R v Orphanides [2002] VSCA 86

5. When pleading guilty to all seven counts, the applicant admitted two prior convictions for trafficking in a drug of dependence and one prior conviction for possession of a drug of dependence, offences for which he had been sentenced by his Honour Judge Hart in the County Court on 14 June 1996. His Honour's sentencing remarks were before the judge on this occasion and they describe trafficking in heroin over a number of months from January to July 1995 and also in amphetamine on 1 June 1995. The applicant was at that time 33 years old, a married man with two children. The offending came to light by virtue of an undercover operation by the police which led to a number of persons being prosecuted, including the applicant and his wife, they having acted, it appears, as suppliers to a number of "sub-dealers" who, for a time at least, worked out of the applicant's home - to his wife's displeasure, it was said. For the offending then charged, the applicant was sentenced on 14 June 1996 to a total effective term of three and a half years' imprisonment, with a non-parole period of 18 months. Because there was pre-sentence detention to be reckoned of 329 days, the applicant was released from gaol early in 1997 and he was still on parole at the time of the present offending, in January and May 1998.

8. The maximum penalty for trafficking in a drug of dependence, contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981 as it stood at the relevant time, was 15 years' imprisonment. Count 7, alleging possession, was accepted on the plea as being possession for own use and so, under s.73(1)(b) of the Act, the maximum penalty was a fine of $3,000 or imprisonment for one year, or both. The maximum penalty for possession as alleged in count 6, however, was governed by s.73(1)(c) of the Act, and so was a fine of $40,000 or five years' imprisonment or both.

11. After a plea in mitigation, the applicant was sentenced on each of counts 1, 2, 3, 4 and 5 to imprisonment for 18 months; on count 6, to imprisonment for nine months and on count 7 to imprisonment for one month. Six months of the term imposed on each of counts 2, 3, 4, and 5 were ordered to be served cumulatively on each other and on the sentence imposed on count 1; and three months of the sentence imposed on count 6 were ordered, in effect, to be served cumulatively on the foregoing. The total effective sentence was therefore of three years and nine months, of which two years and three months was fixed as the non-parole period. There was pre-sentence detention of 37 days. A pecuniary penalty was also imposed of $2,000.

14. By notice dated 23 May 2001 the applicant sought leave to appeal against sentence on the sole ground that the sentence (sic) imposed was manifestly excessive.

17. On 3 August 2001, the application came before me, as a single judge, under s.582 of the Crimes Act. Mr. Croucher, who appeared then (as now) for the applicant, sought an adjournment on the ground that time was needed to obtain further information about, inter alia, the illness of the applicant's little daughter Nikita. The applicant, who has now been married for some 20 years, has four daughters, aged 18, 15, 4 and 3. Nikita, who has apparently been in poor health since birth, is the second youngest and on 3 August I was told that she was about to go into hospital for another operation. Accordingly an adjournment was granted and it is the adjourned application that is now before us for determination.

20. Notwithstanding that the adjournment was ordered nearly nine months previously, it was only a few days before the hearing was due to recommence on 29 April last that application was made to amend the grounds of appeal and to file a further affidavit. Amendment was allowed by the Registrar and the added grounds are these:

2. The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

3. The learned sentencing judge erred in ordering any cumulation, or as to the extent of cumulation ordered.

(a) in failing to conclude that the hardship to the applicant's family resulting from his incarceration was "exceptional";

(b) in failing to give any weight to the effect of the applicant's incarceration on his family;

(c) in failing to give any weight to the added burden of imprisonment on the applicant in view of the hardship to be faced by his family in his absence and in view of his previous assistance to the authorities;

(d) in failing to give any or sufficient weight to the applicant's attempts at and prospects of rehabilitation.

5. The applicant will seek to lead fresh evidence concerning:

(a) the medical condition of the applicant's daughter, Nikita Orphanides;

(b) the effects of the applicant's incarceration on his family, particularly his wife Darlene and daughter Nikita;

(c) the added burden of imprisonment on the applicant in view of the foregoing matters and in view of his assistance to the authorities.

6. The learned sentencing judge erred in failing to have regard to the provisions of s 16(3B) of the Sentencing Act 1991.

The fresh evidence mentioned in ground 5 is the recently filed affidavit, which was sworn on of 24 April 2002 by the applicant's wife. It is convenient, however, to deal with the application first without regard to that affidavit.

