R v Bortoli [2006] VSCA 62

Mr S Carisbrooke, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading in draft the reasons for judgment of Redlich, AJA. I agree that, for the reasons which his Honour gives, the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

2 In my opinion the appeal should be allowed for the reasons stated by Redlich, AJA. I would re-sentence the appellant as his Honour proposes.

3 On 3 September 2004, the appellant was sentenced in the County Court to a total effective sentence of six years and nine months' imprisonment, with a non-parole period of five years, on two counts of armed robbery and five counts of conspiracy. The appellant had pleaded guilty to those counts and had undertaken to give evidence against an alleged co-offender. (I shall refer to this as "the first proceeding").

4 On 8 September 2004, the appellant was sentenced in the County Court to six months' imprisonment for contempt arising out of his evidence at the trial of the co-offender. The Judge directed that three months of that sentence be served cumulatively upon the sentence he was undergoing. His Honour purported to fix a new single non-parole period, pursuant to s.14 of the Sentencing Act 1991 ("the Act"), of "five years and three months from today". (I shall refer to this as "the contempt proceeding").

5 On 22 July 2005, the appellant was sentenced in the County Court to a total effective sentence of two years and three months' imprisonment on a count of possession of an unregistered firearm and a count of theft. The Judge directed that one year and three months of that sentence be served cumulatively upon the sentence the appellant was then undergoing. The Judge purported to set a new single non-parole period, in respect of that sentence and the sentence imposed on 3 September 2004, of five years and six months commencing from that day. (I shall refer to this as "the second proceeding").

The first proceeding

6 By leave granted on 4 November 2005, the appellant appeals against the sentence imposed in each of the first proceeding and the second proceeding. It will be necessary to consider each of the three proceedings in turn.

7 The appellant, who is now aged 43, pleaded guilty in the County Court on 13 May 2004 to a presentment containing two counts of armed robbery, two counts of conspiracy to commit armed robbery, one count of conspiracy to commit robbery, one count of conspiracy to commit burglary and one count of conspiracy to commit theft. The appellant admitted 17 prior convictions arising from two prior appearances for offences of dishonesty. On the first of those appearances, in January 1994, the appellant was sentenced by the Magistrates' Court at Preston to an effective sentence of 18 months. On the second appearance, in May 1999, the appellant was sentenced by the Magistrates' Court at Dandenong to six months' imprisonment, which sentence was wholly suspended for a period of 18 months.

8 After hearing a plea for leniency on the appellant's behalf, the learned trial judge on 3 September 2004 sentenced the appellant to five years' imprisonment on each count of armed robbery; two years' imprisonment on each count of conspiracy to commit armed robbery; (The maximum penalty for armed robbery and conspiracy to commit armed robbery was 25 years' imprisonment); 18 months' imprisonment for conspiracy to commit robbery; (The maximum penalty for conspiracy to commit robbery was 15 years' imprisonment); 18 months' imprisonment for conspiracy to commit burglary and 12 months' imprisonment for conspiracy to commit theft, (The maximum penalty for conspiracy to commit burglary and conspiracy to commit theft was 10 years' imprisonment).

9 The counts and the sentences imposed are set out in the following table:

5 years' imprisonment

(6 months cumulative)

2 years' imprisonment

(3 months cumulative)

18 months' imprisonment

(3 months cumulative)

2 years' imprisonment

(6 months cumulative)

18 months' imprisonment

(3 months cumulative)

10 His Honour imposed a total effective sentence of 6 years and 9 months. A non-parole period of 5 years was fixed and a declaration made regarding 481 days pre-sentence detention.

11 Two co-accused, Mark Maddalena and Donna Cooke, were also sentenced by the learned trial judge on the same day. Maddalena was sentenced to four years' imprisonment on each of counts 1 and 2, 18 months' imprisonment on each of counts 3 and 6 and 1 year's imprisonment on count 7. Orders of cumulation were made and a total effective sentence of four years and 10 months' imprisonment was ordered and a non-parole period of four years and 10 months' imprisonment was fixed. The second co-accused, Donna Cooke, was the appellant's wife. She was sentenced to two years and six months' imprisonment on count 2, nine months on count 4, one year on count 5 and one year on count 7. Orders of cumulation were made making a total effective sentence of three years' imprisonment, which was wholly suspended for a period of three years.

