R v Jennings & Morgan [1998] VSC 334; [1998] VICSC 109

Errors in recording sentence in transcript and in endorsement on presentment and in quadruplicate - overtaken by re-sentencing.

For the Applicant (Jennings) Mr G. Mullaly Coulter Burke

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SC/SD VICTORIAN GOVERNMENT REPORTING SERVICE 9603 2404

BROOKING, J.A.: I concur in the judgment of Tadgell, J.A.

I certify that this page is a true copy of the reasons for judgment of Brooking, J.A. of the Court of Appeal (Brooking, Tadgell and Phillips, JJ.A.) of the Supreme Court of Victoria delivered on 2 June 1998.

TADGELL, J.A.: These are applications for leave to appeal against sentence. The applicants Andrew Paul Jennings and Darren James Morgan (who are aboriginal brothers) were brought before the County Court on two presentments. At the time of the offences Morgan was aged 26 and Jennings 25. They are now aged respectively 27 and 26 years.

The first presentment, 316A, contained five counts under the Crimes Act 1958. Count 1 was of aggravated burglary contrary to s.77, for which the maximum penalty was imprisonment for 15 years; count 2 was of intentionally causing injury, contrary to s.18, for which the maximum penalty was imprisonment for 7« years; count 3 (presumably an alternative to count 2) was of recklessly causing injury contrary to s.18, for which the maximum penalty was imprisonment for five years; count 4 was of making a threat to inflict serious injury, contrary to s.21, for which the maximum penalty was imprisonment for three years; and count 5 was of armed robbery, contrary to s.75A, for which the maximum penalty was imprisonment for 20 years. These offences were alleged to have been committed on 5 January 1997. On 19 November 1997 Morgan pleaded guilty to counts 1, 3, 4 and 5 and on 29 November 1997 Jennings was found guilty by a jury on those same counts. Both applicants were found not guilty on count 2, Morgan by direction. A third man, Joachim, was also charged with the five counts on this first presentment and was found not guilty on all counts.

The second presentment, 316B, contained six counts under the Crimes Act. Count 1 was of robbery, contrary to s.75, the maximum penalty for which was imprisonment for 12« years; count 2 was of intentionally causing injury; count 3 (again presumably an alternative to count 2) was of recklessly causing injury; count 4 was of making a threat to kill, contrary to s.20, the maximum penalty for which was imprisonment for five years; count 5 (against Morgan only) was of making a threat to assault with intent to resist or prevent lawful apprehension, contrary to s.31(1)(c), the maximum penalty for which was imprisonment for three years; and count 6 (against Jennings only) was of assault with intent to resist or prevent lawful apprehension, contrary to s.31(1)(c), the maximum penalty for which was also imprisonment for three years. These offences were alleged to have been committed on 6 January 1997. On 2 December 1997 Morgan pleaded guilty to counts 1, 3 and 5 and Jennings pleaded guilty to counts 1 and 6. There were directed verdicts of not guilty upon the counts of this presentment to which the applicants had not pleaded guilty. Accordingly, and by way of summary of what I have so far sought to relate, Morgan stood to be sentenced upon seven counts, namely counts 1, 3, 4 and 5 on presentment 316A and counts 1, 3 and 5 on presentment 316B; and Jennings stood to be sentenced upon six counts, namely counts 1, 3, 4 and 5 on presentment 316A and counts 1 and 6 on presentment 316B.

Jennings admitted 95 previous convictions from 15 court appearances from September 1987 to May 1994. Morgan admitted some of the previous convictions that had been averred against him and most of the remaining previous convictions averred were proved, amounting to 67 convictions from 13 court appearances from August 1987 to August 1995.

Following pleas for leniency the applicants were sentenced to imprisonment on 30 January 1998. Before referring to the details of the sentences, which are not altogether straightforward, it will be convenient to refer to the circumstances in which the offences were committed. The facts giving rise to the first presentment (316A) were these. The applicants entered a private house at 16 Gange Street, Mooroopna, on the evening of Sunday, 5 January 1997 with the intention of obtaining money or drugs or both. Jennings produced a knife with a serrated blade. In the hallway he threatened one of the occupants, Christine Hurd, holding the knife to the back of her neck, and forced her into her children's bedroom. Morgan followed. She was there pushed to her knees, threatened again by Jennings with the knife and kicked in the face by Morgan, falling on all fours. As a result of the blow to the face the victim suffered a laceration to her nose, causing intense pain, swelling and profuse bleeding. While in the bedroom Jennings threatened to slit her up the back with the knife while he stood over her with it, and asked: "Do you know what it feels like to be raped?" This was the subject of count 4 - the threat to inflict serious injury. The victim's young daughter was standing in the bedroom doorway crying. Jennings moved the child out of the bedroom and Morgan also left the room. The victim picked up a rug from the floor to stem the flow of blood and Jennings returned, grasping her hair. To the accompaniment of a vulgar threat, which I need not dignify by repeating it, he motioned with the knife as if to cut her hair. She pulled away from Jennings, at which point Morgan returned to the bedroom and shouted several times "Where's the money?", to which the victim responded that she did not have any. One of the applicants announced that he had a gun. Jennings picked her up by the shirt and pushed her into the lounge and on to a couch. He stood in front of her, with the knife in his hand, while Morgan said that they would go searching for money and take it. Morgan found the victim's purse and took out $100 in cash. She pleaded with them not to take her money because it was all she had. Jennings picked up a camera and placed it down the front of his shorts. The victim continued to plead with the applicants not to take her money or the camera. Shortly afterwards an aunt of the applicants, who lived next door, arrived and asked them to leave, and they did. Joachim, who had been standing outside the house, left with them.

