R v McIntosh [2005] VSCA 106

1 I will ask Chernov, J.A. to deliver the first judgment in this matter.

2 The appellant, Christopher Gerard McIntosh, who is now aged 37 years, pleaded guilty on 20 November 2003 in the Supreme Court at Melbourne to two counts of attempted murder (counts 1 and 2) and one count of armed robbery (count 3). The maximum penalty for each offence is 25 years' imprisonment. The appellant admitted six prior convictions from two court appearances on 30 November 1987 and 3 September 1999. Relevantly, on 3 September 1999, the appellant was sentenced to five years' imprisonment with a non-parole period for three years for manslaughter, to which he had pleaded guilty, and three counts of theft. He was on parole for those offences at the time he committed those which are the subject of this appeal. After hearing a plea in mitigation made on the appellant's behalf, the learned sentencing judge on 16 March 2004 sentenced him to 18 years' imprisonment on each of counts 1 and 2 and eight years' imprisonment on count 3. His Honour ordered that six years of the sentence imposed on count 2 be served cumulatively with the sentence imposed on count 1, thereby imposing a total effective sentence of 24 years' imprisonment. His Honour also ordered that the appellant serve a minimum of 20 years' imprisonment before becoming eligible for parole. On 26 March 2004, the appellant filed a notice of application for leave to appeal against sentence and on 10 September 2004 he was granted such leave by a single judge of this Court pursuant to s.582 of the Crimes Act 1958.

3 The offences were committed on 21 August 2002 at a store called "Eagle Leather" in Abbotsford, which specialises in the sale of latex and leather bondage and fetish clothing and accessories. The business also sells sexual aids and pornographic videotapes. The two victims of the attempted murder counts were employees of that business. The victim of count 1 was David Oakley, who was then aged 33 years. The victim of count 2 was William Browning, who was then aged 50 years. As I have said, at the time the offences were committed, the appellant was on parole in respect of a sentence for manslaughter and other offences that had been imposed on 3 September 1999. From his early teenage years the appellant had taken part in bondage and sadomasochistic practices. On 20 May 1998, he was engaging in consensual erotic sadomasochistic activity with another man, who was asphyxiated by a rope which the appellant had tightened around his neck. The appellant pleaded guilty to manslaughter of the deceased and was sentenced as I have indicated. The appellant was released on parole on 21 July 2001 and, notwithstanding his remorse for what occurred in 1998, continued his sadomasochistic practices and was a regular customer at Eagle Leather.

4 On the day in question, the appellant entered the store shortly after midday carrying a large bag in which he had secreted a knife with a large blade. Mr Browning recognised him as a regular customer of the store. Mr Oakley had not previously met him. The appellant spent approximately an hour or so in the store, browsing and, at one stage, watching a pornographic video. He left for a short period, but returned at approximately 2 p.m. and selected a few items in the shop. He then approached the counter, giving the appearance that he wished to purchase the items. At this point, there were no other customers in the store and both victims were standing at the counter. The appellant pulled the knife from his bag and held it out at face level, yelling at the two victims to step away from the counter. He handed Mr Browning a length of black rope, which he had taken from the store, and instructed him to tie Mr Oakley's hands behind his back. After he had done so, the appellant, using another piece of rope taken from the store, tied Mr Browning's hands together and directed both victims towards the back of the shop where they would be out of sight of people in the street. He instructed the two men to lie face down on the ground and tied their ankles with more rope from the shop. The appellant then locked the front door of the premises, disabled the store intercom and security cameras before stealing $982 from the till and a nearby cash tin. He also took numerous items from locked display cabinets that he opened using the shop keys. After placing in his bag the stolen items and money - the total value of which was in the order of $15,000 - the appellant demanded of Mr Oakley information as to where the keys were to the back door of the premises. Mr Oakley offered to show him where those keys were, whereupon he was taken to the shop storeroom and again instructed to lie face down on the floor. Whilst he lay in that position, the appellant struck him four times forcefully to the back of his head, using a hammer he had found in the room, causing him to lose consciousness. In Mr Browning's statement to the police he said he could hear the "sickly sound" of Mr Oakley being hit from where he lay tied up in the front room of the premises. The appellant then returned to where Mr Browning lay on the floor and struck him with the same hammer three or four times on the back of the head. Mr Browning also lost consciousness as a result of this attack.

