R v R H McL [1998] VSCA 61

R v R H McL [1998] VSCA 61 - VSCA 1998 case summary — Zoe

[49]

There are a number of answers to Mr. Tehan's first point. First, his own answer in response to the question from the Bench, when taken with her Honour's direction, is, in my view, fatal. The concession which the answer involved was, I consider, properly made; for a statement that a person was "10 or 11" at the time of some event ordinarily means that the event occurred within a period commencing towards the end of the person's tenth year and ending in the early part of the person's eleventh year. It is because of the event's relative closeness to the eleventh birthday that the speaker cannot say definitely that the person was aged 10 or, on the other hand, was aged 11. Of course, the meaning of the expression will depend upon the context. In its context in this case it was open, I consider, to the jury to be satisfied beyond reasonable doubt that the period it covered fell within the period counted. Secondly, this case is unlike Trotter, for there two indecent assaults were mentioned in the evidence and it was impossible to know whether there was unanimity on the part of the jury in respect of one or other of them. Here, on the other hand, the evidence disclosed only one event to which the count could relate. A submission by Mr. Tehan, which seemed designed to assimilate this case to Trotter, that some of the jury might have found that the offence occurred outside the period counted, cannot, as stated by the Chief Justice during argument, be accepted, for it is predicated upon those jurors' acting contrary to the judge's direction. Nor does S v. The Queen support the point. That case is obviously distinguishable, for the complainant's evidence there was of numerous offences without specificity, any of which was capable of being one of the three offences charged. The distinction is demonstrated in the judgment of Tadgell, J.A. in Director of Public Prosecutions v. His Honour Judge G.D. Lewis [1997] 1 V.R. 391. More particularly, the statement of Dawson, J. at 276 on which reliance was placed is not infringed by the count or the conviction here. The statement is in fact in these terms:

[58]

But in truth there is no problem. For the reasons which follow, I consider that the presentment was cleared and the applicant ceased to be at jeopardy on count 7. First, although the elements of the offences the subject of counts 6 and 7 respectively are not identical and although those that are not common are important for criminal liability, the physical act alleged against the applicant of penile vaginal penetration of B during the period and at the place in question is the same, and, a verdict of guilty having been taken on count 6, it would, for reasons similar to those given in R. v. Weeding [1959] VicRp 50; [1959] V.R. 298 and R. v. Sessions [1998] 2 V.R. 304 at 312-315, not have been correct for the judge to have taken a verdict on count 7. (The recent decision of the High Court in Pearce v. The Queen [1998] H.C.A. 57 does not appear to deal with the taking of verdicts, though it certainly deals with prosecutions and convictions. Sessions is cited twice by Kirby, J. without direct disapproval.) This is so, I consider, even though, having regard at any rate to the applicable maximum penalties, the offence the subject of count 6 (rape) was, at the time, less serious in the eyes of Parliament than that the subject of count 7 (incest). (For this reason, notwithstanding the order of the counts on the presentment, I think that a verdict should have been taken first on count 7 and only on count 6 if the verdict on count 7 was not guilty. If that be right, the applicant received the benefit of a favourable direction as to the counts, and for this reason, quite apart from any others, cannot complain about count 7.) Likewise, it is immaterial that her Honour's reason for not taking a verdict on count 7 (namely, that it was an alternative count) was not strictly correct. With regard to Mr. Tehan's contention that the presentment should have been cleared and to his reliance upon the failure to take a verdict on count 7 in support of the challenge to verdicts on other counts, two holdings in Weeding should be noted. The first was that the rule that a jury should return a verdict in respect of all counts charged in a presentment is no more than a rule of practice and should not be allowed to stand in the way of justice being done in a particular case. Here, in my view, justice required that a verdict should not be taken on one of the two counts if a verdict of guilty had been returned on the other. Two cases, albeit relating to summary prosecutions, are illustrative of the holding. In Reardon v. Baker [1987] VicRp 72; [1987] V.R. 887 at 897-899 Phillips, J., applying Weeding, held that, where the possession for sale of heroin was the essential basis of a charge of trafficking of which the applicant had been convicted, conviction for the separate offence of possession of the same heroin at the same place and on the same date was offensive to the common law principle applied in Falkner v. Barba [1971] VicRp 39; [1971] V.R. 332. There Gillard, J. held that, where the ultimate facts establish the proof of two offences of a similar character, it is a doctrine of the common law that an offender could not be convicted of both offences. The second relevant holding in Weeding was that the failure to take a verdict on some counts in a presentment does not invalidate the verdict on a count in the same presentment if that verdict is otherwise valid.

