R v Nobile [2006] VSCA 211

1 I have had the considerable advantage of reading in draft the reasons for judgment of Coldrey, A.J.A. and with respect I agree with his Honour that the appeal should be dismissed. I add the following observations.

Ground: Cumulation

2 I do not consider that the judge was in error in cumulating parts of the sentences imposed on the Counts preferred under the first presentment on the base sentence imposed under the second presentment.

3 Whatever the reach of the rule in Nikodjevic,[1] it does not apply, as such, to a case like the present where the sentencing judge must sentence a prisoner on a multiplicity of counts preferred under several presentments. To the contrary, in such a case it accords with the logic of the rule in Nikodjevic for the sentencing judge to do what the judge did in this case: by taking as the base sentence the largest sentence imposed, whichever be the presentment under which that count has been preferred, and then cumulating upon it other sentences imposed in respect of counts preferred under the same presentment and then other sentences imposed in respect of counts preferred under the other presentments, in order ultimately to produce an aggregate total effective sentence for all presentments.

4 So to say is not to imply that there may not be other ways in which the exercise might be undertaken. Another possible technique would be to deal with each presentment separately, taking a base sentence under each presentment and cumulating upon it the other sentences or parts of other sentences imposed under the same presentment, in order to produce a total effective sentence for each presentment, and then taking the largest of those and adding to it the others or parts of the others as the occasion dictates.

5 As Coldrey, A.J.A. observes, it may have been preferable if the judge had not described as a "total effective sentence" the sum of the parts of sentences cumulated under the first presentment. It is a practice that ought to be avoided in the future. But in my view, it was not an error. The term "total effective sentence" is not a statutory concept. It is a term of convenience. And, logically, there is no reason why the judge should not have described the sum of the parts under the first presentment as a total effective sentence, even though it was not a total effective sentence in the sense in which that term is ordinarily understood. At worst the judge's use of the term in that fashion was a case of giving the wrong name to the right approach, and whatever vice there may be in that, it did not vitiate his Honour's exercise of discretion.

6 In my view ground 1 fails.

Ground 2: De Simoni

7 I am equally unimpressed by the contention that the judge erred in treating as circumstances of aggravation matters which it is said would have warranted conviction for a discrete offence of affray.

8 Contrary to the submissions advanced on behalf of the appellant, it is not a universal rule that a judge when sentencing for an offence specifically preferred in a presentment may never have regard to relevant actions of the prisoner that strictly speaking constituted a separate uncharged offence.[2] The rule as expressed in R. v. De Simoni[3] is that the judge may not take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. Of course, as is pointed out in R. v. Newman and Turnbull, that does not mean that a sentencing judge may always take into account circumstances of aggravation which would have warranted a conviction for a less serious offence, but it does mean that where the circumstances of aggravation would have warranted a conviction for a less serious offence it is a matter of fairness and degree whether they may properly be taken into account as part of the circumstances surrounding the offence charged. Accordingly, assuming that the aggravating circumstances in this case could have constituted a separate offence of affray, and I am inclined to think that they could,[4] in my opinion they so belonged and gave meaning to the offence with which the appellant had been charged, and the offence of affray that they may have constituted was so much less serious than the offence with which the appellant was charged, that it was fair and it was correct for the sentencing judge to take them into account.

9 In my view ground 2 fails.

Ground 3: Totality

10 It was submitted on behalf of the appellant that the sentences of four years' imprisonment which were imposed on Counts 2, 3 and 11 on the second presentment were manifestly excessive, given that the appellant pleaded guilty, was remorseful and, as the judge accepted, had acted instinctively out of panic and fear of being taken again into custody. I do not accept that submission.

11 These were particularly serious instances of the offence of recklessly engaging in conduct placing a person in danger of death. In fact it is difficult to imagine instances of the offence any more serious than firing a loaded pistol at close range in the direction of policemen endeavouring to effect a lawful arrest in discharge of their duty. It is not a mitigating circumstance of the offences that the appellant may have acted in panic or out of fear of being arrested. Indeed, but for the fact that it constitutes a separate offence of resisting arrest, it would be a seriously aggravating circumstance.

12 Given the circumstances, and the fact that the judge imposed a sentence of only 40% of the maximum penalty, I can only assume that the judge must have taken into account and given very considerable weight to all of the ameliorating considerations to which counsel referred us.

13 It was submitted on behalf of the appellant that the total effective sentence was a crushing sentence, destructive of any prospect of rehabilitation, which went beyond what is necessary for the case and that, in order to avoid that result, the judge should either have reduced the sentences imposed on the individual counts, particularly counts 2 and 3 on the second presentment, or ordered a greater degree of concurrency as between them and also a greater degree of concurrency as between the sentences imposed on Counts 2 and 3 and the sentences imposed on Counts 4, 8 and 11.[5]

14 I do not accept that submission either. The fact is that the appellant committed these offences while he was on parole and therefore was required to serve the period of 14 months of the balance of his parole. When that is added to the total effective sentence imposed by the judge below it may be that the appellant may serve as long as 13 years and two months in gaol and will serve not less than 10 years and two months. As was submitted on behalf of the appellant, that is a very long time, particularly for a relatively young man of 27 years of age. But that is the consequence of the gravity of his offending, and the statutory requirement that his sentence be served cumulatively on the uncompleted sentence. It is not manifest excessiveness. As Callaway, J.A. observed in R. v. Aleksov,[6] the question of whether a total effective sentence offends the principle of totality is often one of impression. In the circumstances of this case, my impression is that a total effective sentence of 13 years is not a crushing sentence.

15 In my view, ground 3 fails.

16 On 11 November 2005 at the Melbourne County Court the appellant, Damien Mark Nobile, pleaded guilty to a number of offences contained in presentment T00996199 ("the first presentment"). A count of burglary (count 1) and of theft (count 2) respectively encompassed burglaries committed between 5 October 2004 and 14 January 2005 on residential premises throughout the metropolitan area, and the property stolen therefrom. The 56 acts of burglary involved are listed in schedule 1 which was attached to the first presentment and which I attach to my reasons. I similarly attach schedule 2 which lists the property stolen which was valued at some $483,988. The appellant also pleaded guilty, on this presentment, to two counts of obtaining property by deception (counts 3 and 4). The property involved in these counts is set out in schedules 3 and 4 respectively.

17 Additionally, the appellant pleaded guilty to a further count of attempting to obtain property by deception (count 5); aggravated burglary (count 6); and attempted burglary (count 7). Finally, on this presentment, the appellant pleaded guilty to "a rolled up count" of handling stolen goods between 7 January and 14 January 2005. These were goods recovered by investigating police the owners of which could not be identified. The items involved are listed in schedule 5.

18 There were 129 separate charges which were confined to eight counts for the purpose of the appellant's plea to this presentment. The learned sentencing judge had before him a summary of each of the offences with which the appellant was charged (Exhibit A) and, as with the schedules, I attach it to these reasons.

19 It is sufficient to note that the burglaries were committed in the daytime upon premises throughout the Melbourne Metropolitan area and as far afield as Eltham, Park Orchards, The Basin, Sassafras and Warrandyte North. The appellant did not completely ransack the premises involved, and he was selective in what he took, namely items readily disposable for money, which was predominantly used to support his heroin addiction. The appellant's modus operandi was to visit the premises wearing a suit and tie carrying housebreaking tools including screwdrivers and a jemmy in a leather satchel. In the course of these activities two stolen vehicles were used but when one was recovered and the other broke down, taxis were utilised.

20 During the three months involved in the activities the subject of this presentment, the appellant had no fixed place of abode and predominantly rented motel rooms.

21 At the time of the commission of these offences the appellant was 26 years of age. He will turn 27 in September of this year.

22 The appellant admitted five findings of guilt for theft and handling stolen goods in an appearance at the Magistrates' Court in 1996 and, in the years thereafter, 123 convictions from seven appearances in various Magistrates' Courts. These were predominantly offences of dishonesty including burglary, theft and handling stolen goods but also included escaping from lawful custody, aiding a prisoner in escaping, resisting arrest, and carrying an unregistered hand gun whilst unlicensed.

23 On 29 October 2003 at the Melbourne Magistrates' Court, the appellant had been sentenced for 66 offences including 11 charges of burglary, 11 charges of theft, 6 charges of obtaining property by deception, numerous charges of forging and uttering prescriptions for drugs of dependence, and one charge of resisting a police officer in the lawful execution of his duty. On that occasion he was sentenced to an aggregate term of imprisonment of 2 years with a minimum non-parole period of 12 months. The appellant commenced to commit the offences to which he pleaded guilty on the first presentment shortly after his release on parole on the 6 September 2004 sentence.

24 Before listing the sentences imposed on the first presentment, it is sensible to turn to presentment T00113841 ("the second presentment") to which the appellant also pleaded guilty on 11 November 2005.

25 As a result of negotiations between the Crown and the defence, the appellant pleaded guilty to 11 counts arising from events which occurred on 14 January 2005. These may be summarised as follows.