The second presentment (316B) arose out of incidents in the early hours of the following day, 6 January 1997, after the applicants had left Christine Hurd's house. They came across one Kim Rajic, who was walking some time after midnight in a street in Mooroopna. The two applicants came towards him and asked for cigarettes. He responded by handing them cigarettes but, not satisfied with that, they asked for drugs and money. When he said he had none, they became aggressive towards him and foully abusive. Morgan pushed him hard in the chest, causing him to fall backwards. Jennings searched the victim's pockets, found his wallet and made off with it, but Morgan continued to scream abuse, ramming his elbow into the victim's neck and striking him with a clenched fist to the jaw. Morgan hit the victim again with a clenched fist to his face and left eye, and ran off, punching him in the back as he went. The victim reported the incident after reaching home and he later identified both of the applicants. As a result of the assaults the victim suffered a painful swollen eye for about a week, a painful swollen jaw and a strained neck. Later, while police were searching for the applicants and Joachim following the burglary, they saw the applicants walking down the street. They were arrested with difficulty in circumstances giving rise to counts 5 and 6 on presentment 316B.

The judge noted that the incidents generating the 11 counts were linked, in the sense that they occurred over a five to six hour period, and treated them as part of a single course of conduct. Both applicants were said to have been affected by alcohol and a hallucinogenic drug or drugs.

The sentences imposed on the applicants, as recorded in the transcript of the judge's sentencing remarks, were these -

On Presentment 316A (offences against Christine Hurd)

Count 5 24 months (12 months of 36 months (18 months of

Total effective sentence on Total effective sentence on

On Presentment 316B (offences against Rajic and police officers)

Count 1 24 months (12 months of 24 months (12 months of

Total effective sentence for Total effective sentence for

72 months (6 years) with a 84 months (7 years) with a

minimum term to be served minimum term to be served

of 4 years before eligibility of 5 years before eligibility

It is to be noted that the total effective sentence for Jennings announced by the judge in respect of presentment 316A is inconsistent with the sum of the individual sentences that the judge pronounced, which aggregated 90 months (7« years). Moreover, the associate's endorsement on presentment 316B records that on count 1 Jennings was sentenced to 24 months' imprisonment "cumulative with sentence imposed on presentment C9700316A". This purports to record that the whole of the sentence of 24 months be served cumulatively upon the sentence of 78 months imposed on the other presentment (making 102 months) yet the endorsement concludes by saying that the "effective State term imposed is 84 months' imprisonment of which five years' imprisonment to be served before being eligible for parole". We were told that the same error was made in the quadruplicate return. To add to the confusion, we were told also that the gaol calendar, signed by the associate on the day of sentencing, recites that 12 months (not 24 months) of the sentence on count 1 is to be served cumulatively, which would produce a total effective sentence of 90 months, which is consistent with one view of what the judge imposed but not consistent with the total effective sentence as announced by the judge. Finally, we were told that, while the transcript records Jennings's sentence upon count 4 of presentment 316A as one of 24 months, of which 12 months is to be served cumulatively, the original presentment (which is lost) and the quadruplicate return and the gaol calendar show the period of cumulation to be six months.

Morgan relies on three grounds of his application, namely -

"1. That the individual sentences and the total effective sentence were manifestly excessive in all the circumstances of the case.

2. That the learned sentencing Judge erred in making the orders for cumulation, in particular the orders for partial cumulation of the sentences for intentionally causing injury and armed robbery with the sentence for aggravated burglary, on the first presentment, and the order for partial cumulation of the sentence for recklessly causing injury with the sentence for robbery, on the second presentment.

3. That the learned sentencing Judge failed to give due weight to the circumstances of the accused's background."

The particularisation of cumulation contained in ground 2, or the purported description of it, is wrong, but I take it that Morgan complains of such cumulation as was ordered of the sentences imposed on each presentment.