[61]

Mr. Tehan's next point under ground 1 related to counts 10 and 11, the incident of the alternate incest with A and B in the loungeroom one evening. His point was that A, who was born, as will be remembered, on 27 September 1976, said that the incident occurred when she was "about the age of 12", whereas B, who was born on 14 September 1977 and thus was 11½ months younger than A, said that she was "14, I think" at the time of the incident. There was thus a discrepancy of some three years in their evidence. The period alleged in each count ran from A's twelfth birthday until some months after B's fifteenth birthday. But, Mr. Tehan submitted, the discrepancy between them as to the approximate (derived) date of the incident was marked, both girls could not be correct in their evidence, and the verdicts on those counts were unsafe. A short answer to this submission is, as the Chief Justice said in argument, that the jury, acting in accordance with her Honour's direction (unduly favourable to the applicant) that the dates of each of the counts are essential ingredients of them and that the jury must be satisfied that the offences took place between the dates alleged, were entitled to prefer the evidence of the older girl. After all, B's answer quoted above suggests that she was uncertain as to her age at the time. Contrary to a submission which Mr. Tehan made at one stage, A's evidence as to her age at the time of the incident bore upon B's age then and, more materially, upon the (derived) approximate date of both the contemporaneous offences. The jury were, indeed, entitled to be satisfied beyond reasonable doubt that the incident took place within the period stated in the two counts, relying on the estimate of either of the complainants of her age at the time, for the approximate date of the incident derived from the evidence of each girl fell within each count. The evidence of the two girls was similar in essentials save as to the (derived) approximate date of the incident and as to whether they were naked or dressed in pyjamas. The evidence of each bore on the count concerning her sister as well as on the count concerning herself. Neither verdict was unsafe.

[62]

The next point concerned count 12, the first of the prostitution counts, which alleged that the offence took place between 1 January 1989 and 27 September 1989, the latter date being A's thirteenth birthday. Now, count 16 related to the incident of prostitution to fund the slumber party for A's thirteenth birthday, when "John" paid $100. Count 20 related to the applicant's participation by way of vaginal penetration in the activities giving rise to counts 18 and 19, one of which was prostitution with "Rino" and the other with "Frank". Those three offences were alleged to have occurred on the evening on which the applicant made the pornographic video depicting his daughter prostituting herself with the two men. Mr. Tehan accepted, indeed asserted, that count 16, 18, 19 and 20 related to the respective events which I have stated. His first contention, as I understood it, was that, since count 16 related to the prostitution to fund A's thirteenth birthday slumber party, count 12 had to relate to an earlier incident and it was therefore incumbent upon the Crown to prove that one incident occurred before A's thirteenth birthday or, perhaps more accurately, before the act of prostitution to fund the party for that birthday. I agree. He then submitted that A did not seem to give any evidence as to when the activity commenced, noting that she said that it happened almost every Thursday night over two to three years. In my view, however, the Crown did lead evidence of the occurrence of one specific incident before the incident the subject of count 16, being evidence on which the jury were entitled to find count 12 proved beyond reasonable doubt. It is clear from A's evidence of the applicant's response to her approach to him to be allowed to have a slumber party that she was already engaging in acts of prostitution on Thursday nights at his direction, for she said, "He said, only if [I did] what I was doing on Thursday nights" (emphasis added). Likewise, the fact that the incident to fund the slumber party occurred after and as a result of A's telephoning "John" made it clearly open to the jury to be satisfied that before that incident A knew, and had prostituted herself with "John". Those, then, are general propositions as to previous occurrences. But there is also specific evidence. A said that the first time "it" happened was with "John". She said that she was in the bathroom when he arrived and she went on to describe what happened on that evening, at any rate until she came into the loungeroom in response to the applicant's signal. Thereafter, it might be said, her evidence was expressed in terms of habitual occurrence rather than of the specific occurrence. That incident was clearly different from that in count 16 and thus necessarily occurred before A's thirteenth birthday. Perhaps out of caution I should mention the commencement of A's cross-examination by counsel for the applicant. She was asked a question about money changing hands "after what occurred before the slumber party". She answered that she had seen about $100 change hands. It is clear from the context, in my view, that counsel meant, and A meant, the incident to fund the slumber party, which necessarily occurred a little before the party. It was thus not, in my view, established by the cross-examination that the only occasion of prostitution before the slumber party was that almost immediately before it for which $100 was paid by "John". Mr. Tehan also said that the counts were not put as representative because a no case submission succeeded on count 14. Why, he asked, was count 12 allowed to stand? It is true that the counts were not put as representative. The no case submission succeeded in relation to count 14 because there was conceded to be no evidence of any event taking place that could make out that count. The evidentiary position of count 12, as I have tried to show, was different.

