts of guilty were unsafe and unsatisfactory by virtue of an aggregation of defects in the trial. Since no defects have been established, in my view, this ground also must fail.

41 In my view the application for leave to appeal against conviction should be refused.

Application for leave to appeal against sentence

42 On 9 February 2006 Judge Duckett imposed the following sentences for the offences arising out of events on 4 October 2003:

Aggravated burglary

(maximum penalty

25 years' imprisonment)

Recklessly cause injury (maximum penalty 5 years' imprisonment)

43 His Honour ordered that six months of the sentence on count 3 be served concurrently with the sentences that are "currently being served and the sentence imposed today on count 1". His Honour ordered that six months of the sentence on count 3 be served cumulatively upon the sentence on count 1 and on the sentences that were currently being served by the applicant. As to count 1 his Honour ordered that one year of that sentence be served concurrently with the sentences currently being served by the applicant and with the sentence imposed on count 3.

44 His Honour then declared that by those orders he had imposed a total effective sentence of imprisonment of two years and six months' imprisonment. I have difficulty understanding how that could be so. Given the order of cumulation of six months of the sentence on count 3 with the sentence on count 1, it seems to me that the total effective sentence was three years and six months' imprisonment although it was intended that only two years and six months was to be served cumulatively upon any sentence the applicant was then serving. Having declared the total effective sentence as two years and six months' imprisonment his Honour then ordered:

"Minimum sentence to be served before the prisoner is eligible for parole on sentences currently being served and sentences imposed today, is a period of three years and six months."

His Honour declared 66 days pre-sentence detention for the offences upon which he imposed sentence on 9 February 2006.

45 When he imposed sentence in those terms Judge Duckett understood that the applicant was then serving a sentence of four years and six months' imprisonment, commencing on 22 November 2005, which had been imposed by her Honour Judge Sexton. Judge Duckett intended to impose a further cumulative sentence of two years and six months imprisonment, thus bringing the total period of imprisonment to six years and six months' imprisonment and it may be thought that his Honour intended that his new non-parole period of three years and six months imprisonment would date from 22 November 2005.

46 A question now arises whether as at the time when Judge Duckett made his orders on 9 February 2006 any portion of the sentence which Judge Morgan-Payler had imposed on 15 April 2005 remained to be served. The latter sentence of 12 months' imprisonment was subject to a declaration of 75 days pre-sentence detention under s 18 of the Sentencing Act 1991. In fact, as counsel for the respondent concedes, the correct period of pre-sentence detention ought to have been 90 days. Thus, as at 9 February 2006, when Judge Duckett sentenced the applicant, the whole of the sentence imposed on the applicant by Judge Morgan-Payler had been completed.

47 As is noted in the judgment of the Court concerning the application for leave to appeal the sentence imposed on 15 April 2005 by Judge Morgan-Payler,[5] quite apart from adjusting the declared pre-sentence detention from 75 to 90 days there are additional questions which arise as to whether the applicant has had full account taken of pre-sentence detention. I will return to those questions later.

48 In a separate judgment,[6] the Court has concluded that the convictions and sentences relating to the trial before Judge Sexton must be quashed and a new trial be ordered. The sentences imposed in that case did not arise from what, strictly speaking, were prior convictions but the fact that such a sentence had been imposed by Judge Sexton was relevant to the sentencing of Judge Duckett, in particular because Judge Duckett intended that portion of the sentence he imposed was to be served cumulatively, and portion concurrently, with the sentence imposed by Judge Sexton.

49 The Court[7] has concluded that the sentences imposed on the applicant by Judge Morgan-Payler should not be varied. The Court has concluded that no purpose is served now in adjusting the number of days pre-sentence detention from 75 to 90.

50 Although the sentencing discretion with respect to Judge Duckett's sentences is necessarily re-opened by virtue of the quashing of the sentences imposed by Judge Sexton it remains appropriate to address the grounds of appeal raised in this case because the issues raised therein were fully argued and they conveniently raise issues that will be relevant upon re-sentencing.

51 There were five grounds of appeal with respect to the application for leave to appeal against sentence. They were as follows:

"1. The learned sentencing judge erred by failing to properly apply the sentencing principle of parity.

2. The learned sentencing judge erred by doubly punishing the applicant.

3. A miscarriage of justice arose in the present case because the sentences imposed here 'built upon' sentences earlier imposed by (the late) [Judge] Morgan-Payler and Judge Sexton wherein the applicant had not properly been given the benefit of time spent in custody.