26 The Doncaster Criminal Investigation Unit had set up an operation to investigate the large number of burglaries, the subject of the first presentment. On 14 January 2005 Senior Detectives Paul Leighton and Igor Tomazic were in Wellington Street, Collingwood sitting off a property with which the appellant had some association. As they departed from that venue at about 11.30 a.m. Senior Detective Leighton observed a taxi passing in the opposite direction. Believing that the appellant was a passenger, the taxi was intercepted by police who had activated the lights and siren of their vehicle. The appellant was asked to step out of the vehicle and was asked whether he was, in fact, Damien Nobile. Although he denied this, he was told that he was under arrest for burglary and an attempt was made to handcuff him. Thereafter a violent struggle took place in the course of which all three men fell to the ground. The appellant was reacting with such violence that the police were unable to control him and, as the struggle continued, were calling out to members of the public to contact 000. Next, in the course of the struggle, the appellant pulled the revolver carried by Mr Tomazic from its holster. A round was discharged in close proximity to both detectives narrowly missing Detective Leighton's head. In their statements, each policeman described the fear and horror they felt during the struggle with someone holding a loaded pistol. Indeed, Mr Leighton described seeing the revolver pointing towards his face. He managed to grab hold of the top of the firearm in an attempt to point it away from his direction. In the course of this struggle the appellant was saying to him: "I'm going to shoot you." Ultimately, the appellant broke free from the two policemen and, while they were still on the ground, he pointed the firearm at them from about five metres away and uttered the words: "I will fucking shoot - I will fucking kill you."

27 This series of incidents was the subject of counts 1 to 4 on this presentment namely, theft of the hand gun (count 1); recklessly engaging in conduct that placed Igor Tomazic in danger of death namely, the discharging of the firearm (count 2); the same charge in relation to Paul Leighton (count 3); and finally, using a firearm to resist arrest (count 4).

28 The appellant then ran into Smith Street, and at its intersection with Johnston Street he entered a blue Commodore sedan which was stationary. He directed the driver to travel in a westerly direction along Johnston Street. The driver of that vehicle, a Mr Sang Van Tran, was in fear at the time. He realised that the appellant had a firearm and, accordingly, did what he was told. The kidnapping of Mr Tran constitutes count 5, whilst count 6 was the using of a firearm in the commission of an indictable offence namely, the kidnapping.

29 By this stage a number of police units were in pursuit of the appellant. That pursuit continued in a southerly direction along Brunswick Street then into Victoria Parade, Spring Street and, ultimately, to Flinders Lane. There were now numerous police units involved and Flinders Lane was effectively blocked at both ends. The blue Commodore drove down the northern footpath of Flinders Lane in an apparent attempt to avoid the police vehicles. However, it collided with one such vehicle. A standoff ensued with the Commodore being surrounded by a number of police members calling on the appellant to surrender. In fact, he swapped places with Mr Tran and, having got behind the wheel, rapidly reversed the Commodore back up the footpath. In doing so the vehicle struck Constable Jonas Todd. The vehicle also collided with a number of motor bikes and a parking meter. That driving gave rise to a summary charge of dangerous driving. The collision with Constable Todd gave rise to a charge of recklessly causing injury (count 7). The path of the Commodore being blocked at a point adjacent to the Sofitel Hotel, the appellant alighted from the vehicle, ran into the hotel area, up an escalator into the shopping plaza attached to the hotel and into a ladies fashion store. Here, a further confrontation took place in which the appellant was asked on a number of occasions to surrender and put his gun down. Ignoring these calls, he ran from the store and into Collins Street. This refusal to accede to the police demands to surrender constituted count 8. In Collins Street the appellant entered a taxi which was parked at a nearby taxi rank. The taxi drove off slowly before the driver, Abdul Akram, ran from it. This interaction with Mr Akram gave rise to count 9, common assault.

30 This left the appellant alone in the taxi and he moved across into the driver's seat of the vehicle. As this was occurring a Constable James Donovan unloaded the rounds from his revolver onto the roadway and, using the butt of his revolver, attempted to smash a window of the taxi. Mr Donovan then entered the taxi through the rear passenger door and placed the appellant in a headlock. The object of this action was to prevent the appellant from seeing where he was going and to give other police members the opportunity of arresting him. The two men struggled as the taxi continued to travel down Collins Street. Mr Donovan recalled observing the appellant with the firearm in his right hand and his finger on the trigger. The appellant brought the firearm around his left shoulder and pointed it towards Mr Donovan's head. At the same time he uttered the threat: "Fuck off or I'll shoot you." The appellant discharged the firearm in Mr Donovan's general direction. The bullet exited through the front passenger window before lodging in the side of a parked food delivery van. It narrowly missed a number of other police who were around the taxi at this time and it was estimated there were approximately 100 members of the public in the immediate vicinity. Shortly after the firearm discharged the taxi mounted a tram safety rail which caused it to flip over onto its roof. The appellant and Donovan were still inside the taxi struggling. In the course of that struggle Constable Donovan managed to disarm the appellant. Other police assisted in the arrest of the appellant who was taken to the Royal Melbourne Hospital where he received treatment for injuries occasioned in the collision at the tram stop.

31 This last series of events attracted charges of theft of a taxi (count 10) and a further charge of recklessly engaging in conduct placing a person, in this case James Donovan, in danger of death (count 11).

32 On 15 January, the appellant was discharged from hospital and interviewed by police. He said, amongst other things, that he was affected by heroin at the time of these incidents.[7] Asked what had made him do what he did, the appellant responded: "I was just scared. I know they had me under arrest for the burglaries I've committed and I was already sort of running from the police, trying to hide from you and just scared." He said he didn't know why he had fired the police gun twice at police officers although he was aware a person being hit by a bullet would stand a very good chance of being killed.

33 On the first presentment the appellant was sentenced as follows: on counts 1 and 2 (the rolled up counts of burglary and theft) to a term of imprisonment of 30 months. On each of counts 3 and 4, obtaining property by deception, a sentence of 6 months' imprisonment was imposed; on count 5, attempting to obtain property by deception, 3 months' imprisonment was fixed. Count 6, aggravated burglary, attracted a penalty of 12 months' imprisonment; count 7, attempted burglary 3 months' imprisonment; and the sentence on the final count which involved the handling of stolen goods, was one of imprisonment for 8 months.

34 In terms of cumulation the learned sentencing judge stated:

"I order that 12 months of the sentences imposed on Counts 1 and 2; six months of the sentence imposed on Count 6; and 2 months of the sentence imposed on Count 8 be served cumulatively on each other. The total effective sentence on that presentment is 2 years and 8 months."

35 On the second presentment the appellant was sentenced to the following terms of imprisonment. On count 1, the theft of a hand gun, 1 year; on counts 2 and 3, recklessly engaging in conduct in discharging a firearm which placed Tomazic and Leighton respectively in danger of death, 4 years on each count; on count 4, making use of a firearm with intent to resist arrest, 2 years; on counts 5 and 6, being those of kidnapping Mr Tran and carrying a firearm at the time of the kidnapping, 4 years and 1 year respectively; on count 7, recklessly causing injury to Todd, 9 months; on count 8, being the second occasion on which a firearm was used to resist arrest, 2 years; on count 9, the common law assault of Mr Akram, 6 months; on count 10, the theft of the taxi, 6 months; and on count 11, recklessly engaging in conduct being the discharging of a firearm which placed Donovan in danger of death, 4 years.

36 Finally, in respect of the summary charge of driving in a manner dangerous, the appellant received 4 months' imprisonment, his licence was cancelled and he was disqualified from obtaining a licence for a period of 2 years.

37 In relation to the second presentment, the learned sentencing judge ordered that 1 year of the sentences imposed on counts 2, 5, 6 and 11 and 6 months of the sentences imposed on counts 4 and 8, and 2 months of the sentences imposed on counts 7 and 9, be served cumulatively on the sentence imposed on count 3 and on each other. This produced a total effective sentence in respect of this presentment of 9 years and 4 months.

38 His Honour then ordered what he described as the total effective sentence of 2 years and 8 months which he had imposed on the first presentment be served cumulatively with the total effective sentence imposed on the second presentment. This resulted in a total aggregate sentence of 12 years' imprisonment with a non-parole period of 9 years being fixed.

39 In order to place the sentences imposed in context, it should be noted that the maximum penalties for burglary, theft, and obtaining property by deception is 10 years in each case. Attempting to obtain property by deception carries a maximum of 5 years as does attempted burglary, whilst aggravated burglary has a maximum penalty of 25 years and handling stolen goods 15 years. Insofar as the second presentment is concerned, reckless conduct endangering life and using a firearm to resist arrest each carry a maximum penalty of 10 years; carrying a firearm in the commission of an indictable offence, recklessly causing injury and common assault each carry a 5 year maximum; whilst the maximum sentence for kidnapping is 25 years. For completeness I should add that driving in a manner dangerous has a 2 year maximum penalty.

