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[2007] VSCA 5
Court of Appeal (Vic)
2007-01-30
BUCHANAN, VINCENT and NETTLE JJA
Original judgment source is linked above.
Criminal Law - Sentencing - Stalking - Arson - Reckless conduct endangering persons - Appellant sentenced to 13 years with a non-parole period of 10 years - Whether sentence crushing and manifestly excessive - Whether judge gave sufficient weight to appellant's medical condition and totality - Sentencing discretion re-opened and appellant re-sentenced to 11 years with a non-parole period of 8 years.
1 I will ask Nettle JA to deliver the first judgment.
2 On 29 April 2005 the appellant pleaded guilty before the County Court at Melbourne to two counts of stalking (Counts 1 and 2), two counts of arson (Counts 3 and 4) and one counts of reckless conduct endangering persons (Count 5) and, following a plea in mitigation, he was sentenced on each of Counts 1 and 2 to a term of imprisonment of 18 months, on Count 3 to a term of imprisonment of eight years, on Count 4, on which he was sentenced as a serious arson offender, to a term of imprisonment of seven years, and on Count 5 to a term of imprisonment of three years. The judge directed that nine months of the sentence imposed on Count 1, nine months of the sentence imposed on Count 2, three years of the sentence imposed on Count 4 and one year of the sentence imposed on Count 5 be served cumulatively on the sentence imposed on Count 3 and on each other, thus making for a total effective sentence of 13 years and six months' imprisonment, and set a non-parole period of 10 years.
3 The appellant now appeals with leave against the sentence on grounds that the judge gave too little weight to the appellant's medical condition and too much weight to the risk of the appellant re-offending; that the judge failed to give weight to the fact that the appellant would serve the sentence in protective custody; and that the sentence is manifestly excessive and offends against the principle of totality.
4 The facts are not in dispute. The appellant was born on 24 November 1942 and, at the time of the offences in August 2004, he was 61 years of age. He had separated from his wife, Ms Bernadette Nixon, in 1996 and they had divorced in 1998. The three children of the marriage, Justin and Jonathan (at the time of the offending both aged 17 years) and Rhiannon (then aged 16 years) lived with Ms Nixon at the family home in an eastern suburb of Melbourne. An intervention order granted on 31 January 2002 prohibited the appellant from contacting, harassing, or stalking Ms Nixon or attending within five hundred metres of the home address. That order was not due to expire until 17 November 2007.
5 At the time the appellant was sharing a house with one Rinaldo Papa in a northern suburb of Melbourne.
6 Until about July 2004, Ms Nixon's parents, William and Mary Nixon, lived in a house in a south eastern suburb of Melbourne. There had been some animosity between the appellant and Mr Nixon due to the divorce and at one stage Mr Nixon had obtained an intervention order against the appellant which expired on 15 December 2002. In or about July 2004 Mr and Mrs Nixon sold their house and moved to another but they took with them their old telephone number.
7 In the months preceding August 2004, the appellant made several abusive telephone calls to Mr Nixon and sent him a number of abusive letters stating that Ms Nixon had turned his children against him. On 19 August 2004, the appellant telephoned to ask whether Mr Nixon could organize conciliation between him and his children. Mr Nixon replied that he was not interested and that he was finished with the appellant.
Count 1
8 On 20 August 2004, the appellant made some dozen telephone calls to Mr Nixon in which he threatened to throw rocks at Mr Nixon's car and to poison his garden. He said that he would do the same to his son's, Adrian's, car and garden. Mr Nixon became concerned and feared that the appellant was aware of his new address. He contacted the Mordialloc Police Station and was advised that the police would increase patrols in the vicinity of his home.
21 August 2004
9 Ms Nixon operated a hair dressing business at her home. On Saturday, 21 August 2004, she worked from 8.00 a.m. until 4.30 p.m. At 12.55 p.m. the telephone rang. Ms Nixon answered the call but there was silence. The caller identification display showed the number from which the call was made. Telephone company records showed that a three second call was made from that number to Ms Nixon at 12.55 p.m. and that a further telephone call was made from that number to Ms Nixon's sister, Denise Savage at 12.59 p.m.