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

5. The learned sentencing judge erred by failing to properly apply the sentencing principle of totality."

52 It is convenient to commence with ground 3, under which discussion about pre-sentence detention was addressed.

Ground 3

53 Although Judge Morgan-Payler declared 75 days pre-sentence detention (which ought to have been 90 days, in fact) there were additional periods in which the applicant had been in custody prior to the date of his Honour's sentencing which also had to be considered. In the first place, the applicant had been remanded in custody on 5 October 2003 with respect to the offences dealt with later by Judge Sexton and remained in custody until bailed on 10 December 2003. That was a period of 66 days. Mr Holdenson agrees that Judge Morgan-Payler should have added those 66 days to the period of pre-sentence detention under s 18(1) that he declared, but he failed to do so.

54 In addition to those 66 days there was a period from 4 February 2004 to 17 January 2005 during which the applicant was in custody but which did not qualify as pre-sentence detention under s 18(1), as Judge Morgan-Payler rightly concluded. He held that he had had regard to that period of detention by applying the principle stated in R v Renzella.[8] He did not specify the extent to which the sentence he imposed had thereby been reduced.

55 After his Honour had sentenced the applicant and declared pre-sentence detention, counsel for the applicant drew to Judge Morgan-Payler's attention the additional 66 days which had not been declared under s 18(1). His Honour declined to treat that period as pre-sentence detention but said that the period had been taken into account in applying Renzella.

56 As the judgment of Kellam, AJA in Watts, Black and Black demonstrates, it is improbable that Judge Morgan-Payler reduced the sentence by 66 days upon application of the Renzella principle. In fact, Judge Duckett later declared that to be a period of pre-sentence detention when he imposed sentence in the case before him. Mr Holdenson submitted that that amounted to double counting, but I am confident that the 66 days were not taken into account by Judge Morgan-Payler. Thus, if the Court now re-sentences the applicant with respect to the matters dealt with by Judge Duckett we should ensure that the 66 days declaration of pre-sentence detention is confirmed.

57 There then remains the question of the extent to which the period of eleven months and thirteen days in custody from 4 February 2004 and 17 January 2005 was taken into account on a Renzella basis by Judge Morgan-Payler when he sentenced the applicant. As Kellam, AJA has explained in Watts, Black and Black, a total effective sentence of 12 months' imprisonment for the applicant, though severe, should not be interfered with. If, however, the whole of the eleven months and thirteen days had been taken into account when his Honour fixed that sentence, so that his Honour intended, in effect, to impose a sentence on the applicant of about 2 years' imprisonment, or even more, then there must have been sentencing error, at least on parity grounds. It is, however, more likely, for the reasons stated by Kellam, A.J.A., that despite having taken that period into account for the two co-offenders and having also intended to take it into account for Steven Black, Judge Morgan-Payler could not have given full weight to that factor when sentencing Steven Black. What, then, is now to be done about that situation? The applicant has completed the sentence imposed by Judge Morgan-Payler, and the precise extent to which the Renzella principle was applied in his case is not known.

58 The applicant is subject to a re-trial of the matters heard before Judge Sexton and the period of eleven months and thirteen days could be considered upon re-sentencing for those offences, if he was again convicted. However, since this Court must in any event re-sentence the applicant on the matters dealt with by Judge Duckett the more appropriate course, in my opinion, is that upon re-sentencing the applicant for the Judge Duckett matters, this Court should apply the Renzella principle with respect to the period of eleven months and thirteen days.[9] That consideration will, therefore, be addressed later, upon re-sentencing.

59 In addition to the Renzella question there are other issues raised under the grounds of appeal that will be relevant to re-sentencing by this Court.

Ground 1 - Parity

60 On count 1 the applicant's co-accused, Sexton, was sentenced to two years' imprisonment and on count 3 he was sentenced to 12 months' imprisonment. Judge Duckett ordered that 6 months of the sentence on count 3 be served concurrently with the sentence on count 1. The total effective sentence for Sexton was 2 years and 6 months' imprisonment, and a non-parole period of 12 months was fixed.

61 As to the applicant, Steven Black: on count 1 he was sentenced to 3 years' imprisonment; on count 3, to 12 month's imprisonment. Twelve months of the sentence on count 1 was ordered to be served concurrently with the sentence then being served and also with the sentence on count 3; and 6 months of the sentence on count 3 was ordered to be served concurrently with the sentences then being served and also with the sentence on count 1. The total "cumulative" sentence (as his Honour described his sentence) was two years and 6 months' imprisonment. A new non-parole period of "an additional two years minimum" was fixed, which Judge Duckett said resulted "in a minimum period of three and a half years from today", i.e. from 9 February 2006.