5 The appellant left the store shortly before 3 p.m., nearly an hour after he commenced his attack on the two men. Before leaving, however, he telephoned a taxi company, using the store's telephone, and arranged for a taxi to collect him from a storage facility around the corner. He attempted to destroy any evidence of his crimes by spraying "Zippo" lighter fluid around the store and setting it alight. In the event, the fire caused only minor damage. Upon arriving at the storage facility, the appellant requested the rental of storage space. He started to fill out the rental agreement form, but the taxi he had called arrived and so he did not complete the form but left in the taxi, telling the driver to take him to another storage facility in South Melbourne. There he stowed some of the stolen goods in a hired locker before going to Spencer Street Station, where he hired another locker to store more of the stolen goods as well as changing his clothes in a public toilet. Later that afternoon, the appellant bought a new pair of shoes, leaving the old pair at the shop, and the following day, had his hair cut and his beard shaved so as to disguise his identity. Despite these attempts, the appellant was recognised by another person who had been in Eagle Leather on the day the offences were committed. Accordingly, on the evening of 22 August 2002, the police went to the appellant's home and arrested him.

6 It seems that Mr Browning regained consciousness soon after the appellant left the premises and managed to undo the rope binding him. He stumbled on to the street and caught the attention of a passer-by, who called an ambulance. The victims suffered life-threatening injuries as a result of the appellant's attack. Both men were rushed to hospital by ambulance. Mr Oakley was in a coma for several days and placed on life support. He suffered a fractured skull and severe brain injury and spent over two weeks in hospital before he was discharged. He was subsequently hospitalised for a further 10 days, following complications arising from head surgery he underwent on 16 September 2002. The ongoing effects of the injuries he sustained include weakness of his right arm and leg, loss of vision on the right side and significant psychological damage. He is unable to drive a motor vehicle and, at the date of sentencing, was unable to return to work. Mr Browning was in a coma for 20 hours as a result of the injuries he sustained and was so seriously beaten to the head that ambulance officers believed he had been shot by a gun. Upon arriving at the Royal Melbourne Hospital he underwent emergency surgery for a depressed skull fracture. He had a right occipital fracture and an underlying contusion and oedema and it was necessary that he undergo an extensive craniectomy. He was hospitalised for a week at Royal Melbourne Hospital before being transferred to a rehabilitation centre but was later re-admitted to hospital for further medical procedures. The ongoing effects of the injuries suffered by Mr Browning include speech difficulties and partial loss of vision in one eye. He has also suffered some loss of cognitive ability and a change to his personality. As his Honour noted in his sentencing remarks, "fortunately his medical prognosis although guarded is relatively good". Nevertheless, as the learned sentencing judge recognised, he may never be able to work again.

7 Following his arrest, the appellant was interviewed by police and substantially admitted his conduct. He said that he had intended to kill both men in order to avoid leaving witnesses who could identify him and believed that when he left the premises each of his victims was dead or dying. He denied, however, that he planned to rob the store and said that he did not threaten the victims with a knife. The appellant claimed, rather, that he had been taunted by one of the victims in relation to his conviction in September 1999 for manslaughter and that he had committed the offences in question in reaction to his taunting. He said to police that he had become uncontrollably angry and had attacked Mr Oakley. He contended that he had then attacked Mr Browning to ensure that there were no witnesses to his crime and robbed the store in order to make it appear as if it was an armed robbery that had "gone wrong". The learned sentencing judge, however, rejected the appellant's story, as advanced in his police interview, that he had not entered Eagle Leather with a knife intending to rob it and this finding has not been challenged on appeal. His Honour also rejected the appellant's claim that one of the victims had taunted him and concluded that the appellant's lies to the police revealed a "manipulative dishonesty" and a "gross callousness and lack of remorse" on his part. None of these findings was challenged before us.

