R v Piacentino; R v Ahmad [2007] VSCA 49

R v Piacentino; R v Ahmad [2007] VSCA 49 - VSCA 2007 case summary — Zoe

[6]

5 These two appeals concerned sentences imposed on offenders (by different judges) for offences committed while they were on parole. In the case of Piacentino the parole had been imposed with respect to offences against Victorian law. At the time of sentencing for the present offences no action had been taken by the Parole Board with respect to Piacentino's breach of parole. In the case of Ahmad, he was on parole with respect to an offence under Commonwealth law, which provided for automatic revocation of parole. The appeals were heard together because Mr Coghlan, the Director of Public Prosecutions for Victoria, as respondent to both appeals, had contended that they raised common questions about the correctness of decisions of the Court of Appeal with respect to sentencing of offenders who were in breach of parole. In the course of the hearing, however, it was conceded by the Director that by virtue of the terms of relevant Commonwealth legislation quite different considerations applied to Ahmad. Although the contentions in Piacentino's case as to the correctness of decisions of this Court do not therefore have relevance to Ahmad, important questions arise in his case, too, concerning the inter-relationship of Commonwealth and State sentencing legislation.

6 Piacentino was granted leave to appeal by a judge of the Court, but leave had not been granted in Ahmad's case, so he applied for leave. On behalf of each offender multiple grounds of appeal were advanced in support of the contention that the sentencing discretion miscarried, but the primary complaint raised before the Court was that the sentencing judge, in each case, had failed to have regard to the principle of totality when imposing sentence. That principle, so it was said, required the sentencing judges to have regard to the fact that in addition to the sentences which the judges imposed, the offenders had already commenced to serve (in Ahmad's case), or were at risk (in Piacentino's case) of being called upon to serve, the whole or part of the balance owing of their parole sentences. In the course of the hearing the Director conceded that in Ahmad's case the sentencing judge was obliged but failed to have regard to totality. The judge in his case had not been informed that Ahmad was subject to Commonwealth parole and had therefore failed to apply relevant provisions of the Crimes Act 1914 (C'th). The Director conceded that leave to appeal ought be granted to Ahmad, the appeal be allowed and he be re-sentenced.

7 At the time when Piacentino fell to be sentenced for the offences which constituted his breach of parole the Parole Board had not acted to require him to serve all or part of the parole sentence, nor indicated whether it proposed to revoke parole. The Court of Appeal held in R v Orphanides[1] that in such circumstances the sentencing judge ought apply what was called "a general sentencing consideration", whereby the judge had regard to the possibility that the Parole Board might later revoke parole. That sentencing principle was accepted by counsel to be an application of the totality principle.

8 Mr Coghlan contended that Orphanides was wrongly decided, because the totality principle had no application, at all, with respect to sentencing of an offender whose offences constituted a breach of parole imposed with respect to offences under Victorian law. Mr Coghlan submitted that the totality principle had been removed from consideration, in such circumstances, by virtue of s 5(2AA) and s 16(3B) of the Victorian Sentencing Act 1991.

9 In the course of Piacentino's appeal the Court also considered the situation of an offender who was sentenced at a time when the Parole Board had already acted to revoke parole, so that the offender was serving the parole sentence when dealt with for the later offences. Mr Coghlan submitted that the same provisions of the Sentencing Act also prohibited application of the totality principle by the sentencing judge in that situation. As to the latter situation, the Court of Appeal has held in a series of cases, most recently in R v Hunter,[2] that the totality principle had to be given full effect by the judge so that, when sentencing, the judge should address the question whether the aggregation of the parole sentence and the proposed new sentences would offend the principle of totality, so as to require moderation of sentence on that account. Mr Coghlan submitted that Hunter was also wrongly decided, and ought be over-ruled.

10 In light of the proposed submissions a court of five judges was convened. Mr Coghlan acknowledged that his submissions as to the effect of these provisions of

the Sentencing Act were contrary to the position hitherto taken by him and by prosecutors representing his Office.

11 The Court also heard helpful submissions as amicus curiae from counsel for the Commonwealth Director of Public Prosecutions as to the effect of Commonwealth legislation on the position of Ahmad.

12 I will deal first with Piacentino's case.

Michael Piacentino

13 The appellant, Piacentino, was aged 43 years at the time of the new offences on which he was jointly presented with a co-accused, one Simon Young, who was 30 years old at the time of the offences.

14 On 16 November 2004, Piacentino entered a vehicle which he knew had been stolen by his co-accused. That was count 1. Counts 3 and 4 related to events on that day when Young and Piacentino resolved to rob a bottle shop in Box Hill. Count 2 concerned Young only, but arose out of the same event.

15 The plan for the robbery was devised by Young, and it was intended that he would distract the shopkeeper, enabling Piacentino to then enter the store and to raid the till. Piacentino failed to enter the store as planned, much to the annoyance of Young, who walked out empty handed. After remonstrating with Piacentino, Young re-entered the store and immediately punched the female storekeeper a number of blows to the face. He caused a series of injuries, at that time, which constituted count 2, an offence of causing serious injury intentionally. Piacentino then entered the store, as agreed, but was unable to open the till. Young then approached the till from the rear of the store, bringing with him the woman attendant, whom he held in a headlock. Near the till he punched her again, a number of times, to the head. That later assault, in the company of Piacentino, caused less serious injuries and constituted Piacentino's offence of intentionally causing injury, count 3 on the presentment. Both offenders also pleaded guilty to robbery (count 4). Some $560 was stolen from the till.

16 In his record of interview, Piacentino said that he never meant anyone to get hurt and was shocked when he saw the injuries to the face which had been suffered by the victim. She suffered multiple bruises, facial injuries, swollen eyes and a fracture of the left maxillary bone. She was hospitalised for three days and required dental treatment. The victim suffered significant emotional trauma as a result of these events.

17 Counts 5 and 6 involved Young only. Counts 7 and 8 concerned Piacentino only, those being discrete offences of burglary and theft, which were committed on 23 November 2004, in the company with another person. On that occasion Piacentino entered a house through a window and stole property to the value of $4,500.