Jennings relies on six grounds, substituted by leave of the Registrar of Criminal Appeals, namely -

"1. The Learned Sentencing Judge erred in that the sentences imposed on the Applicant did not sufficiently take into account the principle of parity.

2. The Learned Sentencing Judge erred in not sufficiently taking into account the fact that the Applicant had spent 390 days in custody prior to the sentences being imposed.

3. The Learned Sentencing Judge was led into error when failing to declare that any of the time the Applicant had spent in custody prior to the sentence was time to be reckoned as already served under the sentence pursuant to s.18(4) Sentencing Act 1991.

4. The Learned Sentencing Judge erred in that in making the orders for cumulation she did not take into account adequately or at all the principle of totality.

5. The Learned Sentencing Judge erred in imposing sentences that were manifestly excessive.

6. The Learned Sentencing Judge created uncertainty and ambiguity in the sentences imposed in that the 'total effective sentence' as announced differs from the proper calculation of the orders for cumulation and both differ from the annotations on the presentment. Such uncertainty and ambiguity ought be resolved in the favour of the Applicant."

The learned judge made an assessment of the seriousness of the offences committed against Hurd and Rajic with which it is difficult to disagree. Both victims suffered gratuitously violent and brazen physical attacks which outrageously infringed their rights to live peaceably as citizens of a rural community. The seriousness of the first was exacerbated by an invasion of the victim's dwelling-house while she was there with her three young children. Those to whom conduct of that kind is not naturally abhorrent are to be disabused, whether or not they have engaged in it or are minded to do so. The need for general deterrence, and for an expression of community denunciation, in sentencing for such offences looms large. The extent to which sentences passed on the perpetrators should reflect the principle of individual deterrence depends, no doubt, on the degree of criminality at which they are to be assessed. Here, the learned judge considered, with some care, the social difficulty and deprivation of the upbringing of the applicants stemming in particular from their aboriginal background.

It will be as well first to clear away the problem raised by the evident errors in the recorded pronouncement of the sentence imposed on Jennings. This is raised in ground 6 of Jennings's notice of application, along with which his grounds 2 and 3 may usefully be considered. In her report to this Court, made pursuant to R.2.27 of Chapter VI of the Rules of Court, the learned trial judge relevantly made the following observations -

"On examination of the transcript of the sentence an error is revealed in the recording of the sentence on count 4 on the 1st presentment which was not noted on revision. I have checked the Gaol Calendar and confirmed that it records the sentence accurately as six months as do my original notes. Thus the 84 months with 60 months minimum accurately reflects the sentence imposed and the transcript of the sentence on count 4 is incorrect so far as it records 12 months' imprisonment cumulating on count 4."

The judge's report does not refer to the errors in the endorsement on presentment 316B and on the quadruplicate return and the gaol calendar relative to that presentment to which I have referred. A question might have arisen whether the error to which the judge referred in her report, and those errors to which she did not refer, should be left for correction by the County Court: cf. R. v. Saxon (1997) 92 A.Crim.R. 188, at 191-5. We were referred to R. v. Bowman (Court of Appeal, unreported, 26 February 1998) in which Batt, J.A., at p.6, referring to Saxon, at pp.195-6, mentioned that counsel for the applicant in Bowman had "... suggested that the proposal there mentioned [scil. in Saxon] might be per incuriam because the sentence had passed into record, a suggestion which I find unnecessary to consider, even if it were open to this Court as presently constituted to do so". Counsel for the Crown before us also offered the observation that to countenance correction by the County Court of the errors of recording in the present case might be inconsistent with such authorities as R. v. Judge Frederico; ex parte the Attorney-General [1971] VicRp 51; [1971] V.R. 425. These reservations, if I may say so, appear to misapprehend the gist of what was said in Saxon so far as it is now relevant. In that case, as in this, the errors requiring correction (unlike the sentencing error in, for example, R. v. Judge Frederico) were merely of the recording of the sentence as pronounced, which was valid but incorrectly recorded. The judgment of the Court in Saxon referred, at 192, to the inherent jurisdiction of any court "... to correct a judgment or order made by it but which, owing to error, does not give effect to what the court intended by its pronouncement". Be all this as it may, counsel for the Crown conceded at the outset of the hearing before us that Jennings's ground 3 is valid: Jennings should receive credit against the sentence imposed on 30 January 1998 for part of the period he spent in custody extending back from that date to his arrest on 6 January 1997. The judge was not advised of this before sentencing Jennings and so failed to declare, conformably with s.18(4) of the Sentencing Act 1991, that part of the pre-sentence detention should be reckoned as already served under the sentence pronounced. This was an error which, as counsel for the Crown further conceded, could be corrected by this Court's re-sentencing Jennings. The applications of both Morgan and Jennings were argued on all sides upon the assumption that this Court would, at the least, re-sentence Jennings (even if it were to make no other order on his application) consistently with both the requirement of s.18(4) and the judge's intention as stated in her report that Jennings's head sentence should be seven years' imprisonment. All the recording errors will therefore be overtaken when, by virtue of this Court's re-sentencing of Jennings, the existing records will become obsolete or irrelevant with respect to him.