62 For the reasons discussed above, there is some confusion evident in these orders of Judge Duckett, but the complaint about parity does not turn on those matters, but relates to a comparison of the actual terms of imprisonment for each offence which his Honour ordered for the two offenders.

63 Mr Boyce submitted that the applicant had a justifiable sense of grievance as to the disparity between his sentence and that of Sexton and that the respective sentences offended principles of parity so as to give the appearance to an objective bystander that justice had not been done.[10] He submitted that although Sexton played a far more serious role than the applicant, the applicant received a sentence of imprisonment on count 1 that was one year longer, and received the same sentence on count 3.

64 As Callaway JA noted in R v Taudevin,[11] when complaint is made on grounds of parity (or disparity) the circumstances in which the court will intervene require that emphasis be placed on the following matters: the difference between the two sentences must be "manifestly" excessive and in addition the disparity must be such as to engender a "justifiable" sense of grievance on the part of the appellant, and to create the appearance of injustice in the mind of an "objective" bystander.

65 As to their respective roles, his Honour found that Sexton led the applicant into the house, after breaking the lock on the door, and punched Stearman to the ground, then kicked him when he was unconscious on the ground. His Honour made no finding that the applicant had personally physically assaulted the victim, but he had been present, shouting threats, and shared Sexton's purpose to attack and injure Stearman.

66 The disparity was even more glaring, Mr Boyce submitted, when regard was had to the differences in age and prior convictions of the two offenders. Sexton was aged 36 at the time of sentencing, with 10 previous court appearances, including convictions for recklessly causing injury and burglary. He had been convicted of assault with intent to rob, and robbery, in 1991, and had been sentenced to four months' imprisonment, wholly suspended. In contrast, submitted counsel, the applicant was only 21 at the time of sentencing, had only one prior court appearance, which resulted in convictions and fines for burglary, theft and possession of cannabis. He submitted that the convictions and sentences for the April 2003 incident occurred after the present offences were committed, thus they ought not have been treated as prior convictions for sentencing purposes.

67 In response, Mr Holdenson submitted that the difference in the sentences of the two offenders on count 1 was to be explained by a number of factors. The applicant was on bail for offences arising out of the first episode when the present offences, relating to the second episode, occurred; Sexton had not been present earlier in the day when the applicant, among others, had been inflaming the situation; Sexton reacted to what he perceived was the endangerment of his child; Sexton's last conviction for a violence offence was more than 10 years earlier; Sexton had not previously been imprisoned.

68 In my view, the significantly greater physical role of Sexton on count 3 does not diminish the fact that throughout the assault, as his Honour found, the applicant was fully supporting him. Furthermore, although Sexton led the trio into the house the applicant, having engaged in just such conduct in the recent past, in the first episode, was right behind him. In my view, the judge was entitled to take the view that the applicant's conduct was every bit as serious as that of Sexton, added to by the fact that he was on bail for the past similar incident. There could not be a "justifiable" sense of grievance on the part of the applicant, in my opinion, nor can the difference in the respective sentences be regarded as manifestly excessive in the circumstances: see R v Taudevin.[12]

69 Thus, the sentences imposed by Judge Duckett did not offend parity principles. That does not mean that this Court should simply impose the same sentences: we must exercise our own sentencing discretion. However, the analysis and rejection of the parity complaint serves at the same time as an indicator of the factors that bear upon the appropriate relationship between the sentences for the applicant and Sexton.

Ground 2

70 Mr Boyce submitted that his Honour, in effect, sentenced the applicant to an additional term of imprisonment by reference to his offences, concerning the same victims, that occurred in April 2003. That conduct had already been dealt with by Judge Morgan-Payler, and in consequence the applicant, so it was said, had been punished twice for that earlier conduct. It is unnecessary to deal with this complaint in any detail. I am quite satisfied that in the sentencing remarks that were highlighted by counsel his Honour did not constitute error. His Honour rightly noted that the terror experienced by the victims on this occasion was exacerbated by their experience on the previous occasion. In my opinion, the fact that the applicant had committed very similar offences against the same victims was a relevant aggravating factor for sentencing as to the subsequent offences. That bore on questions of rehabilitation prospects and remorse and was an aggravating factor that this Court is also entitled to take into account, as is the fact that the applicant had been on bail for the earlier offences when he committed the October offences.

