R v Nikodjevic [2004] VSCA 222

Count No.

____________

1

Dates

____________

18/5/2000 -

9/11/2001

Property

____________

Gas heater, and 3 or more items

Value

____________

$ 6,430

Sentence

____________

6 months

Cumulation

____________

3 months

11 or more items including outdoor table setting and whipper-snipper

Quantity of hot water systems, heaters and barbecue items

The thirtieth count related to the finding of cannabis in the applicant's possession on 8 November 2001 and for which he was fined $200. In addition and in the course of the plea, apart from the summary offences which were agreed to be taken into account, the applicant also pleaded guilty to an attempted burglary on 20 February 2001 for which he was sentenced to nine months' imprisonment, of which six months was directed to be served cumulatively in the same way, i.e., "upon each other".

5 The circumstances of the applicant's offending need not be examined in detail for present purposes. A detailed opening was handed up to the sentencing judge who summarised it in his reasons for sentence. Some brief account, however, may be useful. Most of the offending took place during the year 2001, although the first count extended back to handling in the previous year. It seems that most of the items handled by the applicant were the product of a series of burglaries of both business and private premises in the eastern suburbs. Only one burglary, or more precisely an attempted burglary, involved the applicant, at least so far as these presentments go, though it seems that at committal proceedings in June and July 2003 one charge of burglary was dismissed. The attempted burglary involved the applicant and one Audsley, whose applications for leave to appeal against conviction and sentence are also the subject of judgments today: see [2004] VSCA 221. The facts surrounding the attempt are set out in that judgment and it is sufficient to say that the applicant admitted that he was the passenger in a substantial tray truck driven by Audsley which obtained entry surreptitiously through the main gate of the premises of Surdex Steel Pty. Ltd. early in the morning of 20 February 2001. The applicant was then seen seeking to break his way through sheeting on the side walls of the warehouse when the two men were interrupted by a security guard and they both fled, leaving the truck behind but with evidence of their movements recorded on a video camera.

6 The applicant was first arrested on 24 April 2001 at a leased warehouse where it seems he was engaged in consolidating a large quantity of stolen goods from other warehouses by use of a refrigerated semi-trailer which is the subject of count 3. The other items of property at that time the subject of charges of handling against the applicant, are reflected in counts 4 to 8. Apart from admitting that he had access to the warehouse space, his interview was largely uninformative. Virtually all the goods found were traced to thefts occurring in the course of a series of burglaries. The applicant, however, was then released on bail.

7 Nevertheless, the applicant continued on his systematic career of handling stolen goods. Each of the subsequent counts on the presentment, apart from those relating to theft and the possession of cannabis, relate to goods in due course admitted to have been handled by the applicant and which were stolen from a variety of premises, presumably by others, and found either at premises controlled or used by him or in one of two other trucks used by him. On one occasion in September the applicant was observed by the police loading crates into a truck to which stolen number plates had been affixed and which are the subject of count 12. Although searched and arrested by the police, he was not charged and was allowed to go.

8 Then on 22 October the applicant stole a prime mover worth $20,000 which was the subject of count 28. Less than a week later the owner by chance saw his vehicle towing a trailer. By the time the police caught up with the prime mover, both it and the trailer had been abandoned but they contained a very large quantity of goods which are in substance those referred to in counts 15 to 26. The police again interviewed the applicant on 31 October 2001 but he denied the allegations made against him. Being again released, it is clear that he continued to handle stolen goods until he was ultimately arrested on 9 November 2001, remarkably for a property offence which he did not commit. Although he denied substantially any wrongdoing, a number of search warrants were executed shortly thereafter which led to a series of additional charges. It is unnecessary to describe in further detail what was found, but in broad terms the property described above relating to each of the counts comprehends caches of stolen property taken over the preceding year from various premises.

9 Furthermore, it will be noticed that two of the counts refer to handling which extended through to March 2002, but this continuation of his handling took place, as the applicant by his plea by inference has admitted, as a result of the applicant blatantly making various phone calls from prison, for after this last arrest he was not granted bail and in fact has been in custody ever since. As I say, the remaining counts represented the product of what was discovered by the police in a variety of premises around the eastern suburbs. The total value of the property handled by the applicant is estimated to be between $300,000 and $360,000. The items the subject of specific counts number many hundreds, but the items the subject of the summary charge which was also taken into account, that is possession of property being the proceeds of crime, number well over a thousand and the description of them extends over ten very closely typed pages, even if some of the items were as mundane as a bottle of detergent and a roll of flywire.

10 At the November interview and subsequently at other interviews the applicant was largely uninformative, admitting at the most connection with some of the premises and with the prime mover, but providing no assistance as to the stolen goods found on his vehicles or at each of the premises occupied by him in one way or another. On 10 December 2001 he appeared unrepresented in court charged with a large number of offences of handling money laundering and possession of the proceeds of crime and formally reserved his plea. However, he handed up to the magistrate (he was representing himself at the time) a document which took this form upon which some reliance has been placed:

"I want to indicate to the court, and to the Crown, that it is my intention, to plead guilt [sic] to, the receiving, and the handling charges.

But, I will wait, until I can get some legal advice, and get a statement of facts from the Crown, but I want it recorded now, that it is my intention, to plead guilty to those charges.

I am sorry for what I did, it was a silly mistake, and the sooner, I can own up to it, and have it dealt with, the better I will feel about it all."