This disposes of grounds 2, 3 and 6 of the application by Jennings but I should explain why it is that Jennings is entitled to have had pre-sentence detention taken into account. He had been sentenced in the County Court on 25 November 1992 on nine counts (including four counts of armed robbery, one of recklessly causing serious injury and two of theft) to imprisonment for six years with a minimum term of three years. He had been granted parole, in respect of that sentence, on 30 June 1995. At the time of his arrest on 6 January 1997 he was, therefore, on parole. On 4 March 1997 Jennings had been sentenced to 44 days' imprisonment for a summary offence and, on 9 May 1997, the Parole Board cancelled his parole. Of the period of 123 days between his arrest on 6 January 1997 and the cancellation of his parole, 79 days (i.e. all but the 44 days which he served for the summary offence) were spent in custody in relation to the offences for which he was sentenced in January 1998. Those 79 days were accordingly to be reckoned as pre-sentence detention. The learned sentencing judge had apparently been told, or had been satisfied in discussion with counsel, (that part of the transcript was not before us) that no declaration of pre-sentence detention was called for because Jennings had been on parole when he had been arrested on 6 January 1997.

In the light of Jennings's parole, there was apparently some discussion between the judge and counsel, just before sentence was pronounced, about the incidence or effect of s.16(3B) of the Sentencing Act 1991. It was common ground that the relevant form of s.16(3B) was as it stood before the amendments brought about on 1 September 1997 by the Sentencing and Other Acts (Amendment) Act 1997, namely -

"Every term of imprisonment imposed on a person for a sexual offence or a violent offence committed while released under a parole order made in respect of a sentence imposed on him or her for a sexual offence or violent offence must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term."

That provision was potentially applicable to Jennings because he was being sentenced in January 1998 for an offence contrary to s.21 of the Crimes Act committed while he was on parole in respect of a sentence imposed in 1992 for another such offence: see the definition of "violent offence" in s.3(1) of the Sentencing Act. The learned judge said in her sentencing remarks -

"... taking into account the time that you have served, and the fact that in the context of totality of sentence, and the need not to crush you with any sentence that I impose, and the positive evidence that I heard in regard to your rehabilitation prospects, I propose to make a finding that there are exceptional circumstances in your case, which will not require me to totally cumulate any sentence."

The consequence of that finding was that the sentence imposed on Jennings on 30 January 1998 was not to be taken to commence after he had served the uncompleted sentence in respect of which he was on parole on 6 January 1997, his earliest release date for which sentence was said to be 8 May 2000. Rather, because of s.16(1) of the Sentencing Act, he stood to serve the uncompleted 1992 sentence concurrently with the 1998 sentence.

There was also considerable discussion in this Court about the incidence or effect of s.16(3B) given that we would be required to re-sentence Jennings. The matter was said to assume a degree of piquancy because the principle of parity requires Jennings's sentence not to be incongruent with that of Morgan, who was not on parole or serving a sentence at any relevant time. Section 16(3B), whether in its old terms or as it now stands, is capable of throwing up tantalising difficulties in its practical application, especially alongside the principle of totality and, perhaps, the principle of parity. Counsel for the applicant Jennings, and counsel for the Crown, proposed quite different solutions with a view to rendering the administration of s.16(3B) a practical proposition. In the circumstances of the present case, however, because the period of the uncompleted 1992 sentence that remained, and still remains, to be served was and is less than any sentence that Jennings is likely to serve under the sentence for the 1997 offences, it seems that s.16(3B) will have no practical effect on the time he will have to spend in custody. At the time of the hearing before this Court a period of just under two years of the uncompleted 1992 sentence remained to be served. If no direction were made under s.16(3B), that provision would require that the sentence of two years imposed in January 1998 on count 4 of the first presentment be served cumulatively upon the uncompleted 1992 sentence. The sentence of four years imposed in 1998 on count 1 of the first presentment would be served pro tanto concurrently with the uncompleted 1992 sentence: Sentencing Act, s.16(1). Therefore, the uncompleted sentence and the sentence on count 1 (and any other sentence to be served cumulatively upon the sentence on count 1) would require the applicant Jennings in any event to serve at least two years' imprisonment after the completion of the 1992 sentence. Any direction under s.16(3B) providing for some concurrency would therefore seem to be futile, as counsel for Jennings ultimately acknowledged. Because it is unnecessary in this case to do so, it is as well not to expand upon the difficulties of application of s.16(3B). I offer the comment, however, that it is unfortunate that such a provision exists to add another anxiety to the already formidable sentencing task. Sentencing judges may very well find the provision so impracticable to deal with that they will be disposed to find exceptional circumstances constituted by sheer impracticalities.