10 At about 5.10 p.m. in the presence of her daughter, Rhiannon, Bernadette Nixon telephoned the number shown by the caller identification display. The call was answered by the appellant. Bernadette Nixon hung up without speaking to him.
11 At 5.15 p.m. Ms Nixon received a further telephone call. The caller, whose voice was not recognizable, asked Bernadette Nixon who she was. In response, she asked who the caller was and he said "Rinaldo". The caller identification display showed the same number as before. Ms Nixon said that she did not know anyone called Rinaldo and hung up.
12 Two minutes later the telephone rang again and was answered by Rhiannon. The caller proceeded in the same manner as before, identifying himself as Rinaldo. Again the caller identification display showed the same number. Telephone company records showed that two telephone calls of about twenty seconds duration were made from the appellant's telephone to Bernadette Nixon at 5.15 p.m. and 5.17 p.m.
13 Thereafter, the telephone rang again on four or five separate occasions. Each time, the caller identification display showed the same number. Those calls were not answered but Ms Nixon noted the times of each of these calls in her diary.
14 At about 6.30 p.m. Ms Nixon left the house with her children and went to the home of her sister, Denise Savage, where they stayed the night.
15 Thereafter, between 8.11 p.m. and 11.30 p.m. the appellant made a total of thirty eight telephone calls from his home telephone to the home telephones of Denise Savage, William Nixon and Adrian Nixon (including calls comprising Count 2), in which the appellant was abusive and threatening.
Count 2
16 At about 8.35 p.m., Adrian Nixon was at home when his wife, Jennifer, answered the telephone. The caller was the appellant and asked to speak to Adrian Nixon. Adrian Nixon took the call and told the appellant that he did not want anything to do with him. The appellant persisted, however. He was abusive and insulting and asserted grievances about a previous court hearing in which Adrian Nixon had given evidence against the appellant. Adrian Nixon hung up on him.
17 The appellant telephoned again. He continued to be abusive and he threatened to break the windows of Adrian Nixon's house, poison his garden and smash the windows of his car. The appellant repeatedly said that he had been in gaol and could get things organized. Adrian Nixon hung up again.
18 Thereafter, the appellant telephoned Adrian Nixon a further fifteen to twenty times and continued verbally to abuse and threaten him.
Count 3
19 Earlier in the evening of 21 August 2004, Rinaldo Papa borrowed the appellant's car to visit friends. He returned to the appellant's home at about 11.00 p.m. He saw that the appellant was drunk. The appellant told Papa that he was going to burn down his wife's house, poison her father's garden and set fire to his house as well. He repeatedly said: "I am going to do it, I am going to do it", and he added that he had given them that house, for which he had worked, and that they did not deserve to have it. He also said that he wanted to shoot up on "speed". Papa left the car keys in the lounge room and went to his bedroom.
20 At about 11.30 p.m. the appellant left his home and drove to Bernadette Nixon's home. He used a dumbbell to break the living room window. He splashed petrol from a can through the broken window into the living room, lit the petrol and set fire to the premises. Then he left the scene in his motor vehicle.
21 Neighbours heard the noise and saw the house in flames and contacted the emergency services. The fire brigade attended at 11.33 p.m. and it took about 15 minutes to extinguish the blaze. The total damage caused to the premises was estimated to be in excess of $150,000.
Counts 4 and 5
22 At about 1.30 a.m. on 22 August 2004 the appellant arrived at the house which until July 2004 had been owned and occupied by William and Mary Nixon. It was, however, since then owned by Lorenzo and Jodie Pettenuzo, who were at home with their two young children, Zac and Rocco, aged 5 years and 18 months respectively.