37. The circumstances of the offending for which the applicant was sentenced on 11 May 2001 are in short compass. The applicant was caught selling heroin to an undercover police officer on the five dates in January 1998 identified in counts 1 to 5. On 13 January the undercover officer purchased what purported to be one gram of heroin for $400, although upon analysis it was found to contain only 0.4 of a gram of heroin. On 16 January a like purchase was made, and so again on 19 January. On 21 January, although a similar purchase was apparently made, there was a shortfall on this occasion as the substance sold itself turned out to be less than one gram and so on 22 January the applicant sold to the undercover operative what purported to be 1.5 grams of heroin, although on analysis it was found to be 1.3 grams of heroin pure. The total quantity of the substances purchased was 3.5 grams, and the heroin purity ranged from between 40 to 60 per cent approximately. As each of the five purchases cost the undercover police officer the same sum, the total spent by her was $2,000, and hence the imposition of the pecuniary penalty in that amount.

40. On 5 May 1998 the police executed a search warrant at the applicant's home in Doncaster. On a bench in the kitchen electric scales were found with traces of a brown powder substance on them, a substance subsequently found to be heroin. In addition, nine boxes of Sudafed tablets (1170 in all) were found, tablets which would yield 57 grams of pure pseudoephedrine (count 6). In a drawer in the vanity unit of the bathroom off the main bedroom, a small silver foil packet was found containing 0.4 of a gram of a substance containing methylamphetamine (count 7).

43. The applicant, when first interviewed by police, declined to answer any questions, as was his right. A four day committal was held in February 1999, and the applicant was released on bail. It was not until much later that the applicant indicated that he would plead guilty. The plea was heard in April 2001 and so, on any view there was a significant gap between the date of the offending and the hearing of the plea, but, as the sentencing judge said, this was not the fault of the Crown.

46. In more detail, the contested committal took place in February 1999 and on 21 June 1999 the original presentment was filed on which the applicant and a co-offender were arraigned on 23 June, both pleading not guilty. A trial was listed for 1 February 2000. The matter was mentioned on 21 January, when the applicant sought an adjournment which was related to the illness of Nikita. The trial date of 1 February was vacated and the trial was re-listed for 14 August 2000. There was a callover shortly before that, on 24 July, and then further mentions on 7 and 10 August. On 10 August the applicant announced that he was proposing to plead guilty and so the matter was listed for plea on 27 November 2000. At a further mention on 21 November, the applicant sought an adjournment due to problems with legal aid and the plea date of 27 November was vacated and the matter re-listed for plea on 8 February 2001. At the applicant's request, there was a further adjournment, again due to legal aid problems and the matter came on finally for hearing, as a plea, on 20 April 2001. All that was told to the sentencing judge in answer to his question of how the delay had occurred and hence, no doubt, his Honour's comment that the delay was no fault of the Crown.

49. One consequence of the considerable lapse of time since the offending was this, that by the time of the plea in April 2001 applicant's counsel was able to say that the whole of the earlier period of parole (which was two years) had elapsed without the Parole Board's having treated the applicant as in breach. It is now said in ground 6 that the judge was in error in not bringing to account in sentencing the possibility of the applicant's being called to book for his breach of parole, because, although the Board had as yet made no move to revoke parole, it still remained a possibility that the applicant would be required to spend the unexpired portion of the earlier sentence in prison, once he was sentenced to more than three months' imprisonment.

52. On the plea, counsel for the applicant emphasised his client's previously unblemished record, unblemished, that is, until the offending for which he was dealt with in June 1996. That offending was described by counsel as the product of a disastrous business venture into which the applicant had flung himself after being retrenched from his previous employment. The business venture in question was that of a café/restaurant in the city which required from him very long hours, in consequence of which, finding himself ill-equipped for the work, he fell into the use of drugs. Hence, it was said, the offending for which he was sentenced in 1996. When he came out of gaol in January 1997, full of positive thoughts (as his counsel put it), he found that he could not get work and, although not using drugs at that time, "other things happened to ultimately break this man's resolve". His mother-in-law was diagnosed with terminal cancer and in September 1997 she moved in to be with her daughter for such time as was left to her. The child Nikita was born on 13 March 1998, with serious health problems, and the applicant's own father had a quadruple bypass for heart trouble. The applicant then "relapsed back into the heroin", using drugs and trafficking, the offences for which he was now before the court.