[72]

Making my own independent assessment of the evidence in the light of the submissions of the parties and the charge, and in particular of the matters to which Mr. Tehan drew attention, I consider that upon the whole of the evidence it was well open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on each of the counts on which he was convicted. The verdict on each of those counts is not unreasonable or such as cannot be supported having regard to the evidence. There was relevantly no miscarriage of justice. (As will appear later, I conclude under ground 4 that one error in the charge led to a miscarriage in relation to counts concerning B, but it did not infect all the verdicts.) Prominent among my reasons for this conclusion are the fact that the evidence of both complainants concurs, in essential matters, in respect of the alternate fellatio required of them in the loungeroom (counts 10 and 11); that the evidence of A goes to the extent of a grave allegation against her mother, such as ordinary human experience suggests is unlikely to be fabricated even if a complainant were prepared to fabricate allegations against a step-parent; the general confirmation of peripheral matters, admittedly not amounting to corroboration, contained in the evidence of C, D and (in relation to A) B referred to earlier; and the fact that on close examination the evidence of the applicant's attendance at bingo on Thursday nights shows the attendance to be neither frequent nor regular, leaving plenty of opportunity for the child prostitution alleged to occur. Though there were some discrepancies on small points in or between the complainants' evidence and some matters (e.g. absence of forensic evidence) on which strong comment could be made to the jury, the nature and quality of the complainants' evidence was not, in my view, such that the jury should have entertained a reasonable doubt. It was not inadequate, tainted, or otherwise lacking in probative force. In short, the assessment of the evidence of the complainants in the light of the defence evidence and the criticisms of the Crown evidence was eminently within the province of the jury: compare Saffoury per Winneke, P. at p.11.

[82]

All the foregoing evidence, except that last stated, had been given before the application for discharge of the jury was made. The question of uncharged acts was first mentioned by the prosecutor on the first day of trial, when answering an objection to his asking A a leading question. In the jury's absence he indicated that he proposed to lead evidence of uncharged acts as showing the relationship between the applicant and A. Counsel for neither accused voiced any objection. Shortly before the adjournment that day and still in the absence of the jury her Honour stated what she understood to be the evidence of uncharged acts and that she proposed the following morning to give the jury a direction about the use to which that evidence might be put. Counsel for the applicant asked the judge to hear counsel in the morning on the point and her Honour agreed to do so. The following morning, counsel for the applicant applied for the discharge of the jury on the grounds that the prosecutor had led from A evidence that went outside the realms of the counts charged and that this had put his client in an unenviable position because of the highly prejudicial nature of the evidence. He submitted that the situation was "unrectifiable really". He was particularly concerned about the evidence of intercourse with persons other than the applicant, which, he said, could not go to the relationship between the two of them, especially as the prosecutor had gone on to ask the witness to put a number on the "lots" or "heaps" of times. He acknowledged that he had not objected, saying in substance that he had expected the evidence to be confined within "certain realms". Her Honour sought the prosecutor's assistance on identifying the evidence relating to the counts from count 12 onwards. After that was done, the prosecutor said that the evidence of sexual intercourse with other men on numerous occasions and of the applicant's masturbating himself was part of the general illicit sexual relationship he had with her; that it was part of the overall pattern; and that it explained A's failure to complain because it showed the domination of her by the applicant.

[90]