23 The appellant parked his vehicle at the front of the house and walked to the window of the master bedroom at the front of the house, where Mr and Mrs Pettenuzo were asleep in bed. The Pettenuzos' eighteen month old child was asleep in an adjacent front bedroom and their five year old child was asleep in a bedroom towards the rear of the house.
24 The appellant then shattered the bedroom window, poured petrol onto the curtains inside the windows and set fire to the curtains.
25 Mr and Mrs Pettenuzo woke up and saw the appellant set fire to the curtains. Mr Pettenuzo managed to extinguish the fire before any substantial damage was done. The total damage caused to the premises was estimated at approximately $2,100.
23 August 2004
26 At about midday on 22 August 2004, the appellant returned to the house he shared with Papa. He told Papa: "I set fire to the house. I made sure they weren't home". He said that he had checked the garage and saw that there was no car. He also said: "I went to Bill's place and smashed the window and threw a bit of petrol on the curtain and set it alight". He said that someone started yelling something and he took off.
27 The appellant telephoned his brother, John Noonan, in Canada. He told his brother that he had set fire to Bernadette and William Nixon's homes. He said that he used a dumbbell to break a window at Ms Nixon's home and used petrol to start the fire to teach her a lesson. He said that he started the fire in William Nixon's home as retribution for Nixon's recent refusal to plead his case to his ex-wife.
28 At about 1.19 p.m. on Monday 23 August 2004, the appellant made a telephone call to the office of Paul Nixon, another brother of Bernadette Nixon. The appellant referred to Paul Nixon having telephoned the appellant's brother in Canada earlier that day. He told Paul Nixon that he had booked himself into a motel room on the previous evening and injected what he thought would be sufficient heroin to kill himself. He said that he would again endeavour to kill himself in the same manner the following evening in a different motel.
29 The appellant told Paul Nixon that he had set fire to Bernadette Nixon's home, that he knew that he would be imprisoned if he continued to live and he was not prepared to go back to gaol. He repeated that Bernadette Nixon and her children needed to be taught a lesson, which was why he set fire to the house. He said he would do the same again because Bernadette Nixon deserved it.
30 He said that he checked that no-one was at home, by telephoning beforehand and knocking on the door on arrival. He added that he then asked his helper (whom he referred to as "her") to check that Bernadette Nixon's car was not in the garage. He said that he used petrol to start the fire.
31 The appellant also told Paul Nixon that he set fire to Mr Nixon's parent's home on the same night because he was infuriated with Mr Nixon's brother, Adrian Nixon, after a series of seven or eight telephone calls he had made to him on Saturday 21 August 2004. The appellant stated that he had started the fire by breaking the lounge room window and pouring in half a can of petrol. He said that he only wanted to cause about $60,000 worth of damage.
32 The appellant then continued to air his grievances at length, which as it turned out provided an opportunity to have the call traced to the appellant's home. Thus he was found by police still speaking on the telephone when they arrived at his home at about 3.20 p.m. He was then was arrested and his car was searched. There was a strong smell of petrol in the cabin and boot and two barbell hand weights and a hammer inside the car.
33 In a tape-recorded interview the appellant declined to answer questions and made no comment to the allegations put. Subsequently, however, on 27 August 2004, while on remand at the Melbourne Assessment Prison, he wrote letters to Ms Nixon and his children and to William Nixon, confirming that he had set fire to the two houses.
34 At the plea he also admitted to previous convictions on 17 January 2000 of one count of stalking, for which he received a suspended sentence of three months imprisonment; on 19 April 2002, of four counts of stalking and of breaching the terms and conditions of an intervention order, for which he received an aggregate term of imprisonment of 12 months with a non-parole period of five months; on 3 July 2002, of breaching the terms of an intervention order, for which he received a suspended sentence of two months' imprisonment and on 12 September 2002 of unlawful assault and using indecent language for which he was sentenced to be released on a community based order for a period of 12 months, as well as counts of obtaining financial advantage by deception, using indecent language and failing to submit to a breath test.