55. Applicant's counsel emphasised to the sentencing judge that the trafficking in January 1998 had occurred in a very short period - a matter of days only - and, as counsel put it, it was at the lower end of the scale. Her submission that it was no more than street trading was rejected; for, as the judge said, the applicant sold to the undercover police officer with a view to her selling it on, no doubt in smaller amounts to other persons. It may be that in the result none of the drugs in question reached the street, but the applicant was, as his Honour said, "in the hierarchy or chain of trafficking, albeit towards the lower end".

59. As to grounds 1, 2 and 3, in my opinion there is nothing in the claims of manifest excess or excessive cumulation. In the course of the plea, reference was made to many matters going in mitigation and all of them, I think, were brought to account by the sentencing judge, including the applicant's pleas of guilty, the time that had elapsed between his offending and the sentencing and the difficulties his incarceration would pose for his wife and children. It was true too, as Mr. Croucher submitted to us, that there was no evidence of any other offending by the applicant while awaiting trial on these charges and in his favour there were his efforts at rehabilitation in the meantime. More particularly there was evidence from two women of the applicant's helping two or three young people to deal with, even if not to overcome, their own problems of addiction. And as applicant's counsel had said on the plea, according to the applicant "this is the longest period of abstinence that he's had for many years", since he fell into the habit of using drugs while working at the café/restaurant business.

62. As to the plea of guilty which was first notified on 10 August 2000, the judge said this:-

"You have pleaded guilty to these offences and that is to be taken into account in your favour. As to remorse, no doubt you regret the situation you are now in. I am, however, unable to take the view that you do have any true remorse."

That is not now said to have been specific error. As to rehabilitation, Mr. Croucher was apt to emphasise the steps taken by the applicant along that path during the period between his release from prison in January 1997 and his incarceration when sentence was passed in May 2001. The judge took this into account, but said:-

"I am unable to take the view that there is a probability of rehabilitation by you. Any view that you might successfully rehabilitate in the longer term must in my opinion be very guarded."

Mr Croucher was critical of this as unduly dismissive of what had already been achieved by the applicant, but that is not so. His Honour was saying no more than that he could not find a "probability of rehabilitation", and there was no error in that. Efforts had undoubtedly been made, but with what long term success remained to be seen, given the applicant's lapse into re-offending. Accordingly, specific deterrence could not properly be put aside altogether and of course general deterrence remained important, given the nature of the offending.

69. In substance, Mr. Croucher's principal submission was that the total effective sentence and the non-parole period overstated the criminality involved in the applicant's offending. I disagree. It is true that the amount of heroin involved in the offences charged was less than four grams, but the offence itself is a grave one and, coming as it did during a period of parole for previous trafficking (albeit in circumstances which appear, at least on their face, to have been somewhat more serious), the sentences imposed, whether considered individually or together, were not, in my opinion, beyond the range properly open to the learned judge in the exercise of his sentencing discretion. Mr. Croucher submitted that the applicant made four sales, and only four sales, choosing to desist at that point by deliberately switching off his mobile telephone and thereby breaking off contact with the undercover operative. I am not certain that the evidence went so far as that, but it does not matter in the end. I cannot regard the sentences passed, or indeed the orders for cumulation, as manifestly excessive. In my opinion all were within range.

73. What I have said in rejecting grounds 1, 2 and 3 has incidentally also despatched ground 4(d). As for grounds 4(a), (b) and (c), these focus on the hardship to the family occasioned by the applicant's incarceration and the burden to the applicant himself of his imprisonment. As for the first, it was submitted that, given the illness of the child Nikita and the obvious difficulties that that must pose for the applicant's wife in seeking to bring up four children, including the sick child, the hardship to the family was exceptional. In sentencing, his Honour rejected that submission and again I see no error, given what was put on the plea. Undoubtedly one must have sympathy for Nikita, but there was not a great deal of detailed material put before the judge about her condition.

76. There was the report of Dr. Fong, a paediatric cardiologist, dated 26 July 2000, which commenced:-

"Nikita was reviewed on the 24.07.00. She has Noonan Syndrome with pulmonary valve and supravalvular pulmonary stenosis for which we undertook balloon valvuloplasty on the 20.10.99. Unfortunately this did not respond because of the supravalvar component and then on the 11.02.00 she had a pulmonary valvotomy and pulmonary arterioplasty with patch repair for the supravalvular pulmonary stenosis. Nikita then appeared to develop a hypertrophic cardiomyopathy predominantly effecting (sic) the right ventricle. She subsequently developed a significant left chylothorax which first presented on about the 28.05.00. This then required left pleurodesis .... . Pleurodesis was undertaken via chemicals using a chest drain on 3 occasions with the drains finally removed on the 29.06.00."