8 Although in his Notice the appellant listed four grounds on which he proposed to rely in support of his application for leave to appeal against sentence, at the hearing of the matter before us his counsel, Mr Croucher, relied on only two of them, namely, ground 4, which claimed that his Honour did not give sufficient weight to the appellant's plea of the guilty, and ground 1, under cover of which it was asserted that the sentence imposed on each of counts 1 and 2 is manifestly excessive, as is the order for cumulation, thereby making the total effective sentence also manifestly excessive or in breach of the principle of totality. For reasons which become apparent, it is convenient to consider ground 1 first.

9 Mr Croucher's primary submission was, as I have foreshadowed, that the individual sentences imposed on counts 1 and 2 are unduly excessive, as is the period of cumulation, with the result that the total effective sentence imposed offends the principle of totality. Counsel argued that the sentences on counts 1 and 2 are, by a considerable margin, the highest imposed in this State for attempted murder and, in that context, he referred to a helpful table which he provided to the Court, that lists sentences for attempted murder imposed by this Court (dating back to 1999) and demonstrates that, previously, the longest individual sentence imposed for this offence on a plea of guilty was 14 years' imprisonment in R v. Boaza[1]. So far as I can tell, Mr Croucher is correct in that aspect of his submission and I am content to proceed on that basis. Nevertheless, for reasons I will give later, I consider that this complaint does not carry much weight. Counsel accepted the horrendous nature of the crimes but argued that there are a number of mitigating factors that operate to compel a shorter sentence. Thus, Mr Croucher pointed to the fact that the attempted murders were not premeditated, as was accepted by the Crown, but occurred essentially at or near the end of the armed robbery phase of the offending conduct. Next, it was said that the appellant confessed upon his arrest to the essential elements of the crimes in question and pleaded guilty at the earliest opportunity. Moreover, it was claimed, as his Honour found, the appellant's health problems make the serving of a long term of imprisonment particularly onerous for him. Furthermore, it was said, the appellant had no prior convictions for offences of this nature, the argument being that his prior conviction for manslaughter involved exceptional circumstances and was of little relevance. Moreover, Mr Croucher contended that his Honour failed to take into account the possible consequences of the operation of s.16(3B) of the Sentencing Act 1991 should the appellant's parole be cancelled. Counsel pointed out that, since the date of sentence, the appellant's parole had in fact been cancelled so that s.16(3B) of the Sentencing Act operates so as to require him to serve any sentence imposed on the counts now under consideration cumulatively with the two remaining years that he is required to serve under his previous sentence upon the cancellation of his parole, subject, of course, to the Board's discretion to release him on parole for any of the balance of that sentence.

10 The mitigating factors relied on by Mr Croucher, however, must be put in context. First, the fact that lesser sentences have been imposed in other cases for attempted murder plainly cannot be determinative of what should be the appropriate sentence in this case and, in fairness to Mr Croucher, he did not seek to put his case in this way. It has been often said by this Court that past sentences and sentencing statistics are, at best, only a guide because "no two cases are the same and ... the circumstances of particular offences and particular offenders are infinitely various, especially where multiple offences ... are concerned"[2]. And, as Callaway, J.A. said in R v. Adajian[3]: "Sentences are not precedents which must be applied unless they can be distinguished, and the paramount duty of the court is to do justice in individual cases". Moreover, the time is long gone since there has been any serious suggestion that there is a specific practical ceiling on the period of imprisonment that may be ordered for this crime.[4] As the learned President said in R v. Boaza[5]: "There are no 'benchmarks' setting binding limits for the crime of attempted murder ..." This is unsurprising given that, as I have said, each case must be decided on its own facts and given the serious nature of the offence, in respect of which the maximum custodial sentence has been raised from 20 to 25 years.