Ground 2A - Medical condition
35 It is apparent from the evidence tendered on the plea that the appellant is not a well man. He suffers from HIV, Hepatitis C and renal failure and as the judge found he has a cognitive defect albeit that it did not have a significant effect on the appellant's moral culpability. The judge explained in his sentencing remarks that he took the effects of the appellant's medical condition into account in formulating the sentence, as follows:
"Of more significance is the fact that you are a very ill man. A lot of medical material had been provided. You are HIV positive and have many other serious physical ailments. You have renal failure in recent times, suffer from chronic diarrhoea and generally are seriously unwell. Those matters do clearly, in the normal course of events, make it harder to undergo a prison sentence.
You have been deteriorating badly in a physical sense and almost certainly in an emotional sense in the period of time leading up to this offending. It is quite clear though, from the material, that when incarcerated your health improved. As I said, the situation is that you are in circumstances where you can receive appropriate care but I do take those matters significantly into account in terms of this sentencing process.
...
Again, as I have said, I have taken into account principles of totality and am aware that wherever possible, a crushing sentence should be avoided. I take into your account your age. Mention was made in some of the reports about a diminished life expectancy. There is no evidence before me of that and in a strange way, imprisonment would seem to be a situation which may extend it. However, again, to give you the benefit of the doubt, I have taken into account that you may have a shorter life expectancy than others."
36 It is also apparent that the judge was seriously concerned about the prospects of the appellant re-offending and that his Honour regarded that as a factor which weighed heavily against the appellant. As his Honour put it:
"...This was an escalation of previous conduct. It is clear on these materials and having read the letters that you have sent to the children and the material you have sent to me, the way you spoke to the police when interviewed and all the other matters, that you are an angry, vengeful, self pitying and dangerous man.
I could not be satisfied in any way, shape of form that you do not pose an ongoing, continuing threat to your family. Those matters must play an important part in this sentencing process.
...
There is very little else that can be said on your behalf. As I have said, you, at the time, regarded yourself as entitled to exercise this revenge and expression of your anger on totally innocent people. On the materials before me, there is nothing to suggest that your belief in that entitlement has in any way diminished. Your prospects for rehabilitation could only be regarded as bleak. Your prospects of re-
offending, perhaps not to this serious degree but certainly in relation to your family, must be regarded as significant.
Families and innocent people are entitled to be protected by the law. As I have already said, I will not labour the point, it is my view that you are dangerous, quite capable of such offending again and protection must be put in place. That has always been a common law sentencing principle and is now enforced, of course, by legislation."
37 Despite, however, the judge's detailed consideration of the effects of the appellant's illnesses and the risk that he might re-offend, counsel for the appellant sought and was given leave to amend the appellant's grounds of appeal to include a new ground, in effect in substitution for the existing Ground 2, to the effect that: (a) that the judge had erred by failing adequately to synthesize and reflect in the sentence imposed the appellant's ill and deteriorating health; and (b) that the judge had attached too much weight to the appellant's posing a continued risk of re-offending once released.
38 In support of the first part of that contention counsel argued that it was not open for the judge to find, as he had, that the appellant's health had improved whilst in custody or to infer, as was submitted to be implicit in the judge's finding, that the appellant's health would be better managed in gaol than outside. In counsel's submission, the appellant's episodes of renal failure and deteriorating mental health leading up to the sentence illustrated the point and, more importantly, he said, there was evidence given by Dr Mitch that the Hepatitis C from which the appellant suffers could not be properly managed in gaol.
39 In support of the second part of this new ground of appeal, counsel argued that the judge had erred in finding that he could not be satisfied in any way shape or form that the appellant did not pose an ongoing continuing threat to his family.