80. There was also before the judge a substantial extract obtained on the Internet from a rare-disease data base about Noonan syndrome, in which it was described as "a rare genetic disorder that is typically evident at birth". The article makes distressing reading because it sets out what may afflict those who suffer from the condition, but of course cases will vary and in its conclusion Dr. Fong's report was not unhopeful, despite its grim beginning. After describing the steps so far taken to deal with Nikita's problems, including the medication that was now being administered and its effects, the doctor said: "She now has a good appetite with no breathing difficulties". He concluded his report by saying that Nikita would continue on the current medication - ...

"... and if she remains well without any signs of breathing difficulties or oedema I plan a review again in 3-4 weeks time unless there are earlier concerns."

84. By the time of the plea on 20 April 2001 the report of July 2000 was quite old and yet there was no further report put in evidence. Apparently Nikita was still going to the Royal Children's Hospital for check-ups and on one occasion when she was in hospital the applicant had spent two weeks by her bedside. But the judge had no detailed and up to date medical report on the child and, as I have said, Dr Fong certainly appeared not altogether unhopeful when he wrote in July 2000. It was self-evident that the incarceration of Nikita's father would exacerbate her mother's difficulties in caring for her and the other three children, but, given the limited nature of the information put before the judge, I see no error in his Honour's concluding that the family circumstances were not such as to constitute exceptional hardship, militating against the immediate incarceration of the applicant. This was not, for example, a case of children being left to fend for themselves without any parental supervision or support[1]; nor was it one of those rare cases in which the regular attendance of both parents was necessary for the continued wellbeing of a disabled child[2].

87. In the course of the plea, applicant's counsel mentioned the possibility of a sentence of three years' imprisonment, the thrust of her submission being that any prison sentence should be suspended, either wholly or in part. In elaborating on this, counsel referred to the family problems, and in particular the health of the daughter Nikita, as constituting "exceptional hardship". The judge then asked if counsel was "adducing any medical evidence that this will have some significant adverse effect upon the child if he's incarcerated", to which counsel replied that she was in no position to do so and no such evidence was in fact forthcoming. Without such evidence, his Honour did not err in failing to be satisfied of exceptional hardship, should the applicant be imprisoned. True it is that Nikita suffers significantly from ill-health, but, as is so often the case, it is the family which suffers when gaol is ordered. Such might have provided a basis for an exercise of mercy, but in itself that does not bespeak error on the part of the sentencing judge.

90. The other aspect of hardship relied upon by Mr. Croucher was hardship to the applicant by reason of the added burden for him of imprisonment, given his and his wife's earlier assistance to authorities. This was mentioned in the context of assistance already brought to account by his Honour Judge Hart, when sentencing the applicant and his wife on the earlier occasion, in June 1996. Credit was given then and Mr. Croucher did not seek credit again; instead he relied upon the fact that prison must be the more difficult for the applicant in the result. So it was in June 1996, he submitted; and so it was still, given the genesis of the difficulty. The problem, however, was that this was not put by counsel on the plea; his Honour was not specifically asked to bring it to account and accordingly it is not surprising that no reference to it can be found in the sentencing remarks. None the less his Honour was fully alive to the sentencing remarks of Judge Hart where the matter was earlier explored and, as his Honour is an experienced criminal judge, he is unlikely to have left it out of account. As the matter was not mentioned to him, I am not prepared to find error in that regard. There is nothing, therefore, in ground 4.

94. Ground 6 is that the sentencing judge fell into error by failing to have regard to s.16(3B) of the Sentencing Act 1991. According to Mr. Croucher, his Honour wrongly dismissed it as irrelevant, but I do not agree.

97. Section 16(3B) provides that, unless otherwise directed by the court because of the existence of exceptional circumstances, every term of imprisonment imposed on a person for an offence committed while released on parole -

"must ... be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order".

