R v R L P [2009] VSCA 271

R v R L P [2009] VSCA 271 - VSCA 2009 case summary — Zoe

[6]

On each of the six counts of incest - counts 7, 8, 19, 20, 26 and 30 - to 10 years' imprisonment, the sentences on counts 8, 19, 20, 26 and 30 to be served concurrently with the sentence imposed upon count 7, except that one year of each of the sentences on counts 19, 26 and 30 be served cumulatively upon the sentence imposed upon count 7 and upon all the other sentences imposed;
On each of the two counts of carnal knowledge of a girl under the age of 10 years - counts 5 and 12 - to 10 years' imprisonment, the sentences to be served concurrently with each other and with all the other sentences imposed except for one year on count 12 which is to be served cumulatively upon all the other sentences imposed;
On each of the four counts of indecent acts with a child under 16 years - counts 24, 27, 28 and 29 - to 5 years' imprisonment, the sentences to be served concurrently with the other sentences imposed, except for six months of the sentence on each of counts 24, 27, 28 and 29 which are to be served cumulatively upon each other and upon all the other sentences imposed;
On each of the eleven counts of indecent assault on a girl - counts 1 to 4, 6, 9 to 11, 14, 15 and 17 - to 2½ years' imprisonment, the sentences be served concurrently with each other and with all the other sentences imposed, except for one year of the sentence on count 1, which is to be served cumulatively upon all the other sentences imposed;
On each of the five counts of indecent assault - counts 16, 18, 21, 22 and 23 - to 2½ years' imprisonment, the sentences be served concurrently with each other and with all the other sentences imposed, except for six months of the sentence on count 16, which is to be served cumulatively upon all the other sentences imposed; and
On the count of common assault - count 13 - to 2 years' imprisonment, eighteen months of that sentence be served concurrently with the other sentences imposed and six months is to be served cumulatively upon all the other sentences imposed.

[90]

[22] In R v McCorriston, in a judgment in which Winneke P and Buchanan JA specifically agreed, I said:

Sentencing judges should be allowed great latitude in tailoring an appropriate total effective sentence, but there are two errors or dangers that it is easy to fall into. One is to fail to register the seriousness of one or more of the offences, as for example by imposing a series of very short sentences and directing that they all be served cumulatively. Another is to impose a particularly heavy sentence on one count and to allow the sentences imposed on all the others to be served concurrently despite the fact that some cumulation would be justified. Very often it is not, as s 16(1) of the Sentencing Act 1991 and common sense both recognise. But the combined effect of cases such as R v Newman and Turnbull and Pearce v R is that sentencing judges are sometimes well advised to moderate the sentences they impose on each count and to direct a measure of total, or more often partial, cumulation. That is especially so when offences are committed on separate occasions or against different victims, but those are not the only examples. Failure to moderate and cumulate in an appropriate case is apt to make a sentence unnecessarily (and unmeritoriously) vulnerable to appellate intervention.

A moderate sentence may, of course, be lengthy. Moderation takes its content from the circumstances and each individual sentence should still be appropriate for the relevant count.

There are at least three reasons why, within the limits of common sense, judges are well advised to moderate and cumulate in appropriate cases. First, moderation is a virtue in itself. Secondly, other victims are not left to feel that the offences committed against them are 'meaningless statistics'. Thirdly, a sentence structured that way is less vulnerable on appeal. Attention is focused on the merits and the discretion is not re-opened simply because the total effective sentence, imposed on one count, was manifestly excessive for the offence the subject of that count considered on its own.[45]

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