11 Secondly, the crimes in this case were of a particularly serious nature. They were not crimes of passion or even the result of anger, but were motivate by the appellant's wish to eliminate potential witnesses to his armed robbery (which, of itself, constituted a significant offending given the value of the money and merchandise that was stolen and the fact that it was carefully planned some time before the day in question). Moreover the attempts to kill the victims involved inflicting on them what must have been sheer terror over a considerable period, particularly in the case of Mr Browning who, as I have said, heard the thuds of the appellant's hammer as it struck his tied up fellow worker.

12 Next, the crimes resulted in Mr Browning and Mr Oakley being deprived, for the very long term, if not permanently, of the physical and psychological health and wellbeing that they enjoyed before they were viciously attacked by the appellant. It must not be forgotten that their lives have been virtually ruined as a result of this attack and this must have affected those closest to them.

13 Furthermore, although the appellant confessed when he was arrested and pleaded guilty at an early stage, these matters should not be taken too far given that his admissions were made in the context where he sought to shift at least part of the blame for his conduct on to the innocent Mr Oakley and given that the Crown case was particularly strong since both men survived the attack and Mr Browning at least could have given evidence again him. There is much force in Mr McArdle's submission that there is no reason to think that, in those circumstances, the Crown case on attempted murder was dependent on the appellant's admissions.

14 Moreover, contrary to Mr Croucher's submissions, the prior conviction of the appellant for manslaughter is of relevance for sentencing purposes given that it involved the taking, albeit unintentionally, of a life by him and yet, whilst he was on parole in respect of that crime, he sought to kill two innocent people. As Mr McArdle submitted, the appellant's offending in light of his previous conviction shows that he has learned nothing of, or had disregard for, the law's recognition of the sanctity of human life. It is also relevant when evaluating the worth of the mitigating factors put forward by Mr Croucher that, as his Honour found, the appellant had shown no remorse for his offending conduct. Although, as Mr Croucher pointed out, this factor does not go to aggravation, it does put the appellant's plea of guilty in context and deprives him of a sentencing discount that might otherwise have been available to him.

15 Finally, it must also be borne in mind that attempted murder is a very serious offence. As Winneke, P. said in Boaza[6]:

"It goes without saying that [this] crime is, and is regarded by the community as, a most serious crime. This fact is reflected in the actions of the Parliament of this State, which has increased the maximum penalty for the crime from 15 years in 1986 to 25 years [on 1 September 1997]."

16 Thus, in the circumstances, it might well be said that, but for the fact that the appellant fell to be sentenced for multiple offences, the individual sentences are not beyond the relevant range, although I think they are near the top of it. The difficulty in sentencing the appellant in this case, however, came about essentially because, in relation to the counts of attempted murder, the appellant came to be sentenced for two separate offences and recognition had to be given to that fact in fixing the aggravate sentence (in addition to the appellant's total criminality). Thus, as Ormiston, J.A. explained in R v. Grabovac[7], in circumstances such as the present, some cumulation of the individual sentences is called for "to avoid the appearance that an offender may commit a series of crimes after the ... first crime with effective impunity" which may occur "if all sentences for a series of unconnected offences were to be served concurrently". As his Honour went on to explain, in determining the extent of cumulation that should be ordered, the sentencing judge is constrained by the principle of totality and the need to avoid imposing an inappropriately crushing sentence.

17 In dealing with the principle of totality, the High Court in Mill v. The Queen[8] cited with approval[9] the description of this principle set out in Thomas, Principles of Sentencing[10]. The most relevant passage in that work for present purposes is as follows:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'."