The words just quoted do no more than direct the manner in which the sentence being imposed is to be served, should the prisoner have committed the offence for which he or she is being sentenced while on parole for other offending. Of course the express qualification contained within the subsection, by reference to "exceptional circumstances", means that cumulation is but the prima facie rule[3], capable of being displaced should a court so direct on the ground of exceptional circumstances. But subject to that qualification, s.16(3B) appears to me intended simply to abrogate, when an offence is committed during a period of parole, the general rule otherwise applying by virtue of s.16(1), that sentences are to be served concurrently. That was the purpose of s.16(3B), and on one view its only purpose.

102. In this regard it may be noted that s.16(3B) was enacted when the former s.16(1) was recast consequent upon the introduction of special provisions for, inter alia, the sentencing of serious sexual offenders: the amendment to s.16 was worked by s.8 of the Sentencing (Amendment) Act 1993[4]. Section 16(3B), although in much the same terms then as now, applied initially only to sentencing to imprisonment "for a sexual offence or a violent offence" (as defined). The subsection was amended to take its present form, with general application, by s.10 of the Sentencing and Other Acts (Amendment) Act 1997[5]. The predecessor of s.16(1) (s.15 of the Penalties and Sentences Act 1985), in providing for concurrency as a general rule had itself replaced the previous regime which was for cumulation unless otherwise ordered: s.123 of the Social Welfare Act 1971 and before that s.19 of the Gaols Act 1958 and its precursors. Given the history, it is obvious enough that s.16(3B) reflected a deliberate return, at least in part, to earlier days by providing that, in the absence of exceptional circumstances, uncompleted sentences of imprisonment should in certain circumstances be served cumulatively, not concurrently.

105. In this particular instance, two things were clear. First, s.16(3B) was called into operation because the more recent offending did occur while the applicant was on parole, and, secondly, there were no "exceptional circumstances" within the meaning of s.16(3B). As already mentioned, the question of "exceptional hardship" arose early in the course of the plea and counsel had then been warned, in effect, of the need for further medical evidence if in that context the condition of little Nikita was to be relied upon. No doubt the issue of exceptional hardship militating against immediate imprisonment is not precisely the same as the issue of exceptional circumstances within the meaning of s.16(3B), but the two are not dissimilar. Mr. Croucher suggested, but faintly I think, that there might have been "exceptional circumstances" here, but in my view his Honour was of opinion that on the material before him that was not shown - and that is a view which, if I may say so with respect, I share.

108. Mr. Croucher's submission about s.16(3B) turned upon what he submitted was the judge's dismissing of the subsection as irrelevant, and he pointed to what his Honour said immediately after announcing the sentences that he was imposing:-

"I was also informed by your counsel that the offences for which you have just been sentenced were committed by you while still on parole. You have not, so I was informed, been required to serve any period of imprisonment on any cancellation of that parole order, certainly to date and I do not think, therefore, that s.16(3B) of the Sentencing Act falls for consideration."

112. This obviously followed on from the discussion that had occurred with counsel over s.16(3B) during the plea, when applicant's counsel, having raised the subsection, then doubted its relevance, given that the applicant "hasn't [yet] been breached and his parole is now completed" - a comment which led his Honour to say that "it doesn't seem to have any effect here because ... he's not being required to serve any period of imprisonment". In his turn prosecuting counsel, when invited to comment, submitted that -

".... there's no suggestion that they [the Parole Board} are going to take any action, and if they do presumably they will take into account Your Honour's sentence today ..."

"I shouldn't speculate upon what the Parole Board may do .... or not do. I simply impose the sentences which I think are appropriate. But so far as s.16(3B) is concerned at the present time it doesn't seem to have any application because the prisoner was not required [by the Board] to serve any term of imprisonment".

In so saying his Honour meant no more, I think, than this: that the section was not going to have any application (in the sense of operation) unless the Board first "called up" some portion at least of the earlier parole period and required that it be served in prison. Plainly that was correct and it is significant that no-one took issue with this comment of the judge's.

119. Mr. Croucher's submission, however, was that the judge fell into error in two respects. First, he submitted, there was error in that, by dismissing s.16(3B) as irrelevant, his Honour failed altogether to consider whether an order should be made under that subsection to displace the cumulation otherwise directed. The short answer to that is, of course, that such an order depends upon there being "exceptional circumstances" and, as I read the transcript, his Honour was already of the view that on the material he had there were not. Secondly, said Mr. Croucher, the judge fell into error because, by dismissing s.16(3B) as irrelevant, the judge failed to bring to account in sentencing the possibility that the applicant might be called upon by the Parole Board to serve in gaol the whole of the earlier parole period - all two years of it. The Parole Board had the power so to require if and when it cancelled the parole for breach, which was particularly relevant, he submitted, in applying the principle of totality; for another two years in prison (albeit for the previous offending) could have made the sentences imposed for the current offending crushing, when the latter were to be served cumulatively upon the former as directed by s.16(3B).