18 Piacentino pleaded guilty to all offences. He admitted 115 prior convictions from 28 previous court appearances between 1978 and 2004. At the time of the offences Piacentino was on parole, with a balance of one year, four months and ten days owing, should the Parole Board cancel his parole and require him to serve the whole of that sentence.

19 On 19 October 2005 Piacentino was sentenced as follows by a judge of the County Court:

[21]

30 The statement in paragraph [42] indicates that his Honour was alive to s 16(3B) of the Sentencing Act 1991, and paragraph [43] shows that his Honour also had regard to s 5(2AA), and his interpretation of the effect of those provisions is said by the Director to have been correct. On behalf of Piacentino, however, it is submitted that his Honour failed to apply Orphanides, to which decision his Honour was not referred by either counsel, and which he did not mention either in his sentencing remarks or in his report to the Court of Appeal. His Honour, thereby, so it was said, failed to have regard to a relevant sentencing consideration, and the sentence should be set aside and Piacentino be re-sentenced.

31 It is necessary before discussing further the principle articulated in Orphanides - and the intended scope of s 16(3B) and s 5(2AA) - to consider just what is meant by the totality principle and what application it might have in Piacentino's case, absent the legislative provisions. We can then consider whether the sentencing judge in Piacentino's case was precluded by those provisions from applying the principle.

The totality principle

32 In Mill v The Queen[6] the High Court adopted the explanation of the principle as articulated by D A Thomas in "The Principles of Sentencing",[7] namely, as requiring a sentencer who has passed multiple consecutive sentences "to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'"; and that "it is always necessary for the court to take a last look at the total just to see whether it looks wrong". McHugh J stated in Postiglione v The Queen,[8] that totality "requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged" but it extends to "the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence".

33 As Callaway JA observed in R v Barnes,[9] there is a difference between the principle of totality and the avoidance of a "crushing" sentence - because a sentence of three years, for example, might offend totality principles and yet not be so long as to crush the offender - and the requirement to "stand back" and assess the overall criminality applies even where the sentence would not be described as crushing.

34 The High Court held in Mill[10] that the principle applied both to the head sentence and also to the non-parole period of other sentences that were being served consecutively, and it applied where that sentence had been imposed by a different court to that which later sentenced the offender.

35 In a passage from Principles of Sentencing[11] which was not quoted in Mill the learned author expanded on the applications of the principle, as follows:

[31]

44 In none of the cases which discussed or applied "the general sentencing consideration" has it been elaborated upon. Mr Coghlan submitted that the fact that the principle had been left unexplained - and that its scope of operation was both unknown and, he submitted, unknowable - meant that it had no value as a sentencing factor and it was impossible for appellate courts to sensibly review appeals in which complaint was made about its application in, or its claimed omission from, sentencing decisions.

45 The fact that the parameters of a sentencing consideration are somewhat uncertain would not mean that they had no application. As Kirby J observed in Postiglione,[33] sentencing is not a mechanical task, and the appropriate sentence is one drawn by a process of synthesis from a range of sometimes conflicting goals, none of which may be attributed a particular component in the final sentence.

46 In my opinion, the general sentencing consideration was understood by Phillips JA and Batt JA to be an application of the totality principle, but in a situation where it was impossible to precisely aggregate the sentences for that purpose. As a general sentencing consideration it was to have an operation similar to other such general considerations, parsimony being one example.

47 The common law requirement of parsimony (now enshrined by s 5(3) of the Sentencing Act) is that the sentence imposed be no more severe than is necessary to achieve the purposes for which it is imposed. It is not necessary for a sentencing judge to expressly allude to such a sentencing consideration in his or her reasons for sentence; whether the consideration has been appropriately addressed may appear from the whole of the sentencing reasons and from the sentence itself.[34] Similarly, it is not necessary for a sentencing judge to expressly state that he or she has had regard to the totality principle.[35]

48 The approach which an appeal court would adopt the complaint that the general sentencing consideration had not been taken into account adequately or at all would be not dissimilar to its approach to a contention that a sentence was manifestly excessive and, indeed, complaint about totality is commonly subsumed in a ground of appeal complaining that a sentence is manifestly excessive. As Perry J held in Lowick v McDonald[36] in dealing with complaint concerning totality in the context of a ground complaining of manifest excess:

[39]

54 That statement is capable of being misunderstood, and to imply that s 16(3B) precluded totality as a sentencing consideration in any circumstances. His Honour's statement has to be read in the context of the submissions made by counsel in that case, who had contended that s 16(3B) required the judge to apply the principle of totality by aggregating the unexpired portion of the parole sentence with that being imposed by the judge, notwithstanding the fact that none of the balance of the parole sentence might be required to be served. Plainly, the sub-section did not require the reduction of sentences by virtue of totality, because that would assume that the whole of the parole sentence would in fact fall to be served. That, however, was not the application of the totality principle for which counsel for Piacentino argued. It was contended that even though the Parole Board had not revoked the parole sentence the sentencing judge, applying Orphanides, but not assuming that the whole parole sentence would later be served, was nonetheless entitled to have moderated the sentence by reference to the totality principle and the risk of that eventuality.

Was the "general sentencing consideration" excluded by the legislation?

55 Totality is a general common law sentencing principle and, as Kirby J, noted in Postiglione,[43] that being so it must give way to statutory prescription. The question, then, is whether the provisions of the Sentencing Act remove totality as a relevant consideration when the total length of the period which the prisoner is liable to serve in prison includes a period served, or liable to be served, cumulatively, for breach of parole. As held in R v Cowburn[44] by Crockett, Southwell and Vincent JJ, a long established sentencing principle could not be maintained in the face of the clear intention of Parliament to set it aside, as manifested by clear statutory language.

56 Mr Coghlan submitted that the provisions did evidence that intention, where the parole had been ordered with respect to a Victorian offence. Were it otherwise, he submitted, then there would be little purpose or relevance for s 16(3B), since, if there were no exceptional circumstances permitting an order for concurrency the same result by way of reduction of time in custody could be achieved by the sentencing judge simply reducing the length of the sentence to be imposed.