40 The appellant's appeal, which is against the total aggregate sentence imposed upon him, proceeded on three grounds. These were as follows:

"1. In respect of [the first presentment] the sentencing judge erred in his orders for cumulation by not making any individual sentence the base sentence.

2. The sentencing judge erred in treating as circumstances of aggravation, matters which would have warranted convictions for other more serious offences. In so doing, the sentence imposed offended the principle in De Simoni v. R. [1981] HCA 31; (1981) 147 C.L.R. 383 in respect of -

(a) ...

(b) The causing of terror to the public due to the events in Collins Street.

3. That the total effective sentence imposed was manifestly excessive. In particular:

(a) The sentences in respect of [the second presentment] imposed on counts 2, 3 and 11 were manifestly excessive.

(b) The sentencing judge gave insufficient weight to the principle of totality, particularly with respect to the orders for cumulation and the fact that the appellant was already undergoing sentence for breach of parole.

(c) The sentencing judge gave insufficient weight to the appellant's prospects of rehabilitation.

(d) The sentencing judge gave insufficient weight to the conditions and circumstances in which the appellant would be required to serve his imprisonment.

41 Turning to ground 1, it is clear that no base sentence was fixed by the sentencing judge on the first presentment. It is also clear that the failure to fix a base sentence for the purpose of cumulation may be regarded as constituting a sentencing error. In R. v. Nikodjevic[8] there was a 29 count presentment in which a number of terms of imprisonment were partially cumulated upon each other and were added together to form what was asserted to be a total effective sentence. The essential vice of this approach was the absence of any base sentence upon which that cumulation could occur.

42 In the present case, had a base sentence been fixed on the first presentment, it would logically have been on count 1, the burglary offence, for which a term of imprisonment of 30 months had been fixed. Cumulation of the magnitude directed by the sentencing judge would then have resulted in an aggregate sentence of 4 years and 2 months. It is trite to say that this would not have benefited the appellant. However, unlike Nikodjevic's case, the sentencing judge was dealing with two presentments and, although the language he used in referring to a total effective sentence and the manner in which he ordered its cumulation upon the total effective sentence arrived at on the second presentment, may be characterised as inappropriate, his Honour's intention was, in my view, quite clear. What the sentencing judge effectively intended to do was to cumulate a portion of the sentences imposed on four of the counts in the first presentment (1, 2, 6 and 8) with count 3 of the second presentment. In this regard, it should not be forgotten that the listing of the offences on two presentments was solely an administrative and procedural convenience.

43 Where an appellate court is able to discern the intent of a sentencing judge and is satisfied that any flaw in the application of the procedural requirements involved in passing sentence did not affect the aggregate sentence imposed, the court should be slow to conclude that there has been a material error. Accordingly, in the circumstances disclosed in this case, I would not uphold this ground.

44 Insofar as ground 2(b) is concerned, the complaint made is that the sentencing judge impermissibly punished the offender for an uncharged act.

45 The principles applicable in this area of the law are tolerably clear.[9] A person should not be punished for an offence for which he or she has not been convicted and discrete and serious offences should, if the Crown seeks to rely upon them in the sentencing process, be included on the presentment. It is, however, one thing to postulate such a requirement when the circumstance of the offences are clearly discrete; it is quite another to prohibit a court from taking into account aggravating aspects of a substantive offence charged on the presentment.

46 The comments of the sentencing judge upon which this ground is based are found at paras. [28] and [67] of his sentencing remarks. The first passage followed a description of how the bullet fired towards the policeman Donovan had lodged in a nearby car. It reads:

"The taxi by this stage was moving; a number of police officers had surrounded the taxi and it is estimated there was, at least, 100 members of the public in the immediate vicinity in Collins Street."

47 As far as I can discern, this is an accurate and non-contested statement of the facts.

48 Paragraph [67] is as follows:

"Your conduct terrified and harmed a number of police officers and members of the public who were also placed at risk and terrified at various locations after you had stolen the loaded police revolver. Whilst it is accepted that you were under the influence of heroin at the time and that this may have in some way contributed to your failure to realise the gross criminality of your actions that does not make them excusable or any less serious and frightening. You chose to terrify and harm a number of persons. You must now bear the consequences."

49 This again is a statement of fact. The appellant had terrified and harmed not only the police officers who endeavoured to arrest him but also civilians such as Mr Tran and Mr Akram. These were the consequences of the appellant's offending and they were intimately bound up with the substantive offences he had pleaded guilty to committing.

50 The offences upon which the appellant was presented and to which he pleaded guilty were clearly the subject of negotiation: for example, those relating to the discharge of the firearm at police officers. It was not suggested that the offence of affray was considered in this process. Nonetheless, it was the contention of counsel for the appellant, on the basis of the passages to which I have referred, that the fair and proper thing for the Crown to have done would have been to add a count of affray to the presentment. The combination of the failure of the Crown to do so, and the treatment of this aspect of the appellant's conduct by the sentencing judge, produced sentencing error.

51 For the sake of argument I will assume that the offence of affray could be committed by one person[10] and that the offence could be constituted by the actions of the appellant in Collins Street. I will further assume that the phrase "members of the public" in para. [67] extends beyond Messrs. Tran and Akram. Nevertheless, for the Crown to add a further offence based on the circumstances surrounding the substantive events charged, would, in my view, have been unrealistic, superfluous, and arguably an abuse of process. Indeed, when one considers the potential consequences for the appellant if he had had to face an additional charge, the artificiality of this ground is manifest.

52 In any event, I reiterate my earlier comments that the facts described by his Honour were so inextricably intertwined with the offences actually charged on the presentment as not to offend the basal principles to which I have referred.

53 I turn to ground 3.

54 Under the rubric of manifest excess it was first argued that the sentences of 4 years on counts 2, 3 and 11 were manifestly excessive both individually, and in the cumulation of 1 year of counts 2 and 11 upon count 3. It was pointed out that these sentences constituted 40% of the maximum of 10 years for the offence of reckless conduct endangering life and had to be seen in the context of the guilty plea of the appellant at the earliest opportunity; the appellant's remorse; the lack of planning

and premeditation involved in the offences; the appellant's instinctive panic and fear of returning to prison which caused a gross overreaction upon his interception by the police;[11] and the fact that the appellant would necessarily serve his sentence in a highly protected and onerous environment. Additionally it was submitted that the appellant was a relatively young man who had been subjected to serious abuse in his youth within the setting of a dysfunctional family. These experiences had, in turn, given rise to psychological problems and substance abuse. It was also put that the appellant's prospects of rehabilitation were not "bleak" as the sentencing judge had found.

55 Insofar as these submissions were directed specifically to the sentences for reckless conduct endangering life, it is appropriate to examine the gravity of these offences. Clearly, the appellant could have faced even more serious charges for the conduct which he perpetrated. As it was, the appellant's actions in discharging a firearm on two different occasions at separate locations in the direction or vicinity of policemen attempting to effect a lawful arrest constituted serious examples of this offence.

56 As a matter of public policy it was very important that the sentences imposed were calculated to deter the appellant and other persons who might be minded to resort to potentially fatal armed force to prevent their lawful apprehension by the police. Members of the police force ought to be able to perform their lawful duties on behalf of the community without the threat of lethal violence. In this case the police response to the appellant's activities was restrained. However, the potential for the exchange of shots in public places was a very real one. Such a danger needs to be addressed and, as far as is possible, minimised. Further, the traumatic effect of the appellant's actions upon the policemen involved is vividly revealed in their Victim Impact Statements. Additionally, it should not be overlooked that, at the time of these incidents, the appellant was on parole for offences which included a charge of resisting a police officer in the lawful execution of his duty. As was articulated in R. v. Kerbatieh[12]:

"... where offences are very grave and denunciation and deterrence and the protection of the community are the principal sentencing considerations, as they are here, mitigating aspects of offending must play a lesser role in the formulation of the appropriate sentencing disposition."

57 This was clearly the case in relation to the offences the subject of the second presentment. Accordingly, even taking into account the mitigating factors pointed to on behalf of the appellant, the individual sentence imposed could not be described as excessive. Further, the cumulation of 1 year, particularly in relation to count 11, could only be described as moderate.

58 It was next argued that the sentencing judge had given insufficient weight to the principle of totality.

59 It was conceded that because of the provisions of s.31A(2) of the Crimes Act 1958, the sentence on count 6 had to be served cumulatively with the other sentences imposed and, further, that pursuant to s.16(3B) of the Sentencing Act 1991, the total aggregate sentence had, in the circumstances here prevailing, to be served cumulatively upon any period of imprisonment to be served by the appellant consequent upon the cancellation of his parole. It was argued, however, that in order to accommodate these imperatives, and to avoid a crushing sentence, the sentencing judge should have further reduced the individual sentences imposed and allowed a greater degree of concurrency. In aid of these propositions Mill v. The Queen[13] and R. v. McIntosh[14] were cited.[15] The principles are well known. It is sufficient to note the statement of the Court in Mill's case[16]. The Court affirmed the totality principle as described in Thomas, "Principles of Sentencing"[17]:

"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'. The principle has been stated many times in various forms: 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'When ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

"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."