12 Before dealing with the grounds relating to the first proceeding, it is convenient to summarise the salient features of each count.

Count 1, armed robbery of the Eltham Hotel on 30 April 2001.

13 A vehicle was stolen from Tullamarine Airport, a fortnight before the robbery, for use in the commission of the robbery. In the early hours of the morning of 30 April 2001 the appellant, his co-accused Mark Maddalena and another man confronted staff with a firearm and a machete when the staff arrived for work. The staff were threatened, two of them were bound by the feet and wrists and their mouths were taped, while a third member of staff, after disarming the alarm system, was seized and taken to the strongroom and opened the safe which had a time delay. Whilst waiting, she was taken to the gaming room and opened a number of machines, from which money was stolen. They returned to the safe, by which time the first "brick" containing money in the safe was accessible. Whilst waiting for access to the next brick, she was again taken to the gaming room and further money was taken from machines. They then returned and accessed the second "brick" containing money. She was then gagged and bound. A total of $24,530 was stolen.

Count 2, armed robbery of the Lower Plenty Hotel on 17 May 2001

14 In the early hours of the morning of 17 May 2001, whilst staff were counting cash to place in the safe whilst under the protection of security guards, the appellant and Maddalena gained access to the premises with the assistance of one of the security guards. The appellant and Maddalena were armed with a cut-down single barrel shotgun and a black pistol fitted with what appeared to be a silencer. One of them yelled at the security guards to get on to the ground or they would shoot and "blow their heads off". Two members of staff were taken to the cashier's room. Money was taken from the safe and from cash drawers. The staff and the security guards, including the guard who was an accomplice of the robbers, were taken to the toilets and left there. The car keys of the accomplice were taken and his car was driven a kilometre from the hotel to where the appellant's wife, Cooke, was waiting in a car. She then drove the appellant and Maddalena away, leaving the accomplice's car there. Some $89,825 was stolen from the hotel. Both the appellant and Maddalena had previously worked at the hotel as crowd controllers.

Count 3, conspiracy to commit an armed robbery at the Sands Hotel, Carrum Downs

15 Between 17 July 2001 and 20 August 2001 the appellant and Maddalena agreed to carry out an armed robbery on the Sands Hotel, Carrum Downs. The conspiracy was detected in consequence of electronic surveillance, by telephone interception and by listening devices which recorded conversations between the appellant and Maddalena. Those conversations show that the appellant had made a number of trips to the premises to view its operations. He and Maddalena had discussed the details of the operating hours of the gaming room and bistro. The appellant said that all that was needed for the robbery to take place was the money needed to acquire the weapons to commit the armed robbery.

Counts 4 and 5, conspiracy between the appellant and Cooke to steal property belonging to Fresh 2 U Fruit and Vegetable Providers and to rob Fresh 2 U Fruit and Vegetable Providers

16 The appellant and Cooke, together with an employee of Fresh 2 U Fruit and Vegetable Providers and two other persons also recruited by the appellant entered into the conspiracy and performed overt acts in furtherance thereof between 13 July 2001 and 20 August 2001. The appellant had befriended the employee and, after gaining her confidence and extracting details about the banking arrangements of her employer, proposed that they would steal the payroll from the employee after it had been collected from a bank in North Melbourne. The theft was to be made to appear as a robbery. The appellant and Cooke carried out surveillance preparatory to the commission of the offence, and the date upon which the theft was to take place was agreed. On the day prior to the commission of the proposed offence, the employee informed the appellant that she would not be collecting the payroll on the following day and that another employee, who had no knowledge of the planned theft, would be collecting the payroll. The appellant and the other conspirators agreed to steal the payroll and thus conspired to commit a robbery. The appellant was to steal the payroll whilst Cooke would drive the car away from the scene and the other co-conspirators would drive another vehicle to a position which would effectively block any pursuit of Cooke's vehicle as it departed. The evidence of this conspiracy was obtained by the use of electronic surveillance, by telephone intercepts and the use of listening devices. Two of the co-conspirators undertook to give evidence against the appellant.