57 In R v Mantini[45] Callaway JA considered that similar considerations applied in interpreting s 16(3A) as for s 16(1), s 16(3) and s 16(3B), namely, that they created statutory presumptions or prima facie rules, introduced with the intention of increasing total effective sentences for those persons to whom the sub-sections applied. He agreed with Winneke P in R v Lomax[46] that provisions such as s 16(3B) constituted a reversal of existing prima facie rules concerning concurrency and cumulation. As to the effect of these provisions on the discretion of the sentencing judge Callaway JA held:

[45]

60 As their Honours observed in Mill, the application of the principle becomes more complicated where the offender is not being dealt with by the same sentencing judge, and at the same time. In such circumstances, so the Court held, the approach should be that taken by the Court of Criminal Appeal in New South Wales in Todd,[51] which required the sentencing judge on the later occasion to have regard to the cumulative effect of the sentences so that he moderated the sentence to be imposed notwithstanding that the sentence then imposed "will fail to reflect adequately the seriousness of the crime in respect of which it is imposed".[52]

61 The argument before us was whether, applying the alternative approach discussed in Mill - albeit without knowing what length of parole sentence, if any, would be served - the sentencing judge was entitled to take account of totality by moderating the sentence he or she would otherwise have imposed in light of the possibility that the Parole Board might later require the offender to serve all or some of the parole sentence.

62 In my opinion, if the totality principle, as understood in that way, was intended to be removed from consideration then it would be s 5(2AA) which achieved that result, not s 16(3B).

63 Nothing in the language of s 16(3B) suggests, in terms, that it is intended to diminish the totality principle. By taking the principle of totality into account in fixing a final sentence for the new offence or offences, the sentencing judge would in no way be interfering with the operation of s 16(3B) with respect to cumulation of the sentences with the period claimed by the Parole Board for breach of parole. The principle of cumulation is preserved but the new sentence imposed might be moderated by virtue of the totality principle and might in fact lead to a not dissimilar reduction in time in prison to that which might have been achieved upon findings of exceptional circumstances and orders for concurrency.

64 There is also nothing explicit in the language of s 5(2AA), either, which targets the totality principle; the focus, rather, is on the separation of the roles of the Parole Board and of the sentencing judges. As the explanatory notes made clear when it was introduced, the sub-section was intended to be declaratory of the common law, in requiring the sentencing judge to sentence on the basis that the whole of the head sentence might be served. The line of cases making that point had been affirmed by the Full Court in 1984 in R v Yates,[53] the headnote in that case adopting language which mirrors that used in s 5(2AA): holding that a sentencing judge is not entitled to take into account "the possibility or likelihood" that the time in custody will prove to be less than the head sentence which the judge imposes. That is not our situation.

65 I have concluded, however, - albeit with some reluctance given the limited scope of the merciful sentencing consideration which Orphanides identified - that, contrary to what Phillips JA concluded, the terms of s 5(2AA) prevent (even if they were not intended to prohibit) the operation of the totality principle where the Parole Board has not revoked parole at the time of sentencing for the breach offences. As I shall discuss, however, the totality principle can be applied in cases where the offender is serving his parole sentence at the time of his later sentence.

66 The language of s 5(2AA) is wide enough for it to apply to situations where what is being dealt with by executive action is not the releasing of a prisoner on parole but the recall of a prisoner to serve the balance of his parole sentence. The Director submitted that to have regard to a "general sentencing consideration" which focussed on "what the possibilities are" of the Parole Board revoking parole and requiring some or all of the parole sentence to be completed must entail a breach of s 5(2AA). He submitted that the principle of totality could not override the prohibition decreed by the sub-section.

67 Mr Coghlan contrasted, on the one hand, the emphatic language of s 5(2AA), which enjoins the sentencing judge not to have regard to "any possibility or likelihood" that the time the offender will spend in custody "will be affected ... in any way" by action of the Parole Board (which emphatic prohibition, counsel submitted, was adopted by Phillips JA in paragraph [33] of his judgment in Orphanides) with, on the other hand, his Honour's reasoning in paragraph [34] of his judgment. The Director submitted that it is entirely inconsistent to say, on the one hand, that the judge must not have regard to possible Parole Board action, but then, on the other hand, to say that the judge may nonetheless take into account "what the possibilities are", by having regard to the fact that the Parole Board "may also require the unexpired portion of the earlier sentence or perhaps some portion of it, to be served in prison ... additionally" to the new sentence.

68 In Orphanides Phillips JA explained that in taking into account what the possibilities are the approach was similar to the approach that a sentencing judge would take as to the operation of a non-parole period, ie the Court must assume the possibility that the whole sentence will be served. He added:

[49]

70 With respect to their Honours, the distinction between recognising what the possibilities were if the Parole Board cancelled parole, and speculating as to what the Parole Board would do, is not one that can withstand the plain language of s 5(2AA).

71 In my opinion, the Director is correct in his contention that there could be no application of the "general sentencing consideration" without the sentencing judge offending s 5(2AA). The general sentencing consideration identified by Phillips JA in Orphanides should be held to no longer have application. In the result, where an offender falls to be sentenced for offences constituting breach of parole but is to be sentenced at a time when he has not had his parole revoked by the Parole Board then the sentencing judge may not have regard to the possibility that he might be later called upon by the Parole Board to serve some or all of the balance of his parole sentence.

72 Accordingly, I reject ground 3 of Piacentino's grounds of appeal which complained that the learned sentencing judge erred in failing to take into account the principle stated in Orphanides.

73 That conclusion, if supported by a majority, reverses an approach to sentencing that has been applied in this State since 2002, to the benefit of offenders. Throughout that period neither the Director nor prosecutors have challenged the correctness of Orphanides. If, as I accept, the Director's argument is correct, then it will create an anomaly because I have also concluded - contrary to the further submission of the Director (which I shall next discuss) - that where an offender has already been dealt with by the Parole Board and is serving a parole sentence at the time of his later sentencing then he gains the benefit of the totality principle.