61 Specifically, it was submitted that concurrency was appropriate in relation to counts 2, 3, 4, 8 and 11 i.e. reckless conduct endangering life (counts 2, 3 and 11) and using a firearm to resist arrest (counts 4 and 8). It was put that this should have occurred because the 14 January conduct represented a continuing episode of offending and there were common elements (or aspects) to the above offences.

62 In relation to the breach of parole, the information supplied to the sentencing judge, and reflected in his reasons for sentence, was that the appellant's parole was cancelled by the Adult Parole Board in November 2004 for non-compliance with parole conditions and further, upon his arrest on 14 January 2005, he commenced to serve the unexpired period of his October 2003 sentence being 1 year 2 months and 29 days.

63 I should interpolate that subsequent inquiries of the Parole Board have indicated that the appellant commenced this sentence on 18 January 2005. Consequently, at the time of the imposition of the present sentence, he was to be credited with four days of pre-sentence detention and had served 303 days of the unexpired portion of the October 2003 sentence.

64 Indeed, on the basis of other information supplied by the Parole Board, the appellant would have completed the October 2003 sentence on 11 April 2006.

65 In any event, the appellant had to serve at least 1 year and 2 months of the unexpired parole period. It follows that, given the operation of s.16(3B) of the Sentencing Act 1991, the appellant would be required in the absence of exceptional circumstances (which was conceded) to effectively serve a head sentence of 13 years and 2 months and a minimum period of 10 years and 2 months in prison. This, it was submitted, offended the principle of totality and constituted a crushing sentence.

66 In response to these submissions the respondent pointed out that the sentencing judge had specifically adverted to the various issues raised by the appellant. At para. [80] of his sentencing remarks, his Honour said:

"In determining an appropriate sentence I am mindful of the need to keep in mind the principles of proportionality and totality. The court must not, in my view, impose a crushing sentence. I have considered how the sentences relate to each other and have determined there must be some cumulations and that a total effective sentence and minimum term fixed reflects your total criminality, keeping in mind the principles of totality [and that] each of the victims should be reflected in the sentences imposed."

67 The respondent reiterated that the cumulation on counts 3 and 11 was modest; and the same submission was made as to the 1 year cumulation for the offence of kidnapping Mr Tran (count 5). Further, it was put that 6 months' cumulation of each of the offences of using a firearm to resist arrest (counts 4 and 8) was appropriate since these counts represented conduct which was discrete from that of reckless conduct endangering life (counts 2, 3 and 11).

68 It was pointed out that count 8 involved the totally separate incident which occurred in the Sofitel shopping plaza whilst count 4 involved the additional threat to kill the policemen Tomazic and Leighton made by the appellant after he had fired the shot in their direction and before he decamped into Smith Street.

69 The appellant did not single out any other specific sentence either being of excessive length, or as requiring concurrency. Indeed, in my view, it could not be said that some modest cumulation of the offences of recklessly causing injury to the policeman Todd (count 7) and the assault on Mr Akram (count 9) were not warranted.

70 Moreover, no argument was addressed to the sentences imposed on the first presentment. Given the plethora of criminal activity engaged in by the appellant over a period of 102 days, occurring as it did during a period of parole, these sentences may be regarded as lenient. Further, they bespeak the sentencing judge's awareness of the totality principle.

71 The mitigating factors which existed in this case, and to which the judge had regard, have previously been listed. Insofar as there was reliance upon the appellant's prospects of rehabilitation and custodial hardship, it is clear that the judge had regard to both.

72 It was submitted, however, that his Honour's finding that the appellant's prospects of rehabilitation were bleak[18] were not justified and that the sentencing judge should have shared the "guarded optimism" expressed by the clinical psychologist Mr Patrick Newton, who presented a report on behalf of the appellant. Mr Newton's prognosis was as follows:

"In the last nine months Mr Nobile has commenced the process of recovering from the impacts of a lifetime of personal problems. While his recovery remains at a relatively early stage, and while it is fair to say that he will remain at some risk of relapse to drug use for the medium term, the positive progress he has already made augurs well for his ultimate recovery. From a psychological perspective the most important tasks facing Mr Nobile are to consolidate the positive changes he has made and so to break the vicious cycle of depression, substance abuse and criminal offending which has overshadowed his adult years. While much will clearly depend on the outcome of these proceedings, were Mr Nobile to avail himself of the type of assistance outlined above, and to have the benefit of ongoing monitoring, correctional oversight and support once released, I would consider that it would be reasonable to have a guarded optimism regarding his prospects for recovery."

73 A fair reading of this assessment makes clear the conditional nature of the opinion expressed.

74 True it is that the appellant had the support of a sister and an aunt; had undertaken courses in anger reduction and literacy during the past 10 months in custody; had remained drug free while in prison; and had expressed himself as being committed to overcoming his drug problems. On the other hand, the appellant had an extensive criminal history and shortly after his release on parole he had resumed his use of drugs and returned to his criminal activity. Despite the appellant's commendable custodial activities, it was open to the sentencing judge, faced with the appellant's antecedents, to arrive at the view that his prospects of rehabilitation were bleak. Nonetheless, the sentencing judge accorded some weight to rehabilitation in fixing the non-parole period. His Honour put it in these terms:[19]

"I have also considered the appropriate minimum term. The non-parole period is the minimum term that the court considers, or determines, that justice requires you to serve having regard to all the circumstances. For that reason it cannot be fixed automatically. The court has to consider and determine when you should be eligible for parole and in turn reintegration back into the community. You are still a relatively young man and your only hope of rehabilitation is for you to use the period of time that you will be required to serve in custody to assist you upon your eventual release. Although on the last occasion you were released on parole you lapsed immediately into drug use and further offending. I propose to fix a minimum term where you will be under the care and control of the Parole Board for a substantial period of time if the Parole Board determines that it is appropriate to release you under conditional supervision. In my view, if you are serious about endeavouring to turn your life around and rehabilitate yourself you will benefit from a long period of parole."

75 As for the contention that the sentencing judge gave insufficient weight to the onerous circumstances in which the appellant would serve his imprisonment (namely under protection) it cannot be gainsaid that his Honour was alert to this factor in constructing a total aggregate sentence. In fact he referred to the matter on some six occasions during his sentencing remarks.[20]

76 It was the submission of the respondent that it was clear from the sentencing remarks that the judge gave this factor significant weight in his sentencing synthesis.

77 In addressing the particulars of manifest excess it is salutary to bear in mind the comments of Callaway, JA (with which Winneke, P. and Brooking, JA agreed) in R. v. Bernath[21]:

"A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error. The underlying concept pervades the law relating to discretionary judgments and is not limited to the criminal law. ... The same caution is appropriate when it is said that a sentence is manifestly excessive. In all three cases the question is whether the sentencing discretion was soundly exercised, not how we should have exercised it ourselves."

78 In the instant case it is not possible, in my view, to conclude that the sentencing judge gave insufficient weight to such specific matters as the appellant's prospects of rehabilitation or the nature of his imprisonment. Further, I have already indicated my view that, on their face, the individual sentences and their cumulation are unexceptionable.

79 The only remaining question, in my view, relates to the impact upon the totality principle of the fact that the appellant was required to serve the balance of the October 2003 sentence. It is clear that the sentencing judge was alive to the fact that the sentence he imposed would be required to be served cumulatively upon the unexpired portion of that earlier sentence. He also had regard to the prior offences giving rise to that sentence.[22] It is also apparent that, in the application of the totality principle, the sentencing judge factored into the sentencing equation, as he was required to do,[23] the circumstance that the appellant had to serve approximately 1 year and 2 months of the unexpired parole period.

80 This was in accord with the approach set out in Hunter's case[24] by the Victorian Court of Appeal (Maxwell, P., Buchanan and Redlich, JJ.A.):

"There must be relativity between the totality of the criminality and the totality of sentences, not only for the offences for which the person is being sentenced, but for the sentence which the person is currently serving.

Where parole is cancelled, the principle of totality must 'bulk large' in the determination of the aggregate term of imprisonment imposed for the later offences. [Case cited] In R. v. Sullivan Eames, J.A. (with whom Charles and Buchanan, JJ.A. agreed), said:

'[T]he principle of totality ... requires that the sentencing court evaluate the overall criminality involved in all the offences and adjust the sentence downwards, where appropriate, to ensure there is an appropriate relativity between the totality of the criminality and the totality of the length of sentence imposed. It is a principle which requires the court to have regard both to the sentences about to be imposed and those which the prisoner is undergoing: see Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295. Notwithstanding section 16(3B), the principle of totality also has application in circumstances where, as here, the sentence currently being served derives from a breach of parole'."

81 In the present case, having regard to the overall criminality of the appellant disclosed in both the current offences and those for which he was sentenced in

October 2003, it cannot be said that the total aggregate sentence contravenes the principle of totality.