11 Notwithstanding these worthy sentiments, the applicant, as already noted, continued his handling business from prison by telephone, as evidenced by his pleas to counts 9 and 14. Moreover it is by no means clear to what his indication of plea related. It may be that the prosecution contention before the learned judge that it was confined to counts 3 to 8 is not accurate, for the applicant's then counsel asserted that in substance his client was referring to all charges of handling. What that meant in the light of his continued activity from within prison walls may be passed over for the present, but it is certainly clear on the facts presented to the Court that a number of caches of goods had not been discovered up to that time by the police and were only discovered as a result of warrants taken out from January to March of 2002. The goods discovered after the December appearance and which were the subject of later charges against the applicant therefore included, at the least, those referred to in counts 1, 2, 9, 10, 11 and 14, which included two of the largest "hauls".

12 These may appear to be merely matters of detail, but they are relevant because the first ground of appeal relied on asserts a failure to take into account the delay between offending and sentencing. Other persons, including Audsley and one Jenkins were also charged in relation to the offending which formed the basis of the charges against the applicant, although Audsley was found guilty on only the attempted burglary charge and Jenkins, relevantly, on two charges of possession of property suspected of being the proceeds of crime. These later raids on the various premises for which warrants were obtained in 2002 led to the applicant being again questioned on 9 April 2002. In contrast to his apparent willingness to plead to the handling charges against him, he declined to comment on all relevant questions put to him. As may be seen, this left the police to sort out the morass of property, for the most part assumed to have been stolen, found at something in excess of a dozen premises and in relation to much of which other persons were also suspected.

13 Bearing in mind that these matters led to some 34 charges to which the applicant has pleaded guilty or admitted for present purposes, and that there were at least six or eight other charges which were being examined at the same time, it is not, perhaps, entirely surprising that the next step, so far as I am aware, was a committal mention on 18 December 2002. It was either on this occasion (or possibly, but less likely, at an earlier hearing in January 2002) that he handed up another document to the magistrate which read:

"Your Worship, I have received the hand-up brief, it was served on time so I had no complaints about that.

I have, however, been having some problems with funding my lawyers. I thought there were funds available but I have run into difficulty, and I am sure that your Worship understand that money does not grow on trees, unless you are a lawyer I suppose.

I gave an indicating [sic] the last time I was hear and that is still my position.

I want to have this matter dealt with as soon as possible. But I'm asking for adjournment today. I need about eight weeks to get myself organised with funding ... I give the court an undertaking to give this situation my best effort."

14 That that the applicant was willing to plead to some counts of handling was undoubtedly so for at an arraignment hearing in the County Court on 6 February 2003 he formally pleaded guilty to six counts, being counts 3 to 8 on the principal presentment in the present case. It seems that he had been committed for trial on those counts in December, having reserved his plea but having forwarded the letter which I have just set out. There was at this time, no clear indication that the applicant would plead guilty to all other charges and indeed had pleaded not guilty, so as to require a committal hearing to take place in respect of those other charges, which, it must be conceded, included some three or four other charges which are not the subject of the present application.

15 Both Audsley and Jenkins had likewise indicated their desire to plead not guilty and to require a full committal hearing. That took place starting on either 24 or 29 June 2003 and took some seven days concluding in early July last year. Counsel for the applicant at the plea hearing protested that his client had spent little time in cross-examining the witnesses or in making relevant submissions, blaming effectively either the prosecutor or those appearing for the two others charged with similar offences. Undoubtedly, however, the applicant pleaded not guilty to at least eight offences, or so it would seem, and on about six of those it appears that he was discharged, although there were at the time, according to his counsel, some 59 charges in all, showing the complexity of the matters which were before the Court. Negotiations then took place as a result of which the applicant pleaded guilty to the 30 counts on the presentment, later seeking to extend also his plea of guilty to the count of attempted burglary and asking that the other three Magistrates' Court charges be taken into account.

16 It was in response to that plea that the judge handed down sentences on 3 November 2003 in terms which I have already set out. His Honour, noting that the applicant was then 45 years old, stated that the applicant had a number of prior convictions, a substantial number of which involved offences against property. In fact he had been before the courts twelve times over the preceding quarter century, which had resulted in 43 prior convictions (or other dispositions of offences), of which some 26 were for property offences, especially handling.

17 His Honour observed that he was fully satisfied that the applicant had been engaged in theft and receiving as a business and was likely to have been one of the principals in those activities. The scale of his offending required a lengthy sentence of imprisonment, notwithstanding that much had been recovered. His Honour's primary concern was to see to what extend he should avoid imposing "a crushing global sentence", notwithstanding that a significant number of the offences were committed while the applicant was on bail. His previous record did not encourage the judge to believe that specific deterrence would have much effect, nor did he think "that his early indication of his intention to plead guilty and his ultimate pleas of guilty represent remorse or contrition of the kind likely to lead to a recognition in the future of the property rights of others ...". Rather he thought that the weight of the evidence and a desire to obtain a discount for pleading guilty had been his main object, for he had been recorded as saying as much shortly after delivering his first written memorandum to the Magistrates' Court. Nevertheless his Honour recognised the value of his plea of guilty and that he evidenced "a mature intelligence". That fact also led him to think that it was not "beyond hope that at his age the prisoner may come to think a continuing life of crime ... is not a sensible way to spend his declining years ...". The plea materials indicated that he "could lead a reformed life if he chose to do so". He said that in fixing the various individual sentences he had found little of use other than the value of property stolen, but it must be observed that both his enthusiasm for this approach and his consistency seemed to wane towards the end of the long list of offences. Finally he said this about the question of delay:

"Whilst I've considered the time between arrest and sentence as one of the circumstances of this case, I believe that it is adequately treated in the declaration as to time spent in custody in the ultimate global sentence. I do not think this is a case in which it is appropriate to discount sentence specifically for delay."