Mr. Tehan contended that all the evidence in question was inadmissible. He submitted that the incidents referred to in the items of evidence listed above as (i) and (vi) did not assist the jury in understanding the relationship between the parties. There was no specification in the evidence to indicate when either act had occurred. Both acts were vague in nature and the prejudicial impact of the evidence outweighed its probative value. As to the evidence of uncharged acts of prostitution, he pointed out, correctly, that the counts of child prostitution were not representative and therefore the evidence of the uncharged acts was not admissible on that basis. He submitted that this evidence was not admissible as relationship evidence as its probative value had "clearly (to) transcend" its prejudicial effect (referring to McHugh, J., dissenting, in Pfennig v. The Queen [1995] HCA 7; (1995) 182 C.L.R. 461 at 513, citing Brennan, J. in Perry v. The Queen [1982] HCA 75; (1982) 150 C.L.R. 580 at 609, though McHugh, J. also used "outweigh" as an alternative); and that the Crown had to establish this before the evidence was admissible (referring to R. v. Vonarx (unreported, Court of Appeal, 15 November 1995)). He said that uncharged acts are too readily admitted as evidence of relationship, referring to Gipp v. The Queen at paras.176 and 181 per Callinan, J. and also to Gaudron, J.'s reference to their admission being exceptional at paras.10 and 11 of that decision. He submitted, I believe correctly, that the evidence was not led to show the identity of the offender or to demonstrate by some peculiar method of operation the object of improbability of the applicant's innocence, referring to R. v. Wackerow [1998] 1 Qd.R. 197, noted by Callaway, J.A. in R. v. Best (unreported, Court of Appeal, 23 July 1998) at p.12. Nor, he submitted, was it similar fact evidence. There was, he said, no feature of the evidence which made it directly relevant to proof of guilt on the prostitution counts, each of which had their own specific factual background, as the prosecutor had pointed out. Mr. Tehan claimed that the evidence was not said to show a guilty passion, referring to Dawson, J.'s discussion of that topic in S v. The Queen at 275. He conceded that the evidence might have become relevant if, for example, failure to complain was raised, but contended that it should not have been given by the complainant in chief, citing Gaudron, J. in Gipp at para.12. He said that, where evidence of relationship is admitted, a strong connection between that evidence and the crime will be shown, citing O'Leary v. The King [1946] HCA 44; (1946) 73 C.L.R. 566 at 577-578 per Dixon, J. as to the unintelligibility of the transaction there without the evidence, and Wilson v. The Queen [1970] HCA 17; (1970) 123 C.L.R. 334 at 339. He concluded by submitting that proof that the applicant procured A to engage in sexual penetration on many occasions with "John" did not establish a relationship with the applicant "in so far as other men were concerned".

[91]

In my opinion, for the reasons which follow, which are substantially those advanced by Mr. Ryan for the respondent, the evidence was admissible. All of it went to show that the applicant had a strong sexual attraction to, indeed a guilty passion for, A. Compare R. v. Josifoski [1997] 2 V.R. 68 at 73-76. Items (ii) to (v) of the evidence did so in that, when he caused her to prostitute herself, the applicant was present deriving, besides money, sexual gratification by observation, masturbation and participation from time to time. Secondly, an allegation that a man prostituted his step-daughter when she was aged between 12 and 15 is so unusual that it can only be properly understood in its complete factual context, or, in other words, evidence of four isolated incidents of the prostitution of A by the applicant in a period of three years might seem incredible to a jury, but a different view might be taken if those incidents were set in their full historical context of systematic defilement by the girl's step-father. The evidence about uncharged acts of child prostitution, then, did go to the relationship between the applicant and A and also showed a pattern or system operating on most Thursday nights during the period, without the aid of which the jury's deliberations would be conducted in an artificial or unrealistic context; compare O'Leary at 577-578. Mr. Tehan at one stage submitted that the prosecution case on the child prostitution counts could have been conducted without reference to the uncharged acts other than the making of the pornographic video. That may be so, but, for the reasons I have given, it did not have to be so conducted. It is true that the evidence was prejudicial, but, in my view, its probative force outweighed its prejudicial effect. The foregoing bases for admission were advanced by the prosecutor below and put by her Honour to the jury. I should add that, in my view, Gipp, on which Mr. Tehan placed much reliance, does not assist him. With the possible exception of Gaudron, J. all justices considered the evidence of uncharged acts with the complainant admissible. It is true that Callinan, J. at paras.176 and 181 did not accept that non-specific highly prejudiced evidence might be led as "part of the essential background to the other evidence, thereby disagreeing with the statement of Deane, J. in B v. The Queen [1992] HCA 68; (1992) 175 C.L.R. 599 at 610 cited in Vonarx at 7. But, even if one treats Gaudron, J. as agreeing with that view, I do not consider that it was part of the ratio decidendi of Gipp or, allowing for the views of the other justices, even that that part of the passage cited from Vonarx by Callinan, J. was disapproved of by the Court or even that Callinan, J. disapproved of the remainder of that passage. As I say in para.81 below, the necessary directions were given save for reference to B.