82 It may be conceded that, since the appellant must serve the unexpired portion of the earlier sentence, the overall disposition is a stern one. However, given the appellant's relatively young age, it could not be characterised as crushing. It follows that, in my view, the ground of manifest excess has not been made out. Accordingly, for all the preceding reasons, I would dismiss this appeal.

83 I agree with Coldrey, A.J.A.

- - -

SCHEDULE 1

BURGLARIES: 5 October 2004 - 14 January 2005

SCHEDULE 2

THEFTS: 5 October 2004 - 14 January 2005

•

Toshiba Satellite 2180 Notebook computer,

•

Computer accessories,

•

Cash - $135,

•

Jewellery

•

Floor safe,

•

Cash:

•

150 Euro,

•

$150 US,

•

[sterling]100,

•

Other currencies: $150.

•

Personal Papers,

•

Keys,

•

Seiko Divers watches,

•

Olympus C-2000 Zoom Camera

•

DKNY Watch,

•

IBM Think pad T21 computer,

•

Computer accessories,

•

Leather wallet,

•

Credit cards,

•

Personal Papers,

•

Cash - $150

•

Casio watch,

•

Panasonic discman,

•

Minolta Camera model 43046,

•

Skate board,

•

CDs

•

Shirts,

•

Cash - $75

•

Cash - $600

•

Car keys,,

•

Watch,

•

Jewellery

•

Cash - $4,000

•

2 x Laptop computers,

•

Sony Mini discman,

•

4 x Watches,

•

Computer accessories,

•

Nokia Mobile phone,

•

Sony Digital Camera,

•

Stopwatch

•

Sony Television,

•

DVD player,

•

Panasonic Stereo/CD player,

•

~ 10 DVDs

•

Doona and Doona covers

•

Gun safe,

•

Personal Papers including Passports

•

Cash - $3,000,

•

Jewellery,

•

Spare keys

•

IBM Think Pad Laptop computer

•

Costume Jewellery

•

Jewellery including earing, necklaces, cosmetic jewellery,

•

Cash

•

Panasonic CD player,

•

Sparkle DVD player,

•

Altec Speaker

•

Sanyo Stereo and Speakers

•

~ 24 DVDs,

•

~ 400 CDs,

•

Back pack,

•

Sanyo Stereo

•

HP Photosmart R707 Digital camera,

•

Cash - $30

•

Gold coin,

•

Haselblood Camera 35mm with accessories,

•

JVC Portable radio,

•

2 x Earrings,

•

Gold ring

•

Cheque books,

•

Passports,

•

Keys,

•

Nokia Mobile phone 3310

•

Gold chains,

•

Pendant,

•

Gold bracelet,

•

Diamond earings,

•

Charm bracelet,

•

Other jewellery,

•

Cash - loose change

•

Necklace,

•

Canon Camera S40

•

Sony Digital Handy Cam with Case,

•

Sony Digital Camera

•

Personal papers,

•

Cash tin,

•

Cash - $450

•

Jewellery,

•

Watches,

•

Cannon Video Camera

•

Fuji Digital camera,

•

Minolta APS camera,

•

Minolta Dynax 5 camera

•

Canon MV630I Digital Video Camera,

•

Cannon EOS50E Epson Camera,

•

Camera equipment,

•

Video equipment,

•

Cash

•

Laptop "Dell" computer,

•

Leather case,

•

Ladies jewellery,

•

Cash - $500

•

Nokia mobile phone,

•

Credit cards,

•

Paperwork

•

Jewellery,

•

Wedding rings,

•

Diamond earrings,

•

Necklaces,

•

Bracelets,

•

Black pearls,

•

White pearls,

•

Gold nuggets,

•

Digital EOS camera

•

Play station 2,

•

Play station accessories,

•

Jewellery,

•

Talon chainsaw

•

Dell Laptop Computer,

•

Carry bag,

•

Sony Cybershot Digital camera

•

Jewellery including a gold necklace, a gold bracelet, a pearl bracelet, earring set, costume jewellery

•

Cash - $65,

•

Wallet,

•

Nokia 6610 Mobile phone

•

Dell Computer

•

Laptop computer,

•

Sony camera with additional memory card,

•

Computer accessories,

•

Omni-book xt6050 computer,

•

Sony Camera DSP9,

•

Ipaq Computer,

•

Toshiba Portege A100 Notebook Computer,

•

CD Rom of Lemony Snicket

•

Toshiba laptop computer,

•

Eriksson Mobile Phone,

•

Sony portable disc player,

•

Jewellery including gold necklaces, silver necklaces, 50 sets of assorted earrings, 2 silver bracelets, 1 gold bracelet,

•

Leather satchel

•

Two lap top computers,

•

Purse,

•

Cash - $500

•

Personal credit cards,

•

Leather satchel,

•

Three Laptop computer bags

•

Mint coin sets,

•

Keys,

•

Wallet,

•

Gold jewellery, including earrings, necklaces, bracelets, rings and cuff links.

•

Watches

•

Personal papers,

•

Cash,

•

Foreign currency

•

Acer lap top computer,

•

Nintendo video game unit,

•

Back pack,

•

Jewellery,

•

Playstation games,

•

CDs

•

Video camera,

•

Gold chain,

•

Cash

•

4 pairs of cuff links,

•

Longines Watch,

•

Earrings,

•

Cash - $8

•

Two lap top computers,

•

Back pack

•

42 inch Plasma television,

•

Jewellery including a yellow gold bracelet with heart clasp and brown pearl earrings,

•

13 bottles of wine,

•

Black ladies handbag,

•

10 DVDs,

•

15 CDS,

•

Cash - $300

•

Keys

•

Two Toshiba laptop computers,

•

Jewellery,

•

Foreign currency,

•

Personal Papers,

•

Cash

•

Cash,

•

Panasonic video recorder,

•

Alcohol,

•

Watches,

•

Jewellery

•

Silver Hitachi Plasma Television,

•

Runners

•

Computer accessories,

•

X-box,

•

Sony DVD player,

•

Sony cd player,

•

Panasonic video recorder,

•

Clothes,

•

DVDs,

•

X-box games,

•

CD discman,

•

Play station games

•

Digital cameras,

•

Gold necklaces,

•

Earrings,

•

Rings,

•

Computers and accessories

•

Wedding ring,

•

Digital camera,

•

Jewellery

•

Computer hard drive,

•

Cash,

•

Cannon Powershot Digital Camera

•

Cash - $15,000

•

Foreign currency,

•

Jewellery,

•

Black brief case,

•

Paperwork

OBTAINING PROPERTY BY DECEPTION: between 21 November 2004 and 21 December 2004

Burwood Trading and Investments Pty Ltd trading as Burwood Cash Converters

OBTAINING PROPERTY BY DECEPTION: 3rd of December 2004

SCHEDULE 5

HANDLING STOLEN GOODS: 7th of January 2005 - 14th of January 2005

•

NAB Money bag,

•

5 x jewellery bag,

•

2 x medal,

•

5 x tie pin,

•

7 x earrings,

•

19 x assorted keys,

•

4 x bracelets,

•

Belt buckle,

•

Micro-cassette tape,

•

Magnifying glass,

•

2 x brooch,

•

1 x metal rod,

•

Computer battery,

•

Assorted cards,

•

Watch,

•

Foreign currency,

•

3 x pendant,

•

Cosmetics,

•

Piggy bank,

•

Senator bag,

•

Coin tray,

•

Bum bag,

•

2 x sunglasses,

•

Leather bag,

•

Guitar pick,

•

Cash tin,

•

2x jewellery box,

•

3x phone cards,

•

Cuff links,

•

3x necklaces,

•

Reebok jacket,

•

Cd Rom games,

•

Laptop computer,

•

Various clothing items,

•

Black satchel,

•

Calculator,

•

Stereo,

•

Torch,

•

Various CDs,

•

Black coin purse,

•

Care stereo covers

This Document does not purport to summarize all of the relevant evidence in this case. It is provided as an aid to the prosecutor and does not form part of the evidence or police brief.

This summary relates to the activities of the accused Damien Mark NOBILE (hereafter referred to as NOBILE) between the 26th of October 2004 and the 17th of January 2005.

During this period NOBILE committed numerous residential daytime burglaries and thefts in various suburbs. NOBILE was a very neat burglar who would not completely ransack the premises. He would wear a suit and tie and carry tools including screw drivers and jemmy bar in a leather satchel. For much of this time he used a stolen Toyota Camry sedan. He stole this vehicle on the 14th of November 2005 at a burglary in Glen Iris. This vehicle was recovered during an attempted burglary in Warrandyte on the 7th of January 2005. NOBILE then used a previously stolen vehicle a Ford Telstar Sedan until it broke down. This vehicle was recovered at Victoria Gardens Shopping Centre in Richmond. NOBILE then used taxi's to get around. NOBILE stayed at a variety of places but most of the time he rented Motel Rooms throughout the state. It is estimated that between the 5th of October 2004 and the 14th of January 2005, NOBILE stole property to the value of $478,757.50.