Effect of delay

18 It was these latter observations which formed the basis for the first ground of the application and in many ways the principal foundation for it. Two aspects were argued. The first was that insufficient attention had been given to the question of delay in that the judge was wrong to have refused to discount the sentence, except to the extent that he may have imposed a somewhat lesser minimum term on that account. Secondly it was argued that as a matter of principle the judge failed to give proper reasons for refusing to take that argument into account or to give effect to it, especially as it was at the forefront of the plea made before the learned sentencing judge.

19 The latter argument seems to have expanded itself into contentions based on principles relating to the failure of courts to give proper reasons for their decisions, for several of the cases cited to the Court were really based on the premise that the judge had failed to give any reasons at all for the impugned judgment. Here the argument could never have been put higher than that the judge failed to give proper reasons for rejecting a principal contention made on the plea. The consequences of failing to deal with an argument in that way is not, of course, to vitiate the whole decision, unless it can be shown that there was in fact a failure to have regard to something which ought to have been taken into account. Moreover the contention comes up against the commonsense observation, frequently stated on appeals, that one cannot expect sentencing judges to go through and deal in detail with every argument put on a plea. Unless there is something which indicates a total failure to consider the matter or to consider it properly, the assumption ought ordinarily to be that the judge has taken into account those matters raised before the Court and has chosen to reflect it in the ultimate sentence, albeit without explicitly saying how or to what extent it has been taken into account. If the factor is an obvious one which should have led to a significantly different disposition, then it is sometimes said that the failure to give reasons betokens an omission to take the factor into account at all.

20 The latter cannot be established in the present case: rather it would appear that the judge, having expressly referred to the subject of delay, chose to say that it was inappropriate here to discount the sentence, except possibly with respect to the non-parole period. The argument for the applicant therefore becomes somewhat more difficult, for it must then be shown that this particular method of dealing with the argument was not open to him. If it were very obvious, then the failure to give more detailed reasons might again evidence the failure to give sufficient weight to the contentions. Here that is hard to make out. To my way of thinking it is obvious why the judge took the approach that he did. Having regard to the extent and complexity of the offending and the lack of co-operation of the applicant, the delay that took place cannot be described as undue in all the circumstances. There was uncertainty as to what property the applicant had dealt with, there was uncertainty as to how it had come into his possession, there was uncertainty as to who in many cases was the owner of the stolen property and it was uncertain precisely what course the applicant would take when the charges were formulated. I would therefore not see the time taken by the prosecuting authorities in getting these matters to court as being excessive. On the main presentment there are 100 names endorsed as witnesses, of which, for example, 16 were forensic witnesses. Although we have not been provided with the depositions, it is clear that they extended for several thousand pages. Other reasons for supporting the judge's conclusions appear below. It is not surprising, therefore, that the learned judge did not see fit to explain in further detail why delay ought not to be taken into account in relation to the total effective sentence.

21 A considerable number of authorities were cited to the Court which stood for the principle, so it was contended, that any delay between the time of offending and sentence is of sufficient relevance to require sentencing judges to explain why they do not take it into account whenever it is relied upon. Reference was made in particular to R. v. Miceli[5] and R. v. Cockerell[6], and to the cases referred to therein. In particular it was asserted that delay does not have to be shown to be "inordinate" relying on what Tadgell, J.A. said in Miceli[7]. That may be accepted but counsel did not take us to the earlier passage in which his Honour said[8]: "There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced." (Emphasis added.) But in my opinion there are many circumstances which need to be taken into account to determine what is "undue" delay, and further factors must be considered in seeing whether such delay in fact "should work in favour" of a particular prisoner. As Callaway, J.A. said in R. v. MWH[9]: "It is the effects of delay that are important for sentencing". Thus the principle, assuming it should be described as such, is often expressed in terms of the delay between "offending" and sentencing: see, for example, the passage from the judgment of Street, C.J. in R. v. Todd[10] cited with approval in the High Court in Mill v. The Queen[11]. However, with great respect, one should be cautious about recognising the time between offending (as such) and sentencing except for certain specific purposes which were analysed with some care by Callaway, J.A. in MWH. Thus it may show reformation of character over a significant period of a kind which would make rehabilitation largely irrelevant and greatly reduce, if not extinguish, the need for specific deterrence to be recognised in the sentence. But delay of that kind, which may arise in sentencing sexual offenders such as was considered in Todd and MWH, does not give an automatic right for a reduction or discount in sentence. For example, an argument could not be put forward on the basis that the sentence had been hanging over an offender for a long time if in fact detection had occurred only a few months before sentence. It would be preposterous for an offender who committed incest on a six year old child to claim some automatic discount 12 years later where the complainant had first felt safe to complain about her father's conduct only at the age of 18, and the charge had come on promptly for sentencing, whatever might otherwise be said about his behaviour and apparent reformation in the meantime.[12]

22 Delay in sentencing, nevertheless, may be otherwise significant if the delay has occurred between the detection and charging of an offender and the time of sentencing, where the offender can fairly say that the sentence has been hanging over him or her for an unreasonable time, or where that person had chosen to reorganise his or her life upon an acceptance of guilt for the matters charged. Thus it is put forward not infrequently as a factor to be considered in the case of first offenders who have committed serious offences, for which they may feel uncertain whether they will be required to serve any term of imprisonment at all. The truth of the matter, however, is that every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstance. One should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay. The most that can be said is that where the prosecuting authorities have in fact unduly delayed bringing the matter to court, there is much more likely to be such a discount, without the need to have regard to its particular consequences.