Ground 5: Totality

71 This ground was based upon consideration of the sentences imposed by the two other judges in addition to that ordered by Judge Duckett, who ordered cumulation of part of the sentences upon sentences already being served by the applicant. For the reason earlier discussed, this ground of appeal is no longer relevant, because Judge Sexton's sentence has been set aside. The totality principle is nonetheless of continuing relevance upon re-sentencing, as I shall later discuss.

Ground 4: Manifest excess

72 If we put to one side the sentence imposed by Judge Sexton, and also put to one side the order of cumulation upon that sentence, of two years and six months, ordered by Judge Duckett, then the sentence imposed by Judge Duckett may be regarded as having been three years and six months' imprisonment (three years' imprisonment on count 1, twelve months' imprisonment on count 3; with six months of the sentence on count 3 to be served cumulatively with the sentence on count 1).

73 It may be that that sentence represents a longer period of additional and actual imprisonment than Judge Duckett intended to result, because he intended that 12 months of the sentence on count 1 would be served concurrently with the previous sentences that had been imposed and were then being served.

74 It is no longer necessary to resolve the question whether Judge Duckett's sentence was manifestly excessive, but the submissions made concerning the sentence raise the mitigating factors relevant to re-sentencing.

75 Mr Boyce relied on the following factors: the youth of the applicant at the time of the offences; his limited prior convictions (having appeared on one occasion only, in January 2003 and been fined on counts of burglary, theft and possession of cannabis); his lesser role, and the absence of actual violence on his part; his prospects of rehabilitation, although like his Honour, I would not regard his prospects of rehabilitation as being particularly favourable.

76 As against those mitigating factors, there were a number of aggravating features, most importantly the fact that he was on bail for similar offences committed against the same people. The impact on the offenders was very great. So fearful were they of reprisal that they abandoned their home, which was owned by Ms Kerrs under a mortgage. She was unable to maintain the property and to keep up mortgage payments and the property was sold by the bank at considerable loss to the victim. It is to be kept in mind too, that whereas the applicant was acquitted on the offence of aggravated burglary with respect to the episode dealt with by Judge Morgan-Payler, in this case he was convicted of that serious offence, which carried a 25 years' maximum sentence.

77 In all the circumstances, however, and notwithstanding the seriousness of his conduct while on bail, the sentence imposed by Judge Duckett on count 1 was greater than was appropriate, in my opinion, having regard to the youth of the applicant and his lack of significant prior convictions. Thus, I would reduce the sentence imposed on count 1, but not significantly so. I would not have imposed a different sentence on count 2. In determining the appropriate sentences to be imposed for these offences it is also now appropriate to have regard to the application of Renzella, with respect to the period of eleven months and thirteen days in custody prior to being sentenced by Judge Morgan-Payler, that was not fully taken into account by his Honour.

78 In both Renzella[13] and Stares[14] the Court held that the discount to be made by reference to this principle should be achieved by reducing both the head sentence and the non-parole period that would otherwise have been imposed. In R v Heaney,[15] which was approved in Renzella,[16] Brooking JA allowed that detention in custody that was doubly warranted could be taken into account "in a broad way", and in R v Chimirri[17] Winneke P agreed that application of the Renzella discount does not involve a mathematical exercise, but may be taken into account "generally". In Stares, Charles JA held that while it would ordinarily be appropriate to reduce sentence by reference to the whole of the period of detention applicable under the Renzella principle, there may be some reason why a sentencing judge would take a lesser period into account in the exercise of the sentencing discretion.

79 The situation here is unusual. Judge Morgan-Payler expressly said that he took into account on Renzella principles a period which apparently included the period of eleven months and thirteen days. If that was so then it rendered his sentence on the applicant a severe one. In the circumstances the applicant ought to receive substantial allowance for the period, but in light of what his Honour said it must be taken that some portion at least of the eleven months and thirteen days was in fact allowed in reduction of the total effective sentence he imposed. How much that was is not now known.[18] Whilst there is a risk that by now allowing a substantial reduction on account of the Renzella principle the applicant will have gained a double benefit, it is appropriate to err in his favour. He should not be disadvantaged by the fact that confusion has arisen by virtue of the cases being dealt with by different judges and not in the order in which the offences occurred.

80 In R v Wade[19] Maxwell P with whom Charles and Nettle JJA agreed, held that where something less than the full period of Renzella detention is not allowed the precise period so allowed should be specified so that any judge later called on to sentence the offender would know if any period remained to be taken into account on Renzella principles. So as to avoid later uncertainty, I make it clear that it is my intention that the whole of the period of 11 months and 13 days Renzella pre-sentence detention will have been addressed and taken into account by the combined effect of the sentencing orders of Judge Morgan-Payler (for the reasons explained both in this judgment and in the judgment of Kellam AJA in Watts, Black and Black) and the orders in this case upon re-sentencing. To achieve that objective I have reduced what would otherwise have been the appropriate total effective sentence and non parole period by nine months.