Count 6, conspiracy to commit armed robbery of the Ferntree Gully Hotel

17 Between 22 July 2001 and 20 August 2001 an agreement was made between the appellant, Maddalena, an employee of the Ferntree Gully Hotel and a fourth conspirator, to carry out an armed robbery of the Ferntree Gully Hotel. The appellant and Maddalena obtained information from the employee concerning the operating procedures of the hotel. The appellant and Maddalena attended at the hotel on a number of occasions to view its operating procedures. The appellant told the employee that he would receive $15,000 to $20,000 for assisting them by supplying the information they required. The evidence of the planning for this offence was again obtained by use of electronic surveillance, telephone intercepts and the use of listening devices. The electronic surveillance reveals the manner in which the appellant sought to control the employee and the appellant's intent to pursue the armed robbery once the necessary weapons were acquired.

Count 7, conspiracy to commit burglary of the Bayswater Firearms Exchange

18 Between 17 August 2001 and 20 August 2001 the appellant agreed with Maddalena and Cooke to burgle the premises of the Bayswater Firearms Exchange to steal firearms, in particular shotguns, for use in the commission of further offences of armed robbery. The appellant and Maddalena carried out extensive surveillance of the premises, examining methods of entry and the security systems that were in place. The appellant and his co-conspirators collected equipment necessary to carry out the offence and, at the appellant's instigation, Cooke hired a pair of metal bolt cutters from a rental business. The surveillance of the appellant reveals that there were discussions as to how the alarm system would be deactivated. Material was seized after the arrest of the conspirators which showed that a method had been devised to disable the external alarm system by filling it with quick-expanding foam which, when sprayed into the alarm cavity, would set and render the alarm system inactive. A short-range transceiver was purchased to enable one of the conspirators to be on look-out outside the premises but in communication with those inside the premises. Other equipment was seized which demonstrated the extensive planning which the appellant and his co-conspirators had undertaken.

First proceeding

Ground 1

19 This ground raises the contention that the individual sentences, the orders for cumulation, the total resulting effective sentence and the non-parole period that was fixed are manifestly excessive and in breach of the principle of totality.

20 In his reasons for sentence the trial judge described the armed robberies as very serious offences which had been carried after considerable planning and preparation. His Honour made reference to the steps which the appellant had taken to conceal his identity by the use of disguises in committing these offences. The use of loaded firearms, threatened violence and tying up of hotel staff and security guards, and the fear and trauma which they suffered and from which they continue to suffer, were features of these offences to which the trial judge rightly gave particular emphasis. His Honour referred to the victim impact statements of those staff and security guards who were the subject of threatened violence during the course of these robberies. It had been submitted on the appellant's behalf on the plea that he was concerned about the distress which had been caused to the victims of these offences. The trial judge observed in the course of his reasons for sentence that when the appellant came to give evidence during the course of the plea he did not say anything about this matter.

21 The appellant in the course of his evidence gave an undertaking that he would testify against other accused allegedly involved in some of the offences to which he had pleaded guilty, in accordance with the statement that he had made to investigators. His Honour took into account the undertaking given by the appellant in accordance with s.5(2AB) of the Sentencing Act 1991, noting in his reasons that the undertaking given by the appellant would result in the imposition of a less severe sentence. His Honour observed that the appellant had agreed to answer a limited series of questions suggested by the Crown but had made clear in the course of his evidence that he would not assist the prosecuting authorities save in the confined manner recorded in his statement. The Crown conceded that the evidence that the appellant undertook to give would be of limited assistance to it. His Honour acknowledged that as a consequence of the appellant's willingness to co-operate there would be a risk to his safety to which the appellant would be exposed in the course of his imprisonment. His Honour took into account the assistance which the appellant was prepared to offer the Crown and the fact that his sentence would be more arduous because of his willingness to co-operate with the Crown.