23 Here there is very little to be said in favour of the applicant on this score. He was not a first offender, for he had been in court on no less than 12 previous occasions. He could not have been uncertain as to the outcome of a sentencing hearing, except as to the duration of his imprisonment. His previous record, his offending while on bail, as well as the extent of his offending, made it certain that he would spend a considerable time in gaol for these offences. Indeed the circumstances were such that when he was finally arrested in November of 2001 he was not granted bail and has stayed in prison ever since. He has therefore not been juggling life "on the outside" and trying to organise his affairs in a state of uncertainty before being possibly sent to prison, for he is already there and has, even if unwillingly, served a substantial part of the term which was ultimately imposed upon him. As to rehabilitation, he may be thought to be lucky that the learned judge took a benevolent view of his behaviour when first in prison.

24 If one were to base a reduction on delay from the time of his offending, as counsel sought to persuade the Court to do, then what one sees is the very opposite of rehabilitation, at least in the earlier period. He was a professional "fence". Everything about his offending pointed to planning and organisation, much of it on a relatively large scale. If one was to look at the earlier offences, being those represented by the attempted burglary count and counts 3 to 8, then he was charged in April 2001 but that did not lead to any change in his behaviour. Virtually all the other offences were in fact committed whilst he was on bail and, notwithstanding having been interviewed twice thereafter by the police, he was still committing offences when finally arrested. More remarkably, when he was arrested and detained in prison, he still kept on engaging in his handling activities, by phone from behind prison bars. Even his professed plea of guilty at the first Magistrates' Court hearing was, as will be seen later, almost a smokescreen for his "professional" activities. Perhaps after these were detected the applicant did engage in some form of rehabilitative programme and it may be that the judge was correct to detect some change of heart, but it was not of the kind relied on in many cases of delay where the offender has been engaged in useful work and rehabilitating himself whilst free in the community.

25 Moreover, as already stated, there is little reason to think that the delay was undue in the circumstances of the present case. I have rarely, if ever, in 21 years on the bench seen such an extensive list of goods stolen or handled. Including those on the ten pages of the summary charge which was agreed to be taken into account, there were not merely hundreds of stolen items under his control but well in excess of a thousand and probably over two thousand.[13] They were taken from a large number of premises and from several vehicles and they belonged to at least a dozen or so businesses, as well as some personally owned items. All this material had to be organised in a manner that would permit the prosecution of the applicant in an appropriate way, such as to reflect the nature of his offending and such as to give the applicant the opportunity to decide to which specific charges he would plead guilty. As may be seen from his "notes" and as will be discussed later, his "indication" of a willingness to plead guilty was that of a very experienced and wily old hand. As became clear, he was not going to plead guilty to every offence related to the goods taken and such proved to be the case. Doubtless he was right to challenge a number of charges for which he was ultimately discharged but all the materials had to be sorted in a way which would enable the charges properly to be heard by the courts. One might say that the counts could have been dealt with and drafted more expeditiously by rolling up even more of the counts and not distinguishing between particular groups of property found. That may have been possible, but the applicant chose not to provide the police with any assistance in dealing with the vast number of items found on premises or trucks. He was not, in a sense, obliged to, but it is strange that his profession of willingness to plead guilty did not translate itself into a willingness to assist the police to identify the relevant property in a more simple and convenient way. Several times he was asked and several times he refused by giving "no comment" interviews. It is not for the applicant to complain that the exercise which followed took a substantial time. This sorting out, so far as one can gather, took place effectively between April and December 2002 and I would hesitate, even with the assistance of the offender, to describe that kind of delay as undue having regard to the volume of material taken.

26 In any event the offer to plead guilty was not as transparent as it may have been characterised on the plea, for several times thereafter his plea was either reserved or expressed as not guilty to certain counts. The long and short of it was that the case had to be prepared with appropriate statements for a committal hearing so that he might pick and choose which charges he might contest. As I have said, that required one hundred statements, at least, to be obtained. The rest of the time taken up to the actual plea hearing may have involved the other offenders as well, but a committal hearing was required, at which he was partly successful, and it was after that that the final plea indication was given so as to allow the complicated sentencing hearing to take place late last year.

27 For these reasons I would conclude that there was no undue delay, that there was no delay of a kind which the judge was obliged to take into account, that the various reasons for rejecting such a claim were so strong as to be obvious and that his Honour was not obliged to say more about the claim for delay than he did. The ground has not been made out.

Effect of plea of guilty and other aspects relating to manifest excess

28 Grounds 2, 3 and 4, set out above[14] were argued together but particular emphasis was placed on ground 3(a) complaining that the judge had given insufficient weight to the applicant's plea of guilty. As with the other matters raised under these grounds, there was not said to be a failure to refer at all to the guilty plea, but rather that it might be inferred from the fact that the sentence was too high that the applicant's plea had not been sufficiently taken into account.

29 Much of the materials relied upon for the purpose of this argument, and by way of answer to it by counsel for the respondent, has already been set out. Naturally the respondent points to the fact that the judge explicitly noted that the applicant by adopting this course had saved the State the expense of a long and complicated trial; and secondly that his Honour considered that the decision to plead indicated "a mature intelligence", such that the plea "must be taken into account as a significant mitigatory factor". It follows that, unless the sentence is seen to be manifestly excessive, this particular complaint will be hard to make out.