18 Thus, the ultimate question, for present purposes, is whether the total effective sentence of 24 years' imprisonment is "just and appropriate". As Callaway, J.A. said in R v. Aleksov[11], just like in the case of manifest excess, whether the total effective sentence offends the principle of totality is often a matter of impression. In my view the aggregate sentence of 24 years' imprisonment in this case breaches that principle in that it goes well beyond merely reflecting the gravity of the appellant's crimes or the fact that separate offences were committed. I accept that, for the reasons I have given, it was necessary for his Honour to have ordered some cumulation, but given that he chose to impose individual sentences which are at the upper end of the range of sentences that were properly available, the period of cumulation ordered, which, by itself, seems to be appropriate and may not have resulted in a breach of totality had the individual sentences been lower, in fact produced a total effective sentence which, as I have said, offends the principle of totality. Put another way, in the circumstances of this case, the imposition of individual sentences at the upper end of the range, combined with what might have otherwise been an appropriate order for cumulation, has produced a total effective sentence that is not "just and appropriate".

19 A sentencing judge faced with the difficulty of having to impose, in relation to an offender who has committed multiple offences, appropriate individual sentences as well as appropriate orders for cumulation without infringing the principle of totality can accommodate these, seemingly competing, requirements in one of two ways as has been recognised by the High Court in Mill and, more recently, in Johnson v. The Queen[12]. Thus, it was said in Mill[13]:

"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

20 A like approach was adopted by the majority in Johnson[14]. In explaining the proper method to be adopted in sentencing for multiple offences, Ormiston, J.A, in Grabovac, made it clear that the "preferable course" (described in Mill, above) is only a guide to be applied were applicable. His Honour said[15]:

"In general a Court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said, where practical when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a 'crushing' sentence."

21 In the present case, it may not have been practicable to follow the preferred course described by his Honour, assuming that it was appropriate to impose relatively long individual sentences on each of the counts in question and given that the period of cumulation could not have been properly reduced to one that is significantly less than that ordered by his Honour if due recognition were to be given to the fact that the offences in counts 1 and 2 were committed separately and against different individuals. In those circumstances, it would have been appropriate to lower the individual sentences in order to ensure that the principle of totality was not breached, providing the lower sentences do not amount to artificially low sentences. This seems not to have been done, although I note that his Honour did say in his sentencing remarks that he bore in mind the limiting operation of this principle. Be that as it may, the result is, as I have noted, that the total effective sentence offends totality. It follows that, in my view, the sentences must be set aside.

22 Should the other members of the Court agree, I propose that, without in any way minimising the horrendous nature of the crime and its terrible effect on Mr Browning and Mr Oakley and only because the principle of totality has been breached, the appeal be allowed, the sentences imposed by his Honour set aside and the appellant be re-sentenced. In those circumstances, and subject to one matter which I will mention later, it is not be necessary to consider the remaining ground of appeal argued by Mr Croucher.

23 In re-sentencing the appellant on count 2, recognition must be given to the fact that he is a "serious offender" for the purposes of the Sentencing Act. Like his Honour, however, I would not impose on him a sentence longer than that which is proportionate to the gravity of the offence notwithstanding that this may be permitted in this case by the operation of s.6D(b) of that Act. In re-sentencing him, even if s.6D(a) of the Sentencing Act did not require me to do so, I would regard the protection of the community from the appellant as the principal purpose for which the sentence is to be imposed. Additionally, specific deterrence, just punishment and condemnation of the offending conduct must also be regarded as being prominent principles in the sentencing disposition. Similarly, it is necessary to bear in mind, when re-sentencing the appellant, the operation of s.16(3B) of the Sentencing Act. More particularly, I see no basis for directing "otherwise" as is contemplated by that provision so that the operation of that section must be taken into account for re-sentencing purposes[16] in determining if the total effective sentence breaches totality.

24 In the circumstances, I would re-sentence the appellant to a term of imprisonment of 16 years on each of counts 1 and 2 and to eight years on count 3. I would order that five years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, thereby producing a total effective sentence of 21 years' imprisonment. I would order that he serve a term of imprisonment of 17 years before becoming eligible for parole.