122. The difficulty with this second submission is what I see to be the premise upon which it proceeds, namely that the Parole Board would revoke the parole and require the applicant to serve the parole period in gaol. Mr. Croucher's response to this was that, in directing accumulation, s.16(3B) deals in the possibility of the Parole Board's subsequently requiring the unexpired portion of the earlier sentence to be served in prison, and it was that possibility, he said, that the sentencing judge had to bring to account when considering totality. By that submission he meant, I think, that although no steps had yet been taken to cancel parole by the time sentence was being passed for the later offending, the sentences being then imposed were to be aggregated with the unexpired portion of the earlier sentence in case the offender was subsequently required by the Parole Board to serve all of that unexpired portion in prison, and notwithstanding that the Parole Board might take never take that step. Indeed, I think that at one stage in the argument Mr. Croucher suggested that that might well be the consequence of s.5(2AA) which expressly enjoins the court against speculating about executive action[6]. While s.16(3B) turned upon the possibility that such action was taken, s.5(2AA) expressly forbade speculation that it might not be taken.

125. In my opinion this argument should be rejected. Section 16(3B) was concerned to ensure that cumulation was possible after the Court of Criminal Appeal had held in 1995 that it was not. In 1995 (and so before s.16(3B) was extended to all crimes) the court held in R. v. Kuru[7] that on the then current legislation when sentence was being passed for an offence committed while the offender was on parole the new sentence could not sensibly be ordered to be served either cumulatively or concurrently "upon the unexpired portion of the earlier sentence"[8], simply because cumulation and concurrency alike applied only to sentences actually being served in prison, which ex hypothesi was not so when the offender was on parole at the time of re-offending[9]. Cumulation was made possible in respect of all crimes when s.16(3B) was amended in 1997, and made the norm in the absence of "exceptional circumstances" and an order for concurrency instead. That was what s.16(3B) was intended to achieve, in my opinion, not a reduction in the sentences being imposed because of the principle of totality. Indeed, reference may be made in this regard to R. v. Cowburn[10] where the Court of Criminal Appeal referred to the rationale behind the 1993 amendments as being "to ensure that violent and sexual offenders should be punished more severely" than previously; and also R. v. Mantini[11] where Callaway, J.A. described s.16(3A) and (3B) as "intended to increase total effective sentences".

128. As Mr. Croucher pointed out, s.5(2AA) enjoins against speculation concerning executive action, including action by the Parole Board, and that surely encompasses any speculation at all about such action. In other words, it is just as forbidden to speculate that the Parole Board will cancel the parole and require the unexpired portion of the sentence to be served in prison, as it is to speculate that the Parole Board will take no action, or perhaps some lesser action. Section 5(2AA) was enacted by the very same statute of 1997 that widened the operation of s.16(3B), by applying it to all crimes, and so it cannot be that s.5(2AA) was overlooked in the re-drafting of s.16(3B). On that basis it is wrong to read s.16(3B) as requiring the sentencing court to adjust or modify the sentence on the basis that the accused will be required by the Parole Board to spend the unexpired portion of the earlier sentence in prison. That is not what s.16(3B) means when it refers to the possibility of executive action, yet it was, I think, the effect of Mr. Croucher's submission. All that s.16(3B) does is to ensure that, in the absence of exceptional circumstances and an order for concurrency, the new sentence will be served in prison additionally to and not concurrently with the unexpired portion of the earlier sentence if the Parole Board cancels the parole and requires that unexpired portion to be served in prison.

131. That is not to say that the sentencing court does not take into account the provision made by s.16(3B); it should. But it does so by recognising what the possibilities are. The court does much the same thing whenever it fixes any non-parole period; for it must always bring to account the possibility that the Parole Board will not exercise its power to release immediately upon the prisoner's qualifying for parole, or perhaps at all. The court does not thereby speculate about what will be done; it none the less sentences in the light of what the possibilities are. So here: the court sentences knowing that if the Parole Board cancels the parole for breach, it may also require the unexpired portion of the earlier sentence, or perhaps some portion of it, to be served in prison; and further that, if that occurs, the new sentence must be served additionally unless it otherwise orders by reason of exceptional circumstances.