74 Mr Thomas, senior counsel for Piacentino, submitted that were the Court to adopt this dichotomy then that would create an unfair disadvantage for an offender for whom the Parole Board had not yet acted. That disadvantage cannot be discounted, but the circumstances of the two offenders is unlikely, in most cases, to be truly comparable.

75 In the first place, it is likely that if parole had already been revoked by the time the sentencing judge came to impose sentence for later offences then it would not have been the offender's guilt of those offences which caused the Parole Board to revoke parole. It might be expected that where offences had occurred during the course of parole and no other factor might justify parole being revoked, the Parole Board would await the decision of the sentencing court before considering whether to revoke parole on that account. Secondly, there might, of course, be no unfairness at all because the offender who is sentenced before the Parole Board has made a decision as to his parole may not have his parole revoked at all, or may have to serve only a small portion of the remaining sentence. In that case it might be thought that it was the other offender who had cause to complain about unfair treatment.

76 Should the Parole Board act to revoke parole at a time subsequent to the sentencing for the offences constituting the breach the Board would be aware that the sentencing judge did not moderate sentence by having regard to the possibility that the Board would so act. The Parole Board has a wide jurisdiction under the Corrections Act, and the Court may not attempt to influence its discretion. However, and without intending to fetter the discretion of the Parole Board in any way, I observe that the Board might itself have regard to the factor of totality when making decisions as to the further release of the offender on parole.[56] It should not therefore be presumed that an offender who has been denied any ameliorating benefit of the Orphanides principle has therefore been disadvantaged in comparison to a co-offender who had had totality taken into account when he was sentenced.

77 However, if it be the case that unfairness will result, that possibility can not sweep to one side the plain language of s 5(2AA), and the situation could only be reversed by legislation.

Is totality relevant if parole has been revoked before sentencing?

78 Before turning to the other ground of appeal which was argued on behalf of Piacentino it is convenient to address the further contention of Mr Coghlan, that the provisions of the Sentencing Act also prohibit a sentencing judge from having regard to the principle of totality when sentencing a person who is already serving a sentence for the breach of parole which his later offending constituted. That issue does not arise in Piacentino's case. It was initially thought to arise in Ahmad's case, but it is now conceded by Mr Coghlan that the Commonwealth legislation does permit the totality principle to apply. He nonetheless maintained that the Victorian legislation does not make similar allowance, and that decisions of this Court to the contrary are wrongly decided.

79 Given that we heard full argument on that question it is appropriate that this Court express its opinion as to that question, in order to give guidance to sentencing judges.

80 The Court of Appeal has repeatedly stated that where an offender who is to be sentenced for offences committed while on parole is already serving a sentence in consequence of his breach of parole, then the sentencing judge must have regard to and, when appropriate, might apply the principle of totality in moderating the sentence to be imposed. Until recently that proposition had not been disputed by the Director or his predecessors.

81 In the recent decision of R v Hunter,[57] a case in which the Parole Board had cancelled parole by the time of later sentencing, Maxwell P, Buchanan and Redlich JJA, held:

[50]

"[28] At first senior counsel for the Crown submitted that the principle of totality did not require the sentencing judge to take account of the original sentence being served. Some days after the conclusion of oral argument, however, a written submission was filed by the Director, which acknowledged that the principle of totality did require the sentencing judge to take into account periods of imprisonment consequent upon cancelled parole. In the written submission senior counsel referred to the decisions in R v Masterson;[58] R v Youil;[59] R v Cutajar;[60] R v Brock;[61] R v Gorman;[62] R v Ulla;[63] and R v Berkelaar[64] as illustrating that the principle of totality requires the sentencing court to take into account periods of cancelled parole being served.

[29] This concession - belatedly made by the Crown - is clearly correct. This Court has made clear repeatedly that a period of imprisonment being served at the time of sentencing must be taken into account in the exercise of the sentencing discretion. Nothing in s 5(2AA) of the Sentencing Act authorised, let alone required, the trial Judge to disregard the fact that Hunter was then serving the unexpired portion of his original sentence. On the contrary, the prohibition on speculation meant that the judge was bound to assume that the full term of the original sentence would be served. Any possibility that Hunter might again be released on parole had to be disregarded.

[30] As already discussed, there must in the absence of exceptional circumstances be cumulation in respect of offences committed whilst on parole. At the same time, viewed as a whole the aggregate of sentences imposed by reason of cumulation cannot be greater than any sentence required to fulfil the totality principle and all the appropriate aims of sentencing in the case. 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."

[53]

85 In my opinion, these decisions are entirely consistent with the terms of s 5(2AA) and s 16(3B).

86 As Mr Coghlan acknowledged, the tense employed by the language of s 5(2AA) ("will be affected") apparently prohibits speculation as to future action by the Parole Board, and is not concerned with action taken by it before sentencing for the breach offences. Mr Coghlan submitted, however, that the fact that the person is in custody for breach of parole was a consequence of executive action and the legislation should be interpreted to apply to past as well as future executive action. Even if that not be so then, he submitted, the length of the sentence to be served can not be known with certainty, because the Parole Board might revoke the cancellation or once more release the offender on parole, exercising its powers under s 77(2) and s 78 of the Corrections Act 1986. Thus, even though past executive action has apparently provided certainty as to the period the offender will serve, the sentencing judge must be having regard to the possibility or likelihood that the length of time spent in prison for the parole breach might be affected by executive action.

87 In my opinion, s 5(2AA) speaks prospectively as to executive action and should be so confined. The sentencing judge in taking the period being served as the whole of the balance of the sentence would not be speculating on the possibility of that sentence being affected by future executive action. The judge would have no regard at all to the possibility that that the period of imprisonment for the parole breach would be affected by future executive action.