[95]

Finally, it is of significance that, with the exception of the evidence from D, the evidence of each of the uncharged acts complained of had been led in chief from A without any objection; and it was not until the next day that the application for discharge of the jury was made. On the first day counsel for the applicant, as I read what he said, simply asked to be heard on the following day as to the form of the direction which her Honour was proposing to give in relation to the evidence of uncharged acts. It seems reasonably clear from counsel's submissions on the second day that what provoked his application for discharge of the jury was reflection upon the prosecutor's request for A's best estimate of the number of times "John" had had sex with her and her answer, "Anywhere up to 100 times". But that figure was simply the reflex of A's earlier unobjected to evidence that she was caused to prostitute herself almost every Thursday night and that this lasted for two or three years. Although it may be that the quantified answer "Anywhere up to 100 times" nevertheless took defence counsel by surprise, A's evidence as to uncharged acts, including no doubt the general, but unquantified, statements as to their frequency and duration, was, we were told without objection, contained in the statements in the hand-up brief. Despite this, there had not, as her Honour pointed out, been any request on behalf of the applicant for the preliminary determination of the admissibility of the evidence nor was any objection taken at the time that any of it was led. Whilst I do not say that that constitutes an insurmountable bar to the application for discharge or to the success of grounds 2 and 3, it does make me more confident in my conclusion that the evidence was all admissible and that there was accordingly no high degree of need - indeed, no need - for the jury to be discharged, a high degree of need still being the requirement to be shown to obtain the discharge of a jury: R. v. Eastwood (unreported, Court of Appeal, 17 September 1998) at paras.5-6 and 22.

[110]

I have left until last alleged error (v). Notwithstanding the view which I have just expressed, this alleged error must be considered because it affects the counts relating to A as well as those relating to B. It seems reasonably clear that something went wrong with her Honour's charge at this point while she was delivering it to the jury. For the expression "more credible to understand how the acts occurred ..." is not a natural one. In addition, her Honour had less than a dozen words earlier used the word "credible". But what her Honour meant is clear. That was that the evidence, if accepted, is admitted and allowed to be used to assist understanding of the events the subject of the counts charged. Her Honour had already said as much in her direction given after rejecting the application for the discharge of the jury: she had referred, without disapproval, to the prosecution submission that, if accepted, the evidence should be used "to better understand the setting in which the offences which are the subject of the counts ... occurred". Further, her Honour had spoken earlier in her charge of the use of the first category of evidence to enable the jury to look at the evidence given regarding the counts in a proper realistic setting (which echoes her Honour's reference to the "context" in her direction after the discharge application); and, after the passage under attack, when she had moved to the second category of evidence, her Honour referred to the inability of the jury (without the evidence) "to understand" the evidence given in relation to the particular prostitution counts. Whilst I do not think that the word "credible" (where secondly appearing in the impugned passage) actually means "easy", I do agree with Mr. Ryan's submission that the jury, listening to the impugned passage in the context of what had preceded it in the charge, and in the trial as a whole, and then hearing what followed it, would have taken her Honour to be saying that the evidence in question facilitated understanding of how the acts the subject of the counts occurred. In my view, although there was perhaps a slip of the tongue, there was no misdirection, wrong decision of a question of law or a miscarriage of justice.

[116]

It is no doubt true that it is not the law that people who are compelled to submit to sexual acts complain about them and so you are allowed to lead evidence of complaint: R. v. Matthews [1998] VCA 2 at paras.12, 13 and 16 per Callaway, J.A. and para.21 per Kenny, J.A. But the consequences that followed in that case do not, in my view, follow here. First, the effect of the slip or error was neutralised by the next sentence and the other passage in the charge to which I have referred. Secondly, contrary to Mr. Tehan's submission, and unlike Matthews, this was not a case where complaint, by which I mean timely complaint, was important. Rather, it was a case where the withdrawal of a latish complaint by one person and non-complaint by another were important. I agree with Mr. Ryan that the impugned passage was unduly favourable in the case of counts concerning A. Although that may not be so in respect of the counts concerning B, her Honour gave an impeccable direction about B's complaint. The jury could not have been left in any doubt that it was for them to decide whether they accepted B's evidence that the alleged offences had been perpetrated upon her by the applicant. Finally, yet again no exception was taken to this alleged error. Had it been, the error could easily have been cured. This case is far different from Matthews. What Callaway, J.A. said in para.17 as to the limited ratio decidendi of that case should be noted. This is a case, such as his Honour contemplated, where a reference to what the law says simply does not matter in the direction as a whole. This is not a case where, to adapt the words of Kenny, J.A. in para.21 of Matthews, the terms of the impugned direction might well have conveyed to the jury that it had no alternative but to treat the evidence of complaint as evidence consistent with the complainant's version. When the direction as to complaint is read as a whole there was, in my view, no misdirection, no wrong decision of a question of law and no miscarriage of justice.