NOBILE was interviewed on three occasions by the Investigators. During this time he was co-operative and willingly pointed out residential burglaries that he had committed. These residential burglaries were corroborated by NOBILE'S admissions in relation to the method of entry and the type of property stolen from each address. He was also connected to the scene by property recovered by Investigators and forensic evidence.

Between the 5th of October 2004 and the 26th of October 2004 the accused attended at Kew. At this location he went to the rear of the house and forced open a sliding security door to the lounge room. Once inside he stole a note book computer, computer equipment, cash and jewellery. Approximate value of property stolen was $6,400.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 30th of October 2004, NOBILE went to his Aunties address in Preston. NOBILE had stayed at this address prior to this date and had access to all parts of the house. He entered the premises via an unlocked rear window. Once inside he stole a laptop computer valued at $2,000. This laptop was later sold. NOBILE made full admissions to his involvement in the burglary and theft.

On the 2nd of November 2004 between 11.05AM and 11.30AM NOBILE attended at Toorak_._ NOBILE smashed the bathroom window to gain entry into the flat. Once inside the following items were stolen, a floor safe which contained paperwork, cash, keys, watches, camera and foreign currency. Approximate value of property stolen was $4,187.50. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 5th of November 2004 between 2.30PM and 3.00PM NOBILE attended at Prahran. NOBILE entered the house via the rear door. Once inside the following items were stolen DKNY watch, IBM think pad computer, computer accessories, wallet, credit cards, paperwork and cash monies. Approximate value of property stolen was $2,550. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 8th of November 2004 between 8.00AM and 6.15PM NOBILE attended at Toorak_._ NOBILE entered the flat via an unlocked window. Once inside he stole the following items, diving watch, disc man and cash monies. Approximate value of property stolen was $3,400.00. NOBILE identified this flat to investigators and made full admissions to his involvement in the burglary and theft.

Charge 11 (Burglary) & 12 (Theft) & 13 (Theft of Motor Vehicle)

On the 14th of November 2004 between 11.25 AM and 12.15 PM, NOBILE attended at Glen Iris_._ NOBILE went to the rear yard of this address and smashed a leadlight window but was unable to gain entry. He went to another window which was unlocked and climbed in. NOBILE stole cash from the kitchen and the car keys to a Toyota Camry Sedan. Approximate value of property stolen was $31,100.

NOBILE went outside and stole the vehicle which he used until it was seized by the Police on the 7th of January 2005. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. When the vehicle was recovered, Investigators located forensic evidence which linked the accused to the theft of the motor vehicle.

On the 18th of November 2004 NOBILE while driving the stolen vehicle was involved in a minor car accident in Hoddle Street Collingwood. NOBILE exchanged names and gave a previous address of Hotham Street in Lower Templestowe.

On the 15th of November 2004 between 11.30 AM and 5.30 PM, NOBILE attended at Kew_._ NOBILE got into the premises via a double hung window at the rear of the premises. Once inside he stole cash, computer laptops, mini Discman, watches, computer accessories, mobile phone, cameras and a digital camera. Approximate value of property stolen was $12,500.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. Investigators located forensic evidence which links NOBILE to this burglary & theft.

On the 18th of November 2004 between 1.00PM and 2.30PM, NOBILE attended at Brighton_._ At this location he removed louvres from the toilet window and climbed into the house. Once inside he stole four rings and a lap top computer. Approximate value of property stolen was $5,800.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

Charge 18 (Burglary) & 19 (Theft) & 20 (Obtain Property by Deception)

On the 19th of November 2004, NOBILE attended at Elwood_._ At this location he forced the front door of the premises to gain entry. Once inside he stole a Sony Television, DVD player, Panasonic Stereo/CD player and 10 DVD's. Approximate value of property stolen was $1,750.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 21st of November 2004 NOBILE attended at Burwood Cash Converters where he sold the stolen Television and DVD player for $200. NOBILE used his passport as identification. He purported to be the owner of the property when he sold it to Cash Converters.

On the 22nd of November 2004, NOBILE attended at Templestowe Lower. NOBILE forced the garage door and then forced an internal door with intention to steal therein. However the audible alarm activated and NOBILE decamped from the scene. The damage is estimated at $400.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary.

On the 23rd of November 2004 between 7.00AM and 5.50PM, NOBILE attended at Balwyn North. At this location he forced the rear sliding door. Once inside he stole cash. Approximate value of property stolen was $2,500.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 23rd of November 2004 between 2.00PM and 2.10 PM, NOBILE attended at Doncaster. He forced the rear sliding door of the premises with a jemmy bar. On entering the premises he stole a blue gun safe from the wardrobe in the master bedroom. The safe contained passports, $3,000 cash monies, jewellery and spare keys. Approximate value of property stolen was $7,000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

The victim attended at Doncaster Police Station and identified his property that was in Police possession.

On the 23rd of November 2004 between 4.00PM and 6.00 PM, NOBILE attended at Templestowe. NOBILE gained entry into the premises via opening an unlocked rear window. Once inside he has stolen a lap top computer. . Approximate value of property stolen was $2,100.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim attended at Doncaster Police Station and identified her property that was in Police possession.

On the 25th of November 2004 between 12.45PM and 1.45PM, NOBILE attended at Donvale_._ NOBILE removed a lower window out of the window frame at the back of the house. Once inside he has stolen jewellery and cash from various parts of the house. Approximate value of property stolen was $4,000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim attended at Doncaster Police Station and identified her property that was in Police possession.

Between the 25th of November 2004 and the 5th of February 2005 NOBILE attended at Balwyn_._ At this location he broke the front window to gain entry into the flat. Once inside he stole a CD player, DVD player and stereo. Approximate value of property stolen was $610.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim attended at Doncaster Police Station and identified her property that was in Police possession.

On the 28th of November 2004 between 11.00AM and 1.00PM, NOBILE attended at Chadstone. NOBILE knows the victim and has stayed at the address prior. On this occasion NOBILE used the spare key to gain entry into the premises. Once inside he stole a large amount of DVD's and CD'S, back pack, and a stereo. Approximate value of property stolen was $16,250.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 29th of November 2004 between 9.30AM and 3.00PM, NOBILE attended at Surrey Hills. NOBILE jemmied open the bedroom window. Once inside he stole a Sony Television. Approximate value of property stolen was $800.00. NOBILE identified this flat to investigators and made full admissions to his involvement in the burglary and theft.

On the 29th of November 2004 between 10.00AM and 4.00PM, NOBILE attended at Camberwell. NOBILE gained entry into the flat by entering through an unlocked window. Once inside he stole a digital camera and cash. Approximate value of property stolen was $630.00. NOBILE identified this flat to investigators and made full admissions to his involvement in the burglary and theft.

On the 29th of November 2004 between 10.00AM and 9.00PM, NOBILE attended at Blackburn. He climbed into the rear yard. He used a step ladder to climb in through an upstairs window. Once inside he stole jewellery, camera, gold coins, portable radio, earrings, and a gold ring. Approximate value of property stolen was $15,000.00. NOBILE identified this flat to investigators and made full admissions to his involvement in the burglary and theft. Investigators located forensic evidence which links NOBILE to this burglary & theft.

Between the 30th of November 2004 and 6th of December 2004, NOBILE attended at Templestowe. At this location he broke a side window to gain entry. Once inside he stole a camera. Approximate value of property stolen was $300.00. NOBILE identified this flat to investigators and made full admissions to his involvement in the burglary and theft.

On the 3rd of December 2004 between 10.15AM and 4.00PM, NOBILE attended at Doncaster. NOBILE gained entry into the premises by forcing the front window with a screwdriver or similar item. NOBILE searched the premises but nothing was stolen. Damage to the window frame was estimated at $400. NOBILE identified this flat to investigators and made full admissions to his involvement in the burglary.

On the 3rd of December 2004 between 9.45AM and 10.30AM, NOBILE and an un-identified co-offender attended at Malvern_._ At this location he smashed a window at the rear of the premises. Once entry was gained NOBILE stole cheque books, passports, keys and a mobile phone. NOBILE left the premises when the victim's returned home. Approximate value of property stolen was $500.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary.

Charge 45 (Make False Document) & 46 (Use False Document) & 47 (Obtain Property by Deception)

Shortly after this burglary at Malvern between 11.23AM NOBILE attended at the Westpac Bank at Abbotsford. Prior to entering the Bank, NOBILE falsified one of the stolen cheques to pay "Cash to the bearer - two hundred dollars and signed it Bill Case". NOBILE presented this stolen cheque to the bank teller with his passport. He was given two hundred dollars in cash monies.

Charge 48 (Make False Document) & 49 (Use False Document) & 50 (Obtain Property by Deception)

At 12.12PM on the same day NOBILE falsified another cheque to "Pay Cash to the bearer - two hundred and fifty dollars and signed it Bill Case. NOBILE again entered the Abbotsford Westpac bank and presented the cheque. He used his passport as identification and received two hundred and fifty dollars.