Before considering the other grounds of Jennings's application it will be convenient to deal with the application of Morgan. I shall begin with his ground 2, which raises the matter of cumulation, a matter also raised by Jennings in his ground 4.

As regards cumulation of sentences for the offences against Christine Hurd, the chief submission for Morgan was that the sentence of three years' imprisonment on count 1 (aggravated burglary) was a sufficient sentence to cover also count 5 (armed robbery). It was submitted that the Crown should more appropriately have charged a single count of armed robbery to cover the conduct embraced by counts 1 and 5. Alternatively, it was submitted that a plea of guilty to count 5 should have resulted in the withdrawal of count 1. It was further submitted that, faced with the task of sentencing upon those two counts, the judge ought to have treated the armed robbery count as the principal one, for which a sentence of three years' imprisonment would have been appropriate; and that in any event the sentences imposed upon counts 1 and 5 should have been made concurrent. Counsel for Morgan ultimately conceded that a measure of cumulation was not inappropriate for the sentence on count 3 (recklessly causing injury), but contended that all the sentences on the second presentment should have been made concurrent with each other and with the total sentence on the first presentment. Proper application of the principle of totality, as it was submitted, should have produced an appropriate sentence overall of imprisonment for three and a-half years.

We were referred by counsel to R. v. Glaister (Court of Appeal, unreported, 21 February 1997) in support of the conclusion that total concurrency should have been ordered of the sentences on counts 1 and 5 of the first presentment. In Glaister the applicant had pleaded guilty to one count of trafficking in a drug of dependence (count 1) and to one count of possessing the same drug (count 2). He was sentenced to imprisonment on each count and the sentencing judge directed that part of the sentence on count 2 be served cumulatively upon the sentence on count 1. The facts as found were that the possession was for the purpose of trafficking and, as Winneke, P. put it at p.10, "... both convictions derive from the same set of facts". In other words, "... the possession arose solely as a consequence of the trafficking alleged in count 1": ibid. In the circumstances this Court held, upon an application for leave to appeal against sentence, that any cumulation of the sentence on count 2 was unfair to the applicant. Re-sentencing ordered total concurrency. The Court referred to and relied for that conclusion on R. v. Weeding [1959] VicRp 50; [1959] V.R. 298, Falkner v. Barba [1971] VicRp 39; [1971] V.R. 332, Reardon v. Baker [1987] VicRp 65; [1987] V.R. 807 and R. v. Burr, C.C.A., unreported, 6 April 1989. In the last of these Crockett, J., at p.3, speaking for the Court, had treated Weeding as authorising a judge to decline to take a verdict on a second or subsequent count after the jury had convicted on the first count when "... the need for fairness to the accused required that he should not be convicted on the same facts in respect of two separate offences".

Another basis for the same conclusion might be provided by s.51(1) of the Interpretation of Legislation Act 1984, which provides that -

"Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission."

This provision was not referred to in Glaister but it received much attention in R. v. Sessions, Court of Appeal, unreported, 3 July 1997. In Sessions the applicant had committed a violent digital rape upon an eight-months old baby, producing her partial evisceration. He was charged not only with one count of rape but with one count of recklessly causing serious injury, and pleaded guilty to both counts. Notwithstanding the plea of guilty, the applicant ultimately sought leave to appeal against the conviction on the second count upon the ground, in effect, that the acceptance of the plea of guilty to, and the conviction on, the second count brought about a miscarriage of justice. The application was successful and the conviction on the second count was quashed. Central to the Court's conclusion was the circumstance that the applicant had relevantly committed only a single act - that of very forcibly inserting a finger, during a spasm of annoyance or irritation, into the body of the victim. Hence, as Hayne, J.A. put it at p.15 -

"No doubt ... the offences charged require proof of different intentions. But in this case, precisely the same physical acts are relied on and, had the applicant pleaded not guilty, the evidence at his trial would have been identical whether he had been charged with either or both of the offences concerned."

Although Hayne, J.A. (with whom Batt, J.A. agreed) devoted considerable attention to s.51(1) of the Interpretation of Legislation Act, he does not appear to have relied heavily upon it for his conclusion that a conviction on count 2 should not have been recorded. Eames, A.J.A., on the other hand, concluded, at p.12, that -

"It was not ... possible for the Crown to have sought a conviction on both counts. To have sought a conviction on both counts must have constituted seeking punishment twice for 'the same act or omission', contrary to s.51 of the Interpretation of Legislation Act 1984."

This conclusion relies in part for its validity on his Honour's recognition (along with Hayne, J.A.) that a conviction for an offence is by itself a punishment for it.