40 I am not persuaded that there is anything in the first part of the argument. Dr Mitch's evidence was that, before the appellant was arrested, he had essentially no effective anti-retroviral treatment, and he had had the usual progression of HIV illness untreated. His liver function tests were substantially abnormal, and he had contracted Hepatitis C. Contrastingly, in the prison environment he was getting and would continue to receive anti-viral treatment for HIV and he looked better and he was actually turning up and adhering to medication that was being offered regularly within the service. Dr Mitch said that if the appellant continued on the treatment he was likely to do very well. He was likely to maintain his weight, maintain the immune recovery and all the symptoms that went with being immune suppressed should not come back. Dr Mitch did say that it was unlikely that he could be effectively treated for Hepatitis C in prison. But as the doctor also pointed out, it is a very difficult disease to treat anyway.
41 In those circumstances, I regard it as having been well open to the judge to conclude that the appellant's health had improved whilst in custody and to infer that the appellant's health would be better managed in gaol than outside. With respect, I would draw the same conclusions myself.
42 Concerning the second part of the proposed new ground of appeal, counsel for the appellant argued that the judge's statement as to not being satisfied that the appellant did not pose an ongoing continuing threat to his family was a positive finding adverse to the appellant that the appellant would pose a continued threat to his family on release, and that given the age and medical condition of the appellant, it was either not open to make the finding, or if it were, it was a finding to which the judge had given too much emphasis.
43 In my view that argument is equally unpersuasive. The judge did not make a positive finding that the appellant would re-offend on release. His Honour's conclusion, as stated, was that he could not be satisfied that the appellant would not re-offend on release, and that meaning is made clear by his Honour's further observations that, having regard to the fact that the appellant had regarded himself as entitled to exercise revenge and express his anger on innocent people, and that on the medical and psychiatric evidence there was nothing to suggest that the appellant's belief in that entitlement had diminished, there was a significant risk of re-offending.
44 I do not accept that the judge gave too much weight to that risk. One of the purposes for which a sentence of imprisonment is imposed is to protect the community from the offender.[1] And, for the reasons given by the judge, the risk of re-offending was such as to require a substantial sentence in order to achieve that objective.
Ground 4 - Service of sentence in protection
45 Under cover of ground 4, counsel for the appellant contended that the judge had erred by failing to acknowledge in his sentencing remarks the consequences of the fact that the appellant's sentence would be served in protective custody. I reject that contention too.
46 No doubt a sentence served in protective custody is likely to be more onerous than one served in mainstream and, accordingly, there is authority that the fact that prisoner is likely to serve a sentence in protection is a factor which ought ordinarily be taken into account.[2] But that does not mean that a sentence served in protection should invariably be regarded as more onerous than one served in mainstream - depending upon the facts and the nature of the prisoner, it may be less onerous - or that the fact that a sentence is to be served in protection is something to which a sentencing judge must always make specific reference in order to avoid the risk of error.
47 Counsel for the appellant prayed in aid what this court said about the issue in Bangard. But, as it appears to me, what was said there was, for present purposes, really beside the point. In Bangard, counsel for the applicant had urged the judge to bear in mind that the sentence would be served in protection, and thus that it would be a more onerous sentence than one served in mainstream. The judge, however, stated in his sentencing remarks that he had excluded the matter from consideration (on the basis that he could not be certain how long the applicant would remain in protection). It was, therefore, the judge's decision deliberately to exclude the matter from consideration which was found to be in error. Contrastingly, in this case there is no reason to think that the judge excluded the matter from consideration. To the contrary, to an experienced criminal trial judge such as his Honour it would in effect go without saying that service of the sentence in protection was a factor to be brought to account, and thus it may be assumed that it was brought to account.
48 More generally, in the absence of some particular submission on the matter or other reason to make particular mention of it, I do not consider that it is necessary or to be treated as indicative of error that a sentencing judge may not refer specifically to the effects of service of a sentence in protection.