22 The appellant's outline of submission was confined to the contention that the sentences of 5 years' imprisonment on the two counts of armed robbery were manifestly excessive because of the appellant's pleas of guilty, his willingness to co-operate with police and his undertaking to give evidence against a co-offender, which would expose him to the risks associated with the service of a gaol term by an informer and the hardship of serving a sentence in protection. These arguments were but faintly pressed in the course of oral argument, however.

23 Armed robbery is a particularly serious offence because of the impact of threatened violence upon its victims and because the use of a weapon carries with it the risk of serious injury or death. An armed robbery involving the use of loaded firearms at secured premises, with a likely presence of security guards, increases the risk of serious injury or death in the course of the commission of the offence. The armed robberies committed by the appellant fell into this category. These are, as this Court observed in R v Williscroft,[1] offences of such gravity that they call for a "condign sentence". The high maximum sentence for such an offence has been viewed as indicating that deterrence is a matter that should be given priority.[2] Armed robberies which are carefully and professionally planned and executed must be viewed as more deserving of exemplary punishment.[3]

24 The sentence imposed reflects the fact that, were it not for the appellant's plea of guilty and his willingness to co-operate with investigators, a substantially higher sentence would have been appropriate. There is no substance in the contention that the trial judge's sentencing discretion miscarried because the sentences were outside the range. The trial judge, after careful consideration of the circumstances relating to each offence, the personal circumstances of the appellant and his prospects for rehabilitation, imposed sentences which cannot be viewed as high or harsh. The appellant received relatively lenient treatment, as the penalties imposed are at the lower end of the range.

25 No argument was advanced with respect to the orders for cumulation, the resulting total effective sentence or the non-parole period. There is no identifiable error in the trial judge's sentencing discretion. Ground 1 is not made out.

Ground 2

26 This ground, which was confined to the two counts of armed robbery, raises the contention that the sentences imposed infringe the principle of parity among co-offenders.

27 The co-accused Maddalena was sentenced to 4 years' imprisonment on each count and 3 months of the sentence on count 2 was made cumulative upon the sentence imposed on count 1. The co-accused Cooke was sentenced to two years and six months on count 2. Although the outline of submissions made reference to the disparity between the sentences imposed upon Maddalena and Cooke and the appellant, the submission made on the appellant's behalf was confined to an examination of the difference between his sentence and that imposed on Cooke.

28 On the plea on behalf of the appellant, no issue was taken with the Crown's suggestion that the appellant should be viewed as in the business of committing armed robberies at the time of these offences. The Crown invited the learned trial judge to conclude that whilst the appellant and Maddalena were the principal offenders who had planned and prepared the commission of the armed robberies and had planned other robberies, the appellant should be viewed as having played a pivotal role and that such information as Maddalena obtained was reported by him to the appellant. On the pleas of Maddalena and Cooke, their counsel - with some, understandable, diffidence - similarly invited the trial judge to conclude that there were grounds upon which to distinguish the appellant's role from their own and that they should be treated more leniently. Having regard to the evidence of the role played by the appellant in each of the offences, and the electronic surveillance, it is not surprising that counsel for the appellant on the plea did not take issue with the submissions that his was a pivotal role and that he should be viewed differently to his co-accused.

29 The trial judge did not consider that there were sufficient similarities between the positions of either of the co-accused and the appellant for parity of sentencing to apply, although his Honour did not differentiate between them as to their respective roles. Maddalena was suffering from a hypomanic bipolar disorder at the time of his offending. His Honour considered that both general deterrence and personal deterrence should be moderated because of his serious mental illness. Maddalena was 25 at the time of these offences and had no prior convictions.