It was not contended before us that there could not properly have been convictions on both counts 1 and 5 on the first presentment. Nor could it have been so contended, for no application was made here for leave to appeal against conviction. Much of the reasoning to be found in the judgments in Sessions might nevertheless have been marshalled in support of an attack upon any cumulation of the sentences on counts 1 and 5 had the present case been truly one of double punishment for a single act. Plainly, however, this is not such a case. Both Sessions and Glaister, therefore, are distinguishable. It is not difficult to envisage the commission of a series of acts in combination which, while constituting the crimes of both burglary and robbery (or both aggravated burglary and armed robbery) would not justify a presentment for both crimes. Where, however, in an appropriate case the Crown desires to afford proper flexibility to a sentencing judge it is not to be discouraged from framing a presentment to charge discretely both of the offences: cf. R. v. Newman and Turnbull [1997] 1 V.R. 146, at 151. Although the charging of counts of aggravated burglary and armed robbery arising out of a single incident may not be routine, it is not especially unusual: R. v. Cummins [1991] VicRp 4; [1991] V.R. 44 provides an example. I do not think that the Crown can be criticised in this case for charging counts 1 and 5 together on presentment 316A. Nor, in my opinion, did the judge err in accepting a plea of guilty upon each of those counts and fixing some cumulation for the sentences upon them. The offence of burglary (whether aggravated or not) is rooted in the intention of a trespasser to commit an ulterior offence rather than in the actual commission of it. If the intended ulterior offence is charged and its commission proved, resulting in a conviction, it may often be appropriate to order that the sentence for it be served concurrently with the sentence for the burglary, depending on the nature and gravity of the other offence and the penalty awardable for it. Conversely, the circumstances may render total concurrency inappropriate - e.g. where the ulterior offence committed is a serious assault or a rape.

Notoriously, the real vice of a burglary in a dwelling house is or may be "the disturbance of the domestic quiet and repose of the victims" (R. v. Yates C.C.A., 12 February 1982) and the unwarrantable invasion of what should be their sanctuary (R. v. Howe, C.C.A., 6 September 1988). In this case the intent charged in count 1 of presentment 316A was an intent to steal in the building at 16 Gange Street. The judge was entitled, however, to regard the ambit of the disturbance caused by the burglary as extending beyond Christine Hurd, a potential victim of the intended theft and the actual victim of the assault, the threat to inflict serious injury and the armed robbery. It was open to the judge to take into account the others who lived in the house, including the three children (notably the small girl who was obviously distressed by the applicants' conduct in her bedroom towards her mother) and Ms Hurd's partner, even though he happened to be absent at the time. Clearly, in my opinion, those kinds of consideration - and there may very well have been others that validly commended themselves to the judge - justified a measure of cumulation of the sentences on counts 1 and 5.

It is a fair comment that the learned sentencing judge might appropriately have selected count 5 as providing for the principal sentence, and might have directed that any cumulation of other sentences should be upon that sentence. Paramount among the judge's tasks, however, was to tailor the sentences with a view to producing a fair reflection of the overall criminality of the offenders. The sentence on the first presentment was high, but so was the seriousness of the applicants' concerted conduct at the Gange Street house.

As regards the second presentment, the individual sentences imposed on Morgan for counts 1, 3 and 5 were not themselves the subject of complaint. It was the cumulation of 18 months that was said to be undeserved. I consider that a measure of cumulation was warranted. The circumstances that the whole escapade occurred over a five to six hour period and that the incidents might be seen as part of a single course of conduct, as the judge noted, did not, in my opinion, earn an exemption from additional incarceration for the offences covered by the second presentment. R. v. O'Rourke [1997] 1 V.R. 246 was cited as authorising concurrency but in the circumstances I think it affords no support for the contention. It appears to me, if anything, to go the other way. It is true that the Court in O'Rourke, at 253, cautioned against the imposition of cumulative sentences which are crushing or offend against the principle of totality. Here, however, the offences committed in the street are to be seen as positively adding to the total criminality of the applicants' conduct rather than merging blandly into the texture of the night's adventure.

Ground 3 of Morgan's application may be treated as providing some particulars of ground 1. Counsel referred us to a number of matters personal to the applicant. These included his drug and alcohol abuse from an early age; a very limited education; a low level of mental development; the difficulties that have stemmed from an aboriginal background; Morgan's comparative role in the offences; his age and his plea of guilty demonstrating remorse. Counsel did not much elaborate orally upon these matters. I have, however, considered them all as, I believe, did the learned judge. Taking them all into account, I see no reason to treat the sentence of six years as beyond the range of that which was open to the judge to impose on Morgan. Having regard to his extensive criminal record, the mitigating factors placed before the judge were in my opinion given liberal weight.