88 Where penal legislation can be interpreted beneficially to the offender then it ought be so interpreted and in my view the interpretation of s 5(2AA) as having prospective effect only is appropriate. The principle of totality is not excluded by the language of either sub-section, and given that it is a general sentencing principle emphasising moderation and the avoidance of unfair and crushing sentences, it should be held to apply in all cases save where clear statutory language dictates otherwise. The language of this legislation does not so dictate, in a case where the parole has been revoked by the time of sentencing for the later offending conduct.

Ground 1: Piacentino - Manifest Excess

89 Under a separate ground of appeal counsel for Piacentino submitted that the manner in which the judge structured the sentence led to it being unbalanced and to the sentence overall, or at least the sentence on counts 7 and 8 (burglary and theft) being manifestly excessive. It was submitted that although the offences arising out of the robbery of the liquor store were within range the judge imposed heavier sentences on the later offences, which were much less serious, and inappropriately made one of those the base sentence upon which orders for cumulation were made.

90 It is true that count 4, robbery, carried the heaviest maximum penalty of all of the offences to which the appellant pleaded guilty, and could have been used as the base sentence. The role played by Piacentino in the incident giving rise to counts 1, 4 and 5 was, however, a somewhat reluctant one, and he was obviously subservient to his more aggressive co-offender. The events giving arise to counts 7 and 8 occurred about a week later, involving a different co-offender, and it was Piacentino who then played the dominant role in the burglary and other offences at the private dwelling. It was open to his Honour to take count 7 as the base sentence by virtue of such factors. Counsel contended that had the judge taken the "most serious" offence as the base, ie count 4, the judge would then have viewed the other offences as meriting relatively less cumulation of sentence on that imposed in the base sentence, but I think that is mere speculation.

91 The Court has resisted challenges to sentences mounted on the basis of "structural" arguments about the manner in which the sentences were formulated.[70] A "broad brush" approach is often appropriate when a judge is sentencing an offender for multiple offences. When the individual sentences for counts 7 and 8 are examined in the light of the appalling prior offending history of Piacentino, I do not accept that the sentences are manifestly excessive. The fact that they exceed the sentences imposed on counts 3 and 4 only demonstrates that Piacentino was the beneficiary of considerable mercy on the part of the sentencing judge.

92 The complaints that the sentence was manifestly excessive, whether by reference to the total effective sentence or to its component parts, must fail, in my opinion.

93 I conclude, therefore, that the appeal against sentence by Piacentino should be dismissed.

Nadim Ahmad

94 At the time of the application to this Court for leave to appeal Ahmad was aged 67 years. He was aged between 61 and 62 at the time of the current offences, which occurred between 4 April 2001 and 8 November 2001.

95 An optical surveillance device was installed in premises at Moe wherein Ahmad, as managing director, ran a business known as "Arabian Eagle Investments". On a number of occasions in April 2001 Ahmad was recorded on video engaged in activities related to manufacturing ecstasy tablets. Search warrants were executed at both his residence and the business address, where large quantities of drugs, including 50,000 LSD tabs ("Tickets") valued at $1,250,000 were located, together with 3850 amphetamine tablets, 40 grams of cannabis, large amounts of cash and various equipment related to drug trafficking. The total amount of substances containing methylamphetamines was 1.54 kg. The commercial quantity for that drug is 1.25 kg. He was arrested, admitted possession of the items but said he was holding them for another person. He denied manufacturing the drugs and denied that the "tickets" contained LSD. He said the cannabis was his own. He was released on bail on 17 April 2001.

96 On 30 October 2001 a covert police operative purchased 99 ecstasy tablets from Ahmad for $1500 and Ahmad offered to supply "speed" at $5000 per ounce. He subsequently supplied 100 tablets containing methyl-amphetamine and also crystallised methylamphetamine. On a later occasion the operative purchased similar drugs from Ahmad at a cost of $1500, for tablets, and $10,000 for "speed", after which Ahmad was arrested. Searches of his vehicle and home revealed large quantities of drug trafficking paraphernalia. In addition, material for the preparation of 11,500 LSD "Stamps" was located, although the drug had not been impregnated on the sheets. Cannabis (45.6 grams) was located, and other drugs. In all, 322.2 grams of methylamphetamine was located (the traffickable quantity being 6.0 grams) and 156 grams of cocaine (traffickable quantity 3.0 grams). He was interviewed and made admissions as to trafficking amphetamines and ecstasy.

97 On 12 June 1998 Ahmad had been sentenced for a Commonwealth offence against s 233B(1)(d) of the Customs Act 1901, for importing a prohibited import (cannabis resin). He was sentenced to three years and six months' imprisonment, with a non-parole period of two years.

98 Ahmad was presented on two presentments for the current offences. The offences under the first presentment (being those of April 2001) all having been committed during the operational period of Commonwealth parole. The offences under the second presentment were committed whilst he was on bail for the offences under the first presentment, but occurred outside the operational period of parole.

99 On 1 March 2005 a judge of the County Court sentenced the applicant as follows, upon his pleas of guilty to the first presentment:

Count 1 Trafficking in a commercial quantity of LSD (maximum penalty 25 years' imprisonment), sentenced to five years' imprisonment;

Count 2 Trafficking in methylamphetamine (maximum 25 years' imprisonment), sentenced to five years' imprisonment;

Count 3 Trafficking in a drug of dependence, Ketamine (maximum 15 years), nine months' imprisonment

Count 4 Trafficking in a drug of dependence (cocaine) (maximum 15 years), nine months' imprisonment;

Count 5 Possession of cannabis (maximum penalty $500 fine), fined $500.

Six months of the sentence on count 1 was ordered to be served cumulatively on the sentence on count 2. The total effective sentence, therefore, under the first presentment was five years and six months' imprisonment.

100 The estimated value of the LSD with respect to count 1 was $1,250,000. Count 2 involved 3,850 tablets, with a total weight of 1.54 kilograms, mixed.

101 The second presentment led to the following sentences, upon pleas of guilty:

Count 1 Trafficking in methylamphetamine (maximum 15 years' imprisonment), two years' imprisonment;

Count 2 Possession of cannabis, fined $500;

Count 3 Possession of cocaine, two months' imprisonment (maximum sentence five years).