Ground 1 - Manifest excessiveness
49 Counsel for the appellant argued next that the individual sentences imposed on Counts 3 and 4 were manifestly excessive[3] and further or alternatively that the orders for cumulation resulted in a total effective sentence which was crushing and therefore manifestly excessive.
50 Counsel for the appellant properly accepted that Counts 3 and 4 warranted condign punishment but urged that sentences of eight years' imprisonment were so severe that the judge must surely have failed to have take into account the appellant's early plea of guilty, the fact that he knew or believed Ms Nixon's house to be empty, the disturbed state of mind of the appellant at the time of the offending, his ill-health, his age, the limited facilities available in prison for the treatment of Hepatitis C and the fact of having to serve the sentence in protective custody.
51 One difficulty with that submission is that the judge made plain in his sentencing remarks that he took into account the appellant's plea of guilty and that he believed that Ms Nixon's house was empty and the appellant's age and medical
condition, while the judge was not persuaded that the appellant's state of mind significantly ameliorated the level of his culpability.
52 On the other hand, there is force in counsel's submission that the sentences were very high. The maximum sentence for the offence of arson is 15 years imprisonment[4] but sentences imposed for the offence of arson are generally considerably less than that. In recent times they have not often exceeded five years,[5] and I note that, when writing in 1999 in the second edition of their work on sentencing, Fox and Freiberg recorded that the longest sentence for one count of arson in a case on appeal to that point was five years.[6]
53 Counsel for the Director argued in support of the sentences imposed on Counts 3 and 4 that the offences were particularly reprehensible. As he put it, the arson the subject of Count 3 was born of hatred and revenge and committed in a context where the appellant thought that there would be no ongoing consequences for him, and while it may be that the appellant believed that no one was home when he set the house alight, the effect on all three victims was still substantial. He added that the arson the subject of Count 4 was in one sense worse, since it was committed in the expectation that Ms Nixon's aged parents were at home at the time of igniting the fire, and he contended that there is no reason to suppose that Ms Nixon's aged parents would have reacted with the speed that Mr and Mrs Pettenuzzo reacted and therefore good reason to think that the damage could well have been greater if Ms Nixon's parents had still been living at their old address as the appellant believed. Additionally, it was said that it was significant that the appellant was sentenced on Count 4 as a serious arson offender, and thus upon the basis that protection of the community from the appellant as the principal purpose for which the sentence was imposed,[7] and it was submitted that in the circumstances of this
case that judge was plainly entitled to take the view that the community needed to be protected.
54 Counsel for the Director accepted as he was bound to do that the sentences imposed on Counts 3 and 4 were very high. But he submitted that, when all the circumstances - particularly the motivation and prior convictions of the appellant are taken into account - the sentences were appropriate. As the Director would have it, the offences the subject of Counts 3 and 4 should indeed be seen as falling into the highest category of seriousness for offences of arson not causing death and thus, despite the mitigatory factors to which the judge referred, the sentences were within range.
55 Notwithstanding the force of the Director's submissions, I do not accept that the offence the subject of Count 3 should be regarded as being amongst the most serious of arson offences not causing death. Assuming, as I think one must in favour of the appellant, that he took care to ensure that no one was at home when he set fire to the property, his personal circumstances at the time and what appears to have been his obsession with his failed marriage and the loss of access to his children, it appears to me that the nature and gravity of his offence was limited to destroying the property of others in order to get even with them for what he irrationally conceived of as being the harm they had done him. Plainly, it was a dangerous and serious offence, and the appellant's motivation was appalling. But in relative terms I do not see the offence as necessarily being much if any more serious than an arson committed for profit or material advantage. Giving full weight to the nature and effects of Count 3, but at the same time bearing in mind current sentencing practices, I am persuaded that a sentence of more than half the maximum sentence was beyond the range, even for an offender with previous convictions like those of the appellant.
