Criminal law - Appeal against sentence - Indecent assault and false imprisonment - Manifestly excessive - effect of accumulating sentence with earlier sentence for similar offences during a common time frame - Principle of totality - Aggregation of sentences inappropriate - Application granted and appeal allowed.

Public Prosecutions

Counsel for the Applicant Ms C. Osborne

Solicitors for the Applicant Legal Aid Commission of Victoria

WINNEKE P On 10th February of this year the applicant pleaded guilty before his Honour Judge F.B. Lewis in the County Court at Melbourne to one count of indecent assault of a twelve-year-old boy and one count of false imprisonment of the same boy. These offences occurred in late 1979 or early 1980 when the applicant was 19 years of age.

2. On 22nd February 1995 the applicant was sentenced as follows: on Count 1 (that is, the count of indecent assault) twelve months' imprisonment and on Count 2 (which is the count of false imprisonment) he was sentenced to two years, imprisonment, and it was directed that six months of that term be served concurrently with the term given on Count 1. That meant that there was a total of two-and-a-half years, imprisonment imposed for the two counts. His Honour ordered that the sentence imposed be served cumulatively with the sentence of imprisonment which the applicant was already serving and which had been imposed upon him one year earlier.

3. On 23rd February 1994 the applicant had been sentenced to five-and-a-half years' imprisonment for a series of sexual assaults on four young children, which assaults had also occurred during the years 1979 to 1981. He was on that occasion ordered to serve a period of four-and-a-half years before being eligible for parole. His Honour Judge Lewis was, therefore, sentencing the applicant against the background of the previous sentences and for an assault which appears to have formed one of a number of similar sexual assaults on young children during a common timeframe.

4. Because his Honour ordered that the sentence which he imposed be served cumulatively with the sentence currently being served, he fixed, as he was obliged to do under s.14 of the Sentencing Act, a new non-parole period, which he fixed at six-and-a-half years, such period to commence at the time of the earlier sentence, i.e. 23rd February 1994. Thus the effect of his Honour's sentence for the two relevant offences has been to add two-and-a-half years to the head sentence to be served, making a total of eight years, and two years to the non-parole period.

5. It is against the exercise of that sentencing discretion that the applicant has sought leave to appeal on the ground that the sentence is manifestly excessive.

6. The circumstances of the offences with which the sentencing judge had to deal were undoubtedly disgusting and reflect no credit upon the applicant. Although he was only 19, he lured a twelve-year-old boy into his house, detained him there against his will and forced him to masturbate the applicant, and threatened the boy with dire consequences should he disclose to others. These actions have obviously had a profound effect upon the victim.

7. Ms Osborne, on behalf of the applicant, has argued that the sentencing judge has erred in the exercise of his sentencing discretion because, by accumulating his sentence with the sentence currently being served, the sentencing judge failed to adequately take account of the totality or aggregated effect of the sentence, which was, it was submitted, incommensurate with the gravity of the whole of the prisoners criminal conduct. This, she said, offended against the principle of totality as applied, firstly, in the case of R. V. Millen (1980) 2 A Crim R 357 and also applied by the High Court in Mill v. The Queen (1988) 166 CLR 59.

8. It was further submitted by Ms Osborne that the manifest unjustness of the sentence was made more apparent by reference to the uncontested features of the material which was before the sentencing judge. Firstly, she submitted that the range of offences had occurred within a time span over some two years but more than thirteen years ago, and that since then the applicant had settled down, had married, had had children and had secured a good job. In essence, it was submitted, the past history had shown both a desire and a capacity to rehabilitate.

9. Ms Osborne referred to material that was before the sentencing judge in the report of a psychiatrist, Lester Walton, which stated:

"Despite the nature of the alleged offences, I am satisfied that

this man is not properly described as a paedophile, his primary

preferred sexual interest being that of a normal heterosexual.

At the time of the alleged offences Mr Openshaw was 18 years of

age. He remained a somewhat confused individual at that stage

and in particular he was relatively sexually ignorant. The

alleged offending represents a somewhat excessive and socially

inappropriate expression of normal adolescent sexual curiosity

and fortunately has not been reflected in ongoing interest in

children sexually, his being able to enter and sustain an

uncomplicated marriage and sexual relationship subsequently."

10. Ms Osborne on behalf of the applicant endorsed those remarks and put them forward as an indication that this aberrant behaviour of the applicant some thirteen years ago has ceased, and that the long period of time since has indicated an ongoing period of rehabilitation.

11. She also relied upon the fact that in 1976 the father of the applicant, to whom he apparently was strongly attached, had had a very bad accident and that that appeared to be related, at least in point of time, to this period of aberrant sexual behaviour. She finally submitted that his Honour should have reflected all of these matters by using his flexibility of sentencing powers and, in particular, using the concurrency powers to ensure that the total head sentences emanating from this period of some two years ought not to be crushing.

12. On behalf of the Crown, Mr Just frankly conceded that the judge was obliged to have regard to the principle of totality, but, he said, the structure of the sentence had indicated that his Honour had indeed had regard to that principle. He also argued that the combination of s.5A and s.16(3)A of the Sentencing Act justified his Honour in accumulating the sentence that he imposed with the sentences that had been imposed a year previously.

13. Section 5A, as Mr Just pointed out, required his Honour to regard the applicant as a serious sexual offender and to place at the priority of the sentencing discretion the protection of the community, although, once again, he conceded that in the circumstances of this case those requirements had lost emphasis having regard to the period of time that has elapsed.

14. Notwithstanding the clear and able arguments addressed to us by the learned prosecutor, I find myself in agreement with counsel for the applicant that the accumulation of the sentences imposed by his Honour upon those sentences that had been imposed a year earlier resulted ultimately in an aggregation of sentences which was wholly inappropriate to the total criminal conduct of the applicant. I am not persuaded, as the Crown has argued, that the rather oblique statement made by his Honour at the conclusion of his sentencing remarks, that he "must not impose a sentence which could be crushing in all the circumstances", can be interpreted in a way which indicated that his Honour had in mind the principle of totality - a recognised sentencing principle.

15. It is my view that his Honour, in accumulating his sentence on top of those already being served by the prisoner, has failed to consider the total effect of the sentences imposed and has thus erred in the exercise of his sentencing discretion. In any event, I am satisfied that the sentence, when considered in totality with the others, is manifestly excessive.

16. In the result, I would be prepared to grant the application and to allow the appeal. I would propose that the head sentences imposed by his Honour remain but that twelve months of the two-and-a-half years total sentence ordered by his Honour be served concurrently with the sentence of five-and-a-half years currently being served. That would leave a total sentence of seven years, and, in accordance with s.14 of the Sentencing Act, I would fix a non-parole period of five years, such period to commence as from 23rd February 1994.

17. The order of the Court is that the application for leave to appeal will be granted. The appeal will be treated as being heard instanter. In lieu of the orders of the trial judge, it will be ordered that twelve months of the sentence imposed by his Honour Judge Lewis (i.e. two-and-a-half years) be served concurrently with the sentence of five-and-a-half years currently being served by the applicant. We fix a non-parole period of five years, such non-parole period to commence as from 23rd February 1994.