Charge 51 (Make False Document) & 52 (Use False Document) & 53 (Attempt to Obtain Property by Deception)

At 3.20PM on the same day NOBILE falsified another cheque to "Pay Cash to the bearer - Four hundred and forty five dollars and signed it Bill Case. NOBILE again entered the Abbotsford Westpac Bank and presented the cheque for payment. Again he used his passport as identification. However the cheques had been reported as stolen and the account had been placed on hold. NOBILE became suspicious when the teller went to make a telephone call. NOBILE then left the bank without any money.

Between the 4.00PM on the 5th of December 2004 and 11.15AM on the 6th of December 2004, NOBILE attended at Kew and entered the house through an unlocked window. Once inside NOBILE has searched the premises stealing money and jewellery. Approximate value of property stolen was $3000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. Investigators located forensic evidence which links NOBILE to this burglary & theft.

On the 6th of December 2004, NOBILE attended at Donvale_._ The victim in this matter was asleep when he heard noises on the roof. NOBILE forced open the rear toilet window with intent to steal therein. He was halfway through the toilet window when the victim walked in on him. NOBILE ran from the scene and decamped in the stolen green Camry sedan. NOBILE identified this house to investigators and made full admissions to his involvement in the aggravated burglary.

On the 6th of December 2004 between 10.15am and 10.30am, NOBILE attended at Kew_._ At this location he used a wheelie bin to climb onto the roof and then through a unlocked bedroom window. NOBILE stole four rings from the flat. Approximate value of property stolen was $750.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 6th of December 2004 between 8.30AM and 6.30PM, NOBILE attended at Templestowe Lower. He entered the house through the large dog flap in the rear door. Once inside he stole a gold chain, pendants, diamond earrings, charm bracelet, more jewellery and loose change. Approximate value of property stolen was $10,000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. Some of this jewellery was recovered at the Melbourne Jewellery exchange.

On the 8th of December 2004 between 9.00AM and 5.00PM, NOBILE attended at Balwyn. He entered the premises by forcing the rear sliding door. Once inside he stole a necklace and canon camera. Approximate value of property stolen was $4700.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 10th of December 2004 between 9.00AM and 5.00PM, NOBILE attended at Montrose. He entered the premises by an unlocked window. Once inside he stole a digital handy camera with case, another digital camera, cash tin, personal papers, and cash monies. Approximate value of property stolen was $2000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 10th of December 2004 between 9.00AM and 6.00PM, NOBILE attended at Montrose_._ He entered the premises by forcing a bedroom door. Once inside he stole a quantity of jewellery, watches and Cannon video camera. Approximate value of property stolen was $6500.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 13th of December 2004 between 7.00AM and 6.30PM, NOBILE attended at Sassafras_._ He entered the premises forcing the flyscreen door and then entering through the French doors. Once inside he stole a digital camera, Minolta APS Camera and Minolta Dynax 5 camera. Approximate value of property stolen was $1500.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

Between the 11th of December 2004 and the 13th of December 2004, NOBILE attended at Ferny Creek. NOBILE removed the bedroom flywire screen and entered through an open window. Once inside he stole a Canon digital camera, canon Espo camera, camera equipment, video camera and cash. Approximate value of property stolen was $2064.95. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 12th of December 2004 between 11.00 AM and 4.10 PM, NOBILE attended at the Basin. He then forced open the rear laundry door. Once inside he stole a laptop computer, leather case, ladies jewellery and cash_._ Approximate value of property stolen was $3,300.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. Investigators located forensic evidence which links NOBILE to this burglary & theft.

On the 13th of December 2004 between 9.00AM and 2.00PM, NOBILE attended at Ferny Creek. He entered the premises via an open rear window. Once inside he stole a Nokia mobile phone, Credit Cards and paperwork. Approximate value of property stolen was $1200.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 13th of December 2004 between 12.00PM and 10.30 PM, NOBILE attended at Monbulk_._ NOBILE entered the house through an open sash window. Once inside he stole $1400 cash. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. Investigators located forensic evidence which links NOBILE to this burglary & theft.

On the 14th of December 2004 between 8.45AM and 3.15PM, NOBILE attended at Park Orchards. He entered the premises via an unlocked second storey door. Once inside he stole a large quantity of jewellery including wedding rings, diamond earrings, necklaces, bracelets, gold nuggets and a digital camera. Approximate value of property stolen was $40,000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. Some of this jewellery was recovered at the Melbourne Jewellery exchange.

On the 14th of December 2004 between 2.00PM and 4.00PM, NOBILE attended at Vermont South. NOBILE forced open the rear door. Once inside he stole a Video camera. Approximate value of property stolen was $700.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 20th of December 2004 between 9.00AM and 2.45 PM, NOBILE attended at Lower Templestowe_._ At this location he tried to break into the flat via a window. His intention was to steal therein. The total damage to the window was $25.00.

Charge 82 (Burglary) & 83 (Theft) & 84 (Obtain Property by Deception)

On the 20th of December 2004 between 7.45Am and 6.00PM, NOBILE attended at DoncasteR. At this location he forced the lounge room window. Once inside he stole a Play station 2, Play station accessories, jewellery and Talon chainsaw from the garage. Approximate value of property stolen was $5,500.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 21st of December 2004 at 4.21PM, NOBILE attended at the King of Seconds Second hand dealer in Elsternwick_._ At this location NOBILE pawned the Talon Chain saw, Play station 2 and accessories for $150.00. NOBILE used his passport as identification.

On the 23rd of December 2004 between 3.30PM and 4.45PM, NOBILE attended at Eltham_._ At this location he forced open the rear door. Once inside he stole a Dell Computer including carry bag and a digital camera. Approximate value of property stolen was $6,100.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 23rd of December 2004 between 9.00AM and 5.00PM, NOBILE attended at Eltham. At this location he forced the bedroom window open. Once inside he stole jewellery, cash, wallet and a mobile phone. Approximate value of property stolen was $3000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 24th of December 2004 between 11.00AM and 3.00PM, NOBILE attended at Warrandyte North_._ NOBILE forced the rear window. Once inside he stole a lap top computer, Sony camera, Computer accessories, Ipaq computer and a Omni book computer. Approximate value of property stolen was $10,000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 25th of December 2004 between 3.00PM and 3.05PM, NOBILE attended at Canterbury_._ NOBILE broke a window to gain entry into the premises. Once inside he stole a Toshiba Laptop computer and a computer CD. Approximate value of property stolen was $3,500.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. Investigators located forensic evidence which links NOBILE to this burglary & theft.

On the 25th of December 2004 between 2.30PM and 7.30PM, NOBILE attended at Blackburn_._ NOBILE entered the premises by manipulating the lock on the rear door. Once inside he stole, Toshiba lap top computer, Ericsson Mobile Phone, Sony DVD player, a quantity of jewellery and a leather satchel. Approximate value of property stolen was $4,400.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 25th of December 2004 between 9.50AM and 10.00P, NOBILE attended at Doncaster. NOBILE entered the premises via forcing the lounge room window. Once inside he stole two lap top computers, a purse, money, personal credit cards, foreign currency, leather satchel and three lap top computer bags. Approximate value of property stolen was $10500.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim attended at Doncaster Police Station and identified property in Police possession that belonged to hers.

Between the 26th of December 2004 and the 30th of December 2004, NOBILE attended at Templestowe. NOBILE entered the premises via climbing onto the balcony and entering through a unlocked bedroom door. Once inside NOBILE forced open a two drawer filing cabinet. NOBILE stole a large amount of jewellery, the following coins, Perth Mint: Mawson Station 50th Anniversary Commemorative Coin 1954 -2004 (2 Coin set), Perth Mint HRH Prince William of Wales 21st Birthday Coin, The Perth Mint Queen Mother 2004 Anniversary Coin, The Perth Mint Five-coin Proof Kookaburra Set 2003 and 2004 set, The Perth Mint five coin Australian Nugget Coin Series 2002 Set, 2003 Set 2004 and a quantity of personal papers. Approximate value of property stolen was $140,000.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim attended at Doncaster Police Station and identified property in Police possession that belonged to him. The victim also attended at the Melbourne Exchange Jewellers and located some jewellery that NOBILE sold.

Between the 26th of December 2004 and the 11th of January 2005, NOBILE attended at Bulleen. NOBILE forced the front bedroom window of the premises to gain entry into the premises. Once inside he stole an Acer lap top computer, Nintendo Video Game Unit, back pack, jewellery, play station games, and various CDS. Approximate value of property stolen was $5,000. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

Between the 26th of December 2004 and the 27th of December 2004, NOBILE attended at Doncaster. NOBILE forced the bathroom window to gain entry into the premises. Once inside he stole a video camera, jewellery, and cash money. Approximate value of property stolen was $2,000. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

Between the 27th of December 2004 and the 8th of January 2005, NOBILE attended at Kew_._ NOBILE forced the front sash window of the dressing room to gain entry into the premises. Once inside he stole, cuff links, watches, earrings and a jar of coins. Approximate value of property stolen was $2,000. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

Between the 29th of December 2004 and the 3rd of January 2005, NOBILE attended at Park Orchards. NOBILE forced the bedroom window to gain entry. Once inside NOBILE search the premises but nothing was reported stolen. The damage to the premises was $400.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary.