25 As I have noted earlier, although in general terms it is not necessary to consider ground 4, there is one aspect of it that should be mentioned. It relates to his Honour's statement in his sentencing remarks that, in relation to counts 1 and 2, and possibly count 3, because the appellant had pleaded guilty, the sentence that would otherwise have been imposed by the learned sentencing judge would be reduced by the period of two years on each count. Those passages, said counsel, demonstrate an impermissible two-tiered approach to sentencing, namely, by first determining what would be a proper sentence absent mitigating factors and then, reducing that sentence by reference to such mitigating factors that may exist (here, relevantly, the plea of guilty), an approach that was adopted by the trial judge, but rejected on appeal, in R v. Young[17]. It seems clear enough that, as Mr Croucher submitted, a two-tiered approach to the imposition of the sentence effectively constitutes sentencing error in this jurisdiction. The proper approach that must be adopted in this jurisdiction is based on the instinctive or intuitive synthesis, as that concept was explained in R v. Williscroft, Weston, Woodley and Robinson[18] and affirmed in Young (and in later decisions of this Court). In the latter case, after referring to Williscroft and considering[19] a number of High Court cases where a like approach seems to have been adopted, or at least sanctioned, their Honours said[20] that "the adoption of the [two-tiered] process should itself be regarded as a sentencing error ...". Although, as Kirby, J. pointed out in his dissenting judgment in Johnson[21], the High Court has not ruled conclusively on this issue, there are, I think, powerful dicta in that Court which favour the instinctive synthesis approach in preference to the two-tier approach which his Honour characterised as to the "approach of transparent structuring of

sentence". See, for example, Wong v. The Queen[22], AB v. The Queen[23] and Johnson[24].

26 I should say for completeness, in case there is any doubt about the matter, I consider that this Court is bound on this issue by the Victorian decisions to which I have referred, if not also by the High Court decisions. It follows that, if it can be properly said that the learned sentencing judge in this case adopted a two-tiered approach to the sentencing disposition he would have been in error. In order to determine if that was the case it is necessary to look at the context in which he used the impugned terms. To put it shortly, those remarks were made when his Honour was dealing with the significance, for sentencing purposes, of the appellant's plea of guilty, in the course of which he essentially observed that a greater sentencing discount would have been provided had the appellant shown remorse. The learned sentencing judge went on to explain that, because the appellant had not demonstrated remorse for his crimes, he would only reduce his sentence on account of his plea of guilty by the period that I have already mentioned. It seems to me that his Honour thereby sought to do no more than emphasise, albeit in terms that were bound to lead to the present controversy, that the appellant was gaining a limited sentencing discount by reason of his plea of guilty and that such discount would have been materially greater had remorse been shown by him.

27 In the circumstances I think that this experienced judge who, I am sure, was not unaware of the law in this jurisdiction that eschews a two-tiered approach to sentencing, did not err intentionally or unintentionally by adopting the sentencing process that was rejected in Young. Nevertheless, I consider, with respect, that his Honour's quantification of the utilitarian value of the appellant's plea of guilty was an unhelpful digression from the proper construction of the sentence.

28 These offences, and particularly the attempted murders, were extremely serious examples of very serious offences. The armed robbery was planned and premeditated and involved property of a significant value. The attempted murders involved the unprovoked, cold-blooded hitting of two trussed and prone men on the

head four times, or possibly three in one case, with a hammer with murderous intent in disregard of the sanctity of human life by a man who had already committed criminal homicide while he was on parole for that very offence.

29 In addition, and very importantly, the consequences, both physical and psychological, summarised by Chernov, J.A. that the victims suffered and suffer were quite, and are quite, horrendous. The appellant's intention to murder very nearly succeeded. Those consequences must never be overlooked and the members of the Court are very conscious of them.

30 For the foregoing reasons, the appellant, despite his plea of guilty, deserved condign punishment. But, unfortunately, in my opinion, the combination of the sentencing judge's heavy sentence on count 1 and his cumulation of six years from the sentence on count 2 resulted in an aggregated sentence that offended the principle of totality. It was, to apply a well-known summary of that principle, simply too much. This Court must therefore re-sentence the appellant. I agree in the re-sentence proposed by Chernov, J.A. I agree, too, in his Honour's reasons for judgment save that I am inclined to think that, by oversight, the sentencing judge did err in specifying the quantum of his discount for the pleas of guilty to the three counts.