30 The co-accused Cooke, who was 32 years of age at the time of the armed robbery, was married to the appellant and had been in a relationship with him for some nine years. They have a child who is aged four years. Cooke had two children from prior relationships, one of whom also resided with Cooke and the appellant. Cooke had been raised in foster homes and had been subjected to sexual abuse by a foster father and her brothers. A report from a forensic psychologist showed that Cooke suffered from residual chronic symptoms of post-traumatic stress disorder related to her childhood history of sexual abuse. She had a dependent personality disorder which the trial judge found made her vulnerable to the risk of re-offending. The trial judge found Cooke had prospects for rehabilitation because of her maternal obligations. The trial judge found that Cooke had played a considerably less important role than that of the appellant or Maddalena in the commission of the offences in which she was involved. His Honour found there would be exceptional hardship to Cooke's children if she were imprisoned and for those reasons imposed a wholly suspended sentence upon Cooke.

31 Counsel who appeared for the appellant on the appeal conceded that there had to be some discrimination by the trial judge between the sentences imposed on the appellant and on Cooke respectively, but submitted that the differences in the sentences imposed could not be justified. Counsel relied upon the fact that Cooke had prior convictions for dishonesty and had been involved in two of the conspiracy counts. It was submitted that the appellant was also a significant carer for the children and that it was the imprisonment of both of them that would create the situation of hardship for the children.

32 There was a marked difference between the respective roles played by the appellant and Cooke in the commission of the offences. His Honour's careful assessment of the differing personal circumstances of each of them reveals no error in approach. The differences in sentence of the co-offenders could not be said to be "unjustifiable" in the sense discussed by Mason J in Lowe v R.[4] His Honour was justified in distinguishing between the appellant and Cooke in the manner in which he did and in imposing the sentences which he did. No error in his Honour's sentencing discretion has been established. Ground 2 is not made out.

33 The appeal against the sentence imposed in the first proceeding must therefore be dismissed.

The contempt proceeding

34 Five days after being sentenced in the first proceeding, the appellant - as he had undertaken to do - gave evidence in the trial of another co-accused. On 8 September 2004, following his testimony, the appellant was convicted of contempt of court and was sentenced to a term of six months' imprisonment. The learned trial judge ordered that three months of that sentence be served cumulatively upon the sentence he was then undergoing. As noted earlier, the trial judge purported to fix a new single non-parole period, pursuant to s. 14 of the Act, of five years and three months' imprisonment. Unfortunately, his Honour fell into error in fixing a new single non-parole period, and this in turn led to error when sentences were subsequently imposed in the second proceeding.

The second proceeding

35 On 12 July 2005, the appellant was arraigned on a presentment containing a count of attempted armed robbery on 2 August 2004, a count of possession of an unregistered long-arm on 2 August 2004 (count 2) and a count of theft of motor vehicle number plates between 4 July 2004 and 2 August 2004 (count 3). He pleaded not guilty to the count of attempted armed robbery and guilty to the other counts. On 14 July 2005 a verdict of not guilty by direction was entered with respect to the count of attempted armed robbery. On the following day the trial Judge heard a plea in mitigation of sentence in relation to counts 2 and 3.

36 The maximum penalty for possession of an unregistered long-arm was two years' imprisonment and the maximum penalty for theft was 10 years' imprisonment. These offences were committed whilst the appellant was on bail awaiting trial in relation to the counts the subject of the first proceeding. Section 16(3)(c) of the Act was therefore enlivened. On 22 July 2005, the trial judge sentenced the appellant to 18 months' imprisonment on each count. His Honour ordered 9 months of the sentence imposed on count 3 to be served cumulatively upon the sentence imposed on count 2, making a total effective sentence of two years and three months' imprisonment. It was ordered that one year and three months of that sentence be served cumulatively upon the sentence the appellant was then undergoing, arising from the first proceeding. Pursuant to s.14 of the Act, a new single non-parole period of five years and six months' imprisonment was ordered to commence on that day.

37 Before turning to the grounds of appeal, it is necessary to make some reference to the circumstances in which the appellant came to be in possession of an unregistered long-arm and stolen motor vehicle registration number plates.