134. The foregoing is, I think, consistent with what the Court of Criminal Appeal said in Kuru[12]:

"It is in our view altogether a different thing for the second sentencing judge to make some order which endeavours to anticipate some future decision of the Parole Board, or to influence that decision. As we have said, it is the task of the second sentencing judge to pass a sentence appropriate to the relevant offence. It is the task of the Parole Board to decide what, if anything, should be done about a breach of parole."

And in effect that is what the judge said about s.16(3B) in the course of discussion on the plea[13]. Although the Act has since been amended, I think that what their Honours said in Kuru is still applicable. Mr. Croucher submitted that there were at least two cases militating against that view of the subsection, but I see neither as standing in the way.

139. The first was R. v. Ponton[14] in which the offender was being sentenced for an offence committed while on parole under an earlier sentence. It was argued that the sentence being imposed was manifestly excessive, there being a potential liability in the appellant to serve the whole of the parole period in custody, should the Parole Board cancel the parole and so direct: Corrections Act 1986 s.77(7)(b). Batt, J.A., with whom Coldrey, A.J.A and I agreed, saw no error as regards totality in that the sentencing judge had refrained from speculating about how the Parole Board might act if it cancelled the appellant's parole. As Batt, J.A. said:

"As regards totality, his Honour was correct, in view of s5(2AA)(a) of the Sentencing Act, to refrain from speculating about how the Parole Board might act under s77(7)(b) if it cancelled the appellant's parole. On my reading of the transcript of the plea and sentence, his Honour took into account the fact that he was not ordering concurrency and, obviously, the very terms of s.16(3B) relating to cumulation."

I have no doubt but that that was how the sentencing judge approached s.16(3B) in this instance, given that there were no "exceptional circumstances" within the meaning of the subsection.

144. In R. v. Berkelaar[15], Buchanan, J.A., with whom Callaway and Chernov, JJ.A. agreed, upheld the sentencing judge's rejection of the circumstances there as "exceptional", a conclusion which left s.16(3B) to operate according to its terms. It was argued then that more concurrency should have been ordered by the sentencing judge with the result that the principle of totality had been offended. That argument too was rejected. After referring to what was said by McHugh, J. in Postiglione[16] about accumulating successive sentences when considering totality, Buchanan, J.A. said:

"Assuming the applicability of that line of authority, it would appear that the sentencing judge did take into account the whole of the sentence imposed upon the appellant in 1995 and the sentence he was imposing".

Indeed his Honour was "also of the opinion the sentence imposed upon the appellant, when aggregated with the sentence imposed in 1995, was not disproportionate to the whole of the criminal conduct in respect of which both sentences were imposed." That no doubt disposed of the argument in that case; it does not mean, however, that simple aggregation of head sentences is what s.16(3B) requires, as Mr. Croucher appeared to be contending.

149. In my opinion neither of these cases stands for more than this: that in sentencing on the later occasion, the sentencing judge should take into account the directive given by s.16(3B), so bearing in mind that, unless otherwise ordered because of exceptional circumstances, the sentence being imposed will have to be served cumulatively "on any period of imprisonment which [the offender] may be required to serve in custody in a prison on cancellation of the parole order". As I have said, I think that that was the approach taken in this case by the sentencing judge, and no error has been shown in that regard, given that his Honour was of opinion, rightly in my view, that there were no exceptional circumstances within the meaning of s.16(3B).

152. Finally, however s.16(3B) is approached, I am clear in this instance (as was Buchanan, J.A. in Berkelaar) that the sentences imposed upon the applicant, when considered in conjunction with the sentences earlier imposed, were not disproportionate to the whole of the criminal conduct in respect of which the sentences were imposed. Indeed I go further: if error below could be demonstrated by reference to s.16(3B) so that the sentencing discretion was reopened, I would confirm the sentences imposed because they appear to me to have been entirely appropriate.