30 Nevertheless a great deal was made on behalf of the applicant of his various gestures towards making a plea and in particular the two "indications" of his willingness to plead handed up at the Magistrate's Court. Doubtless he did intend to plead to a significant number of the handling offences (though no others), for it would have been hard for him to deny what was obvious, but it became gradually clear that he was reserving his position in relation to a number of counts and not

merely those for which he ultimately obtained a discharge in July 2003. At all events it was necessary to prepare the case upon the basis that there would not be, as it were, a global plea. Counsel contended that his client was entitled to oppose charges which should have been and were in fact dismissed. Nevertheless I do not believe that the indication was intended as more than that or that he intended it as more than a general indication, as well as using it as a tactical ploy thereafter. Enough has been said already as to the various steps he chose to take after giving those indications. There was more evidence, however, derived unfortunately from the applicant, from the tapping of his phone for the purpose of ascertaining whether and how he was attempting to control his handling operations from within prison. In particular, he had a discussion with a friend on 18 January 2002 which indicated the subtlety of his position. Although he conceded that the sooner he could get the charges out of the way the better and that it had been "a big mistake", he discussed the kind of discounts which would flow from his decision to plead guilty to handling, saying: "The earlier one says those sorts of things, fifty per cent if you say it then ranging down to nothing if you say it immediately before the judge comes onto the bench." Moreover, again evidencing his undoubted intelligence (at least of a kind), he explained:

"But no, I haven't pleaded guilty, I've indicated. I indicate - I want to indicate to the court what my intentions are, do you understand? So what I've done was I haven't raised the flag but I said I want to raise the flag which means then - so it means I can get discounts on that, whatever's going to come up."

He hoped the police would accept his willingness to plead and that he was "not going to fight", so that they might go "a bit easier" so far as all the charges were concerned. He continued to explain that it was "just like you're buying a car, you give them an offer, don't you ... And usually if you own the car and you're selling that car you can always usually put another 300 or 400, 500 or a 1000 more to work your way down. Whatever the offer they give me, I'm going to cut that in half and I'll say 'well, that's my f--- offer' and we'll see where we get to." As the learned judge said when that was recounted, "He does demonstrate a considerable capacity for practical self-protection".

31 It would follow that the early indications of willingness to plead to the handling charges must be looked at in precisely those terms and having been given for the purposes that the applicant stated. It does not mean that the plea or its timing should be ignored, for it is essential under the Victorian Sentencing Act 1991 that there be a recognition of the plea and that some reduction be given, whatever be any additional relevant factors. I see no reason to doubt that the judge took these matters fairly into account, whatever be said of the final outcome.

32 Mention should specifically be made of the plea to the additional presentment charging attempted burglary. Although no offer to plead to that charge had earlier been made, an offer was made late in the plea to add a plea to this Court to the other charges. The Crown willingly accepted the offer which largely, if not entirely, cleared the list of offences brought against the applicant. The judge said at this stage of the plea that he was "prepared to regard that as an indication of public spiritedness". One may assume that is how his Honour ultimately viewed the plea to this charge and may well explain why the sentence imposed seems very modest. It should be viewed in that light, although, against that, he had not given any early intimation of his intention to plead.

33 As to the other aspects of grounds 2, 3 and 4, a number of matters were relied upon including the recovery of a significant part of the goods, the fact that the applicant had been in custody for a long time and had done a number of courses and desisted from the use of drugs and, more importantly, that in the judge's opinion he had shown a strong desire to rehabilitate himself. It is clear that he had the capacity to earn his living as a tradesman and that he had support from family and friends. Counsel's contention therefore was, not that the individual terms were too heavy, but that the process of cumulation had been wrongly conceived and that the judge had failed to apply the principle of totality in making those orders and in working out a total effective sentence, as well as the non-parole period. Ignoring for the present the question of the mode of cumulation, then there is some basis for saying that the sentence was at the higher end of the range if not marginally beyond it, especially if one has regard to the fact-findings made in the applicant's favour by the learned judge. However, to establish manifest excess, it is not sufficient to show that another judge or an appeal court might take a somewhat different view and perhaps impose a slightly lower sentence. The error must be manifest and it is not for an appeal court to interfere merely to give expression to the predilections of its members. If it were not for the matters to which I am about to turn, I would not have concluded that the sentence was manifestly excessive or that otherwise a different sentence ought to have been imposed.

The process of cumulation and the failure to cumulate upon a base sentence

34 Ground 2, which was primarily intended, at least as argued, to form the basis of a contention that the sentence was manifestly excessive, also becomes relevant in the light of the ground which counsel sought to add, complaining that the judge failed to make orders for cumulation upon a base sentence of imprisonment. The matter originally complained of, therefore, pointed to the possibility of some other error, in that the sentence originally imposed consisted entirely of parts of terms chosen to be cumulated, without there being a head sentence upon which they should be so cumulated. They represented in fact significant proportions, though most were one-half or less of certain of the specific terms, which were added together to produce the term of 7 years and 9 months total effective sentence, by cumulating those parts upon each other.

35 When raised by the Court with counsel, none could put forward any authority which suggested that this process was the correct one, or, indeed, that it had ever been held to be incorrect. On the other hand, none could say that they had ever seen such an order before. Again that was likewise the impression of members of the Court and that has been confirmed to me by other members of the Court not sitting in this application. Nevertheless it is a matter which must be resolved, if not by reference to principle, at least by reference to the provisions of the Sentencing Act 1991.

36 In the first place, concepts of cumulation and concurrency of sentences would seem to connote that the whole or part of one sentence will be added to (in the case of cumulation), or served at the same time as (in the case of concurrency), another term of imprisonment. Logically that other term of imprisonment should be a whole term and not a part of a term. It would again seem to follow, secondly, that a direction to cumulate the whole or part of a term on another part of a term would be ineffective, not because the arithmetical calculation could not be made, but because the part term upon which cumulation is to be made is not a term of imprisonment in itself. This method of cumulation seems to be all the more unlikely to be correct where, as in the present case, there were a series of part terms which were directed to be cumulated upon "each other", but where when no-one could know which was the starting or finishing point of that process, and that was made all the more eccentric, if one may be so unkind as to describe it, by also ordering concurrency of a series of (other) whole terms with one or all of a series of part terms, albeit that none of the uncumulated terms in itself exceeds[15] the longest period directed to be cumulated. It is possible, but highly unlikely, that the judge intended that the eight other terms be looked at independently, which would have resulted in a one month's sentence after giving effect to the concurrency direction, but there would then have been no single "aggregate period" for the purpose of fixing the non-parole period, as required by s.11(4) of the Act (see the next paragraph for its terms).