38 The appellant, having pleaded guilty on 13 May 2004 to the counts the subject of the first proceeding, was released on bail pending a plea for leniency. On 4 or 5 July 2004 the registration number plates the subject of count 3 were stolen by the appellant from a motor vehicle. On 2 August 2004 the appellant was apprehended by members of the armed offender squad in the car park of the Taylors Lakes Hotel. He was driving a motor vehicle which bore the stolen number plates, he was heavily disguised and amongst the items in his possession was the unregistered longarm. It was a fully loaded sawn-off double barrel shotgun. It was admitted on the plea that he had possession of the longarm and the stolen number plates for the purpose of committing an armed robbery on a Chubb Security van (this was the subject of count 1, on which the appellant had been acquitted by direction). Before sentencing the appellant on counts 2 and 3, the trial judge referred to the circumstances in which those offences had been committed. His Honour observed that the appellant had been engaged for some time in considerable planning to commit an armed robbery of a Chubb security van, which delivered money for automatic teller machines and also picked up money from the Taylors Lakes Shopping Centre and the Taylors Lakes Hotel.

"Ground 1. The following aspects of the sentence are manifestly excessive and in breach of totality:

(a) the individual sentences, the order for cumulation, the resulting total effective sentence and the notional non-parole period;

(b) the order for cumulation of the total effective sentence upon the existing sentence and a new single non-parole period."

40 It was submitted on the appellant's behalf that the sentence of 18 months' imprisonment for possession of a firearm was manifestly excessive in view of the maximum penalty of 2 years for the offence, the appellant's plea of guilty and the circumstances in which the offence was committed. It is not in issue that the sentencing judge was entitled to take into account the circumstances in which the offence had been committed.[5] Counsel for the respondent submitted that, whilst the sentence imposed could be described as at the severe end of the spectrum, it was not manifestly excessive. Mr Boyce, who appeared for the appellant in this Court, submitted that such a sentence could only be justified if it were the worst type of case for such an offence. He submitted that, notwithstanding that the appellant had possession of a loaded shotgun in a public place and in the admitted circumstance that he was contemplating its use for the purpose of an armed robbery, a sentence of this order - being three quarters of the maximum sentence - was outside the permissible range. There is considerable force in this submission. While it is undesirable to postulate what might constitute the worst type of case for such an offence, possession of a loaded firearm with the intent to commit murder or inflict serious injury would plainly be a more serious type of case.

41 It was also submitted by the appellant that the sentence of 18 months' imprisonment for the theft of the number plates was manifestly excessive in light of the nature of the offence, the value of the property and the plea of guilty. It was submitted for the respondent that, when the offence is viewed within the context of a proposed armed robbery, the sentence was within the range open to the sentencing judge.

42 His Honour described the offences as of a most serious nature and considered it fortunate that more serious criminality had not occurred. He pointed to the potential for disaster and tragic consequences if the appellant had carried out the armed robbery and the police had intervened or the security guards had not co-operated. The sentencing judge was correct in taking these circumstances of aggravation into account, even if those matters might have formed the basis of a separate charge.[6] Nevertheless, allowing for the circumstances of aggravation and the fact that the offences were committed whilst the appellant was on bail, I consider that the learned judge placed undue weight upon the purpose for which these two offences were committed and too little weight upon the appellant's plea of guilty.

43 It was further submitted on the appellant's behalf that the cumulation of nine months of the sentence on count 3 was unjustified and manifestly excessive. The offences were connected and were part of the same course of conduct. A significantly larger degree of concurrency was called for between these offences. It was also submitted that the order for cumulation of one year and three months of that sentence upon the sentence imposed in the first proceeding resulted in too much cumulation and was manifestly excessive

44 In my view, Ground 1 should be upheld, as the sentences imposed on counts 2 and 3 were manifestly excessive. As the sentencing discretion miscarried, it falls to this Court to reconsider the sentences which should be imposed on counts 2 and 3, any orders for cumulation between them, and any cumulation upon the sentence which the appellant was already undergoing arising from the first proceeding.