102 Count 1 on the second presentment involved 322.2 grams, mixed. Count 2 involved 45.6 grams of cannabis and count 3 involved 156 grams of cocaine. Counts 1 and 3 were ordered to be served concurrently, and twelve months of the effective

two year sentence on the second presentment was ordered to be served cumulatively on the sentence on count 2 in the first presentment.

103 Accordingly, the total effective sentence for both presentments amounted to six years and six months' imprisonment and a non-parole period of four years was fixed. Her Honour declared 866 days pre-sentence detention.

104 The grounds of appeal for Ahmad read as follows:

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Ahmad: Commonwealth parole

105 The parole situation under Commonwealth legislation was not subject to any executive action by the Victorian Adult Parole Board. Upon sentence by her Honour on 1 March 2005 s 19AQ(1) of the Crimes Act 1914 applied. That provides that the parole order is to be taken as having been revoked upon the imposition of the later sentence. By virtue of s 19AQ(2) and (5) and s 19AZC(2) the applicant was to be taken as not having served any period of the sentence which remained owing, namely, one year and six months.

106 Thus, where there was a breach of federal parole the revocation of parole came into effect automatically. It became the sentence first served, commencing on the day of sentence for the new offences under Victorian law. There was no possibility of there being executive action affecting the length of time to be served for the parole sentence: the whole of the unserved balance fell to be served, its duration being known. Section 5(2AA) of the Sentencing Act could have no application.

107 Mr Coghlan accepted, therefore, that totality was a relevant sentencing consideration for Ahmad, and that upon re-sentencing this Court must have regard to the effect of the additional period of imprisonment that would result from his breach of parole. It was conceded by Mr Coghlan that the learned sentencing judge, applying totality, ought to have had regard to the period of one year and six months which remained to be served (and which commenced to be served as at the date of sentencing by her Honour). Given that the balance of the parole sentence which had to be served was known, and that there was no executive action that could affect that sentence, Mr Coghlan acknowledged that s 5(2AA) would not have been offended had her Honour had regard to the effect of the breach of parole on the question of totality.

108 The concessions made by Mr Coghlan were appropriate. The learned sentencing judge failed to have regard to a relevant sentencing consideration, namely, the application of the principle of totality by reference to the additional period of imprisonment which would result by virtue of the breach of federal parole. That error having been made the application for leave to appeal against sentence should be granted, the appeal be allowed and the appellant be re-sentenced. A number of difficult questions arise, however, as to the approach that this Court ought to adopt in applying the totality principle upon re-sentencing the appellant.

109 Where the outstanding portion of the federal sentence due to be served by virtue of the breach of parole is less than three years (as was the case here) then by virtue of s 19AR(3)(e) a sentencing judge was not entitled to fix a new non-parole period in relation to the federal sentence but was entitled to make a recognisance release order in respect of the outstanding federal sentence. If, however, in those circumstances the sentencing judge decided that it was inappropriate to make a recognisance release order then the judge must give reasons for so concluding (see s 19AR(5)).

110 A recognisance release order is defined under s 16 to be an order imposed under s 20(1). By s 20(1)(b) the judge might specify a date when the person might be released from serving that sentence upon giving security and on terms set out in the Crimes Act. That provision, if applicable, would allow a judge to reduce the length of the balance of the term to be served on the parole sentence, thereby achieving an amelioration of sentence akin to that provided for by s 16(3B) for a state parole offence, whereby, if the sentencer first found there to be exceptional circumstances which justified so doing, the sentencer could make an order for total or partial concurrency of the new sentence with the balance, if any, of imprisonment under the parole sentence.

111 Mr Robinson, who appeared as counsel for the Commonwealth Director of Public Prosecutions, submitted that s 16(3B) could have no application to Ahmad because the recognisance release provisions of the Commonwealth Crimes Act constituted a Code concerning breach of federal parole. In written submissions on behalf of the Victorian Director it was argued that the sub-section did apply, but in the course of argument on the appeal Mr Coghlan, accepted that the Crimes Act provisions might well constitute a Code which excluded the operation of s 16(3B).

112 Mr Hughan, as junior counsel for Ahmad, contended, however, that s 16(3B) did apply to Ahmad, and he sought to have it applied by this Court upon re-sentencing. Whilst counsel conceded that there were no exceptional circumstances at the time when Ahmad was sentenced by her Honour, he submitted that there were now, so that in re-sentencing Ahmad, this Court should so declare and should make an order under s 16(3B) that some portion of the sentences under appeal be served concurrently with the balance of the parole sentence.

113 The question whether s 16(3B) was precluded from operation because of the Commonwealth legislation only arose in the course of the hearing of the appeal and was not the subject of considered submissions by any counsel. Section 16E(1) of the Crimes Act (C'th) provides:

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114 The Victorian Sentencing Act - s 17(1) - provides that the sentence for the State offences would commence on the day the sentence was imposed, which had been 1 March 2005, but the terms of s 17 apply subject to the terms of s 16 and s 18. By s 16(4) where an offender is "already undergoing a sentence ... of imprisonment for an offence against the law of the Commonwealth" then the Victorian court must declare the date of commencement of the Victorian sentence, which must be at the completion of the federal offence or, by virtue of the definition of "pre-release period" under s 16 of the Crimes Act (C'th), would be the release date fixed under a recognisance release order. The federal parole sentence commenced on 1 March 2005.

115 Whether Ahmad was "already undergoing" that sentence when sentenced for the new offences, which were imposed the same day, may be doubted. By virtue of s 19AR(2)(b) and (c) of the Crimes Act the parole is revoked and the person is liable to serve the balance of the parole sentence upon the offender being "later sentenced" to a term of imprisonment of less than 3 years. It is not necessary to resolve that question for the purpose of re-sentencing. The purpose of s 16(4) is merely to oblige the later sentencing court to clarify and specify the intended commencement date of the Victorian sentence. What is of importance, for present purposes, is that unless there had been some amelioration by the learned sentencing judge of the length of the parole sentence due to be served then Ahmad would have been required to serve 18 months' imprisonment commencing 1 March 2005 and the Victorian sentence would have commenced 18 months after that date. No amelioration was ordered by the judge as to the parole sentence.