[135]

For the reasons I have given, I am of opinion that the pre-conditions to the applicability of s.569(1) are satisfied. This Court, therefore, has power to affirm or replace the sentences on the remaining counts. It seems to me indeed that the word "may" confers, not a discretion, but an authority which must be exercised by taking one or either of the alternative courses specified. As will appear, I consider that the Court should pass substitute sentences on the remaining counts, but I should indicate at this point that Aickin, J. in Ryan at 14-15 expressed the view that it can seldom be appropriate to use s.569(1) in a case where a new trial has been ordered under s.568(2), as I would propose should be done here. His Honour was concerned that, if the accused were to be convicted on the new trial, the trial judge would then impose a sentence appropriate to that offence alone and would under the then legislation have been authorised to impose a sentence to commence on the expiration of the increased sentences by then being served on the remaining counts. But the legislation relating to the imposition of sentences has been changed since Ryan was decided. Now, in the ordinary case, unless otherwise directed by the court every term of imprisonment imposed on a person must be served concurrently with any uncompleted sentence of imprisonment imposed on that person, whether before or at the same time as that term: Sentencing Act 1991, s.16(1); and, in the case of a term of imprisonment imposed on a serious sexual offender for a sexual offence the court may direct otherwise than that it be served cumulatively on any uncompleted sentence of imprisonment imposed on that offender, whether before or at the same time as that term: s.6E of that Act as it now stands and s.16(3A) as it stood at the time of sentence. Moreover, since Ryan was decided the principle of totality and its method of implementation have been further expounded by the High Court in Mill v. The Queen (1988) 166 C.L.R. 59, especially at 63 and 67. Thus, the sentencing judge after the new trial, at any rate where, as here, service of the custodial portion of the sentences imposed on the remaining counts would not have been completed, would be able to achieve a sentencing disposition which did not infringe the principle of totality or crush the applicant. (I distinctly abstain from any comment as to what that sentence should be in the event of conviction.) Moreover, one must bear in mind that the new trial may result in acquittals. In that event, if the sentences on the remaining counts as they presently stand are manifestly inadequate and if this Court has not passed another sentence, the anomaly created by the alteration of the overall sentence in consequence of the setting aside of convictions on some counts, the existence of which Brennan, J. demonstrated in Ryan at 23 and 24, would remain.

[138]

In arriving at the sentences I consider appropriate, I, like her Honour, apply s.10(6) of the Sentencing Act 1991, with the result that, except where the applicant falls to be re-sentenced as a serious sexual offender in respect of a sexual offence, the maximum custodial sentence available on each count is to be that prescribed, reduced by one-third to take into account the abolition of remissions. By reason of the conviction of the applicant on counts 3 and 4 and his being sentenced by this Court to a period of imprisonment in respect of those counts, he is to be sentenced as a serious sexual offender in respect of the remaining counts of incest after counts 3 and 4. I have had regard to the need to observe the principles of proportionality and totality and the need to avoid a crushing sentence. But, unlike her Honour, I consider that the preferable method of achieving those objects is, notwithstanding s.16(3A) of the Sentencing Act as it stood at the time of sentence by her Honour, to follow the course preferred in Mill at 63, R. v. Lomax [1998] 1 V.R. 551 at 567 and 568 and R. v. Grabovac [1998] 1 V.R. 664 of imposing individual sentences that are as nearly appropriate as the number of offences will permit and then making them largely concurrent. I point out particularly that Lomax was a case where the serious sexual offender provisions had application. In my view, for the reasons I have given earlier and her Honour gave, count 8 should attract the maximum available custodial sentence of 2 years and counts 18 and 19 the nearest whole number of years to the maximum custodial sentence available, that is, 4 years' imprisonment. I would make concurrent the sentences for offences occurring on the same occasion or in the same episode. Considerations of totality and more particularly of double jeopardy require sentences on sundry other offences to be concurrent as well. I do not, indeed, think that the principle of totality or that of proportionality would preclude the imposition of more severe sentences and directions as to cumulation than I propose, but I think that that of double jeopardy does. In the particular circumstances of this case, however, the latter principle does not require that the total effective sentence resulting from the individual sentences now to be imposed after directions as to concurrency or cumulation be lower than the total effective sentence resulting from the individual sentences imposed by her Honour after such directions.

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