56 As already noted, the offence the subject of Count 4 was in one sense more serious than Count 3, because the appellant believed that his parents in law were within the premises. That is not to say, however, that he intended to injure them and it is to be remembered that the appellant was separately charged by Count 5 with reckless conduct endangering life, and that he is not to be sentenced on Count 4 in respect of factors which were the subject of Count 5. Accordingly, and even allowing that the appellant was sentenced on Count 4 as a serious arson offender, and thus that community protection was the principal sentencing consideration, in my opinion a sentence of seven years' imprisonment was beyond the range. As I see it, the sentencing discretion is re-opened.
Re-sentencing
57 I turn then to the process of re-sentencing the appellant. I have referred already to the nature and gravity of the offences and to what might be considered the aggravating and mitigatory circumstances. With respect I am also inclined to agree with the judge that there is no evidence of any significant degree of remorse, and that the chances of rehabilitation are slight, and I bear in mind too the effect of the offences on the victims as set out in the victim impact statements which were before the judge. On the other side, enough has also been said of the personal circumstances of the appellant to show that he is very ill and likely to continue to suffer and that his time in prison will be very onerous.
58 The case is one which calls for a sentence which reflects the court's denunciation of the appellant's conduct and provides general deterrence against this sort of offending and just punishment. I take leave to doubt however that any sentence imposed in this case will have much effect by way of specific deterrence or add to or detract from the chances of rehabilitation. Plainly, with respect, the judge was right that the single most important sentencing consideration in this case is community protection.
59 Balancing those considerations, I would reduce the sentence to be imposed on the appellant in respect of Count 3 to six years imprisonment and in respect of Count 4 to a term of imprisonment of six years, the latter being higher than would otherwise be the case in order to reflect the fact that the appellant is to be sentenced on that count as a serious arson offender. I would then re-sentence the appellant to
terms of imprisonment, the same as those imposed by the sentencing judge, of three years on the counts of reckless endangerment (Count 5) and to 18 months imprisonment on the counts of stalking (Counts 1 and 2).
60 Bearing in mind that the appellant stands to be re-sentenced on Count 4 as a serious arson offender, I would order that three years the sentence imposed on Count 4 be served concurrently with the sentence imposed on Count 3. I would further direct that six months of the sentence imposed on count 1, six months of the sentence imposed on count 2 and one year of the sentence imposed on count 5 be served cumulatively on the sentence imposed on Count 3 and on each other, thus making for a total effective sentence of 11 years imprisonment. Having regard then to the need for community protection and at the same time the appellant's age and medical condition, I would further order that the appellant serve not less than eight years' imprisonment before being eligible for parole.
The appeal is allowed.
The sentence passed below is set aside and in lieu thereof the appellant is sentenced to a term of six years' imprisonment on each of counts 3 and 4, to a term of 18 months' imprisonment on each of counts 1 and 2 and to a term of three years' imprisonment on count 5.
It is ordered that three years of the sentence imposed in respect of count 4 be served concurrently with the sentence imposed in respect of count 3, that six months of the sentence imposed in respect of count 1, six months of the sentence imposed in respect of count 2 and one year of the sentence imposed in respect of count 5 be served cumulatively on each other and on the sentence imposed in respect of count 3.
The total effective sentence is 11 years' imprisonment.
A minimum term of eight years' imprisonment is fixed.
The appellant is sentenced on count 4 as a serious arson offender.
It is declared that a period of 890 days' imprisonment has been served in respect of the sentence and it is ordered that the fact that that declaration has been made and its details be noted in the records of the Court.
[1] Sentencing Act 1991, s 5(1)(f).
[2] R v Bangard [2005] VSCA 313 at [13] and[14], and see the cases there cited.
[3] He abandoned any suggestion that the individual sentences imposed on Counts 1 and 2 were manifestly excessive.
[5] See _Victorian Higher Court Sentencing Stati_stics, for the years 1997 to 2003.
[6] Fox & Freiberg, Sentencing, State and Federal Law in Victoria, 2nd Ed. at 12.804.
R
Noonan [2007] VSCA 5