45 There are further reasons why the sentencing discretion must be re-exercised. Ground 2 states:

"The learned sentencing judge erred in his approach to the fixing of the new single non-parole period and that in particular he erred:

(a) in fixing that period by reference to the non-parole period he would have fixed in respect of the sentence he had just imposed had the appellant not been serving an existing sentence;

(b) in concluding that such an approach was in accordance with s.14(1)(b) of the Sentencing Act 1991;

(c) in purporting to fix the new single non-parole period in respect of this sentence and the sentence of Judge Wodak on 3 and 8 September 2004."

46 The sentencing judge pronounced the following orders and gave the following reasons for his sentence in these terms:

"I order that 9 months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed upon count 2. That is an effective sentence of 2 years and 3 months. I order that 1 year and 3 months of that sentence be served cumulatively on the sentence you are presently undergoing. I indicate that a non-parole period of 1 year and 3 months would have been fixed in respect of that head sentence and state that in accordance with s.14(1)(b) of the Sentencing Act 1991. I therefore set a new single non-parole period in respect of this sentence and the sentence of Judge Wodak on 3 September 2004 of 5 years and 6 months commencing from this day." (Emphasis added)

47 Section 14 is in these terms.

"Fixing of new non-parole period in respect of multiple sentences

(1) If--

(a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and

(b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period--

the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete.

(2) The new single non-parole period fixed at the time of the imposition of the further sentence--

(a) supersedes any previous non-parole period that the offender is to serve or complete; and

(b) must not be such as to render the offender eligible to be released on parole earlier than would have been the case if the further sentence had not been imposed."

48 Counsel who appeared for the appellant in the second proceedings had incorrectly submitted that, if his Honour was to sentence the appellant to a term greater than 12 months for the two offences, his Honour should fix a minimum non-parole period for those offences and would then be required to set a new non-parole period for the sentences imposed in the first and second proceedings. His Honour appears to have accepted this submission, as his Honour in his reasons and orders indicated the minimum sentence that he would have imposed on counts 2 and 3.

Approach to fixing a new single non-parole period

49 Section 14(1)(b) requires the Court imposing the subsequent sentence of imprisonment to determine, first, whether or not "it proposes to fix a non-parole period in accordance with s.11." If the Court determines that a non-parole period is appropriate, the Court should not consider, or state, what the non-parole period would be with respect to the head sentence which the Court intends to impose. Instead, the Court must fix a new single non-parole period by reference to the total effective head sentence, being the combination of all sentences which the offender is required to serve and complete, including the sentence of imprisonment about to be imposed. The Court must have regard to the totality of the offending, including factors in aggravation or mitigation and factors personal to the offender which are relevant to the minimum sentence which should be imposed.[7]

50 Counsel for the appellant submitted that it was evident from the sentencing judge's reasons that he fixed a new single non-parole period by first deciding that he would have fixed a non-parole period of 1 year and 3 months on counts 2 and 3 and then effectively adding that period to the existing non-parole period as fixed in the first proceeding. The Crown did not, and could not, suggest otherwise. A strict calculation shows that his Honour added 1 year 1 month and 18 days to the non-parole period of the sentence being served. By adding effectively the same term of imprisonment to both the head sentence and the non-parole period, his Honour significantly altered the ratio between the head sentence and the non-parole period. His Honour's reasons and orders suggest that the non-parole period his Honour would have imposed on counts 2 and 3 improperly affected his determination of the new single non-parole period, as it was not fixed by reference to the total effective sentence having regard to the totality of offending. The sentencing discretion has therefore miscarried.[8] It will be necessary for this Court to re-exercise the sentencing discretion in relation to the new single non-parole period.

51 A further error in fixing the new single non-parole period arose because of the manner in which the appellant had been sentenced in the contempt proceedings. As noted earlier, the appellant had been sentenced to 6 months' imprisonment, of which three months was made cumulative with the sentence the appellant was already serving. That sentencing judge purported to fix a new single non-parole period pursuant to s.14. As has already been seen, s.14 is enlivened only where the offender is to be sentenced to a further term of imprisonment in respect of which the Court proposes to fix a non-parole period. A sentence of six months' imprisonment is not one in respect of which a non-parole period can be imposed: s.11(2) and (3). Accordingly, the judge in the contempt proceeding was neither required nor permitted to follow the procedure in s.14. I note that the question whether s.11 or s.14 of the Act can apply in cases of punishment for contempt remains open.[9]

52 The error of the judge who sentenced the appellant for contempt was not drawn to the attention of the sentencing judge in the second proceeding. Consequently, his Honour fixed the new single non-parole period on the erroneous basis that the previous non-parole period was that fixed at the conclusion of the contempt proceeding.