81 Thus, if the applicant falls to be re-sentenced on the matters previously dealt with by Judge Sexton then no portion of the pre-sentence detention that has been addressed in this judgment would be relevant to sentencing on that occasion. There may however, be "dead time" which would need to be taken into account being the time served after the expiry of the non-parole period which will be substituted by this Court upon re-sentencing the applicant.

82 I would set aside the sentences on count 1 and 3 and substitute the following sentences, which are discounted not only by virtue of the mitigating factors identified in my judgment but also for the Renzella factor.

83 On count 1, I would substitute a sentence of 18 months' imprisonment. On count 3, I would sentence the applicant to 12 months' imprisonment. I would order that six months of the sentence on count 3 be served cumulatively with the sentence on count 1. That produces a total effective sentence of 24 months' imprisonment.

84 By virtue of s 11(2) of the Sentencing Act the Court may fix a non-parole period. Applying the Renzella principle with respect to time spent in custody which has not otherwise been taken into account, I would order that the applicant not be eligible to be released on parole for the present offences before serving twelve months' imprisonment**.**

85 By virtue of s 16(3C) this sentence must be served cumulatively with any uncompleted sentence imposed on the applicant or other sentences imposed on him. There are no such sentences presently relevant. Given the brazen disregard for the bail order that these offences constituted I would not, in any event, have made an order ameliorating the effect of s 16(3C).

86 The applicant was sentenced by Judge Duckett on 9 February 2006. The declaration of 66 days pre-sentence detention under s 18(1) was appropriately made by Judge Duckett. The sentence we now impose commenced at 9 February 2006, thus the applicant would have been eligible for release before today. That is unfortunate. The complexity of the sentencing and appellate process that has arisen out of the multiple incidents that gave rise to charges against the applicant, and other offenders, has been largely attributable to the fact that three judges were

involved[20] and that the sentencing sequence was unhelpful. As noted earlier, should the offender be sentenced again for the matters dealt with by Judge Sexton then any "dead time" should then be taken into account.

87 Finally, I acknowledge that taking the Renzella pre-sentence detention into account in the way I have proposed, produces sentences which on their face do not reflect the seriousness of the offending. In addressing a similar situation in R v Arts and Briggs[21] Phillips CJ with whom Callaway JA and Harper AJA agreed, proposed that the final orders of the Court should record that the sentences reflect a significant reduction on account of time already spent in custody. It would be appropriate to make a similar statement in the orders in this case.

88 I agree with Eames JA.

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[1] See R v Watts, Black, and Black [2007] VSCA 81.

[2] See R v Black, Watts and Black [2007] VSCA 61.

[3] [1972] VicRp 63; [1972] VR 560 at 561.

[4] R v Clarke & Johnstone [1986] VicRp 64; [1986] VR 643, at 661-2; R v Osland [1998] 2 VR 636, at 652; R v MAG [2005] VSCA 47 at [25]; R v Demiri [2006] VSCA 64 at [28]- [29].

[5] See R v Watts, Black and Black [2007] VSCA 81

[6] R v Black, Watts and Black [2007] VSCA 61

[7] R v Watts, Black and Black [2007] VSCA 81

[8] [1997] 2 VR 88; see, too, R v Stares [2002] VSCA 70; [2002] 4 VR 314.

[9] As the Court noted in Renzella, at 98, non-s 18(1) detention should ordinarily be taken into account at the first opportunity that a sentencing court has to do so, rather than be left for a later sentencing occasion.

[10] Lowe v The Queen [1984] HCA 51; (1984) 154 CLR 505, at 613.

[11] [1996] VICSC 7; [1996] 2 VR 402, at 404.

[12] At 404.

[13] Renzella, at 96.

[14] Stares, at 323 [27].

[15] Unreported, Court of Appeal 27 March 1996.

[16] Renzella, at 97.

[17] [2003] VSCA 45 at [5]- [6]

[18] His Honour is deceased and no report was made by him prior to his death.

[19] [2005] VSCA 276 at [13]- [14].

[20] Indeed, we learned after reserving judgment in these matters that a fourth judge was involved in sentencing one of the offenders who was earlier dealt with by Judge Morgan-Payler)

[21] [1998] 2 VR 261 at 262.