31 The actual conduct in which the appellant engaged, the motivation for his actions, his prior criminal history, including the fact that he was on parole at the time for a very serious crime, and the consequences to the two unfortunate victims of what was in fact and law a murderous attack upon them, combine so that his offences can be appropriately described as "extraordinarily serious examples of the crime of attempted murder". Specifically I wish to associate myself with the remarks of the learned presiding judge on this aspect.

32 The imposition of very substantial terms of imprisonment was, as the

sentencing judge recognised, clearly required in the circumstances. However, for the reasons advanced by Chernov, J.A. in his judgment, I agree that his Honour fell into error with respect to the application of the principle of totality in this case and that in consequence his Honour's sentencing discretion miscarried. The appellant accordingly falls to be re-sentenced by this Court. I concur in the disposition proposed by Chernov, J.A.

33 The order of the Court is -

1. The appeal is allowed.

2. The sentence imposed on the appellant in the Trial Division on 16 March 2004 is quashed.

3. In its place -

(a) the appellant is sentenced to be imprisoned for 16 years on each of counts 1 and 2 and for 8 years on count 3 and it is directed that 5 years of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1, so that the total effective sentence is imprisonment for 21 years;

(b) the period of 17 years, calculated from 16 March 2004, is fixed as the period during which the appellant is not eligible to be released on parole.

4. It is directed that the fact that the appellant was sentenced for the offence the subject of count 2 as a serious offender, more particularly a serious violent offender, be entered in the records of the Court in respect of that offence.

5. It is declared that the period of 966 days, calculated to and including this day, 15 April 2005, is to be reckoned as already served under the sentence and it is directed that the fact that this declaration was made and its details be noted in the records of the Court.

OTHER MATTERS: An indemnity certificate was granted to the appellant under s.17(1) of the Appeal Costs Act 1998 in respect of appellant's own costs for 17 February 2005 of the adjournment of this appeal on 17 February 2005, the Court being satisfied as specified in s.17(2) of that Act.

[1] [1999] VSCA 126.

[2] See R v. Young [1990] VicRp 84; [1990] V.R. 951 at 955 per Young, C.J., Crockett and Nathan, JJ.

[3] [1999] VSCA 105 at [28].

[4] R v. Kasulaitis [1998] V.R. 224 at 233 to 234, per Batt, J.A., with whom Phillips, C.J. and Callaway, J.A. agreed. This appeal was determined when the maximum custodial sentence for attempted murder was 20 years.

[5] At [48].

[6] At [45].

[7] [1998] 1 V.R. 664 at 676.

[8] (1988) 166 C.L.R. 59.

[9] At 62 to 63.

[10] 2nd Ed. (1979) pp.56 - 57.

[11] [2003] VSCA 44 at [17].

[12] [2004] HCA 15; (2004) 205 A.L.R. 346.

[13] At 63.

[14] At 356 per Gummow, Callinan and Hayne, JJ.

[15] At 680.

[16] R v. Ulla [2004] VSCA 130 at [37] per Eames, J.A., with whom Batt and Vincent, JJ.A. agreed.

[17] [1990] VicRp 84; [1990] V.R. 951 per Young, C.J., Crockett and Nathan, JJ.

[18] [1975] VicRp 27; [1975] V.R. 292 at 300 to 301.

[19] At 955 to 960.

[20] At 961.

[21] At 358 to 359.

[22] [2001] HCA 64; (2001) 207 C.L.R. 584 at 611 to 612 per Gaudron, Gummow and Hayne, JJ.

[23] [1999] HCA 46; (1999) 198 C.L.R. 111 at 121 to 122 per McHugh, J. and at 156 per Hayne, J. (both in dissent).

[24] At 354 per Gummow, Callinan and Hayne, JJ.