Re-sentencing from date of second proceeding

53 As there were errors in the approach adopted by the trial judge in the second proceeding, it falls to this Court to re-sentence the appellant in respect of those counts, and to take as the commencing date the date of the sentence under appeal. The Court's own order will, in accordance with R v Jennings[10] and R v Rich,[11] operate from the date of that sentence.

54 I would fix a term of imprisonment of 12 months in relation to count 2 and a term of imprisonment of 9 months in relation to count 3. I would order that three months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed upon count 2 making an effective sentence of 15 months. I would order that the term of imprisonment be served cumulatively upon the sentence of 6 years and 9 months that the appellant was already serving.

Calculating the new single non-parole period - order in which sentences to be served

55 As required by s. 14 of the Act, I would fix a new single non-parole period which is to commence from the date of the sentence in the second proceeding, namely 22 July 2005. In calculating the new single non-parole period, I have not taken into account the sentence of six months imposed in the contempt proceeding. Section 15(1)(a) of the Act provides that an offender must first serve any term of imprisonment in respect of which a non-parole period was not fixed, before serving the non-parole period of any sentence.

56 The three months of the contempt sentence made cumulative upon the sentence in the first proceeding had to be served before the non-parole period of the sentence in the first proceeding continued to run. That sentence was suspended by virtue of s.15(2) when the sentence for contempt was imposed. Thus, between 3 and 8 September 2004, the appellant was serving the sentence imposed in the first proceeding. On 8 September 2004, the appellant commenced to serve the term of imprisonment for contempt. On the expiration of that three months, the appellant recommenced serving the non-parole period of the first sentence.

57 This appeal illustrates the complexity of the sentencing task, and the care that is called for, when the Court is considering the operation of s.11 and s.15 of the Act in calculating a new single non-parole period pursuant to s.14 of the Act.

58 When a new single non-parole period is to be fixed to commence from the date that a new sentence is to be imposed, it is necessary to make an allowance for the non-parole period already served.

59 On the date of the second proceeding, (the date from which the new sentences are to be imposed), the appellant had served seven months and 14 days of the non-parole period relating to the first proceeding. I would therefore order that the appellant should serve a period of four years and 11 months from 22 July 2005 before he is eligible for parole. The appellant remains entitled to the period of 39 days pre-sentence detention in respect of which the sentencing judge made a declaration on 22 July 2005.

[1] [1975] VicRp 27; [1975] VR 292 at 302 per Adam, Starke and Crockett, JJ.

[2] Sentencing - State and Federal Law in Victoria - Fox & Frieberg, 2nd ed, para 12.501.

[3] Barci v Asling (1994) 76 A Crim R 103.

[4] [1984] HCA 46; (1984) 154 CLR 606 at 612-4.

[5] R v Heblos [2000] VSCA 229; (2000) 117 A Crim R 49; DPP v England [1999] VSCA 95; [1999] 2 VR 258.

[6] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 398-9 per Wilson, J.

[7] DPP v Ibrahimoff [2001] VSCA 46; (2001) 3 VR 66; R v Rich (No. 2) (2002) 4 VR 166; R v VZ [1998] VSCA 32; (1998) 7 VR 693.

[8] See approach in DPP v Ibrahimoff [2001] VSCA 46; (2001) 3 VR 66 at 67; R v Devries [2005] VSCA 95.

[9] R v Rich (2002) 4 VR 155 at [19] per Brooking, JA. with whom Winneke, P and Charles, JA agreed.

[10] [1998] VSCA 69; [1999] 1 VR 352.

[11] Supra at [167].