37 That the process was and is intended to be effected by adding on to some base or principal term parts of terms by way of cumulation is, in my opinion, the preferable way to read the legislation. Before looking at the specific sections it is desirable to add, lest it be thought that the object of the legislation is to produce at the end of the day merely a "total effective sentence", that that term appears nowhere in the Sentencing Act and is a concept used by courts purely for convenience' sake, before moving to the fixing of a non-parole period, if any. The most that is mentioned, specifically in relation to the power to fix a non-parole period, is that under s.11(4), when more than one sentence is made the subject of such an order or direction, then it must be "fixed ... in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed". That expression does appear also from time to time in provisions such as those relating to combined custody and treatment orders and home detention orders. The concept of an "aggregate sentence", on the other hand, is dealt with by s.9 of the Act, but is permitted only in the Magistrates' Court and is not related to concepts of cumulation or concurrency: rather a power is given to that court to fix such a sentence for a number of offences without going through the detailed procedural steps required in the higher courts.

38 The two principal sections, however, relevant to cumulation and concurrency are s.16 and s.6E. Sub-section (1) of s.16 reads:

"Subject to sub-section (1A), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment or detention in a youth training centre or youth residential centre imposed on that person, whether before or at the same time as that term."

Section 6E, which is of such constant relevance because of the frequent number of cases which involve "serious offenders", reverses the requirement in the following way:

"Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, 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."

It is unnecessary to go to other provisions in the Act, of which there are well over a dozen, which speak of sentences being served "cumulatively on" another sentence, another term, or upon any period of imprisonment. Apart, arguably, from the latter example, each of the provisions assumes in my opinion that there is a sentence or term, which must be read as meaning a whole sentence or whole term, upon which the cumulation is to take effect. Nowhere in the legislation is it suggested that cumulation may be effected on parts of terms; nor, in my opinion, would that be appropriate, for in each case it is desirable to have at least a starting point which is ordinarily taken to be the most serious offence. Indeed, in R. v. MDB[16] Batt, J.A., with the concurrence of Vincent, J.A. and myself, affirmed that that was the desirable course.

39 In the absence, to my knowledge, of any direct authority on the subject, I would therefore conclude that it is not merely inappropriate but that it is wrong to sentence by way of directing the cumulation of parts of terms upon each other. Prima facie each term of imprisonment has to be served, unless suspended[17], until parole (if any) is granted. Where, however, there are a number of terms imposed at the same time, the statutory presumption in ordinary cases is that those terms will commence and be served at the same time, i.e., concurrently, unless the judge directs to the contrary. If the judge does direct to the contrary, that will have the result, in the case of total cumulation, that the cumulated term will be served upon the expiry of the earlier term, although it is more frequently the case that only part of a second or other term will have to be served beyond the duration of the first term. That does not mean, however, that only part of that term has to be served or that the term itself is being reduced to just a proportion of its original term. Rather the proper assumption is that the balance of the partly cumulated term is treated as having been served concurrently with the first term. Thus the whole of that second or other term still must be served but the prisoner is entitled to treat the uncumulated part of the term as being served concurrently with the first or "base" term. In a sense the provisions are directed more to the time when the various terms are treated as having commenced and served, as is done more explicitly pursuant to the rather different Commonwealth provisions on sentencing contained in the Crimes Act 1914 (Cth.). Thus each term in this State will in fact be served, albeit that some or parts of some will be served at the same time as others. The scheme of the sentencing legislation, as would be the case at common law, therefore requires that every term of imprisonment imposed by a judge shall be served, in each case subject to the many provisions relating to the mode of service. It follows that, whenever a sentence is imposed for more than one offence, not only must all terms be served in one way or another, but there must always be a base term[18] which will be the basis or point of reference for all directions relating to concurrency or cumulation. That is what the judge failed to do in the present case.

40 The new ground 5 having been made out, it is strictly unnecessary to examine further the applicant's complaints as to the method adopted in respect of cumulation of the various sentences imposed on him, for it will be necessary for this Court to resentence the applicant. I would add, however, that much of the difficulty in approaching the original ground 2 and any apparent excess of cumulation largely stemmed from the fact that there was not a base term upon which the directed periods of cumulation were to be added. One was in effect starting with a base term of 12 months being the period to be cumulated from counts 3, 9, 11 and 29. Although no full term was cumulated and all but three periods of cumulation were half or less of the original term[19], there were many orders for cumulation, which might, at first glance, have suggested excess and a failure to comply with the principle of totality. Moreover, 22 directions for cumulation for periods varying from one to 12 months suggest one of two things: first, that there has been a failure to impose suitable terms of imprisonment for each of the counts, contrary to what has been said to be the preferable practice, at least since DPP v. Grabovac[20]; or secondly, that there has been a failure to apply the principle of totality, thus leading to an excessive sentence. But the real error, as I perceive it, is neither of these matters but is the failure to choose a head or base sentence to be served in the ordinary way and to direct concurrency or cumulation to the appropriate extent such as to produce a just sentence in conformity with sentencing principles. If one of the three longer terms had been chosen, then, in order to produce the same sentence overall, shorter periods of cumulation should have been directed.