116 Counsel for Ahmad now seeks amelioration of the impact of cumulation of the new sentence upon the 18 months' parole sentence and seeks to achieve that by utilising s 16(3B), so as to make the new sentence (with respect to the offences under the first presentment) partially concurrent with the parole sentence of 18 months' imprisonment. In my opinion, as I shall discuss, the same result could be achieved, in practical terms, under the Commonwealth legislation, by way of a recognisance release order made with respect to the parole sentence. That would permit early release from the parole sentence, before the expiration of 18 months. Whilst the same practical result, of reducing cumulation of sentences, could be achieved utilising either s 16(3B) or a recognisance release order under s 20(1), the differences between the Commonwealth and State schemes must be acknowledged.

117 Upon re-sentencing by the Court of Appeal for the later offences the sentence we impose will date back to the date of imposition of the sentence under appeal, ie 1 March 2005.[71] The order of service of sentences is provided for by s 15(1) and s 16 of the Sentencing Act. By combination of s 16(1), (1A)(d), and (3B) the new sentences under the first presentment would be served cumulatively upon the parole sentence. This Court could, however, now reduce the length of the parole sentence by virtue of a recognisance release order, which would operate from 1 March 2005.

118 Mr Robinson submitted that her Honour had been obliged by s 19AS(3)(e) (and now this Court is similarly obliged upon re-sentencing) to make a recognisance release order or else, as required by s 19AS(5), to give reasons for not so doing. Although the reasons why the Court might adopt that course do not require any finding of exceptional circumstances to be made, the factors addressed by counsel under that heading in support of an order for concurrency under s 16(3B) are the primary factors which would command attention when considering the appropriateness of a recognisance release order.

119 It is convenient, therefore, to first address the submission that the Court should reduce the extent of cumulation by making a finding of exceptional circumstances under s 16(3B) of the State Act.

120 Given my conclusion that an effective reduction in cumulation of sentences could be achieved by way of recognisance release order under the federal legislation could s 16(3B) under the Sentencing Act also have application in Ahmad's case? Could the federal and State legislation operate in harmony so as to permit both approaches to be adopted in addressing cumulation of sentence following parole breach? Had this Court concluded that there may be exceptional circumstances which might apply then further submissions from the parties would have been necessary as to this constitutional question but, as I understand to be the case, the other members of the Court share the view that I firmly hold that there are no exceptional circumstances which would justify an order for concurrency under s 16(3B). It becomes unnecessary, therefore, to resolve that difficult question, and it would be inappropriate to do so anyway, when no substantial submissions had been made on the question.

121 It is necessary to explain why I reject counsel's contention that a finding of exceptional circumstances under s 16(3B) ought to be made in this case.

122 The primary factor pointed to by counsel for Ahmad, as an exceptional circumstance, was his continuing illness. In 2002 Ahmad developed Non-Hodgkins lymphoma and subsequently went into remission. Although in remission, medical evidence disclosed that there was a fifty percent chance of recurrence. Whilst in prison it was determined that he was also suffering from acute hepatitis B.

123 In addition, counsel pointed to the confusion which surrounded the sentencing of Ahmad. He was not given the benefit of the moderating sentencing factor of totality; there has been considerable delay; he lost the earlier opportunity to have argued for a recognisance release order for the federal sentence.

124 Next, counsel pointed to the delay and confusion which arose upon intervention by the office of the Commonwealth Director. On 15 December 2005 counsel for the Commonwealth appeared before the Chief Judge (the sentencing judge having been appointed to the Supreme Court) and made submission as to the effect of the Crimes Act provisions. He sought a warrant pursuant to s 19AS(1)(c) and (d) and told his Honour that the effect would be that there would be no cumulation of sentence with the parole sentence. On 10 March 2006 counsel again appeared, and retracted his earlier submissions, submitting instead that full cumulation must occur, by virtue of s 16(3B), which he had overlooked. On 26 May 2006 counsel again appeared and this time told his Honour that while the sentencing judge would have had discretion to overcome the full effect of cumulation, that was no longer open. Thus, some nine months from the time when counsel for the Commonwealth first came into the case Ahmad learned, definitely, that he would be required to serve, additionally, his parole sentence. Ahmad had understood that his first release date was 12 October 2006, only to be told that his imprisonment was to be extended by some 18 months. All of those factors of uncertainty and confusion combine, it was said, to constitute exceptional circumstances.

125 I am not persuaded that those factors do amount to exceptional circumstances, and I would decline to make order for concurrency under s 16(3B). It does not follow however, that when weighed by this Court those factors might not produce an amelioration of the sentence to be imposed upon re-sentencing.

126 Amelioration of sentence by virtue of an order for concurrency under s 16(3B) is dependent on a finding of exceptional circumstances, but the question of totality can be fully addressed by having regard to that factor when assessing the appropriate sentences to be imposed upon re-sentencing.

127 If otherwise appropriate, the principle of totality could also be addressed, in part, by way of a recognisance release order, allowing for reduction of the 18 months' parole sentence. Given that upon re-sentencing the new sentence would be taken to apply as at 1 March 2005 then were the period of 18 months' imprisonment to be shortened by way of recognisance release order the later State sentences would follow in the order dictated by the Sentencing Act but commencing from the release date set by the recognisance release order.

128 Although it is not necessary to establish exceptional circumstances before an early release date for the federal parole sentence could be set, I am also not persuaded that it would be appropriate to reduce the length of the parole sentence. The fact that such serious new offences were committed by Ahmad while he was on parole for the previous very serious offence (even putting to one side that the offences in the second presentment occurred whilst he was on bail for the other offences), compels me to conclude that he ought serve the whole of the balance of the parole sentence, in order to emphasise the seriousness of major drug offenders flouting orders for parole, in order to commit new offences. In reaching this conclusion I have also had regard to the personal and other sentencing considerations which his counsel addressed and which I later discuss, but those factors do not justify amelioration of the parole sentence, although they have weight generally for the purpose of re-sentencing.