I return to Jennings's application, of which it remains to deal with grounds 1, 4 and 5. Ground 1 was used as a vehicle to argue that, in the particular circumstances, the disparity between Jennings's sentence of seven years' imprisonment with a minimum term of five years and Morgan's sentence of six years with a minimum term of four years was sufficient to warrant appellate intervention. It was not submitted that the disparity of 12 months was by itself enough to give rise to a justifiable grievance. Rather, it was said that, when account was taken of all the mitigating circumstances in favour of Jennings and the disparity between the time he would have to spend in prison compared with the time Morgan would have to spend there, Jennings was entitled to feel aggrieved. Dealing with the second of these considerations counsel pointed out that, because the judge gave Morgan credit for 390 days pre-sentence detention and gave Jennings credit for none, Jennings's period in custody was extended by five years from the date of sentence whereas Morgan's was extended by only two years and eleven months. While the 79 days of pre-sentence detention for which credit is now to be given will narrow the disparity to that extent, counsel submitted that the gap remains unwarrantable.

In support of the submission counsel relied on Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295, especially at 303-4, per Dawson and Gaudron, JJ. The passages relied on were said to prescribe or illustrate a principle that, in assessing the sentence of one co-offender relative or proportionate to that of another, it is necessary to take into account the actual time that each must spend in prison. It is true that, having regard to the circumstances of the case, Dawson and Gaudron, JJ. did conclude that it was appropriate to compare the added time which the appellant would spend in custody with that which his co-offender would spend, and that their Honours found an unwarrantable discrepancy. Kirby, J. agreed with them but McHugh and Gummow, JJ. did not. The case depended very much on its own facts and upon an appreciation of them, and I cannot extract from it a principle of the kind which counsel here seeks to attribute to it. Postiglione and his co-offender, Savvas, had conspired to commit a series of drug offences while they were both in prison serving sentences for previous drug offences. Postiglione was serving a term of 12 years and Savvas 25 years. Postiglione, who pleaded guilty to the later offences committed in prison, received a sentence for them of 18 years' imprisonment with a non-parole period which, by reason of concurrency, had the effect of extending his incarceration by 12 years and two months; whereas Savvas, who pleaded not guilty, was later sentenced to a further term of 25 years with a non-parole period which, by reason of concurrency, had the effect of extending his incarceration by five years and ten months. Dawson and Gaudron, JJ. observed, at 303, that -

"In the circumstances of this case, the real punishment for both Savvas and Postiglione is the extra period which they must spend in prison. Due proportion cannot be determined without taking it into account.

The sentences imposed on Savvas and Postiglione were set having regard to the prior sentences which each was serving. In both cases, the sentences operated, for all practical purposes, to bring the earlier sentences to an end. ... [Postiglione's] criminal history and his criminality in respect of the conspiracies for which he received the sentence in issue in this appeal may properly be compared with the same matters as they pertain to Savvas. In these circumstances, the proper course, in our view, is to have regard to the total effect of the sentences imposed on them, not merely the period by which their prior sentences were increased.

The aggregate of the sentences imposed on Savvas is fifty years. Putting aside the question of parole, his sentence for the conspiracies to which he and Postiglione were parties operates so that he will spend a total of thirty years and ten months in prison. Or to put the matter another way, the total time he will spend in prison amounts to a little more than three-fifths of the aggregate of his sentences. Postiglione, on the other hand, was serving a sentence of twelve years and received a further sentence of eighteen years. Again leaving aside the possibility of parole, the consequence is that he will spend twenty-four years and two months in prison, or just over four-fifths of the aggregate of his sentences."

The discrepancy between three-fifths and four-fifths, so described, was thought by Dawson and Gaudron, JJ. to be undue. It would appear that because, at the times of their second sentences, Savvas had longer to serve than Postiglione, the principle of concurrency operated, proportionately, more to his advantage than it did to that of Postiglione. Their Honours considered that Postiglione should spend in the order of two-thirds of the total period which Savvas, the principal conspirator, was liable to serve. McHugh, J., on the other hand, at 312, considered that -

"... the disparity between the sentences imposed on the appellant and Savvas is justifiable because of the different custodial situations of the appellant and Savvas as at the dates of sentencing and because of the application of the totality principle."

"Parity between sentences imposed on co-offenders is an important sentencing goal. But a disparity between sentences will not give rise to a 'justifiable sense of grievance' where the disparity can be explained on the basis of different antecedents and/or an application of the totality principle."

Gummow, J., at 326, expressed a view similar to that of McHugh, J. -

"A disparity was bound to appear in some measure of the severity of the particular sentences because of the different custodial histories of the appellant and Savvas. However, the difference between the sentences of the appellant and Savvas did not require [appellate intervention] on the basis of the principle outlined in [Lowe v. The Queen (1984) 154 C.L.R. 465]."