Between the 2nd of January 2005 and the 7th of January 2005, NOBILE attended at Eltham. NOBILE forced the bedroom window to gain entry into the premise. Once inside he stole two lap top computers and one back pack. Approximate value of property stolen was $7,000. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 3rd of January 2005 between 2.30 PM and 11.15 PM, NOBILE attended at Park Orchards. NOBILE forced the front window of the premises to gain entry. Once inside he search the premises and stole the plasma television, jewellery, 13 bottles of wine, black ladies hand bag, DVD's, CD's, quantity of jewellery and cash monies. Approximate value of property stolen was $8,3000. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. Investigators located forensic evidence which links NOBILE to this burglary & theft.

On the 3rd of January 2005 between 11.50AM and 12.15PM, NOBILE attended at Doncaster_._ NOBILE then forced the front door of the premises. Once inside he stole, two Toshiba Lap top Computers, a quantity of jewellery, foreign currency, paperwork and cash. Approximate value of property stolen was $15,000. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim attended at Doncaster Police Station and identified property in Police possession that belonged to him. One of the Lap top computers was later recovered at a Second Hand Dealers shop.

On the 4th of January 2005 between 1.30PM and 4.00PM, NOBILE attended at Park Orchards_._ NOBILE then forced the rear door to gain entry into the premises. Once inside he stole cash monies, Panasonic Video recorder, alcohol, watches and jewellery. Approximate value of property stolen was $1,220. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim attended at Doncaster Police Station and identified property in Police possession that belonged to her.

On the 4th of January 2005 between 8.30am and 6.30pm the victim drove her vehicle a blue Ford Telstar sedan to the Clifton Hill Railway Station. She parked the vehicle in the car park and boarded the train to the city. Between these times an unknown offender stole the vehicle. The vehicle was involved in numerous theft from vehicles in the Richmond area. NOBILE is not a suspect for these offences nor did he initially steal the vehicle.

On the 7th of January 2005 Investigators seized the stolen Green Camry sedan in Warrandyte Road Warrandyte as NOBILE was going to do a burglary. NOBILE was now without a mode of transport. Investigators located a quantity of stolen property in the vehicle.

On the 8th of January, NOBILE stole the previous stolen Ford Telstar sedan from the Hoddle Street Flats. NOBILE used this vehicle to do burglaries for the next few days. Approximate value of the vehicle was $6,000.

NOBILE during his interview on the 21st of January 2005 led investigations to the Victoria Gardens Complex car park in Richmond and pointed out the stolen vehicle to investigators. The vehicle had broken down when he was shopping at the complex a couple of weeks earlier. Investigators located a quantity of stolen property in the vehicle.

NOBILE made full admissions to his involvement in the theft of motor vehicle. Investigators located forensic evidence in the stolen vehicles to link NOBILE to them.

On the 9th of January 2005 between 8.00 am and 10.30 am, NOBILE attended at Doncaster_._ At this premises he smashed the rear door to gain entry. Once inside he stole a silver Hitachi Plasma Television and a pair of runners. Approximate value of property stolen was $6,000. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 10th of January 2005 between 11.00am and 8.00pm NOBILE attended at Templestowe_._ At this location NOBILE climbed onto a veranda and entered the premises through an unlocked door. Once inside he stole a Compaq laptop computer. Approximate value of property stolen was $2,750.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

Between the 10th of January 2005 and the 11th of January 2005 NOBILE attended at Templestowe_._ At this location he forced the rear window of the premises and stole computer accessories, x-box computer system, Sony DVD player, Sony Cd player, Panasonic video recorder, clothes, DVD's, X-box games, Cd's, disc man and play station games. Approximate value of property stolen was $9,636.00. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 11th of January 2005 between 8.15am and 6.00pm NOBILE attended at Templestowe. At this location he forced the rear door to gain entry. Once inside he stole digital cameras, gold necklaces, earrings, rings, computers and other accessories. Approximate value of property stolen was more than $20,000. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim later attended at Doncaster Police Station and identified property in Police possession that belonged to him.

Between the 11th of January 2005 and the 15th of January 2005 NOBILE attended at Doncaster_._ At this location he forced the front window. Once inside he stole a wedding ring, digital camera and another jewellery piece. Approximate value of property stolen was more than $3,200. NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft.

On the 11th of January 2005 between 12.00pm and 3.00pm NOBILE attended at Templestowe_._ At this premises NOBILE forced open the side window. Once inside he stole a computer hard drive, cash monies and a Cannon Power shot digital camera. Approximate value of property stolen was $1,500.00 NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim later attended at Doncaster Police Station and identified property in Police possession that belonged to him. Investigators located forensic evidence at the scene which linked NOBILE to the burglary and theft.

Between the 11th of January 2005 and the 14th of January 2005 NOBILE attended at Doncaster. At this premises he forced open the study room window. Once inside NOBILE stole foreign currency, cash, assorted jewellery, black brief case and assorted paperwork. Approximate value of property stolen was $25,000.00 NOBILE identified this house to investigators and made full admissions to his involvement in the burglary and theft. The victim later attended at Doncaster Police Station and identified property in Police possession that belonged to him.

Between the 7th of January 2005 and the 14th of January 2005, Investigators came into possession of a substantial amount of property which had been retained by NOBILE during his crime spree. The property was recovered from four locations which were;

(1)

Stolen Vehicle Green Camry sedan

(2)

Stolen Vehicle Blue Telstar Sedan

(3)

Exhibits left at a flat in the Commission flats in Hoddle Street Collingwood.

(4)

Motel room 224 Bayview on the park.

The property included NAB Money bag, 5x Jewellery bag, 2x medal, 5x tie pin, 7x earrings, 19x assorted keys, 4x bracelet, belt buckle, Micro-cassette tape, magnifying glass, 2x brooch, 1x metal rod, computer battery, assorted cards, watch, foreign currency, 3x pendant, cosmetics, piggy bank, senator bag, coin tray, bum bag, 2x sunglasses, leather bag, guitar pick, cash tin, 2x jewellery box, 3x phone cards, cuff links, 3x necklaces, Reebok jacket, CD Rom games, Laptop computer, various clothing items, black satchel, calculator, stereo, torch, various CDs, black coin purse and car stereo covers. Investigators believe the items are stolen however they are unable to identify the owners.

[1] [2004] VSCA 222 esp. at [37].

[2] R. v. Teremoana (1990) 54 S.A.S.R. 30 at 38, per King, C.J.; R. v. Newman and Turnbull [1997] 1 V.R. 146 at 152, per Winneke, P.

[3] [1981] HCA 31; (1981) 147 C.L.R. 383 at 389.

[4] See Taylor v. D.P.P. [1973] A.C. 964 at 986; D.P.P. v. Johnston [2004] VSCA 150; (2004) 10 V.R. 85 at 97[30].

[5] Cf. R. v. Hennen [2004] VSCA 42 at [31].

[6] [2003] VSCA 44 at [17].

[7] This was accepted by the sentencing judge who stated (para. [67] of the reason for sentence) that this may "in some way" have contributed to the appellant's failure to realise the gross criminality of his actions but did not provide an excuse for them.

[8] [2004] VSCA 222. See particularly the comments of Ormiston, J.A. at paras. [34]-[39].

[9] See De Simoni v. R. [1981] HCA 31; (1981) 147 C.L.R. 383 and R. v. Newman and Turnball (1997) 1 V.R. 146.

[10] See Taylor v. D.P.P. (1973) A.C. 964

[11] It was accepted that the appellant had been sexually assaulted at Port Phillip Prison in 2003 and, on a later occasion, stabbed with a sharpened toothbrush at the Melbourne Assessment Prison.

[12] [2005] VSCA 194; (2005) 155 A.Crim.R. 367 at 393 [119].

[13] (1998) 166 C.L.R. 59.

[14] [2005] VSCA 106 at [16]- [21].

[15] See also D.P.P. v. Grabovac (1998) 1 V.R. 664 at 677-681.

[16] Ibid at [63].

[17] 2nd ed. (1979), pp.56-57.

[18] Para. [68] of reasons for sentence.

[19] Para. [80] of reasons for sentence.

[20] See paras. [32], [42], [43], [68], [76] and [79] of the reasons for sentence.

[21] [1997] 1 V.R. 271 at 277.

[22] See paras. [57], [58] and [74] of reasons for sentence.

[23] See for example R. v. Orphanides [2002] VSCA 86; (2002) 130 A.Crim.R. 403; R. v. Sullivan [2005] VSCA 286 and R. v. Hunter [2006] VSCA 129.

[24] Ibid at [30]-[31].