159. That leaves only the ground of fresh evidence. The affidavit of 24 April 2002 wore two aspects: the first dealing with the family situation and in particular the ill-health of the child Nikita and the second, the particular burden of the applicant's being in custody, given the assistance earlier offered to the authorities. As for the second, on 3 August last, Mr. Croucher indicated a wish to seek further evidence about assistance offered after the applicant was sentenced by his Honour Judge Hart, but in the result nothing further could be put before the court. Indeed, as Mr. Croucher frankly said, inquiry tended to show that whatever the applicant had offered, had not been regarded as of any significance. Counsel was therefore forced back to the position that, assistance having been given before sentence was passed, the burden of prison on the applicant was necessarily the greater - and I have already dealt with that.

162. I should perhaps add that in the affidavit now filed there is reference to a newspaper account of an attack on the applicant in June 1998 when, apparently, he disturbed an intruder at his home. According to the newspaper, he was confronted at his home by a masked gunman and shot in the ear. The suggestion is made, in the affidavit, that this attack was the result of assistance given to the authorities, but that seems to me only speculation. The attack was some time ago now, but the cause appears still to be unknown. Moreover, the newspaper account in June 1998 scarcely counts as "fresh evidence".

165. On the other aspect, the family situation involving in particular the child Nikita, it seems to me that little more is said in the affidavit of any direct relevance. It is true that further reports are exhibited, but they go no further than to describe what has happened in the meantime. There have been two bouts of hospitalisation (in August and September 2001) and the absence of the applicant made the task of the applicant's wife much harder: indeed the hospital reports that are exhibited suggest that the absence of both parents from the child's bedside was causing the patient some distress. But nothing is said about the future, or nothing specific. We are left still to speculate about how far and to what extent the genetic disorder from which the little girl suffers might manifest itself hereafter. There is nothing specific about the impact of the applicant's incarceration upon her condition. This was pointed out to Mr. Croucher in the course of argument more than once, but no

application was made for an opportunity to call further evidence. In all the circumstances, I do not think that the affidavit now filed makes any significant difference to the exercise of the sentencing discretion. Mr. Croucher submitted that the affidavit, in dealing with events after sentence was passed, served to cast further light on a circumstance brought to account below but not at the time so fully appreciated: R. v. Eliasen[17]. But even if that were so, the further light cast makes no difference to the exercise of the sentencing discretion. To my mind, there is no more in the so-called "fresh evidence" about the ill-health of the child, than there is in the "fresh evidence" about assistance.

169. In short, even if the affidavit be admissible, it does not persuade me that the applicant should be re-sentenced. Ground 5 fails too.

173. For these reasons I would dismiss the application for leave to appeal against sentence.

178. I agree with Phillips, J.A. that this application should be dismissed, substantially for the reasons his Honour gives. In regard to ground 6, in all the circumstances, including the course of the plea, I am not prepared to say, despite the words he used, that the very experienced sentencing judge failed to have regard to s.16(3B) of the Sentencing Act 1991: he was well aware of its terms and potential operation. I would add that I agree that exceptional circumstances were not shown.

183. I agree that the application should be dismissed for the reasons advanced by Phillips, J.A.

[1] R. v. Yates (1998) 99 A.Crim.R. 483.

[2] R. v. Maslen and Shaw (1995) 79 A.Crim.R. 199.

[3] For a more elaborate exposition of the purpose and effect of s.16(3B), see R. v. Mantini [1998] 3 V.R. 340 at 345, 346 per Callaway, J.A.

[6] Section 5(2AA)(a) reads thus: "Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to ... any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind." That seems plainly enough to encompass action by the Parole Board.

[7] (1995) 78 A.Crim.R. 447.

[8] In R. v. Brand, Burton and Burton (C.A. 19 November 1996, unreported) I raised the possibility none the less of ordering under s.16(1) that the new sentence not be served concurrently with the old, but the possibility did not have to further explored and s.16(3B) was soon broadened in its operation.

[9] It is otherwise when the Parole Board has cancelled the order for parole before the offender is sentenced for the re-offending: see for example R. v. Gorman (C.A. 10 August 1995, unreported); see also R. v. Tulloch (C.A. 24 July 2001 unreported)where the parole order was cancelled for other reasons.

[10] 1994) 74 A.Crim.R. 385.

[11] [1998] 3 V.R. 340.

[14] [2001] VSCA 36 (C.A. 19 March 2001, unreported).

[15] [2001] VSCA 143 (C.A. 6 September 2001, unreported).

[16] [1997] HCA 26; (1997) 189 C.L.R. 295 at 308.

[17] (1991) 53 A.Crim.R. 391.