129 The fact that I would not order early release from the parole sentence does not mean, however, that the principle of totality does not have a role to play in Ahmad's case.

130 As discussed above, Ahmad commenced to serve his 18 month parole sentence on 1 March 2005, which was then followed by service of the sentence imposed by her Honour for the breach offences, which were those under the first presentment. The sentences under the second presentment were committed while he was on bail for those under the first presentment and thus s 16(3C) required them to be served cumulatively upon each other, and on the sentences on the first presentment, unless otherwise ordered by the court pursuant to s 16(3C). (The fact that Ahmad had been on bail was known to her Honour when sentencing him, and she modified the effect of cumulation, in the exercise of mercy).

131 With respect to re-sentencing, counsel for Ahmad placed considerable weight on the age and illness of Ahmad and submitted that in the light of what is now known, the Court should extend mercy. He submitted that, at his age, if the Court imposed a sentence similar to that imposed by her Honour the result would be a crushing sentence.

132 Apart from the Commonwealth offence, Ahmad had no prior convictions, over a long and otherwise productive life. He is married with adult children The prior conviction can not be swept aside, however. Its significance to his later offending is very clear. The offences on these presentments were very serious. On the first presentment were counts of trafficking in a commercial quantity of LSD (count 1) and in a commercial quantity of methylamphetamine, both carrying a maximum penalty of 25 years' imprisonment. Counts 3 and 4 both carry 15 years' imprisonment. The counts on the second presentment again involve trafficking in methylamphetamine, albeit not commercial quantity.

133 The learned sentencing judge set out a range of mitigating factors that she took into account and no complaint was made as to the approach she had adopted in that regard. Save that her Honour, being unaware of the breach of parole, had failed to factor in totality on that account her general approach to the mitigating and aggravating factors seems to me to have been appropriate and nothing that has occurred since Ahmad was sentenced would lead me to vary any of the individual sentences imposed by her Honour, in the exercise of my own discretion.

134 Upon re-sentencing full weight should, however, be given to the factor of totality and also the principle of proportionality. Having regard to the eighteen months which fell to be served for the parole breach, even allowing for the aggravating aspect of that breach, I would modify the sentence imposed by varying the orders as to cumulation, having regard to totality. In addition, I have regard to the fact that s 16(3C) applies. I agree with her Honour that an order ought be made allowing for some concurrency between sentences on the second presentment with those on the first. I will adopt her Honour's approach, allowing counts 1 and 3 on the second presentment to cumulate upon each other but then only 12 months of the total effective sentence on the second presentment to cumulate on that of the first.

135 The variation of the sentence I would impose, by way of reduction from that imposed by her Honour, is small, only six months on both head sentence and non-parole period, but no greater moderation is appropriate. The fact that there is a presumption for cumulation where parole has been breached reflects a deliberate choice by the legislatures and the policy ought not be undermined by over-generous orders for concurrency or moderation of sentence.

136 I would confirm all of the sentences imposed by her Honour on each presentment save that on the first presentment, No.00696016, I would delete the words "Direct that 6 months of the sentence imposed on Count 1 is to be served cumulatively upon the sentence imposed on count 2".

137 That would result in the total effective sentence on the first presentment being five years' imprisonment, not five years and six months. The cumulation of 12 months' imprisonment from the second presentment upon that imposed on the first presentment produces a combined total effective sentence for the two presentments of six years. I would direct that a minimum of three years and six months' imprisonment be served before becoming eligible for parole (compared to her Honour's order of four years non-parole period) I would confirm all other orders made by her Honour.

138 Finally, I address one additional matter. Counsel for Ahmad submitted that this Court ought make an order cancelling the warrant of commitment relating to the parole sentence. Ahmad commenced serving the sentence with respect to the breach of parole on 1 March 2005 not 25 May 2006, which was the date on which a warrant

was issued as a result of a hearing before the Chief Judge, and was based on submissions then made to him. Counsel for Ahmad submitted that this Court should order that a new warrant be issued so as to ensure that the 18 months balance of sentence for the parole offence is not deemed to have started at a later date. I agree with counsel for the Commonwealth, however, that the commencement of that sentence was governed by the legislation, not by the date on the warrant. It commenced on 1 March 2005 and an amended warrant is not required.

139 I would therefore allow the appeal of Ahmad and re-sentence him as proposed above.

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140 In relation to the appeal of Ahmad we agree, for the reasons given by Eames JA, that the appeal should be allowed and that Ahmad should be re sentenced as his Honour proposes.

141 In relation to the appeal of Piacentino, we agree, substantially for the reasons given by his Honour, that the decision in R v Orphanides[72] should no longer be followed and that the appeal should be dismissed.

142 As stated in R v Hunter,[73] the totality principle is to be applied by a sentencing judge where the offender is already serving the parole sentence at the time he or she falls to be sentenced for the breach offences. Consequently, any sentence being served at the time of sentencing is to be taken into account in the exercise of the sentencing discretion.

143 Where, however, an offender falls to be sentenced for offences at a time when the offender has not had his or her parole revoked by the Parole Board, the sentencing judge may not have regard to the possibility that the Parole Board may later revoke the parole and require the offender to serve some or all of the balance of the parole. That is so for two reasons. First, the terms of s 5(2AA) of the Sentencing Act 1991 preclude a sentencing judge having regard to any possibility that the length of time actually spent in custody by the offender will be affected by executive action of any kind. Secondly, and in any event, a sentencing judge would be unable to give meaningful effect to the principle of totality in circumstances where it was unknown whether the Parole Board intended to revoke parole and there was nothing on the basis of which the probability or extent of revocation could be assessed.

144 It remains for another day to determine whether an offender who is sentenced before his or her parole is revoked, and whose parole is later revoked, can then rely on the parole sentence as constituting fresh evidence for the purposes of an appeal against sentence;[74] or whether on such an appeal this court could and should assume that the Parole Board, in making its decision in relation to the parole sentence, has had regard to the principle of totality.

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