41 The problem is largely artificial because of the primary error. The vice in the individual sentences and the periods of cumulation is more to be attributed to inadequate individual terms. If appropriate terms had been decided upon, in accordance with what was said in Grabovac and similar later decisions, then far smaller periods of cumulation should have been directed both in respect of each relevant term and generally, in order to satisfy the principal of totality. It might be said that the individual terms reflected a more benevolent view of the applicant's offending (and indeed his counsel explicitly stated that none was excessive), but the overall "total effective sentence" belies that view of this very serious series of handling offences.

42 Counsel for the applicant was warned in the course of the hearing that the Court might take this view of the individual terms imposed and that his client should be aware that those terms may well be increased if the Court thought it proper to set aside the sentences and re-sentence the applicant. It was not suggested that a higher total effective sentence (or non-parole period) would be imposed; nor do I think that it would have been appropriate, especially having regard to the judge's findings. Indeed, as will be seen, although the sentence should not be viewed as manifestly excessive, I consider that, as a result of the required re-sentencing, the applicant should receive a slightly lesser sentence than was in fact imposed by the learned judge.

Re-sentencing

43 Because of the specific matters already mentioned, the task of re-sentencing the applicant is not a straightforward matter. Every sentence and every order for cumulation must be reconsidered. Factors relevant to some counts are not relevant to others. One must make due allowance for the judge's findings which were favourable to the applicant and to his guilty pleas including his various intimations of intention in relation to the handling offences, as well as the need to avoid an unduly "crushing" sentence. On the other hand one must have regard to the scope of his offending, his offending on bail and after arrest and his past record, as well as the three Magistrates' Court charges agreed to be taken into account, especially the property offence relating to well over a thousand stolen items. However, I am prepared, without entering upon details of his earlier life in a "dysfunctional family" and his descent into a pattern of dishonesty and now wholesale dealing in stolen goods, to accept the judge's finding that the applicant is not without hope of reform and that there was ample evidence to indicate that he "could lead a reformed life if he chose to do so". Both his letter to the judge and the other material seem to disclose an intelligence above normal for this kind of offender and it is unfortunate that the Court must also recognise that that intelligence has been largely misapplied up to the present.[21]

44 In general terms it is difficult, for the most part, to go beyond the amount of stolen property, whether measured in value or quantity, or both which came under the control of the applicant, as the judge said he had done. Unfortunately that does not appear to be the basis for all of the sentences imposed. All offences involving $1,000 worth of goods or less attracted only one month's imprisonment and all involving $45,000 worth of goods or more attracted 24 months' imprisonment, but in between there was a good deal of inconsistency. For example, nine months was imposed for count 7, involving about 21 items worth in the order of $2,000, but for the later count 13, a term of only one month was imposed for handling some 25 items or so worth $4,686. Again a six months' term seems to have been chosen as a common tariff for a range of offences involving goods worth in a range of $9,445 down to $1,350 worth of goods, whenever they were committed. There were other inconsistencies in the orders for cumulation. Of course these inconsistencies were minor and would not ordinarily form the basis for setting aside sentences for a large group of offences such as these, which often justify a broad-brush approach. They are here noted merely as unexplained inconsistencies which should be avoided on resentencing.

45 The task of sentencing, as already stated, was and is by no means easy in the present case and it would not be desirable to lay down any immutable approach for fixing appropriate terms of imprisonment in cases such as this. Here the volume and value of goods handled seem the only consistent basis on which to act, subject to a few variations. I would see the offences committed after the applicant was first arrested and when he was on bail as being the more serious, if distinction needs to be made. Likewise the commission of the two offences which in part included "handling" the subject goods, by organising their disposition by phone, after he was in custody was even more to be condemned. That aspect of his offending was audacious and defiant. On the other hand, the sources of the stolen goods or where they were found seem largely irrelevant to the present case.

46 Generally the individual sentence imposed by his Honour were too lenient, apart from the slightest of the offences. In accordance with Grabovac I would impose heavier terms, but would reduce the total effective sentence by directing much greater concurrence. Overall, by reason of the need to observe the principle of totality, I believe the original total effective sentence was a little too high, having regard to the applicant's plea (and his earlier indications) and to the favourable view the judge reached as to the possibility of rehabilitation. Nevertheless the various terms will have to reflect the seriousness, duration and systematic nature of his offending and, for the offences committed after release on bail, s.16(3C) of the Act requires a different approach, at least as to cumulation, but in any event the applicant's brazen contempt for the law should be recognised. Clearly both specific and general deterrence are here both relevant.

47 The various offences on the principal presentment will be dealt with[22] in two groups, as follows. As to the earlier offences of handling up to 24 April 2001, one month's imprisonment should be imposed on count 5; three months' imprisonment should be imposed on each of counts 2 and 6; nine months' imprisonment should be imposed on count 7; 15 months' imprisonment imposed on count 4; 18 months' imprisonment on count 8; and 2 years and 6 months (30 months) on count 3, relating to the trailer which was obviously used by the applicant to ship the stolen goods around. As to count 1, which related to handling over a long period that straddled events both before and after the first arrest, I would impose a 12 months' term of imprisonment. Coming then to the later counts, committed after the applicant was released on bail, I would impose the following terms: one month's imprisonment on count 12; 6 months' imprisonment on each of counts 16, 22 and 25; 9 months' imprisonment on each of counts 17 and 21; 12 months' imprisonment on each of counts 14, 19, 23 and 26; 18 months' imprisonment on each of counts 13, 15, 18, 20 and 24; 24 months on each of counts 10 and 27; 2 years and 9 months (33 months) on each of counts 11 and 29; and 3 years (36 months) on count 9, the latter being one of the four most serious of the counts but having the added element that the applicant sought to deal with those 207 or so stolen items by phone while he was in custody. For the theft of the prime mover (count 28) the applicant should be sentenced to 24 months' imprisonment and for the count of possessing cannabis the fine to be imposed should remain at $200.