Kirby, J., at 342 recognised that his decision involved no new principle. He regarded the disparity between the sentences imposed on Postiglione and Savvas as partly explained by the prisoners' differing criminal histories but appeared to regard that consideration as outweighed by the criminality of the conduct of Savvas. His Honour noted, at 343, that -

"... differing antecedents do not render a consideration of the comparative criminality of the co-offenders irrelevant when an appellate court assesses the effective increase in their respective custodial sentences. The parity principle between co-offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to one offender."

The case of Postiglione is in my opinion readily distinguishable from this. Notably, Jennings's co-offender, unlike Postiglione's, had no prior sentence which was (as Dawson and Gaudron, JJ. put it) "for all practical purposes to be brought to an end". Jennings will receive the benefit of serving his uncompleted 1992 sentence concurrently with his 1998 sentence. As Dawson and Gummow, JJ. observed in Postiglione, at 402, "... it is necessary, when applying the parity principle, that like be compared with like". It is scarcely possible to regard the co-offenders in the present case as falling for sentence on a footing that was even approximately equal having regard to Jennings's more recent criminal history. As Gibbs, C.J. pointed out in Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606, at 609 -

"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."

Logic does not support a conclusion that Jennings might legitimately expect a reduction of his sentence by reference to the principle of parity because his co-offender, who had no uncompleted sentence, will be released earlier than Jennings, who had an uncompleted sentence. As was pointed out during argument, such an application of the principle would carry the danger of reducing it to absurdity: if Jennings's sentence were reduced on that footing Morgan might legitimately complain that he, having had no outstanding sentence, would be proportionately disadvantaged and entitled to seek a reduction of his sentence; and so on.

Jennings and Morgan were dealt with equally in respect of the second presentment. In respect of the first presentment the differences in their circumstances were such as amply to justify the differences in their sentences for which the judge provided. The unavailability to Jennings of any credit for pleas of guilty or any other evidence of remorse might, by itself, have justified the differences in their sentences. In this connection it is to be noted that, even after his conviction, Jennings did not acknowledge his criminal liability, let alone any regret for it. Apart from that, Jennings was the one who carried the knife and used it against Ms Hurd, and it was he who actually made the threat that supported count 4.

Counsel referred to a number of matters personal to Jennings which it was said, by comparison with Morgan, should have entitled him to a sentence closer to that which Morgan received. These included, particularly, his better prospects for rehabilitation, his supposedly less pronounced addiction to drugs than that of Morgan and his more stable personal circumstances, including an established de facto relationship which has produced a child of which he is very fond. These factors may be acknowledged, but the judge took them into account; and it should be said that she specifically gave credit for them when making the finding favourable to Jennings for the purpose of s.16(3B). I am unable to say that sufficient weight was not given to these or any other mitigating circumstances personal to Jennings that were placed before the judge for her consideration. On the contrary, I should say that the extension of Jennings's sentence by 12 months over that of Morgan was, in all the circumstances, relatively modest. I would reject ground 1 of Jenning's application.

As to ground 4, it is sufficient to refer to what I have said in connection with Morgan's application about cumulation. This ground should also fail.

As to ground 5, very little was urged on Jennings's behalf that had not been the subject of submissions in support of ground 1, save that it was said that the sentence was beyond the permissible range. I am unpersuaded that it was. This ground, too, should in my opinion fail.

In the result, the application by Jennings should be granted only for the limited purpose I have mentioned. I propose that the judgment of the Court should be in accordance with the following minutes -

1. Application for leave to appeal against sentence granted.

2. Appeal treated as instituted and heard instanter and allowed.

4. Order that the applicant be re-sentenced as follows -

That the applicant be sentenced to be imprisoned on count 1 for 48 months and on count 3 for 24 months and on count 4 for 24 months and on count 5 for 36 months. Direct that six months of the sentence on count 4 and 18 months of the sentence on count 5 be served cumulatively on each other and on the sentence on count 1.

That the applicant be sentenced to be imprisoned on count 1 for 24 months and on count 6 for six months. Direct that 12 months of the sentence on count 1 be served cumulatively upon the cumulated sentences aggregating six years on presentment C9700316A.

The total term of imprisonment upon presentments numbered C9700316A and C9700316B is seven years. Direct that the applicant serve five years' imprisonment before becoming eligible to be released on parole. Declare that [79] days of the sentence have been served and direct that this declaration be noted in the records of the Court.

Application for leave to appeal against sentence refused.

I certify that this and the preceding 24 pages are a true copy of the reasons for judgment of Tadgell, J.A. of the Court of Appeal (Brooking, Tadgell and Phillips, JJ.A.) of the Supreme Court of Victoria delivered on 2 June 1998.

PHILLIPS, J.A.: I, too, concur in the judgment of Tadgell, J.A.

I certify that this page is a true copy of the reasons for judgment of Phillips, J.A. of the Court of Appeal (Brooking, Tadgell and Phillips, JJ.A.) of the Supreme Court of Victoria delivered on 2 June 1998.