48 On the separate presentment charging attempted burglary, one must bear in mind the 12 months' term of imprisonment imposed on the co-offender Audsley which on his application to this Court has not been held to be manifestly excessive, nor in breach of the rules of parity: indeed I have there stated that it was modest. To the extent that parity is here relevant, one can see little difference in the respective roles of the offenders on the limited evidence as to the commission of the offence, but in the case of the applicant the Court knows that he was already party to a sophisticated and complex handling scheme or business, into which the proceeds of the burglary could easily have been fed. On the other hand the applicant pleaded guilty, even if at the last moment, whereas Audsley put the State to the expense of a trial. I would impose a term of 12 months' imprisonment for this offence, of which it was a serious example, being obviously planned and carried out[23] with some skill, even if unsuccessful.

49 As to cumulation there are further difficulties. As already stated, the cumulated periods amounting to 7 years and 9 months directed by the judge were clearly excessive, although in strictness all terms from count 9 to 29 inclusive should, by reason of s.16(3C) of the Act, have been cumulated. Although each offence should be recognised, so far as practicable, but, as they all formed part of one (long) episode of offending, it is not essential to do so by cumulation, as long as there is a fair recognition of the additional misdoing of the offender. For this purpose a choice of terms from which cumulation is to be directed must be made, even if the choice be eclectic.[24] The other terms are to be served concurrently, but that does not mean, as already observed, that they have been ignored or are not being served. For present purposes I would propose that relatively small proportions of terms be cumulated (or ordered not to be served concurrently as the case may be), so that the "cumulation" will be far less than that directed by the judge. In this case, however, they will be added (in effect) to the appropriate base term, being the three-year term resulting from the sentence on count 9.

50 To this end cumulation should be directed (in effect, as in form counts 10 to 29 will require non-cumulation directions to conform with s.16(3C) but so as to give effect to the principle of totality), in each case on the sentence imposed upon count 9 and upon each other, as follows: two months of the terms imposed on each of counts 1, 4, 13, 18, 20 and 27 and of the term imposed for the offence of attempted burglary; three months of the terms imposed on each of counts 10, 15 and 24; four months of the term imposed on count 28 and six months of each of the terms imposed on counts 3, 11 and 29. The other sentences imposed on counts 10 to 29 will be directed to be served concurrently with the sentence imposed on count 9, i.e., those imposed on each of counts 12, 14, 16, 17, 19, 21, 22, 23, 25 and 26. The total effective sentence

will therefore be 6 years and 9 months, a reduction of one year.

51 As to the non-parole period, there is little reason to differ in general terms from the judge's decision to make a direction permitting a substantial period to be served on parole, if that is thought appropriate. Nevertheless, as the term itself is somewhat reduced, there should be a very modest alteration to the difference between the total effective sentence and the period to be served before the applicant becomes eligible for parole. That should be reduced by three months, so that I would propose that the applicant serve 4 years and 9 months before becoming eligible for parole. The other orders, directions and declarations should be confirmed but there will be a new declaration as to the time served.

52 The application for leave to appeal should be granted, the appeal allowed, the sentences imposed in the County Court should be set aside and the applicant should be re-sentenced in the manner already stated.

53 I agree with the learned presiding judge, save that I would not change the sentence for attempted burglary imposed on the separate presentment.[25] As mine is a minority view, there is nothing to be gained by saying more.

54 I agree that this application should be granted and that the applicant be re-sentenced in the manner proposed by Ormiston, J.A.

55 I do so for the reasons given by his Honour.

[1] Details appear below in para.[4].

[2] For which a maximum term of 15 years' imprisonment is prescribed.

[3] For which a maximum term of 10 years' imprisonment is prescribed.

[4] For which a maximum term of 5 years' imprisonment is prescribed.

[5] [1997] VSC 22; [1998] 4 V.R. 588.

[6] [2001] VSCA 239; (2001) 126 A.Crim.R. 444.

[7] At 591.

[8] Ibid.

[9] [2001] VSCA 196 at para.[18].

[10] [1982] 2 N.S.W.L.R. 517 at 519-520.

[11] (1988) 166 C.L.R. 59 at 64.

[12] It would be even more preposterous if such a claim could be made in respect of the earlier offending where the same incestuous conduct had continued up to within a year or so of first complaint.

[13] Even this may be an understatement as there were a large number of boxes of unnumbered items, such as hanging mobiles, "auto globes", nuts and bolts, transmission gaskets, bottles of shampoo, "assorted hand tools", brake cylinders, padlocks, spark plugs, vitamin tablet packs, barbecue parts, etc. etc.

[14] See para.[2].

[15] All eight of those sentences were in fact for one month's imprisonment.

[16] [2003] VSCA 181: see at paras.[13] and [14].

[17] Or made subject to some other order permitting service outside custody.

[18] Theoretically there could be more than one primary sentence, all served at the same time, as long as they were the same, but that might lead to either error or confusion, so a specific term should be designated.

[19] The three exceptions, for counts 8 and 28 and for the burglary count, being in fact two-thirds.

[20] [1998] 1 V.R. 664.

[21] I would like to have said "to the time of his arrest", but the facts are to the contrary, at least when he was first placed in custody after the final arrest.

[22] I shall not repeat details of dates, goods and values, already set out in paragraph [4].

[23] See the facts as recounted in R. v. Audsley [2004] VSCA 221.

[24] One could have cumulated one month from every other term to achieve a degree of uniformity, but that would not reflect the additional seriousness of some offences.

[25] See especially [32] and [48] above. I agree with the direction for cumulation proposed at [50], so the point on which I differ does not affect the total effective sentence or the non-parole period.